Offset Prototypes' Terms & Conditions of Sale (November of 2024)
The Buyer's attention is particularly drawn to the provisions of Condition 7.3 and 10.4.
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply to these conditions.
Buyer: the person, firm, or company who purchases the Goods from Offset Prototypes.
Contract: any contract between Offset Prototypes and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.
Offset Prototypes: Offset Prototypes is a trading name of Carter Marie Procurement Limited, company number 13451183 with a registered office at Elizabeth House, 13-19 London Road, Newbury, Berkshire, RG14 1JL, United Kingdom.
Goods: any goods agreed in the Contract to be supplied to the Buyer by Offset Prototypes (including any part or parts of them).
1.2 A reference to a law is a reference to it as it is in force for the time being, taking account of any amendment, extension, application, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and, in the plural, include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
1.6 A reference to writing or written includes faxes but not e-mail.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition, the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification, or other document).
2.2 No terms or conditions endorsed on, delivered with, or contained in the Buyer's purchase order, confirmation of order, specification, or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all Offset Prototypes sales, and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of Offset Prototypes. The Buyer acknowledges that it has not relied on any statement, promise, or representation made or given by or on behalf of Offset Prototypes, which is not set out in the Contract. Nothing in this condition shall exclude or limit Offset Prototypes' liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from Offset Prototypes shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by Offset Prototypes until either a written acknowledgment of the order is issued by Offset Prototypes or (if earlier) Offset Prototypes delivers the Goods to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence other than in the circumstances set out in condition 2.5. Any quotation is valid for a period of 90 days only from its date, provided that Offset Prototypes has not previously withdrawn it.
3. DESCRIPTION
3.1 The quantity and description of the Goods shall be as set out in the Offset Prototypes quotation or acknowledgment of the order.
4. DELIVERY
4.1 Unless otherwise agreed in writing by Offset Prototypes, delivery of the Goods shall take place at Offset Prototypes' place of business.
4.2 The Buyer shall take delivery of the Goods within 14 days of Offset Prototypes giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by Offset Prototypes for delivery of the Goods are intended to be an estimate, and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these conditions, Offset Prototypes shall not be liable for any direct, indirect, or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges, or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Offset Prototypes' negligence). Nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or Offset Prototypes is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licenses, or authorizations:
4.5.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by Offset Prototypes' negligence);
4.5.2 the Goods shall be deemed to have been delivered; and
4.5.3 Offset Prototypes may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 Offset Prototypes may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.7 Each instalment shall be a separate Contract, and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5. NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by Offset Prototypes upon dispatch from Offset Prototypes' place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 Offset Prototypes shall not be liable for any non-delivery of Goods (even if caused by Offset Prototypes' negligence) unless the Buyer gives written notice to Offset Prototypes of the non-delivery within 5 days of the date when the Goods would, in the ordinary course of events, have been received.
5.3 Any liability of Offset Prototypes for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. RISK/TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until Offset Prototypes has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 The Goods; and
6.2.2 all other sums which are or which become due to Offset Prototypes from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as Offset Prototypes' bailee;
6.3.2 store the Goods (at no cost to Offset Prototypes) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Offset Prototypes property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and keep them insured on Offset Prototypes' behalf for their full price against all risks to the reasonable satisfaction of Offset Prototypes. On request, the Buyer shall produce the policy of insurance to Offset Prototypes.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
6.4.2 any such sale shall be a sale of Offset Prototypes property on the Buyer's behalf, and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer's right to possession of the Goods shall terminate immediately if:
6.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed to undertake or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between Offset Prototypes and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade;
6.5.3 or the Buyer encumbers or in any way charges any of the Goods.
6.6 Offset Prototypes shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Offset Prototypes.
6.7 The Buyer grants Offset Prototypes, its agents and employees an irrevocable license at any time to 14.2.1 enter any premises where the Goods are or may be stored to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
6.8 Where Offset Prototypes is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by Offset Prototypes to the Buyer in the order in which they were invoiced to the Buyer. On termination of the Contract, howsoever caused, Offset Prototypes (but not the Buyer's) rights contained in this condition 6 shall remain in effect.
