Terms & Conditions

Burnsides (Marketing Aids) Limited

Terms and Conditions of Sale

1    Interpretation

1.1    The definitions and rules of interpretation in this condition apply in these conditions.

Burnsides: Burnsides (Marketing Aids) Limited of 62 Station Road, Langley Mill, Nottingham NG16 4BH.

Contract: any contract between Burnsides and the Customer for the sale and purchase of the Goods created in accordance with condition 2, incorporating these conditions.

Customer: the person, firm or company who purchases the Goods from Burnsides.

Delivery Point: the place where delivery of the Goods is to take place under condition 4.1.

Design in relation to the Goods, any design it is agreed between the parties shall form part of the Contract and which either:

(a)    is created by the Company under the Contract and which is agreed by the Customer in accordance with condition 3.2.2; or

(b)    is provided by the Customer to the Company.

Input Material: means the designs, logos, artwork, text and any other information or material supplied by the Customer to Burnsides and which is to be applied to the Goods or used as a part of a Design.

Goods:  any goods agreed in the Contract to be supplied to the Customer by Burnsides.

Intellectual Property Rights: means copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, moral rights, rights in confidential information (including know-how and trade secrets), design rights and registered design rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

1.2    A reference in these conditions to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3    In these conditions words in the singular include the plural and in the plural include the singular.

1.4    In these conditions a reference to one gender includes a reference to the other gender.

1.5    Condition headings do not affect the interpretation of these conditions.

2    Application of Terms

2.1    All orders placed by the Customer and all Contracts shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, written approval of sample, or any other document).

2.2    No terms or conditions referred to, endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order, written approval of sample or any other document shall form part of the Contract whether or not such document is referred to in the Contract.

2.3    These conditions apply to all sales by Burnsides and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Burnsides which is not set out in the Contract. Nothing in this condition shall exclude or limit the liability of Burnsides for fraudulent misrepresentation.

2.4    Any typographical error or omission in any sales literature, quotation, price list, acknowledgement of order, invoice or other document or information issued by Burnsides shall be subject to correction without any liability on the part of Burnsides.

2.5    Any advice or recommendation given by Burnsides or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by Burnsides is followed or acted upon entirely at the Customer’s own risk and accordingly Burnsides shall not be liable for any such advice or recommendation which is not so confirmed.

2.6    All descriptive matter and advertising materials issued by Burnsides and any descriptions or illustrations contained in Burnsides catalogues or brochures (together with any measurements or other technical information contained therein) are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. Burnsides gives no warranty as to the accuracy of this information and it shall not form part of the Contract.

2.7    Each order for Goods by the Customer from Burnsides shall be deemed to be an offer by the Customer to buy Goods subject to these conditions.

2.8    No order placed by the Customer shall be deemed to be accepted by Burnsides until a written acknowledgement of order is issued by Burnsides or (if earlier) Burnsides delivers the Goods to the Customer, at which point a Contract will be formed (Contract).

2.9    The Customer shall ensure that the terms of its order are complete and accurate.

2.10    The Customer may not terminate the Contract except with the prior written consent of Burnsides (such agreement not to be unreasonably withheld). Any consent given by Burnsides under this condition 2.10 shall be subject to the Customer agreeing to pay to Burnsides all costs reasonably incurred by Burnsides in fulfilling the Contract prior to the date upon which Burnsides consents to the termination of the Contract.

2.11    Any quotations are given by Burnsides on the basis that no Contract shall come into existence except in accordance with condition 2.8. Any quotation shall be valid for a period of 60 days from its date, provided that Burnsides has not previously withdrawn it. Burnsides reserve the right to:

2.11.1    withdraw quotations at any time without notice to the Customer; and

2.11.2    amend quotations at any time without notice to the Customer in the event of an increase in the cost of raw materials, labour, overheads, or any other expense of Burnsides.

3    Designs and Proof

3.1    The Customer shall be responsible for the content and use of any Input Material which is provided by the Customer to Burnsides and which is used in relation to the Goods or the Design.

