The term ‘The Bartuf Group’ or ‘us’ or ‘we’ refers to the owner of the website whose registered office is Intake Grange, Thorner, Leeds, LS14 3DN. The term ‘you’ refers to the user or viewer of our website.
- The content of the pages of this website is for your general information and use only. It is subject to change without notice.
- Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
- Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
- This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
- All trade marks reproduced in this website which are not the property of, or licensed to, the operator are acknowledged on the website.
- Unauthorised use of this website may give rise to a claim for damages and/or be a criminal offence.
- From time to time this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s).
- Your use of this website and any dispute arising out of such use of the website is subject to the laws of England, Northern Ireland, Scotland and Wales.
BARTUF’S CONDITIONS OF SALE
1. DEFINITIONS AND INTERPRETATION
- In these conditions ‘we, us, our’ means Bartuf Ltd (company number 3139445), Bartuf Europe Ltd (company number 02643764) or other Bartuf group company, depending on which of these is named on the account application form we sent to you. You contract with the company named on the account application form. Bartuf Ltd acknowledges orders on behalf of Bartuf Europe Ltd. There may be other occasions where another Bartuf company acts as our agent, e.g. in delivering goods. In all cases refer to the account application form to see which company you are contracting with. ‘Conditions’ means these Conditions of Sale. ‘Contract’ means the contract for the sale of the Goods and/or supply of Design Services, incorporating these Conditions.
‘Design Services’ means the services provided by us, where requested by you, in relation to the design of the Goods or any other product.
‘Goods’ means the goods, including any part thereof, which we are to supply pursuant to or in connection with your purchase order and the Contract.
‘Packaging’ means wooden pallets, stillages, boxes, bubble packs.
‘Services’ means the services including any part thereof and, where relevant, the Design Services, which we are to supply pursuant to or in connection with your purchase order and the Contract.
‘You, yours’ means the person, firm, or company who buys the ‘Goods’ or the ‘Services’.
- Any references in these Conditions to any provision of a statute or statutory provision shall be construed as a reference to that provision as amended, re-enacted, consolidated, modified, replaced or extended at the relevant time. The headings will not affect the construction of these Conditions. ‘Writing’ includes faxes but does not include email.
2. ACCEPTANCE AND AGREEMENT
- These Conditions shall, unless and to the extent that we agree otherwise in writing, apply to all tenders, offers, quotations, acceptances, agreements and deliveries relating to the sale of Goods and/or the supply of Services by us.
- Each order is subject to these Conditions (insofar as not inconsistent with any special terms agreed between you and us which you shall be deemed to have accepted).
- No other conditions or modifications of these Conditions shall be binding on us unless we agree thereto in writing (including any terms or conditions which you purport to apply under any purchase order, confirmation of order, specification or other document) and we shall not be deemed to accept such other conditions nor to waive any of these Conditions by failing to object to provisions contained in any purchase order or other communications from you. No terms or conditions endorsed upon, delivered with or contained in your purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of being referred to in the Contract.
- No-one other than one of our directors has authority to amend or waive any of these Conditions or other provisions of the Contract or make any representations about the Goods or the Services. Nothing in this Condition or contained elsewhere in these Conditions will exclude or limit our liability for fraudulent misrepresentation.
- Any advice or recommendation given by us, our employees or agents to you and your employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by us is followed or acted upon entirely at your own risk, and accordingly we are not liable for any such advice or recommendation which is not confirmed in writing.
- All descriptions, specifications, drawings, weights, dimensions, capacities, prices, performance ratings, samples and other data quoted or submitted by us or included in any sales literature, quotation, price list, acknowledgement of order, invoice or other document or information issued by us are to be deemed approximate only (except where stated in writing to be exact or expressly made of the essence) and subject thereto none of such items or any part thereof shall form part of the Contract but are issued or published for the sole purpose of giving an approximate idea of the Goods or the Services.
- Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acknowledgement of order, invoice or other document or information issued by us shall be subject to correction without any liability on our part. We shall notify you promptly of any such error and give you the opportunity to either cancel your order or reconfirm your order with the corrected details.
