Terms & Conditions 2024
Sperry Tents Marion, PO Box 460, West Wareham, MA 02576. USA
|In these Conditions the following words have the following meanings:
|In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
|In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
|In these Conditions headings will not affect the construction of these Conditions.
|APPLICATION OF TERMS
|Subject to any variation under Condition 2.3 the Contract will be on these
Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
|No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
|These Conditions apply to all the Company’s sales of Goods and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a suitably authorised representative of the Company.
|Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
|No order placed by the Buyer shall be deemed to be accepted by the Company until the Company issues a written acknowledgement of order or (if earlier) the Company delivers the Goods to the Buyer.
|The description of the Goods shall be as set out in the proposal and sales order. The Company reserves the right to change the description without notice.
|All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s websites or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract. The sizes of the tents are estimates and due to the natural cloth and hand sewn nature, sizes may be different.
|Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be allocated on a ‘first come, first served’ basis.
|Subject to the other provisions of these Conditions the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence).
|If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.3.1 risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.3.2 the Goods will be deemed to have been delivered; and
4.3.3 the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
|If 10 business days after the first attempted delivery of the Goods by the
Company the Buyer has not accepted delivery of the Goods, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
|The Buyer will provide at its expense at the Delivery Point adequate and
appropriate equipment and manual labour for unloading the Goods.
|The Company may deliver the Goods by instalments and each instalment shall be treated as a separate Contract so that failure to deliver or defect in one or more instalment shall not entitle the Buyer to reject the other instalments.
|By accepting delivery of the Goods, the Buyer will have deemed to have accepted the condition of the Goods.
|RISK AND TITLE
|The Goods are at the risk of the Buyer from the time of delivery or receipt.
|Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
5.2.1 the Goods; and
5.2.2 all other sums which are due to the Company from the Buyer on any account.
|Until ownership of the Goods has passed to the Buyer, the Buyer must:
5.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
5.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
5.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.4 maintain the Goods in satisfactory condition and suitably insured for their full price against all risks; and
5.3.5 hold the proceeds of the insurance referred to in Condition 5.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
|The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
5.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
5.4.2 any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
|The Buyer’s right to possession of the Goods shall terminate immediately if:
5.5.1 the Buyer goes into liquidation, becomes bankrupt, has a receiver appointed, makes a composition or voluntary arrangement with its creditors, enters administration or suffers any other insolvency related event; or
5.5.2 fails to observe/perform any of his/its obligations under the Contract; or
5.5.3 the Buyer encumbers or in any way charges any of the Goods.
|The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
|The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
|Unless otherwise agreed by the Company in writing the price for the Goods shallbe the price set out in the Company’s price list published on the date of delivery or deemed delivery, unless such price is incorrectly stated due to a printing error.
|The price for the Goods shall be exclusive of any value added tax, purchase tax or sales tax and all costs or charges in relation to loading, unloading, carriage, insurance, customs duty, clearance charges and such like all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
|Payment of the price for the Goods is due and payable in advance of shipping.
|Time for payment shall be of the essence.
|No payment shall be deemed to have been received until the Company has received cleared funds.
|All payments payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
|The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
|If the Buyer fails to pay the Company any sum due, the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 5% above the base lending rate, accruing on a daily basis until payment is made, whether before or after any judgment.
|The Company warrants that (subject to the other provisions of these Conditions) upon delivery and for a period of 12 months from the date of delivery, the Goods will:
8.1.1 be of satisfactory quality; and
8.1.2 be reasonably fit for the purpose specified in the Company’s promotional materials.
|The Company shall not be liable for a breach of the warranty in Condition 8.1 unless:
8.2.1 the Buyer gives written notice of the defect to the Company within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
8.2.2 the Buyer provides a description of the defect along with diagrams, photographs and videos as necessary to fully explain the defect; and
8.2.3 the Buyer provides additional information as may be requested by the Company to understand the defect; and
8.2.4 the Company is given a reasonable opportunity after receiving the notice of examining such Goods at the Buyer’s premises or at the Company’s premises as required by the Company.
