Pocket Enterprises Limited Terms and Conditions of Sale and Supply of Goods and Services
1.1 Definitions used in these Conditions:
- Seller: means Pocket Enterprises Limited, Amelia House, Crescent Road, Worthing, West Sussex BN11 1 QS United Kingdom. (Registered Company Number 08923389).
- Buyer means any person or organisation named as the buyer in the Order and who purchases the Goods and / or Services from the Seller. All persons and organisations falling within this definition are jointly and severally liable for the obligations of the Buyer.
- Conditions: means the terms and conditions as set out in this document.
- Contract: means the contract between the Buyer and Seller for the purchase and sale of Goods and/or Services in accordance with the Conditions.
- Delivery: Means Ex-Works Seller’s premises (Incoterms 2010) unless otherwise stated in the Quotation or Order Acknowledgement.
- Force Majeure : means any circumstances beyond the control of the Seller, including but not limited to, war, threat of war, sabotage, hostilities, acts of God, riots, civil commotions, government restrictions including but not limited to acts, restrictions, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, strikes, lockouts or other industrial action, import or export regulations or embargoes, trade disputes, fire, accident, explosion, floods, weather conditions preventing the Sellers completion of the Goods, or delay in supplying or defects in items of machinery or equipment, or materials to be provided by or on behalf of the Buyer or any subcontractor of the Seller.
- Goods: means the standard Pokito product (as amended by the Buyers Design, where applicable) as described in the Specification.
- Intellectual Property: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), production know-how and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Order: means the Buyer’s order for the Goods and/or Services, which refers to the Seller’s Quotation number, and as set out in the Buyer’s purchase order form.
- Order Acknowledgement: as defined in clause 2.1 of these Conditions.
- Price: means the price agreed for the supply of the Goods and the supply of the Services as set out in the Order and as may be varied in accordance with clause 4.
- Quotation: means any quotation submitted by the Seller to the Buyer.
- Services: means any service for tooling (including pad prints), artwork or bespoke packaging which the Seller is to provide in accordance with the Conditions and as set out in the Specification.
- Specification: means the description of the Goods and/or the Services including the agreed changes to accommodate the Buyer’s Design, submitted by the Buyer and as detailed in the Order.
1.2 Any reference in the Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
- Scope of the Contract.
2.1 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with the Conditions and shall only be deemed to be accepted when the Seller issues a written Order Acknowledgement for the Order, at which point the Contract shall come into existence.
2.2 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
2.3 Any Quotation shall not constitute an offer and shall only be valid for a period of 30 days from its date of issue.
2.4 Subject to clause 4, no variation to the Contract shall be binding unless agreed in writing between the parties (including by use of an email exchange between the parties). For the avoidance of doubt, no employee or agent of the Seller has any authority to vary these terms orally or to make any representations on behalf of the Seller as to their effect.
2.5 The Conditions shall prevail over and to the exclusion of any terms put forward by the Buyer and no conduct of the Seller shall constitute acceptance of any terms put forward by the Buyer unless the Seller expressly agrees to them in writing.
2.6 Any typographical, clerical or other error or omission in any sales literature , Quotation, pricelist, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without liability on the part of the Seller.
2.7 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller, is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
- Orders and Specifications.
3.1 The Buyer shall be responsible to the Seller for ensuring the completeness and accuracy of the terms of any Order, including any applicable Specification (and amendments as covered in clause 7.2 below), submitted by the Buyer and for giving the Seller any necessary information within a sufficient time to enable the Seller to perform the Contract in accordance with these Conditions.
3.2 Subject to clause 2.1, no Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of the cancellation.
3.3 The Seller reserves the right to subcontract in part or in whole the manufacture of any of the Goods or provision of the Services without the prior approval of the Buyer.
3.4 The Seller reserves the right to make any changes in the Specification which are required to conform with any applicable statutory or EU requirements, which do not materially affect their quality or performance.
- Price of the Goods.
4.1 The Seller reserves the right by giving notice to the Buyer at any time before Delivery to change the price of the Goods or Services to reflect any increase in the costs to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increases in the cost of labour, materials or other costs of manufacture), any changes in Delivery dates, quantities or Specifications for the Goods or Services, which is requested by the Buyer, or any delay caused by any instrument of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.2 Unless otherwise confirmed in the Order Acknowledgement all Prices are on an Ex- Works Seller’s premises (Incoterms 2010). The Price is in the currency specified on the Order Acknowledgement.
4.3 The Price is exclusive of any applicable VAT which will added at the prevailing rate and which the Buyer will be liable to pay to the Seller.
- Terms of Payment.
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller as set out in the Order Acknowledgment, the Seller shall be entitled to invoice the Buyer for the Price on Delivery of the Goods or performance of the Services. 5.2 Unless otherwise stated in the Order Acknowledgement, the Buyer shall pay the Price for Goods within 30 days from the date of invoice.
