STANDARD TERMS AND CONDITIONS FOR SUPPLY OF GOODS AND SERVICES TO CONSUMERS OF Hampshire Flag Company Ltd
1 DEFINITIONS AND INTEPRETATION
- In these Conditions the following words shall have the following meanings:
“Agreement”: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions and the terms of any applicable Specification Document;
“Business Days”: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
“Conditions”: these terms and conditions as amended from time to time in accordance with clause 20 (Entire Agreement);
“Customer”: the individual who purchases Goods and/or Services from the Supplier;
“Delivery Location” has the meaning given in clause 5.1;
“Goods”: the goods (or any part of them) set out in the Specification Document;
“Order”: the Customer’s order to the Supplier for the supply of Goods and/or Service and as provided in the Specification Document;
“Order Confirmation”: the Supplier’s written acceptance of the Order, including an estimated date and time for the despatch of the Goods and/or commencement of the Services.
“Intellectual Property Rights”: all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future wherever in the world;
“Price”: the price for the supply of Goods and/or Services as set out in the Specification Document;
“Services”: the services supplied by the Supplier to the Customer as set out in the Specification Document;
“Specification Document”: a statement of work, quotation or other similar document describing the Goods and/or the Services, the Price and the Delivery Location, to be provided by the Supplier; and
“Supplier”: Hampshire Flag Company Limited (company no: 04359902), whose registered office is at Unit 11 Pipers Wood Industrial Park, Waterberry Drive, Waterlooville, Hampshire PO7 7XU.
1.2 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.3 A reference to “writing” or “written” excludes fax but includes email.
2 BASIS OF CONTRACT
2.1 These Conditions shall apply to this Agreement and all other contracts for the supply of the Goods and/or Services by the Supplier to the Customer.
2.2 Before the supply of the Goods and/or commencement of the Services the Supplier shall submit to the Customer a Specification Document. Before submitting the Order, the Customer shall notify the Supplier immediately if the Customer does not agree with the contents of the Specification Document. All Specification Documents shall be subject to these Conditions.
2.3 The Order is an offer by the Customer to enter into a binding contract, which the Supplier is free to accept or decline at its absolute discretion. These Conditions shall become binding on the Customer and the Supplier when the Supplier issues the Customer with an Order Confirmation, at which point and on which date the Agreement shall come into existence.
2.4 The Supplier shall use its reasonable endeavours to deliver the Goods and/or complete the Services within estimated time frames but time shall not be of the essence in the delivery of the Goods and/or performance of any Services.
2.5 These Conditions apply to the Agreement. The Customer should read these Conditions carefully before submitting an Order. These Conditions tell the Customer who the Supplier is, how the Supplier will provide the System and/or Services to the Customer, how the Customer and the Supplier may change or end the Agreement, what to do if there is a problem and other important information. If the Customer believes that there is a mistake in these Conditions, the Customer should contact the Supplier to discuss.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3 PRICE AND PAYMENT
3.1 Subject to clause 3.2, the price for the Goods and/or the Services shall be the Price, which shall be inclusive of VAT.
3.2 If an error regarding the Price is noticed by the Customer and/or Supplier in the Specification Document, then the Supplier may issue a new Specification Document to reflect the correct Price.
3.3 The Supplier may, subject to the Customer’s prior approval, increase the Price by giving notice to the Customer at any time before delivery of the Goods and/or completion of the Services, to reflect any increase in the cost of the Goods and/or Services to the Supplier that is due to:
3.3.1 any factor beyond the control of the Supplier (including increases in taxes and duties, and increases in labour, materials and other manufacturing costs); or
3.3.2 any request by the Customer to change the Specification Document.
If such increase in the Price is not acceptable to the Customer, the Customer and the Supplier shall have the right to terminate the Agreement.
3.4 The Supplier reserves the right to increase the Price, by giving notice to the Customer at any time before delivery of the Goods and/or completion of the Services, to reflect any increase in the cost of the Goods and/or Services to the Supplier that is due to any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
3.5 Payment of the Price shall be payable at the time of placing the Order.
4 SPECIFICATION OF THE GOODS
4.1 All Goods shall be required only to conform to the specification in the Specification Document.
4.2 All specifications are approximate only and are subject to normal margins of tolerance for the materials and manufacture of the Goods in question. The Goods’ true colour may not exactly match that shown on the Customer’s device or in the Supplier’s marketing or its packaging may be slightly different.
4.3 Any Specification Document given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
5.1 Subject to clause 5.2, the Supplier shall deliver the Goods to the location set out in the Specification Document or such other location as the parties may agree (“Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready.
