Terms & Conditions - Bertrams Trading Ltd
1 INTRODUCTION
1.1. These are the Terms and Conditions on which the Company supplies Goods to Customers until further notice.
They override any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document.
1.2. Each order or acceptance of a quotation for Goods will be deemed to be an offer by the Customer to purchase Goods upon these Terms and Conditions. Orders may be placed by telephone, facsimile, e-mail, posting an order form, or electronic data transmission to the Company or any of its authorised agents. The contract is formed when the order is accepted by the Company by way of a written acknowledgement of order, an electronic acknowledgement of order or by Goods corresponding in description to the Customer"s order being consigned for delivery.
1.3. Acceptance of delivery of the Goods will be deemed conclusive evidence of the Customer"s acceptance of these Terms and Conditions.
1.4. No variation or amendment of these Terms and Conditions or oral promise or commitment related to them shall be valid unless in writing bearing the original signature of a director of the Company.
1.5. These Terms and Conditions only grant rights and benefits to Customers in connection with a specific contract for the sale and purchase of Goods.
2 DEFINITIONS AND INTERPRETATION
2.1. In these Terms and Conditions the following words shall have the following meanings:Carrier The deliverer of Goods
to the Customer Company The supplier of Goods in accordance with these Terms and Conditions, being Bertrams Trading Ltd Customer Any person(s), firm or company whose order for Goods is accepted by the Company Goods Books, printed sheets and cards, magazines, records, selling aids and any media on which material or data is electronically, magnetically or optically recorded and each and every other item offered for sale by the Company, such items of whatever nature having been ordered by the Customer and acknowledged by the Company as having been so ordered in accordance with provision 1.2 Literature Any advertisement, catalogue, brochure, flyer, web-site or similar material produced by or issued on behalf of the Company in respect of the books Publication Date In respect of any Goods the date shown on the corresponding invoice or despatch documentation as being the first date upon which they may be sold or otherwise dealt with by the Customer Returns Goods the Company authorises the Customer to return or to make available for collection in accordance with provision 6 Terms and Conditions The standard terms and conditions for the sale of goods set out in this document (and reference to a provision by number is a reference to the provision so numbered in these Terms and Conditions of supply). UK and Ireland England, Wales,
Scotland, the Isle of Man, the Channel Islands, Northern Ireland and the Republic of Eire
2.2 The singular includes the plural and vice versa, words implying one gender shall include all other genders and person means any natural person and any firm, partnership, joint venture or company.
2.3 Subject to provisions 3.7, 3.8 and 3.9, time shall be of the essence in interpreting any provision that imposes a right or obligation to do something within a stated period of time.
3 CONTRACT
3.1 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Literature are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the contract.
3.2 The contract created by the offer and acceptance is a contract for the purchase by the Customer of Goods from the Company, for the delivery of those Goods to the Customer and for the payment by the Customer to the Company of the price for them, all on and subject to these Terms and Conditions.
3.3 The Company may deliver the Goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with these Terms and Conditions.
3.4 Each instalment will be a separate contract and no cancellation or termination of any one contract relating to an instalment will entitle the Customer to repudiate or cancel any other contract or instalment.
3.5 The Company may refuse to accept an offer to purchase Goods, or in the event of provisions
3.5.1 or 3.5.2 occurring, may refuse to make a delivery of any further instalment if (and this list is not exhaustive):
3.5.1 the offeror is in breach of any of these Terms and Conditions or of any other contract between it and the Company, or
3.5.2 the Company has reasonable grounds to believe the offeror is or is likely to become unable to pay its debts as they fall due, or
3.5.3 the Goods are no longer in production, or are not in stock at the time of the order; or
3.5.4 the offeror has a history of making frequent Returns (in excess of any agreed Returns level cap) on the grounds that
it cannot sell Goods, or
3.5.5 the order falls below any minimum order volume or value limits from time to time applied by the Company as a matter
of commercial policy.
3.6 If the Company cannot deliver ordered Goods immediately or at all by reason of insufficient quantities being available, it may accept the Customer"s order to the extent that it can deliver them.
3.7 The Company will use its reasonable endeavours to deliver Goods within the time specified in any promotion and otherwise
within 60 days after the date of the Customer"s order.
3.8 Notwithstanding provision 2.3, any dates quoted by the Company for the delivery of Goods (including those set out in provision
3.8 above) are approximate only.
3.9 The Customer agrees with the Company that it:
3.9.1 will not sell, make available for purchase, lend or otherwise dispose of Goods before their Publication Date and then only in their published covers;
3.9.2 will not in any way amend delete or add to the contents of the Goods and their packaging; and
3.9.3 will observe all intellectual property or moral rights asserted in connection with the Goods.
