TERMS & CONDITIONS
a) All quotations and offers are made and Orders are accepted subject to and shall be deemed to incorporate the Conditions and they shall apply to all Contracts to the exclusion of any other terms and conditions including without limit those which the Buyer purports to apply by any means under any Order. If agreed by the Company in writing (and signed by a duly authorised officer of the Company) these Conditions may be varied in an Order. In the event of a conflict between these Conditions and an Order, the terms of the Order shall take precedence but only to the extent that such term is unambiguously and expressly stated to vary these Conditions. b) All Orders shall be deemed to be an offer and shall only be deemed accepted by the Company upon the earlier of the issue of a written acknowledgement of order by the Company or delivery of the Work.
c) The Company may modify the specification of Goods or Services without notice provided that such modification does not materially affect the Services or the performance of the Goods. The Contract is not a contract for sale of goods by description. All descriptive matter, specifications and advertising issued by the Company from time to time is solely aimed at giving an approximate idea of the Work described in them and will not form part of the Contract.
d) Any Order accepted by the Company may only be cancelled by the Buyer with the prior written consent of the Company and on terms that the Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Company as a result of such cancellation.
2. Deliveries and Non-Delivery
a) Delivery times/ dates named/accepted by the Company are given in good faith but are an estimate only. Time of delivery of Goods or provision of Services is not of the essence. Subject to Condition 8.a), the Company shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by failure (for any reason) to meet the delivery time/date stated/agreed (even if caused by the Company's own negligence), further, the Buyer shall have no right to cancel the Contract in the event of such a failure.
b) Work will be provided and Goods delivered as stated in the Company's acknowledgement of order or if one is not issued as agreed by the Company. Delivery shall be deemed to take place when the Goods arrive at the place stated in the Company's acknowledgement of order or if one is not issued at such place as is agreed by the Company except that delivery to a carrier for the purpose of transmission to the Buyer shall be deemed to be delivery to the Buyer. Section 32(2) of the Sale of Goods Act 1979 shall not apply.
c) The Company shall make such arrangements for carriage of the Goods and their insurance during carriage as it thinks appropriate. Goods will be packed so as to adequately protect against damage in normal conditions of transit of usual duration. Where, at the Buyer's request, Goods are forwarded by any means involving a higher carriage charge than would be incurred by the Company's usual means of carriage, then the additional charge shall be paid by the Buyer in addition to the price when the price is due.
d) The Company may deliver Goods in instalments and perform Services in sections in any sequence. Deliveries of further instalments and performance of further sections may be withheld until the Goods and/or Services comprised in earlier instalments and/or sections have been paid for in full. Default by the Company, howsoever caused, in respect of one or more instalments shall not entitle the Buyer to terminate the relevant Contract as a whole.
e) If: the Buyer fails or refuses to accept delivery of any Goods when they are ready for delivery in accordance with the relevant Contract; or the Company agrees (at it's sole discretion) to postpone delivery of the Goods at the request of the Buyer; or the Buyer fails to provide any instructions consents or authorisations required to enable the goods to be delivered on the due date; then risk in the Goods shall pass to the Buyer, delivery of the Goods shall be deemed to have taken place and the Company may store or arrange for storage of such Goods and charge the Buyer for all related costs and expenses (including storage and insurance) and may sell such Goods 28 days or more after such failure or refusal and deduct any monies payable to the Company by the Buyer from the sale proceeds and account to the Buyer for any excess or charge the Buyer for any shortfall below the Contract price.
f) If the Company agrees to permit the Buyer to collect the Goods from the Company's place of business then delivery shall be deemed to take place when the Company notifies the Buyer that the Goods are ready for collection and unless otherwise agreed in writing by the Company it is a condition of the Contract that the Buyer will collect the Goods within 7 days of such notice.
g) Upon delivery to the Buyer, all Goods should be examined. The Company shall not be liable for any shortages in, or non-delivery of, Goods unless the same is notified by the Buyer to the Company (together with all specific details) in writing within 10 days of the actual delivery (as relevant). Subject to such notice being provided the Company shall, if it is satisfied that any Goods have not been delivered and it is not result of force majeure (as described in clause 8), at its sole discretion, either arrange for delivery as soon as reasonably possible or give to the Buyer a credit which is a proportion of the Contract price relating to the non-delivered or shortfall of Goods. Shortages in, or non-delivery of some or part of the Goods shall not effect the Contract in respect of the other or other parts of the Goods.
