1. 1 In these Terms unless the context otherwise requires the following expression shall have the following meanings:
“the Carriage Charges Matrix” means the matrix of delivery charges supplied by the Seller to the Customer;
“the Contract” means the contract for sale and purchase of the Goods;
“the Customer” shall mean the party to whom goods are sold or supplied by the Seller;
“INCOTERMS” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
“the Invoice” means the invoice submitted by the Seller to the Customer in relation to the Contract or any part thereof;
“the Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms;
“the Seller” shall mean Per-Scent Limited, a company registered with number 05245148 whose registered office address is at Churchill Point, Lake Edge Green, Trafford Park Road, Manchester, M17 1BL;
“Terms” means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Seller and the Customer;
“UK Mainland” means anywhere in England, Scotland, Northern Ireland and Wales, but not any other islands, including but not limited to the Hebrides, the Isle of Wight, the Orkney Islands, the Shetland Islands or the Isle of Man, the Channel Islands or the Scilly Isles.
“Writing” and any similar expression, includes facsimile transmission, e-mail and comparable means of electronic communication;
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re‑enacted or extended at the relevant time;
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2. THE CONTRACT
2.1 The Seller shall sell the Goods and the Customer shall purchase the Goods in accordance with the Seller’s quotation (if accepted by the Customer), or the Customer’s order (if accepted by the Seller), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms or conditions stipulated incorporated or referred to by the Customer in his order or negotiations subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
2.2 The Seller reserves the right to vary these terms from time to time. Updated terms will be effective from the date they are published on the Sellers website.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed, but, nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Customer or its employees or agents as to the storage, application, maintenance or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Customer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed in writing.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, proforma invoice, Invoice or other document or information issued by the Seller or appearing on its website shall be subject to correction without any liability on the part of the Seller.
2.6 The Seller reserves the right to change the Goods it offers on its website or otherwise at any time without giving a period of notice.
3. ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Customer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller.
3.2 Where possible, the Seller shall endeavour to supply the items requested by the Customer and confirmed in the Seller’s quote or the Customer’s order (as the case may be). However, all orders are subject to availability of stock and the Seller cannot guarantee availability of the items ordered nor shall it be liable for any failure or delay in sourcing such materials howsoever caused. In the event that an item is not sourced by the Seller in relation to a particular Contract for Goods (by reason of it being discontinued, or identified by the Seller or any authority as carcinogenic, hazardous or otherwise unsafe, or being unavailable in the market place) then the Seller shall notify the Customer in Writing within a reasonable time and, upon receipt of such notice, the Customer shall notify the Seller of a suitable replacement for the item (and any other changes to be made to the specifications or instructions to the Contract as a result of such amendment).
3.3 Where no suitable replacement is sourced by the Seller, then the Seller shall offer the Customer the opportunity to cancel the Contract or the relevant part of the Contract to which the source failure relates. If the Customer cancels the Contract or the relevant part of it then the Customer shall remain liable to pay for all Goods actually supplied by the Seller prior to the cancellation of the Contract or the relevant part of it on the basis set out in clause 4.1. Where only part of the Contract is cancelled the Customer’s liability to pay for the remainder of the Goods (pursuant to the remaining part or parts of the Contract) shall be unaffected.
3.4 The Customer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification for the Goods and the quantity of Goods required) submitted by the Customer within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.5 All quantities stated and colours shown on the packaging of the Goods are approximate only and accordingly, on any sale of Goods, whether or not by sample, the Seller reserves the right:
(i) where delivery of the Goods is to be made by the Seller in bulk, to deliver quantities within a ten per-cent margin of the quantity ordered without any adjustment in price (and the quantity so delivered shall be deemed the quantity ordered);
(ii) to meet the Customer’s specifications as to colour and size subject to reasonable commercial variation without any adjustment in price (and the colour and size of Goods so delivered shall be deemed the colour and size of Goods ordered);
3.6 Subject to clause 3.5 above, the quantity and description of the Goods shall be as set out in the Seller’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Seller)
3.7 The Customer acknowledges that it is responsible for testing and evaluating whether the Goods would be fit for their intended purpose and shall indemnify the Seller against:
(i) 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, if any, which results from the Seller’s use of the Customer’s specification; and
(ii) 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 which results from the Seller’s reliance on the Customer’s specification.
