TANGLE TEEZER LTD BUSINESS TO BUSINESS STANDARD CONDITIONS OF SALE
THE CUSTOMER'S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CONDITION 9 AND CONDITION 10
1.1 In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business./p>
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with Condition 11.8.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods formed in accordance with Condition 2.1 of these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes, failure of energy sources or transport network, acts of God, war, terrorism, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
Goods: the goods set out in the Contract.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, rights to goodwill and to sue for passing off and unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Order: the Customer's order for the Goods, whether over the telephone or facsimile machine or by email to Supplier and whether or not using the Order Form.
Order Form: Supplier’s order form for Goods from time to time.
Specification: any specification for the Goods, including any related plans and drawings, that are agreed in writing by the Customer and the Supplier.
Specification Sheet(s): the Supplier’s specification sheets for the Goods from time to time which are available on request.
Supplier:Tangle Teezer Ltd (registered in England and Wales with company number 05396577) whose registered office is at 143 Acre Lane, London SW2 5UA.
Supplier’s Website: the website with url www.tangleteezer.com.
1.2 In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate. The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.2 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 The Contract constitutes the entire agreement between the parties in relation to its subject matter. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter, or advertising produced by or for the Supplier and any descriptions, photographs or illustrations contained on the Supplier's Website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 Supplier shall not be obliged to accept any Orders and reserves the right to withhold acceptance of any Order placed by the Customer.
3.1 The Goods are described in the Specification Sheets.
3.2 If the Goods or any part of them are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier in full and on demand 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 and other professional costs and expenses) suffered or incurred by the Supplier 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 Specification.
3.3 The Supplier reserves the right to amend the Specification of the Goods if required by any applicable statutory or regulatory requirements.
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 The Supplier shall arrange for delivery of the Goods to the location set out in the Contract or such other location as the parties may agree in writing or, if set out in the Contract, shall arrange for the Goods to be available for collection by or on behalf of the Customer at the location set out in the Contract or such other location as the parties may agree in writing (Delivery Location).
4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence of the Contract. Subject to Condition 9.1, the Supplier shall not be liable whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or failure to take delivery.
4.5 If the Supplier fails to deliver the Goods, subject to Condition 9.1, its liability whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.6 If the Customer fails to accept delivery of the Goods after two (2) attempts, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract, then the Goods shall be returned to Supplier and the Customer shall be charged for any costs relating to the delivery attempts and subsequent return to Supplier including insurance and storage costs.
4.7 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Contract invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered and this is verified by the Supplier.
4.8 The Supplier may deliver the Goods by instalments, which the Supplier shall invoice and the Customer shall pay separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment or Contract.
4.9 The Customer must notify the Supplier of any missing or defective Goods within 14 days of the date of delivery.
4.10 If the Customer elects to collect the goods from the Supplier’s Distribution Centre, a date must be nominated to a member of the logistics team. If the Customer becomes unable to collect on the date specified, the Supplier must be notified as soon as possible. The Supplier will use its best endeavours to hold the order for 24 hours. After that time, the order will be subject to a £200 holding charge.
5.1 The Supplier warrants that on delivery the Goods shall:
(a) be free from material defects in design, material and workmanship; and
(b) in all material respects conform with the description in the relevant Specification Sheet.
5.2 Subject to Condition 5.3, if:
(a) the Customer gives notice in writing to the Supplier within 7 days of discovery that some or all of the Goods do not comply with the warranty set out in Condition 5.1;
(b) the Supplier is given a reasonable opportunity of examining, and access to, such Goods to know that they have not been used and that they have been stored properly and in accordance with the Contract; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost, the Supplier shall, if the Goods do not comply with the warranty set out in Condition 5.1, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in Condition 5.1 if:
(a) the Customer makes any use of the Goods after giving notice in accordance with Condition 5.2;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, use and maintenance of the Goods, including the instructions on the packaging not to use the Goods with heat;
(c) the defect arises because the Customer generally did not store the Goods in a proper manner;
(d) the Customer alters the packaging or repairs the Goods without the prior written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage or negligence; or
(f) the Goods differ from the relevant Specification Sheet as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.6 The Goods must not be stored in direct sunlight.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Legal and beneficial title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall at its own cost from delivery:
(a) insure the Goods for their full replacement value with a reputable insurance company and ensure the Supplier’s interest in the Goods is noted on the policy;
(b) if the Goods are destroyed by an insured risk, hold the insurance proceeds separately from all other monies on trust for the Supplier;
(c) not incorporate the Goods into any other item(s);
(d) hold the Goods on a fiduciary basis as the Supplier's bailee;
(e) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(f) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(g) maintain the Goods in satisfactory condition;
(h) not create or purport to create any lien, charge or other encumbrance over or otherwise affecting the Goods;
(i) notify the Supplier immediately if it becomes subject to any of the events listed in Condition 8.2;
(j) give the Supplier such information relating to the Goods as the Supplier may require from time to time; and
(k) hold as trustee for the Supplier any proceeds of sale of the Goods to the level of sums owed to the Supplier in a trust account separate from other monies, but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If, before legal and beneficial title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Condition 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, and without limiting any other right or remedy the Supplier may have, the Supplier may, at the Customer’s cost, at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them and the Customer now gives the Supplier an irrevocable licence to enter the premises where the Goods are stored to exercise the Supplier’s rights under this Condition 6.4.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Contract.
7.2 The price of the Goods is exclusive of the delivery costs, which the Supplier shall charge and the Customer shall pay, in addition to the price of the Goods. The Supplier shall confirm the delivery costs on the Order confirmation.
