Terms of service
Splosh Ltd (registered number 6800040) whose registered office is at Unit 6, Dyffryn
Industrial Estate, Newtown, Powys, SY16 3BD (“we” or “us”)
TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS [AND SERVICES]
1. DEFINITIONS AND INTERPRETATION
In these Conditions:
1.1 the following words and expressions have the following meanings, and, in addition, any words
and expressions defined in any Condition will have the same meaning when used in any
other Condition:
“Business Day” a day that is not a Saturday, Sunday or public or bank holiday in England
and/or Wales
“Charges” EITHER
the charges for the Services set out in our price list in
force on the date on which the Order is received by us
OR
the charges for the Services set out in our price list in
force on the date on which the Order
Acknowledgement is issued by us
OR
the charges for the Services set out in our quotation
as those charges may be varied from time to time in
accordance with Condition 6.4
“Liability” liability arising out of or in connection with the Contract, whether in contract, tort,
misrepresentation,
restitution, under statute or otherwise, including any
liability [under an indemnity contained in the Contract
and/or] arising from a breach of, or a failure to
perform or defect or delay in performance of, any of a
party’s obligations under the Contract and/or any
defect in any of the Goods, in each case howsoever
caused including if caused by negligence [or if
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caused by a deliberate breach by that party]
“Order” your order for the supply of goods by us, set out in our standard order form /your
acceptance of our
quotation/ your purchase order form/ placed via our
[secure] on-line ordering facility accessed via our
website at www.splosh.com
“Order Acknowledgement” our acceptance of the Order set out in our standard order
acknowledgement form / generated via our
[secure] on-line ordering facility accessed via our
website at www.splosh.com
“Prices” EITHER
the prices for the Goods set out in our price list in
force on the date on which the Order is received by us
OR
the prices for the Goods set out in our price list in
force on the date on which the Order
Acknowledgement is issued by us
OR
the prices for the Goods set out in our price list in
force on the date of Delivery
OR
the prices for the Goods set out in our quotation
[as those prices may be varied from time to time in
accordance with Condition 6.4]
“Property Liability” OPTION 1
Liability arising from or for loss or destruction of or
damage to tangible property
OPTION 2
Liability for loss or destruction of or damage to
tangible property, but not Liability arising from any
such loss, destruction, or damage
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“Specification” the written technical specification for the Goods set out in our product list
“you” the person named as the customer in the Order
1.2 all headings are for ease of reference only and will not affect the construction or interpretation of
these Conditions;
1.3 references to a “person” include any individual, body corporate, association, partnership, firm,
trust, organisation, joint venture, government, local or municipal authority, governmental or
supra-governmental agency or department, state or agency of state or any other entity (in
each case whether or not having separate legal personality);
1.4 references to any statute or statutory provision will include any subordinate legislation made
under it and will be construed as references to such statute, statutory provision and/or
subordinate legislation as modified, amended, extended, consolidated, re enacted and/or
replaced and in force from time to time;
1.5 any words following the words “include”, “includes”, “including”, “in particular” or any similar
words or expressions will be construed without limitation and accordingly will not limit the
meaning of the words preceding them;
1.6 the rule known as the ejusdem generis rule will not apply and accordingly the meaning of general
words introduced by the word “other” or a similar word or expression will not be restricted
by reason of the fact that they are preceded by words indicating a particular class of acts,
matters or things;
1.7 [ny reference to:
1.7.1 time of day is to London time;
1.7.2 a day is to a period of 24 hours running from midnight to midnight;] [and
1.8 [an obligation on a party to procure or ensure the performance or standing of another person will
be construed as a primary obligation of that party].
2. CONTRACT FORMATION
2.1 Any quotation given by us will be valid for a period of 30 days from and including its date, and will
constitute an invitation to treat and not an offer.
2.2 The Order constitutes an offer by you to purchase the goods set out in the Order (“Goods”) [and
the services set out in the Order (“Services”)] from us on these Conditions. A contract for the
supply of Goods [and Services] by us to you on these Conditions will be formed when we
accept the Order by issuing an Order Acknowledgement to you. For the avoidance of
doubt, we are under no obligation to accept the Order.
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2.3 These Conditions are the only terms and conditions on which we will supply goods [and services]
to you and will apply to the exclusion of all other terms and conditions including any terms
and conditions which you purport to apply under any purchase order, confirmation of order
or similar document (whether or not such document is referred to in the Contract) and any
terms and conditions which may otherwise be implied by trade, custom, practice or course
of dealing.
2.4 Delivery [or commencement of the performance of the Services] will be deemed conclusive
evidence of your acceptance of these Conditions.
2.5 We will be entitled, at our discretion, to deliver Goods by separate instalments. We will be
entitled to invoice the Price for each installment separately in accordance with Condition 6.5.
Each installment will be deemed to be a separate contract and no cancellation or
termination of any one contract relating to an installment will give you the right to cancel or
terminate any other contract.
3. THE GOODS
3.1 We will be entitled at any time to:
3.1.1 vary the design, finish or specification/Specification of Goods and/or their packaging;
and/or
3.1.2 substitute any materials or parts which are used in Goods and which are unavailable for
any reason with alternative materials or parts
to the extent that:
3.1.3 this does not materially affect their quality or performance; or
3.1.4 this is necessary to comply with any health and safety or other legal requirements.
We will use reasonable endeavors to give you prior notice of any such variation or
substitution.
3.2 With the exception of the Specification, all samples, drawings, descriptive and illustrative matter
and advertising issued or published by us (or the manufacturer of the Goods) whether in catalogues,
brochures, websites, other promotional material or otherwise are for the sole purpose of giving an
approximate idea of the relevant Good.
3.3 The Contract is not a sale by sample.
4. DELIVERY
We will deliver the Goods to the address specified in the Order Acknowledgement. We will
inform you in advance of the date on which the Goods will be delivered. Delivery of the
Goods (“Delivery”) will be deemed to occur when they arrive at the delivery address.
