ARTEBENE LIMITED Palmerston House 814 Brighton Road Purley /Surrey CR 8 2BR Phone 020 8655 8471 Fax 020 8655 8501
2. Application of Terms
5. Non delivery
10. Limitation of liability
12. Force majeure
The buyer's attention is in particular drawn to theprovisions of clause 10.4.
1.1 The definitions and rules ofinterpretation in this clause apply to these Terms.
Artebene Limited incorporated and registered in England and Wales with company number 6426621 whose registered office is Palmerston House, 814 Brighton Road, Purley, Surrey CR8 2BR.
any contract between the Company and the Customer for the sale and purchase of the Goods.
the person, firm or company who purchases the Goods from the Company.
the place where delivery of the Goods is to take place under clause
any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them).
the materials referred to at clause 3.2.
these terms and conditions.
1.2 A reference to a particular law is areference to it as it is in force for the time being taking account of anyamendment, extension, application or re-enactment and includes any subordinatelegislation for the time being in force made under it.
1.3 Words in the singular includethe plural and in the plural include the singular.
1.4 A reference to one genderincludes a reference to the other gender.
1.5 Clause headings do not affectthe interpretation of these Terms.
2. Application of Terms
2.1 Subject to any variation under clause2.3 anyContract will be on these Terms to the exclusion of all other terms andconditions (including any terms or conditions which the Customer purports toapply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsedon, delivered with or contained in the Customer's purchase order, confirmationof order, specification or other document will form part of the Contract simplyas a result of such document being referred to in the Contract.
2.3 Each order or acceptance of aquotation for Goods by the Customer from the Company will be deemed to be anoffer by the Customer to buy Goods subject to these Terms.
2.4 Any variation to these Termsand any representations about the Goods will have no effect unless expresslyagreed in writing and signed by an authorised representative of theCompany. The Customer acknowledges thatit has not relied on any statement, promise or representation made or given byor on behalf of the Company which is not set out in the Contract. Nothing in this clause will exclude or limitthe Company's liability for fraudulent misrepresentation.
2.5 No order placed by the Customerwill be deemed to be accepted by the Company until a written acknowledgement oforder is issued by the Company or (if earlier) the Company delivers the Goodsto the Customer.
2.6 The Customer will ensure that the terms of its order and anyapplicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract willcome into existence until the Company despatches an acknowledgement of order tothe Customer. Any quotation is valid fora period of 21 days only from its date provided that the Company has notpreviously withdrawn it.
2.8 These terms will be construed on an Ex-Works transactionalbasis save as set out in these terms.
3.1 The quantity and description ofthe Goods will be as set out in the Company's quotation or acknowledgement oforder.
3.2 All samples, drawings, descriptive matter, calculations,specifications and advertising issued by the Company and any descriptions orillustrations contained in the Company's catalogues, brochures or on its website are issued orpublished for the sole purpose of giving an approximate idea of the Goodsdescribed in them. They will not form part of the Contract and this is not asale by sample.
3.3 The Company retains exclusive ownershipof all intellectual property such as trademarks, trade names, patents,registered designs and any other intellectual property rights in the Goods andin any of the Materials. The Customeragrees that it will not disclose such Materials to any third party withoutobtaining the Company's prior written consent to do so.
4.1 Unless otherwise agreed inwriting by the Company, delivery of the Goods will take place at the Company's warehousein Germany atHans-Boeckler-Str. 57, D-59348 Luedinghausen, Germany.
4.2 The Customer will take delivery of the Goods within 7 days of the Company giving it noticethat the Goods are ready for delivery.
4.3 Any dates specified by theCompany for delivery of the Goods are intended to be an estimate and time fordelivery will not be made of the essence by notice. If no dates are so specified, delivery will bewithin a reasonable time.
4.4 Subject to the other provisionsof these Terms, the Company will not be liable for any direct, indirect orconsequential loss (all three of which terms include, without limitation, pureeconomic loss, loss of profits, loss of business, depletion of goodwill andsimilar loss), costs, damages, charges or expenses caused directly orindirectly by any delay in the delivery of the Goods (even if caused by theCompany's negligence), nor will any delay entitle the Customer to terminate orrescind the Contract unless such delay exceeds 180 days.
