Terms and Conditions
In these Terms:
“Buyer” means the person who accepts the Company’s written quotation for the sale of the Goods or whose Written order for the Goods is accepted by the Company
“the Company” means E B B Distribution Ltd (registered in Isle of Man under company no 123678C)
“Goods” means the goods (including any instalment of the goods or any parts for them) which the Company is to supply in accordance with these Terms
“Contract” means the Contract for the sale and purchase of Goods
“Terms and Conditions” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and a director of the Company
“Writing” and any similar expression, includes facsimile transmission and comparable means of communication, but not electronic mail
Reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
The headings in these Terms are for convenience only and shall not affect their interpretation.
- Basis of Contract
These terms and conditions shall govern the Contract between the Company and the Buyer to the exclusion of any other terms and conditions. The Company shall sell and the Buyer shall purchase the Goods in accordance with the Company’s written quotation (if accepted by the Buyer), or the Buyer’s written order (if accepted by the Company), subject in either case to these Terms and Conditions which shall govern the Contract to the exclusion of any other terms subject to which any such quotation may purportedly be accepted or any such order is purported to be made by the Buyer. These Terms and Conditions will be deemed accepted by the Buyer by virtue of the Buyer placing an order with the Company. No variation of these Conditions shall be binding unless agreed in Writing and signed by a director of the Company. The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed in Writing by the Company. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations, which are not so confirmed.
Any typographical, clerical or other error or omission in any sales literature, individual product offer sheet, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company. The Contract shall be governed by the laws of the Isle of Man and the Buyer agrees to submit to the exclusive jurisdiction of the Courts of the Isle of Man.
No order shall be deemed accepted by the Company until such acceptance is confirmed in Writing by the Company. The Buyer shall be responsible for the accuracy of an order, and for providing the Company with any information necessary for the Company to perform the Contract. The quantity, quality and description of the goods and any specification for them shall be as set out in the Company’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Company). The Company reserves the right to make any changes to the specification of the Goods, which are required to conform with any applicable statutory or E.U. requirements which do not materially affect their quality or performance. No order accepted by the Company may be cancelled by the Buyer except with the agreement in Writing of a director of the Company and even then only on terms that the Buyer shall indemnify the Company against all loss (including loss of profit), costs, damages, charges and expenses the Company may suffer as a result of a cancellation.
- Price and Payment
Subject to any discount the Company may choose to expressly agree in Writing, the price of the Goods shall be as quoted to the Buyer in Writing or otherwise as shown in the Company’s published price list current at the date of acceptance of order. Except as otherwise stated in Writing by the Company the price is exclusive of any applicable VAT and customs duties or any other local tax, which shall be the responsibility of the Buyer. The Company’s terms of payment are 30 days of invoice. If the Buyer fails to make payment of an invoice on the due date the Company, without limiting any other right or remedy available to the Company, may:
(a) charge the Buyer interest on the amount unpaid at 5% above base rate of the Company’s bankers at the time (both before and after Judgment) up to the date of payment in full.
(b) cancel the Contract or suspend any further deliveries to the Buyer under this or any other Contract.
Any dates quoted for delivery are approximates only and are subject to any matter beyond the Company’s reasonable control. The Company shall not be liable for any delay in delivery of the goods howsoever caused. Time for delivery shall not be of the essence of the Contract unless previously agreed in Writing by a director of the Company. The Goods may be delivered in advance of the quoted delivery date on giving reasonable notice to the Buyer. Where Goods are to be delivered in instalments, each delivery shall be a separate Contract and failure by the Company to deliver, or any claim by the Buyer in respect of any instalment shall not entitle the Buyer to repudiate the Contract as a whole. If the Buyer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Company’s fault) then, without limiting any other right or remedy available to the Company, the Company may:
(a) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
(b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
Any Liability on the Company’s part for failure to deliver the goods shall be limited to the excess cost to the Buyer (in the cheapest available market) of purchasing replacement Goods.
- Risk and Property
Risk of damage to or the loss of Goods shall pass to the Buyer on delivery. Property in the Goods shall not pass until the Company has received payment in full both of the price of the Goods under the Contract and for all other goods sold by the Company to the Buyer for which payment is then due. Until the property passes, the Buyer shall hold the Goods as the Company’s fiduciary agent and bailee. The Buyer shall be entitled to re-sell or use the Goods in the ordinary course of its business, but shall account to the Company for the proceeds separate from any other monies. Otherwise the Buyer shall keep the Goods separately stored, protected, insured and identified as the Company’s property and the Company shall be entitled to repossess them at any time and for that purpose to enter on any premises where they are stored or offered for sale. The Buyer shall not be entitled to pledge or charge any Goods, which remain the property of the Company, but if the Buyer does so all monies owing by the Buyer to the Company shall forthwith become due and payable.
- Selling-on and Online Trading
(a) The Buyer may sell-on the Goods actively only in the course of its normal business (retailing) i.e. Only to end consumers since sales to dealers are reserved by the Company.
(b) The sale of Goods via the internet is permitted under the following guidelines:
(I) domain names containing the Esbelt brand name are not to be registered by the Buyer.
