Standard Conditions of Sale
1. DEFINITIONS AND INTERPRETATION
In these Conditions, unless the context otherwise requires, the following definitions shall apply:
“Buyer” means the person whose order for the Goods is accepted by the Seller.
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) including any special terms and conditions agreed in writing between the Buyer and the Seller in accordance with clause 2.3.
“Contract” as defined in clause 2.1.
“Default” means any act, statement, omission, breach of obligation (whether expressed or implied, condition or warranty) contained in, precedent or collateral to the Contract, breach of duty under statute or at common law or negligence by or on the part of the Seller in connection with or arising out of the subject matter of the Contract in respect of which the Seller is legally liable to the Buyer. A number of defaults which together result in or contribute to substantially the same loss or damage shall be treated as one Default occurring on the date of the occurrence of the last such default.
“Designs” means as defined in clause 9.1.
“Goods” means the goods which the Seller is to supply in accordance with the Conditions.
“Order” as defined in clause 2.1.
“Seller” means My Action Replay Ltd (company number: 08348720), whose registered office is at The Engine Shed, Station Approach, Bristol, BS1 6QH.
“Services” means the services (including any installation works for the Goods or any part of them) described in the Order.
“Request” means an enquiry issued by the Buyer to the Seller regarding the purchase of Goods and / or Services.
“Quotation” means a quotation provided by the Seller to the Buyer.
“Website” means www.myactionreplay.com and all sub-domains and any related linked or affiliated websites owned or operated by the Seller.
2.1 The Buyer may issue to the Seller a Request at any time. On the receipt of such Request, the Seller may provide a Quotation. Such Quotation is for information only and does not constitute an offer to the Buyer which is capable of acceptance. A Quotation issued to the Buyer by the Seller may be withdrawn or varied at any time. The Buyer may then issue a written order based on the Quotation without change (“Order”). No Order shall be deemed to be accepted by the Seller unless and until accepted in writing (email sufficient). The Order and acceptance shall form a sales contract between the Seller and the Buyer (“Contract”) to which these terms and conditions apply.
2.2 Any reference to the Buyer’s terms and conditions will be deemed a deviation from the Quotation.
2.3 To the extent of any conflict between these Conditions and the provisions of the Contract, these Conditions shall prevail, unless (i) these Conditions expressly allow a deviation or (ii) the Contract expressly (a) sets out that the Buyer and the Seller wish to deviate from the Conditions and (b) identifies the provision from which it deviates.
2.4 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 costs of all labour and materials used) damages, charges and expenses incurred by the Seller as a result of cancellation.
3. PRICE AND PAYMENT TERMS
3.1 The price of the Goods and the Services shall be the Seller’s quoted price and, unless otherwise stated, shall be exclusive of VAT.
3.2 The Seller shall be entitled to invoice the Buyer with the price of the Goods on or at any time after delivery of the Goods, unless 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.
3.3 The Buyer shall pay the price of the Goods and / or Services not later than 30 days following the date of the invoice relating to the Goods and / or provision of the Services. The time of payment shall be of the essence of the Contract. All payments shall be made in full without deduction in respect of any set-off or counterclaim.
3.4 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
(a) cancel the Contract or suspend any further deliveries of Goods to the Buyer or further provision of the Services;
(b) appropriate any payment made by the Buyer to such of the Goods or Services (or the goods and / or services 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
(c) charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4% per annum over the base rate for the time being of [Barclays Bank PLC] (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) until payment is made.
4.1 Delivery of the Goods shall be made by the Seller to the Buyer’s premises at any time after the Seller has notified the Buyer that the Goods are ready for delivery or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
4.2 The Seller shall endeavour to deliver the Goods by the date quoted for delivery but such date is not guaranteed nor shall the time for delivery be of the essence unless previously agreed by the Seller in writing. The date quoted for delivery shall be extended by a reasonable period if there is any delay caused by industrial dispute or by any cause beyond the reasonable control of the Seller. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
5. RISK AND PROPERTY
5.1 Risk of damage to or loss of the Goods shall pass to the Buyer 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.