3.10 The Company shall not at any time be under any obligation to grant or maintain credit facilities for the benefit of any Customer.
4 PRICE AND PAYMENT
4.1 The price the Customer will pay the Company for the Goods will be:
4.1.1 the Company"s published retail price per item in force at the date of delivery (which is quoted exclusive of VAT);
4.1.2 less any discount agreed between the Company and the Customer prior in writing;
4.1.3 plus any applicable small order surcharge for orders accepted by the Company which are below its published minimum order volume or value;
4.1.4 plus the cost of complying with the delivery requirements of the Customer;
4.1.5 plus Value Added Tax or other applicable sales tax or duty as may be required by law.
4.2 An invoice setting out the price payable for the Goods despatched will accompany the Goods on despatch.
4.3 All invoices for Goods are payable in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature and payment should be made in accordance with the provisions of any credit facility then in force between the parties. If there is no such credit facility then payment of the invoice must be made no later than the last business day in the calendar month following that contained in the date of the invoice.
4.4 No payment will be deemed to have been received until the Company has received cleared funds.
4.5 All sums payable to the Company under the contract will become due immediately upon termination of the contract.
4.6 If the Customer disputes the amount of an invoice it must raise the dispute in writing to be received by the Company no later than 14 business days after the date of the Company"s invoice.
4.7 If the Customer does not make a payment on the due date all indebtedness of the Customer to the Company, whether then due for payment or not (but for this provision) shall immediately become due and payable and shall bear interest on a daily basis from the due date until the date of irrevocable receipt of payment in full at the rate of 4% above the minimum lending rate of the Bank of England.
4.8 The Company may claim for the price of Goods even if title to them has not passed to the Customer.
5 DELIVERY, TITLE AND RISK
5.1 Goods will be delivered to the Customer at the address specified by the Customer at the time of placing the order.
If no address is so specified the Goods will be delivered to the address specified in the Customer"s application for credit
facilities (if any) and if there is no such credit facility the Goods will be delivered ex-works as defined in INCOTERMS 2000
(whereby the Customer bears the costs involved in delivering the Goods from the Company to the Customer"s named premises). Delivery shall be deemed to take place at the time the Goods arrive at such address or, if provision 8 applies, at the premises of the Customer"s nominated shipping agent within the UK and Ireland irrespective of whether or not the Customer accepts the Goods so delivered.
5.2 The Company shall not be liable for any penalty, loss, injury, damage or expense (including loss of profit on subsequent sale of the Goods) arising from any delay or failure on the part of the Company to deliver Goods by a particular date or at all. Nor shall any such delay or failure entitle the Customer to refuse to accept delivery or performance of or repudiate the contract for the Goods in question.
5.3 If the Customer fails to accept Goods tendered for delivery when tendered or to provide any instructions, documents, licences, authorisations or unloading facilities the Company may:
5.3.1 store or arrange for the storage of the Goods until actual delivery or sale in accordance with provision 5.3.2 and charge the
Customer for all related costs and expenses (including, without limitation, storage, delivery and insurance); and/or
5.3.2 following written notice to the Customer, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Customer for any shortfall below the price under that Customer"s contract having taken into account any charges (including, without limitation, those charges mentioned at provision 5.3.1 above) related to the sale.
5.4 Risk of damage to or loss of the Goods will pass to the Customer on delivery (or deemed delivery in accordance with provision 5.1).
5.5 Title to the Goods shall remain with the Company and shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all amounts due to it in respect of:
5.5.1 the Goods; and
5.5.2 all other sums which are or which become due to the Company from the Customer on any account prior to payment having been made.
5.6 Until title to the Goods passes to the Customer, the Customer must:
5.6.1 hold the Goods on a fiduciary basis as the Company"s bailee;
5.6.2 store the Goods (at no cost to the Company) separately from all other Goods of the Customer or any third party in such a way that they remain readily identifiable as the Company"s property;
5.6.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
5.6.4 maintain the Goods in satisfactory condition insured on the Company"s behalf for their full price against all risks to the reasonable satisfaction of the Company, and will whenever requested by the Company produce a copy of the policy of insurance.
5.7 The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
5.7.1 Any sale will be effected in the ordinary course of the Customer"s business and the Customer will account to the Company accordingly; and
5.7.2 Any such sale will be a sale of the Company"s property on the Customer"s own behalf and the Customer will deal as principal when making such a sale.
5.8 The Customer"s right to possession of the Goods will terminate immediately if the Company terminates the agreement in accordance with provision 10.1.
5.9 The Customer shall obtain the agreement of any of its creditors having security over its assets that the Goods shall be excluded from the scope of such security.