(ii) the Buyer is permitted to sell Goods only through the Buyers own home page with prior authorisation from the Company (i.e. in particular, not through auction platforms) and only if, in the Company’s sole discretion such home page corresponds to the high quality standards of the Goods.
(iii) the Buyer undertakes in particular to use on its home page only the original photographs and advertising materials provided for this purpose by the Company or, in the case of using its own photographic materials, to obtain the Written approval of the Company in advance in each case. The use of Logos and Brand Images online are strictly limited and final size, look and positioning must be approved by the Company.
(c) If the Buyer breaches the above provisions, the Company reserves the right to take appropriate legal steps, including, but not limited to, claim for damages and injunction.
- Retention of Title
(a) Ownership of the Goods shall not pass to the buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(i) the Goods; and
(ii) all other sums which are or which become due to the Company from the Buyer on any account
(b) Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(i) hold the Goods on a fiduciary basis as the Company’s bailee;
(ii) Store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(iv) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for the full price against all risks to the reasonable satisfaction of the Company. On request the buyer shall produce the policy of insurance to the Company.
(c) The Buyer may sell the Goods or any of them in the ordinary course of its business on the basis that any proceeds of sale shall be held in trust by the Buyer for the Company absolutely. The Buyer’s rights under this condition shall be conditional upon the Buyer including a retention of title condition substantially in the form of that contained at condition 8(b) above in all contracts entered into by the Buyer for the sale of Goods or any of them.
(d) The Buyer’s rights under condition 8(c) shall terminate immediately on notice from the Company or if the Buyer purports to encumber or in any way charge any of the Goods.
(e) The Company, its agents and employees may at any time enter the Buyer’s premises for the purpose of inspecting the Goods, identifying them as the Company’s property, or, where the Buyer’s right to possession is terminated, to recover them, and the Buyer irrecoverably authorises the Company to enter upon its premises for that purpose.
(f) Where the Company 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 the Company to the Buyer in the order in which they were invoiced to the Buyer.
(g) For the avoidance of doubt the Buyer shall not be entitled to take any steps to pledge or in any way charge by way of security for any indebtness any of them Goods which remain the property of the Company, but if the Buyer does so all moneys owing by the Buyer to the Company shall (without limiting any other right or remedy of the Company) forthwith become due and payable. On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 8 shall remain effective.
(a) Any claim by the Buyer, which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification must be notified to the Company in Writing within 7 days of delivery. If delivery is not refused and the Buyer does not notify the Company accordingly, the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
(b) Where a valid claim in respect of the Goods which is based on defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company as set out above, the Company may replace the goods in question, but shall have no further liability to the Buyer. Any claim for short delivery/incorrect items must be notified in Writing within 3 days of delivery.
(c) Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any in-direct special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms and Conditions.
(d) The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control: weather; civil disturbance; regulatory restriction; industrial actions; or trade disputes; difficulties in obtaining raw materials labour, fuel parts or machinery; power failure or breakdown in machinery.
- Trade Marks
The Buyer shall not make any modifications to Goods or their packaging, or alter, remove or tamper with any trade marks used on or in relation to the Goods. The Buyer having first obtained the written approval of the Company shall be allowed to advertise using the Trade Marks of the Company. Such approval is at the absolute discretion of the Company and can be withdrawn or refused at any time. The Company’s trade marks and it’s intellectual property rights remain vested in the Company at all times and this agreement shall not grant the Buyer any right to reproduce the Trade Marks without the consent of the Company.
- Insolvency of Buyer
This clause applies if:
(a) The Buyer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters into administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Buyer (within the meaning of the Insolvency Act 1986); or
(b) An encumbrancer takes possession, or a receiver is appointed, over any of the property or assets of the Buyer; or
(c) The Buyer ceases, or threatens to cease, to carry on business; or
(d) The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
If this Clause applies then, without limiting any other right or remedy available to the Company, the Company may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
- Force Majeure
(a) The Company shall, not be liable to the Buyer if unable to carry out any provision of the Contract for any reason beyond its
control including (but without limitation) Act of God, legislation, war, civil commotion, fire, flood, drought, failure of power
supply, lock out, strike, stoppage or other action by employees or third parties in contemplation or furtherance of any dispute or
owing to any inability to procure labour, parts or materials required for the performance of the Contract or due to power failure or
breakdown in machinery.
(b) The Company shall notify the Buyer as soon as reasonably practicable after circumstances preventing performance arise. During the
continuance of such a contingency the Company may, at its absolute discretion, withhold, reduce or suspend performance of its
contractual obligations, so far as prevented or hindered by such contingency, without liability to the Buyer for any loss or damage
whatsoever suffered directly or indirectly by reason of the same.
(c) Should such contingency continue for more than three months either party may (subject to the Company repaying to the Buyer any
advance payments made for undelivered Goods and the Buyer paying for Goods delivered) cancel the Contract without further liability to the other.
- No Waiver
No waiver of any of the Company’s rights under the Contract shall be effective unless in writing signed by an Authorised Person. A
waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of the Company’s rights in relation to different circumstances or the recurrence of similar circumstances.
(a) A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision so the party giving the notice.
(b) Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
(c) If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provisions in question shall not be affected.
(d) These Terms and the documents referred to herein contain the entire agreement between the parties with respect to its subject matter.