6.9 On termination of the Contract, howsoever caused, Offset Prototypes' (but not the Buyer's) rights contained in this condition 6 shall remain in effect.
7. PRICE
7.1 Unless otherwise agreed by Offset Prototypes in writing, the price for the Goods shall be the price set out in the Offset Prototypes quotation.
7.2 The price for the Goods shall be exclusive of any value-added tax and all costs or charges in relation to packaging, loading, unloading, carriage, and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
7.3 Offset Prototypes reserves the right to cancel any order within two working days of order confirmation.
8. PAYMENT
8.1 Subject to condition 8.4, payment of the price for the Goods is due in pounds sterling either 30 days after the end of the month in which the invoice is issued or on the last working day of the month following the month in which the Goods are delivered or deemed to be delivered, whichever is the sooner.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until Offset Prototypes has received cleared funds.
8.4 All payments payable to Offset Prototypes under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Offset Prototypes to the Buyer.
8.6 If the Buyer fails to pay Offset Prototypes any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to Offset Prototypes on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Lloyds TSB plc, accruing on a daily basis until payment is made, whether before or after any judgment.
9. Quality
9.1 Carter Marie Procurement Ltd warrants that (subject to the other provisions of these conditions) upon delivery the Goods shall:
9.1.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
9.1.2 be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to Carter Marie Procurement Ltd in writing and Carter Marie Procurement Ltd has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgment of Carter Marie Procurement Ltd.
9.2 Carter Marie Procurement Ltd shall not be liable for a breach of any of the warranties in condition 9.1 unless:
9.2.1 the Buyer gives written notice of the defect to Carter Marie Procurement Ltd, and, if the defect is as a result of damage in transit to the carrier, within 5 days of the time when the Buyer discovers or ought to have discovered the defect; and
9.2.2 Carter Marie Procurement Ltd is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by Carter Marie Procurement Ltd) returns such Goods to Carter Marie Procurement Ltd's place of business at Carter Marie Procurement Ltd's cost for the examination to take place there.
9.3 Carter Marie Procurement Ltd shall not be liable for a breach of any of the warranties in condition 9.1 if:
9.3.1 the Buyer makes any further use of such Goods after giving such notice; or
9.3.2 the defect arises because the Buyer failed to follow Carter Marie Procurement Ltd oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
9.3.3 the Buyer alters or repairs such Goods without the written consent of Carter Marie Procurement Ltd.
9.4 Subject to condition 9.2 and condition 9.3, if any of the Goods do not conform with any of the warranties in condition 9.1 Carter Marie Procurement Ltd shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if Carter Marie Procurement Ltd so requests, the Buyer shall, at the expense, return the Goods or the part of such Goods which is defective to Carter Marie Procurement Ltd.
9.5 If Carter Marie Procurement Ltd complies with condition 9.4 it shall have no further liability for a breach of any of the warranties in condition 9.1 in respect of such Goods.
10. Limitation of Liability
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of Offset Prototypes (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of these conditions;
10.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of Offset Prototypes:
10.3.1 for death or personal injury caused by Offset Prototypes negligence; or
10.3.2 for any matter which it would be illegal for Offset Prototypes to exclude or attempt to exclude its liability; or
10.3.3 for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3:
10.4.1 The Offset Prototypes total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
10.4.2 Offset Prototypes shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11. Assignment
11.1 Offset Prototypes may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Offset Prototypes.
12. Force Majeure
Offset Prototypes reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Offset Prototypes including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 120 days, the Buyer shall be entitled to give notice in writing to Offset Prototypes to terminate the Contract.
13. General
13.1 Each right or remedy of Offset Prototypes under the Contract is without prejudice to any other right or remedy of Offset Prototypes whether under the Contract or not.
13.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by Offset Prototypes in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
13.4 Any waiver by Offset Prototypes of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
14. Communications
14.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first-class post or sent by email: Tim.Carter@offsetprototypes.com
14.1.1 (in case of communications to Offset Prototypes) to its registered office or such changed address as shall be notified to the Buyer by Offset Prototypes; or
14.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to Offset Prototypes by the Buyer.
14.2 Communications shall be deemed to have been received:
14.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
14.2.2 if delivered by hand, on the day of delivery; or
14.2.3 if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.