1 DEFINITIONS AND INTERPRETATION
1.1 In these conditions, the words and expressions listed below shall have the following meanings, unless the context requires otherwise:
“Company” means Distell.com.
“Conditions” means these terms and conditions of sale relating to the sale of the Goods and any special terms which are agreed in writing between the Company and Customer.
“Contract” means this contract incorporating the Conditions for the sale of the Goods to the Customer.
“Customer” means the person who has ordered or is, or has been, supplied with the Goods by the Company pursuant to the Contract.
“Goods” means any goods or services supplied to the customer in terms of the Contract, including any instalment of the Goods, or any Goods substituted for the Goods.
1.2 References to a “person” include any natural person, body or organisation incorporated or unincorporated or any other person, body or organisation whatsoever, as the context may require.
1.3 References to a “party” or the “parties” are references to the parties to this contract unless the context requires otherwise.
1.4 References to any statute, or to any statutory provision, including any regulation, statutory instrument, or other subordinate legislation derived from such statutory sources, shall include references to any statute or other statutory provision which amends, extends, consolidates or replaces the original statutory reference or which subsequently affects an such revised statutory reference.
1.5 A reference to a time of day shall be construed as the time in the United Kingdom expressed in terms of the twenty-four hour clock.
2 SALE AND PURCHASE
2.1 The Company sells and the Customer purchases and shall pay the prices for Goods in accordance with these Conditions, which shall alone govern the Contract to the exclusion of other conditions of the Customer notwithstanding that they may be set out in any order, invoice, acceptance or other document used by the Customer in its dealings with the Company.
2.2 The Conditions may only be varied by written agreement by the Company.
2.3 The Customer is deemed to have notice of and is bound by these Conditions on seeking a quotation for the Goods, on submitting an order for the Goods, and by taking delivery of, or accepting the Goods.
2.4 The Customer is deemed to have acknowledged that the Company would and will only supply Goods subject to these Conditions.
2.5 The Customer acknowledges that its use of its standard terms and conditions, or documents referring to any other terms, or conditions at any time during its dealings with the Company, or on the supply of any Goods to it by the Company, is a matter of administrative convenience and only is not intended by it to qualify or amend these Conditions in any way.
3.1 No order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company.
3.2 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order, including all specifications submitted by the Customer, and for giving the Company any necessary information relating to the Goods or its requirements within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 The quantity, quality, description of, and any specifications for the Goods shall be those set out in the Company’s quotation or the Customers order (if accepted by the Company).
3.4 No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and subject to the Customer indemnifying the Company in full against all loos (including loss of profit), damages, charges and expenses incurred by the Company as a result of such cancellation.
4 PRELIMINARY WORK AND PROOFS
4.1 If, at the request of the Customer, the Company carries out, or produces any preliminary drafts, drawings, designs, proofs or other work, the Company shall be entitled to make a charge for such work notwithstanding that it may not be completed or put into production. The charge shall be in addition to any quotation made, or other charges rendered for the Goods unless previously agreed in writing by the Company.
5.1 The price of the Goods shall be the Company’s quoted price for the Goods for immediate delivery ex works. (The price is based upon the current costs of supply and production, and is subject to the amendment on, or at any time, after acceptance of the order to meet variation in such costs.) All quoted prices are valid for 30 days from the date of quotation, subject to clause 5.3, only after which they may be affected by the Company without notice to the Customer.
5.2 Where no price has been requested by, or quoted to the Customer, or a quoted price is no longer valid, the price listed in the Company’s published price list, current at the date of the Order Acceptance, shall apply.
5.3 Notwithstanding any other condition, the Company reserves the right, by giving notice to the Customer, at any time before delivery, to increase the price of the Goods to reflect any increase in cost to the Company, which is due to any factor beyond the control of the Company, including any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials and other costs of manufacturing, or any change in delivery dates, quantities or specifications for Goods which are requested by the Customer. Also, any delays caused by any instructions of the Customer or failure by the Customer to give the Company adequate information or instructions.
5.4 Goods supplied for export from the United Kingdom are subject to the Company’s export price list.
5.5 Delivery of the Goods, other than ex works at the Company’s premises, shall be subject to the Company’s charges for transport packaging and insurance.
5.6 The price, together with all other costings, charges or quotations are quoted exclusive of Value Added Tax and any other tax.
6 TERMS OF PAYMENT
6.1 The Customer shall pay to the Company the price of the Goods and any other charges in terms of the contract together with any VAT, free of all deductions and set-off.
