Terms & Conditions
These sales and delivery terms shall apply to all sales transactions between the Company and the Customer (the “Terms”).
Definitions
1.1 The following words used herein shall have the following meanings unless the context otherwise requires:-
“Company” means Essina Ltd (and all its brands and websites) a company registered in England under number 07917816 whose registered office is situated at Groundworks, Power Road Studios, 114 Power Road, London, W4 5PY;
“Intellectual Property” means intellectual property rights including without limitation, all patents, registered designs, copyrights, database rights, design rights, semiconductor chips, rights, trademarks, service marks, trade secrets, confidential payment, the information and rights in unpatented know-how;
“Price” means the price of the Products as specified in the Sales Order from the Company
“Products” means the commodity supplied by the Company as specified in the Sales Order;
“Customer” means the purchaser of the Products as specified in the Sales Order;
“Sales Order” a confirmation issued by the Company and accepted by the Customer relating to the supply of the Products to the Customer; and
“Specifications” means specifications relating to the Products as set out in the Sales Order
General
2.1 All sales of Products by the Company to the Customer shall be subject to these Terms and the terms set out in the relevant Sales Order. No offer to sell or supply any Product shall be binding upon the Company unless a Sales Order has been issued by the Company in relation thereto and accepted by the Customer. In the event of a conflict between these terms and the terms in the Sales Order, the terms in the Sales Order shall prevail.
2.2 The Company's agents and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these Terms or the terms of the Sales Order.
2.3 Subject to the availability of adequate stocks, the Company shall supply the Products to the Customer per the Customer's orders to the best of the Company's ability. Each order for the Products (whether or not subject to the same Sales Order) shall constitute a separate contract, and any default by the Company concerning any one order shall not entitle the Customer to treat any other order for Products as terminated.
2.4 All Products supplied by the Company pursuant to this Agreement shall conform in all respects to the Specifications. The Customer may only vary the Specifications with the prior written agreement of the Company. Any additional reasonable costs incurred by the Company in relation to the variation of the Specifications shall be borne solely by the Customer.
2.5 Subject to Clause 2.4 above, all orders for the Products are final and binding on the Customer and the Company will not accept returns or variations to the Sales Order without the Company’s prior written agreement.
2.6 The Company shall not be under any obligation to continue the supply of the Products and the Company shall have the sole and absolute discretion in determining whether to accept any order for the Products and/or issue any Sales Order in respect thereof.
Payment
3.1 All payments made by the Customer to the Company shall be in the currency as stated in the Sales Order unless otherwise mutually agreed between the parties.
3.2 All payments by the Customer to the Company shall be made in the manner and by the date specified in the Sales Order.
i. Where payment in advance is required, payment must be made online or via bank transfer by the customer within 1 working day of receiving the Sales Order;
ii. Where payment on delivery is required, payment must be made online or via bank transfer by the customer within 1 working day of receiving the Products;
iii. Where a credit term is stipulated, payment must be made no later than the credit terms stated in the Sales Order.
3.3 If the Company requires the Customer to post security for payment, Customer shall post such security before the Products are loaded for delivery or shipment as appropriate.
3.4 The Price of the Products are exclusive of all taxes (including VAT, goods and services taxes and customs duties). Where taxes that shall be borne by the Customer are applicable (e.g. VAT on delivery charges), such taxes will be quoted in the Sales Order.
3.5 The Customer may not withhold payment or make any deduction or set-off from any amount owing to the Company without the Company's prior written consent.
Delivery and Shipment
4.1 The Customer shall issue delivery instructions sufficiently in advance to allow the Company to deliver the Products and/or to obtain delivery and shipment based on the trade terms as specified in the Sales Order. If the Customer fails to issue delivery instructions sufficiently in advance, the Company may invoice the Products on the delivery date and demand payment as if the Products had been delivered on that date.
