BBI SOLUTIONS OEM LIMITED
STANDARD TERMS AND CONDITIONS OF SALE
In these conditions of sale:-
"the Supplier" means BBI Solutions OEM Limited (Company number: 08368483) whose registered office is at c/o Berry Smith LLP, Haywood House, Dumfries Place, Cardiff, CF10 3GA;
"Conditions" means these terms and conditions;
"Goods" means the goods which are the subject of the Order;
"Intellectual Property" means all patents, design rights (whether registered or unregistered), trade marks, service marks, utility marks, domain names, trade and business names, publicly available and registered applications for any of the foregoing, copyrights, inventions, confidential information, trade secrets, know-how and registered database rights including all applications for the same, all extensions and renewals to any of them and publicly available and registered applications for any of them and any right or form of protection of a similar nature and having equivalent or similar effect to any of them which may subsist anywhere in the world;
"LPCD (Interest) Act 1998" means the Late Payment of Commercial Debts (Interest) Act 1998;
"Order" means the order from the Purchaser accepted by the Supplier;
"Price " means the price payable in accordance with clause 3 hereof;
"Purchaser" means the party placing the Order;
"Site" means the site to which the Goods are delivered to.
2.1 Unless expressly stated to the contrary by the Supplier in writing these conditions shall be deemed to be incorporated into any contract between the Supplier and the Purchaser and shall be deemed to override any terms or conditions which are inconsistent with them which the Purchaser may attempt to introduce.
2.2 Unless otherwise agreed in writing by the Supplier these Conditions supersede any earlier sets of conditions of sale appearing on the Supplier’s price list, quotation forms, order forms, invoices or on any other document whatsoever.
2.3 The Supplier shall not be obliged to question the authority of any signature stated to be made by or on behalf of the Purchaser that is affixed to any credit application, order, acceptance of delivery or other document whatsoever.
2.4 Neither the Purchaser nor Supplier shall be bound by any variation, waiver of or addition to those conditions except as agreed by both parties in writing and save as aforesaid the Conditions constitute the full understanding of the parties and are a complete and exclusive statement of the terms of their agreement.
2.5 If any of the provisions of these Conditions are held by any court or other competent authority to be void or unenforceable in whole or in part, the other provisions of the Conditions and the remainder of the affected provisions shall continue to be valid.
3.1 The Price payable for the Goods shall be the Price indicated on the Order.
3.2 The Price set out in the Order is based on the cost of labour materials delivery and overhead charges which apply at the date of the Order. If, between the date of the Order and termination of the provision of the Goods, increases are incurred the Supplier reserves the right to amend the price to provide for such variations.
3.3 The Price set out in the Order shall be ex works and specifically excludes packaging, delivery insurance and VAT unless stated to the contrary.
4. Terms of Payment
4.1 The Supplier shall be entitled to invoice the Purchaser on or at any time after delivery of the Goods as the case may be, and each invoice shall quote the number of the Order.
4.2 Unless otherwise stated in the Order, the Purchaser shall pay the Price of the Goods within 30 days of the date of the invoice.
5. Overdue Payments
5.1 Time for payment of all sums under the Order shall be of the essence. If payment is not made in full within the time specified in Clause 4.2 whether the same be demanded or not the Supplier shall be entitled (without prejudice to any other rights it may have):
5.1.1 to charge interest in accordance with Clause 9;
5.1.2 to require payment in advance of delivery of undelivered Goods;
5.1.3 to refuse to make any delivery of any undelivered Goods whether ordered under the Order or not and without incurring any liability whatever to the Purchaser for non‑delivery or any delay in delivery; and
5.1.4 to terminate the Order.
5.2 For the avoidance of doubt the Purchaser shall not be entitled to set off any claim for payment it may have against the Supplier, unless such claim has been upheld by a court.
6. Additional Costs
Should additional costs be incurred by the Supplier for any reason outside of the Supplier's control such additional costs as well as the costs incurred of keeping any of the Supplier's employees or contractors on Site after completion of the provision of the Goods shall be added to the price of the Order and paid for accordingly at the next payment instalment.
The Purchaser shall be responsible for ensuring that the Supplier its employees and contractors have access to the Site to deliver the Goods.
All prices quoted are exclusive of Value Added Tax.
9.1 Where a payment is late as defined in the LPCD (Interest) Act 1998, the interest rates set out in the LPCD (Interest) Act 1998 as amended from time to time shall be applicable.
