CONDITIONS OF BUSINESS
1.1 ln these Conditions
'BUYER' means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller
'GOODS' means the goods (including any instalment of the goods or any parts for them) specified in the order or in the accepted quotation.
'SELLER' means Zyro LTD (registered in England and Wales under number 3060232)
'CONDITIONS' means the terms and conditions of the contract set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between the Buyer and the Seller.
'CONTRACT' means the contract for the purchase and sale of the Goods.
'WRITING' includes any document, letter, fax, and e mail
1.2 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.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to the contract shall take effect unless agreed in Writing between the Buyer and the Seller.
2.3 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is acted upon entirely at the Buyer's own risk, and the Seller shall not be liable for any advice or recommendation which is not so confirmed.
2.5 Any clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3 Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller's authorised representative.
3.2 The Buyer shall be responsible to the Seller for the accuracy of the terms of any order and/or specification submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract.
3.3 The quantity, quality and description of and any specification for the Goods shall be as set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
3.6 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 the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4 Price of the Goods
4.1 The price of the Goods ("the price") shall be the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's published price list current at the date of acceptance of the order.
All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all orders over £150 trade value are Carriage Paid (to include without limitation, transport, packaging and insurance). Orders under £150 trade value are subject to a minimum carriage charge of £5.00.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5 Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller may invoice the Buyer for the price on or at any time after delivery of the Goods unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller may invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or the Seller has tendered delivery of the Goods.
5.2 Provided no previous invoice is overdue at any time during the 14 day period following the date of the Seller's invoice, the Buyer shall be entitled to a prompt payment discount of 2.5 per cent of the price (excluding Value Added Tax) for payment within 14 days of the date of the Seller's invoice.
5.3 The Buyer shall pay the price without deduction except any discount to which the Buyer is entitled, within 30 days of the date of the Seller's invoice. The Seller shall be entitled to recover the price, although delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time for payment of the price shall be of the essence of the Contract.
Receipts for payment will be issued only upon request.
5.4 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:
5.4.1 Cancel the contract or suspend any further deliveries to the Buyer;
5.4.2 Appropriate any payment made by the Buyer to such of the Goods (or goods 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
5.4.3 (As an alternative and without prejudice to the Seller's statutory rights) charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 2 per cent per month (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Delivery of the Goods ("delivery") shall be made by the Seller or the Seller's duly authorised agent delivering the goods at the Buyer's premises or, such other place as is agreed by the Seller.
6.2 Any dates quoted for Delivery are approximate only and the Seller shall not be liable for any delay in Delivery however caused. Time for Delivery shall not be of the essence of the contract. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Buyer fails to take Delivery or fails to give the Seller adequate delivery instructions at the time stated for delivery (except for a reason beyond the Buyer's reasonable control or because of the sellers fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.4.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.4.2 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Price or charge the Buyer for any shortfall below the Price.
7 Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 In the case of Goods to be delivered at the Buyer's premises, at the time of delivery; or
7.1.2 In the case of Goods to be delivered otherwise than at the Buyer's premises, at the time of delivery or, if the Buyer wrongfully fails to take Delivery, the time when the Seller has tendered Delivery.
7.2 Notwithstanding Delivery and the passing of risk in the Goods, or any other provision of these Conditions, ownership of the Goods (both legal and equitable) shall not pass to the Buyer until the Seller has received the price in cleared funds and payment for all other goods agreed to be sold by the Seller to the Buyer for which payment is then due
7.3 Until such time as ownership of the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, insured and identified as the Seller's property. The Buyer shall not remove any identifying marks placed on the Goods by the Seller.
7.4 Notwithstanding that the Buyer may hold the Goods in a fiduciary capacity only, the Seller shall allow the Buyer to use the Goods in its normal course of business and to sell and deliver the Goods to third parties, provided that the Buyer shall account to the Seller for the Goods or that part of the proceeds of sale or otherwise of the Goods whether tangible or intangible, including insurance proceeds, which is equivalent to the price at which the Goods were invoiced to the Buyer.
7.5 Until ownership of the Goods passes to the Buyer and provided the Goods are still in existence and have not been resold, the Seller shall be entitled at any time to require the Buyer forthwith to deliver up the Goods to the Seller and is hereby irrevocably authorised by the buyer, to repossess the goods and to enter upon any premises of the Buyer or any other premises as agent for and at the risk of the buyer for that purpose
7.6 The Buyer may not charge by way of security for any indebtedness any of the Goods which remain in the ownership of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
7.7 Any receiver, administrative receiver, administrator or liquidator appointed over the assets of the Buyer shall pay into a separate bank account for the sole benefit of the Seller any sums received from third parties in respect of the Goods by up to the amount of any indebtedness of the Buyer to the Seller under the Contract.
7.8 Risk in any Goods rejected by the Buyer shall continue to remain with the Buyer until such time as the Seller takes possession thereof.