3.2    If the Design is:

3.2.1    provided to the Company by the Customer, the Customer shall be solely responsible for ensuring the completeness and accuracy of the Design and that the Design is suitable for the Customer’s requirements and the Company shall have no liability to the Customer in relation to the completeness, accuracy or suitability of the Design; or

3.2.2    produced by the Company and submitted to the Customer for approval, the Customer shall be responsible for ensuring the Design meets the Customer’s requirements. Unless the Customer has previously confirmed its approval of the Design in writing, the Customer shall, in placing an order for the Goods, be deemed to have approved the Design provided by the Company (and where the Company has provided more than one Design the Customer shall be deemed to have approved the last Design provided by the Company).

4    Delivery

4.1    Unless otherwise agreed in writing, the Goods shall be delivered to the delivery address specified by the Customer in the order (Delivery Point).

4.2    Subject to condition 4.3, Burnsides will use its reasonable endeavours to deliver the Goods by any delivery date specified by Burnsides.

4.3    Any dates specified by Burnsides 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 shall be within a reasonable time.

4.4    Subject to the other provisions of these conditions Burnsides shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Burnsides's negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.

4.5    If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or Burnsides is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:

4.5.1    risk in the Goods shall pass to the Customer (including for loss or damage caused by Burnsides negligence);

4.5.2    the Goods shall be deemed to have been delivered; and

4.5.3    Burnsides may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

4.6    The Customer shall be responsible for, and shall provide at the Delivery Point at its expense adequate and appropriate equipment and manual labour for unloading the Goods.

4.7    If Burnsides delivers to the Customer a quantity of Goods of up to 5% more or 10% less than the quantity accepted by Burnsides, the Customer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods at the pro rata Contract rate.

4.8    Burnsides may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

4.9    Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

5    Shortages and Non Delivery

5.1    The quantity of any consignment of Goods as recorded by Burnsides on despatch from Burnsides’ place of business shall be conclusive evidence of the quantity received by the Customer on delivery.

5.2    Burnsides shall not be liable for any shortage in the Goods or for any Goods damaged in transit (even if caused by Burnsides’ negligence) unless the Customer gives written notice to Burnsides of such shortage or damage within 7 days of the date on which the Goods were received by the Customer.

5.3    Burnsides shall not be liable for any non-delivery of Goods (even if caused by Burnsides’ negligence) unless the Customer gives written notice to Burnsides of the non-delivery within 45 days of receipt of Burnsides’ invoice. 

5.4    Any liability of Burnsides for any Goods damaged in transit, or for non delivery of any Goods (including shortage of Goods) shall be limited to (at the option of Burnsides) replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Goods.

6    Risk/Title

6.1    The Goods are at the risk of the Customer from the time of delivery.

6.2    Ownership of the Goods shall not pass to the Customer until Burnsides has received in full (in cash or cleared funds) all sums due to it in respect of:

6.2.1    the Goods; and

6.2.2    all other sums which are or which become due to Burnsides from the Customer on any account.

6.3    Until ownership of the Goods has passed to the Customer, the Customer shall:

6.3.1    hold the Goods on a fiduciary basis as Burnsides' bailee;

6.3.2    store the Goods (at no cost to Burnsides) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as Burnsides's property;

6.3.3    not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

6.3.4    maintain the Goods in satisfactory condition and keep them insured on Burnsides' behalf for their full price against all risks to the reasonable satisfaction of Burnsides. On request the Customer shall produce the policy of insurance to Burnsides.

6.4    Until ownership of the Goods has passed to the Customer (and provided the Goods are still in existence and have not been resold) Burnsides shall be entitled, at any time after the date upon which payment for the Goods is due, to require the Customer to deliver up the Goods to Burnsides and, if the Customer fails to do so forthwith, to enter upon the premises of the Customer or any third party where the Goods are stored and repossess the Goods.

6.5    Burnsides hereby authorises the Customer to use and/or sell the Goods in the normal course of the Customer’s business at full market value.  If the Customer sells the Goods prior to paying the full price thereof the Customer shall hold the proceeds of sale on trust for Burnsides.  The Customer shall, if requested by Burnsides, assign all claims which the Customer may have against any party which has purchased the Goods.

6.6    The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Burnsides.

6.7    Burnsides shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Burnsides.

6.8    The Customer grants Burnsides, 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 Customer has a right to repossess the Goods under condition 6.4 to recover them.

6.9    Where Burnsides is unable to determine whether any Goods are the goods in respect of which the Customer's right to possession has terminated, the Customer shall be deemed to have sold or otherwise disposed of all goods of the kind sold by Burnsides to the Customer in the order in which they were invoiced to the Customer.

