Terms of Trade
1.1. These terms shall prevail over any other terms or conditions including (but without prejudice to the generality of the forgoing) any customer’s terms or conditions and shall be deemed incorporated in any dealings by Dynamic systems ID Ltd., trading as Lotus Labels (“Lotus Labels”).
1.2. No person other than Lotus Labels’ managing director has the authority to modify or supplement these terms. Accordingly, these terms may not be modified or supplemented without the specific written agreement of Lotus Labels signed by Lotus Labels’ managing director.
1.3. Nothing in these terms shall restrict the rights of a buyer who deals as a consumer.
1.4. Subject to the provisions of these terms, phrases defined in the 1990 edition of incoterms have the same meaning when used in these terms.
All prices quoted or agreed by Lotus Labels are unless otherwise stated:-
2.1. Exclusive of VAT or any other applicable tax, duty or levy:
2.2. Exclusive of delivery, carriage and insurance charges:
2.3. Variable by Lotus Labels to account for fluctuations after the date of the order but before dispatch in costs, material prices and/or service charges to Lotus Labels via exchange rate fluctuation or otherwise:
2.4. Valid for a period of 30 days only from the date appearing on the quotation.
3.1. Lotus Labels may deliver or complete any order in stages or instalments and each delivery shall be treated as a separate contract. Delivery shall be made to the place(s) and by the method(s) specified by Lotus Labels (or if none, ex works or, for export sales, port/fob U.K. airport). The customer is responsible for unloading. The customer’s or its carrier’s receipt shall be conclusive evidence of delivery.
3.2. No guarantee of any kind is given as to the times and dates of any delivery.
3.3. No claim in respect of any failure or lateness in delivery will be entertained or payable by Lotus Labels.
3.4. Unless otherwise stated Lotus Labels will deliver and all charges will be invoiced to the customer.
3.5. If Lotus Labels is delayed or prevented from delivering goods due to any circumstances whatever (whether or not involving Lotus Labels’ negligence) which are beyond Lotus Labels’ reasonable control and which prevent or restrict Lotus Labels from complying with the contract, Lotus Labels may cancel or suspend delivery of goods comprised in the customer’s order without notice and without liability.
3.6. Where goods are supplied under any internationally recognised trading term as specified in incoterms 1990, the provision by Lotus Labels of the usual transport document(s) or other evidence of delivery consistent with the relevant trading term will be conclusive evidence of delivery by Lotus Labels.
3.7. If Lotus Labels or its carrier is unable for any reason to place the goods on board ship upon their arrival at the port of delivery, a warehouse receipt for the goods shall be treated as sufficient delivery.
3.8. The customer undertakes to obtain and comply with any necessary export/import licenses, permits and consents for the supply and delivery of the goods. The customer shall ensure that all goods sold to the customer shall comply with all legal and customary requirements prevailing in all jurisdictions into which those goods may be shipped or resold.
4. Risk & Title
All goods are supplied to the customer by Lotus Labels on the following terms:
4.1. The goods shall remain the sole and absolute property of Lotus Labels as legal and equitable owner until such time as all sums due to Lotus Labels from the customer, whether in respect of the goods or other goods or services, have been paid in full.
4.2. Until such payment the customer shall be in possession of the goods solely as bailee for Lotus Labels and shall store the goods separately in such a way as to enable them to be identified as the property of Lotus Labels.
4.3. Lotus Labels reserves the immediate right at any time of re-possession of any goods to which it has retained title and thereafter to re-sell the same and for this purpose the customer hereby grants an irrevocable right and license to Lotus Labels’ employees and agents to enter at any time upon all or any of its premises with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the contract for any reason and is without prejudice to any accrued rights of Lotus Labels hereunder or otherwise.
4.4. As a separate and independent condition, the customer shall be at liberty and may in the ordinary course of its business sell and deliver the goods to any third party as Lotus Labels’ bailee provided that the entire proceeds of sale are held in trust for Lotus Labels in a separate bank account and shall at all times be identifiable as Lotus Labels’ moneys. The customer agrees immediately upon being so requested by Lotus Labels to assign to Lotus Labels all rights and claims which the customer may have against its customers arising from such sales until payment is made in full as aforesaid
4.5. Whilst the goods remain the property of Lotus Labels, the customer shall insure the goods against all usual risks for an amount equal to or greater than the purchase price and hold the proceeds of such insurance on trust for Lotus Labels.
5.1. Unless otherwise agreed in writing all Lotus Labels accounts shall be paid in full without any deduction whatsoever by the last day of the month following the month of invoice, and all monies received by Lotus Labels shall be applied to accounts outstanding in Lotus Labels’ books by order of age (starting with the oldest).
5.2. Without prejudice to all other rights and remedies in respect of overdue invoices and/or accounts Lotus Labels shall be entitled:
5.2.1. To interest on all overdue sums, accruing from the date when payment becomes due, at a rate of 2% per month and shall accrue at such a rate after as well as before any judgement.
5.2.2. To withhold or suspend delivery of any order or part of an order and invoice the customer for the reasonable costs of storing the goods (whether at Lotus Labels’ premises or otherwise) from the due date of payment until receipt of payment.
Change of Control
5.3. The customer shall forthwith notify Lotus Labels in writing, to be sent by recorded delivery, upon the occurrence of any of the following events:
5.3.1. Any change in the ownership, management or control of the customer;
5.3.2. Any sale or transfer of a material part of the customer’s undertaking or assets;
5.3.3. If the customer, being sole trader, enters into partnership with others;
5.3.4. If the customer, being a sole trader or a partnership, becomes incorporated or becomes amalgamated with others.
5.4. Upon the occurrence of any of the events listed in clauses 5.3.1 to 5.3.4 any existing credit account facilities granted by Lotus Labels to the customer shall automatically terminate and the account balance shall be payable in full forthwith.