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All damages occurred in delivery are to be reported within 24 hrs via writing to
hello@splosh.com with your order number and a photo of the item’s condition. Any claims
made after this time may be rejected. We will have no Liability to you for any damages that
occur after confirmation of excepted delivery.
4.1 We will use reasonable endeavors to deliver Goods on the estimated delivery date set out in the
Order Acknowledgement, but time for delivery of the Goods will not be of the essence of
the Contract. Any delivery dates given by us are estimates only.
4.2 If:
4.2.1 the Goods have not been delivered under Condition 4.1 within 14 days from and
including the estimated delivery date set out in the Order Acknowledgement; and
4.2.2 we fail to deliver those Goods under Condition 4.1 within 14 days of a written notice
referring to this Condition 4.3 and setting out your rights under it being given by
you,
you will be entitled to cancel the Contract by giving written notice to that effect to us. If you
exercise your right of cancellation, we will refund to you any monies which you have already
paid to us under the Contract and you will not be required to pay any further monies to us
under the Contract. Subject to Condition 9.5, our sole Liability for our
failure to deliver the Goods will be limited to the price (exclusive of value added tax) paid by
you in obtaining replacement goods of equivalent description and quality in the cheapest
market available, less the Price of the Goods.
4.3 Save as provided in Condition 4.3, you will not be entitled to cancel the Contract or to reject any
Goods by reason of a delay in delivery or failure to deliver.
4.4 If Delivery occurs but you fail to accept delivery of the Goods we will be entitled to:
4.4.1 store or arrange for storage of the Goods until you accept delivery of them or they are
returned of under Condition 4.5.2 (as applicable) attempt to re deliver the Goods to the
address specified in the Order Acknowledgement;
4.4.2 treat the Contract as repudiated by you and dispose of the Goods in any way we see
fit, including by sale to another person. If we sell any of the Goods under this
Condition 4.5.2 at a price which is less than the relevant Price we will be entitled
to charge you for the shortfall; and
4.4.3 charge you for all costs and expenses which we incur under Conditions 4.5.1 and
4.5.2.
5. PASSING OF RISK AND RETENTION OF TITLE
5.1 Risk of damage to or loss of the Goods will pass to you on Delivery.
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5.2 Legal and beneficial ownership of the Goods will not pass to you until we have received in full in
cleared funds:
5.2.1 all sums due to us in respect of the Goods; and
5.2.2 all other sums which are or which become due to us from you on any account
whatsoever.
5.3 Until ownership of the Goods has passed to you, you will:
5.3.1 store the Goods (at no cost to us) separately from all other goods in such a way that
they remain readily identifiable as our property;
5.3.2 not destroy, deface or obscure any identifying mark or packaging on or relating to the
Goods;
5.3.3 not, without our prior written consent, annex any Goods to your premises; 5.3.4
maintain the Goods in satisfactory condition; and
5.3.5 keep the Goods insured for their full price against damage or loss on an “all risks” basis
with insurers approved by us, (acting reasonably), whenever requested by us
produce a copy of the policy of insurance in respect of the Goods to us, do
nothing and not omit to do anything which in consequence permits any insurer to
refuse to indemnify you in full in accordance with the terms of any insurance
policy maintained in respect of the Goods in respect of any claim made under any
such insurance policy and
EITHER
ensure that any insurance proceeds received by you under the relevant policy are
applied to repairing damaged Goods or, in the event that they are not so
applied, hold such proceeds on trust for us.
OR
procure that any insurance proceeds received in respect of lost or damaged
Goods are paid to us, to the extent required to satisfy your indebtedness to us.
5.4 You may use and resell the Goods in the ordinary course of your business before ownership has
passed to you, provided that you will be permitted to make sales solely on the following
conditions:
5.4.1 any sale will be effected at full market value;
5.4.2 any sale will be a sale of your property on your own behalf and you will deal as
principal when making such a sale;
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5.5 Your right to possession, use and resale of the Goods will terminate immediately if, before
ownership of the Goods passes to you in accordance with Condition 5.2:
5.5.1 you have a receiver, administrator or provisional liquidator appointed; are subject to a
notice of intention to appoint an administrator; pass a resolution for your
winding-up (save for the purpose of a solvent restructuring previously approved in
writing by us); have a winding up order made by a court in respect of you; enter
into any composition or arrangement with creditors (other than relating to a
solvent restructuring previously approved in writing by us); cease to carry on
business[; or have any steps or actions taken in connection with any of these
procedures];
5.5.2 you fail to pay any sum due to us on or before the due date and are in breach of any of
your obligations under the Contract.
5.6 We will be entitled to recover payment for the Goods (including by way of an action for the price)
notwithstanding that ownership of any of the Goods has not passed from us.
5.7 You grant and will procure that the owner of any relevant third party premises grants, us, our
agents, employees, and sub-contractors 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 your
right to possession, use and resale has terminated, to recover them.
5.8 If your right to possession, use and resale of the Goods terminates in accordance with Condition
5.5, we will be entitled to issue you with a credit note for all or any part of the price of the
Goods together with value added tax thereon.
5.9 Our rights contained in this Condition 5 will survive expiry or termination of the Contract however
arising.
6. PRICE AND PAYMENT
6.1 You will pay the Prices to us in accordance with this Condition 6.
6.2 The Prices are exclusive of delivery costs
6.3 Any sum payable under the Contract is exclusive of value added tax (and any other similar or
equivalent taxes, duties, fees and levies imposed from time to time by any government or
other authority) which will be payable in addition to that sum in the manner and at the rate
prescribed by law from time to time.
6.4 We will be entitled to vary the Prices at any time by giving written notice to you to reflect any
variation in the cost of supplying the Goods which arises as a consequence of any variation
in your requirements for the Goods / any information provided by you being inaccurate or
incomplete or any failure or delay by you in providing information.
6.5 We will] invoice you for the Prices for the Goods and any delivery costs payable by you in addition
to the Prices following us issuing the Order Acknowledgement / Delivery.
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[We will invoice you for the Charges for the Services following performance of the Services.