4.5 If for any reason the Customerfails to accept delivery of any of the Goods when they are ready for delivery,or the Company is unable to deliver the Goods on time because the Customer hasnot provided appropriate instructions, documents, licences or authorisations:
4.5.1 the Goods will be deemed tohave been delivered; and
4.5.2 the Company may store the Goodsuntil delivery, whereupon the Customer will be liable for all related costs andexpenses (including, without limitation, storage and insurance).
4.6 The Customer will provide atthe Delivery Point and at its expense adequate and appropriate equipment andmanual labour for loading the Goods.
4.7 If the Company delivers to the Customera quantity of Goods of up to 5 per cent. more or less than the quantity ofGoods ordered and accepted by the Company in the Contract, the Customer willnot be entitled to object to or reject the Goods or any of them by reason ofthe surplus or shortfall and will pay for excess goods at the Contract rate.
4.8 The Company may deliver theGoods by a number of separate instalments. Each separate instalment will be invoiced andpaid for in accordance with the provisions of the Contract.
4.9 Each instalment will be aseparate Contract and no cancellation or termination of any one Contractrelating to an instalment will entitle the Customer to repudiate or cancel anyother Contract or instalment.
5. Non delivery
5.1 The quantity of any consignmentof Goods as recorded by the Company on despatch from the Company's place ofbusiness will be conclusive evidence of the Goods received by the Customer ondelivery unless the Customer can provide conclusive evidence proving thecontrary.
5.2 The Company will not be liablefor any non-delivery of Goods (even if caused by the Company's negligence)unless the Customer gives written notice to the Company of the non-deliverywithin 7 days of the date when the Goods would in the ordinary course of eventshave been received.
5.3 Any liability of the Company for non-delivery of the Goods willbe limited to issuing a credit note at the pro rata Contract rate against anyinvoice raised for such Goods.
6.1 The Goods are at the risk of the Customer from the time ofdelivery (including for loss or damage caused by the Company's negligence).
6.2 Ownership of the Goods will not pass to the Customer untilthe Company has received in full (in cash or cleared funds) all sums due to itin respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are orwhich become due to the Company from the Customer on any account.
6.3 Until ownership of the Goodshas passed to the Customer, the Customer will:
6.3.1 hold the Goods on a fiduciarybasis as the Company's bailee;
6.3.2 store the Goods (at no cost tothe Company) separately from all other goods of the Customer or any third partyin such a way that they remain readily identifiable as the Company's property;
6.3.3 not destroy, deface or obscureany identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods insatisfactory condition and keep them insured on the Company's behalf for theirfull price against all risks to the reasonable satisfaction of the Company. On request the Customer will produce thepolicy of insurance to the Company.
6.4 The Customer may resell theGoods before ownership has passed to it solely on the following terms:
6.4.1 any sale will be effected inthe ordinary course of the Customer's business at full market value; and
6.4.2 any such sale will be a sale ofthe Company's property on the Customer's own behalf and the Customer will dealas principal when making such a sale.
6.5 The Customer's right topossession of the Goods will terminate immediately if:
the Customer has a bankruptcy order madeagainst him or makes an arrangement or composition with his creditors, orotherwise takes the benefit of any statutory provision for the time being inforce for the relief of insolvent debtors, or (being a body corporate) convenesa meeting of creditors (whether
6.5.1 formal or informal), or entersinto liquidation (whether voluntary or compulsory) except a solvent voluntaryliquidation for the purpose only of reconstruction or amalgamation, or has areceiver and/or manager, administrator or administrative receiver appointed ofits undertaking or any part thereof, or documents are filed with the court forthe appointment of an administrator of the Customer or notice of intention toappoint an administrator is given by the Customer or its directors or by aqualifying floating charge holder (as defined in paragraph 14 of schedule B1 tothe Insolvency Act 1986), or a resolution is passed or a petition presented toany court for the winding-up of the Customer or for the granting of anadministration order in respect of the Customer, or any proceedings arecommenced relating to the insolvency or possible insolvency of the Customer;
6.5.2 the Customer suffers or allowsany execution, whether legal or equitable, to be levied on its property orobtained against it, or fails to observe or perform any of its obligationsunder the Contract or any other contract between the Company and the Customer,or is unable to pay its debts within the meaning of section 123 of theInsolvency Act 1986 or the Customer ceases to trade; or
6.5.3 the Customer encumbers or inany way charges any of the Goods.
6.6 The Company will be entitled torecover payment for the Goods notwithstanding that ownership of any of theGoods has not passed from the Company.
