TERMS & CONDITIONS
Policy Approved: 03/11/2022
Policy Renewed: 02/11/2022
Next Policy Review: 01/11/2023
1. Interpretation
1.1 Definitions:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 15.4.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Delivery Date: the date specified for delivery of an Order determined in accordance with clause 3.5.
Delivery Location: the address for delivery of the Goods, as set out in the Order.
Free Delivery Area: means the geographical area marked from time to time on the Supplier’s delivery map of the United Kingdom, a copy of which is available on request.
Force Majeure Event: an event or circumstance beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Group: has the meaning given in clause 15.2.1.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form which includes the Customer’s reference number, a description of the Goods, the Specification (if applicable), the Customer’s purchase order number, Delivery Location and the Customer’s address for invoicing purposes.
Order Confirmation: the Supplier’s confirmation of the Customer’s Order which includes the Price.
Price: the price for the Goods, as set out in the Order Confirmation.
Recall Notice: has the meaning given in clause 11.
Specification: any specification for the Goods, including any related plans and drawings that is agreed by the Customer and the Supplier.
Supplier: Brand Machine International Limited (registered in England and Wales with Company No. 06873920).
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.
1.2 Interpretation:
1.2.1 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 any phrase introduced by the terms including, or include or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.
1.2.3 a reference to writing or written includes emails but not faxes.
2. Basis of Contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.3 Any typographical, clerical or other error or omission in any sales literature, price list, acceptance of offer, invoice or other document or information issued by the Supplier will be subject to correction without any liability on the part of the Supplier.
2.4 The Customer acknowledges and accepts that the Supplier’s employees and agents are not authorised to make any representations concerning the Goods and that it does not rely on any such representations that are not expressly confirmed by the Supplier in writing.
2.5 Any advice or recommendation given by the Supplier or its employees or agents to the Customer or its employees or agents in relation to the Goods which is not confirmed in writing by the Supplier is followed or acted upon entirely at the Customer’s risk.
3. Orders
3.1 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
3.2 The Supplier may accept or decline Orders at its absolute discretion.
3.3 Any Order placed online via the Supplier’s website will receive an initial order acknowledgement email confirming the Supplier’s receipt of the Order.
3.4 Any Order will only be deemed to be accepted when the Supplier issues an Order Confirmation, at which point the Contract will come into existence.
3.5 After issuing an Order Confirmation, the Supplier will as soon as is practicable inform the Customer of the Supplier’s estimated delivery date for the Order (“Delivery Date”).
3.6 If it wishes to amend an Order, the Customer must notify the Supplier within 10 Business Days of the date of the Order it wishes to amend. The Supplier will be under no obligation to accept any amendment.
4. Goods
4.1 The Goods are described the Specification.
4.2 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract or have any contractual force.
4.3 To the extent that the Goods are to be manufactured in accordance with a Specification or instructions supplied by the Customer, the Customer will indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 4.3 will survive termination of the Contract.
4.4 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
5. Delivery
5.1 The Supplier will ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the despatch, all relevant Customer and Supplier reference numbers and the type and quantity of the Goods (including the code number of the Goods, where applicable).
5.2 Delivery is completed on the completion of unloading of the Goods at the Delivery Location. If the Customer makes its own arrangements for Delivery, Delivery is completed at the moment the Goods are loaded onto the relevant delivery vehicle.
5.3 The Supplier will endeavour to deliver Goods to the Delivery Location on the relevant Delivery Date. Delivery Dates are approximate only, and the time of delivery is not of the essence.
5.4 The Customer will have no right to damages as a result of any failure by the Supplier to deliver the Goods by the Delivery Date.
5.5 The Supplier may deliver the Goods by instalments, which will be invoiced and paid for separately subject to clause 7.4. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
5.6 If the Supplier delivers less than the quantity of the Goods ordered, the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment will be made to the Order invoice. However, such adjustment to the invoice will only be made provided that, on receipt of notice from the Customer that the wrong quantity of Goods was delivered within 5 Business Days of delivery, the Supplier is given the opportunity to verify that fact and on verification, the Supplier fails to rectify the issue within a reasonable period of time (which will in any event be no longer than 14 Business Days after the Supplier satisfies itself that the wrong quantity of Goods was delivered).