6.6 Each invoice will be payable by you within 30 Business Days following the date on which the
invoice is issued. All payments will be made in pounds sterling in cleared funds.
6.7 If you fail to make any payment due to us under the Contract within 14 days after the due date we
will be entitled to withhold further deliveries of Goods and to suspend provision of the
Services until that payment has been made.
6.8 If you fail to make any payment due to us under the Contract on or before the due date [or if we
have any reasonable concerns regarding your financial standing we will be entitled, by
giving written notice to that effect to you, to issue invoices prior to Goods being delivered
and we will not be required to deliver the Goods until the relevant invoice has been paid in
full.
6.9 If you fail to make any payment due to us under the Contract on or before the due date or if any
of the events or circumstances set out in Condition[s] 5.5.1 [or 5.5.2] occur all invoices
issued will immediately become due and payable.
6.10 Save as otherwise expressly provided in these Conditions or required by law, all payments to be
made by you to us under the Contract will be made in full and without any set-off or any deduction or
withholding including on account of any counter-claim.
6.11 Following [expiry or] termination of the Contract:
6.11.1 we will be entitled to invoice all Prices and any delivery costs incurred which have not
yet been invoiced; and
6.11.2 all invoices (including any invoices issued under Condition 6.14.1) will become
immediately due and payable by you.
7. [SERVICES
7.1 We warrant to you that we will provide the Services with reasonable care and skill.
7.2 We will use reasonable endeavors to provide the Services on the estimated performance date set
out in the Order Acknowledgement, but time for provision of the Services will not be of the
essence of the Contract. Any performance dates given by us are estimates only.
8. EXCLUSIONS AND LIMITATIONS OF LIABILITY
Your attention is particularly drawn to this Condition.
8.1 Subject to Condition 9.5, our entire Liability for any non-delivery of Goods or failure to deliver the
Goods in accordance with the timescales set out or referred to in the Contract will be as set
out in Condition 4.3 and we will have no other Liability for any such non delivery or failure to
deliver.
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8.2 We will have no Liability to you for any:
8.2.1 loss of profit (whether direct, indirect or consequential);
8.2.2 loss of revenue, loss of production or loss of business (in each case whether direct,
indirect or consequential);
8.2.3 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct,
indirect or consequential);
8.2.4 loss of anticipated savings or loss of margin (in each case whether direct, indirect or
consequential);
8.2.5 liability that you have to third parties (whether direct, indirect or consequential); or
8.2.6 indirect, consequential or special loss,
subject always to Condition 9.5.
8.3 We will not be in breach of the Contract or otherwise liable to you for any failure to perform or
delay in performing our obligations under the Contract to the extent that such failure or
delay is due to any event or circumstance beyond our reasonable control.
8.4 Nothing in the Contract will operate to exclude or restrict one party’s Liability (if any) to the other:
8.4.1 for death or personal injury resulting from its negligence or the negligence of a person
for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair
Contract Terms Act 1977);
8.4.2 for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by
a person for whom it is vicariously liable;
8.4.3 for breach of its obligations arising under section 12 Sale of Goods Act 1979;
8.4.4 [for breach of its obligations arising under Section 2 Supply of Goods and Services Act
1982;]
8.4.5 [for breach of its obligations arising under Section 8 Supply of Goods (Implied Terms)
Act 1973;]
8.4.6 arising under Section 2(3) Consumer Protection Act 1987; [or]
8.4.7 [for a deliberate breach of the Contract by that party; [or]]
8.4.8 [for any matter for which it is not permitted by law to exclude or limit, or to attempt to
exclude or limit, its liability.]
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8.5 Any of our Liability which falls within Condition 9.5 will not be taken into account in assessing
whether [any of] the financial limit[s] in Condition 9.2 has been reached.
8.6 Nothing in this Condition 9 will prevent or restrict the right of a party to seek injunctive relief or
specific performance or other discretionary remedies of the court.
8.7 Each of our employees, agents and sub-contractors will be entitled to enforce all the terms of this
Condition 9 subject to and in accordance with the Contracts (Rights of Third Parties) Act
1999 and the terms of the Contract. Accordingly and for the avoidance of doubt the
financial limits on liability set out in Condition 9 are the maximum liability of us, our
employees, agents and sub-contractors in aggregate. The parties may vary or rescind the
Contract without the consent of our employees, agents or sub-contractors.]
9. [YOUR OBLIGATIONS
9.1 You will:
9.1.1 provide us with all such information and assistance as we may require from time to time
to perform our obligations under the Contract];
9.1.2 not re-package the Goods or remove or alter any trade marks, patent numbers, serial
numbers or other identifying marks on the Goods or their packaging [or add any
other trade marks, patent numbers, serial numbers or other identifying marks to
the Goods or their packaging;
9.1.3 not alter or modify the Goods in any way;
9.1.4 return packaging to/ make packaging available for collection by us, as required by us.
9.2 You will comply with our instructions in connection with any product recall initiated by us involving
the Goods (or any of them).
9.3 Notwithstanding any other term of the Contract we will not be in breach of the Contract to the
extent our failure to perform or delay or defect in performance of its obligations under the
Contract arises as a result of:
9.3.1 any breach by you of your obligations contained in the Contract [provided that we use
our reasonable endeavors to perform our obligations notwithstanding the breach
by you];
9.3.2 us relying on any incomplete or inaccurate data provided by a third party; or 9.3.3 us
complying with any instruction or request by you or one of your employees.] 10. TERMINATION
10.1 If you commit a breach of the Contract we may terminate the Contract immediately by giving
notice to that effect to you. [This Condition 11.1 will not apply to any failure by
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you to make any payment due to us under the Contract on or before the due date.
Condition 11.2 will apply instead to any such failure.
10.2 We may terminate the Contract immediately by giving notice to that effect to you if you fail to
make any payment due to us under the Contract.
10.3 We may terminate the Contract immediately by giving written notice to that effect to you if any
of the events or circumstances set out in Condition 5.5.1 occur. You will notify us immediately
upon the occurrence of any such event or circumstance.