5.3 Payment Terms for Services will be determined on a contract by contract basis as defined in clause 7.7.
5.4 The Buyer shall pay the Price of the Goods in accordance with these clauses (5.2, 5.3 and 7.8) and the Seller shall be entitled to recover the Price, not withstanding that Delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the Price shall be of the essence. Receipts for payment will only be issued by the Seller on request.
5.5 If the Buyer fails to make payment to the Seller on the due date then, without prejudice to any other rights or remedies available to the Seller, the Seller shall be entitled to terminate the Contract or suspend any further deliveries of Goods, performance of any further Services, charge the Buyer interest (both before and after any judgment) on the unpaid amount at a rate of 5% per annum above HSBC UK Bank plc base rate as amended from time to time until payment is made in full on a daily basis, and appropriate any payment made by the Buyer to such of the Goods as the Seller may think fit.
5.6 The Buyer shall have no right to make any deduction or set – off on the grounds of alleged shortfall of deliveries, defect in quality, breach of contract by the Seller, negligence by the Seller, or failure to conform to specification or sample.
- Collection/Delivery of Goods.
6.1 Unless otherwise confirmed in the Order Acknowledgement the Buyer shall collect the Goods from the Seller’s premises, at any time after the Seller has notified the Buyer that the Goods are ready for collection.
6.2 The Seller shall use reasonable endeavours to deliver the Goods by the Delivery date or ensure they are ready for collection by the estimated collection date; provided that any dates quoted for the Delivery or collection of the Goods, are approximate only and the Seller shall not be liable for any delay however caused. Time of Delivery or collection shall not be of the essence of the Contract in relation to any Delivery or collection dates or milestones provided by the Seller. The Seller shall not be liable for any delay in Delivery or collection of the Goods that is caused by a Force Majeure Event. The Goods may be delivered by the Seller in advance of the quoted Delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each instalment shall constitute a separate contract and failure by the Seller to deliver 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 as a whole as repudiated.
6.4 When the Goods are ready for collection by the Buyer, the Seller will give the Buyer notice of readiness for collection. It is a condition of these Conditions that the Buyer shall collect the Goods within 7 days of that notice being received. Delivery shall occur on the Buyer collecting the Goods or on the expiration of the said 7 days, whichever first occurs.
6.5 If the Buyer fails to take Delivery of the Goods (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may store the Goods until actual Delivery and charge the Buyer for the reasonable costs (including insurance) of storage and or 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.
7.1 The Buyer shall be responsible to the Seller for ensuring the completeness and accuracy of the terms of any Order (including any applicable Specification) submitted by the Buyer and for giving the Seller any necessary information within a sufficient time to enable the Seller to perform the Contract in accordance with these Conditions.
7.2 Where the Seller prepares or modifies designs or drawings relating to the Specification at the request of the Buyer, the Buyer shall approve such designs and drawings in writing and until the Seller has received such approval, the Seller shall be under no liability to the Buyer and any time for Delivery shall not commence.
7.3 The Buyer warrants and agrees that the Specification shall not infringe any third parties’ intellectual property rights. The Buyer shall ensure that it has all necessary rights to the Specification so that the Seller may manufacture and supply the Goods pursuant to the Conditions. The Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Specification.
7.4 If after the Seller has accepted an Order the Buyer requires any alteration to the Goods or Specification, the costs of such alterations shall be payable by the Buyer on demand. Any request for alterations shall be made in writing to the Seller and whilst the Seller shall be under no obligation to accept such request the terms of any agreed amendment will be covered by a supplementary Order Acknowledgement amendment.
7.5 The Seller reserves the right to subcontract in part or in whole any of the Services without the prior approval of the Buyer.
7.6 Any tooling supplied as Services, will be retained by the Seller’s subcontractor who will preserve such items in a proper manner for subsequent use where applicable and practicable for a period of two years but will not accept liability for loss or damage.
7.7 Payment terms for Services will be determined on a contract by contract basis and will be expressly stated in any Quotation and any subsequent related Order Acknowledgement.
8.1 The Buyer shall not be permitted to terminate this contract or refuse to accept any Delivery by reason of the Seller not delivering the Goods or performing the Services by any given or agreed estimated date .
8.2 The Seller shall not be liable to the Buyer for any losses caused by the Seller not delivering the Goods or performing the Services by any given or agreed estimated date.
8.3 The Buyer recognises and agrees that any amendment in accordance with clause 3.4 of these Conditions may delay Delivery of the Goods or performance of the Services.
8.4 Without prejudice to clause 6.2, if Delivery of the Goods or performance of the Services is delayed or prevented by Force Majeure circumstances, then without prejudice to any of the Sellers rights under these Conditions, the Seller shall as soon as is reasonably practicable, give the Buyer notice of the reasons for the delay, advise of the suspension of its duty to deliver the Goods or perform the Services for the expected duration of the Force Majeure or the Seller may at any time and at its sole discretion, give notice to the Buyer to terminate the Contract. In that case the Seller shall incur no liability to the Buyer for any losses caused as a result of the termination or the failure to deliver any of the Goods not supplied by the Seller to the Buyer or the failure to provide the Services.
