Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
In this Contract:
1.1 the following terms shall have the following meanings:
Affiliate has the meaning given to the term “associate” in Section 435 of the Insolvency Act 1986;
Buyer the customer of Seller;
This Contract these Terms together with any further applicable terms that the parties agree in writing, plus:
(a) the relevant Order Acknowledgement (if any); or
(b) (if no Order Acknowledgement) the terms of the relevant Order;
Liability has the meaning given to it in Clause 6.4;
Order Buyer’s request to Seller for the provision of particular Products;
Order Acknowledgement the written communication despatched by Seller to Buyer containing the particular details of any supply of particular Products;
Products Seller's products provided or to be provided by Seller to Buyer pursuant to this Contract;
Seller ETHOS International Ltd, a company registered in England and Wales under number 2331248 whose registered office is at International House, Cricketers Way, Basildon, Essex, SS13 1ST;
2.1 The terms of this Contract apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Buyer. Buyer’s delivery instruction or acceptance of delivery or collection of the Products constitutes Buyer’s unqualified acceptance of these Terms.
2.2 This Contract operates to the entire exclusion of any other agreement, understanding or arrangement of any kind between the parties preceding this Contract and in any way relating to the subject matter of this Contract and to the exclusion of any representations not expressly stated herein except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Neither party has entered into this Contract based on any representation not expressly incorporated herein.
2.3 This Contract constitutes the whole agreement and understanding of the parties as to the subject matter hereof and no provisions, terms, conditions or obligations, whether oral or written apply, express or implied, other than those contained or referred to herein.
2.4 This Contract shall be legally formed and the parties shall be legally bound when Seller despatches its Order Acknowledgement to Buyer confirming the terms on which the parties have agreed to proceed, or (if no Order Acknowledgement) when Seller confirms the Products agreed in the Order are ready for delivery or such other acceptance of Order (such as oral or email) as the parties agree.
2.5 The quantity, description, price and delivery details of the Products are as stated in the Order Acknowledgement or, if no Order Acknowledgement, as otherwise agreed by Seller.
2.6 This Contract shall not change unless both parties agree in writing.
3. DELIVERY AND RISK
3.1 Seller shall use its reasonable endeavours to deliver within any timescales set out in this Contract, but time for delivery shall not be of the essence. Any timeframe for delivery in another contract shall be no indication of the timeframe for delivery in this Contract.
3.2 Partial delivery or performance shall be permitted. Seller may supply the Products in instalments. Seller may invoice Buyer for each instalment.
3.3 Delay, default or non-delivery of any instalment shall not entitle Buyer to cancel or terminate, and shall not affect, the rest of this Contract.
3.4 Unless the parties otherwise agree, delivery shall be ex works (Incoterms 2000) at Seller’s premises or other place stipulated in the Order Acknowledgement (or if no place stipulated, then Seller's normal UK location for despatch of the Products). If there is any conflict between the provisions of Incoterms 2000 and this Contract, this Contract shall prevail.
3.5 Seller shall inform Buyer of the estimated date on which the Products will be ready for delivery or
collection. Buyer shall ensure that it is ready for safe receipt (or, as the case maybe, collection) of the Products without undue delay.
3.6 Buyer may be required to sign a delivery note and other documentation upon delivery of the Products. The signing of the documentation by Buyer shall be evidence that the Products have been delivered and in the quantities stipulated in the documentation. Buyer shall inspect the Products and packaging for any obvious damage (including the sound of breakage) and make a note of any obvious damage when signing.
3.7 All risk in the Products shall pass to Buyer upon delivery (or collection), provided that where delivery or collection is delayed due to Buyer’s fault risk shall pass at the date when delivery or collection would have occurred but for Buyer’s delay.
3.8 If delivery is delayed through Buyer's fault or unreasonable delay in taking delivery, then (subject to Clause 6) Seller shall not have any Liability as a result and Seller may (without prejudice to any other right or remedy available to it) do all or any of the following:
3.8.1 sell the Products for Seller's account;
3.8.2 cancel this Contract as regards any Products that remain to be delivered or performed;
3.8.3 charge a reasonable storage fee for the Products; and
3.8.4 require Buyer to indemnify Seller for any and all resulting losses, liabilities, costs, charges and
3.9 Where Products are intended for outside the UK, Buyer shall be responsible for complying with all
applicable laws, regulations and codes of practice governing importation and use of the Products in the country of destination and for paying any duties or levies.
