TERMS OF TRADE
1.1 ‘Bespoke Goods’ means any made-to-measure, bespoke or custom-made Goods ordered to the Buyer’s specification.
1.2 'Buyer' means the person who buys or agrees to buy the Goods from the Seller.
1.3 ‘Conditions’ means the terms and conditions set out in this document as amended from time to time in accordance with clause 2.6 together with the Schedules.
1.4 ‘Contract’ means the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
1.5 'Goods' means any goods or any part of them, and services, (which, unless expressly excluded in these Conditions includes the Non Lighting Goods and the Bespoke Goods), which the Buyer agrees to buy from the Seller as set out in a Contract.
1.6 ‘Good Stock’ means Goods (and their packaging) which are in perfect, resalable condition, with no signs of use, wear or damage.
1.7 ‘Non Lighting Goods’ means any non-lighting Goods, including (but not limited to) mirrors and furniture, which the Buyer agrees to buy from the Seller.
1.8 ‘Quality and Trading Conditions’ means the Seller’s quality and trading conditions applicable to online and offline retailers as applicable and as set out in the Schedule.
1.9 'Seller' means Dar Lighting Limited, a company registered in England and Wales with company number 05270864 and registered address at Wildmere Road, Banbury, Oxfordshire, OX16 3JZ.
1.10 ‘Third Party Delivery’ means the process whereby the Seller delivers the Goods on the Buyer’s behalf to a third party nominated by the Buyer.
2. BASIS OF CONTRACT
2.1 No order made by the Buyer shall be deemed to be accepted by the Seller until the Seller has acknowledged the order in writing (‘Order Acknowledgement’), at which point a Contract shall come into existence. No order thereafter shall be cancelled either in whole or in part without the Seller’s written consent.
2.2 Orders are only accepted subject to these Conditions and the Seller shall not be bound by any other terms, written, verbal or implied, or which are implied by trade, custom, practice or course of dealings, whether or not they are contained in the Buyer's order form.
2.3 A quotation given by the Seller to the Buyer shall not constitute an offer. Any purported acceptance by the Buyer of a quotation shall be treated as an offer which the Seller may accept in accordance with clause 2.1.
2.4 These Conditions and the Order Acknowledgement shall represent the terms of the entire agreement between the Buyer and the Seller and shall not be changed or varied by any other agreements between the two parties unless specifically agreed in writing by a director of the Seller including any terms or conditions communicated by the Buyer accompanying, or attached to, an order or other correspondence.
2.5 In entering into the Contract the Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller (including as to the Goods’ suitability or fitness for any particular purpose) which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or any other contract between the Seller and the Buyer for the sale of the Goods.
2.6 The Seller reserves the right to vary the terms of these Conditions. The varied conditions will come into force 30 days after the earlier of:
2.6.1 written notice (by email, post or otherwise) to the Buyer of the varied conditions; and
2.6.2 the varied conditions being uploaded and published on the Seller’s Web Portal www.darlighting.com.
3. PAYMENT TERMS
3.1 The Seller shall invoice the Buyer for the price of the Goods plus the cost of any insurance, packaging, storage and carriage on or at any time after despatch of the Goods and the Buyer shall pay the invoice in full and cleared funds within 30 days following the date of the invoice (“Due Date”).
3.2 Time of payment shall be of the essence.
3.3 If the Buyer fails to make any payment on the Due Date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
3.3.1 charge interest at a rate of 4% per annum above Clydesdale plc base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly;
3.3.2 add to the price of the Goods any fees incurred by the Seller in collecting any such outstanding payments; and
3.3.3 suspend or discontinue any further deliveries of the Goods under any Contract without notice to the Buyer until payment has been receivedand the Seller shall be entitled to discontinue any further deliveries of the Goods under any Contract if the circumstances warrant such discontinuance.
3.4 The Seller reserves the right:
3.4.1 in respect of any new Buyer, to request that such Buyer supplies two trade references to the Seller;
3.4.2 to raise a proforma invoice in respect of any order and the Buyer acknowledges that such Goods will only be delivered when the Seller has received payment in full and cleared funds;
3.4.3 to refuse credit terms to a Buyer for any reason.
