Terms and Conditions of Supply
1.1 In these terms and conditions of supply ("Conditions"), the following words shall have the following meanings unless the context otherwise requires.
"Buyer" the person, firm or company purchasing Goods from the Supplier;
“Contract" any contract between the Supplier and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
“Goods" any goods that the Supplier is to supply to the Buyer in accordance with these Conditions;
"Intellectual Property Rights" copyright and related rights, trademarks, trade names and domain names, designs (registered or unregistered), rights in get-
"Order" the Buyer's order for the Goods, as set out in the Buyer's purchase order form communicated to the Supplier, and/or any other request to purchase Goods that is communicated to the Supplier by the Buyer;
"Price" the price payable for the Goods in accordance with Condition 7;
“Sales Documentation" the Supplier's catalogues, brochures, promotional literature, price lists, and/or other selling aids issued by the Supplier;
“Supplier" Tuppenny Rainbow of Norwich, England;
“Supplier's Intellectual Property” all Intellectual Property Rights belonging to the Supplier, including (without limitation) the Trade Marks, the Supplier's artwork, the Supplier's text and literary works, and
“Trade Marks" the name ' Tuppenny Rainbow of Norwich ', and any and all registered and unregistered trade marks (including word and logo marks) belonging to or licensed exclusively to the Supplier from time to time.
1.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-
1.4 A reference to writing or written includes faxes and e-
2 Basis of Contract
2.1 These Conditions are the only conditions upon which the Supplier is prepared to deal with the Buyer and they shall govern any contract with the Buyer for the sale, purchase and supply of Goods to the entire exclusion of any other express or implied conditions.
2.2 These Conditions may only be modified by a variation in writing signed on behalf of the Supplier by a director or other authorised representative of the Supplier and no other action on the part of the Supplier (whether delivery of any Goods, or otherwise) shall be construed as an acceptance of any Other conditions.
2.3 These Conditions (as modified in accordance with Condition 2.2) together with the matters referred to in the Order (if any) and the Supplier's confirmation and/or acceptance of the Order (as applicable) embody the entire agreement of the Supplier and the Buyer in relation to the sale, purchase and supply of the Goods by the Supplier and/or ordered by the Buyer and supersede any prior promises, statements, representations (save for those made fraudulently) or undertakings of either party in respect thereof.
2.4 No employee, agent or sub-
2.5 Any quotation in whatever form given to the Buyer by the Supplier is given subject to these Conditions and does not constitute an offer to sell or supply.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in Sales Documentation are produced for the sole purpose of giving an approximate idea of the Goods described in such documentation, and shall not form part of the Contract or have any contractual force.
3 Orders for Goods
3.1 An Order will constitute an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable specification submitted by the Buyer are complete and accurate.
3.2 For the avoidance of doubt, the Buyer acknowledges that the Supplier shall not be under any obligation to accept an Order.
3.3 No contract shall be concluded with the Buyer until the Supplier accepts the offer set out in an Order by either:
3.3.1 communicating confirmation and/or acceptance of an Order to the Buyer, or
3.3.2 fulfilling the Order.
3.4 Orders for Goods and (if applicable) Services that have been accepted by the Supplier can only be cancelled by the Buyer with the prior written agreement of the Supplier and on the condition that the Buyer shall indemnify the Supplier in full against all loss (including, without limitation, loss of profit), damage, costs (including, without limitation, the cost of all labour and materials used) and expenses incurred by the Supplier as a result of such cancellation.
4.1 The Supplier WILL make reasonable endeavours to deliver the Products comprised within an Order within six (6) weeks following cleared payment of an invoice relating to the relevant Order. Notwithstanding the foregoing, any dates quoted for delivery of the Goods are non-
4.2 Delivery of each consignment of Goods shall be made to the place designated by the Buyer in the Order or such other location as the parties may agree. Delivery of the Goods shall be completed on the Goods' arrival at Such location.
4.3 The Supplier may deliver the Goods by separate instalments. Where any Goods are to be delivered or supplied in instalments, each delivery or supply shall constitute a separate contract and failure by the Supplier to deliver or supply any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract with the Buyer for the sale, purchase and supply of such Goods as repudiated in its entirety.