4.1 Notwithstanding delivery, title to and ownership of the Products shall not pass to Buyer until Payment. Payment is when:
4.1.1 Seller has received in full (in cleared funds) all sums due to it in respect of the Products;
4.1.2 Seller has received in full (in cleared funds) all other sums which are or which become due to
Seller from Buyer on any account; and
4.1.3 Seller and Seller’s Affiliates have received in full (in cleared funds) all other sums which are or
which become due to Seller and Seller’s Affiliates from Buyer and Buyer’s Affiliates on any
4.2 Until Payment, Buyer shall:
4.2.1 hold the Products on a fiduciary basis as Seller's bailee;
4.2.2 hold the Products in good, saleable condition;
4.2.3 keep the Products fully insured with a reputable insurance company for the full price against all
risks of loss or damage from the time when risk passes to Buyer until property passes. On
request, Buyer shall produce the policy of insurance to Seller. If the Products are lost, damaged or
destroyed, Buyer shall hold the proceeds of insurance for and to the order of Seller pending Payment;
4.2.4 keep an up-to-date list of the location of Seller’s property and present this to Seller upon
4.2.5 store the Products separately from other goods or in any way so that they remain readily
identifiable as Seller’s property.
4.3 Buyer may resell the Products before Payment solely on the following conditions:
4.3.1 any sale shall be effected in the ordinary course of Buyer's business at full market value;
4.3.2 any sale shall be a sale of Seller's property on Buyer's own behalf and Buyer shall deal as principal when making the sale;
4.3.3 Buyer shall keep the proceeds of sale separate from any money or property of Buyer or third
4.3.4 Buyer shall still be responsible for paying to the full value of the Payment.
4.4 Seller may at any time until title passes under this Clause 4 without notice recover possession of the Products which are the property of Seller. Seller may also require Buyer at Buyer’s cost, within three days of Seller’s request, to deliver up to Seller or make available to Seller for collection from a single accessible collection point as Seller requires all Products which are the property of Seller. Buyer hereby grants to Seller for Seller and its agents, staff, officers, employees and contractors an irrevocable licence to enter for the purpose of recovering possession of the Products any premises then occupied by or in the ownership or possession of Buyer or Buyer’s customer. Buyer shall indemnify Seller against all claims, losses, damages, liabilities, costs and expenses so arising in exercising its rights under this Clause.
4.5 Seller may recover payment for the Products notwithstanding that ownership of any Products has not passed from Seller.
4.6 On termination of this Contract, howsoever arising, Seller's rights contained in this Clause 4 shall remain in effect.
5. STATE OF PRODUCTS
5.1 Subject to any other terms expressly provided in writing by Seller to Buyer before this Contract is made (which shall prevail over the rest of these Terms to the extent that there is any inconsistency), Sections 13 to 15 of the Sale of Goods Act 1979 shall apply to the state of the delivered Products.
5.2 Seller shall not have any Liability for loss of or obvious damage to Products in transit or on delivery to the point of delivery unless Buyer informs the carrier immediately and Seller within 5 days, and in any event notifies Seller in writing within 7 days:
5.2.1 after the expected date of delivery or receipt that it has not received the Products; or
5.2.2 after receipt that the Products are damaged
5.3 If Seller delivers up to 10% more or less than the agreed quantity, Buyer may not object to or reject the Products or any of them by reason of the surplus or shortfall and shall pay for such Products at the pro rata Contract rate.
5.4 Seller shall not have any Liability for providing Products to the extent caused by Seller's compliance with and reliance on Buyer's instructions or requirements. Buyer shall indemnify and keep indemnified Seller from and against any and all losses, liabilit ies, claims, proceedings, judgments, damages, demands, actions, costs, charges, expenses, penalties and fines suffered or incurred by Seller as a result of Seller complying with any requests or designs of Buyer, including for any claims by third parties of intellectual property infringement.
5.5 Seller's Liability for defective or damaged Products is subject to:
5.5.1 Buyer notifying Seller of any claim within 14 days of discovery of the defect, specifying the
alleged problem with reasonable detail;
5.5.2 Buyer providing Seller with Seller's delivery note number and such other information and
documentation as Seller reasonably requires;
5.5.3 the defector damage being solely attributable to Seller's defective design, materials or
workmanship in the Products;
5.5.4 Buyer having paid for the Products in full; and
5.5.5 Buyer returning the defective or damaged Products carriage and insurance paid at Buyer's risk
to Seller's premises carefully packed to avoid damage in transit. Until Seller receives the
Products, Buyer shall hold the Products safely and securely in good condition.
6.1 Seller does not exclude or limit its Liability for:
6.1.1 its fraud; or
6.1.2 death or personal injury caused by its negligence; or
6.1.3 any breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2
Supply of Goods and Services Act 1982; or
6.1.4 supply of a defective Product, to the extent that it is not possible to exclude or limit its Liability
under Part I of the Consumer Protection Act 1987; or
6.1.5 any other Liability which cannot be excluded or limited by applicable law.
