In these terms and conditions (hereinafter collectively referred to as ‘Conditions’):
1.1 ‘Company’ means Early Years Direct Limited which expression shall include its successors in business and assigns.
1.2 ‘Buyer’ means you, the body corporate (which includes a LLP) or, partnership obtaining Goods from the Company and shall include its successors in business and permitted assigns.
1.3 ‘Contract’ means any contracts made between the Company and the Buyer for the sale and purchase of Goods which shall include (but not limited to) contracts entered into between the Parties arising from Orders.
1.4 ‘Goods’ mean any product, article or item which the Company sells (including part or parts of it).
1.5 ‘Order’ means any order (whether oral and written) for Goods made by the Buyer to the Seller.
1.6 ‘Parties’ mean the Company and the Buyer.
1.7 ‘Price’ means the price payable for the Goods based on the price specified in the Company’s (1) quotation (whilst the quotation remains valid) and/or (2) then current mail order catalogue.
1.8 In these Conditions, references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.9 In these Conditions reference to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.10 In these Conditions, headings will not affect the construction of these Conditions.
2. Terms of acceptance
2.1 The Buyer agrees that these Conditions shall be the exclusive basis on which any Contracts made between the Company and Buyer are transacted and processed unless otherwise agreed in writing by the authorised representative of the Company.
2.2 These Conditions shall not create any agency or partnership between the Parties or third party.
2.3 Any quotation and/or mail order catalogue provided by the Company shall be deemed as an ‘invitation to treat’ and not an offer.
2.4 The Parties agree that the Contracts (Right of Third Parties) Act 1999 shall not apply in any Contracts.
3. Delivery of goods
3.1 Any Orders made shall clearly state (1) the type of Goods; (2) the quantities ordered; (3) when the goods are to be delivered; and (4) the location where the Goods are to be delivered. Where an Order is placed orally or in the event of any dispute as to the Order, the Company’s version of the Order shall be deemed as the authoritative Order and the Buyer shall not dispute the correctness of the same.
3.2 Subject to Clause 10, the Company will on a best endeavours basis deliver the Goods on the date as specified in the Order. For the avoidance of doubt, the Company shall be under no liability for any delay or failure to deliver the Goods on the date specified in the Order.
3.3 The Buyer agrees that risk of loss and damage of Goods passes to the Buyer upon delivery of the Goods or on the date where the Company attempts first delivery in respect of the Goods. The title to the Goods shall not pass until the Company receives payment in accordance with Clause 5.
3.4 If the Company is unable to effect delivery due to any fault of the Buyer, the Buyer may incur delivery charges.
4. Loss or damage
4.1 Any Goods delivered to the Buyer shall be deemed to be in good order unless the Buyer informs the Company of any defects, faults or malfunction of the Goods (collectively as ‘Faults’) within 7 working days from the day of receipt of the Goods unless the Faults are not ascertainable from reasonable inspection; in which case, the Buyer shall inform the Company of the faults as soon as it is practicable.
4.2 The Company shall subject to Clause 8.2, will at its discretion, make good any Faults in respect of the Goods or reimburse the Buyer for the whole or part of the price of the Goods (if the quantity of Goods are more than 1).
5. Price and payment
5.1 Unless otherwise agreed by the Parties in advance, the Buyer shall pay the Company the Price prior to the delivery of the Goods.
5.2 Subject to Clause 3, the Price payable by the Buyer shall be:
5.2.1 exclusive of VAT
5.2.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods.
5.3 No payment of the Goods shall be deemed to have been received until the Company has received cleared funds.
6. Cancellations and returns
6.1 Without prejudice to Clause 8.2, no cancellations of Orders shall be permitted unless agreed in advance by the authorised representative of the Company and the Buyer.
6.2 Without prejudice to Clause 4.2 and subject always to the prior approval of the Company’s authorised representative, if Goods have been delivered, the Buyer may return the Goods within 7 days to the Company provided always that:
6.1.1 the Goods are in brand new and in unused condition;
6.1.2 the packaging of the Goods remain intact and unbroken and in reasonable condition; and
6.1.3 the returned Goods are received within 14 days from the date when the authorised representative of the Company agreed to accept the returned Goods.
6.3 Where Goods are cancelled or returned pursuant to this Clause 6, the Company reserves the right to charge administration cost.
7. Disputes and set off
7.1 Any liability of the Company under any Contract is subject to and conditional upon the Buyer duly performing and observing all its obligations under the relevant Contract and these Conditions.
8. Warranties and liability
8.1 The Company will use its best endeavours to pass on any manufacturer’s warranty to the Buyer.
8.2 Notwithstanding Clause 4.2 above, the Company shall not be liable for any Faults in respect of the Goods if:
8.2.2 such Faults arose as a result of the Goods being improperly used and/or not used in accordance with the manufacturer’s manual; and
8.2.3 such Faults were the result of unauthorised modification of the Goods without the written consent of the Company.
8.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Conditions and/or Contracts.
8.4 Nothing in this Agreement excludes or limits the liability of the Company for death or personal injury caused by the Company’negligence or for fraudulent misrepresentation.
8.5 Subject to Clauses 4.2, 8.2, 8.3 and 8.4, the Company’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Conditions shall be limited to:
8.5.1 in respect of matters for which the Company does not carry insurance, the Price; and
8.5.2 in respect of matters for which the Company carries insurance, the insured value.
8.6 The Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of Company, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with these Conditions or Contracts.
8.7 The provisions of this Clause 8 shall survive the termination of these Conditions and/or Contracts.
8.8 The exclusions and limitations of liability set out in this Clause 8 shall be considered severally. The invalidity or unenforceability of any one of these sub-clauses shall not affect the validity or enforceability of any other part of this Clause 8.
9 Termination and suspension
9.1 Without prejudice to the rights and remedies available to the Company (whether under these Conditions, Contracts or otherwise), the Company shall be entitled to (at its sole discretion) upon providing the Buyer with notice of such intention, terminate and/or suspend in whole or in part, any Contract entered into between the Buyer and the Company if:
9.1.1 The Buyer fails or refuses to take delivery of any Goods in accordance with these Conditions;
9.1.2 The Buyer commits any material breach of these Conditions;
9.1.3 The Buyer makes any composition or voluntary arrangement with its creditors or becomes bankrupt or enters into administration or goes into liquidation (other than for the purpose of amalgamation or reconstruction).
10 Force majeure
10.1 The Company shall not be liable to the Buyer or be deemed to be in breach of these Conditions or any Contracts by reason of any delay in performing or any failure to perform any of its obligations in relation to the Goods if the delay or failure was beyond the Company' reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Company’ reasonable control:
10.1.1 Act of God, explosion, flood, tempest, fire or accident.
10.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition.
10.1.3 acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority.
10.1.4import or export regulations or embargoes.
10.1.5 strikes, lockouts or other industrial actions or trade disputes.
11.1 Any notice required to be given to the Company shall be given by fax or first class post addressed to the Company’ trading address.
12 Law and jurisdiction
12.1 These Conditions shall be governed by and construed in accordance with English law and the English Courts shall have jurisdiction.