Subject to any variation, orders accepted by Promocan Ltd are on these Conditions to the exclusion of all other terms and conditions which the buyer purports to apply. Any further orders placed by the buyer will be on these Conditions unless otherwise specified by Promocan. Any variation to these Conditions shall have no effect unless expressly agreed in writing and signed by an authorised signatory of Promocan.
A quotations is valid for 30 days from its date, provided that Promocan has not previously withdrawn it.
Each order issued by the buyer to Promocan is deemed to be an offer by the buyer to purchase goods subject to these Conditions. The buyer must ensure that its order and any applicable specifications are complete and accurate. Artwork must be supplied to the specification provided by Promocan.
Buyers may not cancel any order or contract that has been accepted by Promocan, except by agreement in writing from Promocan, and in such case the Buyer shall indemnify Promocan against all loss.
The description of the Goods is as set out in Promocan's quotation.
Photographs, advertising and descriptive matter issued by Promocan in catalogues or on its website are published for the sole purpose of giving an approximate idea of the goods described in them. They will not form part of an order.
All quotations cover only the work specified in them. Alterations, additions or other costs will be charged to the customer at Promocan's standard rate.
Delivery takes place when the buyer signs for the goods at its place of business.
If no delivery date is specified, delivery will be within a reasonable time. While Promocan will use reasonable endeavours to meet any requested delivery dates, time is not the essence of any order.
Delivery is subject to the prompt receipt by Promocan of the buyer’s delivery address and any payment required by Promocan prior to the goods being despatched.
Promocan will not be liable for any direct, indirect or consequential loss caused by any delay in the delivery of the goods, nor will any delay entitle the buyer to terminate or rescind the order unless such delay exceeds 30 days.
If for any reason the buyer will not accept delivery of any of the goods when they are ready for delivery, or Promocan is unable to deliver the goods on time because the buyer has not provided appropriate instructions, risk in the goods will pass to the buyer, the goods will be deemed to have been delivered, and Promocan may store the goods until delivery whereupon the buyer will be liable for all related costs.
The buyer will unload the goods at its own expense and liability.
The quantity of any consignment of goods as recorded by Promocan upon despatch shall be conclusive evidence of the quantity received by the buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
In the event of non-delivery, the buyer must give written notice of this to Promocan within 7 days of the date of despatch. If Promocan is at fault, its liability is limited to replacement of the goods or a credit note to the value of the order.
The goods are at the risk of the buyer from the time of delivery.
Ownership of the goods will not pass to the buyer until Promocan has received in full all sums due to it in respect of the goods and all other sums which are or which become due to Promocan from the buyer.
The buyer's right to possession of the goods shall terminate immediately if, prior to title in the goods passing to the buyer, the buyer has a bankruptcy order made against him, makes an arrangement with his creditors, enters into liquidation, has a receiver appointed, or any proceedings are commenced relating to the insolvency of the Buyer; or fails to observe any of his obligations under the order, is unable to pay its debts, or ceases to trade. Promocan shall be entitled to recover payment notwithstanding that ownership of any of the goods has not passed from Promocan. The buyer grants Promocan licence at any time to enter any premises where the goods are or may be stored in order to inspect them, or, where the buyer's right to possession has terminated, to recover them.
The price for the goods is set out in the quotation sent to the buyer unless otherwise specifically agreed in the order.
Prices are exclusive of VAT and all costs in relation to delivery.
The buyer must pay for the goods in accordance with the payment terms to be found in the quotation and invoice delivered to the Buyer. All payments must be made in a method agreed with Promocan.
In the event of any late payment, Promocan may suspend deliveries, and/or appropriate any payment, and/or terminate this Agreement, and/or suspend the customer's credit account, and/or charge the buyer interest at the rate of 4% over the base rate of the Bank of England on all overdue invoices, before and after judgment, and the costs incurred in recovering any amounts due to it.
No payment shall be deemed to have been received until Promocan has received cleared funds.
The buyer must make all payments due without any deduction unless the buyer.
Promocan will not be liable for faulty goods unless the buyer gives written notice of the defect to Promocan within 5 days of the date of delivery. If the defect is as a result of damage in transit undertaken at Promocan's risk, the buyer must notify this to the delivery company driver on delivery, or failing that to Promocan within 5 days of delivery. The buyer will give Promocan a reasonable opportunity to examine the goods, and the buyer (if asked to do so by Promocan) will return the goods to Promocan's place of business at Promocan's cost. If there is found to be no defect, the buyer will reimburse Promocan's costs in arranging the inspection.
Promocan is not liable for faulty goods if the buyer makes any use of the goods after giving notice, or the defect arises because the buyer has not followed good practice as to the storage or use of the goods, or the defect is due to normal wear and tear or the buyer alters the goods without the written consent of Promocan.
Subject to the above, if any of the goods are faulty Promocan will at its option repair or replace such goods (or the defective part) or refund the price of the goods at the pro rata order rate provided that, if Promocan so requests, the buyer returns the goods or the defective part to Promocan at Promocan's expense. This represents the buyer’s exclusive remedy for faulty goods.
8. LIMITATION OF LIABILITY
These provisions set out the entire liability of Promocan to the buyer in respect of any breach of contract, and any representation, statement or tortious act or omission including negligence arising under or in connection with an order.
Promocan's total liability is limited to the price of the goods in relation to which the liability arose and Promocan is under no liability whatsoever to the Buyer for any indirect or consequential loss.
No third party will have any rights against Promocan in relation to this Agreement by virtue of the
Contracts (Rights of Third Parties) Act 1999 or otherwise.
The buyer shall not be entitled to assign the order or any part of it without the prior written consent of Promocan.
10. FORCE MAJEURE
Promocan reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Promocan, provided that, if the event in question continues for a continuous period in excess of 45 days, the Buyer shall be entitled to give notice in writing to Promocan to cancel the order.
Failure or delay by Promocan in enforcing any provision of an order will not be construed as a waiver of any of its rights under the order.
Any waiver by Promocan of any breach or default of the provisions of an order by the buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
Orders are governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
All communications about orders must be in writing and delivered by hand, pre-paid post, e-mail or fax to Promocan's registered office or to the buyer's address as set out in any document which forms part of the order or other address as notified to Promocan by the buyer.