10.4 Following expiry or termination of the Contract:
10.4.1 any Conditions which expressly or impliedly continue to have effect after expiry or
termination of the Contract will continue in force; and
10.4.2 all other rights and obligations will immediately cease without prejudice to any rights,
obligations, claims (including claims for damages for breach) and liabilities which
have accrued prior to the date of expiry or termination.
10.5 Each party may retain any Confidential Information of the other party which it has to keep to
comply with any applicable law [or which it is required to retain for insurance, accounting or
taxation purposes]. Condition 12 will continue to apply to retained Confidential Information
[and Records].]
11. [CONFIDENTIALITY
11.1 Confidential Information” means any information (whether written, oral, in electronic form or in
any other media) that:
11.1.1 is disclosed by or on behalf of a party (the “Discloser”) to the other party (the
“Recipient”) in connection with the Contract and that relates (in whole or in part)
to the Discloser or its business; and/or
11.1.2 relates to the terms of the Contract,]
but excluding any information that falls within the exclusions set out in Condition 12.4.
11.2 The Recipient will:
11.2.1 keep the Confidential Information secret, safe and secure and will only disclose it in
the manner and to the extent expressly permitted by the Contract; and
11.2.2 use the Confidential Information only to the extent necessary for the performance of
its obligations under the Contract.
11.3 The Recipient may disclose Confidential Information:
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11.3.1 to such of its officers and employees and, in our case, agents and sub contractors,
who need access to that Confidential Information for the purpose of complying
with its obligations under the Contract;
11.3.2 to the extent necessary in order to be able to refer a dispute for resolution in
accordance with Condition 15.2; and
11.3.3 to the extent required by applicable law or a court of competent jurisdiction or the
rules of any listing authority, stock exchange, the Panel on Takeovers and
Mergers or a regulatory authority.
11.4 The Recipient’s obligations under this Condition 12 will not extend to Confidential Information
which the Recipient can prove:
11.4.1 has ceased to be secret without default on the Recipient’s part;
11.4.2 was already in the Recipient’s possession prior to disclosure by or on behalf of the
Discloser;
11.4.3 has been received from a third party who did not acquire it in confidence and who is
free to make it available to the Recipient without limitation;
11.4.4 [was independently developed by the Recipient without any breach of the Contract;]
or
11.4.5 at the time of disclosure was in the public domain or subsequently enters into the
public domain without default of the Recipient.
11.5 [The Recipient acknowledges and agrees that damages alone would not be an adequate remedy
for breach of this Condition 12 by the Recipient. Accordingly, the Discloser will be entitled,
without having to prove special damages, to equitable relief (including injunction and
specific performance) for any breach or threatened breach of this Condition 12 by the
Recipient.]]
12. NOTICE
12.1 [Subject to Condition 13.4, Any notice or other communication given under or in connection
with the Contract will be in writing , in the English language] and:
12.1.1 sent by pre-paid first class post /recorded delivery to the relevant party’s address;
12.1.2 delivered to or left at (but not, in either case, by post) the relevant party’s address[; or
and, in the case of any notice or other communication to be given to us, marked for the
attention of our specified representative. Our address are set above and your address are
those detailed in the Order.
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13. GENERAL
13.1 The Contract constitutes the entire agreement between the parties and supersedes any prior
agreement or arrangement in respect of its subject matter and:
13.1.1 neither party has entered into the Contract in reliance upon, and it will have no
remedy in respect of, any misrepresentation, representation or statement
(whether made by the other party or any other person) which is not expressly set
out in the Contract;
13.1.2 [the only remedies available for any misrepresentation or breach of any representation
or statement which was made prior to entry into the Contract and which is
expressly set out in the Contract will be for breach of contract]; and
13.1.3 nothing in this Condition 14.1 will be interpreted or construed as limiting or excluding
the liability of any person for fraud or fraudulent misrepresentation.
13.2 A delay in exercising or failure to exercise a right or remedy under or in connection with the
Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any
other right or remedy, nor will the single or partial exercise of a right or remedy prevent or
restrict the further exercise of that or any other right or remedy. A waiver of any right,
remedy, breach, or default will only be valid [if it is in writing [and signed by the party giving
it] and only] in the circumstances and for the purpose for which it was given and will not
constitute a waiver of any other right, remedy, breach, or default.
13.3 If any term of the Contract (including any exclusion from, or limitation of, liability set out in
Condition 9) is found by any court or body or authority of competent jurisdiction to be
illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the
Contract and this will not affect the remainder of the Contract which will continue in full
force and effect.
13.4 No variation to the Contract will be effective unless it is in writing and signed by a [duly
authorised representative/ director on behalf of each of the parties.
13.5 Nothing in the Contract and no action taken by the parties in connection with it or them will
create a partnership or joint venture or relationship of employer and employee] between the
parties or give either party authority to act as the agent of or in the name of or on behalf of
the other party or to bind the other party or to hold itself out as being entitled to do so.
13.6 Each party agrees that it is an independent contractor and is entering into the Contract as
principal and not as agent for or for the benefit of any other person.
13.7 Save as provided in Condition 9.8, the parties do not intend that any term of the Contract will be
enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
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13.8 Our rights and remedies set out in these Conditions are in addition to and not exclusive of any
rights and remedies provided by law.
13.9 You will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any
other manner with any of your rights under the Contract. You will be entitled to sub contract your
obligation to collect Goods under Condition 4.1, but you will not be entitled to sub-contract any of
your [other] obligations under the Contract.
14. GOVERNING LAW AND JURISDICTION
14.1 The Contract and any non-contractual obligations arising out of or in connection with it will be
governed by the law of England and Wales.
14.2 Subject to Condition 15.3, each party agrees that the courts of England and Wales have
exclusive jurisdiction to determine any dispute arising out of or in connection with the
Contract (including in relation to any non-contractual obligations).
14.3 Either party may seek specific performance, interim or final injunctive relief or any other relief of
similar nature or effect in any court of competent jurisdiction.