4.2 Where a delay in delivery is due to the fault of the Customer as a result of his failure to provide sufficient delivery instructions and/or take delivery promptly when it arrives at the Customer’s premises, the Company shall be entitled to cancel the contract without any liability to the Customer or to continue delivery of the Products.
4.3 Should the Company elect to continue with the delivery of the Products, the Customer agrees that it shall reimburse to the Company any additional costs incurred by the Company as a result of the aforesaid delay including but not limited to exchange risk, storage and insurance for the Products.
Title to Products
5.1 The title to the Products shall remain vested in the Company and shall not pass to the Customer until payment of the Price has been received in full by the Company. Full payment of the Price shall include, without limitation, any other sums payable hereunder or in the Sales Order. Until title to the Products passes to the Customer, the Products shall be subject to the following conditions:
i. the Company shall have authority to retake, sell or otherwise deal with and/or dispose of all or any part of the Products;
ii. the Company, its agents and employees shall be entitled at any time and without prior notice to enter upon any property upon which the Company reasonably believes the Products to be stored to inspect or remove such Products; and
iii. the Customer shall store or mark the Products in a manner reasonably satisfactory to the Company indicating that title to the Products remains vested in the Company.
5.2 Notwithstanding the vesting of title in the Company as aforesaid, the risk of loss or damage shall pass to the Customer upon delivery.
Warranties and limitation of liability
6.1 The Company hereby warrants that the Products comply with the specifications described in the Sales Order. All warranties expressly made in the Sales Order are made to the best of the Company’s knowledge but this does not release the responsibility for the Customer to make its own examinations and tests. Save as otherwise expressly set out herein or in the Sales Order, the Company makes no other representation or warranty in respect of the Products (including but not limited to any representation or warranty relating to the price information and/or technical specifications set out in the Company’s published price lists and brochures).
6.2 The Customer shall inspect the Products within five (5) working days following receipt of the goods and shall inform the Company instantly of any damage or defects in the Products. The Customer shall be solely liable for any damage or defects if notice thereof is not received within seven (7) days of delivery and the Customer shall have no claims against the Company in respect of any such damage or defect.
6.3 Following notification of the defects, the Company, its agents or employees are entitled to inspect the Products and the Customer shall provide them access to the Products. The Customer shall provide proper storage for the Products until inspection has taken place.
6.4 Notwithstanding anything to the contrary in the Sales Order, the Company shall not be liable to the Customer or any third party by reason of any implied warranty, condition or other terms or any duty at common law unless expressly stated in the Sales Order for any loss or damage howsoever arising out of or in connection with the supply of the Products.
6.5 In no event shall the Company be liable for any special, consequential, incidental, punitive, exemplary or indirect losses or damages whether in contract or tort arising from the supply of the Products or the performance or non-performance of its obligations hereunder.
6.6 Without prejudice to the generality of the foregoing, the Company's total liability to the Customer for any claim arising out of any Product supplied shall be limited to the Price of the relevant Product.
6.7 Neither Party shall limit any liability to the extent it cannot be limited or excluded by Law.
Non-Disclosure of information
7.1 The Customer acknowledges that from time to time it may have access to certain information (whether written or oral) relating to the Products or the Intellectual Property of the Company or the affairs of the Company or its customers which is not generally known to the public including without limitation price quotations, lists of the Company's customers and confidential or commercially sensitive methods and know-how.
7.2 The Customer agrees with and undertakes to the Company that it shall not, without the prior written consent of the Company, disclose such information to any third party or use such information for the Customer's own benefit or for the benefit of any other person or in any way exploit such information, nor will the Customer provide any person with a copy of or disclose to any person the contents of any document containing such information.
Termination
8.1 The Customer may not terminate any order after the Company has issued a Sales Order.
8.2 The Company may cancel any order for Products if (a) the Customer commits any continuing or material breach of any Term or term in the Sales Order and, in the case of such a breach which is capable of remedy, fails to remedy the same within two (2) weeks after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or (b) a Force Majeure Event (as defined in Clause 10) occurs.
