The customer’s attention is drawn in particular to the provisions of clause 9.
1.1 Definitions. In these Conditions, the following definitions apply:
a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6;
each contract between Black Dog Industries Limited and the Customer for
the sale and purchase of the
Goods (each such contract being governed by these Conditions);
the person who agrees to purchase Goods from Black Dog Industries Limited;
Force Majeure Event
has the meaning given in clause 10;
goods (or any part of them) set out in the Order;
the Customer’s order for products which Black Dog Industries Limited agrees to deliver;
Black Dog Industries Limited
Black Dog Industries Limited (registered in England and Wales with company number 11326219); and
the specification for the Goods, including any related plans and drawings, that is either set out in Black Dog Industries Limited catalogue or website (http//black-dog.eu) or as otherwise specified in the Order and agreed to by Black Dog Industries Limited.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes the Customer and Black Dog Industries Limited and their respective successors or permitted assigns.
1.2.3 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.
1.2.4 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.
1.2.5 A reference to writing or written includes faxes and e-mails.
2 BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Customer waives any term or condition that is not expressly stated in the Order (including any terms that might but for this provision be deemed incorporated by reference), and any terms that are not plainly accepted by Black Dog Industries Limited in its acceptance of the Order.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate. The Customer agrees that once an Order has been submitted to Black Dog Industries Limited it may not withdraw or amend that Order without Black Dog Industries Limited’s prior written consent.
2.3 The Order shall be deemed not to have been accepted by Black Dog Industries Limited until Black Dog Industries Limited issues a written acceptance of the Order or delivers the Goods, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Black Dog Industries Limited which is not set out in the Contract.
2.5 Black Dog Industries Limited agrees to supply the Goods to the Specification subject to industry standard tolerances or as otherwise stated in Black Dog Industries Limited’s catalogues or website.
2.6 A quotation for the Goods given by Black Dog Industries Limited shall not constitute an offer. A quotation may be withdrawn by Black Dog Industries Limited (and should not be relied on to place an Order) at any time 20 or more Business Days after the date of its issue.
3.1 To the extent that the Goods are to be manufactured in accordance with a bespoke Specification supplied by or agreed with the Customer, the Customer shall indemnify Black Dog Industries Limited 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 professional costs and expenses) suffered or incurred by Black Dog Industries Limited in connection with any claim made against Black Dog Industries Limited for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Black Dog Industries Limited’s use of the Specification. This clause 3.1 shall survive termination of the Contract.
3.2 Black Dog Industries Limited reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement.
4.1 Black Dog Industries Limited shall ensure that each delivery of the Goods is accompanied by a delivery note which identifies the Order to which it relates and Black Dog Industries Limited’s reference number.
4.2 Where agreed in the Order, Black Dog Industries Limited shall deliver the Goods to the location specified in the Order (or such other location as the parties may agree at any time). If Black Dog Industries Limited (or its delivery agent) fails to gain access to the specified delivery location, the Goods may be returned to Black Dog Industries Limited and made available for collection by the Customer. In all other cases the Customer shall collect the Goods from Black Dog Industries Limited’s premises at 162 Ombersley Road, Worcester, Worcestershire, WR3 7HA (or such other location as Black Dog Industries Limited advises). Collection shall be made within three Business Days of Black Dog Industries Limited notifying the Customer that the Goods are ready.
4.3 Unless otherwise agreed in writing, delivery of the Goods shall take place during Black Dog Industries Limited’s usual working hours.
4.4 Risk in the Goods shall transfer to the Customer when the Goods leave Black Dog Industries Limited’s manufacturing or storage facilities.
4.5 Dates quoted for delivery are approximate only, and time of delivery is not of the essence. Black Dog Industries Limited shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Black Dog Industries Limited with adequate delivery or other instructions that are relevant to the supply of the Goods.
4.6 If Black Dog Industries Limited
fails to deliver the Goods, its liability shall be limited (a) if it makes the
Goods available for collection, to the cost of arranging the collection, or (b)
if it does not make the Goods available for collection, to the
reasonable costs properly incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods (provided that if failure to deliver does not result from Black Dog Industries Limited’s negligence in breach of Contract, Black Dog Industries Limited shall have no such liability). Black Dog Industries Limited shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Black Dog Industries Limited with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If the Customer fails to take or accept delivery of the Goods within three Business Days of Black Dog Industries Limited notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Black Dog Industries Limited ‘s failure to comply with its obligations under the Contract:
4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Black Dog Industries Limited notified the Customer that the Goods were ready; and
4.7.2 Black Dog Industries Limited shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.8 If 10 Business Days after the day on which Black Dog Industries Limited notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, Black Dog Industries Limited may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.9 The Customer shall not be entitled to reject the Goods if Black Dog Industries Limited delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
4.10 Black Dog Industries Limited may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 Black Dog Industries Limited warrants that on delivery, the Goods shall:
5.1.1 conform in all material respects with the Specification;
5.1.2 be free from
material defects in design, material and workmanship;
5.1.3 be of
satisfactory quality (within the meaning of the Sale of Goods Act
5.1.4 subject to
reasonable use by the Customer be fit for any purpose held
out by Black Dog Industries Limited.
5.2 Subject to clause 5.3, Black Dog Industries Limited shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
5.2.1 the Customer gives notice in writing to Black Dog Industries Limited within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2Black Dog Industries Limited is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by Black Dog Industries Limited) returns such Goods to Black Dog Industries Limited ‘s place of business.