3. Force Majeure
In the event that the Company is prevented or delayed in or from carrying out its obligations under the Contract as a result of any cause beyond its control such as but not limited to: acts of God; governmental intervention or restriction, pandemics, import or export regulations; war; riots; strikes or trade disputes (including by and with the Company's own employees); power failure; inadequate performance of, failure of or incorrect processing by computer systems; fire; flood; default of suppliers or sub-contractors, or breakdown of plant, machinery or vehicles then the Company shall be relieved of its obligations and liabilities under the Contract for as along as such fulfilment is prevented.
a) Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery or at the notified time for delivery if the Buyer fails for whatever reason to take delivery of the Goods at the notified time. Section 20(2) Sale of Goods Act 1979 shall not apply.
b) Title to the Goods (both legal and equitable) shall remain with the Company until full payment with cleared funds of all monies due from the Buyer to the Company under all Contracts and agreements between the Company and the Buyer has been made, or title is properly vested in some other person by the operation of any statute.
c) Until title to the Goods passes, the Buyer shall hold the Goods on a fiduciary basis as the Company's bailee and must store the Goods (at no cost to the Company) such that they are easily identifiable as the property of the Company and must not destroy or deface any identifying marks on the Goods or their packaging; and must keep the Goods insured on the Company's behalf for the full price of the Goods against "all risks" to the reasonable satisfaction of the Company and produce the policy of insurance to the Company upon request and must hold all proceeds of such insurance on trust for the Company and shall not mingle them with any other money nor pay the proceeds into an overdrawn bank account.
d) Until title to the Goods passes, the Buyer shall still be entitled to re-sell, use or otherwise dispose of the Goods in the ordinary course of its business provided that the Buyer shall ensure that the entire proceeds arising by virtue of any such sale, use or disposal shall be held in trust for the Company and shall not be mixed with any other monies or paid into any other overdrawn bank account and shall at all times be identifiable as monies belonging to the Company.
e) Until such time as title to the Goods passes to Buyer and, providing the Goods are still in existence and have not been re-sold or incorporated into other goods, Company shall be entitled to require Buyer to deliver up the Goods and, if Buyer fails to do so, to enter upon the premises (with or without vehicles) where the Goods are kept to re-possess them. Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Company in connection with any re-possession or attempted re-possession of the Goods.
a) Unless fixed prices have been agreed in writing by the Company all prices are subject to alteration without notice and will be invoiced at the price ruling at the date of despatch of Goods or performance of Services. No Work will be supplied on a sale or return basis.
b) Unless otherwise agreed in writing by the Company prices set out in any of the Company's price lists, quotations and acknowledgement of order are exclusive of the costs of delivery, packing, insurance or any value added, purchase or other taxes which shall be payable in addition to the price when the price is due provided that if the net price of the Work requested is less than £250 then the Company shall be entitled to charge a £5 carriage and small order administration charge.
c) If the Buyer is a new customer of the Company then, unless otherwise agreed in writing by the Company, the initial Order of the Buyer shall not be less than £500.
a) The Company may invoice Buyers who have been granted by the Company (in its sole discretion) a credit account facility for the Goods and/or the Services at any time after delivery of the Goods and/or performance of the Services and Goods delivered in instalments and Services performed in sections may be invoiced separately provided that if delivery of Goods and/or performance of Services is postponed at the request or by the default of the Buyer then the Company may submit its invoice at any time after the Goods are ready for delivery and/or Services are ready for performance or would have been ready in the ordinary course but for the request or default on the part of the Buyer. Such Buyers shall pay the Contract price by the 20th day of the month following the date of invoice. The Company may (in its sole discretion) amend the terms of or withdraw such credit account facility at any time without notice with immediate effect.
b) In respect of all other Buyers, the Company shall invoice the Buyer for the Contract price on acceptance of an Order. Unless otherwise agreed in writing by the Company Buyers who have not been granted a credit account facility shall pay 50% of the Contract price (at a minimum) within 5 days of the Company's acceptance of an Order and the balance (at a maximum, 50%) prior to delivery of the Goods and/or performance of the Services (for the avoidance of doubt no Goods will be shipped nor Services performed prior to payment in full).
c) Payment shall only be deemed received by the Company from the Buyer upon receipt by the Company of cleared funds. Payment shall be made in full without any deduction, set off or abatement on any grounds. The Company may appropriate any payment made by the Buyer to any outstanding invoice. The Company may bring an action for the price of the Goods even though the property in them may not have passed to the Buyer.