3.5 No order which has been accepted by the Seller may be cancelled without the agreement of the Seller. Without prejudice to the foregoing, the Seller reserves the right to charge a handling fee of 25% of the order value for any order cancelled by the Buyer.
3.6 The Seller reserves the right, without limiting any other right or remedy it may have, to set-off any amount due under the Contract against any other monies owed under any other contract.
3.7 In respect of the Goods, excluding for these purposes the Non Lighting Goods, the Seller shall be entitled to reject any order for Goods for less than the minimum order value that is set out in the current price list inclusive of carriage charges. Non Lighting Goods are also subject to a minimum order value which is set out in the där home price list. Price lists are available on request from the Seller’s Sales Office.
4.1 The price of the Goods charged by the Seller to the Buyer shall be the price set out in the Order Acknowledgment and shall replace all previous prices quoted by the Seller.
4.2 Whilst every endeavour will be made to deliver at the prices quoted, the Seller reserves the right by giving notice to the Buyer at any time before dispatch to increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
4.2.1 any factor beyond the Seller's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
4.2.2 any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered; or
4.2.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
4.3 All prices are subject to VAT and any other applicable taxes or levy which shall be charged in addition at the rate in force at the date of invoice.
4.4 The price of Goods despatched to Northern Ireland, Eire, Channel Islands and the Isle of Man will be subject to an additional 5% surcharge, irrespective of the order value.
4.5 The Buyer acknowledges and agrees that all Goods sold by the Seller are sold as domestic products. The Buyer assumes all responsibility for suitability or fitness for any particular purpose of the Goods and any statement made by the Seller in this respect is understood to be an opinion of the salesperson in question only, and it is further understood that such salesperson has no understanding of the environment into which the Goods will be installed and accordingly the Buyer places no reliance upon the salesperson’s opinion. If the intended country of use is not within the UK the buyer is responsible for ensuring all products are suitable and compatible with the wiring system, supply voltages and installation requirements of the destination country prior to ordering.
5.1 When purchasing Goods online the Buyer shall have the option to request that the Seller provide Third Party Delivery. Where the Seller agrees to provide Third Party Delivery, the terms of Schedule 2 will apply to the Contract in addition to these Conditions.
5.2 Delivery of the Goods to the Buyer shall be completed when the Seller makes them available to (i) the Buyer (or any agent of the Buyer) at the Seller’s premises or (ii) any third party to whom the Seller has agreed to deliver the Goods (on the Buyer’s behalf) at the Buyer’s customer’s delivery address or (iii) any other point of delivery agreed by the Seller.
5.3 The Buyer acknowledges and accepts that any dates quoted by the Seller for delivery of the Goods are approximate only and the time of delivery is not of the essence. The Seller shall not be liable to the Buyer or any other party for compensation or damages for delayed delivery or any consequential loss of any kind whatsoever for any delay in delivery of the Goods, howsoever caused. For the avoidance of doubt, this clause also applies to any Third Party Delivery.
5.4 If the Buyer or any third party to whom the Seller is delivering the Goods on the Buyer’s behalf fails to accept delivery for any reason whatsoever, the Goods may be stored by the Seller at the Buyer’s risk and expense until the Buyer (or third party) accepts delivery. If 10 days after the Seller notified the Buyer that the Goods were ready for delivery the Buyer (or third party) has not accepted delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods.
5.5 The Seller may deliver the Goods by separate instalments, which shall be invoiced and paid for separately. Each separate instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment except as agreed by the Seller. Failure of the Buyer to pay any invoice in respect of an instalment shall entitle the Seller to the remedies set out at clause 3.3.
6.1 The Seller operates a scale of charges for carriage based on point of delivery. Different charges for carriage and different minimum order values to avoid carriage charges apply to different delivery locations and types of Goods. The Seller reserves the right to change these charges and minimum order values from time to time. The schedule of charges is available on request from the Seller's Sales Office and can be found in the price lists.