- We reserve the right to make any changes in the specification of Goods or Services which are required to conform with any applicable safety or other legal requirements or which do not materially affect their quality or performance.
4. ORDERS AND FORMATION OF CONTRACT
- Each order for Goods or Services that you place shall be deemed an offer by you to purchase the Goods or Services subject to these Conditions. You are responsible for ensuring the accuracy of your order. No order placed by you shall be deemed to have been accepted by us until a written acknowledgement of order is issued by us or by one of the other Bartuf group companies or (if earlier) we deliver the Goods or commence the performance of the Services.
- Any quotation is given on the basis that the Contract will not come into existence until we despatch an acknowledgement of order to you. A quotation shall be valid for a period of 30 days from its date, provided we have not previously withdrawn it. After this period, it may be altered by us without giving you notice.
- You may not cancel any order which we have accepted unless we so agree in writing and on terms that you shall indemnify us in full against all losses (including loss of profit), cost (including the cost of all labour and materials used), damages, charges and expenses incurred or suffered by us as a result of cancellation.
- Unless we have otherwise agreed in writing or stated on our quotation or acknowledgement of order the price payable by you shall be our ex-works list price ruling at date of despatch Prices for Services will be agreed in writing or stated on our quotation or acknowledgement of order.
- After an order has become binding on us, all prices will have V.A.T. added at the appropriate rate and are subject to increase to reflect increases from time to time in list prices and any increases in costs to us (including without limitation costs of materials, labour, transport and services, and fluctuations in currency exchange rates and any tax, duty, fee or charge imposed by any government or other authority) prior to delivery, any change in delivery dates, quantities or specification for the Goods or Services which you request or any delay caused by your instructions or your failure to give us adequate information or instructions.
- Unless otherwise agreed in writing or stated on our quotation or acknowledgement of order, packing, delivery and transport charges, insurance, the cost of installation and or erection on site, and the cost of any commissioning or running or installation tests and of materials used for the same, are not included in the price and will be charged extra at our then current rates for the same.
- The cost of pallets and returnable containers will be charged to you in addition to the price of the Goods but full credit will be given to you provided they are returned undamaged to us before the due payment date. Pallets and returnable containers shall be returned at your expense.
- Unless stated on our quotation or acknowledgement of order or agreed by both parties in writing in accordance with these Conditions, the net invoice amount shall be paid in full by you to us within 30 days following the end of the month of delivery of the Goods or performance of the Services (as applicable) or (if earlier) upon the occurrence of any circumstances where pursuant to the Contract or these Conditions, payment falls immediately due. All payments due to us under the Contract, or under any other contract between you and us, shall become due immediately upon termination of the Contract despite any other provision. The time of payment shall be of the essence of the Contract. If payment is not made by the due date, any discount given to you shall be reinstated and become payable as part of the price and a supplementary invoice for such discount will be raised. In addition you will be responsible on a solicitor and own client basis for any legal costs and disbursements incurred in recovering the debt. No payment shall be deemed to have been received until we have received cleared funds.
- We reserve the right at any time before proceeding further with an order to demand full or partial payment of monies due and payable under the Contract and under any other Contract between you and us.
- If you default in any payment we may in addition to exercising the right contained in Condition 6(2) above suspend work, delay or withhold delivery under or cancel this or any other contract between us and retain any progress payments or payments on account already received under the Contract between us.
- Interest at annual rate of eight per cent above the base lending rate from time to time of Barclays Bank PLC is payable on all overdue monies from the due date for payment, accruing on a daily basis, until payment is made whether before or after any judgment.
- We shall have a lien on all undelivered goods which you agree to purchase from us.
- You shall make all payments due under the Contract without any deduction, whether by way of set-off, counterclaim, discount or otherwise, unless you have a valid court order in respect of the same.
- All rights and remedies afforded to us in these Conditions for non-payment shall be in addition and without prejudice to all other rights and remedies available to us under the Contract or at law.
