General Terms & Conditions of Sale and Delivery
These are the terms and conditions which govern any contract of sale and delivery of products through My Fridge Magnets. My Fridge Magnets is a division of and is operated by Trade Signs & Print. In these general conditions the words “My fridge Magnets“, “we” and “us” mean Trade Signs & Print incorporated under English law and having its registered office in England.
Article 1 – Applicability.
1.1 These General Conditions of Sale and Delivery shall be applicable to all offers and to all contracts, including but not limited to purchase orders, which we enter into with any customer. These General Conditions of Sale and Delivery, together with the order confirmation and attached riders, if any, shall constitute the entire contract between the customer and ourselves and shall supersede all other agreements and understandings with respect to the subject matter hereof.
1.2 References by the customer to its own purchasing conditions, contract terms or other conditions in any purchase order or other form of written confirmation sent by the customer, shall not bind us, notwithstanding our act of delivery of the products to the customer in response thereto. The applicability of any conditions used by the customer is explicitly rejected.
1.3 These General Conditions of Sale and Delivery shall also apply to any extra work requested by the customer, subject to additional cost, over and above that covered by the original order
1.4 Any provision of the order or these General Conditions of Sale and Delivery which is held to be invalid or unenforceable in any jurisdiction shall be ineffective only to the extent of such invalidity or unenforceability, without invalidating or rendering unenforceable the remaining provisions, and any invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
Article 2 – Offers.
2.1 All our offers are without recourse. A valid contract is only concluded when we have confirmed an (individual) purchase order placed by the customer.
2.2 Orders and confirmation of the orders must be in writing; confirmations might take place by means of pro forma invoices. Orders, confirmations and rejections transmitted electronically in our specified format under our specific protocol and/or through e-mail will be considered to be written or in writing. Proof of the content of these communications will come from the data stored in our systems. The provisions in this paragraph also apply to any amendments, additions or varying terms to orders already placed. Therefore, an amended order placed by the customer does not bind us, unless the customer has placed an amended order within 48 hours or two days of our written confirmation of the original order and such amended order has itself been confirmed in writing by us. For orders where, because of their nature or size, no offer or order confirmation is sent, the contract is concluded at the moment we actually begin to carry it out; in such cases the invoice will be considered as the order confirmation and at the same time is deemed to correctly and completely represent the contract.
2.3 Samples, illustrations, sketches, drawings, specifications and similar details supplied to the customer at the quotation stage are for information only and shall only be deemed binding if they have been confirmed in writing by us after an order has been placed. We shall not be bound by any obvious errors in printed material, drawings, sketches and other documents or any measurements, clerical or arithmetical errors.
2.4 Drawings, technical documents or other technical information relating to a quotation shall not, without our prior consent in writing, be used for any other purpose than the sale of the products. They may not be otherwise used or copied, reproduced, transmitted and/or passed on to a third party; they have to be returned immediately at our request. All drawings and technical and commercial documents relating to the products, their manufacture or their use which have been passed on to the customer before or after an offer has been sent by us, including all intellectual property rights, shall remain our property.
2.6 We reserve the right to make minor alterations to any product which is part of a confirmed purchase order at any time, without incurring any obligation towards the customer.
Article 3 – Date and place of delivery.
3.1 Notified delivery dates are approximations only and are stated in our written order confirmation. Time shall not be of the essence. We are not liable for any damage caused to the customer by virtue of delays arising from failure to make payment or otherwise to observe its contractual obligations. For circumstances beyond our control we are entitled to extend the delivery period.
3.2 Unless otherwise agreed in writing, delivery shall be Ex Works (EXW), Inco terms, latest version.
3.3 Products shall be accepted when available for delivery. Failing which we are entitled to store the products or to have them stored at the expense and at the risk of the customer, to invoice, and if the customer does not meet its payment obligation in time, to make use of our right to cancel the order. If so, the customer is also liable for our transport costs.
3.4 If the customer orders products to be delivered on call, they must actually be called and taken within the period of call agreed. If the customer does not meet said obligations within seven days after the end of the period of call, we shall be entitled to send an invoice, or to cancel the order, or any previous or after order and/or any other contract with the customer.