6.2 The Seller reserves the right to charge an overnight fee per carton in respect of any overnight orders for Goods for delivery on the next working day provided always that the Buyer has confirmed the availability of this service with the sales office before 12:00noon. The Seller reserves the right to charge additional carriage in the event that the Buyer requests delivery to an address which is not the usual address registered for the Buyer for delivery.
6.3 The Buyer should be aware that separate carriage charges are payable for Non Lighting Goods. This schedule of charges is available on request from the Seller’s Sales Office, and detailed in the där home price list.
7. OBLIGATIONS OF THE BUYER
7.1 The Buyer warrants that it shall at all times comply with the Quality and Trading Conditions and any such other conditions or standards as may be required by the Seller from time to time and notified to the Buyer in writing.
7.2 The Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with any breach of the warranty contained in clause 7.1 to the extent that it is not caused by the Seller’s negligence or wilful misconduct.
8.1 The Seller warrants that on delivery the Goods shall:
8.1.1 conform in all material respects with their description;
8.1.2 be free from material defects.
8.2 Subject to clause 8.5, if the Buyer gives fully detailed notice in writing to the Seller within 3 days of delivery that some or all of the Goods do not comply with the warranty set out in clause 8.1 and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business at the Buyer’s cost and in the original packaging quoting the invoice number relating to these Goods then the Seller shall, at its option, replace the defective Goods or any part of the defective Goods, or refund the price of the defective Goods.
8.3 The Buyer accepts and acknowledges that the Seller shall only replace or, if applicable in the Seller’s sole discretion, refund the price for defective Non Lighting Goods after a där sales executive has inspected the Non Lighting Goods with the original packaging.
8.4 If the Seller replaces any defective Goods, it reserves the right to charge the Buyer the price of the replacement Goods in accordance with these Conditions and issue a credit to the Buyer as soon as the defective Goods are returned in the original packaging. If title had transferred to the Buyer in respect of the defective Goods, title to the defective Goods shall revert to the Seller with effect from the date of dispatch of such defective Goods by the Buyer to the Seller.
8.5 The Seller shall not be liable for the Goods' failure to comply with the warranty set out in clause 8.1 if:
8.5.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 8.2; or
8.5.2 the defect arises because the Buyer or any third party failed to follow the Seller's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice; or
8.5.3 the Buyer alters or repairs such Goods without the written consent of the Seller; or
8.5.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
8.6 The Buyer acknowledges and agrees that the packaging accompanying Goods supplied by the Seller to the Buyer is designed strictly for the purposes of delivery to the Buyer only. Accordingly, the Seller accepts no liability for any breakages, defects or claims that either arise or can be reasonably assumed to have arisen during any onward transit after delivery to the Buyer. If the Buyer does not notify the Seller of any defects within the claims period set out at clause 8.2 above, then the Seller shall not be liable to the Buyer for any Goods. For the avoidance of doubt, the Seller will not be responsible for any breakages, defects or claims that either arise or can be reasonably assumed to have arisen during onward transit to a customer of the Buyer.
8.7 Requests for and queries with delivery notes must be made within 3 days of the date of delivery. Thereafter it is taken that all such delivery notes are correct and will not delay payment.
8.8 Except as provided in this clause 8, the Buyer accepts that the Seller is unable to resell Bespoke Goods and the Buyer shall have no right to return Bespoke Goods and no right to cancel a Contract in the case of any Bespoke Goods. Any such goods will be replaced; repaired; or the cost of such goods refunded, in accordance with clause 8, but only if the Goods are manufactured to the wrong specification, size or deemed to be faulty by the Seller in breach of the Seller’s warranty as set out in clause 8.1. The specification and measurements are those confirmed by the Buyer at the time of order and it is the Buyer’s responsibility that the confirmed measurements are correct and that the Goods are fit for purpose. No replacements; repairs; or refunds will take place if the Buyer has ordered incorrectly.
8.9 These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
8.10 Except as provided in this clause 8, the Seller shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 8.1.
8.11 Except as set out in these Conditions, all warranties, conditions and other terms whether expressed or implied by statute, common law, conduct custom or otherwise are, to the fullest extent permitted by law, expressly excluded from the Contract.
