Terms & Conditions
1 Definitions and interpretation
1.1 In these Conditions the following definitions apply:
Business Day means a day other than a Saturday, Sunday or bank or public holiday in England;
Conditions means the Supplier’s terms and conditions of
sale set out in this document;
Contract means the agreement between the Supplier and the Customer for the sale and purchase of Goods incorporating these Conditions and the Order;
Customer means the person who purchases the Goods from the Supplier and whose details are set out in the Order;
Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
Goods means the goods to be supplied by the Supplier to the Customer as outlined in the Order;
Location means the address for delivery of the Goods as set out in the Order;
Order means an order for the Goods from the Supplier placed by the Customer in substantially the same form set out in the Supplier’s sales order form or any other written form that the Customer and Supplier may agree from time to time;
Price has the meaning given in clause 3.1;
Supplier means Inkjet Monkey Limited (Company number
08249718); and
VAT means value added tax under the Value Added
Taxes Act 1994.
1.2 In these Conditions, unless the context requires otherwise:
1.2.1 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.2 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.3 a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.4 words in the singular include the plural and vice versa; and
1.2.5 any words that follow ‘include’, ‘includes’,
‘including’, ‘in particular’ or any similar words
and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.
2 Application of these Conditions
2.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms and conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
2.4 The Customer may at any time provide an Order to the
Supplier.
2.5 An Order will constitute an offer by the Customer to purchase the Goods.
2.6 The Supplier may accept or reject an Order at its discretion. An Order will not be accepted, and no binding obligation to supply any Goods shall arise, until the earlier of:
2.6.1 the Supplier’s written acceptance of the
Order; or
2.6.2 the Supplier dispatching the Goods or notifying the Customer that they are available for collection (as the case may be); or
2.6.3 the Supplier submitting an invoice to the
Customer in respect of any such Goods.
2.7 Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.8 The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Goods and are incapable of being accepted by the Customer.
2.9 Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract.
3 Price
3.1 The price for the Goods shall be as set out in the Order or, in default of such provision, shall be calculated in accordance with the Supplier’s standard rates in force from time to time before the date the Order is made (Price).
3.2 The Prices are exclusive of:
3.2.1 packaging, delivery, and insurance which shall be charged in addition at the Supplier’s standard rates, and
3.2.2 VAT (or equivalent sales tax).
3.3 The Customer shall pay any applicable VAT to the
Supplier on receipt of a valid VAT invoice.
3.4 The Supplier may increase the Prices at any time by giving the Customer not less than 15 Business Days’ notice in writing provided that such increase is reasonable taking into consideration the prior Price..
3.5 Notwithstanding clause 3.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Goods which exceeds a reasonable amount and which is due to any factor beyond the control of the Supplier.
4 Payment
4.1 The Supplier may invoice the Customer for the Goods at any time.
4.2 The Customer shall pay all invoices:
4.2.1 in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice or in advance when the Order has been accepted; and
4.2.2 to the bank account nominated by the
Supplier.
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
4.3.1 the Supplier may, without limiting its other rights, charge interest on such sums at 5% a year above the base rate of HSBC Bank plc from time to time in force, and
4.3.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
5 Delivery
5.1 Written acceptance of the Order shall specify whether:
5.1.1 the Goods are to be delivered by the Supplier or a carrier appointed by the Supplier to the Location; or
5.1.2 the Goods are made available for collection by the Customer at the Supplier’s or carrier’s premises: whereby the Customer will collect the Goods within a specified time as notified to the Customer by the Supplier.
5.2 The Goods shall be deemed delivered:
5.2.1 if delivered by the Supplier under clause 5.1.1, on arrival of the Goods at the Location; or
5.2.2 if delivered by a third party carrier under clause 5.1.1, on delivery of the Goods by the Supplier to the carrier; or
5.2.3 if collected by the Customer under clause
5.1.2, when the Supplier makes the Goods available for collection at the Supplier’s, or carrier’s premises (as the case may be).
5.3 The Customer shall not be entitled to reject any delivery of Goods on the basis that an incorrect volume of Goods has been supplied.
5.4 The Goods may be delivered by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to reject or cancel any other instalment.
5.5 Time of delivery is not of the essence. The Supplier shall use its reasonable endeavours to meet delivery dates but such dates are approximate only.
5.6 The Supplier shall not be liable for any delay in or failure of delivery caused by:
5.6.1 the Customer’s failure to: (i) make the Location available, (ii) prepare the Location as required for delivery; or (iii) provide the Supplier with adequate instructions for delivery;
5.6.2 the Customer’s failure to collect the Goods from the Supplier’s premises; or
5.6.3 Force Majeure.
5.7 If the Customer fails to accept delivery of the Goods the Supplier shall store and insure the Goods pending delivery, and the Customer shall pay all costs and expenses incurred by the Supplier in doing so.
5.8 If 20 Business Days following the due date for delivery or collection of the Goods, the Customer has not taken delivery of the Goods or collected them, the Supplier may resell or otherwise dispose of the Goods. The Supplier shall:
5.8.1 deduct storage charges at the Supplier’s then- applicable rate and reasonable costs of resale; and
5.8.2 account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the Price paid by the Customer for the Goods.
6 Risk
Risk in the Goods shall pass to the Customer on
Delivery.
7 Title
7.1 Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for all monies and debts owed by the Customer to the Supplier.
7.2 Until title to the Goods has passed to the Customer, the
Customer shall:
7.2.1 hold the Goods as bailee for the Supplier;
7.2.2 take all reasonable care of the Goods and keep them in the condition in which they were delivered;
7.2.3 take all reasonable care of the Goods and keep them in the condition in which they are to be delivered as detailed in the Order;
7.2.4 on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.