5.7 Acceptance of Delivery of the Goods will be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
6. Delivery Postponement
6.1 On receipt of a request from the Customer, the Supplier may agree to postpone the Delivery Date but will be under no obligation to do so.
6.2 If the Supplier agrees to postpone the Delivery Date, the Customer will be responsible for all associated costs including (but without limitation) storage, insurance and delivery costs incurred by the Supplier from the original Delivery Date to the date that Goods are actually delivered to the Customer.
6.3 If 10 Business Days after the original Delivery Date the Customer has not accepted delivery of the Goods or re-arranged the Delivery Date with the Supplier, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling and other costs as well as any losses it has incurred by reason of the Customer’s failure to accept the Goods, account to the Customer for any excess over the Price or charge the Customer for any shortfall below the Price.
7. Price and Payment
7.1 The Customer will pay for the Goods in accordance with this clause 7.
7.2 The Price will be as set out in the Order Confirmation, or, if no price is stated, the price set out in the Supplier's price list in force as at the date of delivery.
7.3 The Price excludes amounts in respect of VAT, which the Customer will additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.
7.4 The Price includes the costs of packaging, insurance and transport of the Goods provided that the Delivery Location is within the Free Delivery Area. If the Delivery Location is not within the Free Delivery Area, the Price excludes the costs of packaging, insurance and transport of the Goods which will be invoiced to the Customer in addition to the Price.
7.5 The Supplier may, by informing the Customer in writing at any time before delivery, increase the Price to reflect any increase in the cost of the Goods that is due to:
7.5.1 any factor beyond the Supplier's control (including, but not limited to, foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.5.2 any request by the Customer to change the Delivery Date(s), quantities or types of Goods ordered, or the Specification; or
7.5.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.6 The Supplier may invoice the Customer for the Goods on or at any time after the Goods are despatched.
7.7 The Customer will pay invoices in full in cleared funds within 30 Business Days of the invoice date. Payment will be made to the bank account nominated in writing by the Supplier unless otherwise agreed by the Supplier. Time for payment is of the essence.
7.8 If the Customer pays sums due to the Supplier by cheque, banker’s draft or direct inter-bank transfer, payments will be deemed to have been made when the Supplier’s nominated bank account has been credited with the full amount.
7.9 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier's remedies under clause 11:
7.9.1 the Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.9.1 will accrue each day at the greater of 4% a year above the Bank of England's base rate from time to time, and the rate from time to time applicable to High Court judgment debts. The Customer will pay the interest together with the overdue amount.
7.9.2 the Supplier may suspend all further deliveries of Goods until payment has been made in full.
7.10 The Customer will pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7.11 If the Customer’s billing procedures require that the Supplier’s invoice must be submitted against a purchase order, the Customer will issue such purchase order to the Supplier in advance of delivery.
8. Security
Without prejudice to the Supplier’s other rights and remedies, the Supplier may require the Customer to supply to it such security for its liabilities under the Contract as the Supplier may require including (but without limitation), a letter of credit, guarantee, bill of exchange or other security.
9. Quality
9.1 The Supplier warrants that on delivery, the Goods will conform in all material respects with their description and any applicable Specification.
9.2 Subject to clause 9.3, if:
9.2.1 the Customer gives notice in writing to the Supplier within 10 Business Days of delivery that some or all of the Goods do not comply with clause 9.1;
9.2.2 the Customer gives notice in writing to the Supplier within 72 hours of receipt that the goods have been damaged in transit and the Customer can demonstrate that an appropriately qualified signature, e.g. “Material received damaged, (signed)” was clearly made by the Customer on the delivery note at the time of delivery;
9.2.3 the Supplier is given a reasonable opportunity of examining such Goods; and
9.2.4 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier’s cost, the Supplier will, at its option, repair or replace the defective or damaged (as the case may be) Goods, or refund the price of the defective Goods in full.
