Terms and conditions explained
Terms of Business
This Agreement shall apply to the sale of products by Spotspot to the customer to the exclusion of all other terms and conditions. Unless otherwise agreed in writing by Spotspot (1) the terms and conditions of this Agreement are the only terms and conditions upon which the customer shall purchase the products and shall be incorporated into each order; and any reference to any of the customer’s terms of purchase, sale or purchase order (including any order acknowledgement form, design drawing, specifications or other similar document) shall not have the effect of incorporating any such terms or conditions into this Agreement nor of forming any other contract between the parties for the sale and purchase of products. This Agreement is formed when the Order Confirmation of Spotspot (as described below) is accepted by the customer.
1.1 In these conditions, unless the context requires otherwise:
2. Products and Delivery
2.1 The quantity and description of Products to be supplied to the customer shall be as set out on the Order Confirmation.
2.2 All orders for goods shall be an offer by the customer to purchase goods pursuant to this Agreement, which is open to acceptance by Spotspot. Quotes provided by Spotspot are open for 7 days for acceptance and thereafter lapse.
2.3 Spotspot shall use all reasonable endeavours to meet the delivery times but shall not be under any obligation to meet such times. All Products shall be delivered ex-works unless otherwise agreed in writing. Spotspot will endeavour to comply with reasonable requests by the customer for postponement of delivery of the Products but shall be under no obligation to do so. Where delivery is postponed, otherwise than due to default by Spotspot then, without prejudice to all other rights available to Spotspot, the customer shall pay all costs and expenses, including a reasonable charge for storage and transportation incurred by Spotspot.
2.4 If the customer agrees to accept delivery of the Products by instalments and to be invoiced for each instalment dispatched, each instalment delivery shall nevertheless constitute part of one contract as recorded in the relevant Order Confirmation and shall not constitute separate contracts.
2.5 Where shipping and/or insurance is to be charged the price for shipping and/or insurance shall be set out in the Order Confirmation. Spotspot provides shipping dates in its Order Confirmations. This is the date that Products are collected by our agents for delivery. Delivery shall take place within a reasonable time thereafter, having regard for factors which include but are not limited to, the location for delivery, quantity of Products to be delivered, import controls in place in any relevant country and customs clearance procedures in force in that country. Spotspot does not guarantee any delivery by any particular date. If you require an estimate for the time for delivery for Products ordered, please contact us and we will provide an estimate for your particular order. The customer shall make all arrangements to take delivery of Products when delivery is tendered. Spotspot shall not be liable to the customer for late delivery or short delivery of Products. Where Spotspot is unable for any reason to fulfil any delivery of the Products on any specified date, Spotspot shall not be treated as being in breach of this Agreement or the Order in question or have any liability to the customer unless and until the customer has given 21 days written notice to Spotspot requiring the delivery to be made and Spotspot has not fulfilled the delivery within that period. The customer shall accept delivery of Products up to the quantity of Products ordered.
2.6 Spotspot shall not be obliged to give the customer any priority over any other customer.
3. Title and Risk
3.1 Risk shall pass to the customer upon delivery.
3.2 Title to the Products shall only pass to the customer if the customer has paid to Spotspot all sums (including any interest) due from it to Spotspot under this Agreement and under all other contracts between Spotspot and the customer (including any sums due under contracts made after this Agreement) whether or not the same are immediately payable.
3.3 Spotspot may recover all or part of Products supplied in respect of which title has not passed to the customer at any time and the customer holds the Products as the fiduciary and bailee of Spotspot. Customer irrevocably licences Spotspot, its officers, employees and agents to enter upon any premises of the customer, for the purpose either of satisfying itself that this clause is being complied with by the customer or of recovering any Products in respect of which title has not passed to the customer. The customer shall store the Products separately from other goods and shall ensure that they are clearly identifiable as belonging to Spotspot. During such time as the customer possesses the Products with Spotspotís consent, the customer may in the normal course of its business sell the Products as principal but without committing Spotspot to any liability to the person dealing with the customer.
3.4 The customer shall not pledge or in any way charge by way of security for any indebtedness any of Products which are the property of Spotspot. Without prejudice to the other rights of Spotspot, if the customer does so all sums whatsoever owing by the customer to Spotspot shall forthwith become due and payable.
