TERMS & CONDITIONS OF SALE
1. Interpretation
1.1 In these Conditions:
"Buyer" means the person whose order for the Goods or services is accepted by the Seller.
"Seller" means Thirstys.co.uk Limited, (Registered in England 3294793) PO Box 5324, Northampton, NN5 7WR, England
"Agents" means companies’ acting as an agent of behalf of the Seller or Buyer and may include, but is not restricted to; advertising agencies, promotional companies and marketing agents
"Goods" means the Goods or services including any parts of them which the Seller is to supply in accordance with the Conditions
"Services" shall mean and advice, artwork or consultancy work which the Seller is to supply in accordance with the Conditions.
"Conditions" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller in accordance with Conditions 2.3
"Contract" means the contract for the sale and purchase of the Goods or Services.
"Writing" includes; facsimile transmissions, electronic mail and comparable means of communication
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation
2. Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods and Services in accordance with any written or verbal order of the Buyer which is accepted by the Seller subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made by the Buyer
2.2 Quotations issued to the Buyer by the Seller may be withdrawn or varied at any time and unless otherwise specified shall be automatically withdrawn after forty-five days. Generally no binding contract shall in any event arise until the Buyer’s written order has been accepted by the Seller, however the sellers directors may accept verbal orders at their entire discretion
2.3 No variation of these Conditions shall be binding unless agreed in writing between the Seller and the Buyer
2.4 The Seller’s employees or agents are not authorised to make any representations concerning the Goods & Services unless confirmed by the Seller in writing
2.5 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the suitability, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed
2.6 Any advice or recommendations given by the Seller or its employees or agents to the Buyer or its employees or agents is to be accepted by the buyer as best effort or endeavours but shall not cause the Seller to be held liable for the consequences of the Buyer or its employees or agents following such advice or recommendations
2.7 Any samples illustrations or descriptive material including but not limited to particulars of shade and pattern and other information contained in the Seller’s visuals, proofs or similar or elsewhere shall not form part of the Contract and shall be treated as approximate and for guidance only unless specifically stated otherwise The Seller may at its discretion from time to time vary the specification of the Goods or Services from that advertised without notice to the Buyer provided that any such variations do not constitute material alterations to the Goods or Services. That notwithstanding, the Seller undertakes to notify the Buyer or the Buyers Agent in the event that changes to the specification of the Goods or Services is necessary after the Contract has been entered into. Such communication shall be verbal or in writing and the discretion of the Seller
3. Orders and Specifications
3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods or Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms
3.2 The quantity, quality and description of any specification for the Goods shall be those set out in the Buyer’s order provided such order has been accepted by the Seller
3.3 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the costs of all labour and materials used) damages, charges and expenses incurred by the Seller as a result of cancellation
3.4 If the Goods are to be manufactured or any processes to be applied to the Goods by the Seller in accordance with a specification submitted by or agreed by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses, awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trademark or any other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification
3.5 The Buyer accepts that as a result of the materials used, exact pantone colours cannot be guaranteed and accepts that the Seller cannot guarantee exact colour matches. Nonetheless, the Seller agrees to use best endeavours to ensure that the colour match is a close as is practicable given the type of material used in the manufacturing and printing process.
4. Price of the Goods
4.1 In addition to the rights of the Seller under Condition 4.1 hereof the Seller reserves the right by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any significant increase in the costs of labour materials or other costs of manufacture) any change in delivery dates, quantities or specifications for Goods which is requested by the Buyer, or any delay caused by instructions of the Buyer or failure of the Buyer to give the Seller accurate information or instructions
4.2 All prices are given by the Seller on a delivered basis within mainland UK which at the Sellers discretion or statement, may or may not include delivery costs
4.3 The price is exclusive of any applicable value added tax which the Buyer shall be additionally liable to pay to the Seller
4.4 All prices are given to the Buyer on the basis of delivery taking place as set out in Clause 6.2 hereof. In the event of the Buyer requiring delivery at a time earlier than the date specified by the Seller from time to time the Seller shall be entitled to add to the price of the Goods an additional charge for priority delivery
5. Payment Terms
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer with the price of Goods or Services on or at any time after delivery of the Goods or Services. Alternatively new customers may be required to against a pro-forma invoice prior to an order being accepted by the Seller
5.2 Unless otherwise agreed the Buyer shall pay the full invoiced price of the Goods not later than FOURTEEN days from the invoice date. The time of payment shall be of the essence of the Contract. All payments shall be made in full without deduction in respect of any set-off or counterclaim
5.3 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 cancel the contract and suspend any further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of four per cent per annum over the base rate for the time being of BARCLAYS BANK PLC (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) until payment is made
6. Delivery
6.1 Delivery of the Goods shall be made by the Seller delivering the Goods at the address requested by the Buyer or the Buyers Agent
6.2 The Seller shall endeavour to deliver the Goods by the date quoted for delivery but such date is not guaranteed nor shall the time for delivery be of the essence unless previously agreed by the Seller in writing. The date quoted for delivery shall be extended by a reasonable period if there is any delay caused by industrial dispute or by any cause beyond the reasonable control of the Seller such as, but not limited to loss in transit. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated
6.4 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer. The Seller’s liability shall be limited to any reasonable additional costs (if any) incurred by the Buyer to substitute the goods, provided such goods are available from a local supplier and are of the same specification and can be delivered in advance of any remedy or alternative offered by the Seller. In the event that no alternative local supplier can be located, then the Sellers liability shall be limited to any costs incurred in the production of the artwork, provided the costs have been previously advised to the Seller.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then without prejudice to any other right or remedy available to the Seller, the Seller may
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2 or advise the Buyer in writing that the Goods are available for delivery and should the Buyer fail to make alternative arrangements for receipt within 30 days, that the Goods will be disposed of and that any additional costs and expenses incurred by the Seller as a direct consequence will be recovered from the Buyer and shall become due immediately for payment
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer;
7.1.1 in the case of Goods to be delivered at the Seller’s premises; or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured
7.4 Until such time as the property in the Goods passes to the Buyer (and provided that the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable
8. Warranties and Liability
8.1 Unless otherwise agreed the Seller does not warrant that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship
8.2 Without prejudice to clause 8.1 above, in circumstances where the Seller does provide a warranty in respect of the Goods, the terms of which may be stipulated by the seller from time to time, such warranty shall nonetheless be subject to the following conditions:-
8.2.1 the Seller shall be under no liability whatsoever in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, failure to follow the Seller’s instructions (whether oral or in writing) misuse, alteration, or repair of the Goods without the Seller’s approval
8.3 Subject as expressly provided in these Conditions all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law
Conditions
8.4 Any claim which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within forty eight (48) hours from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller of any claim in accordance with the provisions of this Condition, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defects or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract
8.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall, at its sole discretion, replace the Goods (or the part in question) free of charge or refund to the Buyer the Price of the Goods (or a proportionate part of the price or provide alternative Goods or Services) but the Seller shall have no further liability to the Buyer
8.6 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms or the Contract for any consequential loss or damage (whether for loss of profit or otherwise), costs expenses, or other claim for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their resale by the Buyer, except as expressly provided in these Conditions
8.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any or the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control:
8.7.1 Act of God, explosion, flood, tempest, fire, theft, computer breakdown or similar, or accident;
8.7.2 strikes, or other industrial actions or trade disputes (whether involving employees of the Seller or third parties)
9. General
9.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice
9.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision
9.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part then the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby
9.4 These Conditions shall be governed by and construed in all respects in accordance with English Law