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OFTEC Direct – TERMS AND CONDITIONS

Terms & Conditions

1. OUR CONTRACT

1.1 These terms and conditions govern the supply of goods sold by OFTEC (Company No. 2739706) (OFTEC) to the Customer named on the order form either completed by the Customer on the OFTEC Direct website or for orders received by OFTEC by telephone, fax or email. Together with the completed order form, these Terms and Conditions constitute the entire and only agreement between the parties in relation thereto.

1.2 OFTEC acceptance of Customer’s order by despatch of an acknowledgement of an order constitutes a legally binding contract between parties subject to these terms and conditions. No variation to these conditions shall be binding unless agreed in writing between the Customer and a Director of OFTEC.

1.3 OFTEC employees or agents are not authorised to make any representations or give advice or recommendations concerning the goods unless confirmed by OFTEC in writing. In entering into the contract the Customer acknowledges that it does not rely on, and waives any claim in respect of, any such representations, advice or recommendations which are not so confirmed.

1.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance offer, invoice or other document or information issued by OFTEC shall be subject to correction without any liability on the part of OFTEC.

2. PRICE AND PAYMENT

2.1 The price payable for Goods is where the Customer has ordered via the website www.oftectdirect.com (“Website”) as set out on the Website at the time the Customer places their order or, if the Customer orders other than via the Website as set out in the most current version of OFTEC’s catalogue (“Catalogue”). 2.2 The price of the Goods shall be exclusive of any VAT and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all amounts of which the Customer shall pay in addition when it is due to pay for the Goods.

2.3 Subject to clause 2.2, OFTEC must receive payment for the whole of the price of the Goods, and any applicable charges as set out in Condition 2.2, before the Customer order can be accepted unless OFTEC have agreed otherwise in advance in writing.

2.4 For those Customers with a fixed agreement with OFTEC, payment terms are strictly 30 days from the date of invoice.

2.5 If the Customer fails to pay OFTEC any sum due then the Customer shall be liable to pay interest charged at 2% per month (or part thereof) accruing on a daily basis until payment is made, whether before or after judgment..

2.6 If payment is not made when due OFTEC reserves the right to cancel the contract and any other contract between the Customer and OFTEC, and may suspend any further deliveries.

2.7 The price of the Goods shall be paid in Pounds Sterling.

3. DELIVERY & TITLE

3.1 Unless the Customer tells us they wish to collect the Goods, OFTEC will deliver them in accordance with their Customer’s order.

3.2 In the unlikely event that the Customer has not received all the Goods within 21 days of the date of dispatch (as set out in the Order) (or where the Customer has requested a delayed dispatch with 21 days of the requested dispatch date), the Customer must notify OFTEC in writing immediately.

3.3 Any dates specified by OFTEC for delivery of the Goods are intended to be an estimate and the time for delivery shall not be made of the essence by notice. If no dates are specified, delivery shall be within a reasonable time.

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

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

3.5.1 risk in the Goods shall pass to the Customer (including for loss or damage caused by OFTEC’s negligence);

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

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

3.6 The Customer shall provide at the point of delivery and at its expense adequate and appropriate equipment and manual labour for loading the Goods.

3.7 OFTEC may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the contract.

3.8 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.

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

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

3.10.1 the Goods;

3.10.2 all other sums which are or become due to OFTEC from the Customer on any accounts.

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

3.11.1 hold the Goods on a fiduciary basis as OFTEC’s bailee;

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

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

3.11.4 maintain the Goods in satisfactory condition and keep then insured on OFTEC’s behalf for their full price against all risks to the reasonable satisfaction of OFTEC. On request, the Customer shall produce the policy of insurance to OFTEC.

3.12 The Customer may resell the Goods before ownership has passed to it solely on the following conditions:-

3.12.1 any sale should be effected in the ordinary course of the Customer’s business at full market value; and

3.12.2 any such sale shall be a sale of OFTEC’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.

3.13 The Customer’s right to possession of the Goods shall terminate immediately if:-

3.13.1 the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, (or, being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the Court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating chargeholder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986) or a resolution is passed or a petition is presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer;

3.13.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the contract or any other contract between OFTEC and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or

3.13.3 the Customer encumbers or in any way charges any of the Goods.

3.14 OFTEC shall be entitled to recover payment for the Goods notwithstanding the ownership of any of the Goods that have not passed from OFTEC.

3.15 The Customer grants OFTEC, its agents and employees an irrevocable licence at any time to enter any premises where the Good are to may be stored in order to inspect them or, whether the Customer’s right to possession has terminated, to recover them.

3.16 Where OFTEC 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 all goods of the kind sold by OFTEC to the Customer in the order in which they were invoiced to the Customer.

3.17 On termination of the contract, howsoever caused, OFTEC’s (but not the Customer’s) rights contained in this condition 3 shall remain in effect.

4. DAMAGE DURING DELIVERY

4.1 Any claim by the Customer, which is based on any damage caused to the Goods during delivery (whether or not delivery is accepted by the Customer) must be notified in writing to OFTEC within 3 days of the date of delivery provided that the Goods have been signed for with the carrier as damaged by the Customer. If the Customer does not notify OFTEC accordingly, the Customer shall not be entitled to reject the Goods and OFTEC shall have no liability for such defect or failure, and the Customer shall be bound to pay the full price.

4.2 Where any valid claim in respect of damage caused to the goods during delivery is notified to OFTEC in accordance with this condition 4, OFTEC shall be entitled to either replace, or at OFTEC’s sole discretion, repair the Goods (or the part in question) free of charge but OFTEC shall have no further liability to the Customer.

