|
| |
1
Interpretation
1.1
In these Terms:
“BUYER”
means the person who accepts the Seller’s Written quotation for the sale of
the Goods or whose Written order for the Goods is accepted by the Seller;
“GOODS”
means the goods (including any instalment of the goods or any parts for them)
which the Seller is to supply in accordance with these Terms;
“SELLER”
means Bivvy Bike Limited (registered in
England
under number 501344);
“CONTRACT”
means the contract for the sale and purchase of the Goods;
“INCOTERMS”
means the international rules for the interpretation of trade terms of the
International Chamber of Commerce as in force at the date when the Contract is
made;
“TERMS”
means the standard terms of sale set out in this document and (unless the
context otherwise requires) includes any special terms agreed in Writing between
the Buyer and the Seller;
“WRITING”,
and any similar expression, includes facsimile transmission and comparable means
of communication, but not (save where expressly permitted in these Terms of
Sale) electronic mail.
1.2
A reference in these Terms to a provision of a statute shall be construed
as a reference to that provision as amended, re‑enacted or extended at the
relevant time.
1.3
The headings in these Terms are for convenience only and shall not affect
their interpretation.
2
L1‑022
Basis of the sale
2.1
The Seller shall sell and the Buyer shall purchase the Goods in
accordance with the Seller’s Written quotation (if accepted by the Buyer), or
the Buyer’s Written order (if accepted by the Seller), subject in either case
to these Terms, which shall govern the Contract to the exclusion of any other
terms subject to which any such quotation is accepted or purported to be
accepted, or any such order is made or purported to be made, by the Buyer.
2.2
These Terms of Sale are posted and available on the Seller’s
Website, Web address [www.bivvybike.com and the Seller reserves the right to notify any
change or amendment to these Terms of Sale (with the intention that such amended
or additional or substituted terms shall thereafter be binding upon the Seller
and the Buyer) by posting such amended Terms of Sale on the Seller’s Website
which shall be deemed to constitute due notice to the Buyer in relation to any
subsequent contract or continuation and contract between the Buyer and Seller.
2.3
The Seller’s employees or agents are not authorised to make any
representations concerning the Goods unless confirmed by the Seller in Writing.
In entering into the Contract the Buyer acknowledges that it does not rely on
any such representations which are not so confirmed, but nothing in these Terms
affects the liability of either party for fraudulent misrepresentation.
2.4
Any advice or recommendation given by the Seller or its employees or
agents to the Buyer or its employees or agents as to the storage, application or
use of the Goods which is not confirmed in Writing by the Seller is followed or
acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall
not be liable for any such advice or recommendation which is not so confirmed.
2.5
Any typographical, clerical or other error or omission in any sales
literature, quotation, price list, acceptance of offer, invoice or other
document or information issued by the Seller shall be subject to correction
without any liability on the part of the Seller.
3
L1‑023
Orders and specifications
3.1
No order submitted by the Buyer shall be deemed to be accepted by the
Seller unless and until confirmed in Writing by the Seller’s authorised
representative.
3.2
The Buyer shall be responsible to the Seller for ensuring the accuracy of
the terms of any order (including any applicable specification) submitted by the
Buyer, and for giving the Seller any necessary information relating to the Goods
within a sufficient time to enable the Seller to perform the Contract in
accordance with its terms.
3.3
The quantity, quality and description of the Goods and any specification
for them shall be as set out in the Seller’s quotation (if accepted by the
Buyer) or the Buyer’s order (if accepted by the Seller).
3.4
If the Goods are to be manufactured or any process is to be applied to
the Goods by the Seller in accordance with a specification submitted by the
Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and
expenses awarded against or incurred by the Seller in connection with, or paid
or agreed to be paid by the Seller in settlement of, any claim for infringement
of any patent, copyright, design, trade mark or other industrial or intellectual
property rights of any other person which results from the Seller’s use of the
Buyer’s specification.
3.5
The Seller reserves the right to make any changes in the specification of
the Goods which are required to conform with any applicable statutory or E.U.
requirements or, where the Goods are to be supplied to the Seller’s
specification, which do not materially affect their quality or performance.