Industrial Estate, Newtown, Powys, SY16 3BD (“we” or “us”)
TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS [AND SERVICES]
1. DEFINITIONS AND INTERPRETATION
In these Conditions:
1.1 the following words and expressions have the following meanings, and, in addition, any words
and expressions defined in any Condition will have the same meaning when used in any
other Condition:
“Business Day” a day that is not a Saturday, Sunday or public or bank holiday in England
and/or Wales
“Charges” EITHER
the charges for the Services set out in our price list in
force on the date on which the Order is received by us
OR
the charges for the Services set out in our price list in
force on the date on which the Order
Acknowledgement is issued by us
OR
the charges for the Services set out in our quotation
as those charges may be varied from time to time in
accordance with Condition 6.4
“Liability” liability arising out of or in connection with the Contract, whether in contract, tort,
misrepresentation,
restitution, under statute or otherwise, including any
liability [under an indemnity contained in the Contract
and/or] arising from a breach of, or a failure to
perform or defect or delay in performance of, any of a
party’s obligations under the Contract and/or any
defect in any of the Goods, in each case howsoever
caused including if caused by negligence [or if
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caused by a deliberate breach by that party]
“Order” your order for the supply of goods by us, set out in our standard order form /your
acceptance of our
quotation/ your purchase order form/ placed via our
[secure] on-line ordering facility accessed via our
website at www.splosh.com
“Order Acknowledgement” our acceptance of the Order set out in our standard order
acknowledgement form / generated via our
[secure] on-line ordering facility accessed via our
website at www.splosh.com
“Prices” EITHER
the prices for the Goods set out in our price list in
force on the date on which the Order is received by us
OR
the prices for the Goods set out in our price list in
force on the date on which the Order
Acknowledgement is issued by us
OR
the prices for the Goods set out in our price list in
force on the date of Delivery
OR
the prices for the Goods set out in our quotation
[as those prices may be varied from time to time in
accordance with Condition 6.4]
“Property Liability” OPTION 1
Liability arising from or for loss or destruction of or
damage to tangible property
OPTION 2
Liability for loss or destruction of or damage to
tangible property, but not Liability arising from any
such loss, destruction, or damage
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“Specification” the written technical specification for the Goods set out in our product list
“you” the person named as the customer in the Order
1.2 all headings are for ease of reference only and will not affect the construction or interpretation of
these Conditions;
1.3 references to a “person” include any individual, body corporate, association, partnership, firm,
trust, organisation, joint venture, government, local or municipal authority, governmental or
supra-governmental agency or department, state or agency of state or any other entity (in
each case whether or not having separate legal personality);
1.4 references to any statute or statutory provision will include any subordinate legislation made
under it and will be construed as references to such statute, statutory provision and/or
subordinate legislation as modified, amended, extended, consolidated, re enacted and/or
replaced and in force from time to time;
1.5 any words following the words “include”, “includes”, “including”, “in particular” or any similar
words or expressions will be construed without limitation and accordingly will not limit the
meaning of the words preceding them;
1.6 the rule known as the ejusdem generis rule will not apply and accordingly the meaning of general
words introduced by the word “other” or a similar word or expression will not be restricted
by reason of the fact that they are preceded by words indicating a particular class of acts,
matters or things;
1.7 [ny reference to:
1.7.1 time of day is to London time;
1.7.2 a day is to a period of 24 hours running from midnight to midnight;] [and
1.8 [an obligation on a party to procure or ensure the performance or standing of another person will
be construed as a primary obligation of that party].
2. CONTRACT FORMATION
2.1 Any quotation given by us will be valid for a period of 30 days from and including its date, and will
constitute an invitation to treat and not an offer.
2.2 The Order constitutes an offer by you to purchase the goods set out in the Order (“Goods”) [and
the services set out in the Order (“Services”)] from us on these Conditions. A contract for the
supply of Goods [and Services] by us to you on these Conditions will be formed when we
accept the Order by issuing an Order Acknowledgement to you. For the avoidance of
doubt, we are under no obligation to accept the Order.
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2.3 These Conditions are the only terms and conditions on which we will supply goods [and services]
to you and will apply to the exclusion of all other terms and conditions including any terms
and conditions which you purport to apply under any purchase order, confirmation of order
or similar document (whether or not such document is referred to in the Contract) and any
terms and conditions which may otherwise be implied by trade, custom, practice or course
of dealing.
2.4 Delivery [or commencement of the performance of the Services] will be deemed conclusive
evidence of your acceptance of these Conditions.
2.5 We will be entitled, at our discretion, to deliver Goods by separate instalments. We will be
entitled to invoice the Price for each installment separately in accordance with Condition 6.5.
Each installment will be deemed to be a separate contract and no cancellation or
termination of any one contract relating to an installment will give you the right to cancel or
terminate any other contract.
3. THE GOODS
3.1 We will be entitled at any time to:
3.1.1 vary the design, finish or specification/Specification of Goods and/or their packaging;
and/or
3.1.2 substitute any materials or parts which are used in Goods and which are unavailable for
any reason with alternative materials or parts
to the extent that:
3.1.3 this does not materially affect their quality or performance; or
3.1.4 this is necessary to comply with any health and safety or other legal requirements.
We will use reasonable endeavors to give you prior notice of any such variation or
substitution.
3.2 With the exception of the Specification, all samples, drawings, descriptive and illustrative matter
and advertising issued or published by us (or the manufacturer of the Goods) whether in catalogues,
brochures, websites, other promotional material or otherwise are for the sole purpose of giving an
approximate idea of the relevant Good.
3.3 The Contract is not a sale by sample.
4. DELIVERY
We will deliver the Goods to the address specified in the Order Acknowledgement. We will
inform you in advance of the date on which the Goods will be delivered. Delivery of the
Goods (“Delivery”) will be deemed to occur when they arrive at the delivery address.