8 Warranties and Liability
8.1 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer within the meaning of the Unfair Contract Terms Act 1977, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.2 Where the Goods are sold under a consumer transaction as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected by these Conditions.
8.3 The Buyer shall inspect the Goods immediately on delivery and shall within three working days from such inspection or within three working days from the date of the related invoice whichever is the later, give notice to the Seller of any allegation that the Goods or the related invoice are not in accordance with the Contract. If the Buyer fails to give such notice, the Goods and the related invoice shall be deemed in all respects in accordance with the Contract and the Seller shall have no liability for such defect or failure and the Buyer shall be bound to accept and pay for the same.
8.4 Where any valid claim 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 the Sellers Returns Procedure, the Seller may at its sole discretion repair/replace the Goods (or the part in question) free of charge or, give a credit note to the Buyer for the whole or a proportionate part of the price, and shall have no further liability to the Buyer.
8.5 In the event that the Buyer without alleging any defect or fault in the Goods seeks to return them to the Seller, then the Seller may (a) in its sole discretion accept return of the Goods on payment from the Buyer of a handling charge of 15 per cent of the price; and (b) Provide the buyer with a credit note for the balance of the price if already paid.
8.6 Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation, or express or implied warranty, condition or other term, or any duty at common law, for any consequential loss or damage (including loss of profit), costs, expenses or other claims for consequential compensation whatsoever in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.7 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 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:
Act of God, explosion, flood, tempest, fire or accident;
War or threat of war, sabotage, insurrection, civil disturbance or requisition;
Acts, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
Import or export regulations or embargoes;
Strikes, lock-outs or other industrial actions or trade disputes.
Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
Power failure or breakdown in machinery.
9 Conditions of sale
9.1 The Buyer hereby accepts that it is a continuing condition of the sale (breach of which shall be a breach of this contract whenever it occurs) that the Buyer shall not
9.1.1 Re-sell or otherwise dispose of the Goods to any purchaser other than
18.104.22.168 An end-user, or
22.214.171.124 A retailer who trades with the Seller under terms which are the same as these terms in all material respects, except with the prior written authority of the Seller and subject to the same conditions (mutatis mutandis) as in this paragraph 9 which shall be enforceable against the purchaser by the Seller;
9.1.2 sell the Goods through any outlet other than retail premises whether by physical sales or orders received at such premises or through a website which at all times clearly states the actual and trading names and the retail address of the Buyer;
9.1.3 alter, re-package or re-label the Goods or sell the Goods for alteration, re-packaging or re-labeling;
9.1.4 sell the Goods on e-bay;
9.1.5 sell the Goods under any other name or trademark than that applied to the Goods by the Seller.
9.2 The Buyer shall offer the Goods for sale only through retail outlets the full postal address of which has been notified in writing to the Seller.
10 Defaults by the Buyer
10.1 This clause applies if -
10.1.1 the Buyer is in breach of any term of these Conditions or any other contract with the Seller; or
10.1.2 any payment by the Buyer under the Contract becomes overdue, in whole or in part; or
10.1.3 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.4 an encumbrancer takes possession, or a receiver, administrative receiver or administrator (within the meaning of the Insolvency Act 1986) is appointed, of any of the undertaking, property or assets of the Buyer or
10.1.5 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.6 seller notifies the buyer that it reasonably apprehends that any of the events mentioned in sub-paragraphs 9. 1.1 to
9. 1.5 above is about to occur or
10.1.7 in the sole discretion of the Seller it appears to the Seller that the financial position unsatisfactory or impaired.
10.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller may treat the Contract as discharged or suspend any further deliveries under the Contract without any 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. If the Seller treats the Contract as discharged the Seller may repossess the Goods enter upon any premises as agent for and at the risk of the Buyer for that purpose.
10.3 If the Seller repossess the Goods, the Buyer shall be liable (notwithstanding the discharge of the Contract) to pay the difference between price and their value on repossession. If the Seller is entitled to repossess the Goods but is unable to do so for any reason whatsoever, the Buyer shall pay to the Seller the full price less in each case any amount previously paid by the Buyer for the Goods under the Contract.
11.1 Any notice given by either party shall be in writing addressed to the other party as its registered office or principal place of business or such other address as may at that time have been notified to the party giving the notice.
11.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 If any of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the rest of these provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4 This contract is not intended to and shall not confer a benefit on any third party whether under the contracts (Rights of Third Parties) Act of 1999 or otherwise
11.5 Except where injunctive relief is sought, the parties agree to use their best endeavours to resolve any dispute in connection with the sale of the goods by formal mediation prior to the start of any judicial process and to the extent that the dispute is not so resolved shall refer it to arbitration by a single arbitrator appointed on the application of either party by the president for the time being of the Chartered Institute of Arbitrators in England and Wales
11.6 The contract shall be governed by the laws of England and the parties submit to the non exclusive jurisdiction of the English courts