- Time of delivery is not of the essence of the Contract and may not be made of the essence by notice and any time or date specified by us as the time at which or the date on which the Goods will be delivered or the Services performed is given and intended as an estimate only.
- Unless we otherwise agree in writing, delivery of the Goods shall take place at location specified on your order. If no such location is specified, delivery of the Goods will take place at the location specified on our acknowledgement of order. Where delivery will take place at our premises, you will take delivery within 3 working days of our notification to you that the Goods are ready for delivery.
- Subject to the other provisions of these Conditions we will not be liable for any direct, indirect or consequential loss (all three of which terms include loss of profits, loss of business, depletion of goodwill, administrative and overhead costs and similar losses), nor will any delay entitle you to terminate the Contract unless such delay exceeds 180 days. Any liability for non-delivery shall be limited to replacing the Goods or redelivering the Services within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such non-delivered Goods or Services.
- We reserve the right to make delivery by instalments, unless otherwise expressly agreed in writing. The period during which delivery by instalments may be made and the quantity of Goods delivered in each instalment shall be at our discretion.
- Where Goods are delivered in instalments, each delivery shall constitute a separate contract to which these Conditions apply (mutatis mutandis), and our failure to deliver any one or more of the instalments shall not entitle you to treat the Contract as repudiated.
- Delivery will be made in such quantities as we feel appropriate for delivery of the Goods. Subject thereto, delivery of more or less than the quantity or weight of the Goods due for delivery or the inclusion therewith of goods of a different description not included in the Contract shall not entitle you to reject the Goods delivered, and where we deliver up to 10 per cent more or less than the quantity or weight ordered we may charge pro rata for the quantity or weight supplied and you shall treat such delivery as full performance by us of our duty to deliver. Our delivery note shall be accepted as conclusive proof of quantity of goods delivered.
- We reserve the right to suspend the delivery of Goods or provision of Services or to cancel the Contract or reduce the volume of Goods ordered (without liability to you) if we are prevented from or delayed in the carrying on of our business due to circumstances beyond our reasonable control, including without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemics, lockouts, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. In the event that the event in question continues for a continuous period in excess of 180 days, you shall be entitled to give notice in writing to us to terminate the Contract. In the event of cancellation we shall be paid pro rata for Goods delivered, work done or Services provided to the date of cancellation.
- If you fail to take delivery of Goods or fail to give us adequate delivery instructions, documents, licences or authorisations at the time stated for delivery (otherwise than by reason of any cause beyond your reasonable control or by reason of our fault) then without prejudice to any other right or remedy available to us (including our right to payment) we may:
- store the Goods until actual delivery and charge you for the reasonable costs (including insurance) of storage in which event all risk in the Goods will pass to you; and
- sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to you for the excess over the price under the Contract or charge you for any shortfall below the price under the Contract and you shall indemnify us in full against all losses, damages, charges and expenses incurred by us as a result of your said failure to take delivery or give adequate delivery instructions to the extent that our said losses, damages, charges and expenses are not covered by any payments made under (I) or (II) above.
- You shall be solely responsible for the proper unloading of Goods and will provide at your expense at the point of delivery adequate and appropriate equipment and manual labour. If, to assist you to remove the Goods from the point of delivery we or any sub-contractor does any unloading of Goods free of charge, no liability whatsoever shall thereby be incurred by us or our sub-contractor and you shall indemnify us in respect thereof.
- The price for the Goods shall be exclusive of any and all costs or charges in relation to loading, unloading, carriage, delivery and insurance all of which amounts you will pay in addition at our current rates when payment for the Goods is due.
8. DESIGN SERVICES
- Where you have asked us to provide Design Services as part of the Services, you acknowledge that our ability to provide the Design Services is dependent upon your full and timely co-operation with us (which you agree to provide), as well as the accuracy and completeness of any instructions that you provide to us.
- We agree that we shall perform the Design Services with reasonable care and skill.
- Where we have agreed to provide the Design Services on a complimentary basis as an ancillary service to other Services, we reserve the right to amend our quote in respect of the Design Services should the scope of the Design Services required by you change.