5.10 The Customer grants an irrevocable licence to the Company, its agents and employees at any time to enter onto any premises where the Goods are or may be stored for the purpose of inspecting the Goods, or, where the Customer"s right to possession has terminated, to retrieve them.
5.11 Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer"s right to possession has terminated, the Customer will be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
5.12 On termination of the contract, howsoever caused, the Company"s rights contained in this provision 5 will remain in effect (but, for the avoidance of doubt, the Customer"s right to resell the Goods shall not remain in effect).
6 RETURNS
6.1 The Customer acknowledges that no warranty or representation is or has been made to the Customer that Goods will sell in the quantities ordered by the Customer or at all.
6.2 The Customer agrees with the Company that the Customer shall only have the right to reject the Goods in the circumstances set out at provision 6.3 and it shall have no other legal right or remedy by virtue of any defect in them.
6.3 The Customer"s right to reject shall only exist in the case of and to the extent of the following (which, in every case, must
be proved to the reasonable satisfaction of the Company):
6.3.1 the quantity of Goods delivered is in excess of those ordered; and / or
6.3.2 the Goods are physically defective on delivery to such an extent that they could not reasonably be sold other than at a
discount below the Customer"s reasonably anticipated resale price or at all, and / or
6.3.3 where appropriate, the titles of the Goods delivered are different to those ordered by the Customer (and no substitution
has been previously agreed by the parties).
6.4 If the Customer seeks to reject Goods in accordance with provision 6.3, it must give notice of the fact to the Company in
writing by letter, facsimile or e-mail transmission, such notice to be received by the Company no later than 14 days after the
date of delivery of the Goods (or deemed delivery in accordance with provision 5.1). The notice must include the original order
and invoice numbers, specify the Goods to which the notice relates by title and number of copies affected and contain a detailed
description setting out why the Customer considers that it is entitled to reject the Goods.
6.5 The Company shall reply to the Customer"s notice by letter, facsimile or e-mail, such letter to be received by the Customer
no later than 14 days after the date on which the Company received the Customer"s notice. The reply must state whether the Company is satisfied with the reason set out in the notice or, if not, the grounds upon which the notice is rejected. In circumstances where the Company is satisfied that the Customer does have the right to return the Goods pursuant to provision 6.3 above, the Company will state that either the Goods should be returned by whatever means are appropriate (and, in circumstances where the Company sets out specified means by which the Goods should be returned by the Customer, this shall be at the expense of the Company) or that the Goods should be made available for collection by or on behalf of the Company on a specified date.
6.6 Returns shall be at the risk of the Customer until received by the Company or (if they are to be collected) the earlier of (i)
the date 14 days after the date of the initial delivery to the Customer; or (ii) the date on which the Company has specified that
the Returns will be collected.
6.7 The Company shall issue to the Customer a credit note for the invoiced price of any Returns within 28 days of the Company
receiving the returned Goods.
6.8 If Goods are returned or rejected otherwise than in strict conformity with this provision the Company shall be entitled to dispose of them or return them to the Customer (in each case at the cost and risk of the Customer) and no credit shall be allowed in respect of them.
7 LIABILITY
7.1 Subject to provision 7.3 below, the Company shall not be liable to the Customer whatsoever (whether in contract, tort
(including negligence), breach of statutory duty, restitution or otherwise) in respect of any direct loss or damage to the
Customer arising as a result of any:
7.1.1 content in the Goods breaching any criminal law; or
7.1.2 content in the Goods breaching any civil law or intellectual property or moral right of any third party , or
7.1.3 defect in the Goods other than defects in their physical condition, the latter being defects for which the Company is liable to the extent set out in provision 6 above; or
7.1.4 Goods not being reasonably fit for any express or implied purpose; or
7.1.5 Goods being improperly installed, connected to or contaminated by any computer hardware or software of the Customer or a third party; or
7.1.6 problems occurring as a result of the Customer"s negligence or default or because of accident, neglect or misuse; or
7.1.7 use made or resale by the Customer of any of the Goods, or of any product incorporating the Goods.
7.2 Subject to provision 7.3 below, the Company accepts no responsibility in any circumstances for any indirect or consequential loss or damage (both of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused.
7.3 Notwithstanding provisions 7.1 and 7.2 above, nothing in these Terms and Conditions is an attempt by the Company to exclude liability (if any) to the Customer:
7.3.1 for breach of the Customer"s obligations arising under section 12 Sale of Goods Act, 1979 or section 2 of the Supply of Goods and Services Act, 1982;
7.3.2 for personal injury or death resulting from the Company"s negligence;
7.3.3 under section 2(3) Consumer Protection Act, 1987;
7.3.4 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
7.3.5 for fraud.