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All damages occurred in delivery are to be reported within 24 hrs via writing to
hello@splosh.com with your order number and a photo of the item’s condition. Any claims
made after this time may be rejected. We will have no Liability to you for any damages that
occur after confirmation of excepted delivery.
4.1 We will use reasonable endeavors to deliver Goods on the estimated delivery date set out in the
Order Acknowledgement, but time for delivery of the Goods will not be of the essence of
the Contract. Any delivery dates given by us are estimates only.
4.2 If:
4.2.1 the Goods have not been delivered under Condition 4.1 within 14 days from and
including the estimated delivery date set out in the Order Acknowledgement; and
4.2.2 we fail to deliver those Goods under Condition 4.1 within 14 days of a written notice
referring to this Condition 4.3 and setting out your rights under it being given by
you,
you will be entitled to cancel the Contract by giving written notice to that effect to us. If you
exercise your right of cancellation, we will refund to you any monies which you have already
paid to us under the Contract and you will not be required to pay any further monies to us
under the Contract. Subject to Condition 9.5, our sole Liability for our
failure to deliver the Goods will be limited to the price (exclusive of value added tax) paid by
you in obtaining replacement goods of equivalent description and quality in the cheapest
market available, less the Price of the Goods.
4.3 Save as provided in Condition 4.3, you will not be entitled to cancel the Contract or to reject any
Goods by reason of a delay in delivery or failure to deliver.
4.4 If Delivery occurs but you fail to accept delivery of the Goods we will be entitled to:
4.4.1 store or arrange for storage of the Goods until you accept delivery of them or they are
returned of under Condition 4.5.2 (as applicable) attempt to re deliver the Goods to the
address specified in the Order Acknowledgement;
4.4.2 treat the Contract as repudiated by you and dispose of the Goods in any way we see
fit, including by sale to another person. If we sell any of the Goods under this
Condition 4.5.2 at a price which is less than the relevant Price we will be entitled
to charge you for the shortfall; and
4.4.3 charge you for all costs and expenses which we incur under Conditions 4.5.1 and
4.5.2.
5. PASSING OF RISK AND RETENTION OF TITLE
5.1 Risk of damage to or loss of the Goods will pass to you on Delivery.
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5.2 Legal and beneficial ownership of the Goods will not pass to you until we have received in full in
cleared funds:
5.2.1 all sums due to us in respect of the Goods; and
5.2.2 all other sums which are or which become due to us from you on any account
whatsoever.
5.3 Until ownership of the Goods has passed to you, you will:
5.3.1 store the Goods (at no cost to us) separately from all other goods in such a way that
they remain readily identifiable as our property;
5.3.2 not destroy, deface or obscure any identifying mark or packaging on or relating to the
Goods;
5.3.3 not, without our prior written consent, annex any Goods to your premises; 5.3.4
maintain the Goods in satisfactory condition; and
5.3.5 keep the Goods insured for their full price against damage or loss on an “all risks” basis
with insurers approved by us, (acting reasonably), whenever requested by us
produce a copy of the policy of insurance in respect of the Goods to us, do
nothing and not omit to do anything which in consequence permits any insurer to
refuse to indemnify you in full in accordance with the terms of any insurance
policy maintained in respect of the Goods in respect of any claim made under any
such insurance policy and
EITHER
ensure that any insurance proceeds received by you under the relevant policy are
applied to repairing damaged Goods or, in the event that they are not so
applied, hold such proceeds on trust for us.
OR
procure that any insurance proceeds received in respect of lost or damaged
Goods are paid to us, to the extent required to satisfy your indebtedness to us.
5.4 You may use and resell the Goods in the ordinary course of your business before ownership has
passed to you, provided that you will be permitted to make sales solely on the following
conditions:
5.4.1 any sale will be effected at full market value;
5.4.2 any sale will be a sale of your property on your own behalf and you will deal as
principal when making such a sale;
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5.5 Your right to possession, use and resale of the Goods will terminate immediately if, before
ownership of the Goods passes to you in accordance with Condition 5.2:
5.5.1 you have a receiver, administrator or provisional liquidator appointed; are subject to a
notice of intention to appoint an administrator; pass a resolution for your
winding-up (save for the purpose of a solvent restructuring previously approved in
writing by us); have a winding up order made by a court in respect of you; enter
into any composition or arrangement with creditors (other than relating to a
solvent restructuring previously approved in writing by us); cease to carry on
business[; or have any steps or actions taken in connection with any of these
procedures];
5.5.2 you fail to pay any sum due to us on or before the due date and are in breach of any of
your obligations under the Contract.
5.6 We will be entitled to recover payment for the Goods (including by way of an action for the price)
notwithstanding that ownership of any of the Goods has not passed from us.
5.7 You grant and will procure that the owner of any relevant third party premises grants, us, our
agents, employees, and sub-contractors 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 your
right to possession, use and resale has terminated, to recover them.
5.8 If your right to possession, use and resale of the Goods terminates in accordance with Condition
5.5, we will be entitled to issue you with a credit note for all or any part of the price of the
Goods together with value added tax thereon.
5.9 Our rights contained in this Condition 5 will survive expiry or termination of the Contract however
arising.
6. PRICE AND PAYMENT
6.1 You will pay the Prices to us in accordance with this Condition 6.
6.2 The Prices are exclusive of delivery costs
6.3 Any sum payable under the Contract is exclusive of value added tax (and any other similar or
equivalent taxes, duties, fees and levies imposed from time to time by any government or
other authority) which will be payable in addition to that sum in the manner and at the rate
prescribed by law from time to time.
6.4 We will be entitled to vary the Prices at any time by giving written notice to you to reflect any
variation in the cost of supplying the Goods which arises as a consequence of any variation
in your requirements for the Goods / any information provided by you being inaccurate or
incomplete or any failure or delay by you in providing information.
6.5 We will] invoice you for the Prices for the Goods and any delivery costs payable by you in addition
to the Prices following us issuing the Order Acknowledgement / Delivery.
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[We will invoice you for the Charges for the Services following performance of the Services.