6.7 The Customer grants theCompany, its agents and employees an irrevocable licence at any time to enterany premises where the Goods are or may be stored in order to inspect them, or,where the Customer's right to possession has terminated, to recover them.
6.8 Where the Company is unable todetermine whether any Goods are the goods in respect of which the Customer'sright to possession has terminated, the Customer will be deemed to have soldall goods of the kind sold by the Company to the Customer in the order in whichthey were invoiced to the Customer.
6.9 On termination of the Contract,howsoever caused, the Company's (but not the Customer's) rights contained inthis clause 6 willremain in effect.
7.1 Unless otherwise agreed by theCompany in writing, the price for the Goods will be the price set out in theCompany's price list published on the date of delivery or deemed delivery.
7.2 All prices for the Goods given bythe Company are exclusive of the cost of packaging andpreparation for transport.
7.3 In addition to the price forthe Goods, the Customer will pay any value added tax and, where the Company agrees to deliver the Goodsotherwise than at the Company's premises, all costs orcharges in relation to packaging, loading, unloading, carriage and insurance.
8.1 Subject to clause 8.5, payment of the price forthe Goods is due in pounds sterling within 30 days of the date of the invoice.
8.2 The first order of a newCustomer will be invoiced in advance of delivery. Upon receipt of cleared funds, the Companywill deliver the Goods as ordered. Subsequent orders from this Customer, if accepted by the Company, willbe paid in accordance with clause 8.1.
8.3 Time for payment will be of theessence.
8.4 No payment will be deemed tohave been received until the Company has received cleared funds.
8.5 All payments payable to theCompany under the Contract will become due immediately on its terminationdespite any other provision.
8.6 The Customer will make allpayments due under the Contract in full without any deduction whether by way ofset-off, counterclaim, discount, abatement or otherwise unless the Customer hasa valid court order requiring an amount equal to such deduction to be paid bythe Company to the Customer.
8.7 If the Customer fails to paythe Company any sum due pursuant to the Contract, the Customer will be liableto pay interest to the Company on such sum from the due date for payment at theannual rate of four per cent. above the base lending rate from time to time of RoyalBank of Scotland plc, accruing on a daily basis until payment is made, whetherbefore or after any judgment. TheCompany reservesthe right to claim interest under the Late Payment of CommercialDebts (Interest) Act 1998.
9.1 Where the Company is not themanufacturer of the Goods, the Company will endeavour to transfer to theCustomer the benefit of any warranty or guarantee given to the Company.
9.2 The Company warrants that(subject to the other provisions of these Terms) on delivery, the Goods will:
9.2.1 be of satisfactory qualitywithin the meaning of the Sale of Goods Act 1979; and
9.2.2 be reasonably fit for purpose.
9.3 The Company will not be liablefor a breach of any of the warranties in clause 9.2 unless:
9.3.1 the Customer gives writtennotice of the defect to the Company within 12 months of the date of delivery,and, if the defect is as a result of damage in transit to the carrier, within 14days of the time when the Customer discovers or ought to have discovered thedefect; and
9.3.2 the Company is given areasonable opportunity after receiving the notice of examining such Goods andthe Customer (if asked to do so by the Company) returns such Goods to theCompany's place of business at the Company's cost for the examination to takeplace there.
9.4 The Company will not be liablefor a breach of any of the warranties in clause 9.2 if:
9.4.1 the Customer makes any furtheruse of such Goods after giving such notice;
the defect arises because the Customerfailed to follow the Company's oral or written instructions as to
9.4.2 the storage, use or maintenanceof the Goods or (if there are none) good trade practice; or
9.4.3 the Customer alters or repairssuch Goods without the written consent of the Company.
9.5 Subject to clause 9.3 and clause 9.4, if any of the Goods do notconform with any of the warranties in clause 9.2 the Company will at its optionrepair or replace such Goods (or the defective part) or refund the price ofsuch Goods at the pro rata Contract rate provided that, if the Company sorequests, the Customer will, at the Company's expense, return the Goods or thepart of such Goods which is defective to the Company. Any Goods returned to theCompany without prior agreement by the Company will not be accepted by theCompany.
9.6 If the Company complies with clause9.5 it willhave no further liability for a breach of any of the warranties in clause 9.2 inrespect of such Goods.
10. Limitation of liabilit
10.1 Subject to clause 4, clause5 and clause9, thefollowing provisions set out the entire financial liability of the Company(including any liability for the acts or omissions of its employees, agents andsubcontractors) to the Customer in respect of:
10.1.1 any breach of these Terms;
10.1.2 any use made or resale by the Customerof any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 any representation, statementor tortious act or omission including negligence arising under or in connectionwith the Contract.