- Following completion of the Design Services we shall notify you of the final designs. You must give final approval to any designs, including undertaking any intellectual property clearance searches you consider necessary or appropriate to the final designs. Following confirmation of your acceptance of the designs and your placing of an order for the manufacture and delivery of goods made to the final designs, we may commence manufacture of the Goods at any time and you shall be liable to account to us for any costs and/or losses incurred by us as a result of any change to the designs that you request following your earlier acceptance.
9. TESTING/ERECTION AND INSTALLATION
- Unless otherwise stated in writing on our quotation or acknowledgement of order you shall pay our reasonable charges for any installation, erection, testing or commissioning of Goods carried out by us our agents or sub-contractors.
- Results of tests which have not been agreed and carried out in accordance with procedures agreed with us shall not be regarded for the purpose of any claim against or in establishing any liability of against us.
- If you wish to make any claim against us on the basis of tests which have been so agreed and carried out, you shall send us not later than 2 months after the date of delivery of the Goods the results of any such testing of the Goods, together with details of the claim. Failure to comply with this Condition 9(3) shall constitute a waiver by you of all claims based on or relating to the facts revealed by such testing.
- Where you want us to erect and install or to test or commission Goods on site, you shall supply us with full details necessary to enable us to do same and shall ensure that the site and access thereto and egress there from are suitable and that all necessary electrical, gas, water, compressed air and other services, labour, test materials, security and safety precautions are available.
10. YOUR OBLIGATIONS AND CLAIMS ON DELIVERY
- You will:-
- examine Goods carefully within 2 working days of taking delivery; and
- notify us (and any carrier for us) as soon as possible and in any event in writing within 3 working days of taking delivery of any error in quantity or weight or description of Goods delivered or that they were mixed with others not included in the contract or of any damage to Goods revealed by such examination and not caused since delivery was taken.
- Failure to make any notification in accordance with paragraph (II) of Condition 10(1) above which examination under Condition 10(1) paragraph (I) above should have enabled you to make shall constitute a waiver by you of all claims based on or relating of facts which such examination should have revealed.
- The quantity of any consignment of Goods recorded by us upon despatch from our place of business shall be conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence to the contrary.
- Our liability for non-delivery of Goods shall be limited at our option to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such goods.
- Risk of damage to or loss of the Goods shall pass to you:-
- in the case of Goods to be delivered at our premises, at the time when we notify you that the Goods are available for collection; or
- in the case of Goods to be delivered otherwise than at our premises, at the time of delivery (except where the goods are sold f.o.b.) or, if you wrongly fail to take delivery of the Goods, the time when we have tendered delivery of the Goods. Delivery to a carrier or to any person, firm or company on your behalf shall constitute delivery to you.
- Where Goods are sold f.o.b. all risk of damage or loss in transit shall pass to you when the Goods are placed on board ship, and we shall be under no obligation to give you the notice specified in Section 32(2) Sale of Goods Act 1979.
12. TITLE TO GOODS
- Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, until we have received full payment in cleared funds for the Goods and the Services and all other goods whatsoever supplied and services rendered at any time, together with any interest or other sums payable, the property in the Goods shall remain with us.
- Should you convert the Goods (or any of them) into a new product (‘New Product’), whether or not such conversion involves the mixture or combining of the Goods with any goods or thing whatsoever and in whatever proportions, the conversion shall be effected by you solely as our agent, and subject to Condition 12(4) below, we shall have the full legal and beneficial ownership of the New Products.
- Until such time as the property in the Goods and the New Products passes to you, you shall hold the Goods and the New Products as our fiduciary agent and bailee, store the Goods and the New Products separately and in such a way that they can be readily identified as being our property, will insure them, and not without our written consent assign, pledge, mortgage, charge, let or part with possession of the Goods or any part of them otherwise than in the ordinary course of business and in accordance with Conditions 12(5), 12(6) and 12(7).You will immediately return the Goods and the New Products to us should we so request, and, if you fail to do so forthwith, we have the right to enter upon any premises owned or occupied by you or any third party where Goods are stored and repossess the Goods. You shall not affix the Goods to land without our permission, but we may sever the Goods if necessary to exercise our rights under this Condition.