9. OTHER RETURNS
9.1 If the Buyer wishes to return Goods other than pursuant to clause 8 (Quality), the remaining provisions of this clause 9 shall apply. For the avoidance of doubt this clause does not apply to Goods which have been incorrectly supplied by the Seller.
9.2 The Seller shall be entitled to reject the Buyer’s returns of Goods if the Buyer fails to comply in any way with this clause 9.
9.3 Any Goods returned under this clause 9 must meet the definition of Good Stock.
9.4 Before returning Goods to the Seller, the Buyer shall first obtain a returns authorisation code (“RAC”) from the Seller. The RAC may be obtained from the Seller via telephone, email or fax.
9.5 The Buyer shall arrange for the Goods to be consigned carriage paid, and shall insert a note inside the packaging stating the original purchase order number, the RAC and the date, together with the reason for return.
9.6 It is a further condition of this clause 9 that:
9.6.1 Goods must be in their original packaging;
9.6.2 no accessories may be returned with the Goods without RAC in respect of such accessories; and
9.6.3 the Buyer shall mark the outside of the package with the RAC number and shall address the package to där Lighting Ltd, Wildmere Road, Banbury, OX16 3JZ.
9.7 Goods returned under this clause 9 shall be at the risk of the Buyer during delivery to the Seller and accordingly the Buyer shall take out such transit insurance as shall be necessary to insure the Goods at their full value.
9.8 The Seller accepts no liability for any damage or loss caused to the Goods during delivery to the Seller under this clause 9.
9.9 Subject to clause 8.8, no Bespoke Goods will be accepted by the Supplier for return.
9.10 If the Seller believes, acting reasonably and in good faith, that the Goods returned by the Buyer in accordance with this clause 9 do not constitute Good Stock, the Seller may, at its sole discretion, return such Goods to the Buyer and charge any additional packaging, insurance and carriage costs to the Buyer.
9.11 If the Seller accepts that the Goods constitute Good Stock, the Seller may accept the return of the Goods from the Buyer. The Seller shall be entitled to deduct from the refund to the Buyer, at its sole discretion, a restocking fee of up to 25% of the value of the Goods returned under this clause 9.
10. TITLE AND RISK
10.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
10.2 Notwithstanding delivery and the passing of risk in the Goods, title in the Goods shall not pass to the Buyer until the Seller has received payment in full (in cash or cleared funds) for:
10.2.1 the Goods; and
10.2.2 any other goods or services that the Seller has supplied to the Buyer under any other contract.
10.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
10.3.1 hold the Goods on a fiduciary basis as the Seller's bailee;
10.3.2 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller's property;
10.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
10.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
10.3.5 notify the Seller immediately if it becomes subject to any of the events listed in clause 11.2.
10.4 Notwithstanding the provisions of clause 10.3, the Buyer has the right to dispose of the Goods in the ordinary course of business on a bona fide sale without notice to its customer of the Seller's rights hereunder.
10.5 The entire proceeds of the disposal of the Goods under clause 10.4 shall be held in trust for the Seller until payment in full for the Goods is received by the Seller.
10.6 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 11.2 or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, the Buyer hereby grants the Seller an irrevocable licence for the Seller, its agents and employees to enter any premises of the Buyer or of any third party (so that the Seller will not commit a trespass when doing so) where the Goods are stored in order to inspect, count and recover the Goods. For the avoidance of doubt the Seller shall be entitled to enforce its rights under this clause in any jurisdiction in which the Buyer and/or the Goods are located.
10.7 The Buyer shall assist the Seller, as applicable, in the registration of any necessary charge over money or goods and shall take such other steps as are necessary to give effect to this at the request of the Seller and/or in order to perfect the Seller’s title and interest in the Goods.