Joint and Several Liability
5.5. Should the customer fail to notify Lotus Labels of the occurrence of any of the events listed in clause 5.3.1 to 5.3.4 the customer shall be jointly and severally liable to pay all sums due to Lotus Labels in respect of goods and/or services supplied to the changed entity until the date that written notice is received by Lotus Labels.
5.6. The customer shall be jointly and severally liable for all sums due to Lotus Labels in respect of goods and/or services supplied to any individual, partnership or other legal entity that makes use of the customer’s credit account facility.
Any allowance or grant of credit account facilities following such event shall be in Lotus Labels’ sole discretion and only deemed undertaken by Lotus Labels if a written acknowledgment and acceptance is issued by Lotus Labels’ managing director or accounts manager.
6. Termination and Suspension
6.1. Lotus Labels may (without prejudice to its other rights or remedies) terminate or suspend Lotus Labels’ performance of the whole or any outstanding part of the contract in the circumstances described in clause 6.2. Lotus Labels may also suspend deliveries while investigating any claim relating to prior deliveries (under any contract) of goods.
6.2. The relevant circumstances are if:
6.2.1. The customer fails to take delivery of or to pay for the goods on the date required under clause 5.1 or breaches any other term of contract, or if the customer is late in payment or performance under or otherwise breaches any other contract for the sale and purchase of goods or services between the customer and Lotus Labels: or
6.2.2. The customer becomes bankrupt or insolvent or if a receiver or encumbrancer takes possession of any material part of the customer’s assets, or the customer suffers any foreign equivalent of the foregoing: or
6.2.3. Lotus Labels has reasonable grounds for suspecting that an event in clause 5.1 has occurred or will occur, or that the customer will not pay for the goods on the due date, and so notifies the customer.
7. Defective Goods
7.1. The customer shall examine the goods as soon as reasonably practicable after delivery. The customer shall immediately notify Lotus Labels of any damage, loss or shortage of the goods. Unless the customer so notifies Lotus Labels within 7 working days after the date when the customer became or ought reasonably to have become aware of such damage, loss or shortage the customer will be deemed to have accepted the goods in satisfaction of the corresponding order. Within 14 days of Lotus Labels’ request, the customer will return any damaged goods to Lotus Labels. Lotus Labels’ liability (if any) will be limited to replacing or (at its option) repairing or giving credit for such goods. The customer will not be entitled to make any claim against Lotus Labels for indirect or consequential loss arising out of the loss, damage or shortage.
8. Liability/Third Party claims
8.1. Lotus Labels shall not be liable, in contract, tort or otherwise, for any representations, advice or assistance given (under this contract or otherwise, and whether before or after the date of the contract) by or on behalf of Lotus Labels in connection with the goods or the contract.
8.2. The customer shall indemnify Lotus Labels against any liability incurred by Lotus Labels in relation to any third party claims arising from the use made of or dealings by the customer in the goods (irrespective of whether they involve the negligence of Lotus Labels, its agents or employees), unless solely arising from Lotus Labels’ willful default or defects in material or workmanship of the goods.
8.3. Save as expressly provided herein and without prejudice to any other limitation of Lotus Labels’ liability (whether effective or not), the full extent of Lotus Labels’ liability shall be as provided in this clause 8.3:
8.3.1. Lotus Labels accepts that it will be liable for death and/or personal injury caused by its negligence without limit;
8.3.2. Lotus Labels’ total aggregate liability in connection with the goods or the contract (in contract, tort or otherwise and whether or not related to any negligence or other act, default or omission of Lotus Labels or its employees or agents) is limited to the invoice price for the goods, ex works and ex VAT;
8.3.3. In no circumstances whatever shall Lotus Labels be liable (in contract, tort or otherwise and irrespective of any negligence or other act, default or omission of Lotus Labels or its employees or agents) for any indirect or consequential losses (including loss of goodwill, business or anticipated savings), loss of profits or use, or any third party claims, in connection with the goods or the contract;
8.3.4. Where the customer suffers loss attributable to a component part of the goods which was manufactured by someone other than Lotus Labels, Lotus Labels shall endeavour to pass onto the customer any warranty it obtained in respect of the same.
8.4. Save as expressly provided herein, Lotus Labels will have no further or other liability in respect of any direct or consequential loss or damage sustained by the customer arising from or in connection with any defect, failure or error in the goods and all other warranties, obligations, representations, liabilities, terms and conditions (whether express or implied) in connection with the goods (including, without limitation, any relating to satisfactory quality, fitness for purpose, conformity with description or sample, care and skill or compliance with representations, but excluding implied statutory warranties relating to title) are hereby expressly excluded.
8.5. Nothing in these terms shall exclude or restrict any liability that Lotus Labels may have by virtue of the consumer protection act 1987.
9.1. If any provision of these terms becomes illegal or void for any reason, the validity of the remaining provisions shall not be affected.
9.2. Where the customer comprises two or more persons the liability of those persons under these terms shall be joint and several.
9.3. The contract may not be assigned by the customer without Lotus Labels’ prior written consent and where such consent is given, it shall be on the basis that the customer remains jointly and severally liable to Lotus Labels with any transferee or subcontractor.
9.4. The provisions of clauses 4, 7, 8 and 9 shall survive any termination of this contract.
9.5. The law of England shall govern the validity, construction and performance of this contract. The customer agrees for Lotus Labels’ exclusive benefit that the English courts shall have sole jurisdiction to hear all claims or disputes connected with the goods or the contract. Lotus Labels may nevertheless bring claims in any other courts of competent jurisdiction.