3.6
No order which has been accepted by the Seller may be cancelled by the
Buyer except with the agreement in Writing of the Seller and on terms that the
Buyer shall indemnify the Seller in full against all loss (including loss of
profit), costs (including the cost of all labour and materials used), damages,
charges and expenses incurred by the Seller as a result of cancellation.
4
L1‑024
Price of the goods
4.1
The price of the Goods shall be the Seller’s quoted price or, where no
price has been quoted (or a quoted price is no longer valid), the price listed
in the Seller’s published price list current at the date of acceptance of the
order. Where the Goods are supplied for export from the
United Kingdom
, the Seller’s published export price list shall apply. All prices quoted are
valid for 30 days only or until earlier acceptance by the Buyer, after which
time they may be altered by the Seller without giving notice to the Buyer.
4.2
The Seller reserves the right, by giving Written notice to the Buyer at
any time before delivery, to increase the price of the Goods to reflect any
increase in the cost to the Seller which is due to any factor beyond the control
of the Seller (such as, without limitation, any foreign exchange fluctuation,
currency regulation, alteration of duties, significant increase in the costs of
labour, materials or other costs of manufacture), any change in delivery dates,
quantities or specifications for the Goods which is requested by the Buyer, or
any delay caused by any instructions of the Buyer or failure of the Buyer to
give the Seller adequate information or instructions.
4.3
Except as otherwise stated in the Seller’s Written quotation or in any
price list of the Seller, and unless otherwise agreed in Writing between the
Buyer and the Seller, all prices are given by the Seller on an ex works basis,
and where the Seller agrees to deliver the Goods otherwise than at the
Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for
transport, packaging and insurance.
4.4
The price is exclusive of any applicable value added tax, which the Buyer
shall be additionally liable to pay to the Seller.
4.5
The cost of pallets and returnable containers will be charged to the
Buyer in addition to the price of the Goods, but full credit will be given to
the Buyer provided they are returned undamaged to the Seller before the due
payment date.
5
L1‑025
Terms of payment
5.1
Subject to any special terms agreed in Writing between the Buyer and the
Seller, the Seller may invoice the Buyer for the price of the Goods on or at any
time after delivery of the Goods, unless the Goods are to be collected by the
Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which
event the Seller shall be entitled to invoice the Buyer for the price at any
time after the Seller has notified the Buyer that the Goods are ready for
collection or (as the case may be) the Seller has tendered delivery of the
Goods..
5.2
The Buyer shall pay the price of the Goods (less any discount to which
the Buyer is entitled, but without any other deduction) within 30 days of the
date of the Seller’s invoice, and the Seller shall be entitled to recover the
price, notwithstanding that delivery may not have taken place and the property
in the Goods has not passed to the Buyer. The time of payment of the price shall
be of the essence of the Contract. Receipts for payment will be issued only upon
request.
5.3
If the Buyer fails to make any payment on the due date then, without
limiting any other right or remedy available to the Seller, the Seller may:
5.3.1
cancel the contract or suspend any further deliveries to the
Buyer;
5.3.2
appropriate any payment made by the Buyer to such of the Goods (or
the goods supplied under any other contract between the Buyer and the Seller) as
the Seller may think fit (notwithstanding any purported appropriation by the
Buyer); and
5.3.3
charge the Buyer interest (both before and after any judgment) on
the amount unpaid, at the rate of 3% per cent per annum above Nat West Bank PLC
base rate from time to time, until payment in full is made (a part of a month
being treated as a full month for the purpose of calculating interest).
6
L1‑026
Delivery
6.1
Delivery of the Goods shall be made by the Buyer collecting the Goods at
the Seller’s premises at any time after the Seller has notified the Buyer that
the Goods are ready for collection or, if some other place for delivery is
agreed by the Seller, by the Seller delivering the Goods to that place.
6.2
Any dates quoted for delivery of the Goods are approximate only and the
Seller shall not be liable for any delay in delivery of the Goods however
caused. Time for delivery shall not be of the essence of the Contract unless
previously agreed by the Seller in Writing. The Goods may be delivered by the
Seller in advance of the quoted delivery date on giving reasonable notice to the
Buyer.
