Terms and Conditions
VISICAN LIMITED
TERMS AND CONDITIONS OF SALE
This page (together with the documents referred to on it) tells you (the Buyer) the terms and conditions on which Visican Limited (the Seller) supplies any of its goods (the Goods) including those listed on the website www.visican.com.
By ordering any of the Seller’s Goods, the Buyer agrees to be bound by these terms and conditions.
1 Information about the Seller
1.1 The website visican.com is owned and operated by Visican Limited. Visican Limited is a company registered in England and Wales under company number 02993638 and with its registered office at 115 Phillips Street, Aston, Birmingham, B6 4PT. Our VAT number is GB655127537.
2 How the Contract is formed between the Seller and the Buyer
2.1 After the Buyer places an order, the Seller shall send the Buyer an acknowledgment by email, fax or post that the order has been received. This does not mean that the Buyer’s order has been accepted. The Buyer’s order constitutes an offer to the Seller to buy Goods. All orders are subject to acceptance by the Seller, and the Seller will confirm such acceptance to the Buyer by sending a confirmation (Order Confirmation). The contract between the Seller and Buyer (Contract) will only be formed when the Seller sends the Buyer an Order Confirmation.
2.2 The Contract will relate only to those Goods set out in the Order Confirmation. The Supplier will not be obliged to supply any other Goods which may have been part of the Buyer’s order until the supply of such Goods has been confirmed in a separate Order Confirmation.
2.3 If the Seller is unable to supply the Buyer with the Goods for any reason, the Seller will inform the Buyer of this and the Seller will not process the Buyer’s order. If the Buyer has already paid for the Goods, the Seller will refund the Buyer the full amount including any delivery costs charged as soon as possible.
3 Scope of Contract
3.1 These terms and conditions, together with any specification agreed in writing by the Supplier, comprise all the terms of the Contract between the Seller and the Buyer. No other statement, written or oral, including statements in any brochure or promotional literature of the Seller, shall be incorporated into the Contract or have any legal effect.
3.2 The terms set out below shall prevail over any terms put forward by the Buyer and except as provided for in 3.3 below 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 signed by its duly authorised agent.
3.3 No employee or agent of the Seller has any authority to vary these terms orally or to make any representation on behalf of the Seller as to their effect. No addition to or variation of these terms shall be binding on the Seller unless in writing signed by the Seller’s Managing Director.
3.4 The Buyer is responsible for ensuring that its order and any specification submitted by it is complete and accurate.
3.5 The images of the Goods on the website www.visican.com are for illustrative purposes only. Although the Seller has made every effort to display the colours accurately, the Seller cannot guarantee that the Buyer’s computer’s display of the colours accurately reflect the colour of the Goods. The colour of the Buyer’s Goods may vary slightly from those images.
3.6 The Seller reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirement.
4 Orders placed by consumers
4.1 The Seller does not accept orders for Goods placed by consumers. The Buyer (whether a company, partnership, individual or otherwise) warrants that it is buying the Goods in connection with its trade, business, craft or profession.
5 Delivery
5.1 If the Buyer fails to give the Seller instructions for the delivery of the Goods, the Seller may exercise either of the following rights:
5.1.1 treat the Buyer’s failure as a repudiation of the Contract and terminate the Contract with immediate effect, in that case the Seller may do any of the following, either alone or in any combination:
5.1.1.1 dispose of the Goods as it thinks fit;
5.1.1.2 retain any payment made by the Buyer before termination of the Contract;
5.1.1.3 recover from the Buyer any costs incurred in respect of the costs of storage of the Goods or of their disposal, together with damages for any other losses caused by the Buyer’s breach; or
5.1.2 arrange for storage of the Goods, in which case:
5.1.2.1 the Goods shall be stored at the Buyer’s risk;
5.1.2.2 the cost of storage shall be for the Buyer’s account and the Buyer will indemnify the Seller against all costs incurred by the Seller in arranging such storage;
5.1.2.3 the Buyer will pay the Seller a reasonable fee for its services in arranging for storage of the Goods.
5.2 The Seller will endeavour to have the Goods ready for delivery by the date agreed for delivery but it is agreed that the Buyer shall not be entitled to terminate this Contract by reason of the Seller’s failure to deliver by the agreed date.
5.3 The Seller shall not be liable to the Buyer for any losses caused to the Buyer by late delivery of the Goods.
5.4 If delivery is delayed by force majeure circumstances (defined below), the following provisions shall apply:
5.4.1.1 the Seller shall as soon as is reasonably practicable give the Buyer notice of the reasons for the delay, provided that the Seller shall incur no liability by reason of any failure to give notice;
5.4.1.2 the Seller’s duty to deliver shall be suspended for so long as the force majeure circumstances continue and the time for delivery shall be extended by an equivalent period;
5.4.1.3 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.
5.5 Due performance of the Contract is subject to cancellation or variation by the Seller as we may find necessary as a result of inability to secure materials or supplies or as a result of force majeure circumstances.