4. Acceptance and Rejection
4.1 Products will be inspected by the customer on delivery. In the case of defects apparent on visual inspection, the customer shall give such notice within 4 days of delivery; in relation to latent defects the customer shall notify Spotspot as promptly as reasonably practicable after the defect in question has come to the attention of the customer and in any event, within 28 days of delivery. If the customer fails to give such a notice, except in respect of any defect which is not one which should be apparent on reasonable inspection, the Products shall be conclusively presumed to be in all respects in accordance with the specification and the customer shall be deemed to have accepted the delivery of the Products and Spotspot shall have no liability to the customer with respect to that delivery. If there is any difference of opinion between the parties as to whether the customer is entitled to reject any Products supplied by Spotspot, then the opinion of Spotspot shall prevail.
4.2 Spotspotís delivery note shall be conclusive evidence of all matters referred to therein including the fact and time of delivery as well as the condition of Products and the method and conditions of transport and delivery.
5. Price and Payment
5.1 The Price shall be the price set out in the quote or invoice (that is, an Order Confirmation) provided by Spotspot. Payment shall be made in the currency set out in the Order Confirmation. Failing payment in such currency, the equivalent sum to the designated currency after conversation by rates listed by Reuters at reuters.com.
5.2 Unless otherwise agreed by Spotspot in writing, payment shall be due and payable prior to delivery. Where payment is not due prior to delivery, payment
shall be made without any set-off, counterclaim or deduction by the date(s) specified in the Order Confirmation. In the event that import duties and without limitation other taxes are required to be paid for delivery to the customer, the customer shall pay such taxes in addition to the Price. No disputes arising under this Agreement, nor delays, shall interfere with payment in accordance with this Agreement.
5.3 If the customer defaults in payment, Spotspot shall be entitled without prejudice to any other right or remedy to (1) suspend any or all deliveries and under any other contract without notice; (2) charge interest on any amount outstanding from the date due for payment at the rate of 4% per annum above the base rate of Lloyds Bank Plc, such interest being charged as a separate, continuing obligation; (3) serve notice on the customer requiring immediate payment for all Products supplied by Spotspot under this Agreement and all other contracts with the customer whether or not payment is otherwise due; and/or (4) to sue for the Price of the Products even though title may not have passed to the customer.
6. Warranties and Liability
6.1 Spotspot warrants that Products supplied will at the time of delivery correspond to the description given by Spotspot on its website. All other warranties, conditions or terms relating to fitness for purpose, quality or condition of Products, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.
6.2 The customer warrants that it shall at all times use the Products in accordance with the usage guidelines issued Spotspot from time to time.
6.3 Nothing in this Agreement shall be construed to limit or exclude either Partyís liability for death or personal injury caused by its own negligence, fraud, and any matter for which it would be unlawful for it to exclude or attempt to exclude liability.
6.4 Spotspot shall not have any liability whatsoever and whether arising in contract, tort (including negligence), breach of statutory duty or otherwise for loss of profit; loss of anticipated savings; loss of business; loss or damage to goodwill; or any indirect, special or consequential losses or damages.
6.5 The customer agrees that it is solely responsible for the environmental conditions within which the products are used and accepts sole liability for compliance with all applicable laws regulating the importation and use of Products in the jurisdiction in which they are to be used. Spotspot shall not be liable for use of Products outside its control or usage guidelines and the customer shall indemnify Spotspot for any claims made by third parties whether through the customer or otherwise, including its reasonable legal costs.
6.6 Without prejudice to the foregoing, the maximum total liability of Spotspot to the customer, whether in respect of one claim or a series of related claims and whether arising in contract, tort (including, but not limited to negligence), breach of statutory duty or otherwise, shall not exceed the lesser of (1) the price paid by the customer, and (2) £ 2,000,000.
6.7 Our products are not available for sale to consumers. If you are intending to purchase products from Spotspot and you are not purchasing for or on behalf of a business, please inform us.
7. Intellectual Property
7.1 All intellectual property rights in the Products is owned by Spotspot. Any design right or copyright created in relation to the Products will vest in Spotspot whether or not design features for the Products are commissioned by the customer, and whether or not for a separate fee. All claims for alleged infringement of patents, trade marks, registered designs, design right or copyright received by the customer relating to the Products must be notified immediately to Spotspot and formally assigned upon request. If requested by Spotspot, Spotspot shall be entitled to conduct any proceedings relating to any such claim in such manner as Spotspot thinks fit and the customer will provide to Spotspot such reasonable assistance as Spotspot may request.