5.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Contract, 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.
5.3 The provisions set out in this clause shall be without prejudice to the obligation of the Buyer to purchase the Goods.
6. NOTIFICATION OF CLAIMS
6.1 Any claim for non-delivering of any Goods shall be notified in writing by the Buyer to the Seller within 7 days of the date of the Seller’s invoice.
6.2 Any claim which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
6.3 If delivery is not refused, and the Buyer does not notify the Seller of any claim in accordance with the provisions of this clause, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defects or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
7. WARRANTIES, LIABILITIES AND REMEDIES
7.1 The Seller warrants that:
(a) the Goods will correspond in all material respects with their description at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire; and
(b) it will use reasonable endeavours to provide the Services in accordance with any specifications and timeframes set out in the Order (any time frames being estimates only and time for performance by the Seller shall not be of the essence of the Contract).
7.2 The above warranties are given by the Seller subject to the following conditions:
(a) the Seller shall be under no liability in respect of any defects in the Goods or the provision of the Services arising from any drawing, design or specification supplied by the Buyer;
(b) the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, failure to follow the Seller’s instructions (whether oral or in writing), misuse, alteration, or repair of the Goods without the Seller’s approval;
(c) the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods and / or Services has not been paid by the due date for payment; and
(d) the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
7.3 Subject as expressly provided in these Conditions all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall, at its sole discretion, replace the Goods (or the part in question) free of charge or refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
7.5 LIABILITY AND REMEDIES
7.6 The Buyer acknowledges that it has entered into the Contract in reliance only on the representations, warranties promises and terms contained in the Contract and, save as expressly set out in the Contract, the Seller shall have no liability in respect of any other representation, warranty or promise made prior to the date of the Contract unless it was made fraudulently.
7.7 The Buyer shall inform the Seller of any Default and afford it reasonable opportunity to correct the Default.
7.8 In relation to any Default the Seller will accept unlimited liability for:
(a) death or personal injury caused by the negligence of the Seller; and
(b) anything else for which the Seller cannot at law limit or exclude its liability.
7.9 The Seller will accept liability for physical damage to the Buyer’s tangible property resulting from the Negligence of the Seller. The Seller’s liability under this sub-clause shall be limited to an amount equal to the value of any sums paid by the Buyer under the Contract
7.10 Except as provided in sub-clauses 7.8 and 7.9, the Seller will not be liable for the following loss or damage however caused/arising directly or indirectly out of any Default and even if foreseeable by the Seller:
(a) economic loss including administrative and overhead costs, loss of profits, business, contracts, revenues, goodwill, production and anticipated savings;
(b) loss arising from any claim made against the Buyer by any other person; or
(c) loss or damage arising from the Buyer’s failure to fulfil its responsibilities or any matter under the control of the Buyer.
7.11 Except for the liabilities accepted by the Seller under sub-clause 7.8and 7.9 the Seller’s entire liability in respect of all Defaults shall be limited to an amount equal to the value of any sums paid by the Buyer under the Contract.
8. FORCE MAJEURE
The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
(a) Act of God, explosion, flood, tempest, fire or accident;
(b) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or third parties);
(c) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(d) import or export regulations or embargos;
(e) difficulties in obtaining raw materials, labour, fuel, parts or machinery;
(f) power failure or breakdown in machinery.
9. INTELLECTUAL PROPERTY
9.1 The Goods include certain designs (the “Designs”) which are the property of the Seller. The Seller owns the copyright, design right and all other intellectual property rights in the Designs.
9.2 The Buyer agrees that the Designs may not be reproduced or used in any way except with the prior written consent of the Seller.
9.3 The Buyer agrees not to decompile or reverse engineer any of the Goods in which the Seller owns all intellectual property rights.
