1.1 Definitions: In these conditions, the following definitions shall apply:
Customer: means the organisation or person who buys Goods from the Supplier.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Goods: means the goods to be supplied to the Customer by the Supplier.
Intellectual Property Rights: means all designs, patents, rights to Inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights to use and preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world and other intellectual property rights are the exclusive property of the Supplier. The Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form or any other document sent by the Customer to the Supplier requesting the supply of Goods.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: means Emmy Ltd (T/A Emmy London) or any other company clearly indicated by Emmy Ltd.
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 undertakes to purchase all the Goods ordered by the Customer by means of Purchase Order or any other document sent by the Customer to the Supplier requesting the supply of Goods. The Customer recognises that any refusal on its part of acceptance and/or payment for the Goods ordered causes considerable losses to the Supplier including but not limited to the full price of Goods and any expenses incurred.
2.3 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 submitted by the Customer are complete and accurate.
2.4 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions 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 shall not form part of the Contract or have any contractual force.
3.1 Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description.
3.2.1 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall 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 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. Price and Payment
4.1 The price shall be that in the Supplier’s current List Price, or such other price as the parties may agree in writing. The ‘whole sale’ price is exclusive of VAT or any other applicable costs. Carriage shall be paid by the Customer unless otherwise agreed between the parties.
4.2. Payment of the price and VAT and any other applicable costs shall be due according to the Terms and Conditions set out in the order confirmation.
4.3 The Supplier shall be entitled to charge interest on overdue invoices from the date when payment becomes due until the date of payment at a rate of 8.00% per annum above the Bank of England base rate.
4.4 If the payment of the price or any part thereof if not made by the due date, the Supplier shall be entitled to:
4.4.1 require payment in advance of delivery in relation to any Goods not previously delivered;
4.4.2 refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Customer for non-delivery or any delay in delivery;
4.4.3 terminate the contract.
4.5 The Goods will be sold at our recommended retail price, please refer to the published price list.
5. Termination and Suspension
5.1 If the Customer becomes subject to any of the events listed in clause 5.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
5.2 For the purposes of clause 5.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts; or
(b) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer; or
(c) (being a company) an application is made to court, or an order is made, for the appointment of an administrator; or
(d) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets; or
(e) (being an individual) the Customer is the subject of a bankruptcy petition or order; or
(f) 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; and
(g) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of man aging his or her own affairs or becomes a patient under any mental health legislation.
5.3 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 5.2(a) to clause 5.2(g), 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.
5.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s out standing unpaid invoices and interest.
5.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
5.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
6.1 Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description.
7.1 Where a sample of the Goods is shown to and inspected by the Customer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Customer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
8.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Customer on the date specified by the Supplier. The Customer shall make appropriate arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. The date of delivery specified by the Supplier is an estimate only. Time for delivery shall not be the essence of the contract. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
8.3 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
8.4 If the Customer fails to take or accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (in cluding insurance).
9.1 The Customer shall be entitled to replacement Goods where the Goods have been damaged during transportation, subject to the method of shipment;
9.2 Risk in the Goods shall pass to the Customer;
(a) Landed Prices (DDP) (inclusive of shipping and import duties) when the Goods are delivered to the Customer.
(b) Freight on Board (Supplier pays the costs of shipping to the Customers shipper) when the Goods are delivered to the Customers shipper.
(c) DDU (Delivery Duty Unpaid) (Supplier pays all delivery costs, the duties are the responsibility of the Customer) when the Goods are delivered to the Customer, or they are held by customs whichever is sooner.
(d) Ex Works (All shipping and duties are the Customers responsibility) when the Goods are dispatched from the Suppliers premises.
9.2 Where the Customer chooses to collect the goods, the risk shall pass when the goods are entrusted to it or set aside for collection, whichever is sooner.
10.1 Title in the Goods shall not pass to the Customer until the Supplier has been paid in full for the Goods.
10.2 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 5.2, then, without limiting any other right or remedy the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and be free from material defects in design, material and workmanship.
(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.
11.1 The Supplier warrants that on delivery the Goods shall:
(a) Conform with the specification;
(b) be free from material defects in design, material and workmanship.
11.2 Subject to clause 11.3, if:
(a) the Customer gives notice in writing to the Supplier immediately; that some or all of the Goods do not comply with the warranty set out in clause 11.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
(d) the Supplier shall, at its option, repair or replace the defective Goods within 45 days.
(e) Where the Goods have been manufactured and supplied to the Supplier by a third party, any warranty granted to the Supplier in respect of the Goods shall be passed on to the Customer.
(f) The remedies contained in this Clause are without prejudice to the other Terms and Conditions herein, including, but without limitation, Clauses 12 and 13 below.
11.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 11.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 11.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
11.4 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.
11.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
12.1. No liability of any nature shall be incurred or accepted by the Supplier in respect of any representation made by the Supplier or on its behalf, to the Customer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:
12.1.1. The correspondence of the Goods with any description; or
12.1.2. The quality of the Goods; or
12.1.3. The fitness of the Goods for any purpose whatsoever.
12.2. No liability of any nature shall be accepted by the Supplier to the Customer in respect of any express term of this contract where such term relates in any way to:
12.2.1. The correspondence of the Goods with any description;
12.2.2. The quality of the Goods or
12.2.3. The fitness of the Goods for any purpose whatsoever.
12.2.4. All implied terms, condition or warranties as to the correspondence of the Goods to any description or the satisfactory quality of the Goods or the fitness of the Goods for any purpose whatsoever (whether made known to the Supplier or not) are hereby excluded from the contract.
13. Limitation of Liability
13.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
13.2 Subject to clause 13.1:
(e) the Supplier shall under no circumstances whatever 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
(f) 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, shall in no circumstances exceed the price paid for the Goods.
14. Intellectual Property
14.1 The Buyer acknowledges that all interest in Intellectual Property Rights are the exclusive property of the Supplier and the Buyer shall not acquire any licence or interest in any of the Intellectual Property Rights under these Terms and Conditions.
14.2 The Buyer shall promptly notify the Supplier if it becomes aware of any infringement or threatened infringement of the Supplier’s Intellectual Property Rights or of any counterfeit products and shall, in full consultation with the Supplier, take all steps reasonably required by the Supplier, to assist protecting the Supplier’s Intellectual Property Rights and to prevent the infringement.
15. Force Majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could havebeen foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
16. Relationship of Parties.
Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
17. Assignment and other dealings.
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. 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.
(a) Any notice or other communication given to a party under or in connection with the Contract shall 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, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.5(a); 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; or, if sent by fax or email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
20. Third party rights.
A person who is not a party to the Contract shall not have any rights to enforce its terms.
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall 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 shall prevent or restrict the further exercise of that or any other right or remedy.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall 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 shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
The courts of England and Wales shall have exclusive jurisdiction over any dispute arising out of or relatin to the Memorandum of Understanding, and each Party hereby consents to the jurisdiction of such courts. This Memorandum of Understanding shall be governed by and construed in accordance with the laws of England and Wales.