|The Company shall not be liable for a breach of the warranty in Condition 8.1 if:
8.3.1 the Buyer makes any further use of such Goods after giving such notice; or
8.3.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
8.3.3 the Buyer alters or repairs such Goods without the written consent of the Company.
|Subject to Conditions 8.2 and 8.3, if any of the Goods do not conform with the warranty in Condition 8.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
|If the Company complies with Condition 8.4 it shall have no further liability for a breach of the warranty in Condition 8.1 in respect of such Goods.
|LIMITATION OF LIABILITY
|Subject to Condition 8, the following provisions of this Condition 9 set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
9.1.1 any breach of these Conditions; and
9.1.2 any representation, statement or tortious act or omission including
|All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
|Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or for fraudulent misrepresentation.
(The Buyer’s attention is drawn to the provisions of Condition 9.4 below)
|Subject to Conditions 9.2 and 9.3:
9.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of each Contract shall be limited to the value of the Contract; and
9.4.2 the Company shall not be liable to the Buyer for any indirect or
|The property and any copyright or other intellectual property rights in:
10.1.1 any Buyer Materials shall belong to the Buyer;
10.1.2 any Company Materials shall, unless otherwise agreed in writing between the Buyer and the Company, belong to the Company, subject only to a licence in favour of the Buyer to use the Company Materials for the purposes of receiving the Goods.
|“Confidential Information” means all confidential information in any form,
including but not limited to electronic files and any printed copies of the same, disclosed by the Company to the Buyer, including but not limited to any information relating to products, designs, trade secrets, processes or know-how for as long as such information remains confidential.
|Confidential Information shall not include any information that: (a) is or becomes publicly known other than by breach of contract; (b) was in the Buyer’s lawful possession prior to the disclosure by the Company; (c) is independently received from a third party having the full right to disclose; or (d) is required to be disclosed by law.
|The Buyer undertakes not to use any Confidential Information for any purpose whatsoever except to help with business planning and for ongoing business support for their business using Sperry Tents. All information will be held in strict confidence and securely, and must not to passed on to any other person or organisation, except employees and representatives of the Buyer who need to know for the performance of their role and who are bound by confidentiality obligations.
|The Buyer agrees not to copy, reproduce, duplicate, modify or create derivative works of the Confidential Information or any part of it in any form or medium (unless expressly permitted by the Company) or use any of the Confidential Information to compete, directly or indirectly, with the business activities of the Company and/or its suppliers.
|The Buyer acknowledges that the copyright and title to the Confidential
Information and any trademarks or service marks relating to it remain with the Company, and the Buyer shall not pass off, nor attempt to pass off, as the Company.
|If the Company believes that the Buyer has breached any of the obligations in Clause 11, then the Company may require the Buyer to return the Confidential Information in its entirety and the Buyer will not be permitted to keep any copies or records of the Confidential Information.
|The Buyer understands that the Company does not make any express or implied warranty or representation concerning the Confidential Information, or the accuracy or completeness of the Confidential Information, or any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb or other such computer program.
|The Buyer accepts that all Confidential Information must be treated in
accordance with this Condition 11 indefinitely.
|The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
|The Company may assign the Contract or any part of it to any person, firm or company.
|The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency,
riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 90 days past the original delivery date, the Buyer shall be entitled to give immediate notice in writing to the Company to terminate the Contract.
|Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
|If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
|Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
|Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
|The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by and construed in accordance with British law and each party hereby submits to the non-exclusive jurisdiction of the UK.
|All notices between the parties about the Contract must be in writing and
delivered by hand or sent by pre-paid first class post or sent by email to the registered office address of the party in question or such
other address as shall be notified by the Company or the Buyer to the other from time to time.
|Notices shall be deemed to have been received:
15.2.1 if sent by pre-paid first class post, 5 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
15.2.2 if delivered by hand, on the day of delivery;
15.2.3 if sent by email on a working day prior to 4.00