d) Time for payment of the Contract price (including, without limit, any costs or charges payable pursuant to Condition 2.c)) shall be of the essence. The Buyer shall indemnify the Company in full against all expenses and legal costs incurred by the Company in recovering overdue amounts. Interest shall be payable by the Buyer on overdue amounts (before as well as after judgement) at the annual rate of 2 per cent above the base lending rate of Lloyds Bank plc from time to time on the outstanding amount until the Contract price and/or such costs and/or charges are paid in full.
a) The Buyer is relying on its own skill and judgement in relation to the Work irrespective of any knowledge of the Company or its servants, agents or employees or as to the purpose for which the Work is supplied or its suitability.
b) Subject to Conditions 7.a) and 7.c) the Company warrants that all Goods shall upon delivery be of satisfactory quality and be reasonably fit for any purpose for which they are commonly supplied and that all Services shall be carried out with reasonable skill and care.
c) The warranty given in Condition 7.b) will not apply:
i) where the defect complained of arises from any drawing, design, specification or IPR supplied by the Buyer or arises from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions (whether oral or in writing or whether relating without limit to the fabrication (including, without limit, the quality or performance of fabrics), operation, use or maintenance of the Goods), or misuse or alteration or repair of the Goods without the Company's prior written approval;
ii) if the Company or its agents is not permitted to safely inspect the Work;
iii) to any parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to the Company; or
iv) to any Goods which have been designated "seconds", "mediums", "clearings" or specials.
d) The obligations of the Company under the Contract are limited such that in the event of a breach by the Company of the warranty in Condition 7.b) or any defect in any Goods or Services the Company shall only be obliged (and shall have no further liability in contract, negligence or otherwise for any defect in quality of the Goods and/or Services or fitness for purpose of the Goods) at its option either to credit the price (if already paid) attributable to the faulty Goods or Services or repair, rectify or replace the faulty Goods or Services provided that such Goods are returned to the Company or its agent in their delivered state at the Buyer's expense if so requested by the Company.
8. Limitation of Liability
a) Nothing in these Conditions shall limit or exclude the Company's liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation, damage suffered as a result of the breach of the warranties as to title and quiet enjoyment implied under English law and/or any other loss or damage the exclusion or limitation of which is prohibited by English law..
b) The Company shall not be liable to the Buyer in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof, (i) for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings, or (ii) for damage to the Buyer's reputation or goodwill, or (iii) for any loss resulting from any claim made by any third party, or (iv) for any special, indirect or consequential loss or damage of any nature whatsoever.
c) Without prejudice to Condition 7.d), 8.a) and 8.b) the Company's liability in contract tort, (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the Contract price.d)The Buyer warrants that the use by the Company and/or any person in the Group of any IPRs, designs, specifications, drawings or other materials or information of any nature provided to the Company and/or any person in the Group by the Buyer pursuant to an Order shall not infringe any third party's IPRs. If any claim is brought or threatened against the Company and/or any person in the Group in respect of such an infringement the Company, and/or any person in the Group, (as the case may be) shall be entitled to suspend carrying out further work to the Buyer, and the Buyer shall indemnify the Company in full (and/or, as the case may be, any person in the Group) against all actions, claims, costs, demands, expenses and liabilities of whatsoever nature
suffered or incurred by the Company and/or any person in the Group as a result of any such claim or threatened claim brought against the Company and/or any person in the Group.
e) Nothing in these Conditions shall be construed as a representation or warranty by the Company that the design, manufacture, use or sale of the Goods or the provision of the Services is not an infringement of any third party's IPRs.
9. Intellectual Property Rights and Confidentiality
a) The Buyer shall not, under any circumstances acquire any right in or to any of the IPRs (including, without limitation, copyright) subsisting in, resulting from or relating to Work, or any documents, drawings, specifications and/or patterns relating thereto either (a) supplied by the Company or any person in the Group to the Buyer in connection with Work, or (b) resulting from Work, unless otherwise expressly agreed by the Company in writing. If the Buyer shall in any way acquire any such rights then the Buyer shall immediately inform the Company and shall forthwith take such steps as may be required by the Company to assign such rights or vest such title in the Company.
b) The Company and any person in the Group shall have the right to apply any trade marks, trade names and/or service marks to the Goods. The Buyer acknowledges that no rights are granted to the Buyer by virtue of the Buyer's use of such trade marks, trade names and/or service marks. The Buyer shall not deface, remove or obliterate any trade marks, trade names or logos applied +by the Company and/or any person in the Group on or in relation to the Goods.
c) The Buyer shall keep confidential and not use, without the prior written consent of the Company, all or any information including without limit, those (as referred to in Condition 9.a)) supplied by the Company to the Buyer or disclosed to or obtained by the Buyer pursuant to or as a result of the Contract, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Buyer, or disclosure of the same is required by law or by any other governmental or other regulatory body.