6.10    The Customer shall indemnify Burnsides in respect of all costs and expenses incurred by Burnsides as a result of Burnsides enforcing any right granted to Burnsides pursuant to this condition 6 and any costs and expenses arising out of any judgement in favour of Burnsides in respect of any invoice which remains unpaid by the Customer.

6.11    On termination of the Contract, howsoever caused, Burnsides (but not the Customer's) rights contained in this condition 6 shall remain in effect.

7    Price

7.1    The price for the Goods shall be the price set out in Burnsides’ quotation or acknowledgement of order or such other price as may be agreed in writing between the parties prior to or at the time of the Contract.

7.2    Unless otherwise agreed in writing, the price for the Goods shall be exclusive of:

7.2.1    all costs or charges in relation to packaging, loading, carriage and insurance; and

7.2.2    value added tax

which amounts the Customer shall pay in addition when it is due to pay for the Goods.

8    Payment

8.1    The Customer shall pay for the Goods in full following receipt of an invoice issued by Burnsides on or following the delivery of the Goods to the Customer.

8.2    Subject to condition 8.5, and unless otherwise agreed, the Customer shall pay all invoices in sterling in full within 30 days of the date of invoice.

8.3    Time for payment shall be of the essence of the Contract.

8.4    No payment shall be deemed to have been received until Burnsides has received cleared funds.

8.5    All payments payable to Burnsides under the Contract shall become due immediately on its termination despite any other provision.

8.6    The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Burnsides to the Customer.

8.7    Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Burnsides any sum due pursuant to the Contract, Burnsides may (at Burnsides’ sole discretion) immediately suspend delivery of any goods under any or all contracts with the Customer until all amounts due to Burnsides have been paid.

9    Quality

9.1    Subject to the other provisions of these conditions, Burnsides warrants that on delivery the Goods shall:

9.1.1    be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

9.1.2    conform in all material respects with the Design and with any sample provided by Burnsides prior to the Contract.

9.2    Burnsides shall not be liable for a breach of any of the warranties in condition 9.2 unless:

9.2.1    in the case of a defect that is apparent on normal visual inspection, the Customer gives Burnsides written notice of the defect to Burnsides within 14 days of the Goods arriving at the Customer’s premises;

9.2.2    in the case of a latent defect, the Customer gives written notice of the defect to Burnsides within a reasonable period of time from the date upon which the latent defect became apparent;

9.2.3    Burnsides is given a reasonable opportunity after receiving the notice of examining such Goods (together with all packing and packaging material) and the Customer (if asked to do so by Burnsides) returns such Goods to Burnsides' place of business at Burnsides’ cost for the examination to take place there.

9.3    Burnsides shall not be liable for a breach of any of the warranties in condition 9.1 if:

9.3.1    the Customer makes any further use of such Goods after giving such notice; or

9.3.2    the defect arises because the Customer failed to follow Burnsides instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice.

9.4    Subject to condition 9.2 and condition 9.3, if any of the Goods do not conform with any of the warranties in condition 9.1 Burnsides shall at its option repair or replace such Goods or refund the price of such Goods at the pro rata Contract rate provided that, if Burnsides so requests, the Customer shall, at the expense of Burnsides, return the Goods which are defective to Burnsides.

9.5    If Burnsides complies with condition 9.4 it shall have no further liability for a breach of any of the warranties in condition 9.1 in respect of such Goods.

10    Intellectual Property

10.1    The Customer warrants that:

10.1.1    it is either:

(a)    the sole proprietor of the Intellectual Property Rights in the Input Material; or

(b)    an authorised licensee of the Intellectual Property Rights in the Input Material with authority to grant a sub-licence in respect of such Intellectual Property Rights to Burnsides in accordance with condition 10.2.

10.1.2    it has not granted rights in the Intellectual Property Rights in the Input Material to any third party which do or may impair, limit, prevent or infringe upon the licence granted to Burnsides under condition 10.2;

10.1.3    the application of the Input Material to the Goods by Burnsides will not infringe the statutory or common law rights of any third party.

10.2    The Customer grants a non-exclusive licence to Burnsides to use the Input Material (and the Intellectual Property Rights necessary for the use of the Input Material under the Contract) and to apply the Input Material to the Goods or any Design.