- Should Goods which are our property be mixed with goods which are the property of any person other than you, we shall be deemed to own the product thereof in common with such person(s).
- Subject to Conditions 12(6) and 12(7) below, you shall be at liberty to sell the Goods and the New Products referred to above in the ordinary course of business, for their full market value or more. Such sale shall be of our property on your own behalf. You shall have no authority to enter into any contract of sale on our behalf and any contract shall accordingly be concluded in your name: you shall deal as principal and not as our agent.
- We shall be legally and beneficially entitled to the proceeds of sale and you shall pay such proceeds into a separate account or otherwise as we direct and ensure that such proceeds are kept by you or on your behalf in a separate and identifiable form. You shall not pay the proceeds into a bank account which is overdrawn.
- Upon the sale of any New Products, if the proceeds of sale exceed the price or the balance of the price of the Goods due to us, the balance of the proceeds shall be applied as follows:
- first, reimbursing us any costs or expenses in taking possession or selling the New Products and damages suffered by us as a result of your breach of contract; and
- secondly, paying any sums due and payable to other creditors in respect of other items and materials used in connection with the manufacture of the New Products where the property in such items and materials has remained vested in such other creditors by reason of effective reservation of title clauses and the claims of such other creditors have been notified to us by you, the liquidator, administrator or receiver or by such other creditors.
- We shall have the benefit of any claims against sub-buyers.
- Your right to possession of the Goods and New Products shall terminate immediately if (a) you make an arrangement or composition with your creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convene a meeting of creditors (whether formal or informal), or enter into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or have a receiver and/or manager, administrator or administrative receiver appointed of any part of your undertaking, or documents are filed with the court for the appointment of an administrator of your undertaking or notice of intention to appoint an administrator is given by you or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of your undertaking or for the granting of an administration order in respect of your undertaking, or any proceedings are commenced relating to your insolvency or possible insolvency; or (b) if you suffer or allow any execution, whether legal or equitable, to be levied on your property or obtained against you/it, or fail to observe or perform any of your obligations under the Contract or any other contract between you and us, or you are unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or cease to trade; or (c) if you encumber or in any way charge any of the Goods or New Products.
- We shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from us.
- Where we are unable to determine whether any Goods or New Products are the goods in respect of which your right to possession has terminated, you shall be deemed to have sold all goods of the kind sold by us to you in the order in which they were invoiced to you.
- On termination of the Contract our rights contained in this Condition, but not yours, shall remain in effect.
- Subject to the terms and conditions set out in this Condition 13, we warrant to you that the Goods will correspond with our specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from delivery or 12 months from the date of their initial use, whichever is the first to expire.
- The warranty in Condition 13(1) above is given by us subject to the following conditions:
- we shall be under no liability where Condition 10(2) applies;
- we shall be under no liability in respect of any defect in the quality or condition of the Goods or their failure to meet specification unless your claim is notified to us within 14 days of the date upon which such defect or failure was or should reasonably have been discovered;
- we shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by you or by a third party acting on behalf of you or to the extent that you have contributed to any Design Services provided;
- we shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage or negligence by you, your employees, servants, agents or sub-contractors, abnormal working conditions, failure to follow our instructions (whether oral or in writing) misuse or alteration or repair of the Goods without approval;
- we shall be under no liability under such warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment; and
- such warranty does not extend to parts, materials or equipment not manufactured by us, in respect of which you shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to us.
- Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded to the fullest permitted by law.
- Where any valid claim in respect of any Goods or part(s) thereof based on any defect in the quality or condition of the Goods or part(s) thereof or their failure to meet specification or performance is notified to us in accordance with these Conditions, we shall be entitled to repair or replace the Goods (or the part(s) in question) free of charge or at our sole discretion, refund to you the price of the Goods (or a proportionate part of the price) but we shall have no further liability to you.