6.2 Payment terms are split into THREE distinct options: i. Cash-with-Order – payment is due prior to Order Acceptance. ii. Cash-on-Delivery – payment is due upon despatch… ex works. iii. 30-day credit account – payment is due within 30 days from date of invoice, notwithstanding that despatch of the Goods may not have taken place, and the property in the Goods has not passed to the Customer.
6.3 Receipts for payment will only be issued upon request.
6.4 If the Customer fails to make full payment of all sums due in accordance with these Conditions the Company shall be entitled as follows:- i. to rescind the Contract, suspend any deliveries of Goods or cease any work or the production of any Goods under this, or any other Contract, with the Customer. ii. To ascribe any payment made by the Customer to the Goods or and goods supplied to the Customer under any other contract, as the Company may think fit. iii. To require that any further supply of Goods or any other goods be paid for in cash on or before acceptance or despatch/ delivery to the Customer.
6.5 Interest shall be payable on any amount outstanding beyond the due date for payment at the rate of 4% per annum above the base rate per annum of the Clydesdale Bank from time to time, calculated on a daily basis until such time as payment in full has been received.
7.1 Delivery of Goods shall be deemed to have been made when the Company has notified the Customer that the Goods are ready for collection from its premises or, if the Company has agreed to deliver the Goods to any other place, or any carrier within the United Kingdom, delivery to such place or person.
7.2 Time of Delivery shall not be of the essence and any dates quoted for Delivery of the Goods are estimates only. The Company shall not be liable for any loss or damage to the Customer resulting from any delay in Delivery of the Goods. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.
7.3 Goods delivered in instalments shall be deemed to have been sold under separate contracts subject to these Conditions. Failure by the Company to deliver any one of the instalments in accordance with these Conditions, or any claim in respect of one of the instalments, shall not entitle the Customer to treat the Contact as a whole as having being repudiated.
7.4 If the Company fails to Deliver the Goods, other than as a result of any cause beyond the Company’ control or the Customer’s fault, the Company’s liability for such failure shall be limited to the refund of any payments made in respect of the Goods not delivered.
7.5 If the Company unreasonably delays making delivery of the Goods, the Customer shall be entitled to demand delivery of the Goods within 14 days. From the date of expiry of any such notice of demand to the Company, the Customer shall be entitled to rescind the Contract or any part of it.
7.6 If the Customer fails to take delivery of the Goods, or fails to give the Company adequate instructions at the time stated for delivery, the Company shall be entitled as follows… i. To store the Goods at the Customer’s risk until uplifted by the Customer and to charge the Customer for the reasonable costs of storage. ii. If title has passed to the Customer, to sell the Goods at the best price readily obtainable, and deduct all reasonable storage, selling and other expenses, and to account to the Customer for any excess over the price under the terms of the Contract, or indeed, to charge the Customer for any shortfall.
7.7 If the Customer rejects the Goods or refuses Delivery for any reason, the Customer shall be responsible for the safe re-delivery of the Goods to the Customer within 21 days.
7.8 The Company shall, if required by the Customer in writing, arrange insurance or a particular form of carriage for the Goods, but shall not be obliged or liable otherwise to make any such arrangements for the Goods.
Risk of damage to, or loss of, the Goods shall pass to the Customer…
8.1 In the case of the Goods deemed to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection.
8.2 In the case of the Goods delivered otherwise that at the Company’s premises, at the time of Delivery to the place or person agreed.
8.3 If the Customer wrongfully fails to take delivery of the Goods, the time when the Company has tendered Delivery of the Goods.
9 RETENTION OF TITLE
9.1 Notwithstanding the Delivery of the Goods or the passing of risk to the Customer, title to the Goods shall pass to the Customer only when all sums due by the Customer in relation to the supply of Goods, under this Contract have been paid in full to the Company.
9.2 The Customer shall ensure that all serial numbers, dates, identification tags or other marks applied to the Goods or their packaging and wrapping are not removed, erased, altered or obscured until title to the Goods has passed to the Customer.
9.3 The Goods shall be stored by the Customer separately or marked clearly to identify them as the Company’s property until title in them has passed to the Customer.
9.4 The Customer shall store the Goods safely, in accordance with any advice or instructions of the Company, in compliance with all relevant statutory regulations and in such a way as to maintain the Goods in substantially the same condition as that when they were delivered.
9.5 The Customer shall maintain insurance cover for the Goods on and from the date of Delivery until title in the Goods has passed to the Customer, and shall note the Company’s interest in the Goods for so long as title remains with the Company.