6 Price
6.1 The Seller reserves the right to vary the quoted price:
6.1.1 to take into account changes in wages, materials, production or other costs;
6.1.2 to include value added tax and similar levies and duties; and
6.1.3 to take into account quantity variations as reserved under clause 7.1 below.
7 Quantities
7.1 The Seller reserves the right to vary Contract deliveries:
7.1.1 to deliver quantities within a ten per cent margin of those ordered and to vary the price accordingly;
7.1.2 to vary the thickness of the material quoted within a ten per cent margin at the price quoted;
7.1.3 to vary the thickness of the material quoted within a twenty per cent margin at the price quoted where B grade materials are used; and
7.1.4 to meet the Buyer’s specifications as to colour and size subject to reasonable commercial variation at the price quoted.
7.2 The Seller shall be entitled to deliver the Goods by instalments of any size and in any order. All quantities stated on packs are approximately only.
7.3 If the Seller delivers more or less than ten per cent of the agreed quantity of Goods the following provisions of clause 7 shall apply:
7.3.1 the Seller shall have no liability to the Buyer in respect of the excess or shortfall unless the Buyer gives the Seller notice of the excess or shortfall within ten days of delivery. If the Buyer does give such notice;
7.3.2 in the case of excess delivery the Seller will make arrangements for the excess to be returned to the Seller at the Seller’s expense;
7.3.3 in the case of short delivery the Seller may at its own discretion either:
7.3.1.1 make good the shortfall by one or more further deliveries; or
7.3.1.2 reduce the Contract price by the same proportion as the shortage bears to the Contract quantity.
7.3.4 The Buyer shall not be entitled to reject any delivery on the grounds of any excess and delivery on the grounds of any excess or short delivery but shall pay the Contract price or, where the Seller exercises the option referred to in 7.3.1.2 above, the reduction price in accordance with that provision.
7.4 Save as provided in Clause 7.1 – 7.3.4 above, the Seller shall not be liable for any losses caused by excess or short delivery.
7.5 Where the Buyer supplies the Seller with materials for use in the performance of the Contract the Buyer shall supply sufficient quantities of the materials to cover spoilage.
8 Seller’s Warranty
8.1 Subject to these terms and conditions the Seller warrants that the Goods conform to the Contract specification in all material respects.
8.2 The Seller does not accept responsibility for property or materials supplied by or on behalf of the Buyer.
8.3 The Seller shall have no liability for any alleged failure of the Goods to conform to the Contract specification unless such failure is notified within 21 days of their being delivered.
8.4 If any of the Goods are found not to be in accordance with the Contract specification the Buyer shall notify the Seller in writing within 14 days of their being delivered. The Seller’s representative will then visit the Buyer’s premises within 7 days from receipt of the notice of complaint and examine the relevant Goods and if any are found not to conform to the Contract specification the Seller may, at its sole discretion, either:
8.4.1 at its own expense replace the Goods found not to be in accordance with the specification; or
8.4.2 reduce the Contract price by an amount equivalent to the proportion of the price payable in respect of the Goods found not to conform to the Contract specification.
8.5 The Buyer shall in any case accept and pay at Contract rate for all Goods which conform to the Contract specification.
8.5.1 The Seller shall not be liable for any economic loss suffered by the Buyer as a result of the failure of any Goods to conform to the Contract specification, including loss of profits, business, goodwill, or other consequential losses.
8.6 The Seller does not warrant that the Goods are fit for any particular purpose of the Buyer whether or not such purpose shall have been made known to the Seller or samples shall have been supplied by or to the Seller.
8.7 Save as provided for in this clause the Seller shall have no liability for any defect in the quality of the Goods or their failure to correspond to any description or sample or to be fit for any purpose and all other conditions, warranties, stipulations and undertakings, whether express or implied by statute or common law are excluded.
9 Liability
9.1 Subject to clause 9.3, if the Seller fails to comply with these terms and conditions, the Seller’s liability to the Buyer shall be limited to the purchase price of the Goods.
9.2 Subject to clause 9.3, the Seller will not be liable for losses that result from the Seller’s failure to comply with these terms and conditions that fall into the following categories:
9.2.1 loss of income or revenue;
9.2.2 loss of business;
9.2.3 loss of profits;
9.2.4 loss of anticipated savings;
9.2.5 loss of data; or
9.2.6 waste of management or office time.
However, this clause 9.2 will not prevent claims for loss of or damage to the Buyer’s tangible property that are foreseeable or any other claims for direct loss that are not excluded by categories 9.2.1 to 9.2.6 inclusive of this clause 9.2.
9.3 Nothing in the Contract excludes or limits the Seller’s liability for:
9.3.1 death or personal injury caused by the Supplier’s negligence;
9.3.2 fraud or fraudulent misrepresentation;
9.3.3 any breach of the obligations implied by section 12 of the Sale of Goods Act 1979; or
9.3.4 any other matter for which it would be illegal for the Seller to exclude or attempt to exclude its liability.
10 Import Duty
10.1 If the Buyer orders Goods for delivery outside the UK, they may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. The Buyer will be responsible for payment of any such import duties and taxes.
