Terms & Conditions
1.1 In these conditions the following words have the following meanings:
The Buyer: the person(s), firm or company who purchases the Goods from OP;
OP: means Orchard Promotions Limited whose registered office is 112 Street Lane, Leeds, LS8 2AL
Contract: any contract between OP and the Buyer for the sale and purchase of the Goods, incorporating these conditions;
Delivery Address: the place where delivery of the Goods is to take place and stated on the sales order form;
Goods: any goods agreed in the Contract to be supplied to the Buyer by OP (including any part or parts of them).
2. Application Of Terms
2.1 The conditions shall apply to all Contracts 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, or similar document).
2.2 All orders for Goods must be in writing (and signed by an authorised representative of the Buyer) and shall be deemed to be an offer by the Buyer to purchase pursuant to these conditions.
2.3 On OP sending an acknowledgement of order to the Buyer a Contract for the Goods shall be binding.
2.4 Any variation to these conditions shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of OP. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of OP, which is not set out in the Contract.
2.5 OP shall not be liable for any oral advice and/or recommendation given by OP to the Buyer concerning the supply of goods.
3.1 The quantity and description of the Goods shall be as set out in OP’s sales acknowledgement form.
3.2 The quality of the artwork supplied by the Buyer shall be reflected in its reproduction.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by OP and any descriptions or illustrations contained in OP’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them and those carrying names or trademarks do not necessarily imply that they have been supplied to or endorsed by the owner of the trademarks.
4.1 Delivery shall be deemed to occur and the risk of loss or damage of any kind in the Goods shall pass to the Buyer on whichever of the following events occur earlier:
(a) The Goods are collected by the Buyer from OP's place of business; or
(b) The Goods are dispatched to the Delivery Address in accordance with the Buyer's instructions (Whether or not such carrier be OP's agent or servant); or
(c) 7 days from the date of notice given by OP to the Buyer that the Goods are ready for collection or dispatch.
4.2 Any dates specified by OP 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 will be within a reasonable time.
4.3 Subject to the other provisions of these conditions OP will not be liable for any delay in the delivery of the Goods howsoever caused.
4.4 If OP delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity stated on the sales order form, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.5 OP may deliver the goods by separate installments. Each separate installment will be invoiced and paid for in accordance with the provisions of the Contract.
4.6 Each installment will be a separate Contract and no cancellation or termination of any one Contract relating to an installment will entitle the Buyer to repudiate or cancel any other Contract or installment.
5.1 The quantity of any consignment of Goods as recorded by OP upon dispatch from OP’s 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 OP shall not be liable for any non-delivery of Goods (even if caused by OP’s negligence) unless written notice is given to OP within 7 days (or within a reasonable time period where the Buyer is a consumer), of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of OP for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time, issuing a credit note or refund to the Buyer at the pro rata Contract rate against any invoice raised for such Goods at OP's discretion.
5.4 OP shall endeavor to rectify the non-delivery of Goods by its carriers.
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 OP has received in full (in cash or cleared funds) all sums due to it in respect of the Goods;
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
(a) hold the Goods on a fiduciary basis as OP’s bailee;
(b) store the Goods (at no cost to OP) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as OP’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on OP’s behalf for their full price against all risks to the reasonable satisfaction of OP.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of OP’s property on the Buyer’s own 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:
(a) 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 of its undertaking 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 1 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
(b) 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/perform any of his/its obligations under the Contract or any other contract between the OP 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; or
(c) the Buyer encumbers or in any way charges any of the Goods.6.6 OP shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from OP.
6.7 The Buyer grants OP, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.8 Where OP is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer will be deemed to have sold all goods of the kind sold by OP to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, OP’s (but not the Buyer’s) rights contained in this condition 6 will remain in effect.
7.1 Unless otherwise agreed by OP in writing the price for the Goods shall be the price set out in OP’s price list published on the date of delivery or deemed delivery. Prices are correct from 01.02.06. Should your requirements be for a larger quantity, please contact our sales department.
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 will pay in addition when it is due to pay for the Goods.
8.1 Subject to condition 8.3, payment of the price for the Goods is due in pounds sterling on the date specified in the sales order form or if no date specified within 30 days of the date of invoice and time for payment shall be of the essence.
8.2 No payment shall be deemed to have been received until OP has received cleared funds.
8.3 All payments payable to OP under the Contract shall become due immediately upon termination of this Contract despite any other provision.