7.3 The price of the Goods and delivery costs are exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.4 Unless the Supplier and the Customer have agreed credit terms in writing (in which case Condition 7.5 shall apply), the Supplier shall invoice the Customer for the Goods, delivery and VAT prior to despatching the Goods and the Customer shall pay the invoice on receipt. The Supplier is under no obligation to dispatch or deliver the Goods unless and until it has received payment of the invoice in full and cleared funds.
7.5 If the Supplier and the Customer have agreed credit terms, the Supplier shall invoice the Customer for the Goods on despatch of the Goods. The Customer shall pay the invoice in full and in cleared funds within 30 Business Days of the date of the invoice, unless other credit terms have been agreed in writing by the Supplier and the Customer in which case such other credit terms shall apply.
7.6 All payments shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence of the Contract.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Supplier may:
(a) claim interest at the rate of 4% over the base lending rate of HSBC bank from time to time, such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount;
(b) claim compensation under the Late Payment of Commercial Debts (Interest) Act 1998;
(c) with immediate effect suspend the provision of Goods either indefinitely or until the Supplier has received all overdue sums in cleared funds; and/or
(d) with immediate effect revoke or reduce any credit terms agreed either indefinitely or until the Supplier has received all overdue sums in cleared funds.
7.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.
7.9 The Customer acknowledges that the Supplier may at any time conduct checks with credit referencing agencies whether or not the Customer has applied for credit terms.
7.10 Notwithstanding any other Condition, the Supplier may, by written notice to the Customer at any time, immediately revoke or reduce any credit terms agreed for any or no reason.
8. CUSTOMER'S INSOLVENCY OR INCAPACITY
8.1 If the Customer becomes subject to any of the events listed in Condition 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier all outstanding sums in respect of Goods delivered to the Customer shall become immediately due and:
(a) the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability whether in contract, tort (including negligence), breach of statutory duty or otherwise, to the Customer indefinitely or until the Supplier has received payment for the Goods, delivery and VAT; and/or
(b) the Supplier may with immediate effect revoke or reduce any credit terms agreed with the Customer either indefinitely or until the Supplier has received payment for the Goods, delivery and VAT.
8.2 For the purposes of Condition 8.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 8.2(a)to Condition 8.2(h) (inclusive);
(j) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 NOTWITHSTANDING ANY OTHER CONDITION TO THE CONTRARY, BUT SUBJECT TO CONDITION 9.1, THE SUPPLIER SHALL NOT BE LIABLE TO THE CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, FOR ANY OF THE FOLLOWING ARISING UNDER OR IN CONNECTION WITH THE CONTRACT:
(A) LOSS OF PROFIT;
(B) LOSS OF GOODWILL;
(C) LOSS OF ANTICIPATED SAVINGS;
(D) LOSS OF CONTRACT; OR
(E) INDIRECT OR CONSEQUENTIAL LOSS.
9.3 NOTWITHSTANDING ANY OTHER CONDITION TO THE CONTRARY, BUT SUBJECT TO CONDITION 9.1, THE SUPPLIER'S TOTAL LIABILITY TO THE CUSTOMER IN RESPECT OF ALL OTHER LOSSES ARISING UNDER OR IN CONNECTION WITH THE CONTRACT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL NOT EXCEED THE PRICE OF THE GOODS UNDER THE CONTRACT.
10. INTELLECTUAL PROPERTY
10.1 The Customer acknowledges that the Supplier is the owner or licensee of all Intellectual Property Rights in the Goods, images of the Goods and other content displayed on the Supplier’s Website and the Customer shall not use, copy, modify the same in any manner whatsoever.
10.2 The Customer now agrees to the Supplier’s Website Terms http://www.tangleteezer.com/terms.php which are now incorporated by reference.
10.3 The Customer shall notify the Supplier immediately it becomes aware of any potential breach of the Supplier’s Intellectual Property Rights.
10.4 THE CUSTOMER SHALL INDEMNIFY THE SUPPLIER IN FULL AND ON DEMAND AGAINST ALL COSTS, EXPENSES, DAMAGES AND LOSSES (INCLUDING ANY DIRECT, INDIRECT OR CONSEQUENTIAL LOSSES, LOSS OF PROFIT, LOSS OF OR DAMAGE TO REPUTATION, LOSS OF GOODWILL, LOSS OF CONTRACT, AND ALL INTEREST, LEGAL AND OTHER PROFESSIONAL COSTS AND EXPENSES) SUFFERED OR INCURRED BY THE SUPPLIER IN CONNECTION WITH THE CUSTOMER’S BREACH OF CONDITION 10.1 AND/OR CONDITION 10.2.
11.1 Subject to Condition 11.2, neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. Subject to Condition 11.2, as soon as reasonably possible after commencement of the Force Majeure Event the affected party shall notify the other party in writing of the occurrence of the Force Majeure Event, the date of commencement and the estimated duration of the Force Majeure Event, the effects of the Force Majeure Event on its ability to perform its obligations under the Contract and the efforts being made or proposed by that party to remove or avoid such Force Majeure Event. Subject to Condition 11.2, if such Force Majeure Event continues for a continuous period of ninety (90) days, either party may terminate the Contract immediately on giving prior written notice to the other party.
11.2 If the Customer suffers a Force Majeure Event, it shall not be excused from paying sums due pursuant to the Contract.
11.3 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.4 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, fax or e-mail (if confirmed with a hard copy sent by first-class post). A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission. The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action.
11.5 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.7 A person who is not a party to the Contract shall not have any rights under or in connection with it whether under the Contract (Rights of Third Parties) Act 1999 or otherwise.
11.8 Any variation to the Contract, including the introduction of any additional terms and Conditions, shall only be binding when agreed in writing and signed by the Supplier.
11.9 The Contract, and any dispute or claim arising out of it (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of England and Wales except that the Supplier may take action against the Customer in any jurisdiction.