6.3
Where delivery of the Goods is to be made by the Seller in bulk, the
Seller reserves the right to deliver up to ten per cent more or ten per cent
less than the quantity ordered without any adjustment in the price, and the
quantity so delivered shall be deemed to be the quantity ordered.
6.4
Where the Goods are to be delivered in instalments, each delivery shall
constitute a separate contract and failure by the Seller to deliver any one or
more of the instalments in accordance with these Terms or any claim by the Buyer
in respect of any one or more instalments shall not entitle the Buyer to treat
the Contract as a whole as repudiated.
6.5
If the Seller fails to deliver the Goods (or any instalment) for any
reason other than any cause beyond the Seller’s reasonable control or the
Buyer’s fault, and the Seller is accordingly liable to the Buyer, the
Seller’s liability shall be limited to the excess (if any) of the cost to the
Buyer (in the cheapest available market) of similar goods to replace those not
delivered over the price of the Goods.
6.6
If the Buyer fails to take delivery of the Goods or fails to give the
Seller adequate delivery instructions at the time stated for delivery (otherwise
than by reason of any cause beyond the Buyer’s reasonable control or by reason
of the Seller’s fault) then, without limiting any other right or remedy
available to the Seller, the Seller may:
6.6.1
store the Goods until actual delivery and charge the Buyer for the
reasonable costs (including insurance) of storage; or
6.6.2
sell the Goods at the best price readily obtainable and (after
deducting all reasonable storage and selling expenses) account to the Buyer for
the excess over the price under the Contract or charge the Buyer for any
shortfall below the price under the Contract.
7
L1‑027
Risk and property
7.1
Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1
in the case of Goods to be delivered at the Seller’s premises,
at the time when the Seller notifies the Buyer that the Goods are available for
collection; or
7.1.2
in the case of Goods to be delivered otherwise than at the
Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails
to take delivery of the Goods, the time when the Seller has tendered delivery of
the Goods.
7.2
Notwithstanding delivery and the passing of risk in the Goods, or any
other provision of these Terms, the property in the Goods shall not pass to the
Buyer until the Seller has received in cash or cleared funds payment in full of
the price of the Goods and all other goods agreed to be sold by the Seller to
the Buyer for which payment is then due.
7.3
Until such time as the property in the Goods passes to the Buyer, the
Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and
shall keep the Goods separate from those of the Buyer and third parties and
properly stored, protected and insured and identified as the Seller’s
property, but the Buyer may resell or use the Goods in the ordinary course of
its business.
7.4
Until such time as the property in the Goods passes to the Buyer (and
provided the Goods are still in existence and have not been resold), the Seller
may at any time require the Buyer to deliver up the Goods to the Seller and, if
the Buyer fails to do so forthwith, enter on any premises of the Buyer or any
third party where the Goods are stored and repossess the Goods.
7.5
The Buyer shall not be entitled to pledge or in any way charge by way of
security for any indebtedness any of the Goods which remain the property of the
Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller
shall (without limiting any other right or remedy of the Seller) forthwith
become due and payable.
8
L1‑029
Indemnity
8.1
If a claim is made against the Buyer that the Goods infringe or that
their use or resale infringes the patent, copyright, design, trade mark or other
industrial or intellectual property rights of any other person, then unless the
claim arises from the use of a drawing, design or specification supplied by the
Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs and
expenses awarded against or incurred by the Buyer in connection with the claim,
or paid or agreed to be paid by the Buyer in settlement of the claim, provided
that:
8.1.1
the Seller is given full control of any proceedings or
negotiations in connection with the claim;
8.1.2
the Buyer shall give the Seller all reasonable assistance for the
purposes of any such proceedings or negotiations;
8.1.3
except pursuant to a final award, the Buyer shall not pay or
accept the claim, or compromise any such proceedings without the consent of the
Seller (which shall not be unreasonably withheld);
8.1.4
the Buyer shall do nothing which would or might vitiate any policy
of insurance or insurance cover which the Buyer may have in relation to such
infringement, and this indemnity shall not apply to the extent that the Buyer
recovers any sums under any such policy or cover (which the Buyer shall use its
best endeavours to do);
8.1.5
the Seller shall be entitled to the benefit of, and the Buyer
shall accordingly account to the Seller for, all damages and costs (if any)
awarded in favour of the Buyer which are payable by, or agreed with the consent
of the Buyer (which consent shall not be unreasonably withheld) to be paid by,
any other party in respect of any such claim; and
8.1.6
without limiting any duty of the Buyer at common law, the Seller
may require the Buyer to take such steps as the Seller may reasonably require to
mitigate or reduce any such loss, damages, costs or expenses for which the
Seller is liable to indemnify the Buyer under this clause.