9.2 In the event that clause 9.1 is not applicable the Supplier reserves the right to charge interest (both before and after any judgment) at the rate of 3% per annum above the current base rate of Barclays Bank plc on all outstanding payments from the date due in accordance with Clause 4 and up to and including the date on which final settlement is made in full.
10.1 The Supplier shall arrange delivery only if requested to do so by the Purchaser and which the cost of such delivery and insurance of the goods during transportation shall be reimbursed to the Supplier by the Purchaser.
10.2 The Supplier shall not be liable for any damage or loss to the Goods during transit unless the Supplier and the carriers concerned are notified within three days of delivery or in the case of non delivery within seven days from the date of receipt of an invoice from the Supplier in respect of the Goods concerned.
10.3 Any dates stated by the Supplier for the delivery of the Goods are approximate only and do not form part of the Order and the Purchaser agrees that the time of delivery shall not be of the essence of the Order. The Goods may be delivered in advance of any quoted delivery date upon giving reasonable notice to the Purchaser.
11.Suitability and Specification of the Goods
11.1 The Supplier assumes that all Goods ordered from it are suitable for the purpose for which they are required. The Supplier is not required to enquire further from the Purchaser as to the use to which the Purchaser wishes to put the Goods.
11.2 The Purchaser acknowledges that the Goods will be used only in accordance with the specific instructions included with the packaging of the Goods and the Supplier will not be liable for any fault or defect caused as a result of the Purchaser not following the specific instructions.
11.3 The Purchaser has not relied on any representation, warranty or other provision made by the Supplier or its agents where such representation, warranty or other provision relates to:
11.3.1 the correspondence of the Goods to any description;
11.3.2 the quality of the Goods; or
11.4.3 the fitness of the Goods for any purpose whatsoever.
12.1 Notwithstanding any provision which may suggest the contrary in these Conditions, the Goods are at the risk of the Purchaser from the moment they are despatched, collected or due to be collected from the Supplier’s premises and from such date until the Date of Payment as defined in Clause 13 the Purchaser shall be in a fiduciary relationship with and be the agent of the Supplier in relation to the Goods. In no circumstances shall the carriers of the goods be or be deemed to be the employees agents or representatives of the Supplier.
12.2 Without prejudice to any other clauses in these Conditions the Purchaser hereby agrees:-
12.2.1 to inform the Supplier in writing within 14 days of despatch or posting by the Supplier to the Purchaser of an invoice or an advice note that the Goods to which they relate have not been delivered; and
12.2.2 to inform the Supplier in writing immediately any Goods despatched to the Supplier by the Purchaser appear to have been damaged in transit.
Property in the Goods will be transferred to the Purchaser upon receipt by the Supplier of all sums owed to the Supplier by the Purchaser in respect of the Goods and (if any) in respect of other items and (if any) in respect of amounts owing under Clause 3, Clause 5 and\or Clause 15 hereof (hereinafter referred to as “the Date of Payment”).
Until the Date of Payment of all the said sums:-
14.1 the property in the Goods shall be or remain in the Supplier.
14.2 the Supplier may retake possession of and permanently retain the Goods.
14.3 the Purchaser will, if so required by the Supplier store the Goods in such a way that indicates the Goods are clearly the property of the Supplier.
14.4 if the Goods become constituents of or converted into other products (“the New Goods”) in such a way that the Goods are not rapidly identifiable and removable the Purchaser shall store such New Goods separately and shall notify the Supplier of the precise location and position thereof and the ownership of such New Goods and the property therein shall vest in the Supplier.
14.5 Upon any sale of any New Goods falling within the scope of the foregoing provision by the Supplier, then if the proceeds of the sale exceed the price or the balance of the price of the Goods due to the Supplier from the Purchaser the Supplier shall apply the Balance of the proceeds of sale as follows:-
14.5.1 first reimbursing the Supplier the cost and expenses of the taking of possession and the sale of the New Goods and any damage which the Supplier has suffered as a result of any repudiation of the contract by the Purchaser.
14.5.2 secondly, paying any sums due and owing to other creditors of the Purchaser in respect of other items and materials used in connection with the manufacture of the New Goods where the property in such items and materials has remained vested in such other creditors by reason of effective reservation of title clauses and the claim of such other creditors pursuant to such reservation of title clauses have been notified to the Supplier by the Purchaser or its liquidator, administrator or receiver or by such other creditors.
If the Goods are ready for delivery but are held back in accordance with the Purchaser's instructions or if the Purchaser shall fail to accept delivery the Supplier may require the Purchaser to pay its additional delivery charges, to pay a reasonable storage fee to be determined by the Supplier which shall apply at the expiry of three days from the date the Purchaser is told that the Goods are ready for despatch or immediately if the Purchaser fails to accept delivery.