9.6 Any insurance cover effected by the Customer in relation to the Goods, whether specifically or generally, shall have interest of the Company as an unpaid seller or unpaid sellers generally noted upon it. Any part of any insurance proceeds paid to the Customer from a claim which involves Goods in which title has not passed shal be paid by the Customer to the Company up to the invoice value of any Goods forming part of that claim.
9.7 If the Customer fails to implement or maintain any of its obligations under this Contract, or the Company rescinds the Contract, the Company shall be entitled to recover possession of the Goods without notice. The Company, its employees, or agents are empowered to enter any premises of the Customer or any agent of the Customer, where the Company believes the Goods may be stored, to search for the Goods, mark them as subjects of retention and remove them. The Customer, its employees or agents shall co-operate fully with the Company and any of its agents or employees in order to facilitate the identification or recovery of the Goods.
9.8 The Customer shall be deemed, if it sells any Goods in which title has not yet passed to the Customer, to be the agent of the Company in respect of any such sale but not otherwise, and it shall hold the relevant part of any proceeds from such a sale relating to the invoice value of the Goods sold, as a trustee of the Company. The commission, if any, on any Goods sold by the Customer as the Company’s agent shall be constituted by the difference between the invoice value of the relevant Goods under the Contract and the price obtained on the selling of the Goods to a third party.
9.9 Where the Customer sells, transfers or otherwise disposes of any of the Goods prior to title in the Goods transferring to the Customer, the Customer shall… i. Mark on its delivery notes or invoices, where such Goods are disposed of, that the Goods are owned by the Company or are subject to retention by the Company. ii. Copy any invoices of any such Goods to the Company. iii. Note any such disposal of Goods on its stock control systems. iv. Place any monies received in respect of such Goods up to the value of such Goods, as invoiced to the Customer by the Company, into a separate bank account identifiable as relating to such Goods and monies. v. Send a monthly statement of any such Goods disposed of, to the Company, specifying the Goods, the Customers to whom they were transferred and the invoice details.
9.10 The Company shall be entitled, at any time after Delivery of the Goods, to withdraw or revoke any express or implied power of the Customer to deal with the Goods in any way.
10 WARRANTIES AND LIABILITY
10.1 The Company warrants that the Goods will correspond with their standard specifications at the time of Delivery or, in the case of export Goods, will correspond with specifications agreed in writing between the Company and the Customer. The Company warrants that the Goods shall be free from defects in materials and workmanship for a period of 12 months from date of first supply to the end-user, subject to the following: i. The Company shall be under no liability in respect of any defect in Goods arising from any drawing, design or specification required, or any material supplied by the Customer. ii. The Company shall be under no liability in respect of any defect arising from ordinary wear and tear, wilful damage, negligence of the Customer, abnormal conditions or use, failure to follow the Company’s instructions, misuse or alteration or repair of the Goods… without the Company’s approval. iii. The Company shall be under no liability under the warranty if the total price for the Goods has not been paid by the due date of payment; iv. the above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
10.2 The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not confirmed.
10.3 Any advice or recommendation given by the Company or it’s employees or agents to the Customer as to the storage, application or use of the Goods, which is not confirmed in writing by the Company, is followed or acted upon entirely at the Customer” own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
10.4 No advertisement, brochure, circular or other promotional data shall constitute a warranty or representation in relation to any Goods, and the Customer shall only be entitled to rely on specifications or warranties referred to, or detailed in, the Contract or an invoice for the Goods. 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 Company shall be subject to correction without any liability on the part of the Company.
10.5 All warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by the law except where the Goods are sold to a person dealing as a consumer within the meaning of the Unfair Contract Terms Act 1977.
10.6 Where the Goods are sold under a consumer transaction, as defined by the Consumer Transactions (Restrictions on Statements) order 1976, the Statutory rights of the Customer are not affected by these Conditions.
10.7 Any claim by the Customer which is based on alleged defect in the quality or condition of the Goods, any alleged shortage in the quantity of Goods delivered or, the Goods’ failure to correspond with their specifications shall be notified to the Company within 3 working days (72 hours) from the date of Delivery. Where any defect or failure was not apparent on reasonable inspection on Delivery, the Customer shall notify the Company within 7 days from the discovery of the defect or failure. If the Customer does not notify the Company of any defect, shortage or failure in accordance with these Conditions, the Company shall have no liability for such defect, shortage or failure. In addition, the Customer shall be bound to pay the full price as if the Goods had been delivered in accordance with the Contract.