3.8 The Contract may not be cancelled or amended by the Customer except with the agreement in Writing of an employee authorised by the Seller and on terms that the Customer shall indemnify the Seller in full against all loss (including loss of profit), costs, damages, charges and expenses incurred by the Seller as a result of such cancellation or amendment.
3.9 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
4. PRICE VARIATIONS
4.1 The price of the Goods shall be the Seller’s quoted price, or, where no price has been quoted or where a quoted price is no longer valid, the price of Goods shall be the Seller’s standard price for such Goods.
4.2 Except as otherwise stated in the Seller’s Written quotation or otherwise agreed in Writing between the Customer and the Seller all prices are given by the Seller on an Ex Works basis. Where the Seller agrees to arrange delivery of the Goods otherwise than at the Seller’s premises, the Customer shall be liable to pay the Seller’s charges for transport, packaging and insurance, which, if applicable, shall be charged in accordance with the terms of the Carriage Charges Matrix unless otherwise agreed in accordance with the terms of the Seller’s Written quotation, in addition to the price quoted for the Goods.
4.3 The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Seller.
4.4 All prices quoted (on the Seller’s website or otherwise) are valid at the time given by the Seller, unless specified otherwise in the quotation, only or until earlier acceptance by the Customer. Such prices may be altered by the Seller by notice of its website, without giving notice to the Customer.
4.5 Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply.
5. PAYMENT AND INTEREST
5.1 Subject to any special terms agreed in Writing between the Customer and the Seller:
(i) the Seller may invoice the Customer for the price of the Goods at any time after the Seller has notified the Customer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods;
(ii) the Seller reserves the right to call for a deposit or prepayment on account of the quoted price of the Goods notwithstanding that the same has not yet been collected or otherwise delivered, and the Seller shall not be obliged to deliver the Goods or present the Goods as ready for collection until such deposit or prepayment has been paid in cleared funds. Where the Contract is cancelled and, after setting off any amount payable to the Seller pursuant to clauses 3 and/or 4, any deposit or prepayment or any part thereof is due and payable to the Customer, the Seller shall repay the amount due to the Customer accordingly;
(iii) all cheques for payment to the Seller shall be made payable to Per-Scent Limited;
(iv) all direct payments shall be made by BACS, CHAPS, credit card, debit card or PAYPAL to the bank account specified by the Seller.
5.2 The Customer shall pay the price of the Goods plus all applicable charges for delivery, carriage, surcharge, taxes, freight charges, if any (such charges to be detailed in the Carriage Charges Matrix or otherwise agreed in Writing by the Seller), less any discount to which the Customer is entitled, but without any other deduction, in the currency (whether in Sterling, Euro or US Dollar as the case may be) and within the terms indicated in the order confirmation e-mail submitted by or on behalf of the Seller, or in accordance with clause 6.4 below if the Customer has a credit account, or such other due date as is agreed in Writing by an authorised representative on behalf of the Seller. The Seller shall be entitled to recover the price, notwithstanding that collection of the Goods or delivery may not have taken place or that the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued upon request.
5.3 If the Customer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, then the Customer shall be automatically disentitled to any discount offered by the Seller and be liable to the Seller for the whole amount thereof plus applicable VAT on the whole amount in addition to all other sums due to the Seller and the Seller reserves the right to:
(i) cancel the Contract or suspend delivery or supply (or any further deliveries or supplies) of Goods to the Customer;
(ii) appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Customer); and
(iii) charge the Customer interest on the amount unpaid at the rate of 2.7% per annum above the base lending rate from time to time of HSBC Bank Plc until payment in full is made. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
5.4 The Customer shall have no right to withhold any such payment by reason of any set off or counterclaim in respect of any sums due from the Seller to the Customer or any claim by the Customer against the Seller for whatever cause or on whatever grounds.