16. Return of Goods
16.1 Goods may only be returned to the Supplier if the prior written consent of the Supplier has first been obtained.
16.2 Goods shall be deemed to be in accordance with the Order unless the Purchaser notifies the Supplier in writing within 7 days of the delivery date.
The Supplier may in its absolute discretion accept the cancellation of an Order in writing providing it is indemnified by the Purchaser in respect of all costs and expenses incurred and for loss of profits prior to the cancellation being accepted but in no circumstances is the Supplier obliged to accept any cancellation.
The Supplier shall not be liable for any consequential, loss of profits or special loss arising out of any breach of condition, warranty or contract on the part of the Supplier in respect of the Goods. The Supplier's liability for such breach in respect of the Goods shall be limited to the net invoice value or at the Supplier's absolute discretion to the replacement of the Goods.
19.1 No liability whatsoever shall be incurred by the Supplier in respect of any representation made by the Supplier or its agents to the Purchaser or the Purchaser's agents before the Order was made where such representation relates to:
19.1.1 the correspondence of the Goods to any description;
19.1.2 the quality of the Goods;
19.1.3 the fitness of the Goods for any purpose whatsoever.
19.2 No liability whatsoever (other than as expressly set out in these Conditions) shall be incurred by the Supplier to the Purchaser in respect of any express term of the Order whether a condition, warranty or intermediate stipulation (including any liability arising from the breach of such term) where the said term relates or refers in any way to:
19.2.1 the correspondence of the Goods to any description;
19.2.2 the quality of the Goods; or
19.2.3 the fitness of the Goods for any purpose whatsoever.
19.3 All implied terms conditions or warranties whether statutory or otherwise as to:
19.3.1 the correspondence of the Goods to any description;
19.3.2 the satisfactory quality of goods provided as part of the Goods;
19.3.3 the fitness or the Goods and for any purpose whatsoever (whether made known to the Supplier or not);
are hereby excluded from the Order (other than as may be expressly set out in these Conditions).
19.4 The Supplier does not seek to exclude liability for death or personal injury caused by the Supplier's negligence, nor (where the Purchaser deals as a consumer within the meaning of Section 12 of the Unfair Contract Terms Act 1977) to exclude liability for breach of the obligations arising from Sections 2 to 5 and 13 to 15 of the Supply of Goods and Services Act 1982.
20. Intellectual Property Rights
Nothing in these Conditions shall give the Purchaser any rights in respect of any Intellectual Property used by the Supplier in relation to the Goods or of the goodwill associated therewith, and the Purchaser hereby acknowledges that, except as expressly provided in these Conditions it shall not acquire any rights in respect thereof and that all such rights and goodwill are, and shall remain, vested in the Supplier.
In the event that war invasion acts of foreign enemy hostilities (whether war is declared or not) civil war, rebellion, revolution, insurrection, military or usurped power the Supplier shall be released from all its liabilities incurred in respect of the Order whatsoever and to the extent to which fulfilment of such obligation is prevented frustrated or impeded as a consequence of any such events or by any statute, rules, regulations, orders or requisitions issued by any government department, councils or duly constituted authorities or for strikes, lock outs, break downs of plant or equipment or any cause (whether or not of a like nature) outside of the Supplier's direct control.
22. Statutory Rights
Nothing in these Conditions shall affect the statutory rights of a Consumer.
23. Compliance with Law
The parties shall comply with all laws and regulations applicable to their respective performance of these Conditions, including but not limited to the UK Anti-Bribery Act. The parties shall also comply with all applicable restrictions respecting the export or re-export of technical information or products which are now or hereafter imposed by applicable governments.
24. Marketing Restrictions and Indemnity
24.1 The Buyer, and the Buyer’s customers, shall only refer to BBI Solutions OEM Limited and no other third party when marketing, promoting and selling the Goods and any products the Buyer and the Buyer’s customers manufactures incorporating the Goods, including modified Goods, without the prior consent of the Supplier.
24.2 The Buyer will indemnify the Supplier, their affiliates, directors, customers and suppliers (together the “Indemnitees”) against all liabilities, costs, expenses, damages and losses including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Indemnitees arising out of or in connection with a breach of this clause 24.
The contract formed by these Conditions and its acceptance shall be governed by and construed in accordance with English Law. Any disputes arising out of the Conditions shall be submitted to the exclusive jurisdiction of the English Courts.