Tiffen International Ltd
TERMS AND CONDITIONS OF SALE
‘Company’ means the entity identified as such on the Sales Order being Tiffen International Limited and T/A Flysteadicam for the purpose of any clauses which exclude or restrict the Company’s liability, references to “the Company” include the relevant entity’s directors, agents and servants.
‘Conditions’ means these Terms and Conditions of Sale, as the same may be modified from time to time.
‘Consumer’ means a Customer who is buying Goods for purposes not related to his trade, business or profession.
‘Customer’ means the person, firm or company identified as such on the Sales Order, being the party who purchases the Goods from the Company.
‘Goods’ means any goods agreed in the Sale Agreement to be supplied to the Customer by the Company (including any part or parts of them).
‘Order’ means the Customer’s request to buy Goods which the Customer makes by placing a purchase order or otherwise communicating details of the Order to the Company verbally or in writing by physical or electronic means.
‘Order Acceptance’ means either the Company’s written confirmation that an Order is accepted or the Company’s issuance of a Sales Order, whichever occurs first.
‘Sale Agreement’ means each agreement concluded between the Company and the Customer for the sale and purchase of the Goods, comprising the Sales Order and these terms and conditions.
‘Sales Order’ means the Company’s Sales Order from time to time, which includes details of the accepted Order and which will accompany the Goods on delivery or collection (as applicable).
‘Tiffen International Ltd’ Eastside Complex, Pinewood Studios, Pinewood Road, Iver Heath SL0 0NH Company Reg: 04168871 Company VAT: GB 781 534 713
2. Purchase and sale/Order process
2(i) The Customer agrees that placing an Order with the Company constitutes a formal offer to buy the Goods identified in the Order, which is capable of acceptance by the Company on the basis of these Conditions. The Company is not obliged to accept any Order and shall not be deemed to have accepted an Order until Order Acceptance.
2(ii) Any Orders which are accepted by the Company pursuant to clause 2(i) above shall be governed solely by these Conditions to the exclusion of any terms offered by the Customer whether on a purchase order or order acknowledgement or otherwise. No representation or warranty collateral or otherwise shall bind the Company and no statement made by any representative by or on behalf of the Company shall vary these Conditions unless such representation warranty or statement has been made in writing and signed by a director of the Company.
2(iii) The Customer shall compensate the Company for any loss which the Company may suffer as a result of any cancellation or variation of any Order for the supply of Goods or services.
2.(iv) The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in these Conditions. Customer’s written or verbal purchase order shall be construed within the industry trade customs and usage.
2(v) The Customer shall ensure that the terms of its Order and any applicable specification are complete and accurate. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
Subject to clause 4 of these Conditions, title to the Goods passes to the Customer on the date of delivery or on the date of Order Acceptance, whichever is later.
4. Risk/Retention of Title
4.(i) The Goods are at the risk of the Customer from the time of delivery. Ownership of the Goods shall not pass to the Customer until the Company has received in full in cash or cleared funds all sums due or payable by the Customer to the Company for (a) the Goods and (b) all other sums which are or which become due to the Company from the Customer on any account. Until such time the Customer shall hold the Goods as bailee of and in a fiduciary capacity for the Company, store the Goods (at no cost to the Company) separately from any other goods and so as to be readily identifiable as the Company’s property, not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods, maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the Company’s reasonable satisfaction and on request the Customer shall produce the policy of insurance to the Company, not sell, pledge, assign, charge or otherwise dispose of the Goods or any interest therein, except that the Customer may resell the Goods before ownership has passed to it on condition that any sale shall be effected in the ordinary course of the Customer’s business at full market value and that any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
4.(ii) The Customer’s right to possession of the Goods shall terminate immediately if:
(a) the Customer 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 Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
(b) the Customer 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 or perform any of his/its obligations under the Sale Agreement or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
(c) the Customer encumbers or in any way charges any of the Goods.
4.(iii) The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
4.(iv) The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them. Where the Company is unable to determine whether any goods are the Goods for which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer. On termination of the Sale Agreement, howsoever caused, the Company’s (but not the Customer’s) rights contained in this clause 4 shall remain in effect.
Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery. 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 Customer shall pay in addition when it is due to pay for the Goods.
6.(i) Payment shall be made in cleared funds in advance of delivery unless otherwise agreed. Time for payment shall be of the essence. Payment of the price for the Goods is due in the currency appearing on the invoice. The Customer shall make all payments due under the Sale Agreement in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. All payments payable to the Company under the Sale Agreement shall become due immediately on its termination despite any other provision.
6.(ii) If delivery is delayed or deferred by the Customer, payments are due on the date the Company is prepared to deliver. If the Customer fails to pay the Company any sum due, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of three (3%) above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7.(i) Delivery of the Goods to the point agreed with the Customer shall constitute delivery to the Customer. Shipping dates are approximate, and the Company shall not be obligated to make deliveries by any specific date(s). The Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), including delay due to any of the circumstances set out in clause 8. Shipments made within 90 days of the initial delivery date, if any are set forth, shall be deemed deliveries in compliance with these terms and conditions.
7.(ii) No delay shall entitle the Customer to terminate or rescind the Sale Agreement unless such delay exceeds 90 days after the initial delivery date. If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorizations, risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company’s negligence), the Goods shall be deemed to have been delivered, and the Company may store the Goods until delivery, and the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
7.(iii) The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non-delivery within three days of the date when the Goods would in the ordinary course of events have been received. Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Goods.
The Company reserves the right to defer the date of delivery or to cancel the Sale Agreement or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company 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.