10.8 Where any claim in respect of any of the Goods which is based on any defect in the quality and condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions and is accepted by the Company, it shall be entitled to replace or repair the Goods, or the part in question, free of charge, or if within 7 days of first receiving the Goods, shall refund the Customer the price of the Goods, but the Company shall have no other liability to the Customer. Any Goods returned to the Company by the Customer must be received properly packaged, protected and insured from transit damage.
10.9 The Company shall not be liable to the Customer for any consequential loss or damage whether for loss or profit, or otherwise costs, expenses or other claims for consequential compensation whatsoever, whether caused by the negligence of the Company, its employees or agents, or otherwise, which arises out of it, or in connection with the supply of Goods or their use or resale by the Customer, except as expressly provided in these Conditions.
10.10 The Company shall not be liable to the Customer or be deemed to be in breach if these Conditions by reason of any delay in performing, or any failure to perform any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control, including any of the following:
i. Act of God, explosion, flood, tempest, fire or accident, terrorist act, war or threat of war, sabotage, insurrection, civil disturbance or requisition; ii. Acts, import or export regulations or embargoes, restrictions, regulations, bye-laws, prohibitions or measures of any kind, on the part of any local, national or supranational government body or authority; iii. Strikes, lock-outs or other industrial actions, or trade disputes whether involving employees of the Company or of any third party; iv. Difficulties in obtaining raw materials, labour, fuel, parts or machinery, or power failure, or breakdown of machinery.
11.1 The Customer may return any material, components or equipment supplied by the Company within the first month from the Goods having been shipped. After this period returned Goods will only be accepts at the Company’s discretion.
11.2 The Customer must obtain the Company’s written authorisation for the return prior to sending. The cost of carriage for returns is not refundable by the Company to the Customer and the original shipping cost for the Goods will not be refunded.
11.3 Goods that have been supplied in working order and to the Customer’s specification will attract a 25% re-stocking fee on return.
12 MATERIALS SUPPLIED BY
12.1 Any materials, components or equipment supplied by the Customer or equipment supplied by the Customer to the Company or specified by the Customer for use or incorporation with the Goods, which appear to the Company to be unsuitable, may be rejected by the Company.
12.2 If materials are provided by the Customer or are in accordance with the Customer’s specifications, the Company shall be entitled to rely on the Customer having selected such materials and shall not have any duty to check the suitability or otherwise of the materials notwithstanding the terms of Clause 11.1.
12.3 Notwithstanding the Company’s right in Sub-Clause 11.1 above, if any such materials, components or equipment are used which during production are considered unsuitable, then the Customer shall be liable to pay for all additional costs incurred by the Company as a result of rejection. Any such cost shall be in addition to any quotation or other statement of charges made to the Customer.
12.4 All property supplied by the Customer to the Company shall be entirely at the Customer’s risk and the Customer shall insure such property accordingly.
12.5 If the Goods are manufacture, or any process is applied to the Goods by the Company in accordance with specifications of the Customer, the Customer shall be responsible for, and shall indemnify the Company against any loss, damages, costs, expenses or other liability of the Company for any infringement of any patent, copyright, design, trade mark or other intellectual property right of any third party or any liability for any defective products resulting from such specifications.
12.6 The Company reserves the right to make any changes to the specifications of the Goods, which are required to conform with any applicable safety or statutory requirements, or where the Goods are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
13 PRODUCTION MATERIALS
13.1 All material used by the Company in the production of the Goods, including type, plates, moulds, stereotypes, electrotypes, film setting, negatives, positives and the like, shall remain the Company’s property, except where such materials are supplied by the Customer.
13.2 Any items used in the production materials relating to the Goods may be erased, reused or disposed of immediately after delivery of the Goods. If the Customer requests the retention of such materials an additional charge may be required by the Company.
14.1 If any claim is made against the Customer 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, other than in relation to materials supplied by the Customer, the Company shall indemnify the Customer against any loss, damages, costs and expenses awarded against or incurred by the Customer in connection with such a claim, provided that: i. the Company is given full control of any proceedings or negotiations in connection with such a claim; ii. the Customer shall give the Company all assistance required for the purposes of any such proceedings or negotiations; iii. except pursuant to a final aware, the Customer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Company; iv. the Customer shall do nothing which may vitiate any policy of insurance, or insurance cover which the Customer or the Company may have in relation to any such infringement, and this indemnity shall not apply to the extent that the Customer is able to recover any sums due under any such policy or cover using its best endeavours to do so; v. the Company shall be entitled to the benefit of, and the Customer shall accordingly account to the Company for all damages and costs awarded and payable to the Customer by any other party in respect of such a claim; and vi. without prejudice to any duty of the Customer at common law, the Company shall be entitled to require the Customer to take such reasonable steps as the Company considers necessary to mitigate or reduce any loss, damages, costs or expenses for which the Company is liable to indemnify the Customer under this clause.