4.4 In relation to all Goods to be exported to the Buyer outside the United Kingdom, the Buyer shall be solely responsible for complying with any legislation or regulations governing the importation of such Goods into the country of destination and for the payment of all taxes, duties, levies and other charges in relation thereto.
4.5 The quantity of any consignment of Goods as recorded by the Supplier on despatch from the Supplier'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.
4.6 The Supplier shall not be liable for any non-
4.7 Any liability of the Supplier for non-
4.8 If the Buyer fails to take delivery of any Goods or fails to give the Supplier adequate delivery instructions at the time stated for delivery (otherwise than by any reason of any cause beyond the Buyer's reasonable control or by reason of the Supplier's fault) or the Supplier is withholding delivery of any Goods pursuant to Condition 7.8.2, the Supplier (without prejudice to any other rights or remedy it may have) may either.
4.8.1 store the Goods as set out in Condition 4.9; or
4.8.2 sell the Goods at the best price readily obtainable and, after deduction of the Supplier's reasonable storage and sale expenses, charge the Buyer for any shortfall below the Price for such Goods.
4.9 The Supplier shall be entitled to store the Goods (or any of them) at the Buyer's expense in respect of those Goods at the Supplier's premises or elsewhere if:
4.9.1 where the Buyer is required to collect the Goods from the Supplier's premises, the Buyer fails to collect the Goods at the specified time;
4.9.2 where the arrangement is for the Goods to be delivered to the Buyer, the Supplier is either unable to despatch the Goods by reason of the acts or omissions of the Buyer or the Supplier has despatched the Goods but the Buyer fails to take delivery, or
4.9.3 if the Supplier is withholding delivery of the Goods pursuant to Condition 7.8.2,
and the Buyer shall cover all reasonable costs incurred by the Supplier in relation to such storage, whether by way of storage costs, insurance costs or otherwise.
5.1 The Supplier warrants that on delivery, the Goods shall:
5.1.1 conform in all material respects with their description;
5.1.2 be free from material defects in design, material and workmanship;
5.1.3 be fit for any purpose held out by the Supplier.
5.2 Subject to Condition 5.3, if:
5.2.1 the Buyer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Condition 5.1; and
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Buyer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Buyer's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in Condition 5.1 in any of the following events:
5.3.1 the Buyer makes any further use of such Goods after giving notice in accordance with Condition 5.2;
5.3.2 the defect arises because the Buyer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Buyer.
5.3.4 the Buyer alters, modifies, or repairs such Goods without the written consent of the Supplier; or
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
5.4 Except as provided in this Condition 5, the Supplier shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in Condition 5.1.
5.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6 Title and risk
6.1 The risk in the Goods shall pass to the Buyer upon delivery of the Goods to the Buyer or any carrier acting on the Buyer's behalf. If the Supplier is unable to despatch the Goods because of the Buyer's acts or omissions or the Buyer fails to take delivery of the Goods, the risk in the Goods shall still pass to the Buyer at the time when the Buyer should have collected the Goods or taken delivery.
6.2 The property in the Goods shall not pass to the Buyer until the total price of:
6.2.1 the Goods; and
6.2.2 any other goods supplied under any contract with the Buyer to which these Conditions apply or any other contract between the Supplier and the Buyer for which payment to the Supplier remains due, is paid in full and cleared funds.
6.3 On termination of the Contract, howsoever caused, the Supplier's (but not the Buyer's) rights contained in this Condition 6 shall remain in effect.
7 Price and payment
7.1 In respect of any contract with the Buyer to which these Conditions apply, the Price for the Goods to be supplied under that contract will be the price set out in the Order and accepted by the Supplier, or, if no price is quoted or accepted, the price set out in the Supplier's published price list in force as at the date of delivery.
7.2 The Supplier reserves the right, by giving written notice to the Buyer at any time before delivery of the Goods, to increase the Price to reflect any increase in the cost to the Supplier of supplying the Goods that is due to any factor beyond its reasonable control (such as, without limitation, foreign exchange fluctuation, currency regulation, alteration of duties or significant increases in the cost of the labour, materials or other costs of manufacture), or any changes in the Order or the delivery dates or quantities of the Goods that are requested by the Buyer or any delay caused by any of the Buyer's instructions or the Buyer's failure to give the Supplier adequate information or instructions.