9.1 Subject to the conditions set out below, the Seller warrants that the Goods and the Services will conform in all material respects to the Specification and the Goods will be free from material defects in material and workmanship for a period of two years from the date of Delivery (provided always that the Buyer acknowledges and agrees that the Goods may contain certain imperfections including colour compliance and any pad printed images applied to the Goods which are not in accordance with the Specification and such imperfections shall not be deemed a breach of the warranty contained in this clause 9.1).
9.2 Subject to Clause 9.1, if any of the Goods or Services do not conform to the Specification and the Seller is under the terms of these Conditions liable for such failure to conform then, provided it is first permitted a reasonable opportunity to inspect the same, the Seller shall, at its sole discretion, in relation to those Goods or Services, either replace them at its own expense or reduce the price by an amount equivalent to that proportion of the Price payable in respect of them.
9.3 The Buyer agrees to inspect each part of the Goods as soon as possible after Delivery. If the Seller does not receive notification of the Goods failing to comply with the warranties set out in clause 9.1 within 7 days of Delivery the same shall be deemed to have been accepted by the Buyer and the Seller shall not be in breach of the warranties set out in 9.1.
9.4 Save as provided for in section 9 of the Conditions; the Seller does not warrant that the Goods are fit for any particular purpose of the Buyer, shall have no liability for any defect in the quality of the Goods, shall have no liability for the failure of the Goods or the Services to conform to any description or specification supplied by the Buyer (other than the Specification. 9.5 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damages, negligence, failure to follow the Seller’s written instructions and illustrated guidelines on usage and care of the Goods, misuse or alteration or repair of the Goods without the Seller’s prior approval in writing;
9.6 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods or Services has not been paid by the due date for payment.
9.7 If Goods supplied by the Seller are altered, adapted or repaired by the Buyer (save as provided in clause 9.1) and all liability of the Seller to the Buyer for such repair or otherwise shall cease.
9.8 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.9 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer is not affected by these Conditions.
9.10 Subject to clause 9.11, the Seller 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 any indirect, special or consequential loss or damage (whether for loss of profit, use, contract, goodwill or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise)which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.
9.11 The Seller 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 Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, Force Majeure circumstances shall be regarded as causes beyond the Seller’s reasonable control.
9.12 Nothing in these Conditions shall limit or exclude the Seller’s liability for, death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); fraud or fraudulent misrepresentation; breach of the terms implied by section 12 of the Sale of Goods Act 1979; defective products under the Consumer Protection Act 1987; or any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
9.13 Subject to clause 9.12, the Seller’s total liability to the Buyer 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, shall in no circumstances exceed the Price of the Goods.
- Risk and Title.
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the point of Delivery at the time when the Seller notifies the Buyer that the Goods are available for collection.
10.2 Notwithstanding Delivery and the passing of risk in the Goods, or any other provision of these Conditions, title in the Goods shall not pass to the Buyer until the Seller has received in cash, or cleared funds, payment in full of the Price of the Goods and all other Services covered by the relevant Order Acknowledgement and related Invoice.
10.3 Until such time as the title in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business.
10.4 Until such time as the title in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
10.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
10.6 If the Buyer sells any of the Goods during the time that title in them remains in the Seller, the Buyer must hold all the proceeds of sale as trustee for the Seller, and if the Buyer sells any goods incorporating the Goods the Buyer must hold so much of the proceeds of sale as relates to the Goods as trustee for the Seller must be placed in a separate bank account held to the order of the Seller until amounts due to the Seller paid.
- Intellectual Property
All intellectual Property in or arising out of or in connection with the Goods and Services shall be owned by the Seller except where there Specification includes a change to include the Buyer’s Design and where this uses a logo or trademark belonging to the Buyer or is being used by them with the consent of the owner of that logo or trademark.
- Insolvency of Buyer.
12.1 Applies if the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or is deemed either unable to pay its debts or has no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; the Buyer ceases, or threatens to cease, to carry on business; the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
12.2 If clause 12.1 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel or terminate the Contractor suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods or Services have been delivered or performed but not paid for the Price shall be come immediately due and payable not withstanding any previous agreement or arrangement to the contrary.
The Seller shall be entitled to retain possession of any or all of the Goods and the Buyers materials as security for payment of all sums due and unpaid by the Buyer.
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-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. Furthermore, should there be 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.
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.
- Third party rights.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
- Law and Jurisdiction.
This contract is governed by and shall be construed in accordance with English law and the Buyer agrees to submit to the exclusive jurisdiction of the English courts.
Any notice required or permitted to be given by either party to the other under these Conditions 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 to the party giving them notice.