5. AVAILABILITY

5.1 While OFTEC endeavour to hold sufficient stock to meet all orders, if OFTEC has insufficient stock to supply or deliver Goods, OFTEC may at its discretion, supply or deliver a substituted product, or where payment has been received, refund the Customer the price paid for the Goods within 30 days.

6. CANCELLATION, RETURNS AND WARRANTY

6.1 The Customer may cancel their order by giving OFTEC notice of cancellation 28 days prior to the date of collection or delivery of the Goods. Such notice may be given by mailing, faxing or emailing to the number or address set out on the order form.

6.2 If, following delivery, the Customer cancels because of any alleged defect with the Goods, the Customer must notify OFTEC in writing of the problem at the time of cancellation. OFTEC reserve the right to charge a 15% restocking charge maybe charged on returns unless the goods are proved to be faulty.

6.3 On cancellation (for whatever reason) following delivery of Goods, the Customer must return the Goods to OFTEC, within 7 days, at the Customer’s cost unless the Goods are returned because they are either faulty, incorrect or because of an unsuitable substitution by OFTEC, in which case OFTEC will meet the cost of return.

6.4 Any Goods returned must be returned in their original condition and packaging, only then will a full refund be given. Any refund will be made within 30 days of receipt of the returned Goods by OFTEC.

6.5 OFTEC will, so far as it is able, assign to the Customer all rights and remedies under any manufacturer’s warranty (express or implied) for the Goods, and for a period of 12 months from the date of delivery, the Goods shall:-

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

6.5.2 be reasonably fit for their purpose; and

6.5.3 be reasonably fit for any particular purpose for which the Goods are being bought if the Customer had made known that purpose to OFTEC in writing and OFTEC has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgment of OFTEC.

6.6 OFTEC shall not be liable for a breach of the warranty in condition 6.5 unless:-

6.6.1 the Customer gives written notice of the defect to OFTEC, and, if the defect is as a result of damage in transit to the carrier, within 5 days of the time when the Customer discovers or ought to have discovered the defect; and

6.6.2 OFTEC is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by OFTEC) return such Goods to OFTEC’s place of business at OFTEC’s cost for the examination to take place there.

6.7 OFTEC shall not be liable for a breach of the warranty in condition 6.5 if:-

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

6.7.2 the Defect arises because the Customer failed to follow either OFTEC’s or the manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or

6.7.3 the Customer alters or repairs such Goods without the prior written consent of OFTEC.

6.8 Subject to condition 6.6 and condition 6.7, if any of the Goods do not conform with the warranty in condition 6.5 OFTEC shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata contract rate provided that, if OFTEC so requests, the Customer shall at OFTEC’s expense, return the Goods or the part of such Goods which is defective to OFTEC.

6.9 If OFTEC complies with condition 6.8 it shall have no further liability for the breach of the warranty in condition 6.5 in respect of such Goods.

7. LIABILITY

7.1 Subject to condition 3, condition 4 and condition 6 the following provisions set out the entire financial liability of OFTEC (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:-

7.1.1 any breach of these conditions;

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

7.1.3 any representation, statement or tortuous act or omission including negligence arising under or in connection with the contract.

7.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluding from the contract.

7.3 Nothing in these conditions excludes the limits and liability of OFTEC:-

7.3.1 for death or personal injury caused by OFTEC’s negligence; or

7.3.2 under section 2(3), Consumer Protection Act 1987; or

7.3.3 for any matter which it would be illegal for OFTEC to exclude or attempt to exclude its liability; or

7.3.4 for fraud or fraudulent misrepresentation.

7.4 Subject to conditions 7.2 and 7.3:-

7.4.1 OFTEC’s 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 contract price; and

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

7.5 The goods are intended for use in the United Kingdom and the Republic of Ireland. OFTEC make no warranties, express or implied, that the goods are suitable for use outside the United Kingdom, or comply with any laws, regulations or standards of any jurisdiction outside the United Kingdom.

8. AGE REQUIREMENTS FOR SPECIFIC GOODS

8.1 Where the law requires a minimum age for the purchase of specific goods, the Customer must confirm that they are over the required age limit and that delivery must be accepted by a person over the required age limit.

9. TERMINATION

9.1 OFTEC may suspend further supply or delivery, stop Goods, in transit or terminate the contract by notice in writing to the Customer if:-

9.1.1 the Customer is in breach of any obligation hereunder; or

9.1.2 the Customer becomes unable to pay their debts when they fall due; or

9.1.3 proceedings are commenced by or against the Customer alleging bankruptcy or insolvency; or

9.1.4 the Customer cease to trade.

9.2 Upon termination, the Customer’s indebtedness to OFTEC becomes immediately due and payable and OFTEC shall be under no further obligation to supply goods to the Customer.

10. FORCE MAJEURE

10.1 OFTEC shall have no liability to the Customer for any failure or delay in supply or delivery for any damage or defect goods supplied or delivered hereunder that is caused by any event or circumstance beyond OFTEC’s reasonable control (including, without limitation, strikes, lockouts and other industrial disputes) provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to OFTEC to terminate the contract..

11. GENERAL

11.1 If any part of these conditions is invalid, illegal or unenforceable (including any provision in which OFTEC exclude our liability to the Customer) the validity, legality or enforceability of any other part of these conditions will not be affected.

11.2 This contract shall be governed by and interpreted in accordance with English law.

11.3 Failure or delay by OFTEC 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.

11.4 Any waiver by OFTEC 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.

11.5 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.

11.6 OFTEC may assign the contract to any part of it to any person, firm or company.

11.7 The Customer shall not be entitled to assign the contract or any part of it without the prior written consent of OFTEC.