5.5 None of the rights in clause 5.3 shall adversely affect in any way the Seller’s right to damages in addition to the exercise by the Seller of all or any of the Seller’s right or entitlements and nothing in these Terms shall imply any obligation upon the Seller first to exercise any of the those said other rights or entitlements before instituting a claim for damages.
6.1 This clause applies if and whenever the Seller agrees in Writing to allow the Customer a credit facility.
6.2 The Customer will only be allowed a credit facility if the credit checks carried out by the Seller in respect of the Customer are wholly satisfactory to the Seller.
6.3 The Seller will notify the Customer in Writing of the credit limit imposed on the Customer’s account. The Customer will only be permitted to use the credit facility if it has an account with the Seller and only to the extent of the credit limit imposed on that account.
6.4 The full price of all Goods sold must be paid in cleared funds within 30 days (or such other number of days as the Seller may agree in Writing from time to time) of the date of the Invoice for the same.
6.5 The Seller may require the Customer to set up and maintain a direct debit facility with its bankers as a condition of the Seller permitting the Customer to use a credit facility.
6.6 The Seller reserves the right to vary the terms upon which it allows the Customer a credit facility, or to withdraw a credit facility at any time for any reason. Any variation in such terms will be notified to the Customer in Writing and will take immediate effect.
6.7 Where any valid warranty claim is made in respect of Goods supplied on credit and the Seller decides to credit to the Customer some or all of the price of the Goods such credit will be made by credit to the Customer’s account.
6.8 Notwithstanding any warranty claim made by the Customer, the Customer must nevertheless pay the price of the Goods which are the subject of the claim in accordance with clause 6.4 above pending the determination of the validity of such claim.
6.9 Where the Customer’s credit facility is withdrawn then without prejudice to any other rights or remedies available to the Seller, all unpaid invoices and outstanding balances relating to the Customer’s account with the Seller shall become immediately due and payable, notwithstanding any previous arrangements or agreements to the contrary.
7. RISK AND TITLE
7.1 The risk of damage to or loss of the Goods shall pass to the Customer on delivery (or deemed delivery) in accordance with the provisions of clause 8.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in and title to the Goods shall not pass to the Customer until:
(i) the Seller has received (in cash or cleared funds) payment in full of the price of the Goods; and
(ii) all other debts and sums which are or which have become due from the Customer to the Seller for sales of Goods on any account whatsoever;
7.3 Until such time as the property in and title to the Goods passes to the Customer, the Customer shall:
(i) hold the Goods as the Seller’s fiduciary agent and bailee;
(ii) keep the Goods separate from all other goods held by the Customer and any third parties where they are (iii) stored or marked so that they remain readily identifiable as Goods belonging to the Seller;
(iii) not remove, deface or obscure any identifying mark or packaging on or relating to such Goods; and
(iv) maintain such Goods in satisfactory condition and keep them safely and properly stored, protected and insured (for their full price against all risks with an insurer that is reasonably acceptable to the Seller, and the Customer shall use its reasonable endeavours to obtain an endorsement of the Seller’s interest on its insurance policy, subject to the insurer being willing to make the endorsement and on request the Customer shall allow the Seller to inspect the Goods and the insurance policy); and
(v) hold the proceeds of any insurance claim (or any part of it) made in respect of the Goods in trust for the Seller and shall place it in a separate account designated for that purpose,
but, the Customer may resell or use the Goods in the ordinary course of its business,
on condition that:
(i) such goods are sold on commercially reasonable terms:
(ii) the proceeds of any such sales are held by the Customer on trust for the Seller from all other moneys of the Customer or any other party and designated as such and balance thereof shall be paid over to the Seller on the last working day of each month or on earlier demand: and
(iii) the Customer indemnifies the Seller in full against any liability to the third parties arising upon after or out of such sales.
7.4 If before such time as the property in and title to the Goods passes to the Customer, the Customer becomes subject to any of the events in clause 11 then provided the Goods have not been resold and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Customer to deliver up the Goods to the Seller and, if the Customer fails to do so promptly, the Seller and its agents shall have the right to enter on any premises of the Customer or any third party where the Goods are stored in order to recover them.