7.3 Notwithstanding clause 7.2, the Customer may use or resell the Goods in the ordinary course of its business
until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses 12.1 and/or 12.2 has occurred or is likely to occur.
7.4 If the Customer resells the Goods in accordance with clause 7.3, title to the Goods shall pass to the Customer immediately prior to the resale.
7.5 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 12.1 and/or 12.2, the Supplier may:
7.5.1 require the Customer to re-deliver the Goods to the Supplier; and
7.5.2 if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
8 Warranty
8.1 The Supplier warrants that the Goods will at the time of
Delivery:
8.1.1 conform in all material respects to the Order;
8.1.2 be of a quality which goods of a similar purpose are used.
8.2 The Customer warrants that it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs.
8.3 Where the Goods do not conform to the warranty in clause 8.1, the Supplier may at its own option, repair, replace or refund the Price of, any such Goods, provided:
8.3.1 the Customer serves a written notice on the Supplier during the period of 5 Business Days of Delivery;
8.3.2 provides the Supplier with sufficient information as to the nature and extent of the defects and the uses to which the Goods had been put prior to the defect arising;
8.3.3 gives the Supplier a reasonable opportunity to examine the defective Goods; and
8.3.4 returns the defective Goods to the Supplier at
the Customer’s expense.
8.4 The provisions of these Conditions, including the warranties set out in clause 8.1, shall apply to any Goods that are repaired or replaced with effect from Delivery of the repaired or replaced Goods.
8.5 The Supplier shall not be liable for any failure of the
Goods to comply with clause 8.1:
8.5.1 where such failure arises by reason of wear and tear, wilful damage, negligence;
8.5.2 to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;
8.5.3 to the extent caused by the Supplier following any specification or requirement of the Customer in relation to the Goods;
8.5.4 where the Customer modifies any Goods without the Supplier’s prior consent or, having received such consent, not in accordance with the Supplier’s instructions; or
8.5.5 where the Customer uses any of the Goods after notifying the Supplier that they do not comply with clause 8.1.
8.6 Except as set out in this clause 8:
8.6.1 the Supplier gives no warranties and makes no representations in relation to the Goods; and
8.6.2 shall have no liability for their failure to comply with the warranty in clause 8.1,
and all warranties and conditions (including the conditions implied by ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
9 Indemnity and insurance
9.1 The Customer shall indemnify the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses which the Supplier may suffer or incur directly or indirectly from the Customer’s breach of any of its obligations under the Contract.
9.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
10 Limitation of liability
10.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 10.
10.2 Subject to clause 10.5, the Supplier’s total liability shall not exceed the replacement value of the Goods.
10.3 Subject to clause 10.5, the Supplier shall not be liable for consequential, indirect or special losses.
10.4 Subject to clause 10.5, the Supplier shall not be liable for any of the following (whether direct or indirect):
10.4.1 loss of profit;
10.4.2 loss of data;
10.4.3 loss of use;
10.4.4 loss of production;
10.4.5 loss of contract;
10.4.6 loss of opportunity;
10.4.7 loss of savings, discount or rebate (whether actual or anticipated);
10.4.8 harm to reputation or loss of goodwill.
10.5 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
10.5.1 death or personal injury caused by negligence;
10.5.2 fraud or fraudulent misrepresentation;
10.5.3 any other losses which cannot be excluded or limited by applicable law.
11 Force Majeure
11.1 Neither party shall have any liability under or be deemed to be in breach of these Conditions for any failure for non-performance of their obligations as a result of force majeure. The party subject to a force majeure event will promptly notify the other party in writing which such the event causes a delay or failure in performance and when it is expected to cease.
12 Termination
12.1 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if:
12.1.1 the Customer commits a material breach of the Contract and such breach is not remediable, in which case the Contract shall be terminated immediately;
12.1.2 the Customer commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach, in which case the Contract shall terminate at the expiry at the 14 days’ period;
12.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 10 days after the Supplier has given notification that the payment is overdue, as which case the Contract shall terminate at the expiry of the
10 days’ period.
12.2 The Supplier may terminate the Contract at any time with an immediate effect by giving notice in writing to the Customer if the Customer:
12.2.1 stops carrying on all or a significant part of its business, or indicates in any way of its intention to do so;
12.2.2 is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if the Supplier believes this to be the case;
12.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
12.2.4 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
12.2.5 has a resolution passed for its winding up;
12.2.6 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
12.2.7 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
12.2.8 has a freezing order made against it;
12.2.9 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items.
12.3 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 12, it shall immediately notify the Supplier in writing.
12.4 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
12.5 On termination of the Contract for any reason:
12.5.1 the Customer will pay all outstanding invoices of the Supplier;
12.5.2 the Suppler will promptly invoice the Customer for all Goods delivered but not yet invoiced and payment for such invoices will be due immediately;
12.5.3 the Customer will within 5 Business Days return any material of the Supplier in its possession or control; if it fails to do so, the Supplier will be entitled to enter the Customer’s premises and take back possession of the material.
13 Notices
13.1 Notices shall be in writing and sent to the Supplier’s registered office. Notices may be given, or deemed received by first class post: two Business Days after posting; or by hand: on delivery.
13.2 This clause does not apply to notices given in legal proceedings or arbitration. A notice given by email is not validly served.
14 Set off
14.1 Except as expressly set out in the Conditions, the Customer must pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
15 Entire Agreement
15.1 The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of the subject matter.
15.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
16 Third party rights
16.1 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
17 Severance
17.1 If any provision of the Contract is or becomes illegal, invalid or unenforceable, the legality and enforceability of the other provisions of the Contract shall not be effected.
18 Waiver
18.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law shall under the Contract operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any further exercise of that or any other right, power or remedy provided by the law under the Contract, nor shall it prevent any further exercise of it or the exercise of any other right, power or remedy.
19 Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
20 Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).