6.2 Subject to the Clause 6.1, Seller shall not have any Liability in respect of any (a) indirect or
consequential losses, damages, costs or expenses; (b) loss of actual or anticipated profits; (c) loss of contracts; (d) loss of use of money; (e) loss of anticipated savings; (f) loss of revenue; (g) loss of goodwill; (h) loss of reputation; (i) loss of business; (j) loss of operation time; (k) loss of opportunity; or (l) loss of, damage to or corruption of, data; whether or not such losses were reasonably foreseeable or Seller or its representatives had been advised of the possibility of the losses being incurred. For the avoidance of doubt, (b) to (l) apply whether the losses are direct, indirect, consequential or otherwise.
6.3 Subject to Clause 6.1, the total Liability of Seller arising out of or in connection with all claims (in aggregate) shall be limited to the greater of: (a) £1,000; or (b) 110% of the total sums paid and 110% of the total other sums payable (in aggregate) by Buyer to Seller under this Contract in respect of the particular Products for which there are such claims.
6.4 Liability means liability in or for breach of contract, breach of duty, negligence, misrepresentation,
restitution or any other cause of action whatsoever relating to or arising under or in connection with this Contract, including liability expressly provided for under this Contractor arising by reason of the invalidity or unenforceability of any term of this Contract (and for the purposes of this definition, all references to this Contract shall be deemed to include any collateral contract).
7. PRICE AND PAYMENT
7.1 Buyer shall pay to Seller the price quoted by Seller in writing for the Products, and other sums due under this Contract.
7.2 Unless the parties otherwise agree, Seller may invoice Buyer on delivery (or making available for collection) of the Products.
7.3 Unless the parties otherwise agree in writing, Buyer shall pay Seller for any sums due under this
Contract within 30 days after the date of invoice.
7.4 All fees and sums due under this Contract are exclusive of any value added tax or other duties or taxes, and costs of loading, unloading, carriage and insurance, (if applicable) which shall be payable in addition at the same time as payment of the fees and other sums due.
7.5 Time for payment shall be of the essence.
7.6 Payment shall be deemed made when Seller has received cleared funds in full.
7.7 Payment of all sums due to Seller under this Contract shall be made by Buyer in full without any set-off, deduction or withholding whatsoever.
7.8 If Buyer is late in paying any part of any sums due to Seller or Seller’s Affiliates under this Contractor any other agreement, Seller and its Affiliates may (without prejudice to any other right or remedy available to it whether under this Contractor by any statute, regulation or bye-law) do any or all of the following:
7.8.1 charge interest on the amount due but unpaid at the annual rate of interest set under Section 6
of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due
date until payment (after as well as before judgment), such interest to run from day to day and
to be compounded monthly; and
7.8.2 sell or otherwise dispose of any Products, and apply the proceeds of sale to the overdue
7.8.3 suspend the performance of this Contract and any other agreement until payment in full has
8.1 Either party may terminate this Contract immediately by notice in writing to the other party if:
8.1.1 the other gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator which entitle the court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt.
8.2 Upon termination of this Contract:
8.2.1 Seller shall cease to perform this Contract; and
8.2.2 all outstanding fees and other sums shall become immediately payable, whether invoiced or not.
9. FORCE MAJEURE
9.1 Seller shall not have any Liability for any breach, hindrance or delay in performing this Contract attributable to any cause beyond its reasonable control including any act of God, actions or omissions of third parties (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation ( Event of Force Majeure ), regardless of whether the circumstances in question could have been foreseen.
9.2 Each party agrees to inform the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
9.3 Each party's obligations shall be suspended during the period that the circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay.
9.4 If the Event of Force Majeure continues without a break for more than two months, either party may terminate this Contract immediately by notice to the other, in which event neither party shall have any Liability by reason of such termination.
10.1 Any notice required or authorised to be given under this Contract shall be in writing and may be served by personal delivery or by recorded delivery letter (if to an address in the same country) or by overnight courier or by facsimile addressed to the relevant party at its address stated in this Contractor at such other address or facsimile number as is notified by the relevant party to the other for this purpose from time to time or at the address or facsimile number of the relevant party last known to the other.
11.1 If any Clause or sub-Clause shall become or shall be declared by any court of competent
jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or sub-Clause, which shall remain in full force and effect.
11.2 This Contract (and any non-contractual right or obligation arising out of or in relation to it) shall
be governed by and construed in accordance with English law and Buyer hereby submits to the jurisdiction of the English courts.
Version: 004 September09