Terms & Conditions
Supply of Goods Agreement between DMC Sport and ICC Members
SUPPLY OF GOODS AGREEMENT CONTRACT DETAILS
Business Day: a day when banks in the United Kingdom are open for business.
Commencement Date: the date the Contract commences, as set out in the Contract Details.
Conditions: these terms and conditions.
Contract: the contract between the Customer and the Supplier for the sale and purchase of the Goods in accordance with the Contract Details and these Conditions.
Delivery Date: the date specified for delivery of an Order, in accordance with clauses 3.2 and 5.2. Delivery Location: the address for delivery of the Goods, as set out in the Contract Details. Goods: the goods (or any part of them) as set out in the Contract Details.
Order: the Customer’s order for the Goods submitted by the Customer in accordance with clause 3. Price: the price for the Goods, as set out in the Contract Details.
Specification: the specification for the Goods, including any related plans and drawings that are agreed by the Customer and the Supplier, as set out in the Contract Details.
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re- enacted;
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(c) a reference to writing or written includes emails.
- COMMENCEMENT AND TERM
This Contract shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with its terms, until the first anniversary of the Commencement Date, when it shall terminate automatically without notice.
3.1 The Customer shall submit Orders for Goods by providing the Supplier with the relevant information as set out in the Contract
3.2 The Supplier shall use its best endeavours to supply Goods in accordance with the Customer’s Orders, by the Delivery Date specified in the Order.
4.1 The Supplier shall ensure that the Goods:
(a) correspond with their description and any applicable Specification;
(b) are of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement;
(c) where they are manufactured products, are free from defects in design, material and workmanship and remain so for twelve (12) months after delivery subject at all times to the normal and wear that would be expected where the Goods are used for the purpose for which they are intended; and
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
4.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
4.3 The Customer has the right to inspect and test the Goods at any time before completion of delivery.
4.4 If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 4.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
4.5 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and the Customer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
5.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition, and that all necessary information is included in order to ensure customs clearance whilst in transit to the Delivery Location; and
(b) each delivery of Goods is accompanied by a delivery note which shows the order number, the type and quantity of Goods, special storage instructions (if any) and, if the relevant Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
5.2 The Supplier shall procure the delivery of the Goods specified in each Order:
(a) on or before the relevant Delivery Date, which shall be no later than twelve (12) weeks from the Commencement Date;
(b) at the Delivery Location; and
(c) during the Customer’s normal business hours, or as instructed by the Customer.
5.3 Delivery of Goods is completed on the acceptance of the Goods by the Customer subsequent to the unloading of such Goods at the Delivery Location.
5.4 If the Customer rejects any Goods they are returnable at the Supplier’s risk and expense.
5.5 The Supplier shall not deliver Orders in instalments without the Customer’s prior written consent. Where it is agreed that Orders may be delivered by instalments, such instalments shall be invoiced separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment, shall entitle the Customer to the remedies set out in clause 6.
- CUSTOMER REMEDIES
6.1 If the Goods are not delivered on the relevant Delivery Date, or do not comply with the undertakings set out in clause 4.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, and the Customer may exercise any one or more of the following remedies:
(a) to terminate the Contract;
(b) to reject the Goods (in whole or in part), return them to the Supplier at the Supplier’s own risk and expense, or withhold payment of
any remaining instalments of the Price;
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the Price of the rejected or non-delivered Goods (if paid) if such repair or replacement cannot be made to the Customer’s satisfaction;
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods from a third party; and
(f) to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
6.2 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.3 The Customer’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and
- TITLE AND RISK
7.1 The Supplier represents and warrants that the Goods shall not infringe the intellectual property rights of any third party and shall indemnify and hold the Customer harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, incurred or paid by the Customer as a result of or in connection with any alleged or actual infringement of any third party's intellectual property rights in the Goods, except to the extent that any such infringement is attributable to the Customer Materials.
7.2 Title and risk in the Goods shall pass to the Customer on completion of delivery to the Delivery Location.
PRICE AND PAYMENT
8.1 The Customer shall pay for Goods in accordance with this clause 8. 8.2 The Price shall be inclusive of
(a) all value added or similar sales taxes;
(b) the costs of packaging, insurance and carriage of the Goods including all import duties (notwithstanding the fact that such costs may be stipulated separately as an element of the Price); and
(c) branding costs
8.3 No extra charges shall be payable unless agreed in writing and signed by the Customer.
8.4 The Supplier may invoice the Customer for fifty per cent (50%) of the Price on or at any time after the date of the Order, with the remaining fifty per cent (50%) of the Price to be invoiced on completion of delivery. The Supplier shall ensure that all invoices include the date of the Order, the invoice number, the Contract Number and any supporting information that the Customer may reasonably require.
8.5 The Customer shall pay correctly rendered invoices to the bank account nominated in writing by the Supplier in accordance with the details communicated to the Customer at the time of the Order.
8.6 If a party fails to make any payment due to the other under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 4% per annum above the base rate of Barclays Bank from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments the defaulting party disputes in good faith.
8.7 The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier.
- CUSTOMER MATERIALS
9.1 The Supplier acknowledges that all intellectual property rights in logos, trade marks, materials, drawings, Specifications and data supplied by the Customer to the Supplier for the purposes of the supply of the Goods (the Customer Materials) are and shall remain, as between the parties, the exclusive property of the Customer, to the extent that such intellectual property rights are owned by the Customer
9.2 No licence to use the Customer Materials is granted by the Customer to the Supplier other than strictly for the purposes of the design, manufacture and delivery of the Goods in accordance with the Contract. The Supplier shall keep the Customer Materials in safe custody at its own risk and shall not dispose or use the same other than in accordance with the Customer’s written instructions or authorisation.
10.1 The Supplier shall keep the Customer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Customer as a result of or in connection with:
(a) any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against the Customer by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
(c) any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
10.2 This clause 10 shall survive termination of the Contract.
During the term of the Contract, the Supplier shall maintain in force, with a reputable insurance company product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
COMPLIANCE WITH RELEVANT LAWS AND POLICIES
12.1 In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and codes
from time to time in force.
12.2 The Customer may immediately terminate the Contract for any breach of clause 12 by the Supplier.
13.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the
court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business (or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction);
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.2 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
14.1 Subcontracting. Where the Supplier subcontracts any or all of its rights or obligations under this Contract, the Supplier shall
remain responsible for all acts and omissions of any subcontractors engaged as if they were its own.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business,
affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this
14.4 Entire agreement. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.5 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.6 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office 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, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in the Contract Details; if sent by pre-paid first class post or other next working day delivery service, at 0900 hours on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.9 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of
14.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
14.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.