- If you wish to make any claim under this Condition 13, you must give us a reasonable opportunity after receiving notice of the defect to examine the Goods and, if we request, you will return the Goods to our place of business at our expense for such examination to take place.
14. LIMITATION AND EXCLUSION OF LIABILITY
- Subject to Condition 13, the following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of the Contract or its termination, including (without limitation):
- any breach of these Conditions;
- use of the Goods or goods in which they are incorporated;
- preparation of the Goods by us and use of the Goods by you that have been designed by us as part of the Design Services;
- any use of any outputs supplied by us as part of the Design Services; and
- any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
- Nothing in these Conditions excludes or limits our liability for death or personal injury caused by our negligence, or for fraudulent misrepresentation, or any other liability we cannot by law exclude or limit.
- Subject to Condition 14 (2):
- our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the value of the Goods or Services supplied to you over the previous 6 months or the Contract price (whichever is the greater) as calculated from our retail price list or quotation; and
- we shall not be liable to you for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill, administrative costs, overheads or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
- Nothing in these Conditions shall affect the statutory rights of a consumer.
15. INTELLECTUAL PROPERTY
- We shall own all of the intellectual property rights in the Goods, Services and the output of the Services including the design of any products (all together the “Output”) and shall be entitled to use, copy, manufacture to the design, sell or otherwise exploit commercially or otherwise the Output and the intellectual property rights in the Output in any market or sector on a worldwide basis.
- You shall, at our cost, perform (or procure the performance of) all acts and things, and execute and deliver (or procure the execution or delivery of) all further documents, required by law or which we reasonably request to vest in us the full benefit of all of the right, title and interest in all of the intellectual property rights in the Output including:
- the right to bring, make, oppose, defend and appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other course of action arising from ownership, of any of the rights assigned whether occurring before, on or after the date of such rights vesting in us;
- registration of us as applicant or (as applicable) proprietor of the assigned rights; and
- assisting us in obtaining, defending and enforcing the assigned rights and assisting with any other proceedings which may be brought by or against us against or by any third party relating to the assigned rights.
- Save as agreed expressly otherwise between us in writing you shall have no right, title or interest in or to, or licence to use, any intellectual property rights in the Output.
- If you require ownership of any intellectual property rights in any element of the Output, this is to be agreed separately with us in writing. It is entirely within our discretion whether to assign such ownership and on what terms.
- If any claim is made against you alleging that Goods or Services infringe patent rights, registered designs, copyright or other intellectual or industrial property rights of another then:-
- you shall forwith notify us with full particulars, and
- we or our suppliers or licensors (as the case may be) shall be at liberty at our expense to conduct all negotiations and/or litigation in respect thereof and (if necessary) in your name, and
- except pursuant to a final award, you shall not pay or accept any such claim or compromise any proceedings without our consent (which shall not be unreasonably withheld or delayed) and if as a result of such negotiations or litigation you shall be unable to use the Goods or the output of the Services substantially for the purpose for which they were bought we shall (except where Condition 16 below applies) take them back and refund the price thereof and such refund shall be in full satisfaction of all claims by you against us.
- You shall indemnify us against all actions costs (including the cost of defending legal proceedings) claims proceedings and demands in respect of any infringement or alleged infringement by us of patent rights, registered designs, copyright, unregistered design rights or other intellectual or industrial property rights attributable to us complying with any of your special instructions or requirements relating to the Goods, or in respect of Design Services in respect of which you have given your approval pursuant to Condition 8(4).
- To the extent the infringing part of any Goods or Services arise from information or, materials provided by you or in respect of Design Services that were approved by you pursuant to Condition 8(4), we shall not be liable (including without limitation if arising in negligence) for any claims, proceedings, demands, or other losses that arise from such information, materials or approved Design Services.