3.5 We will use our best efforts to deliver the products on the agreed delivery date. Failure to meet delivery dates shall not amount to a breach of contract. However, if the delay exceeds one month, the customer is entitled to cancel the delayed order in writing if we – after written demand hereof by the customer – are unable to deliver within a reasonable time-limit thereafter. Cancellation of a delayed order does not entitle the customer to cancel other orders, unless delays have occurred repeatedly during a substantial period of time.
- Before or during the performance of the order we, if we reason to anticipate that the customer will not be able to pay for good, we shall be entitled to suspend the order until the customer has given sufficient security for payment. If an order is accepted by us without an irrevocable letter of credit, or other similar form of sufficient security, at MyFridgeMagnets’ discretion, the customer may be obliged to give additional security, failing which, we shall be entitled to cancel the affected order(s) and/or any other order; the customer is liable for any damage we suffered.
Article 4 – Prices and packing.
4.1 In so far as it has not been agreed otherwise with the customer in writing, our prices will be EXW, as mentioned in Article 3.2, in Sterling, and exclusive of applicable taxes.
4.2.1 The prices shall be without engagement in respect of any repeat orders and/or follow-up orders.
4.2.2 price adjustment shall be allowable for one or more of the factors determining the (cost) price -e.g. costs of (ancillary or raw) materials, parts, freight rates, wages, social security contributions, customs, import or export expenses, taxes, and also price-adjustments as a result of currency price changes or change in the interest rate, on the understanding that any future price increase which we are aware of on the date of the order confirmation should be specified on this order confirmation. We shall however have the right to adjust the prices or to change the currency of the prices with immediate effect, also regarding orders placed. In these cases, the customer has the right to cancel the relevant parts of the purchase order if the price adjustment is more than a five per cent increase and the delivery of the relevant products would normally take place with three months after our order confirmation.
4.3 Unless agreed otherwise in writing, we shall – if necessary and at our sole discretion – provide the products with the standard MyFridgeMagnets Service’s packing. Unless otherwise agreed with the customer in writing, packing materials are not taken back by us.
Article 5 – Terms of payment.
5.1 Payment will be in Sterling and shall be effected, if it has not been agreed otherwise in writing, in advance or with an irrevocable letter of credit issued or confirmed by a leading English bank in The UK or with another similar
form of sufficient security, at Linnpack Ltd sole discretion. Time is of the essence regarding the payment of our invoices; the customer is in default if it has allowed the agreed payment term to expire.
5.2 Unless agreed in writing otherwise, if payment will not be effected in advance or with an irrevocable letter of credit, or with another similar form of sufficient security, at Linnpack Ltd sole discretion, payment is to be made within 30 days after invoice date, without any right to discount or set-off. Each payment by the customer will be used first for the settlement of any collection and internal (administration) costs, then for the interest due, and after that, for the settlement of any outstanding claims in order of age beginning with the oldest.
5.3 The claim for payment of the purchase price shall be due and payable at once if the customer is, amongst other circumstances, declared bankrupt or files a petition for an official moratorium, if the appointment of a guardian over it has been applied for, or any products or claims of the customer are attached, and also if an administrator or receiver has been appointed over (part of) its property or the customer is in liquidation or has been wound up.
5.4 Any amounts due and payable to us for products supplied to the customer which have not been received in time, shall accrue an interest in accordance with the provisions of Late Payment of Commercial Debt Regulations as amended or enacted at the date of order confirmation
5.7 If, exceptionally, invoices are in a foreign currency we shall nevertheless have the right to claim payment in Sterling, and this according to the price of the day on which the agreement came about, or at our choice, according to that of the invoice date.
5.8 Complaints and/or questions regarding our invoices must be notified to us in writing and with the statement of the reasons and must be received by us within 14 days of the invoice date, failing which the customer shall be deemed to have approved the invoice.
Article 6 – Inspection of the products and complaints.