7.3 The Price is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
7.4 The Price is exclusive of value added tax or any similar applicable taxes, levies or duties, which will be added to or charged on invoices at the appropriate rates.
7.5 The Supplier may invoice the Buyer for the Price on or at any time after acceptance of an Order.
7.6 The Buyer shall pay the invoice in full and in cleared funds in Pounds Sterling (or in Euros if instructed by the Supplier) within 30 days of the date of the Supplier's invoice. Payment shall be made by BACS or equivalent electronic transfer to the bank account nominated in writing by the Supplier, and the Buyer shall pay all applicable bank charges and transfer fees.
7.7 The Buyer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-
7.8 Where any sum owed by the Buyer to the Supplier under any contract to which these Conditions apply is overdue.
7.8.1 interest will be chargeable on the sum due before and after judgment, accruing on a day-
7.8.2 the Supplier may withhold the delivery or supply of any Goods and/or Services due to be made to the Buyer under any contract to which these Conditions apply until arrangements as to payment or credit have been established which are satisfactory to the Supplier.
7.9 If the Buyer fails to pay for Goods in accordance with these Conditions, the Supplier may bring an action against the Buyer for the Price of those Goods at any time, even though the property in the Goods has not passed to the Buyer.
8 Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable):
8.1.2 fraud or fraudulent misrepresentation;
8.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
8.1.4 defective products under the Consumer Protection Act 1987; or
8. 1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.2 Subject to Condition 8.1:
8.2.1 the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors); and
8.2.2 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in Contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors shall not exceed the price of the Goods.
8.3 If the Supplier is found liable under any contract to which these Conditions apply for any loss or damage suffered by the Buyer, that liability shall (unless otherwise provided in these Conditions) in no circumstances exceed the higher of: (i) the Price (exclusive of value added tax or any similar applicable taxes, levies or duties), and (ii) the actual proceeds received by the Supplier under its public liability policy (or other relevant insurance policy) in respect of the liability in question.
9.1 The Buyer agrees to carry out all advertising of the Goods in accordance with any branding or brand usage guidelines issued by the Supplier from time to time, and in accordance with all applicable rules, regulations, and legislation inforce from time to time.
9.2 The Buyer agrees to obtain the prior written consent of the Supplier prior to carrying out advertising of any kind featuring or incorporating the Trade Marks.
10 The Supplier's Intellectual Property and the Trade Marks
10.1 The Buyer acknowledges that the Supplier and/or its licensors retain ownership of all Intellectual Property Rights in the Goods and in the Trade Marks, and that the Supplier is, and shall remain, the sole owner of the Supplier's Intellectual Property (all references to which, for the avoidance of doubt, include the Trade Marks).
10.2 The Buyer acknowledges that the Supplier's Intellectual Property can be used by the Buyer only with the express consent of the Supplier, and that these Conditions do not grant the Supplier such consent, or any rights to use the Supplier's Intellectual Property.
10.3 In the event that the Supplier grants a licence to the Buyer to use the Supplier's Intellectual Property, the Buyer shall use the Supplier's Intellectual Property only to the extent and duration permitted under such licence.
10.4 The Supplier makes no representation or warranty as to the validity or enforceability of the Supplier's Intellectual Property nor as to whether the Supplier's Intellectual Property infringes any intellectual property rights of third parties in any territory.
10.5 The Buyer may not, without the prior written consent of the Supplier, sub-
10.6 The Buyer shall not during the Term dispute or challenge the validity of the Supplier's Intellectual Property or the rights of the Supplier to the Supplier's Intellectual Property.
10.7 The Buyer acknowledges that the goodwill and all other rights in and associated with the Supplier's Intellectual Property vest absolutely in the Supplier and that it is the intention of the parties that all such rights will at all times hereafter and for all purposes remain vested in the Supplier and in the event that any such rights at any time accrue to the Buyer by operation of law or howsoever otherwise the Buyer will at its own expense immediately on demand do all such acts and things and execute all such documents as the Supplier shall deem necessary to vest such rights absolutely in the Supplier.