7.2 The customer warrants, represents and undertakes that it shall not request any changes to Products which would infringe the intellectual property rights of any third party, anywhere in the world. The customer shall indemnify and keep Spotspot indemnified on demand in respect of claims by third parties. Unless otherwise stated, sample, demonstration or speculative designs provided by Spotspot are confidential and not for commercial use.
7.3 Spotspot may use the trade marks and names of the customer for promotional and marketing purposes.
7.4 Each party undertakes to the other to keep secret and strictly confidential and not to disclose to any third party Confidential Information, without the prior written consent of the other party provided that (1) Spotspot shall not be prevented from using any general knowledge, experience or skills which were in its possession prior to the commencement of this Agreement, or was independently developed or acquired otherwise than from the performance of this Agreement; and (2) the provisions of this subclause shall not apply to any Confidential Information which (a) is in or enters the public domain other than by breach of this Agreement; (b) is obtained from a third party who is lawfully authorised to disclose such information; or (c) is authorised for release by the prior written consent of the other party. The customer shall promptly return to Spotspot all Confidential Information which it holds in relation to Spotspot or Spotspotís business upon written request.
7.5 If any allegation shall be made against the customer to the effect that the supply of the Products as are manufactured by Spotspot infringes the intellectual property rights of any third party or Spotspot has reason to believe that any such allegation is likely to be made, Spotspot may at its option and expense modify or replace the Products so as to avoid the infringement (but without materially adversely affecting the overall performance of the Products), or obtain for the benefit of the customer the right to continue to use the Products, or repurchase the Products at the Price as reduced by a reasonable provision for depreciation. If Spotspot pursues any such option, the customer will have no rights or remedies against Spotspot arising directly or indirectly out of the alleged infringement.
8.1 This Agreement may be terminated forthwith by either party if the other commits any material breach of any of these terms and which (in the case of a breach capable of being remedied) shall not have been remedied within 14 days of a written request to remedy the same.
8.2 Spotspot may terminate any agreement incorporating these terms forthwith if the customer shall convene a meeting of its creditors or if the customer is unable to pay its debts, if a receiver, administrator or administrative receiver is appointed over its assets, or if any event occurs in another jurisdiction which is analogous to any of the foregoing events or if Spotspot believes that any of the foregoing is likely to occur.
9.1 Neither party will be liable in any amount for failure to perform any obligation under any agreement incorporating these terms (except for payment of monies) if such failure is caused by the occurrence of any unforeseen contingency beyond the control of such party including without limitation internet outages, communications outages, fire, flood, war, labour strikes or act of God, subject that if such circumstances continue to prevent performance of a contractual obligation for a period of 7 continuous days or more, either party may then terminate the affected agreement immediately by giving notice to the other party, neither party being then deemed in breach of the agreement.
9.2 The parties are independent companies and nothing in this agreement shall be construed to constitute a partnership or joint venture between the parties. Neither Party shall hold itself out as acting on behalf of the other or have the capacity to bind the other. The Agreement is entered into between Spotspot and the customer as principals and the customer shall not be entitled to assign the benefit or burden of it or of any interest in it without the prior written consent of Spotspot.
9.3 Each Party acknowledges that this Agreement together with all documents entered into or to be entered into under its terms together constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and in relation to such subject matter supersedes all prior discussions, understanding and agreements between the parties and their agents. Each Party agrees that in entering this Agreement, it is not relying on any statements, warranties or misrepresentations given or made (whether negligently or innocently and whether express or implied), or any acts or omissions by or on the part of any party in relation to the subject matter of this Agreement, except those expressly set out in this Agreement.
9.4 A failure by a Party to exercise, or a delay in exercising, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies which that party may otherwise have and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. Any waiver of a breach of any of the terms of this Agreement or of any default under this Agreement shall not be deemed a waiver of any subsequent breach or default and shall not affect the other terms of this Agreement.
9.5 In the event of a conflict or inconsistency between these terms and an Order Confirmation, these terms shall prevail to the extent of the conflict or inconsistency. In respect to conflicts or inconsistencies between Order Confirmations, the later in time shall prevail.
9.6 The Contracts (Rights of Third parties) Act 1999 shall not apply to this Agreement.
9.7 This agreement is governed by the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England.