10.8 The Buyer 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 Seller’s property, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
11. BREACH AND INSOLVENCY
11.1 If the Buyer:
11.1.1 is in breach of any of the terms of these Conditions; or
11.1.2 becomes subject to any of the events listed in clause 11.2, or the Seller reasonably believes that the Buyer is about to become subject to any of them and notifies the Buyer accordingly,then, without limiting any other right or remedy available to the Seller, the Seller shall be entitled to:
11.1.3 cancel or suspend all further deliveries under the Contract or under any other contract between the Buyer and the Seller without incurring any liability to the Buyer;
11.1.4 immediate payment of all outstanding sums in respect of the Goods delivered to the Buyer notwithstanding any earlier agreement between the parties; and
11.1.5 exercise any of its rights pursuant to clause 10 above.
11.2 For the purposes of clause 11.1 the relevant events are if the Buyer suspends, or threatens to suspend, payment of its debts or substantially the whole of its business; goes into liquidation; becomes insolvent; or has an administrator, receiver or similar officer appointed in respect of all or part of its undertaking (or is the subject of a filing with any court for the appointment of any such officer); or any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the aforementioned events.
12. PRODUCT INFORMATION
12.1 Although the Seller shall use its reasonable endeavours to ensure that the information contained in the Seller's catalogue or other communications provided are correct at the time of publication or communication, the Seller shall have no liability to the Buyer or any third parties for any damage, loss or expense resulting from any error or omission contained in the Seller's catalogue. Goods supplied may vary in detail from the illustrations, drawings and descriptions (which are approximate and for guidance only) in the Seller's catalogue as a result of improvements or modifications. Colour finishes will be maintained as accurately as possible, but matching cannot be guaranteed.
12.2 The Seller’s policy is one of continuing development and improvement. Consequently, the Seller reserves the right to change or amend specifications to the Goods without prior notice. Notwithstanding that any sample may have been produced or supplied by the Seller all sales shall be sales by description only and not by sample.
13.1 Nothing in these Conditions shall limit or exclude the Seller's liability for:
13.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
13.1.2 fraud or fraudulent misrepresentation;
13.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
13.1.4 defective products under the Consumer Protection Act 1987.
13.2 Subject to clause 13.1:
13.2.1 the Seller shall not be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, loss of opportunity, loss of goodwill, loss of contracts or any other special, indirect or consequential loss howsoever arising under or in connection with the Contract; and
13.2.2 the Seller's total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the price paid or payable for the Goods.
13.3 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller's obligations in relation to the Goods, if the delay or failure was due to the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
13.4 FORCE MAJEURE
The Seller shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of the Seller which by its nature could not have been foreseen by the Seller or, if it could have been foreseen, was unavoidable. For the purposes of this clause this will include, but is not limited to, an act of God, war, strikes, lockouts or other industrial action, difficulties in obtaining labour or parts, government or other restrictions or regulations or other event beyond the reasonable control of the Seller.
14.1 The Buyer acknowledges and agrees that the Buyer shall pay for any samples provided by the Seller at the price set out in the Seller’s published price list in force as at the date of dispatch.
14.2 A credit note for samples will only be issued if they are:
14.2.1 returned within 28 days of the date of dispatch in the same condition as when they were dispatched; and
14.2.2 in the original packaging,provided always that the Buyer shall be responsible for any carriage charges incurred in returning the samples to the Seller.
14.3 The Buyer acknowledges and agrees that where a sample of the Goods has been provided to the Buyer it shall not constitute a sale by sample.
15.1 Severance. If any clause or sub-clause of the Contract is prohibited by law or judged by a court to be unlawful, void or unenforceable, the clause or sub-clause shall, to the extent required, be severed from the Contract and rendered ineffective as far as possible without modifying the remaining provisions of this Contract (or in the case of severance of a sub-clause, without modifying the remaining provisions of the clause), and shall not in any way affect any other circumstances of or the validity or enforcement of the Contract (or in the case of severance of a sub-clause, the validity or enforcement of the clause).
15.2 No Waiver. No failure or delay by the Seller in exercising any right, power or privilege under these Conditions shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in these Conditions are cumulative and not exclusive of any rights and remedies provided by law.