6.6 Each invoice will be payable by you within 30 Business Days following the date on which the
invoice is issued. All payments will be made in pounds sterling in cleared funds.
6.7 If you fail to make any payment due to us under the Contract within 14 days after the due date we
will be entitled to withhold further deliveries of Goods and to suspend provision of the
Services until that payment has been made.
6.8 If you fail to make any payment due to us under the Contract on or before the due date [or if we
have any reasonable concerns regarding your financial standing we will be entitled, by
giving written notice to that effect to you, to issue invoices prior to Goods being delivered
and we will not be required to deliver the Goods until the relevant invoice has been paid in
full.
6.9 If you fail to make any payment due to us under the Contract on or before the due date or if any
of the events or circumstances set out in Condition[s] 5.5.1 [or 5.5.2] occur all invoices
issued will immediately become due and payable.
6.10 Save as otherwise expressly provided in these Conditions or required by law, all payments to be
made by you to us under the Contract will be made in full and without any set-off or any deduction or
withholding including on account of any counter-claim.
6.11 Following [expiry or] termination of the Contract:
6.11.1 we will be entitled to invoice all Prices and any delivery costs incurred which have not
yet been invoiced; and
6.11.2 all invoices (including any invoices issued under Condition 6.14.1) will become
immediately due and payable by you.
7. [SERVICES
7.1 We warrant to you that we will provide the Services with reasonable care and skill.
7.2 We will use reasonable endeavors to provide the Services on the estimated performance date set
out in the Order Acknowledgement, but time for provision of the Services will not be of the
essence of the Contract. Any performance dates given by us are estimates only.
8. EXCLUSIONS AND LIMITATIONS OF LIABILITY
Your attention is particularly drawn to this Condition.
8.1 Subject to Condition 9.5, our entire Liability for any non-delivery of Goods or failure to deliver the
Goods in accordance with the timescales set out or referred to in the Contract will be as set
out in Condition 4.3 and we will have no other Liability for any such non delivery or failure to
deliver.
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8.2 We will have no Liability to you for any:
8.2.1 loss of profit (whether direct, indirect or consequential);
8.2.2 loss of revenue, loss of production or loss of business (in each case whether direct,
indirect or consequential);
8.2.3 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct,
indirect or consequential);
8.2.4 loss of anticipated savings or loss of margin (in each case whether direct, indirect or
consequential);
8.2.5 liability that you have to third parties (whether direct, indirect or consequential); or
8.2.6 indirect, consequential or special loss,
subject always to Condition 9.5.
8.3 We will not be in breach of the Contract or otherwise liable to you for any failure to perform or
delay in performing our obligations under the Contract to the extent that such failure or
delay is due to any event or circumstance beyond our reasonable control.
8.4 Nothing in the Contract will operate to exclude or restrict one party’s Liability (if any) to the other:
8.4.1 for death or personal injury resulting from its negligence or the negligence of a person
for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair
Contract Terms Act 1977);
8.4.2 for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by
a person for whom it is vicariously liable;
8.4.3 for breach of its obligations arising under section 12 Sale of Goods Act 1979;
8.4.4 [for breach of its obligations arising under Section 2 Supply of Goods and Services Act
1982;]
8.4.5 [for breach of its obligations arising under Section 8 Supply of Goods (Implied Terms)
Act 1973;]
8.4.6 arising under Section 2(3) Consumer Protection Act 1987; [or]
8.4.7 [for a deliberate breach of the Contract by that party; [or]]
8.4.8 [for any matter for which it is not permitted by law to exclude or limit, or to attempt to
exclude or limit, its liability.]
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8.5 Any of our Liability which falls within Condition 9.5 will not be taken into account in assessing
whether [any of] the financial limit[s] in Condition 9.2 has been reached.
8.6 Nothing in this Condition 9 will prevent or restrict the right of a party to seek injunctive relief or
specific performance or other discretionary remedies of the court.
8.7 Each of our employees, agents and sub-contractors will be entitled to enforce all the terms of this
Condition 9 subject to and in accordance with the Contracts (Rights of Third Parties) Act
1999 and the terms of the Contract. Accordingly and for the avoidance of doubt the
financial limits on liability set out in Condition 9 are the maximum liability of us, our
employees, agents and sub-contractors in aggregate. The parties may vary or rescind the
Contract without the consent of our employees, agents or sub-contractors.]
9. [YOUR OBLIGATIONS
9.1 You will:
9.1.1 provide us with all such information and assistance as we may require from time to time
to perform our obligations under the Contract];
9.1.2 not re-package the Goods or remove or alter any trade marks, patent numbers, serial
numbers or other identifying marks on the Goods or their packaging [or add any
other trade marks, patent numbers, serial numbers or other identifying marks to
the Goods or their packaging;
9.1.3 not alter or modify the Goods in any way;
9.1.4 return packaging to/ make packaging available for collection by us, as required by us.
9.2 You will comply with our instructions in connection with any product recall initiated by us involving
the Goods (or any of them).
9.3 Notwithstanding any other term of the Contract we will not be in breach of the Contract to the
extent our failure to perform or delay or defect in performance of its obligations under the
Contract arises as a result of:
9.3.1 any breach by you of your obligations contained in the Contract [provided that we use
our reasonable endeavors to perform our obligations notwithstanding the breach
by you];
9.3.2 us relying on any incomplete or inaccurate data provided by a third party; or 9.3.3 us
complying with any instruction or request by you or one of your employees.] 10. TERMINATION
10.1 If you commit a breach of the Contract we may terminate the Contract immediately by giving
notice to that effect to you. [This Condition 11.1 will not apply to any failure by
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you to make any payment due to us under the Contract on or before the due date.
Condition 11.2 will apply instead to any such failure.
10.2 We may terminate the Contract immediately by giving notice to that effect to you if you fail to
make any payment due to us under the Contract.
10.3 We may terminate the Contract immediately by giving written notice to that effect to you if any
of the events or circumstances set out in Condition 5.5.1 occur. You will notify us immediately
upon the occurrence of any such event or circumstance.