7.5 Where Goods have been removed pursuant to clause 7.4 above, the Seller will not be liable for any damage to any items of the Customer or third parties to the extent that have become fixed to the Goods provided that such damage has been incurred as a necessary result of proper removal of the Goods from such items or the removal of fixings attached to such Goods.
7.6 The Customer 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 Customer does so all moneys owing by the Customer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
7.7 None of the Seller’s rights in clause 7 shall adversely affect in any way the Seller’s right to damages in addition to the exercise by the Seller of all or any of the Seller’s right or entitlements and nothing in these Terms shall imply any obligation upon the Seller first to exercise any of the those said other rights or entitlements before instituting a claim for damages.
8. DELIVERY AND ACCEPTANCE
8.1 Where the Customer has selected at the point of order to collect the Goods (or instalment thereof) from the Seller’s premises, the Customer shall collect the Goods (or instalment thereof) from the Seller’s premises on the agreed collection date or where no such date is specified, within 24 hours of the Seller notifying the Customer that the Goods are ready for collection at the Seller’s premises and delivery of the Goods (for the purposes of clause 7.1 and otherwise) shall be deemed to have been completed at 5.00pm on the agreed collection date (or on collection, if earlier).
8.2 Where the Goods (or instalment thereof) are to be delivered at such other trade premises in the UK Mainland as agreed at the point of order between the Seller and the Customer, the Goods (or instalment thereof) shall be deemed delivered (for the purposes of clause 7.1 and otherwise) on the date and time at which the Seller or its agent has placed the Goods (or instalment thereof) at the delivery location agreed between the Seller and the Customer.
8.3 Where the Goods (or instalment thereof) are to be delivered to an address outside of the UK Mainland, the Goods (or instalment thereof) shall be deemed delivered (for the purposes of clause 7.1 and otherwise) in accordance with clause 10.4.
8.4 Unless otherwise agreed in Writing:
8.4.1 where the delivery of the Goods (or instalment thereof) is to be made in the UK Mainland, and the Customer has selected the “standard delivery option” at the point of order, then the Seller shall use its reasonable endeavours to deliver:
(i) all Goods (or instalment thereof) ordered by 2pm, on the next business day;
(ii) all Goods (or instalment thereof) ordered after 2pm, on the day after the next business day;
8.4.2 where the delivery of the Goods (or instalment thereof) is to be made in the UK Mainland, and the Customer has selected one of the “extra delivery options” (in the Customer’s order or the Seller’s quotation), then the Seller shall use its reasonable endeavours to deliver the Goods which are the subject of that order in accordance with the service terms selected; and
8.4.3 where delivery is to be made outside UK Mainland, and the Customer has selected an “export delivery” option at the point of order, the Seller shall use its reasonable endeavours to arrange delivery on behalf of the Customer at the Customer’s cost in accordance with the terms of the Carriage Charges Matrix unless otherwise agreed in Writing by the Seller (notwithstanding that the risk to the title to such Goods passes in accordance with clause 10.4),
however, such times and dates are approximate only, and in no case is delivery or availability for collection on or by a fixed date or time a term of the Contract. The Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract. The Goods may be delivered (or made available for collection, as the case may be) by the Seller in advance of the quoted delivery or collection date on giving reasonable notice to the Customer. Failure to deliver (or make available for collection) the Goods (or an instalment thereof) by the quoted or specified date or time shall not be a ground for cancellation or refusal to take delivery or entitle the Customer to any claim by reason of such failure.
8.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
8.6 If the Seller fails to deliver or make the Goods available for collection (or any instalment) in accordance with the Terms for any reason other than any cause beyond the Seller’s reasonable control or the Customer’s fault, and the Seller is accordingly liable to the Customer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
8.7 If the Customer fails to take delivery of the Goods within 24 hours of being notified that the Goods are ready for collection or the Seller fails to deliver the goods owing to the Customer failing to give the Seller adequate instructions relating to the time or alternative premises for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Seller’s fault) then, without limiting any other right or remedy available to the Seller, the Seller may:
(i) store the Goods until actual collection or delivery and charge the Customer for the reasonable costs (including insurance) of storage, delivery handling and administration in additional to all other remedies and losses; or
(ii) cancel the order and reallocate the said goods for sale to another company without prejudice to any of constitute a breach of Contract by the Customer; or
(iii) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract; or
(iii) where the Goods are not readily re-saleable for any reason, dispose of the Goods and charge the Customer for the price of the Goods under the Contract.