15.3 Notices. All notices in connection with the Contract shall be in writing, addressed to the recipient at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, fax or e-mail. Notices shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second working day after posting; or, if sent by fax or e-mail, one working day after transmission. This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action.
15.4 No Agency. Nothing in these Conditions shall constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in the Contract or as otherwise set out in these Conditions. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
15.5 Assignment. The Buyer shall not assign, transfer, charge, subcontract or otherwise deal with all or any of its rights or obligations under the Contract without the prior written consent of the Seller. The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
15.6 Rights of Third Parties. For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of the Contract this Contract is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions.
15.7 Law and Jurisdiction. All disputes arising out of or in connection with the Contract shall be governed by English law and the Buyer accepts the non-exclusive jurisdiction of the courts of England and Wales.
SCHEDULE 1 QUALITY, RIGHT OF USE OF IMAGES AND TRADING CONDITIONS
1. The Buyer shall at all times ensure that it complies with all applicable laws and regulations regarding the sale of Goods to customers, including but not limited to, any requirements in relation to distance selling (as applicable), marketing and advertising.
2. The Buyer shall ensure that it:
2.1 provides a facility for potential customers to raise questions (technical or otherwise) relating to the Goods with the Buyer; and
2.2 is competent to answer any such questions raised by a customer and give guidance as to the suitability of the Goods to the customer’s requirements; and
2.3 provides a manned telephone number for customer contact and a full business postal address.
3. The Seller expressly prohibits the Buyer from, and the Buyer acknowledges and agrees that it has no right to, and nothing in these Conditions shall be interpreted so as to grant a right to, use, copy, download, modify, adapt or utilise in any capacity whatsoever the logos, trademarks, pictures, images, data and related text of the Seller (the “Images”) without the advance written approval of the Seller in the prescribed form as further set out in paragraph 4 of this Schedule 1.
4. The Buyer may apply to the Seller for rights of use in respect of the Images using a Web Access Application Form provided by the Seller. No permission to use any such Images shall be effective until such time as the Seller signs the Web Access Application Form to confirm its approval subject to the conditions set out in the Web Access Application Form. Notwithstanding the foregoing, Buyers who trade with the Seller on a pro forma basis (“Pro Forma Customers”) acknowledge and agree that they have no right to use, copy, download, modify, adapt or utilise in any capacity whatsoever the Images. The Seller shall not grant any rights of use whatsoever in the Images to any customer that is for the time being a Pro Forma Customer.
5. In the case of Buyers selling the Goods online, the Buyer shall only advertise, promote, market, sell and otherwise make available the Goods using Images made available to the Buyer pursuant to a duly completed Web Access Application Form signed and dated by the Seller in accordance with paragraph 4 of this Schedule 1.
6. The Buyer shall not modify or issue the Images to any third party without the express consent of the Seller in writing.
7. The Buyer shall use all reasonable endeavours to ensure that the use of the Images, or any advertising or promotion carried out by the Buyer in relation to the Goods, does not misrepresent or prejudice the image, reputation or good standing of the Seller.
8. The Buyer shall in particular not combine the Images or brand name with advertising which in the opinion of the Seller has a negative impact upon the Seller’s brands and/or reputation.
9. Subject to prior approval by the Seller in writing, the Buyer may advertise the Goods on its own website which is hosted under its own domain name. The Buyer shall keep the Seller informed of any material changes affecting the website or the hosting of the website.
10. At the sole discretion of the Seller, the Buyer may be permitted to include an internet link to the Seller's website.
11. The Buyer shall not advertise, promote, sell or otherwise make available the Goods on any third party website without the prior written consent of the Seller.
12. The Buyer shall ensure that the Goods are advertised and marketed separately from any other third party products. This can be achieved by advertising the Goods on a separate website "page".
13. The Buyer shall not establish a link from any third party website to any website page advertising the Goods unless specifically and previously agreed in writing by the Seller.
14. The copyright, and any other intellectual property rights in and to the Images, shall at all times remain vested in the Seller. The Images may not be posted to or used on any Seller’s website or posted to a third party website in circumstances where this copyright cannot be protected in full or where the Image may be shared with unauthorised Sellers without the express written agreement of a director of the Seller.