8.4 If the Buyer fails to pay OP any sum due pursuant to the Contract the Buyer will be liable to pay interest to OP on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of the Yorkshire Bank, accruing on a daily basis until payment is made.
8.5 In the event of OP receiving a series of post-dated cheques, promissory notes or other bills of exchange from the Buyer in respect of any indebtedness of the Buyer, then the acceptance by OP of such post-dated cheques promissory notes or bills of exchange shall be without prejudice to OP’s rights under these conditions.
8.6 No amount may be deducted by the Buyer from any Invoice or Statement without OP’s prior written authorisation.
8.7 OP shall be entitled at any time to restrict, limit or cancel any credit arrangements or facilities granted to the Buyer and shall further be entitled in its discretion, to require the Buyer to furnish security for payment of any or all amounts due in terms of this or any related matters.
8.8 OP shall have the right forthwith to terminate any contract and/or repossess its goods and/or claim from the Buyer immediate payment of any monies owing by the Buyer under any contract, notwithstanding any earlier agreement for credit and whether the same is due for payment or not if the Buyer fails to pay any amounts due to OP on the due date thereof, or is placed under a provisional or final order of sequestration, liquidation, or judicial agreement or commits any act of insolvency or enters into any compromise with his/its creditors or fails to satisfy any judgment granted against him/it within seven (7) days after the date of Judgment, or passes any goods received from OP onto any third party for resale without prior written consent of OP, or changes the structure of ownership, or deviates from its former method of trading.
8.9 If any amount due and payable by the Buyer to OP is in arrears, OP shall have the right until such amount has been paid to suspend any deliveries or cancel any orders under this or any other contract then in force between OP and The Buyer.
9.1 OP reserves the right to invoice the Buyer for any samples which the Buyer fails to return to OP within 30 days of the relevant request by OP for the return of such samples.
10. Intellectual Property
10.1 The Buyer warrants that all relevant permissions required for the use of any trademark or logo supplied to OP have been obtained.
11.1 Subject to the conditions set out below OP warrants that the Goods will correspond with their specification at the time of delivery and be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and be reasonably fit for any particular purpose for which the Goods are being bought so long as that purpose is brought to the attention of OP before the goods are ordered.
11.2 OP shall not be liable for a breach of the warranty in 11.1 if:
(a) the defect in the Goods arises from any drawing, design or specification supplied by the Buyer;
(b) the total price for the Goods has not been paid by the due date for payment
11.3 Where any valid warranty claim in respect of the Goods is notified to OP it shall be entitled at its sole discretion to either replace the Goods (or the part in question) free of charge or refund to the Buyer, the price of the Goods (or a proportionate part of the price) and OP shall have no further liability to the Buyer.
12. Limitation Of Liability
12.1 Subject to 4 and 5 above, the following provisions set out the entire financial liability of OP (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these terms and conditions;
(b) any use made or resale by the Buyer of any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 Nothing in these conditions excludes or limits the liability of OP:
(a) for death or personal injury caused by OP’s negligence;
(b) under section 2(3) Consumer Protection Act 1987;
(c) for any matter which it would be illegal for OP to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
12.3 Subject to 11.2 and 11.3
(a) OP’s 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 this Contract shall be limited to the contract price; and
(b) OP 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.
12.4 In the event that the manufacturer of the Goods ordered alters the specification of or withdraws the Goods from sale then OP’s sole liability shall be a full refund of the Contract price paid by the Buyer.
13.1 OP may assign the Contract or any part of it to any person, firm or company.
14. Force Majeure
OP 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 OP 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 14 days, the Buyer shall be entitled to give notice in writing to OP to terminate the Contract.
15.1 Each right or remedy of OP under the Contract is without prejudice to any other right or remedy of OP whether under the Contract or not.
15.2 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.
15.3 Failure or delay by OP in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
15.4 Any waiver by OP of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
15.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.6 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.
15.7 In the event of OP instructing its solicitors to recover money or goods from the Buyer, the buyer shall be liable for and shall pay all legal costs incurred by OP.
16.1 All communications between the parties about this Contract must be in writing and delivered by hand, sent by pre-paid first class post, sent by e-mail or sent by facsimile transmission:
(a) (in case of communications to OP) to its principal place of business; or
(b) (in the case of the communications to the Buyer) to any address of the Buyer set out in the sales order form which forms part of this Contract.
16.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
(b) if delivered by hand, on the day of delivery and if sent by e-mail the day it is received;
(c) if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
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