DRAGONS BREATH SUPPLY OF GOODS TERMS AND CONDITIONS (CONDITIONS
1 Application of Conditions
1.1 These are the conditions on which Dragons Breath supply goods.
Where an order is accepted by Dragons Breath, the order acknowledgement and conditions (together the Contract) shall constitute a contract between the parties. These Conditions apply to the Contract to the exclusion of all other terms (including any terms and conditions that the Customer purports to imply). The order shall not form part of the Contract.
2.1 In these conditions the following definitions apply:
Customer: The person on entity who purchases goods from Dragons Breath.
Goods: The goods (or any part of them) set out in the Order Acknowledgement.
Order: The Customers order for the Goods.
Order Acknowledgement: Dragons Breath’s conformation of its acceptance of an Order.
Working Day: A day (other than a Saturday, Sunday or public holiday when banks in London are open for business.
2.2 The headings in these Conditions are for ease of reference only and shall not affect the construction or interpretation of the Contract. Words denoting the singular meaning include the plural and vice versa unless the context otherwise requires. References to including and include shall be deemed to mean respectively including without limitation and include without limitation.
2.3 References in these conditions to any statute, statutory provision or regulation includes a reference to:
2.3.1 that statute, statutory provision or regulation as from time to time amended extended, re-enacted or consolidated whether before or after the date of the Contract; and
2.3.2 all statutory instruments or orders made pursuant to it.
3.1 The customer is responsible for ensuring that the terms of the order acknowledgement are complete and accurate.
3.2 On acceptance of our order acknowledgement, the contract is deemed to have come into existence. Subject to provisions of condition 3.3
3.3 Dragons Breath Reserves the right to alter correct of change orders as a variation to incorporate such alterations.
3.4 The Contract constitutes the entire agreement between the parties.
3.5 The Customer acknowledges that it has not relied on any statement promise or representation made or given by or on behalf of Dragons Breath which is not set out in the Contract.
4 Price and Payment
4.1 The price of goods are set out in the order acknowledgement.
4.2 The price of goods is exclusive of transport costs insurances and packaging. (which unless agreed in writing between the parties) shall be invoiced to the customer.
4.3 The price of goods is exclusive of amounts payable in respect of value added tax (VAT). All such amounts should be paid in full to Dragons Breath as chargeable amounts to supply goods. Individuals and non VAT registered businesses in Europe must pay the VAT on all invoices.
4.4 The customer shall pay for goods in full, using cleared funds. The payment can be made by BACS or CHAPS transfer.
4.5 Lawful credit cards can be used to pay invoice amounts. These are levied with credit card agency on acceptance of payment.
4.6 The customer shall pay all amounts due under the contract in full without any deduction or withholding except as required by law and the customer shall not be entitled to asset any credit, set-off or counter claim against Dragons Breath in order to justify withholding payment of any such amount in whole or part. Dragons Breath may at any time, without limiting any other rights or remedies it may have set off any amount owing to it by the customer against any amount payable by the Dragons Breath to the customer.
5 Title an risk
5.1 The risk of the goods shall pass to the customer on completion of the unloading of the goods at the customers premises (save where the Customer elects to collect the goods from Dragons Breath premises.in which case the risk of the Goods shall pass to the customer on completion of the loading of the Goods at Dragons Breath premises).
5.2 Title to the Goods shall not pass to the Customer until Dragons Breath has received payment in full (in cleared funds) for the Goods.
5.3 Until the goods have passed to the Customer, the Customer shall:
5.4 maintain the Goods in a satisfactory condition and keep them insured against all risks for the full price.
6.1 Dragons Breath shall ensure that each delivery of the goods is accompanied by a delivery note (Delivery Note) to be signed on behalf of the Customer which shows the date of the Order acknowledgement, all relevant Customer and Dragons Breath reference numbers, the type and quantity of the Goods, and, if the Goods are being delivered by installments, the outstanding balance of Goods remaining to be delivered.
6.2 It is the Customers responsibility to ensure that all Goods received are checked to see that the quantities match those on the delivery Note, and that there is no apparent damage to the Goods and/or packaging.
7.1 All good are supplied by Dragons Breath with the benefit of the relevant manufacturer’s warranties relating to the relevant Goods (copies of which can be supplied by Dragons Breath, if requested by the customer). If there is a defect or malfunction or any other problem relating to the Goods, the Customer must deal directly with the relevant manufacturer, and Dragons Breath sole responsibility will be to offer reasonable assistance to the customer in such circumstances.
7.2 Dragons Breath have no liability to the Customer in respect of the Goods’ failure to comply with the manufacturers warranties referred to in Condition 7.1
7.3 Except as set out in these Conditions, all warranties, conditions and other terms set implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract.
8 Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude Dragons Breath liability for:
8.1.1 death or personal injury caused by its negligence of its employees, agents or subcontractors (as applicable)
8.1.2 fraud or fraudulent misinterpretation;
8.1.3 breach of the terms implied in 8.3 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 Dragons Breath to exclude or restrict liability.
8.2 Subject to Condition 9.1:
8.2.1 Dragons Breath shall under no circumstances whatsoever 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;
8.2.2 Dragons Breath’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 statuary duty, or otherwise, shall in no circumstances exceed the price of the Goods.
9 Export Terms
9.1 Incoterms 2010 means The international Rules for the Use of Domestic and International Trade Terms, 2010.
9.2 Where the goods are supplied for export from the United Kingdom, the provisions of this Condition 10 apply (subject to any special terms agreed in writing between the parties) and any term or expression which is defined in or given a particular meaning by the provisions of Incoterms 2010 has the same meaning in these Conditions, unless there is a conflict, in which case these Conditions will prevail.
9.3 The Goods will be supplied EXW from a location to be specified by Dragons Breath, and Dragons Breath is under no obligation to give notice under section 32(3) of the sale of Goods Act 1979.
9.4 The Customer is responsible for ensuring that the Goods comply with the laws and regulations of the country to which it intends to import the Goods and for obtaining any necessary export/import licenses. The customer will not hold Dragons Breath Liable for any failure to comply with those laws and regulations or to obtain the necessary license.
10 Force Majeure Dragons Breath is not liable to the customer for any failure or delay in performance of the contract which is beyond its reasonable control, including any labor disputes between Dragons Breath and its employees (Force Majeure Event)
11.1 Dragons Breath may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer 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 Dragons Breath.
11.2 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that part at its registered office (if it is a company) or its principle or its principle place of business (in 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 recorded delivery or commercial courier. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 11.2; if sent by recorded delivery, at 9.00am on the second day Working Day after posting, on the day the couriers receipt is signed.
11.3 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.
11.4 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.
11.5 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 under the Contract or by law shall constitute a waiver of that or any other right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of that or any other right or remedy.
11.6 A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.7 Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Dragons Breath.
11.8 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and constructed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.