15. The Seller may, in its absolute discretion and at any time update, amend, replace or withdraw any permission granted for the use of the Images.
SCHEDULE 2 THIRD PARTY DELVIERY
Where the Seller agrees to provide Third Party Delivery, the following terms will apply to the Contract in addition to the above Conditions:
1. Third Party Delivery is only available to Buyers using the online ordering system.
2. If the Buyer wants the Seller to provide Third Party Delivery then it must request this when submitting its order and supply sufficient information about the third party so that if the Seller agrees to provide Third Party Delivery, it will be able to do so.
3. Provision of Third Party Delivery is at the sole discretion of the Seller and subject to such additional charges as the Seller may in its discretion and on a case by case determine. Current charges are displayed on the där web portal.
4. Dates and times given by the Seller to the Buyer for Third Party Delivery are for guidance only and clause 5.3 applies to all Third Party Delivery.
5. The Contract shall remain strictly between the Seller and the Buyer. The Seller shall have no liability, duties or obligations to any third party and no third parties shall have any rights under these Conditions. The Buyer shall sell Goods to its customers subject to terms and conditions which make clear that all contractual claims arising out of the sale of Goods to its customer shall be brought against the Buyer.
6. For the avoidance of doubt, the terms of clause 10 of these Conditions shall still apply to all Contracts where the Seller provides Third Party Delivery. It is the Buyer’s responsibility to subsequently transfer risk and title in the Goods to any third party.
7. The Seller reserves the right (at any time and for any reason) to withdraw the provision of Third Party Delivery without incurring any liability to the Buyer or any other party.
SCHEDULE 3 - DATA PROTECTION ADDENDUM RE: THIRD PARTY DELIVERY
1.1 This Variation of Contract and the variations to the Dar Terms of Trade contained within it shall become effective on 25th May 2018. Except as set out in this clause 1, the terms of the Dar Terms of Trade shall continue in full force and effect.
1.2 In the event of any conflict between any term(s) in this Variation and any term in the Dar Terms of Trade, the term in this Variation shall take precedence. Subject to the foregoing, the rules of interpretation set out in the Dar Terms of Trade apply to this Variation.
1.3 In this Variation:
1.3.1 Data Controller, Data Processor, Data Subject, Personal Data, Personal Data Breach, international organisation and processing shall have the respective meanings given to them in the Data Protection Laws (and related expressions shall be construed accordingly);
1.3.2 Data Protection Laws means any applicable law relating to the processing, privacy and use of Personal Data including: the General Data Protection Regulation (EU) 2016/679 (GDPR); and any laws which implement such laws; any laws that replace, extend, re-enact, consolidate or amend any of the foregoing (provided that the impact of any such replacement, extension or amendment is agreed in writing by the parties).
1.3.3 Losses means all claims, damages, liabilities, fines, interest, penalties, costs, charges, sanctions, expenses and/or compensation.
1.3.4 Protected Data means Personal Data received from or on behalf of the Buyer or otherwise obtained in connection with the performance of the Seller’s obligations under the Dar Terms of Trade.
1.3.5 Sub-Processor means any agent, sub-contractor or other third party engaged by the Seller (or by any other Sub-Processor) for carrying out any processing of the Protected Data.
2. COMPLIANCE WITH DATA PROTECTION LAWS
2.1 The Buyer is the Data Controller and the Seller is the Data Processor for the purposes of the processing of Protected Data. The Seller shall process Protected Data in compliance with the obligations placed on it under the terms of this Variation.
2.2 The Buyer shall at all times comply with the Data Protection Laws in connection with the processing of Protected Data. The Buyer confirms that it is entitled to transfer the Protected Data to the Seller and any Sub-Processor in compliance with the Data Protection Laws and shall ensure all instructions given by it to the Seller in respect of Protected Data shall at all times be in accordance with the Data Protection Laws.
2.3 The Buyer shall indemnify and keep indemnified the Seller against all Losses arising out of or in connection with any breach by the Buyer of its obligations relating to the processing of Protected Data.