8.3 If an order for Products is cancelled by the Company due to a breach by the Customer of a Term or term in the Sales Order, the Customer shall reimburse the Company for any reasonable costs incurred as a consequence of such cancellation, including without limitation, packaging and re-packaging costs, storage costs, financing costs, foreign exchange losses, loss of profits and any diminution in the value of the Products due to price movements.
Technical Advice
9.1 Where any technical advice is given by the Company in connection with the supply of Products, no obligation or liability is assumed by the Company for any technical advice so given. The Customer accepts such technical advice entirely at its own risk based on its own judgment and due diligence and not in reliance upon any warranty or representation by the Company.
9.2 The Company's technical documentation comprises its Intellectual Property. The Customer may not alter such documentation for any purpose whatsoever.
Force Majeure
10.1 The Company shall not be liable to the Customer for any non-performance of its obligations hereunder or in the Sales Order if such non-performance is due to the interruption of operations of the Company or third parties, failure of suppliers to deliver, lack of raw material or energy, strikes, riots, walk-outs, lockouts, labour shortages, power shortages, fires, wars, acts of God, earthquakes, storms, floods, explosions, accidents, protests or demonstrations, delays in transportation, breakdown of machinery, inability to obtain necessary materials in the open market, unavailability of equipment, governmental regulations restricting normal operations, shipping delays, material adverse effect or any other reason or reasons beyond the control of and not reasonably foreseeable by the Company (“Force Majeure Event”).
10.2 If the delivery of the Products is delayed because of an occurrence of any Force Majeure Event, then the time for delivery of the Products shall be extended by a period equal in length to the period of such delay and the Customer shall accept such delayed delivery in full satisfaction of his rights hereunder.
Miscellaneous
11.1 These Terms and terms in the Sales Order shall be governed by and construed in accordance with the laws of England and each of the parties hereto submit to the jurisdiction of the English courts.
11.2 These Terms and the terms in the Sales Order set out the entire agreement and understanding between the parties in connection with the subject matter herein and supersede and cancel in all respects all previous agreements and undertakings among the parties hereto about such matters, whether written or oral.
11.3 Notwithstanding that any provision of these Terms and the terms in the Sales Order may prove to be illegal or unenforceable, the remaining provisions shall continue in full force and effect. If any provision of these Terms and the terms in the Sales Order or any part thereof shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, including, without limitation, by reason of the provisions of any legislation or other provisions having the force of law or by reason of any decision of any court or other body or authority having jurisdiction over any or both of the parties, such terms or provisions shall be divisible from these Terms and the terms in the Sales Order and shall be deemed to be deleted provided always that the parties hereto hereby undertake to attempt, in good faith, to substitute therefore a legal, valid and enforceable provision or term which achieves, to the greatest extent possible, the economic, legal and commercial objectives of the illegal, invalid or unenforceable provision or term.
11.4 Any waiver of any breach of these Terms and the terms in the Sales Order shall not be deemed to apply to any succeeding breach of the provision or of any other provision of these Terms and the terms in the Sales Order. No failure to exercise and no delay in exercising on the part of any of the parties any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in these Terms and the terms in the Sales Order are cumulative and not exclusive of any rights or remedies otherwise available (whether at law or in equity) to the parties.
11.5 Nothing herein shall constitute a partnership or establish a relationship of agency or any other relationship of a similar nature between or among the parties hereto.
11.6 These Terms and the terms in the Sales Order have been made and is made solely for the benefit of the parties and their respective successors. Nothing herein is intended to confer any rights or remedies on any persons other than the parties to it and their respective successors. Nothing herein is intended to relieve or discharge the obligation or liability of any third persons to any party.
11.7 A person who is not a party shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms herein.
11.8 No purported variation of these Terms and/or the terms in the Sales Order shall be effective without a formal agreement between the parties.