INDEMNITY
7.4 The Customer agrees to indemnify, keep indemnified and hold harmless the Company from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential losses (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which the Company incur or suffer as a consequence of a direct or indirect breach or negligent performance or failure in performance by the Customer of the terms of these Terms and Conditions.
8 CUSTOMERS OUTSIDE THE UK AND IRELAND
8.1 In the case of all Goods to be delivered to an address outside the UK and Ireland the following provisions shall apply.
8.2 The Goods shall be delivered on such export terms as shall be agreed at the time of the order or as agreed in any supply contract between the Company and the Customer.
8.3 The Company shall only be obliged to deliver Goods by Carrier to the Customer"s nominated shipping agent within the UK and Ireland, unless otherwise agreed prior in writing between the Company and the Customer.
8.4 The Customer shall be responsible for and shall indemnify and keep indemnified the Company in respect of any and all taxes, imposts and Government impositions payable in respect of the Goods by virtue of their export from England and their import elsewhere.
9 FORCE MAJEURE
The Company will not be liable to the Customer for any failure or delay or for the consequences of any failure or delay in performance of the contract, if it is due to any event beyond the reasonable control of the Company including, without limitation, acts of God, war, industrial disputes, protests, fire, tempest, explosion, an act of terrorism and national emergencies and the Company will be entitled to a reasonable extension of time for performing such obligations.
10 TERMINATION
10.1 The Company may by written notice terminate the contract immediately if the Customer is in material breach of the contract or enters into insolvency, administration, receivership, bankruptcy, any arrangement with its creditors or any other arrangement or situation which has a like effect. Failure to pay any sums due in accordance with provision 4.3 is a material breach of the terms of the contract which is not capable of remedy.
10.2 The termination of the contract howsoever arising is without prejudice to the rights, duties and liability of either the Customer or the Company accrued prior to termination. The provisions which expressly or impliedly have effect after termination will continue to be in force notwithstanding termination.
11.1 If any provision or part of these Terms and Conditions is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the contract and will be ineffective, without, as far as is possible, modifying any other provision or part of the contract and this will not affect any other provisions of the contract which will remain in full force and effect.
11.2 These Terms and Conditions (and, where appropriate, the supply contract referred to in provision 8) contain all the terms which the Company and the Customer have agreed in relation to the Goods and supersede any prior written or oral agreements, representations or understandings between the parties relating to such Goods. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in these Terms and Conditions (or the supply contract). Nothing in this provision
11.2 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
11.3 The parties to the contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
12 GOVERNING LAW
12.1 These provisions shall be governed by and construed in accordance with the laws of England. The English courts will have exclusive jurisdiction to settle any disputes. The parties agree to submit to that jurisdiction.
13 DATA PROTECTION
13.1 The Customer and the Company agree and acknowledge that they deal with Goods in the course of their businesses, that the Company needs to be able to assess and monitor the Customer"s ability to remain solvent and to pay for, market and sell Goods supplied to it and to discharge its obligations generally to the Company, and to assist the Company in carrying out such assessments and monitoring it needs to seek, acquire, collate, manipulate, process, delete and act upon data relating to the Customer.
13.2 The Customer authorises and instructs the Company to:
13.2.1 apply to such persons for such data and at such times as the Company shall consider prudent concerning the Customer, its business, financial standing, trading history and its assets and liabilities;
13.2.2 to receive, retain, record and duplicate all responses to each such application in such form format and medium as the Company shall consider prudent;
13.2.3 to create data recording all the Customer"s orders for Goods, their value and volume, compliance or otherwise with applicable credit or payment terms and these provisions and all Returns;
13.2.4 to collate, manipulate, sort, process and delete all such material in such manner as the Company shall consider prudent and to record all decisions made by it in relation to the Customer; and
13.2.5 do each and every one of the foregoing in respect of each director of the Customer (being a company) and each partner in it (being a partnership) and each participant in it (being a joint venture or other unincorporated association).
13.3 The Company agrees with the Customer that in the exercise of each and every one of the foregoing functions it will observe the principles set out in Schedule 1 to the Data Protection Act 1998.
13.4 The Company will on payment of such fee and at such intervals and in such format as may be prescribed by statute, supply the Customer with a copy of any and all data it holds relating exclusively to the Customer.
14. ELECTRONIC DATA FEEDS
14.1 Access to Electronic data feeds are provided at the discretion of the Company
14.2 All electronic data is copyright Bertram Trading Limited
14.3 Data may only be used to aid the purchase of Books from the Company
14.4 The Company is not liable for the accuracy of the data or for any losses the Customer may incur as a result of its use
14.5 The Company may choose to immediately withdraw access to its data feeds
14.6 The data should not be copied or passed on to any other person or organisation
14.7 All data remains the property of the Company