5.2 The Customer may also collect the Goods from the Supplier’s premises if mutually agreed between the Supplier and Customer at any time after the Supplier notifies the Customer that the Goods are ready.
5.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location, or when the Customer collects the Goods at the Supplier’s premises.
5.4 Delivery of the Goods may be completed in instalments if required. If applicable, this will be agreed with the Customer before the first delivery takes place. Each delivery shall constitute a separate contract and our failure to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more shall not entitle the Customer to treat the Agreement as a whole as repudiated.
5.5 The date of delivery specified by the Supplier is an estimate only. Time for delivery shall not be of the essence of the contract and the Supplier shall not be liable for any delay in delivery of the Goods that is caused by an event outside of the Supplier’s reasonable control or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6 If the Customer fails to accept delivery of the Goods, or collect the Goods, on two separate occasions of the Supplier attempting to deliver the Goods to the Customer, or notifying the Customer the Goods are ready for collection, then except where such failure or delay is caused by an event outside of the Supplier’s reasonable control or by the Supplier’s failure to comply with its obligations under the Agreement in respect of the Goods:
5.6.1 delivery of the Goods shall be deemed to have been completed at the time of the second attempt to deliver the Goods by the Supplier to the Customer, or the time of the second notice provided by the Supplier to the Customer that the Goods are ready for collection; and
5.6.2 the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance and a redelivery charge).
5.7 Any delivery costs will be included in the Price.
6 TITLE AND RISK
6.1 All risk in the Goods shall pass to the Customer upon delivery.
6.2 Title in the Goods shall not pass to the Customer until the Supplier has been paid in full for the Goods.
7 CUSTOMER`S OBLIGATIONS
7.1 To enable the Supplier to perform its obligations under this Agreement the Customer shall:
7.1.1 co-operate with the Supplier in all matters relating to the delivery of the Goods and/or provision of the Services;
7.1.2 provide the Supplier with any information and materials as reasonably required by the Supplier, and ensure that such information is complete and accurate in all material respects;
7.1.3 obtain all necessary licences, permissions and consents which may be required before the commencement of the Services;
7.1.4 ensure that the terms of the Specification Document and any information it provides in it is complete and accurate;
7.1.5 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services; and
7.1.6 comply with such other requirements as may be set out in the Specification Document or otherwise agreed between the parties.
7.2 The Customer shall be liable to compensate the Supplier for any costs or expenses incurred by the Supplier as a result of the Customer’s failure to comply with clause 7.1 (“Customer Default”).
7.3 Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Customer terminates the Agreement otherwise than in accordance with clause 13 (Termination) or any applicable law, or cancels the Goods and/or Services, the Customer shall be required to pay to the Supplier
the full amount of any costs incurred by the Supplier, including third party costs to which the Supplier has incurred or is committed to, at the date of termination.7.4 In the event that the Customer or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, or the Customer commits a Customer Default, then the Supplier shall notify the Customer as soon as possible and:
7.4.1 the Supplier shall have no liability for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform its obligations under the Agreement, including the completion of the Services; and
7.4.2 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies such acts or omissions (including the Customer Default where applicable), and to rely on the default (including the Customer Default where applicable) to relieve it from the performance of any of its obligations in each case to the extent the default (including the Customer Default where applicable) prevents or delays the Supplier’s performance of any of its obligations, and if applicable, the timetable for the delivery of the Goods and/or completion of the Services will be modified accordingly.
8 ALTERATIONS TO THE SPECIFICATION DOCUMENT
8.1 The parties may at any time mutually agree upon and execute a new Specification Document. Any alterations in the scope of the Goods and/or Services to be provided under this Agreement shall be set out in the new Specification Document, which shall reflect the changed Goods and/or Services, the new Price and any other terms agreed between the parties.
8.2 The Customer may at any time request alterations to the Specification Document by notice in writing to the Supplier. On receipt of the request for alterations the Supplier shall, within 5 Business Days (or such other period as may be agreed between the parties), advise the Customer by notice in writing of the effect of such alterations, if any, on the Price and any other terms already agreed between the parties.
8.3 Where the Supplier gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 Business Days of receipt of such notice (or such other period as may be agreed between the parties), advise the Supplier by notice in writing whether or not it wishes to proceed.
8.4 Where the Supplier gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes to proceed on those terms, the Specification Document shall be amended to reflect such alterations and thereafter the Supplier shall perform this Agreement upon the basis of such amended terms.