10.2 All warranties, conditions andother terms implied by statute or common law (save for the conditions impliedby section 12 of the Sale of Goods Act 1979) are, to the fullest extentpermitted by law, excluded from the Contract.
10.3 Nothing in these Terms excludesor limits the liability of the Company:
10.3.1 for death or personal injurycaused by the Company's negligence;
10.3.2 under section 2(3), ConsumerProtection Act 1987;
10.3.3 for any matter which it wouldbe illegal for the Company to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulentmisrepresentation.
10.4 Subject to clause 10.2 and clause 10.3:
10.4.1 the Company's total liabilityin contract, tort (including negligence or breach of statutory duty),misrepresentation, restitution or otherwise, arising in connection with theperformance or contemplated performance of the Contract will be limited to theContract price; and
10.4.2 the Company will not be liableto the Customer for loss of profit, loss of business, or depletion of goodwillin each case whether direct, indirect or consequential, or any claims forconsequential compensation whatsoever (howsoever caused) which arise out of orin connection with the Contract.
11.1 The Company may assign theContract or any part of it to any person, firm or company.
11.2 The Customer will not beentitled to assign the Contract or any part of it without the prior writtenconsent of the Company.
12. Force majeure
The Company reserves the right to defer thedate of delivery or to cancel the Contract or reduce the volume of the Goodsordered by the Customer (without liability to the Customer) if it is preventedfrom or delayed in the carrying on of its business due to circumstances beyondthe reasonable control of the Company including, without limitation, acts ofGod, governmental actions, war or national emergency, acts of terrorism,protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikesor other labour disputes (whether or not relating to either party's workforce),or restraints or delays affecting carriers or inability or delay in obtainingsupplies of adequate or suitable materials, provided that, if the event inquestion continues for a continuous period in excess of 60 days, the Customerwill be entitled to give notice in writing to the Company to terminate theContract.
13.1 Each right or remedy of theCompany under the Contract is without prejudice to any other right or remedy ofthe Company whether under the Contract or not.
13.2 If any provision of theContract is found by any court, tribunal or administrative body of competentjurisdiction to be wholly or partly illegal, invalid, void, voidable,unenforceable or unreasonable it will to the extent of such illegality,invalidity, voidness, voidability, unenforceability or unreasonableness bedeemed severable and the remaining provisions of the Contract and the remainderof such provision will continue in full force and effect.
13.3 Failure or delay by the Companyin enforcing or partially enforcing any provision of the Contract will not beconstrued as a waiver of any of its rights under the Contract.
13.4 Any waiver by the Company ofany breach of, or any default under, any provision of the Contract by the Customerwill not be deemed a waiver of any subsequent breach or default and will in noway affect the other Terms of the Contract.
13.5 Each party undertakes to complywith the provisions of the Data Protection Act 1998 and any related legislationinsofar as the same relates to the provisions and obligations of the Contract.
13.6 The parties to the Contract donot intend that any Term of the Contract will be enforceable by virtue of theContracts (Rights of Third Parties) Act 1999 by any person that is not a partyto it.
13.7 The formation, existence,construction, performance, validity and all aspects of the Contract will begoverned by English law and the parties submit to the jurisdiction of theEnglish courts.
14.1 All communications between theparties about the Contract will be in writing and delivered by hand or sent byprepaid first class post or sent by fax:
14.1.1 (in case of communications tothe Company) to its registered office or such changed address as will benotified to the Customer by the Company; or
(in the case of the communications to the Customer)to the registered office of the addressee (if it is a company) or (in any othercase) to any address of
14.1.2 the Customer set out in anydocument which forms part of the Contract or such other address as shall benotified to the Company by the Customer.
14.2 Communications will be deemedto have been received:
14.2.1 if sent by prepaid first classpost, two days (excluding Saturdays, Sundays and bank and public holidays)after posting (exclusive of the day of posting); or
14.2.2 if delivered by hand, on theday of delivery; or
14.2.3 if sent by fax on a working dayprior to 4.00 p.m., at the time of transmission and otherwise on the nextworking day.
14.3 Communications addressed to theCompany will be marked for the attention of the Company Secretary, ArtebeneLimited, Palmerston House, 814Brighton Road, Purley, Surrey CR8 2BR.