10.2 The Buyer must comply with all applicable laws and regulations of the country for which the Goods are destined. The Seller will not be liable for any breach by the Buyer of any such laws.
11 Payment
11.1 Payment for Goods must be made on order unless other payment terms are agreed. The Buyer will pay interest on sums paid late at the rate of 8% per annum above the official dealing rate of the Bank of England in force from time to time.
11.2 The Buyer will pay the full invoice price of Goods delivered without any deduction or set-off on the grounds of any alleged shortfall in delivery, defect in quality or failure to conform to specification, or other breach of Contract by the Seller.
11.3 If the Buyer fails to pay in full for Goods delivered by the date for payment under Clause 11.1 above the Seller shall be entitled to either suspend all further deliveries until the default is made good or to rescind any or all of the contracts between the Buyer and Seller and to bring an action for the price notwithstanding that property in the Goods has not passed to the Buyer.
12 Title and Risk
12.1 Goods delivered shall be at the Buyer’s risk from the time they are delivered.
12.2 Property in Goods delivered shall not pass to the Buyer until the Buyer has paid all sums due to the Seller in respect of the Goods and on any other account.
12.3 Until property in the Goods passes to the Buyer in accordance with Clause 12.2, the Buyer shall hold them as bailee for the Seller and shall store them separately from any similar Goods of the Buyer or any other person in such a way that they remain identifiable as the Seller’s property.
12.4 The Buyer may resell the Goods before the conditions in Clause 12.2 are satisfied on the following conditions:
12.4.1 any sale shall be effected by the Buyer as agent for the Seller, provided that the Buyer shall have no authority to create privity of contract between the Seller and any customer to whom the Goods are sold;
12.4.2 the Buyer will hold the proceeds of any such resale as trustee for the Seller, separate from its own monies in a separate, identifiable bank account.
12.5 The Buyer’s right to possession of Goods supplied by the Seller shall terminate if the Buyer is declared bankrupt or makes any proposal to his creditors for any composition or voluntary arrangement or an administrator, administrative receiver or liquidator is appointed in respect of its business.
12.6 The Buyer hereby grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are stored in order to inspect them or, where the Buyer’s right to possession has terminated, recover them.
13 Intellectual Property
13.1 The Seller is and shall remain, subject to any agreement in writing between the parties, the sole absolute and beneficial owner of all rights of copyright and any other intellectual property right that may vest in the Goods, artwork, designs or blocks supplied by the Seller (including, but not limited to, patents, trademarks, design rights, any right in a domain name or database).
13.2 The Seller believes that the Goods do not infringe any intellectual property rights of any third party and warrants that it is not aware of any adverse third party intellectual property rights affecting the Goods, other than those expressly disclosed to the Buyer.
13.3 If it is alleged that the Goods infringe any intellectual property right of any third party the Buyer shall:
13.3.1.1 promptly notify the Seller of the alleged infringement;
13.3.1.2 allow the Seller to defend such third party claim as it thinks fit and have sole control, at the Seller’s expense, of any litigation and/or negotiation relating thereto;
13.3.1.3 not without the Seller’s consent make any admission of liability.
13.4 The Buyer shall indemnify and keep indemnified the Seller against all liability against any actions, proceedings, claims, demands, damages, penalties, costs (including legal costs) and expenses to which the Seller may become liable or incur in respect of:
13.4.1.1 any words, designs, descriptions, trade marks, devices and other matter printed at the Buyer’s request or specification on the Seller’s Goods; and
13.4.1.2 any adverse effects upon Goods packed in the Seller’s products.
13.5 The Seller reserves the right to include its logo or trade mark on the Goods.
13.6 The Buyer will not without the Seller’s permission resell any Goods supplied under this Contract from which any label or logo has been removed or altered.
14 Applicable Law and Jurisdiction
14.1 The formation, construction and performance of this Contract shall be governed in all respects by English law.
14.2 It is agreed that the English courts shall have the sole jurisdiction to decide any dispute arising out of or in connection with the formation, construction or performance of this Contract.
15 Interpretation
In this Contract:
15.1 ‘condition’ means a term of this Contract, any breach of which shall entitle the party not in breach to terminate the Contract forthwith provided that notice is given in writing to the party in breach and in the event of breach by the Seller payment on all costs incurred.
15.2 ‘force majeure circumstances’ means circumstances beyond the Seller’s control, including but not limited to fire, flood, storm, Act of God, war, riot, civil commotion, strikes, lockouts and other industrial action.
15.3 ‘intellectual property rights’ means patents, copyrights, registered and unregistered design rights, registered and unregistered trade and service marks, confidential information and such rights as are protected by the law of passing off.
15.4 ‘Seller’s premises’ means the Seller’s premises at 115 Phillips Street, Aston, Birmingham B6 4PT.
15.5 ‘the Buyer’ means the person or organisation named as the Buyer overleaf or on the quotation.
15.6 ‘the Goods’ means the Goods forming the subject matter of this Contract indicated overleaf or on the quotation.
15.7 ‘the Seller’ means Visican Limited.