Supply of Goods Agreement
“Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Conditions” means these terms and conditions set out in clause 1 to clause 12 (inclusive).
“Contract” means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with this Price Offer and these Conditions.
“Customer” means the customer identified in the Order Form.
“Delivery Date” means any date specified for delivery in the Order Form, or if no date is specified then the date 12 weeks after the date of the Order From.
“Delivery Location” means the location for delivery specified in the Order Form, or if no location is specified, then the address of the Customer set out in the Order Form.
“Discounted Price” means the discounted price for the Goods as set out in the Order Form.
“Force Majeure Event” means events, circumstances or causes beyond a party’s reasonable control.
“Goods” means the goods described in the Content of the Delivery section of this Price Offer.
“Order Form” means the order form on page 4 of this Price Offer.
“Services” means the services (or any part of them) as set out in the Order Form and any other services provided from time to time by the Supplier in relation to the Goods.
“Specification” means the specification for and the description of the Goods, set out in the Features section of this Price Offer.
“Supplier” means AESTHETICS SOLUTIONS LTD (No. 13697637) whose registered office address is at Office 11-12 , Burney House 11-17 Fowler Road, Ilford, Essex, IG6 3UJ
“VAT” means value added tax or any equivalent tax chargeable in the UK or elsewhere.
“Warranty Period” means the warranty period for the Goods set out in the Order Form, or if no warranty period is set out, a period of 12 months commencing on the date of delivery.
1.2.1 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.2.2 Any phrase introduced by the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 A reference to writing or written includes emails.
2 The Order Form
2.1 The Customer is responsible for ensuring that its details in the Order Form and any applicable information submitted by the Customer to the Supplier are complete and accurate. The Customer shall give the Supplier all necessary information that the Supplier reasonably requires to fulfil the Contract.
3 The Goods
3.1 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures 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.
3.2 To the extent that the Goods are to be manufactured in accordance with information 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 other reasonable 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 such information. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4.1 The Supplier shall endeavour to deliver the Goods to the Delivery Location on the relevant Delivery Date.
4.2 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.3 Delivery Dates are approximate only, and the time of delivery is not of the essence of the Contract.
4.4 Subject to clause 4.5, If the Supplier fails to deliver Goods by 12 weeks after the Delivery Date, its liability 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 Discounted Price of the Goods paid by the Customer.
4.5 The Supplier shall have no liability for any failure to deliver Goods to the extent that such failure is caused by:
4.5.1 a Force Majeure Event; or
4.5.2 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.
4.6 If the Customer fails to take delivery of the Goods, the Supplier may store at the Customer’s cost, resell or otherwise dispose of part or all of the Goods and, if resold or disposed of, after deducting reasonable storage and selling costs, account to the Customer for any excess over the Discounted Price paid by the Customer, or charge the Customer for any shortfall below the Discounted Price.
5 Quality and warranty
5.1 The Supplier warrants that for the Warranty Period the Goods (except accessories and consumables) shall:
5.1.1 conform in all material respects with their description and the Specification;
5.1.2 be free from material defects in design, material and workmanship;
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.1.4 be reasonably fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier promptly after discovery that some or all of the Goods do not comply with the warranties set out in clause 5.1 (but in any event during the Warranty Period);
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 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, at its option, repair or replace any Goods that are found to be defective, or refund the price of such defective Goods in full.
5.3 The Supplier shall not be liable for Goods’ failure to comply with the warranties set out in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving notice of defects in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or information supplied by the Customer;
5.3.4 the Customer (or any third party on behalf of the Customer) alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 The Supplier’s only liability to the Customer if the Goods fail to comply with the warranties set out in clause 5.1 is as set out in this clause 5.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 The terms of the Contract shall apply to any repaired or replacement Goods supplied by the Supplier.
6 Title and risk
6.1 Risk in Goods shall pass to the Customer on completion of unloading the Goods at the Delivery Location.
6.2 Title to Goods shall only pass to the Customer once the Supplier receives payment in full (in cash or cleared funds) for them.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 not part with possession and control of the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in clause 11.1.2; and
6.3.6 give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(3.6.i) the Goods; and
(3.6.ii) the ongoing financial position of the Customer.
6.4 The Supplier may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 6.3, and to recover any Goods in which property has not passed to the Customer.
6.5 The Supplier may at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer shall immediately pay the Discounted Price to the Seller.
7 Price and payment
7.1 The Customer shall pay the Discounted Price for the Goods in accordance with this clause 7.
7.2 The Discounted Price excludes amounts in respect of VAT, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.
7.3 The Supplier may invoice the Customer for the Discounted Price on or at any time after the date of the Order Form. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, and the Supplier’s VAT registration number.
7.4 The Customer shall pay invoices in full in cleared funds within 20 Business Days of the invoice date. Payment shall be made to the bank account nominated in writing by the Supplier.
7.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 11:
7.5.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.5.2 the Supplier may suspend all further deliveries of any goods and/or provision of any services until payment has been made in full.
7.6 Payment of the Discounted Price by the Customer, howsoever paid, is not refundable unless prior written consent has been provided by the Supplier.
7.7 Any deposits paid by the Customer, howsoever paid, are not refundable unless the Supplier, for whatever reason, cancels the Contract in its entirety.
7.8 All amounts due under this Agreement from the Customer to the Supplier shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Supplier to the Customer.
8 Supply of Services
8.1 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.2 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
9 Limitation of liability
9.1 Nothing in this Contract shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1 the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any:
(2.1.i) loss of profit;
(2.1.ii) loss of business;
(2.1.iii) loss of goodwill; or
(2.1.iv) any indirect or consequential loss, arising under or in connection with the Contract; and
9.2.2 the Supplier’s total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed one hundred and twenty-five per cent (125%) of the Discounted Price payable by the Customer for Goods under the Contract.
10 Compliance with relevant laws and policies
10.1 In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and codes from time to time in force provided that the Supplier shall not be liable under this Agreement if, as a result of such compliance, it is in breach of any of its obligations under this Agreement.
10.2 The Customer may immediately terminate the Contract for any breach of this clause 10 by the Supplier.
11.1 Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
11.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
11.1.2 the other party 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), obtaining a moratorium, 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 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;
11.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
11.1.4 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
11.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
11.3 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination.
11.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
12.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this Contract by giving 30 days’ written notice to the affected party.
12.2 Assignment and other dealings.
12.3 The Customer shall not assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.4.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.4.2.
12.4.2 Each party may disclose the other party’s confidential information:
(4.2.i) to its employees, officers, representatives, contractors, sub-contractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, sub-contractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.4; and
(4.2.ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.4.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
12.5 Entire agreement.
12.5.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.5.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
12.6 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.7 Waiver. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.9.1 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 or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered by hand, or sent by pre-paid first-class post or other next working day delivery service, fax or email.
12.9.2 A notice or other communication shall be deemed to have been received: if delivered by hand, when left at the address referred in clause 12.9.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or, if sent by fax or email, one Business Day after transmission.
12.9.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.10 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
12.11 Governing law. This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
12.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.