3.1 The Seller shall only process (and shall ensure the Seller’s Personnel only process) the Protected Data in accordance with this Variation (including the Annex) (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and in such a case the Seller shall inform the Buyer of that legal requirement before processing, unless such applicable law prohibits the Seller from so notifying the Buyer).
3.2 If the Seller believes that any instruction received by it from the Buyer is likely to infringe the Data Protection Laws it shall inform the Buyer and be entitled to cease to provide the relevant goods until the parties have agreed appropriate amended instructions which are not infringing.
4.1 Taking into account the state of technical development and the nature of processing, the Seller shall implement and maintain the technical and organisational measures set out in Part 2 of the Annex to protect the Protected Data against accidental, unauthorised or under lawful destruction, loss, alteration, disclosure and/or access.
5. SUB-PROCESSING AND PERSONNEL
5.1 The Seller shall:
5.1.1 appoint each Sub-Processor with care and ensure prior to the appointment that the subcontractor agrees under a written contract containing materially the same obligations as under this Variation in respect of Protected Data;
5.1.2 ensure that all persons authorised by the Seller or any Sub-Processor to process Protected Data are subject to a written contractual obligation to keep the Protected Data confidential.
6.1 The Seller shall (at the Buyer’s cost) in relation to third party delivery:
6.1.1 assist the Buyer in ensuring compliance with the Buyer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under Data Protection Laws) taking into account the nature of the processing and information available to the Seller;
6.1.2 taking into account the nature of the processing, assist the Buyer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Buyer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data; and
6.1.3 refer all requests and communications received from Data Subjects or any supervisory authority to the Buyer which relate to any Protected Data promptly (and in any event within 3 days of receipt) and shall not respond to any without the Buyer’s written approval and in accordance with the Buyer’s instructions unless and to the extent required by law.
7. INTERNATIONAL TRANSFERS
7.1 The Seller shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the European Economic Authority unless the prior written consent of the Buyer has been obtained.
8. RECORDS AND AUDIT
8.1 The Seller shall, in accordance with Data Protection Laws, make available to the Buyer such information that is in its position or control as is necessary to demonstrate the Seller’s compliance with its obligations under this Variation.
9.1 The Seller shall notify the Buyer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Personal Data.
10.1 On ceasing to provide the goods relating to the processing of Protected Data, at the Buyer’s cost and option, the Seller shall either return all of the Protected Data to the Buyer or securely dispose of the Protected Data except to the extent any applicable law requires the Seller to store such Protected Data.
PART 1 – DATA PROCESSING DETAILS
Processing of the Protected Data by the Seller under this Variation shall be for the subject-matter, duration, nature and purposes and involve the types of personal data and categories of Data Subjects set out below:
1. SUBJECT-MATTER OF PROCESSING:
The Seller will process Protected Data in order to perform its obligations under the Dar Terms of Trade.
2. DURATION OF THE PROCESSING:
The Seller will process the Protected Data for the term of the Dar Terms of Trade (and any exit period) and thereafter as long as the Seller is required to process any Protected Data pursuant to the Data Protection Legislation.
3. NATURE AND PURPOSE OF THE PROCESSING:
The nature and purpose of the processing of the Protected Data will be to perform its obligations under the Dar Terms of Trade. Supplying / delivering product to the Buyer’s customers
4. TYPE OF PERSONAL DATA:
The types of Protected Data will be as follows:
Delivery name, address, telephone number and email address
5. CATEGORIES OF DATA SUBJECTS:
The buyer’s business and consumer customers
PART 2 – TECHNICAL AND ORGANISATIONAL SECURITY MEASURES
1. The Seller shall implement and maintain the following technical and organisational security measures to protect the Protected Data:
In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with the Dar Terms of Trade, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, the Seller shall implement appropriate technical and organisational security measures appropriate to the risk, including what is appropriate those matters mentioned in Articles 32(a) to (d) of the GDPR.
Specifically, the contact and delivery data received by the seller will be deleted after three months of delivery of the order.