9. LIMITATIONS OF LIABILITY AND FORCE MAJEURE
9.1 The Customer relies exclusively upon its own skill and judgement as to fitness of the Goods for any particular purpose or for their use under any specific conditions.
9.2 Acceptance of the goods shall be deemed to take place when the Goods are delivered or collected in accordance with clauses 8.1, 8.2 or 8.3 (as the case may be) when the Customer (or its representatives) will have the opportunity to check the Goods and sign a delivery note to confirm its acceptance of such Goods. It is the sole responsibility of the Customer to satisfy itself that the Goods conform in quantity style or design to the order.
9.3 Notwithstanding the fact that the Goods have been deemed accepted, the Seller undertakes during the first two weeks after deemed delivery of the relevant Goods to replace free of charge (or in its sole discretion to credit the cost of) any Goods which are found to be defective or not to conform in a material respect with any contractual description expressly applied to them, provided that:
(i) a notice of rejection containing written particulars of any defects to other complaints are given to the Seller within 48 hours of delivery of the goods; and
(ii) the Seller or its nominated agents are afforded such opportunities and facilities as they may reasonably require for examination of the Goods; and
(iii) such examination, in the opinion of the Seller or the agents nominated by the Seller, confirms that the Goods are defective or otherwise do not conform in a material respect with any contractual description expressly applied to them; and
(iv) the Goods are safely and appropriately packed by the Customer and held available for collection by or on behalf of the Seller, and
(v) the Goods have not been modified repaired or replaced by any third party,
in which case the Seller shall have no further liability to the Customer.
9.4 The Seller undertakes to replace free of charge any Goods (or instalment thereof) which are despatched to an address for delivery within the UK Mainland but which have become damaged in transit, provided that risk in the Goods has not passed to the Customer in accordance with clause 7.1, and provided that:
(i) claims for damage or partial delivery are notified to the Seller by the Customer within 48 hours of delivery; and
(ii) claims for complete loss of consignment must be notified within 7 days of the date upon which the Seller has stated the goods will be delivered to the Customer,
in which case the Seller shall have no further liability to the Customer.
9.5 The Seller shall be under no liability whatsoever (including under clauses 9.3 and 9.4 or under any other warranty condition or guarantee):
(i) in respect of any defect in the Goods arising from fair wear and tear, misuse (including without limitation any use which is likely to place undue strain on any part of the Goods or use, storage or maintenance otherwise than as recommended by the Seller), wilful damage, damage caused by excessive force, vibration, flood, earth quake, weather, fire or water submersion (except where occurring prior to delivery where the Seller has agreed to deliver the Goods to a delivery address within the UK Mainland, or collection, where the Customer has agreed to collect the Goods, as the case may be), failure to follow the Seller’s instructions (whether oral or in Writing) or alteration or repair of the Goods without the Seller’s approval;
(ii) if the total price payable for the Goods and any delivery charges has not been paid by the due date for payment;
(iii) unless details of the claim or reason for rejection is notified to the Seller in accordance with clause 9.3 (i) or 9.4 (as the case may be);
(iv) in respect of damage or loss to Goods occurring after the point at which risk in the Goods has passed to the Customer in accordance with clause 7.1;
(v) for any consequential loss suffered by the Customer whether caused by the Seller’s negligence, misrepresentation, breach of Contract, warranty the aforesaid guarantees or howsoever and in these Terms “consequential loss” is agreed to include but not to be limited to:
(a) any loss of profit, revenue or income;
(b) any liability under any claim brought or intimated by a Third Party; and
(c) any expenditure directly or indirectly caused by related to or arising out of the defects or other failures in goods supplied by the Seller.