Without prejudice to any of its other rights the Company may immediately terminate the Contract and demand payment of any amount due or accruing to the Company whether under the Contract or otherwise, re-sell the Goods and/or withhold or cancel any deliveries if any of the following occurs or is likely to occur:
a) the Buyer is in breach of any of its obligations under the Contract which, if capable of remedy, the Buyer has not remedied within 30 days of receiving written notice from the Company; or
b) the Buyer is or becomes Insolvent or the Buyer suffers a distress or execution or other legal process to be levied or enforced or sued upon or against any part of the property, assets or revenue of the Buyer which is not discharged or stayed within 7 days.
a) Any temporary waiver or indulgence by the Company in exercise of its rights will not restrict it exercising any of its rights at a subsequent date.
b) The Company may make changes to these Conditions from time to time. Any such change shall apply to all Orders placed after the date of the change. The Buyer is reminded of the need to periodically check these Conditions for changes.
c) The Buyer shall not be entitled to assign or sub-contract any of its rights or the obligations under the Contract, without the prior written consent of the Company. The Company may assign, license or sub-contract all or any part of its rights or obligation under the Contract without the Buyer's consent.
d) Each Contract contains the whole agreement between the Company and the Buyer and supersedes all prior agreements, understandings and arrangements whether oral or in writing. All other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law
e) These Conditions and each Contract (including any associated non-contractual claims and disputes) shall be construed in accordance with and governed in all aspects by the Laws of England Law and the Buyer submits to the exclusive jurisdiction of the English courts.
f) The Company may perform its obligations either on its own or procure the performance of its obligations through its Group. These Conditions do not create any right enforceable by any person who is not a party, except that the terms of these Conditions may be enforced by any member of the Group subject to and in accordance with the terms of these Conditions and the Contracts (Rights of Third Parties) Act 1999.
12. Export Sales
Notwithstanding any other Condition, where Goods are sold for export outside the United Kingdom:
a) the Uniform Laws on International Sales Act 1967 shall not apply and the Company shall be under no obligation to give notice under Section 32(3) of the Sales of Goods Act 1979;
b) Section 26(3) of the Unfair Contract Terms Act 1977 shall apply and notwithstanding Condition 8.a) all liabilities for injury or death arising directly from the use of the Goods are expressly excluded;
c) Unless otherwise agreed in writing by the Company the currency will be pounds sterling and payment shall be by confirmed irrevocable letter of credit to be opened at a bank nominated by the Company at the Buyer's expense;
d) Delivery of Goods and prices quoted and set out in the Company's acknowledgement of order (if any) shall be ex works (as defined in INCOTERMS 2000); and
e) The Buyer shall be responsible for complying with any legislation or regulations governing the export of the Goods from the United Kingdom and governing the importation of the Goods into the country of destination and for the payment of any duties or taxes on them.
In these Conditions unless the context requires otherwise any reference to the singular shall include the plural and vice versa and the following expressions shall have the following meanings:
"Buyer" means the person, firm or company that has requested any Work whose details appear on the Order;
"Company" means Sportfolio Europe Limited Partnership.
"Conditions" means the standard terms and conditions of sale set out herein;
"Contract" means the contract between the Company and the Buyer which is made up of the Order and these Conditions for the supply of Work;
"Goods" means any goods supplied or to be supplied by the Company as specified in the Order;
"Group" means any company which a holding company or ultimate holding company of the Distributor and each of its subsidiary companies and its holding company's and ultimate holding company's subsidiary companies from time to time, "holding company" and "subsidiary" having the meanings given to them in section1159 of the Companies Act 2006;.
"Insolvency" means in relation to an individual, partnership or company the appointment of any nominee, sequestrator, trustee, supervisor, receiver or liquidator (as relevant) pursuant to the Insolvency Act 1986 or the appointment of a manager or receiver (as relevant) pursuant the Law of Property Act 1925 or the occurrence or sufferance of anything equivalent under any jurisdiction other than England or Wales or the calling of any meeting or the passing of any resolution whether formal or informal for the purpose of proposing the taking any of the foregoing steps and "Insolvent" shall be construed accordingly;
"IPRs" means any intellectual property rights of any nature including without limit any and all inventions, patents, utility models, design rights, copyright, know how, trade secrets, confidential information, trade marks, service marks, trade names and goodwill;
"Order" means an order placed by the Buyer with the Company for Work;
"Services" means any services supplied or to be supplied to the Buyer by the Company or the Group as specified in the Order; and
"Work" means Goods and/or Services.