15 CUSTOMER DEFAULTS
15.1 The Company shall be entitled, immediately on becoming aware of any event of default, to rescind the Contract without notice, suspend any further production or deliveries under the Contract, require payment in advance of any delivery or recover the Goods delivered, without any liability to the Customer.
15.2 Each of the following shall constitute an event of default:
i. the Customer ceases or threatens to cease, to carry on business; ii. the Customer makes any voluntary arrangement with its creditors, becomes bankrupt or subject to an administration order, or goes into liquidation, or has a receiver appointed over any of its property or assets; iii. the Company reasonable considers that any of the above events may occur in relation to the Customer; iv. the Customer fails to pay the price by the due date.
16 EXPORT TERMS
16.1 Goods supplied for export to a Customer outside the United Kingdom are subject to the provisions of this Clause.
16.2 In these Conditions: “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce, in force at the date when the contract is made. Unless the context otherwise requires any term or expression, which is defined in, or given a particular meaning by the provisions of the Incoterms , shall have the same meaning in these Conditions, but if there is any conflict or ambiguity between the provisions on Incoterms and these Conditions the latter shall prevail.
16.3 The Customer 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 other import duties.
16.4 If the Goods are delivered to a carrier for air or sea shipment, the Company shall be under no obligation to give notice to the Customer under section 32 (3) of the Sales Goods Act 1979, and shall not be liable for any loss arising from the Customer’s failure to insure the Goods.
16.5 The Customer shall be entitled to arrange the testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on such an inspection and which is made after shipment, or in respect of any damage during transit.
16.6 Payments of all amounts due to the Company shall be made by one of the following methods… i. irrevocable letter of credit.. opened by the Customer in favour of the Company and confirmed by a bank acceptable to the Company. All bank charges in respect of this letter of credit to be paid by the Customer. ii. Cash with order… paid to the Company either by SWIFT bank transfer, direct to the Company’s bank, as confirmed by the Company in writing, or sterling bank draft, payable at sight. iii. Cash on delivery.. paid to the Company wither by SWIFT bank transfer, direct to the Company’s bank, as confirmed by the Company, in writing, or sterling bank draft payable at sight, immediately that the Goods are ready for despatch to the Customer.. iv. Credit account.. all payments in respect of approved credit accounts must be paid by the due date, by SWIFT bank transfer, or sterling bank draft, payable at sight.
17.1 Any notice required or permitted to be given under this Contract shall be sufficiently given to either party if sent in a legible form by first class or express registered post (“post”), telex, facsimile transmission (“fax”), or by personal delivery, including courier delivery to the postal address of the addressee at his principal place of business last notified in writing to the sender.
17.2 Any notice served by telex, fax, post or personal delivery shall be deemed to have been received:- i. In the case of fax, one working day after the time of despatch, evidenced by the relevant completed transmission report; ii. In the case of telex, on receipt by the sender of the appropriate “answer back”; iii. In the case of post, five customary working days from midnight (2400 hours) on the date of posting, evidenced by the relevant proof of posting, except where the day of receipt of such a notice is a Sunday or public holiday at the place of delivery in which event, notice shall be deemed to be received at 9.00 am on the next day, which is not a Sunday or a public holiday; and iv. In case of personal delivery, one working day after the time of delivery to the party, evidenced, where appropriate, by the courier’s counter-signed for, or on behalf of the addressee.
No delay, omission or failure by either of the parties to exercise any right or remedy, shall operate as a waiver. Any partial exercise of a right or remedy shall not preclude any other, or further exercise of any such right of action.
If any of the Clauses, Sub-Clauses or other provisions of this Contract are found by an arbiter, court or other competent authority to be void or unenforcable, such provision shall be deemed to be deleted from the Contract, but the remaining provisions of the Contract shall continue in full force and effect insofar as they are not affected by any such deletion.
20 GOVERNING LAW
The Law of Scotland shall govern the construction, validity and performance of this Agreement and the parties propagate the non-exclusive jurisdiction of the Scottish Courts.