10.4 Following expiry or termination of the Contract:
10.4.1 any Conditions which expressly or impliedly continue to have effect after expiry or
termination of the Contract will continue in force; and
10.4.2 all other rights and obligations will immediately cease without prejudice to any rights,
obligations, claims (including claims for damages for breach) and liabilities which
have accrued prior to the date of expiry or termination.
10.5 Each party may retain any Confidential Information of the other party which it has to keep to
comply with any applicable law [or which it is required to retain for insurance, accounting or
taxation purposes]. Condition 12 will continue to apply to retained Confidential Information
[and Records].]
11. [CONFIDENTIALITY
11.1 Confidential Information” means any information (whether written, oral, in electronic form or in
any other media) that:
11.1.1 is disclosed by or on behalf of a party (the “Discloser”) to the other party (the
“Recipient”) in connection with the Contract and that relates (in whole or in part)
to the Discloser or its business; and/or
11.1.2 relates to the terms of the Contract,]
but excluding any information that falls within the exclusions set out in Condition 12.4.
11.2 The Recipient will:
11.2.1 keep the Confidential Information secret, safe and secure and will only disclose it in
the manner and to the extent expressly permitted by the Contract; and
11.2.2 use the Confidential Information only to the extent necessary for the performance of
its obligations under the Contract.
11.3 The Recipient may disclose Confidential Information:
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11.3.1 to such of its officers and employees and, in our case, agents and sub contractors,
who need access to that Confidential Information for the purpose of complying
with its obligations under the Contract;
11.3.2 to the extent necessary in order to be able to refer a dispute for resolution in
accordance with Condition 15.2; and
11.3.3 to the extent required by applicable law or a court of competent jurisdiction or the
rules of any listing authority, stock exchange, the Panel on Takeovers and
Mergers or a regulatory authority.
11.4 The Recipient’s obligations under this Condition 12 will not extend to Confidential Information
which the Recipient can prove:
11.4.1 has ceased to be secret without default on the Recipient’s part;
11.4.2 was already in the Recipient’s possession prior to disclosure by or on behalf of the
Discloser;
11.4.3 has been received from a third party who did not acquire it in confidence and who is
free to make it available to the Recipient without limitation;
11.4.4 [was independently developed by the Recipient without any breach of the Contract;]
or
11.4.5 at the time of disclosure was in the public domain or subsequently enters into the
public domain without default of the Recipient.
11.5 [The Recipient acknowledges and agrees that damages alone would not be an adequate remedy
for breach of this Condition 12 by the Recipient. Accordingly, the Discloser will be entitled,
without having to prove special damages, to equitable relief (including injunction and
specific performance) for any breach or threatened breach of this Condition 12 by the
Recipient.]]
12. NOTICE
12.1 [Subject to Condition 13.4, Any notice or other communication given under or in connection
with the Contract will be in writing , in the English language] and:
12.1.1 sent by pre-paid first class post /recorded delivery to the relevant party’s address;
12.1.2 delivered to or left at (but not, in either case, by post) the relevant party’s address[; or
and, in the case of any notice or other communication to be given to us, marked for the
attention of our specified representative. Our address are set above and your address are
those detailed in the Order.
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13. GENERAL
13.1 The Contract constitutes the entire agreement between the parties and supersedes any prior
agreement or arrangement in respect of its subject matter and:
13.1.1 neither party has entered into the Contract in reliance upon, and it will have no
remedy in respect of, any misrepresentation, representation or statement
(whether made by the other party or any other person) which is not expressly set
out in the Contract;
13.1.2 [the only remedies available for any misrepresentation or breach of any representation
or statement which was made prior to entry into the Contract and which is
expressly set out in the Contract will be for breach of contract]; and
13.1.3 nothing in this Condition 14.1 will be interpreted or construed as limiting or excluding
the liability of any person for fraud or fraudulent misrepresentation.
13.2 A delay in exercising or failure to exercise a right or remedy under or in connection with the
Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any
other right or remedy, nor will the single or partial exercise of a right or remedy prevent or
restrict the further exercise of that or any other right or remedy. A waiver of any right,
remedy, breach, or default will only be valid [if it is in writing [and signed by the party giving
it] and only] in the circumstances and for the purpose for which it was given and will not
constitute a waiver of any other right, remedy, breach, or default.
13.3 If any term of the Contract (including any exclusion from, or limitation of, liability set out in
Condition 9) is found by any court or body or authority of competent jurisdiction to be
illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the
Contract and this will not affect the remainder of the Contract which will continue in full
force and effect.
13.4 No variation to the Contract will be effective unless it is in writing and signed by a [duly
authorised representative/ director on behalf of each of the parties.
13.5 Nothing in the Contract and no action taken by the parties in connection with it or them will
create a partnership or joint venture or relationship of employer and employee] between the
parties or give either party authority to act as the agent of or in the name of or on behalf of
the other party or to bind the other party or to hold itself out as being entitled to do so.
13.6 Each party agrees that it is an independent contractor and is entering into the Contract as
principal and not as agent for or for the benefit of any other person.
13.7 Save as provided in Condition 9.8, the parties do not intend that any term of the Contract will be
enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
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13.8 Our rights and remedies set out in these Conditions are in addition to and not exclusive of any
rights and remedies provided by law.
13.9 You will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any
other manner with any of your rights under the Contract. You will be entitled to sub contract your
obligation to collect Goods under Condition 4.1, but you will not be entitled to sub-contract any of
your [other] obligations under the Contract.
14. GOVERNING LAW AND JURISDICTION
14.1 The Contract and any non-contractual obligations arising out of or in connection with it will be
governed by the law of England and Wales.
14.2 Subject to Condition 15.3, each party agrees that the courts of England and Wales have
exclusive jurisdiction to determine any dispute arising out of or in connection with the
Contract (including in relation to any non-contractual obligations).
14.3 Either party may seek specific performance, interim or final injunctive relief or any other relief of
similar nature or effect in any court of competent jurisdiction.