10.3    The Customer shall indemnify and hold harmless Burnsides against each loss, fine, penalty, liability, expense and cost (including legal costs) incurred by Burnsides arising out of any claim of infringement of Intellectual Property Rights howsoever arising as a result of or in connection with Burnsides’ application of the Input Material to the Goods.

11    Limitation of Liability

11.1    Subject to the relevant provisions of these conditions, the following provisions set out the entire financial liability of Burnsides (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

11.1.1    any breach of these conditions;

11.1.2    any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and

11.1.3    any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

11.2    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.

11.3    Nothing in these conditions excludes or limits the liability of Burnsides: 

11.3.1    for death or personal injury caused by the negligence of Burnsides or its employees; or

11.3.2    for fraud or fraudulent misrepresentation; or

11.3.3    for any matter which it would be illegal for Burnsides to exclude or attempt to exclude its liability.

11.4    Subject to condition 11.3:

11.4.1    Burnsides' total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the aggregate price paid by the Customer for the Goods the subject of the Contract; and

11.4.2    Burnsides shall not be liable to the Customer for loss of profit, loss of business, or loss of or depletion of goodwill or reputation in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

12    Termination

12.1    Without prejudice to any other rights or remedies which Burnsides may have Burnsides may terminate the Contract without liability to the Customer immediately on giving notice to the Customer if:

12.1.1    the Customer fails to pay any amount due to Burnsides under

(a)    the Contract; or

    (b)    any other contract or account between Burnsides and the Customer

    on the due date for payment and remains in default not less than 15 days after being notified to make such payment;

12.1.2    the Customer commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 21 days of the Customer being notified in writing of the breach;

12.1.3    a petition for a bankruptcy order to be made against the Customer has been presented to the court (or if the Customer is in partnership a petition for bankruptcy is made against any partner);

12.1.4    the Customer (where it is a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt or is unable to pay its debts (within the meaning of section 124 of the Insolvency Act 1986);

12.1.5    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 condition 12.1.3 and condition 12.1.4;

12.1.6    the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

12.1.7    there is a change of control (within the meaning of Section 840 of the Income and Corporation Taxes Act 1988) of the Customer.

12.2    Termination of the Contract shall not prejudice any of the parties’ rights and remedies which have accrued as at termination.

13    Confidentiality

13.1    Subject to condition 13.2 Burnsides and the Customer undertake not to disclose to any person any information in respect of the existence or the terms of the Contract.

13.2    Burnsides and the Customer may disclose information in respect of the existence and terms of the Contract:

13.2.1    to its employees, officers, representatives or advisers who need to know such information for the purpose of the Contract; and

13.2.2    as may be required by law, court order or any governmental or regulatory authority.

13.3    Where confidential information is disclosed to employees, officers, representatives or advisers pursuant to condition 13.2.1 the party disclosing to its employees, officers, representatives or advisers shall ensure that those persons comply with this condition 13.

14    Assignment

14.1    Burnsides may assign the Contract or any part of it to any person, firm or company.

14.2    The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Burnsides.

15    Force Majeure

Burnsides shall have no liability or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from circumstances beyond the reasonable control of Burnsides.  Burnsides shall notify the Customer when such circumstances cause a delay or failure in performance and when they cease to do so.  

16    General

16.1    Each right or remedy of Burnsides under the Contract is without prejudice to any other right or remedy of Burnsides whether under the Contract or not.

16.2    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.

16.3    Failure or delay by Burnsides in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

16.4    Any waiver by Burnsides of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

16.5    The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

16.6    The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.

17    Communications

17.1    All communications between the parties about the Contract shall be in writing and in the English language and delivered by hand or sent by pre-paid first class post or by fax or email:

17.1.1    (in case of communications to Burnsides) to its registered office or such address, fax number or email address as shall be notified to the Customer by Burnsides; or

17.1.2    (in the case of communications to the Customer) to the registered office or such address, fax number or email address of the Customer set out in any document which forms part of the Contract or such other address, fax number or email address as shall be notified to Burnsides by the Customer.

17.2    Communications shall be deemed to have been received:

17.2.1    if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);

17.2.2    if delivered by hand on a working day prior to 4.00pm, on the day of delivery, and otherwise on the next working day; or

17.2.3    if sent by fax or email on a working day prior to 4.00 pm, at the time of transmission, and otherwise on the next working day unless a failure notice is received.