6.1 All deliveries are considered to have been approved unless the customer, within ten (10) days after the moment the products arrived at the warehouse or place where the products have been stored/delivered by order of the customer, notifies in writing that and why he does not agree with the delivery (defects, damages, or shortage). The Customer is however obliged to check all deliveries on receipt. In case the customer accepts the products without reservation or protest, the burden of proof that the products were not in good order on receipt, falls on the shoulders of the customer.
6.2 Defects that cannot reasonably be discovered within the above-mentioned period must be reported by written notice immediately upon being discovered. Again, the burden of proof that the products were not in good order on delivery falls on the shoulders of the customer.
6.3 Minor variations within MyFridgeMagnets customary tolerances shall not entitle the customer to file a complaint, or demand compensation, or request that the order be cancelled.
6.4 In the event of the customer’s failure to give us notice within the period specified in Articles 6.1 and 6.2, the customer’s claim concerning defects as aforesaid may be refused by us without further explanation.
6.5 Upon discovery of any defect to a substantial number of the same product of MyFridgeMagnets Service’s, the customer shall immediately cease the marketing of the products concerned and shall give us all such assistance as we may require for the purpose of examining the complaint. We refer to Article 9.1 below.
6.6 Complaints regarding the products will only be considered by us, provided we are given the opportunity to verify that the complaint is valid and genuine.
6.7 Any defects regarding part of the products that relate to one purchase order do not give rise to an allowable claim by the customer to reject all of these products which form part of this purchase order.
Article 7 – Retention of title.
7.1 After delivery of a specific order, the products shall remain our property until such time we have received full payment:
- a) for the products supplied concerning this specific order, or previous or after orders,
- b) of claims arising from the non-performance by the customer of any orders, such as damages, penalties, interest and costs.
The mere fact that we do not have, or do not have anymore, any claim to the customer at a certain date shall not bar the validity of the continuation of our retention of title if we will have a claim against the customer at a later date.
7.2 If the products are actually in the customer’s possession before they are paid for, they shall be deemed to have been shipped/transported on a consignment basis and we shall be entitled at any time to recover these products (entering on to the customer’s properties for this purpose, if necessary) or demand their return forthwith.
7.3 Prior to the date of acquiring the property of the products, the customer shall not be entitled to dispose of the products or to use the same as collateral for any loan or to pledge the same as security for any debt or mortgage the same or otherwise to transfer or assign the same to any third party. However, the products may be used by the customer in the normal course of its business.
7.4 In case of any amounts due and payable, the customer shall enable us forthwith to regain possession of the products supplied by us, without any prior notice of default or judicial intervention being required for that purpose. In anticipation of the event that the customer should fail to fulfil any of its obligations (of payment or otherwise) to us, and without prejudice of any of our rights, we are hereby given irrevocable authorisation by the customer to recover possession of the products forthwith upon our demand, without any prior notice or judicial intervention being required for that purpose.
7.5 It shall be the customer’s duty to give us immediate written notice in the event that third parties (may) enforce any claims upon any of the products which are subject to our retention of title.
7.6 Every payment we receive from the customer shall be applied first of all towards the discharge of the debts owed to us by the customer in respect of which no reservation of ownership in the terms of Article 7.1 is in force.
7.7 The customer will inform us regarding any additional local requirement applicable in the region where the products he bought from us are stored, so as to establish and exercise our retention of title. Further, the customer will cooperate to fill in, sign and file any additional forms, if necessary to establish and/or exercise our retention of title.
Article 8 – Warranty
8.1 We only warrant to the customer that the products shall be free from defects in material and workmanship, under normal use and service, at the time of delivery and for a period of 1 year thereafter, unless stated otherwise in our price list, order confirmation, invoice, brochures, website, or in the separate documentation which is delivered with every individual product. Any modification in our warranty will take effect forthwith.
8.2 The customer shall not offer any manufacturer’s warranty, nor make any representations regarding the products, in addition to or different from those contained in our warranty.