9.4 The copyright in the material contained in the Website, together with the website design, text and graphics, and their selection and arrangement, and all software compilations, underlying source code and software (including applets) belongs to the Seller, its subsidiaries or the providers of such information.
9.5 The Seller acknowledges and agrees that all copyright and any other intellectual property rights in any content (including but not limited to any videos) submitted to the Website shall be owned by the Buyer.
9.6 The Buyer shall grant a world-wide, perpetual, irrevocable, exclusive, assignable, royalty-free licence (with full right to sublicense including without limitation to any users of the Website) to use, reproduce, exploit (for advertising purposes or otherwise), modify, alter, prepare derivative works of, integrate with other works without restriction such content in any manner.
9.7 The Buyer warrants that it has the right to enter into the licence at clause 9.6.
9.8 The Buyer shall indemnify and keep the Seller indemnified against all costs, expenses, damages and demands incurred by the Seller through any alleged infringement of any third party intellectual property rights arising from the licence granted to the Seller at clause 9.6.
10. WEBSITE AND SOCIAL MEDIA CONTENT
10.1 The Seller will endeavour to allow uninterrupted access to the Website, but access may be suspended, restricted or terminated at any time.
10.2 The Seller makes no warranty as to the access to the Website or the availability of any videos on the Website for viewing at all times.
10.3 The Seller reserves the right to remove offending material or any other content placed on the Website.
10.4 The Buyer acknowledges and agrees that it will notify the Seller within a reasonable time period of its objection to any content or links posted, shared, uploaded or otherwise on the Website or any of the Buyer’s social media platforms which are managed by the Seller through the provision of the Services. The Seller shall use all reasonable endeavours to remove such content within a reasonable period after receipt of the Buyer’s notification.
11.1 On registering with us, you may be issued with a user names and passwords which may be necessary to access certain restricted parts of the Website, our mobile app and to use the Goods. The user name and password are personal to you and are not transferable.
11.2 Your user names and passwords are the methods used by us to identify you and so are very important. You are responsible for all content upload to the Website or to any social media platform by anyone using your user name and password. Any breach of security of a user name and password should be notified to us immediately.
The Buyer shall indemnify and keep the Seller indemnified against all costs, expenses, damages and demands incurred by the Seller in respect of:
(a) any alleged infringement of the patents, trade marks, copyright, design or other intellectual property rights used by the Seller at the request of the Buyer;
(b) any alleged breach or infringement of any statute or regulation concerning the preparation, marketing and distribution of the Goods and or Services;
(c) any alleged breach of any statute relating to trade descriptions or weights and measures where the Seller relies or has relied upon information relating thereto or labels provided by the Buyer, and the breach does not arise from the negligence or default of the Seller;
13. INSOLVENCY OF BUYER
13.1 This Clause applies if:
(a) the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing or threatening to cease to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(b) 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.
13.2 If this Clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries of Goods or provision of Services under the Contract without 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.
14.1 Any notice to either party under these Conditions shall be in writing signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be left at or sent by prepaid first class post, prepaid recorded delivery, telex or fax to the address of the party as notified in writing from time to time.
14.2 To the extent that any provision of these Conditions is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of these Conditions, it shall not affect the enforceability of the remainder of these Conditions nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
14.3 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
14.4 The headings in these Conditions are for convenience only and shall not affect their interpretation.
14.5 This Contract sets out the entire agreement and understanding between the parties supersedes all prior agreements, understandings or arrangements (whether oral or written) in respect of the subject matter of this Contract.
14.6 Exclusion of third party rights
Unless expressly provided in this Contract, no term of this Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
15. GOVERNING LAW AND JURISDICTION
15.1 These Conditions shall be governed by and construed in accordance with English law and each of the parties irrevocably submits for all purposes in connection with these Conditions to the exclusive jurisdiction of the courts of England.
Last updated 3rd August 2018