9.6. Without prejudice to the aforesaid, in no circumstances whatsoever (to the extent permissible by law) shall the Seller’s liability or the amount of any indemnity, damages or compensation payable by the Seller on any claim or claims whatsoever concerning or relating, directly or indirectly to Goods supplied by the Seller including but not limited to claims based on negligence misrepresentations breach of warranty or the aforesaid guarantee exceed in total the price on the Invoice for the Goods complained of excluding VAT.
9.7. The Customer acknowledges that:
(i) only by reference to and by reason of the aforesaid limitations is the Seller able or willing to offer the Goods at the price quoted or accepted; and
(ii) it is the responsibility of the Customer to insure against any liability or risk not accepted by the Seller under these Terms.
9.8 The undertakings in clause 9.3 and 9.4 replace (to the extent permissible by law), and are accepted by the Customer (who confirms it is acting in the course of its business and not dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) in lieu of, any other conditions warranty statement term or representation as to the quality fitness description capability or performance of the Goods whether expressed or implied by statute common law govern the dealings of the Seller or the Customer in the circumstances of this contract or however. All such conditions warranties statements terms and representations are hereby excluded to the fullest extent permissible at law.
9.9 The Seller shall not be liable to the Customer 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:
(i) loss of profit;
(ii) loss of goodwill;
(iii) loss of business;
(iv) loss of business opportunity;
(v) loss of anticipated saving;
(vi) loss or corruption of data, information or software; and
(vii) indirect, special or consequential loss or damage.
in each case, 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 (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Customer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the aggregate price of the Goods, except as expressly provided in these Terms.
9.10 The Seller shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any information or instructions supplied by the Customer which is or are incomplete, incorrect or inaccurate.
9.11 The Seller shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure or refusal 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 limiting the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
(i) an act of God, explosion, flood, tempest, storm, fire or accident;
(ii) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(iii) acts, restrictions, regulations, bye‑laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(iv) import or export regulations or embargoes;
(v) strikes, lock‑outs or other industrial actions or trade disputes (whether involving employees of the Seller or of the Customer or a third party);
(vi) difficulties in obtaining or sourcing Goods (or any particular grade thereof) in accordance with the Customer’s specification;
(vii) inability to secure labour material supplies items of goods or transit scarcity of fuel power or components,
(viii) acts for restraints of Government, the imposing of restrictions on exports or from any other cause
(ix) Goods (or any instalment thereof or any particular grade thereof) becoming discontinued, identified by the Seller or any authority as carcinogenic, hazardous or otherwise unsafe, or unavailable in the marketplace; and
(x) power failure or breakdown in machinery or electronic equipment.
9.12 The Customer shall indemnify the Seller against all liability of damages penalties costs and expenses to which the Seller may become liable in respect of:
(i) any word description trade mark devices and other matter printed at the Customer’s request or specification for the Goods
(ii) any adverse effect upon Goods packed deposited or contained in the Seller’s product.
9.13 Notwithstanding anything to the contrary in these Terms, the Seller’s liability shall not be limited or extinguished in respect of:
(i) death or personal injury caused by the Seller’s negligence; or for;
(ii) fraud; or for
(iii) fraudulent misrepresentation; or for
(iv) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).
10. EXPORT TERMS10.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of INCOTERMS shall have the same meaning in these Terms, but if there is any conflict between the provisions of Incoterms and these Terms, the latter shall prevail.
10.2 Where the Goods are supplied for export from the UK Mainland, the provisions of this clause 10 shall (subject to any special terms agreed in Writing between the Customer and the Seller) apply notwithstanding any other provision of these Terms.