8.3 We will, at our discretion, either replace any product we determine was defective at the time of delivery EXW, or credit the customer with the value of the product. Defective products will be kept available for inspection by us until a credit note has been issued. At our request, the defective products shall be returned to us once per quarter. Any products returned to us shall become our property. The costs of transportation shall be borne by us, but only if we determine that our warranty is applicable, within the framework of the provisions, regulations and limitations of Article 8. In case no warranty can be exercised, the customer shall bear the costs of transportation. This amount will be deducted in the next invoice to the customer, if any, or by separate credit note.
8.4 To the extent permitted under applicable law, the warranties set forth in Article 8.1 are exclusive and in lieu
of any and all other warranties, conditions, undertakings or other terms express or implied (whether by statute, common law, collaterally or otherwise) with respect to the delivery of the products, the non-delivery of the products, and/or the delivery of inferior products, including but not limited to implied terms of satisfactory quality, correspondence with description and fitness for particular purpose, merchantability or absence of hidden defects.
Article 9 – Liability
9.1 There shall be no liability on our part where:
- a) the customer has accepted the products delivered without reservation or protest,
- b) we have not been notified in writing by the customer about the (non-visible) inferiority of the products delivered within seven days after establishing this fact, unless we have agreed in writing with the customer to send us reports at regular predefined intervals; and/or
- c) the products have been used in a way which is not mentioned in the directions for using the products; and/or
- d) the products have been repaired or there has been an attempt to repair the products by anyone other than one of our authorised representatives; and/or
- e) the damage or defect is the result of an extraneous cause or has been caused by the fact that the products are subject to obvious normal wear and tear; and/or
- f) the total price for any products has not been paid by due date for payment.
9.2 Limitation of liability.
- a) Our liability for any breach of our warranty is limited as set forth in our warranty.
- b) In no event shall our liability towards the customer in contract arising from or relating to a breach of our warranty, including without limitation any and all claims combined, exceed the price the customer paid for the specific products giving rise to the alleged liability. In no event will we be liable for the costs of procurement of substitute goods by the customer, the customers of the latter or any other persons or entity.
- c) In no event shall our liability towards the customer in tort (including negligence or breach of statutory duty), misrepresentation or otherwise exceed the price the customer paid for the specific products giving rise to the alleged liability.
- d) Without limiting the remaining provisions of this Article, we shall not be liable for any loss, damages and/or expenses that occur as a direct or indirect result of:
- i) fraud, gross negligence and malicious intent of personnel and third parties that we make use of; and/or
- ii) a defect in the products supplied, if, on the basis of the scientific and technical knowledge at the moment upon which we released the products, it was not reasonably possible to discover the existence of the defect; and/or
iii) violation of patents, licences or other rights of third parties as a result of use by or on account of the data given by the customer; and/or
- iv) damages that may result from packing, invoicing or shipping documents not being in accordance with the requirements of the country to which shipment is made or the products will be transported.
- e) Under no circumstances shall we have any obligation or liability to the customer or any third party for loss of profits, loss of business, depletion of goodwill or otherwise, and/or loss or use or for any consequential, incidental, indirect or contingent damages whatsoever, even if we have been advised of the possibility thereof, arising out our in connection with the sale, delivery, use, repair or performance of any product that we or our corporate affiliate delivered to the customer or third parties (whether for loss of profit, loss of business, depletion of goodwill or otherwise). The customer is bound to indemnify us against claims of third parties as a result of any loss, damage or expenses occurred in connection with products delivered by us or our corporate affiliate, unless there is a matter of product liability.
- f) The customer shall be bound to indemnify us against claims of third parties as a result of any loss, damage or expenses occurred in connection with products delivered by us, unless there is a matter of product liability.
- g) In case of a product liability matter, regardless of the grounds of any claim, we are only liable for damage to the customer’s or third parties’ property and/or for injury or decease of persons if and in so far as we will be compensated by our product liability insurer, to be increased by our own risk as mentioned in this insurance policy.
9.3 The time within which the customer may commence legal proceedings against us for a breach of any order shall be 180 days from the date of such breach at the latest. This also applies for counter claims of the customer in a pending litigation which has been initiated by us, unless the customer has timely notified its complaints in writing according to Article 6.1.
