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Terms and conditions
- 1.1. In these conditions “We/Our/Us” means Orchard Toys (Formlend Limited); “You/Your” means any person(s) or company who orders the Goods or Services; “Goods” means the products We supply; “Services” means the design services We provide; “Contract” means the agreement between You and Us to supply the Goods or Services; “Order” means the request by You for Goods or Services made on Our order form.
- 1.2. Our quotations for Goods and Services requested by You are not binding. No Contract shall exist until We have accepted Your Order in writing.
- 1.3. These Terms and Conditions override any different conditions which may appear on Your documents or other documents issued by You.
- 1.4. Unless otherwise agreed, these Terms and Conditions apply to all Contracts. Any changes to these Terms and Conditions can only be made with Our consent in writing.
- 2.1. The prices of the Goods are listed on Our current trade price list and order form. We will provide You a quote for the Services You request. Prices are exclusive of VAT which will be added at the applicable rate at the time of invoice.
- 2.2. Our prices are based on current production and labour costs which may be subject to amendment between the time the Order is placed and delivery. We reserve the right to adjust the price accordingly if these costs increase before delivery to You.
- 3.1. Unless agreed otherwise, payment shall be made in pounds sterling (£) within 30 days from the date of Our invoice.
- 3.2. Time for payment in 3.1 shall be of the essence.
- 3.3. We reserve the right to claim interest on overdue payments in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
4. Delivery and Defective Goods
- 4.1. Subject to 4.2, delivery shall either take place when i) the Goods are delivered to Your premises or another agreed location or ii) when You collect the Goods from Our premises.
- 4.2. Where Goods are being exported, delivery takes place ex-works unless agreed otherwise.
- 4.3. We shall Use Our reasonable commercial endeavours to deliver the Goods by the due delivery date, but time for delivery shall not be of the essence.
- 4.4. The minimum order price for free delivery is stated on Our current trade price list and order form. We may charge delivery costs for any Order below this amount.
- 4.5. We shall not be liable for any shortfall in the Goods delivered or non-delivery of the Goods unless You notify Us in writing within 14 days of the invoice date or due delivery date respectively. We shall attempt to deliver the shortfall or re-deliver undelivered Goods in all cases, but if this is not possible We will issue You a credit note for the proportion of undelivered Goods.
- 4.6. We shall not be liable for defective Goods unless You notify Us in writing of any defects within 14 days of delivery. We will attempt to replace the defective Goods in all cases, but if this is not possible We will issue You a credit note for the price of the defective Goods.
- 4.7. We shall not be liable to You for packaging damaged in transit unless this is noted immediately by You on the receipt documentation.
- 4.8. We give no warranty to You in relation to the suitability of the Goods for any particular purpose and exclude terms implied by statute or common law, as permitted by law, save for section 12 of the Sales of Goods Act 1979.
5. Ownership/Risk of the Goods
- 5.1. The risk in the Goods passes to You upon delivery.
- 5.2. Ownership in the Goods passes to You once all sums owed to Us have been paid in full, including sums owed to Us under a different Contract.
- 5.3. Until You own the Goods in accordance with 5.2;
- 5.3.1. You agree to store the Goods separately on a fiduciary basis as Our bailee in such a way that they are identifiable as Our Goods and to keep the Goods in good condition;
- 5.3.2. We are entitled to access the premises where the Goods are stored upon reasonable notice to repossess the Goods up until full payment of all sums due to Us has been made.
- 5.4. You may resell the Goods before ownership is passed to You where the sale is effected in the ordinary course of Your business at full market value. Any sale shall be a sale of Our property on Your behalf and You shall deal as principal when making such a sale.
6. Performance of Services
- 6.1. We warrant that the Services will be provided using reasonable care and skill, but all other warranties, conditions or terms implied by statute or common law are excluded to the fullest extent permitted by law.
- 6.2. We shall use our reasonable commercial endeavours to perform the Services in accordance with the proposed performance date but time for performance shall not be of the essence. If no dates are specified, we will perform the Services within a reasonable time.
- 6.3. We may sub-contract performance of the Services at Our discretion.
7. Illustrations and Samples
- 7.1. We shall provide to You illustrations and samples of Our products for assessment only. The Goods supplied may differ slightly in detail from Our brochures, illustrations and samples. You agree that any minor difference in the Goods supplied does not allow You to reject the Goods.
- 7.2. We own the copyright in all illustrations, samples and descriptions of the Goods in Our brochures provided in 7.1 which may not be used or copied by You without Our express consent in writing.
8. Intellectual Property and Confidentiality
- 8.1. We own the copyright and design rights in all designs and artwork provided to You as part of Our Services.
- 8.2. You agree not to disclose any details of Our designs now or in the future to a third party without Our express permission. You warrant that Your authorised representatives will adhere to this confidentiality requirement.
- 8.3. You shall keep Us indemnified in respect of any breach of confidentiality in 8.2 which results in any loss or damage to Us.
- 8.4. If, upon viewing Our designs and artwork, You decide not to make a subsequent Order, You shall return all of Our materials to Us immediately without taking or retaining any copies.
- 8.5. You agree that We own and maintain the ownership in all intellectual property rights created or developed whilst providing the Goods or Services including, but not limited to, copyright, trademark, design and patent rights, subject only to existing ownership by a third party.
- 9.1. We may end or suspend the Contract with you if:
- 9.1.1. any payment due to Us is outstanding;
- 9.1.2. You commit a material breach of the Contract which, if capable of remedy, is not remedied within 21 days notice from us;
- 9.1.3. You become insolvent or cease business or threaten to cease business.
- 9.2. Both You and Us may terminate the Contract if an event beyond either parties control has continued for 3 months or more, for example, but not limited to war, natural disaster, an act of terrorism, Government action or materials shortage.
- 9.3. Neither party will be liable to the other for any delay or failure in the performance of obligations under the Contract caused by an event in 9.2.
- 9.4. Termination of the Contract does not affect any rights or remedies either party has accrued up to termination of the Contract.
- 10.1. Nothing in these Terms and Conditions excludes Our liability for death or personal injury resulting from Our negligence.
- 10.2. Our maximum liability to You for breach of Contract, misrepresentation or other tortious act or omission including negligence shall be limited to the Contract price.
- 10.3. We shall not be liable to You for any loss of profit, goodwill, business or indirect loss which arises out of or in connection with the Contract.
If any of these Terms and Conditions are deemed void or unenforceable they shall not form part of the Contract, but the remaining Terms and Conditions shall continue in full force and effect.
You cannot assign or transfer the Contract or any of Your rights under it nor sub-contract any of Your obligations under the Contract without Our prior consent in writing.
No waiver of any breach of any provision of the Contract shall be considered as a waiver of any subsequent breach of the same or any other provision of the Contract.
Any notices given by either party under these Terms and Conditions shall be in writing addressed to the other party at its Registered Office or principal place of business or such other address as agreed between the parties.
15. Third Party Rights
A person who is not party to this Contract has no right to enforce any terms of the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
16. Data Protection
Both parties agree to comply with the provisions of the Data Protection Act 1998.
These Terms and Conditions are governed by the laws of England and Wales and any disputes arising from this Contract shall be subject to the non-exclusive jurisdiction of the English Courts.