9.3 The Supplier will not be liable for the Goods' failure to comply with clause 9.1 in any of the following events:
9.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 9.2;
9.3.2 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
9.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
9.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
9.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
9.3.6 the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.4 The Supplier's only liability to the Customer if the Goods fail to comply with clause 9.1 is as set out in this clause 9.
9.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9.6 These Conditions will apply to any repaired or replacement Goods supplied by the Supplier.
10. Title and Risk
10.1 The risk in the Goods will pass to the Customer on completion of delivery.
10.2 Title to Goods will only pass to the Customer once the Supplier receives payment in full (in cash or cleared funds) for them.
10.3 Until title to the Goods has passed to the Customer, the Customer will:
10.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
10.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
10.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
10.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.1; and
10.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
10.4 The Supplier may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 10.3, and to recover any Goods in which property has not passed to the Customer.
10.5 The Supplier may at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer will immediately pay the Price to the Supplier.
10.6 Subject to clause 10.7, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
10.6.1 it does so as principal and not as the Supplier’s agent; and
10.6.2 title to the Goods will pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
10.7 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.2, then, without limiting any other right or remedy the Supplier may have:
10.7.1 the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
10.7.2 the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
11. Product Recall
11.1 If the Customer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market ("Recall Notice") it will immediately notify the Supplier in writing enclosing a copy of the Recall Notice.
11.2 Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of the Supplier and only then in strict compliance with the Supplier's instructions as to the process of implementing the withdrawal.
12. Termination
12.1 The Customer may cancel an Order if any of the events listed in clause 12.2.4 or clause 12.2.5 happen in relation to it.
12.2 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
12.2.1 the Customer commits a material breach of any term of the Contract other than non‑payment and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
12.2.2 any amount due hereunder is due and remains unpaid for 14 days or more after notice requiring payment has been served on the party owing such amount;
12.2.3 the Customer fails to provide security requested by the Supplier pursuant to clause 8.
12.2.4 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
12.2.5 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
12.2.6 the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 12.2.1 to clause 12.2.6, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
12.4 On termination of the Contract for any reason the Customer will immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
12.5 Termination of the Contract will not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
12.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
13. Limitation of Liability
13.1 Nothing in these Conditions will limit or exclude the Supplier's liability for:
13.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
13.1.2 fraud or fraudulent misrepresentation;
13.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
13.1.4 defective products under the Consumer Protection Act 1987; or
13.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
13.2 Subject only to clause 13.1:
13.2.1 the Supplier will not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
13.2.2 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed 50% of the Price.
14. Force Majeure
Neither party will be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non‑performance continues for 4 weeks, the party whose performance was impaired by the Force Majeure Event may terminate this Contract by giving 30 days written notice to the other party.
15. General
15.1 Assignment and other dealings.
15.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
15.2 Confidentiality.
15.2.1 Each party undertakes that it will not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 15.2.2. For the purposes of this clause 15.2, "group" means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
15.2.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party will ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 15.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.2.3 No party will use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
15.3 Entire agreement.
15.3.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.3.2 Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it will have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
15.4 Variation. No variation of this Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
15.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 15.6 will not affect the validity and enforceability of the rest of the Contract.
15.7 Notices.
15.7.1 Any notice or other communication given to a party under or in connection with the Contract will be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause 15.7, and will be delivered personally, sent by pre-paid first class post or other next working day delivery service or commercial courier.
15.7.2 A notice or other communication will be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.7.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
15.7.3 The provisions of this clause 15.7 will not apply to the service of any proceedings or other documents in any legal action.
15.8 Third party rights. No one other than a party to this Contract and their permitted assignees will have any right to enforce any of its terms.
15.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, will be governed by and construed in accordance with the law of England and Wales.
15.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.