Article 10 – Recall and accidents.
10.1 Should we decide to a recall of any of the products, the customer shall, at its own expense, cooperate fully with us in effecting such recall, including without limitation, promptly contacting any purchasers we desire to be contacted during the course of such recall, and promptly communicating to such purchasers such information or instructions as we may desire to be transmitted to such purchasers.
10.2 Where an accident involving one of the products occurs in the region where the customer has resold these kind of MyFridgeMagnets products, the customer must notify us by fax without delay and be prepared to cooperate fully with us to carry out a damage analysis and appraisal. This is to fulfil a legal liability and to defend any legal claim of the parties in their respective areas of responsibility. This obligation shall remain in force until final settlement of the claim; it shall be observed in all cases to prevent (further) damages.
Article 11 – Intellectual property rights.
11.1 The customer acknowledges that the relevant affiliated companies of the Linnpack Ltd group of companies are the sole owner of the respective patents, know-how, copyrights, trade names, domain names, slogans, labels affixed by us to the products, trademarks, service marks, neighbouring rights, logos, word marks and design marks that we use in connection with our business, products and services or that our relevant corporate affiliates otherwise claim (the “IP Rights”). The customer acknowledges that our above-mentioned relevant corporate affiliates shall retain sole ownership of the IP Rights throughout the world and that we are authorised to enforce these IP Rights in and outside the region where the customer resells the products, which authorisation is based on the internal licence agreement with our relevant corporate affiliates. The customer shall not do anything inconsistent with such ownership. In particular, but without limitation:
- a) the customer shall not attack the validity of any of the IP Rights or the ownership rights of our relevant corporate affiliates in and to the IP Rights; and
- b) the customer shall not use the IP Rights or any variation thereof, in connection with any product which has not been supplied by us to the customer; and
- c) the customer shall not be permitted to issue sub-licences or to allow unlicensed manufacture of our products; and
- d) the customer shall not use, under whatever circumstance, any of the IP Rights as part of its business name and is not allowed to remove or to change any brand name or symbol of MyFridgeMagnets on the products; however, the customer shall be empowered to affix on the products which are sold by it a plate bearing its trade name; this plate shall not detract from or dominate the MyFridgeMagnets markings; and
- e) the customer shall neither register, nor have registered, any of the IP Rights (or which IP Rights are similar to those of MyFridgeMagnets or which creates the danger of association for the end-user), in the region where it resells the products or elsewhere; and
- f) the customer shall not be permitted to alter or modify the products, its packaging (unless there is a matter of an agreed mail order-system between the customer and us) and the instructions how to use the products; and
- g) the customer shall not remove, cover, change, or add to the labels affixed by us to the products; and
h) the customer shall not use drawings, technical documents or other technical information for any other purpose than the sale of the products; they may not be otherwise used or copied, reproduced, transmitted and/or passed to a third party; they have to be returned immediately at our request; we shall retain sole ownership of all drawings and technical and commercial documents relating to the products, their manufacture or
their use which have been passed by us or our corporate affiliate to the customer, including all IP Rights related to it.
11.2 The customer acknowledges that our corporate affiliates are the sole owner of the internet domain names that our corporate affiliates and we use in connection with our business, products and services.
11.3 Unless expressly otherwise agreed in writing, the customer is only permitted to sell the products exclusively under our current and future brand names and/or logo’s, and must use only our symbols such as codes and type descriptions.
11.4 If the customer has instructed us to manufacture the products from drawings, models, samples or other indications coming from the customer, the latter takes on the full guarantee that as a result of this manufacture or delivery of these products no trademark, trade model or any other right of third parties is harmed.
11.5 We shall decide alone whether to object to possible infringements. Expenses borne in connection with such objection and any steps taken to protect the IP Rights shall be borne by us and any sums recovered shall correspondingly be due to us. However, the customer shall be obliged, in cooperation with us and following our instruction, to object to the infringement by the third party and/or to take steps to protect the IP Rights, and to render all assistance in connection herewith.