If shipment is deferred in whole or in part at Customer’s or Customer’s client’s request beyond the shipping date specified in the original order, the Company reserves the right immediately to bill the Customer for such un-shipped portion and for expenses incurred for storage, it being understood that such un-shipped materials become the Customer’s property, subject to the retention of title provisions contained in clause 4 of these terms and conditions, and the Company’s liability is that of warehouseman only.
10. Specifications and Warranties
10.(i) Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company. Subject to the terms of the specified warranty which accompanies certain Goods, the Company warrants that (subject to the other provisions of these terms and conditions) on delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Sale Agreement.
10.(ii) The Company shall not be liable for a breach of the warranty in this clause unless:
(A) the Customer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within seven days of the time when the Customer discovers or ought to have discovered the defect, and
(B) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business (at the Company’s cost where the Customer is a Consumer) for the examination to take place there.
10.(iii) The Company shall not be liable for a breach of the warranty in this clause if:
(A) the Customer makes any further use of such Goods after giving such notice, or
(B) the defect arises because the Customer failed to follow the Company’s oral or written instructions on the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice, or
(C) the Customer alters or repairs such Goods without the Company’s written consent. Subject to the provisions of this clause, if any of the Goods do not conform with the warranty in this clause the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata contract rate provided that, if the Company so requests, the Customer shall (at the Company’s expense, where the Customer is a Consumer) return the Goods or the part of such Goods which is defective to the Company.
10.(iv) The Company shall have no further liability for a breach of the warranty in this clause for such Goods. Any and all representations made hereunder shall be personal to the Customer and expire upon resale of the Goods.
No claims shall be allowed or credits provided for Goods returned without the Company’s authority, and no claims shall be made or allowed later than 30 days after receipt of the Goods by the Customer.
12. Limitation of Liability
12.(i) The following provisions shall govern the Company’s liability under any Sale Agreement:
(A) in no event shall the Company be liable for any indirect, special or consequential loss or for loss of profit, loss of income or revenue, loss of business, loss of anticipated savings, lost filming time or any waste of time or depletion of goodwill or any claim for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Sale Agreement..
(B) nothing in these Conditions shall operate to exclude or limit the Company’s liability for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
12.(ii) Subject to clauses 7 (Delivery), 10 (Specifications and Warranties) and 12.(i), this clause sets out the Company’s entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer for any breach of these terms and conditions, any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods, and any representation, statement or tortious act or omission including negligence arising under or in connection with the Sale Agreement. The total liability of the Company in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Sale Agreement shall be limited to the Sale Agreement price for the particular Goods to which the claim relates.
In addition to the purchase price specified herein, the Customer shall pay or reimburse the Company for the amount of any tax, excise or charge now or hereafter imposed by any government authority upon the sale, production or transportation of the Goods sold herein.
14. Manufacturing Techniques
The Goods may be manufactured or processed on a bespoke basis. The Customer may indicate desired manufacturing techniques or methods. The Company shall have the sole right and final discretion on the methods and techniques to be used in the manufacture of the Goods, including but not limited to manufacturing glass thickness, ultimate configuration, and ultimate shipping weight.
15. Impairment of Purchase Credit
If in the Company’s judgment the Customer’s credit shall become impaired at any time, the Company shall immediately have the right to decline delivery of Goods except for cash in advance, and until the Customer’s credit is established to the Company’s specification.
These Conditions and any related dispute or claim (including non-contractual disputes or claims) shall be governed by and interpreted according to English law and the parties submit to the exclusive jurisdiction of the English courts.
17(i) A third party who is not a party to a Sale Agreement shall not be entitled to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999. 17(ii) The Company may assign or sub-contract the Sale Agreement or any part of it to any person without requiring the Customer’s consent. Following the Company’s request the Customer shall promptly join in any novation of these Conditions and Sale Agreement. The Customer shall not assign the Sale Agreement or any part of it without the Company’s prior written consent.
17(iii) The Customer agrees to pay the Company all reasonable legal fees, collections fees, and all costs and other expenses incurred by the Company in any lawsuit brought to collect or enforce any obligation contained here.
17(iv). Each right or remedy of the Company under a Sale Agreement is without prejudice to any other right or remedy of the Company whether under the Sale Agreement or not.17(v) If any provision of the Sale Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, void able, 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 Sale Agreement and the remainder of such provision shall continue in full force and effect.17(vi) Failure or delay by the Company in enforcing or partially enforcing any provision of these Conditions shall not be construed as a waiver of any of its rights under the Sale Agreement.17(vii) Any waiver by the Company of any breach of, or default under, any provision of these Conditions by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Sale Agreement.
17(vi) In the event of loss, damage, or non-payment of monies owed, I understand that Tiffen International Ltd may instruct debt recovery services, and/or involve Legal proceedings to recover owed debt.
17 (vii) Tiffen International Ltd cannot be held responsible for any advice, instruction, guidance, representation or statement in connection, with or in relation to the nature use and application of any Equipment materials or services supplied by Tiffen International Ltd given, or made by any director or by any servant or agent of Tiffen International Ltd or by any technician whose services are supplied to the Customer, is given or made only on condition Tiffen International Ltd that shall in no circumstances be liable, therefore, or for loss or damage of any kind resulting there from however caused.
17(viii) Supplied data is processed and held by Tiffen International Limited and/or other members of the Tiffen group of companies and persons acting on their behalf for the purposes of supplying goods and services, related accounts and records.
17(ix) From time to time the Company may contact you to make you aware of goods and services which they provide and/or events which they think may be of interest to me within the Tiffen group. I also consent to my personal data being exported outside the EEA for these purposes. Tiffen International Ltd will not pass your details to any third party other than directly involved with your purchase such as warehouse and courier entities.
Continuation with purchase is agreement to these terms.
Tiffen International Ltd. Dec 2017.