10.3 Where the Goods are supplied for export from the United Kingdom, the Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
10.4 Unless otherwise agreed in Writing between the Customer and the Seller, the Goods shall be delivered Ex Works and, for the avoidance of doubt, the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
10.5 The Customer shall be responsible for arranging testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11. DEFAULT OR INSOLVENCY OF THE CUSTOMER
11.1 This clause 11 applies if:
(i) the Customer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) appoints an administrator or receiver or goes into liquidation (otherwise than a members’ voluntary liquidation for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Customer (within the meaning of the Insolvency Act 1986); or
(ii) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer;
(iii) if any distress or execution or other legal process shall be levied upon any of the Customer’s property goods or assets; or
(iv) the Customer ceases, or threatens to cease, to carry on business; or
(v) If the Customer shall fail to take delivery of any Goods when required or make default in or commit or breach of any of its obligations under the Contract and the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer, and the Seller notifies the Customer accordingly.
11.2 If this clause 11 applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract and/or suspend any further deliveries of Goods under the Contract and/or withhold deliver and/or stop any goods in transit without any liability to the Customer, and if the Goods have been delivered (or part thereof) have been made available for collection but not paid for, then the price for the Goods (or the parts thereof) delivered (or the parts thereof) supplied plus all delivery charges and amounts for loss and resale or subsequent re-delivery of the Goods shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
When the Customer registers an account or credit account with the Seller, all information requested (whether on the registration screen or otherwise) by the Seller must be provided by the Customer. The Customer warrants that all information provided is correct and accurate at the time given and that it will notify the Seller immediately as soon as any information given becomes out of date or incorrect and shall furnish the Seller with up-to-date correct information as soon as reasonably practicable. The Customer warrants that it is acting in the course of a business when entering into Contracts with the Seller. The Customer agrees to keep its password secure and agrees that the Seller shall not be liable for any loss or damage due to the Customer’s failure to keep the Customer’s password secure. The Customer agrees to notify the Seller immediately if the Customer believes the Customer password is no longer secure so that the Seller may issue the Customer with a replacement password.
14. INTELLECTUAL PROPERTY
14.1 It is the Customer’s responsibility to check that the Goods do not infringe the rights of any third party before it submits any order for Goods to the Seller. If a claim is made against the Seller or against the Customer by a third party that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then the Seller shall have no responsibility or liability to the Customer or any third party and the Customer shall indemnify the Seller in respect of any costs liabilities or damages incurred relating to such claims. The Customer agrees to notify the Seller in Writing of any complaints or claims relating to infringements of intellectual property rights from third parties, within 48 hours of such complaint coming to the Customer’s attention.
15.1 Any notice to be sent to the Seller shall be addressed to the Directors and be sent by:
(i) hand to Per-Scent Limited, Churchill Point, Lake Edge Green, Trafford Park Road, Manchester, M17 1BL;
(iii) by first class post or airmail to Per-Scent Limited, Churchill Point, Lake Edge Green, Trafford Park Road, Manchester, M17 1BL.
15.2 Any notice to be sent to the Customer by the Seller shall be sent by e-mail to the Customer e-mail address notified to the Seller (either on the Customer registration screen or to the e-mail address given by person making the order on behalf of the Customer) or by post or fax to the Customer’s registered office address or to any other trading address of the Customer.
15.3 Any notices shall be deemed served:
(i) on the first day after being sent if sent by e-mail or fax provided no message has been received by the sender that such message has not been transmitted or not received correctly;
(ii) on delivery if sent by hand;
(iii) after two days if sent by first class post where both the sender and the recipient are in the UK; and
(v) after 5 days if sent by airmail from a country outside the UK.
No waiver by the Seller of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
17.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party as the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
19.1 Following termination of the Contract the following clauses shall survive and continue in full force and effect:
(i) Clause 5;
(ii) Clauses 7, 8 and 9;
(iii) Clauses 10, 11 and 12;
(iv) Clauses 13 and 14;
(v) Clauses 15 and 16; and
(vi) Clauses 17, 18, 19 and 20.
20. APPLICABLE LAW
20.1 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 construed and interpreted in all respects in accordance with the laws of England and Wales.
20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
20.3 The Seller and the Customer agree that if any of the clauses or terms in these Terms are found to be unlawful (whether reasonable or otherwise) under any enactment or rule of law pertaining thereto these Terms shall be read as if the part whether it be an entire condition or conditions or some part thereof had not been included and that these Terms shall in all other respects remain in force and binding.
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