10.8 The Buyer shall not, without the prior written consent of the Supplier.
10.8.1 register any domain names including the ' Tuppenny Rainbow of Norwich ' name, or the Trade Marks, or any other similar name; or
10.8.2 register any usernames on websites, social media networks, or equivalent portals (whether now existing or hereafter devised) that include the ' Tuppenny Rainbow of Norwich ' name, or the Trade Marks, or any other similar name,
and in the event that the Buyer does register such domain names or usernames (whether with or without the consent of the Supplier) the Buyer will promptly upon the request of the Supplier transfer such domain name registration or control of the relevant accounts (as applicable) to the Supplier.
10.9 The Buyer shall promptly give notice in writing to the Supplier if the Buyer becomes aware of:
10.9.1 any infringement or suspected infringement of the Supplier's Intellectual Property or any other intellectual property rights relating to the Goods; or
10.9.2 any claim that any Goods or the manufacture, use, sale or other disposal of any Goods, whether or not under the Trade Marks or under the Supplier's Intellectual Property, infringes the rights of any third party.
10.10 The Supplier may grant to the Buyer the non-
10.11 The Goods shall be supplied under the Trade Marks. On all documents and advertisements for the Goods, the symbol "@" shall be used with any registered Trade Marks or "TM" shall be used with any Trade Mark application.
10.12 The Buyer shall use the Trade Marks only in relation to the Goods. All representations of the Trade Marks that the Buyer intends to use shall be submitted to the Supplier for approval before use.
10.13 The Buyer shall not, without the prior written consent of the Supplier, alter or make any addition to the labelling or packaging of the Goods displaying the Trade Marks. The Buyer shall not alter, deface or remove any reference to the Trade Marks, any reference to the Supplier or any other name displayed on the Goods or their packaging or labelling.
10.14 In its use of the Trade Marks, the Buyer shall strictly comply with any branding or brand usage guidelines issued by the Supplier from time to time.
10.15 All representations of the Trade Marks that the Buyer intends to use shall be submitted to the Supplier for approval before use.
10.16 The Buyer shall not sub-
10.17 The Buyer shall not do, or omit to do, anything in its use of the Trade Marks that could adversely affect their validity.
11 Force majeure
11.1 If the Supplier is prevented from or hindered in delivering any Goods or supplying any Services through any circumstances beyond its reasonable control (including, without limitation, strike, lockout or other industrial action, war, fire, Act of God or prohibition or enactment of any kind), the Supplier shall have the right to cancel or to reduce the volume of the Goods to be delivered or Services to be supplied Without any liability to the Buyer.
12 Assignment and sub-
12.1 The Supplier shall be entitled to assign, transfer or sub-
12.2 The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
13 Termination and suspension
13.1 Without prejudice to any other rights or remedies available to the Supplier, the Supplier may terminate any contract with the Buyer to which these Conditions apply or suspend or cancel delivery of any Goods and/or any Services to be supplied or recover possession of any Goods supplied under such contract without any liability to the Buyer if:
13.1.1 any sum owed by the Buyer under that contract, any other contract with the Buyer to which these Conditions apply or any other contract between the Supplier and the Buyer is overdue;
13.1.2 the Buyer breaches any term of that contract and (if capable of remedy) does not;
remedy such breach within seven days of being requested to do so by the Supplier;
13.1.3 the Buyer passes a resolution or suffers an order of a court to be made for its winding up, a receiver, administrative receiver or administrator shall be appointed over all or any part of the Buyer's undertaking or assets, the Buyer goes into liquidation or ceases to trade or a petition for the appointment of an administrator shall be presented in respect of the Buyer, or
13.1.4 in the reasonable opinion of the Supplier, the Buyer is for any other reason unable to meet its obligations under that contract.
13.2 Upon termination for any reason of any contract with the Buyer to which these Conditions apply, the Price payable for any Goods and/or Services supplied under such contract for which the Supplier has not received payment prior to termination shall become immediately due and payable.
14 Third party rights
14.1 These Conditions do not create any right under any contract to which these Conditions apply that is enforceable by any person who is not a party to such contract.
15.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by prepaid first class post, recorded delivery, commercial courier, fax or e-
15.2 A notice or other communication shall be deemed to have been received; if delivered personally, when left at the recipient's address; if sent by pre-
15.3 The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action.
16.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-
16.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17.1 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18.1 The laws of England and Wales shall govern any contract with the Buyer to which these Conditions apply and the English courts shall have the exclusive jurisdiction (to which the Buyer hereby irrevocably submits) to resolve any disputes arising out of any such contract.