9 RETURNS – NON-CUSTOM GOODS ONLY
9.1 Notwithstanding clause 12.2, for non-custom Goods only, if the Customer is not satisfied with the Goods, the Customer may return the Goods to the Supplier at the Customer’s own cost for a full refund (excluding any original delivery fees unless the Goods are faulty) upon receipt of returned Goods by the Supplier, if:
9.1.1 the Goods are returned to the Supplier within 30 days after Delivery; and
9.1.2 the Goods are unused and in their original condition (including packaging).
9.2 The Customer also has the option for an exchange, subject to clauses 9.1.2 and 9.2.2, for Goods at a price not exceeding the Price.
10.1 The Supplier warrants that as from the date of delivery for a period of 30 days or subject to specific types of Goods and all their component parts, where applicable, are free from any material defects in design, workmanship, construction or materials.
10.2 The Supplier warrants that the Services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
10.3 Except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the Goods and/or the Services to be provided by the Supplier.
11 INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement, including in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall, so far as not already vested, become the absolute property of the Supplier, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.
11.2 To the extent that the Goods and/or Services are to be provided in accordance with any documents, information, items, drawings and materials in any form (whether owned by the Customer or a third party) (“Customer Materials”) supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Customer Materials. This clause 11.2 shall survive termination of the Agreement.
12 LIMITATION OF LIABILITY
12.1 Subject to clause 12.4, the total liability of the Supplier to the Customer under this Agreement, whether or not arising out of negligence, shall be limited to £1,000,000 (one million pounds).
12.2 In no event shall the Supplier be liable to the Customer for:
12.2.1 any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of the Supplier’s breach or if they were contemplated by the Customer and the Supplier at the time Agreement was entered into;
12.2.2 any imperfections of a minor or insignificant nature;
12.2.3 any defect arising because the Customer failed to follow the Supplier’s or any third party manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods;
12.2.4 any defect arising as a result of the Supplier following any drawing, design or specification supplied by the Customer;
12.2.5 the Customer altering or repairing such Goods without the written consent of the Supplier;
12.2.6 any defect arising as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; and
12.2.7 the Goods differing from the Specification Document as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
12.3 The Supplier only supplies the Goods for domestic and private use. The Customer agrees not to use the Goods for any commercial, business or re-sale purposes, and the Supplier has no liability to the Customer for any loss of profit, loss of business, business interruption, or loss of business opportunity.
12.4 Nothing in these Conditions shall exclude or limit the Supplier’s liability for:
12.4.1 death or personal injury resulting from the Supplier’s negligence or that of its employees, agents or sub-contractors; or
12.4.2 fraud or fraudulent misrepresentation.
13.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement immediately by notice in writing to the other party if:
13.1.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 days of being given written notice from the other party to do so;
13.1.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
13.1.3 the other party (in the case of a company) passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
13.1.4 the other party (in the case of a company) ceases to carry on its business or substantially the whole of its business;
13.1.5 the other party (in the case of a company) is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets; or
13.1.6 the other party (in the case of an individual) is the subject of a bankruptcy petition, application or order.
13.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement on the due date for payment.
14 EVENTS OUTSIDE OF A PARTY’S REASONABLE CONTROL Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from an event outside of its reasonable control, including acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, pandemic, epidemic or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events. If the period of delay or non-performance continues for three months, the party not affected may terminate the Agreement by giving 14 days’ written notice to the affected party.
15 SUB-CONTRACTORS The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Specification Document.
16 ASSIGNMENT The Customer shall not be entitled to assign their rights or obligations or delegate their duties under this Agreement without the prior written consent of the Supplier.
17 SEVERABILITY If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
18 WAIVER The failure by either party to enforce at any time or for any period any one or more of the terms of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all any other terms of this Agreement.
19.1 If the Customer wishes to contact the Supplier in writing, or if any clause in these Conditions requires the Customer to give the Supplier notice in writing, the Customer can send this to the Supplier by hand or by pre-paid post to Hampshire Flag Company Limited, Unit 11 Pipers Wood Industrial Park, Waterberry Drive, Waterlooville, Hampshire PO7 7XU, or by email to email@example.com. The Supplier will confirm receipt of this by contacting the Customer in writing.
19.2 If the Customer wishes to contact the Supplier by telephone, the Supplier’s contact number is 02392 237130.
19.3 If the Supplier has to contact the Customer or give the Customer notice in writing, the Supplier will do so by e-mail, by hand, or by pre-paid post to the address or email address the Customer provides to the Supplier in the Order.
21 NO THIRD PARTIES The Agreement is between the Supplier and the Customer only. Nothing in this Agreement is intended to, nor shall it confer any rights on a third party to enforce any term of the Agreement.
22 GOVERNING LAW AND JURISDICTION This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.