5.3 Black Dog Industries Limited shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow Black Dog Industries Limited ‘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 regarding the same;
5.3.3 the defect arises as a result of Black Dog Industries Limited following any drawing, design or Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of Black Dog Industries Limited;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Black Dog Industries Limited shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Black Dog Industries Limited.
6 TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer as specified in these Conditions (or, if sooner, on completion of delivery to the place specified by the Customer or collection of the Goods by the Customer).
6.2 Title to the Goods shall not pass to the Customer until Black Dog Industries Limited has received payment in full (in cash or cleared funds) for:
6.2.1 the Goods; and
6.2.2 any other goods or services that Black Dog Industries Limited has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer may (subject to the following provisions of this clause 6.3) use the Goods in the ordinary course of its business but shall:
6.3.1 hold the Goods on a fiduciary basis as Black Dog Industries Limited’s bailee;
6.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Black Dog Industries Limited’s property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 notify Black Dog Industries Limited immediately if it becomes subject to any of the events listed in clause 8.2; and
6.3.6 give Black Dog Industries Limited such information relating to the Goods as Black Dog Industries Limited may require from time to time.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or Black Dog Industries Limited reasonably believes that any such event is about to happen and notifies the Customer accordingly, then Black Dog Industries Limited may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7 PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order (or in any valid quotation to which the Order relates), or, if this is no such price, the price set out in Black Dog Industries Limited ‘s published price list in force as at the date of delivery.
7.2 Black Dog Industries Limited may, by giving notice to the Customer at any time up to seven Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.2 any delay caused by any instructions of the Customer or failure of the Customer to give Black Dog Industries Limited adequate or accurate information or instructions.
7.3 Unless agreed otherwise in writing, the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax or other applicable sales tax (VAT). The Customer shall, on receipt of a valid VAT invoice from Black Dog Industries Limited, pay to Black Dog Industries Limited such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 Black Dog Industries Limited may invoice the Customer for the Goods on or at any time after the receipt of the Order.
7.6 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Black Dog Industries Limited. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to Black Dog Industries Limited under the Contract by the due date for payment (due date), then Black Dog Industries Limited may require the Customer to pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Black Dog Industries Limited in order to justify withholding payment of any such amount in whole or in part. Black Dog Industries Limited may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Black Dog Industries Limited to the Customer.
8 CUSTOMER’S INSOLVENCY OR INCAPACITY
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or Black Dog Industries Limited reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Black Dog Industries Limited, Black Dog Industries Limited may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Black Dog Industries Limited without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
8.2.1 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
8.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
8.2.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
8.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order;
8.2.5 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
8.2.6 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
8.2.7 (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
8.2.8 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
8.2.9 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1 to clause 8.2.8 (inclusive);
8.2.10 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
8.2.11 the Customer’s financial position deteriorates to such an extent that in Black Dog Industries Limited ‘s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
8.2.12 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9 LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude Black Dog Industries Limited ‘s liability in respect of the following to the extent that excluding or limiting such liability would be unenforceable as between Black Dog Industries Limited and the Customer in a Court of law (but to that extent only and not otherwise):
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of any terms implied by section 12 of the Sale of Goods Act
9.1.4 any liability in respect of defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for Black Dog Industries Limited to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1 Black Dog Industries Limited shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
9.2.2 Black Dog Industries Limited shall not be liable to the Customer in respect of any loss resulting from misuse of any Goods or from the mishandling or misuse of Goods or damage caused to or by Goods otherwise than in accordance with Black Dog Industries Limited’s recommendations (including, without limitation, those stated in its Conditions of Use as published on Black Dog Industries Limited’s website www.black-dog.eu) or in an inappropriate environment;
9.2.3 Black Dog Industries Limited shall have no liability in respect of a loss originally suffered by a third party (including any such loss that the Customer agrees to be responsible for);
9.2.4 Black Dog Industries Limited ‘s total liability to the Customer in respect of all 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 of the Goods; and
9.2.5 Black Dog Industries Limited shall not be liable for any loss or damage in transit unless the loss or damage is attributable to Black Dog Industries Limited’s negligence and is notified to Black Dog Industries Limited by the Customer in writing within 14 days of delivery.
10 FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event (except that this clause 10 shall not operate to exonerate any liability that the Customer has in respect of payments owed to Black Dog Industries Limited. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s) or other interruption to the availability of a relevant workforce, failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, non-delivery of supplies or stocks or default of Black Dog Industries Limited’s agents or subcontractors.
Assignment and subcontracting
11.1 Black Dog Industries Limited may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Black Dog Industries Limited.
11.3 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 (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, commercial courier, fax or e-mail.
11.4 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.3; if sent by pre-paid first class post or recorded delivery, at 9.00 am 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 fax or e-mail, one Business Day after transmission.
11.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.6 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.7 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.8 A waiver of any right or remedy
under the Contract is only effective if given in writing and shall not be
deemed a waiver of any subsequent breach or default. 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
preclude or restrict the further exercise of that or any other right or
remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Third party rights
11.9 A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.10 Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Black Dog Industries Limited. These Conditions may be amended by Black Dog Industries Limited at any time prior to a Contract being formed, amendments shall be effective as soon as they are posted to Black Dog Industries Limited’s website (or are notified to the Customer).
Governing law and jurisdiction
11.11 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.