11.6 If an IP Right infringement action is commenced or threatened against us or our corporate affiliate so as to any products and we, as a result, choose to discontinue the sale of any particular product in any region where the customer resells this product, the customer shall discontinue the sales of said product in this region immediately upon receipt of a written notice from us.
Article 12 – Force Majeure.
12.1 Neither party shall be held liable for any breach of any order which can be attributed to force majeure, such as (e.g.) labour disputes, the unavailability of transportation, products (e.g. raw or subsidiary materials) or services, governmental restrictions and/or actions, regulations issued by the EU authorities or to a war (whether declared or not), any such event being called “a Force Majeure Event”.
12.2 If either party is affected by a Force Majeure Event it shall promptly notify the other party of the nature and extent of the circumstances in question.
12.3 In the event of non-performance or delay attributable to any Force Majeure Event, the period for the performance of the applicable obligation under the specific order shall be extended for a period equal to the period of delay, with a maximum of two months. Where the obstacle lasts for more than two months, the other party shall be entitled to cancel the order in writing, if we – after written demand hereof from the customer – are unable to deliver within a reasonable time-limit hereafter.
12.4 However, the customer is obliged to fulfil its payment obligations in time in respect of orders already completed by us. The party affected by the delay shall nevertheless use its best efforts – with no obligation to spend substantial sums which would not otherwise be required under the conditions of the specific order – to circumvent or overcome the cause of the delay.
Article 13 – Suspension and cancellation.
13.1 Without limiting the provisions of Article 12, if the customer fails to fulfil any of its obligations under the confirmed order, or fails to do so within the agreed time, such failure shall constitute an event or default by the customer and we shall be entitled, without prior notice or judicial intervention being required for that purpose:
– to suspend further deliveries under the affected order(s) and/or any other order with the customer until payment has taken place, or
– to cancel the affected order(s) and/or any other order in whole or in part entirely without prejudice to any of our other rights and without liability to us for any compensation whatsoever.
13.2 Notwithstanding other provisions in these General Conditions of Sale and Delivery regarding suspension, each party shall be entitled to suspend performance of its obligations under the relevant purchase order where it is clear from the circumstances that the other party will not be able to perform its obligations. The party suspending the performance of its contractual obligations shall forthwith notify the other party thereof in writing, giving reasons (both by fax and by e-mail).
13.3 If the customer is declared bankrupt or files a petition for an official moratorium, is in liquidation, is wound up, if the appointment of a guardian over him has been applied for, and also if an administrator or receiver has been appointed over (part of) its property, all orders which have not been executed shall be cancelled by operation of law, unless we inform the customer upon a reasonable term of notice that we demand specific performance regarding one or more orders. In that case we shall be entitled, without further notice being required for that purpose:
- a) to suspend further deliveries or work under the order(s) concerned until payment has been sufficiently secured, and/or
- b) to suspend all our payment obligations to the customer (if any), entirely without prejudice to any of our other rights towards the
13.4 No waiver by us in respect of strict compliance with all conditions mentioned in the order(s), any other contract between us and the customer or in these General Conditions of Sale and Delivery shall constitute a waiver in respect of any subsequent failure of the customer to comply strictly with all conditions hereof.
Article 14 – Applicable law, severability.
14.1 The order has been made according to the law of England & Wales and it shall be governed and construed according to the substantive law of. England & Wales
14.2 The law of England & Wales shall also govern the order in all respects as to the enforcement and the modes and conditions of the application of remedies of violated rights of the one to the other.
14.3 Any provision of these General Conditions of Sale and Delivery or of an individual purchase order which is finally determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions, and any invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction. In such case the offending provision(s) shall be replaced by valid and enforceable provision(s) that, financially and otherwise, will bring about results that come as close to the invalid or unenforceable provision(s) as possible under applicable law.
Article 15 – Jurisdiction and venue.
15.1 Any disputes arising under or in connection with the order, will be subject to the exclusive jurisdiction the High Court in England.