9
L1‑030
Insolvency of buyer
9.1
This clause 10 applies if:
9.1.1
the Buyer makes a voluntary arrangement with its creditors or
(being an individual or firm) becomes bankrupt or (being a company) becomes
subject to an administration order or goes into liquidation (otherwise than for
the purposes of amalgamation or reconstruction); or
9.1.2
an encumbrancer takes possession, or a receiver is appointed, of
any of the property or assets of the Buyer; or
9.1.3
the Buyer ceases, or threatens to cease, to carry on business; or
9.1.4
the Seller reasonably apprehends that any of the events mentioned
above is about to occur in relation to the Buyer and notifies the Buyer
accordingly.
9.2
If this clause applies then, without limiting any other right or remedy
available to the Seller, the Seller may cancel the Contract or suspend any
further deliveries under the Contract without any liability to the Buyer, and if
the Goods have been delivered but not paid for the price shall become
immediately due and payable notwithstanding any previous agreement or
arrangement to the contrary.
10
L1‑031
Export terms
10.1
Unless the context otherwise requires, any term or expression which is
defined in or given a particular meaning by the provisions of Incoterms shall
have the same meaning in these Terms, but if there is any conflict between the
provisions of Incoterms and these Terms, the latter shall prevail.
10.2
Where the Goods are supplied for export from the
United Kingdom
, the provisions of this clause 11 shall (subject to any special terms agreed in
Writing between the Buyer and the Seller) apply notwithstanding any other
provision of these Terms.
10.3
The Buyer shall be responsible for complying with any legislation or
regulations governing the importation of the Goods into the country of
destination and for the payment of any duties on them.
10.4
Unless otherwise agreed in Writing between the Buyer and the Seller, the
Goods shall be delivered fob the air or sea port of shipment and the Seller
shall be under no obligation to give notice under section 32(3) of the Sale of
Goods Act 1979.
10.5
The Buyer shall be responsible for arranging for testing and inspection
of the Goods at the Seller’s premises before shipment. The Seller shall have
no liability for any claim in respect of any defect in the Goods which would be
apparent on inspection and which is made after shipment, or in respect of any
damage during transit.
10.6
Payment of all amounts due to the Seller shall be made by irrevocable
letter of credit opened by the Buyer in favour of the Seller and confirmed by a
bank in England acceptable to the Seller or, if the Seller has agreed in Writing
on or before acceptance of the Buyer’s order to waive this requirement, by
acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn
on the Buyer payable 60 days after sight to the order of the Seller at such
branch of Barclays Bank in England as may be specified in the bill of exchange.
10.7
The Buyer shall not offer the Goods for resale in
Europe
or any other country notified by the Seller to the Buyer at or before the time
the Buyer’s order is placed, or sell the Goods to any person if the Buyer
knows or has reason to believe that that person intends to resell the Goods in
any such country.
11
L1‑032
General
11.1
A notice required or permitted to be given by either party to the other
under these Terms shall be in Writing addressed to that other party at its
registered office or principal place of business or such other address as may at
the relevant time have been notified pursuant to this provision to the party
giving the notice.
11.2
No waiver by the Seller of any breach of the Contract by the Buyer shall
be considered as a waiver of any subsequent breach of the same or any other
provision.
11.3
If any provision of the Contract is held by a court or other competent
authority to be invalid or unenforceable in whole or in part the validity of the
other provisions of the Contract and the remainder of the provision in question
shall not be affected.
11.4
The Contract shall be governed by the laws of
England
, and the Buyer agrees to submit to the non‑exclusive jurisdiction of the
English courts.
|