16. YOUR SOLVENCY
- This Condition applies if:-
- you make a voluntary arrangement with your creditors or (being an individual or firm) become bankrupt or (being a company) become subject to an administration order or go into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
- an encumbrancer takes possession, or a receiver is appointed, of any of your property or assets; or
- you cease or threaten to cease, to carry on business; or
- we reasonably apprehend that any of the events mentioned above is about to occur in relation to you and notify you accordingly.
- If this Condition applies then without prejudice to any other right or remedy available to us we shall be entitled to suspend work, delay or withhold delivery under or cancel the contract without any liability to you 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. In the event of failure to immediately pay for the Goods, we shall be entitled to exercise our rights under Condition 12 to enter onto your premises and take possession of the Goods.
- Any notice given hereunder must be in writing and may be effected by either facsimile transmission, by personal delivery or by registered postage and (subject in each case to proof that such notice was properly addressed and despatched) if effected by post shall deemed to be received 48 hours after the date of posting (excluding Saturdays, Sundays and bank and public holidays and excluding the day of posting).
- Notices delivered by hand shall be deemed delivered on the day of delivery. A notice sent by facsimile transmission on a working day prior to 4 p.m. shall be deemed to be served that day and otherwise on the next working day.
- Communications addressed to us shall be marked for the attention of the Operations Director.
- Communications to us shall be sent to our registered office, or such other address as we may notify to you from time to time.
- Communications to you shall be sent to your registered office (if a company) or (in any other case) to any address set out in any communication received from you or such other address as you may notify to us.
18. EXPORT TERMS
- In this Condition, the following meanings shall apply:-“Named Port” means in the case of export from the United Kingdom the port in England notified to the Company with sufficient notice by the Buyer and which is acceptable to the Company for delivery of the Goods;“Named Vessel” means in the case of export from the United Kingdom the vessel lying at the Named Port notified to the Company with sufficient notice by the Buyer and which is acceptable to the Company for delivery of the Goods.
- Where the Goods are being exported from the United Kingdom the following additional Conditions shall also apply.
- In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when this 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 Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
- Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 18 shall (subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstanding any other provision of these Conditions.
- 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.
- Unless otherwise agreed in writing between the Buyer and the Company the Goods shall be delivered “Free on Board” (“FOB”) from the sea port of shipment and the Company shall be under no obligation to give notice under section 32 (3) of the Sale of Goods Act 1979. The Goods shall be delivered to the Buyer by delivery on board the Named Vessel lying at the Named Port on the date for delivery. The Company shall promptly notify the Buyer that the Goods have been delivered aboard. Title to and risk in the Goods shall pass to the Buyer upon such delivery being effected. The Company shall promptly provide the Buyer with a clean shipped bill of lading in respect of the Goods. The Buyer shall reserve the necessary space on board the Named Vessel and give the Company due notice of the loading berth and any revised delivery dates to the Named Vessel. The Buyer shall bear any additional costs caused due to the failure of the Named Vessel to be available to load the Goods on the date for delivery.
- The Buyer shall be responsible for arranging for 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 inspection and which is made after shipment, or in respect of any damage during transit.
- Unless otherwise agreed in writing between the Buyer and the Company payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Buyer in favour of the Company and confirmed by a bank in England acceptable to the Company or, if the Company has agreed in writing (such written agreement to be signed by a director of the Company on behalf of the Company on or before acceptance of the Buyer’s order to waive this requirement), by acceptance by the Buyer and delivery to the Company of a bill of exchange drawn on the Buyer payable 60 days after sight to the order of the Company at such branch of Barclays Bank in England as may be specified in the bill of exchange.
19. NO ASSIGNMENT
The Contract shall be personal to you and shall not nor shall any rights under it be assigned by you without our written consent. We may assign or subcontract any of our rights or obligations to any other Bartuf group company.
20. NO WAIVER
No failure or delay by us in enforcing any provision of this Contract shall be construed as a waiver of our rights. No waiver by us of any breach of the Contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.
21. GOVERNING LAW
The Contract (and these Conditions) shall be governed by and construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the English Courts.
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
23. THIRD PARTY RIGHTS
The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.