These conditions of sale (“Conditions”) are entered into between Spicers a division of OT Group Limited registered in England and Wales with company number 0567779 and registered office at Unit 1 Alexandria Court, Alexandria Drive, Ashton-Under-Lyne, England, OL7 0QN (“Seller”) and any person to whom we supply goods (“Buyer”).
By placing an order with us, you are deemed to accept that these Conditions shall apply to and govern any agreement between us to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any purchase order, confirmation of order or other correspondence or documentation).
That is the whole of our agreement for this supply and supersedes any previous agreement we may have had in relation to it. No variation to the agreement is valid unless it is in writing and is signed by authorized representatives of both of us.
(a) All prices are subject to market fluctuations and the actual prices to be paid by the Buyer shall be the Seller’s price ruling at the date of dispatch. The Seller shall be entitled to charge the Buyer the amount of Value Added Tax for which the Seller is liable.
(b) Goods must be paid for within 30 days of the date of invoice.
(c) The Buyer must clearly identify to which invoice and/or credit note any settlement relates to. If the Buyer fails to do this then the Seller may, at its discretion, treat the settlement as if it had not been made or as a settlement of the Buyer’s oldest invoice.
(d) If the Buyer fails to serve notice disputing any invoice within the period stated in paragraph (b), the Buyer will pay such invoice within the period stated in the Conditions of Sale.
(c) Time for payment shall be of the essence.
(d) If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
(i) cancel the agreement or amend credit and payment terms or suspend any further deliveries to the Buyer;
(ii) appropriate any payment made by the Buyer to such of the goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
(iii) charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 8 per cent per annum above Bank of England base rate, until payment is made in full;
(iv) claim compensation for the recovery of the debt and charge the Buyer all costs incurred to recover, including agreed Government legislative late payment charges; and
(v) cancel or suspend any rebates, bonuses or any other price reductions until such time as the invoice has been settled in full.
(a) Unless otherwise agreed in writing, the Buyer shall be bound to accept goods ordered by it on notification that they are ready for delivery. If the Buyer fails to take delivery the Seller shall have the exclusive option:-
(i) to re-sell the goods and charge the Buyer for any shortfall below the price under the agreement;
(ii) to invoice the goods whereupon payment in full shall become due forthwith; or
(iii) to charge at rates giving an economic return for the handling and storage of such goods from the invoice date to the eventual date of delivery to the Buyer or disposal elsewhere under the power of sale referred to above. The Buyer shall assume the risk for the goods and be liable for the insurance of such goods from the time at which the Seller has tendered delivery of the goods.
(b) Any dates quoted for delivery of the goods are approximate only and the Seller shall not be liable for any delay in delivery of the goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
(c) If the Seller fails to deliver the goods for any reason other than cause beyond the Seller’s reasonable control (in which case clause 15 applies) or the Buyer’s fault, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the goods.
(d) If goods are contracted to be delivered by instalments, late delivery of one instalment shall not entitle the Buyer to reject any other instalment under the same contract.
(e) The Buyer is responsible for inspecting the goods on receipt to check for damage, discrepancies and shortages. A delivery note signed by the Buyer or its agent is conclusive proof of correct delivery. Claims in respect of short deliveries, discrepancies or damage to goods in transit must be notified by the Buyer to the Seller in writing within 3 working days of receipt of the goods. No claim can be made outside this time period.
(f) The content of the Seller’s invoice including the price for the goods, description of goods and delivery charges shall, in the absence of manifest error, be deemed to have been accepted by the Buyer as correct unless the Buyer notifies the Seller’s Customer Services department within 14 days of the date of the Seller’s invoice.
(g) Delivery of goods to levels other than the ground floor may require assistance. When necessary, confirmation that assistance is available will be required before dispatch.
(h) Requests for proof of delivery should be made in writing or logged as a query no later than 1 month after the date of invoice relating to the delivery.
The Seller may without prejudice to any of its other rights against the Buyer terminate the agreement or suspend delivery under it if:
(a) any sum is owing and overdue by the Buyer to the Seller;
(b) the Buyer is in breach of any other term of the agreement;
(c) the Buyer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986 or any analogous legislation) or becomes subject to an administration order or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction) (being an individual or firm) becomes bankrupt; or
(d) an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
(e) the Buyer ceases, or threatens to cease, to carry on business; or
(f) there is a change of ownership of the Buyer; or
(g) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
On termination of this agreement, all amounts owed by the Buyer to the Seller will become immediately payable in full. Termination of the agreement will not affect any rights or liabilities that have accrued prior to termination. Termination of this agreement will not affect the continuation in force of any provision of this agreement which is expressly or by implication to survive termination.
(a) The Seller shall be under no liability:
(i) in respect of any defect in the goods arising from any drawing, design or specification supplied by the Buyer;
(ii) in respect of any defect arising from wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s or manufacturer’s instructions (whether oral or in writing), misuse or alteration without the Seller’s approval;
(iii) under any warranty, condition or guarantee, or any duty at common law, if the total price for the goods has not been paid by the due date for payment;
(iv) by any oral warranty or representation given or made on its behalf unless confirmed in writing; or
(v) in respect of any data corruption or other damage to or loss of computer software or hardware arising from the use of any computer media goods supplied hereunder by the Seller in conjunction with any such software or hardware. It is the responsibility of the Buyer to ensure that it or the ultimate end-user of the goods takes all necessary precautions (including, but without limitation, testing the goods on up-to-date anti-virus software) when used in conjunction with any computer software or hardware.
(b) Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the goods (or a proportionate part of the price), provided a complaint is made in writing within 3 working days after delivery and the goods are returned within one month. The Seller shall have no further liability to the Buyer.
(c) Subject as expressly provided in these Conditions (and specifically without prejudice to (b) above), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
(d) Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation or any implied warranty, condition or other term or any duty at common law or under the express terms of the contract, for any consequential or indirect loss or damage, costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the goods or their use or resale by the Buyer, except as expressly provided in these Conditions. Non-exhaustive illustrations of consequential or indirect loss include: (i) loss of profit, (ii) loss of contracts, or (iii) loss of use.
All descriptions and illustrations contained in any catalogues, price lists, advertising matter and other literature of the Seller are intended merely to present a general idea of the goods described therein and none of them shall form part of the agreement.
(a) Risk of damage to or loss of the goods shall pass to the Buyer:
(i) in the case of goods to be delivered at the Seller’s premises, at the time when the Buyer collects the goods; or
(ii) in the case of goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongly fails to take delivery of the goods, the time when the Seller has tendered delivery of the goods.
(b) Notwithstanding delivery and the passing of risk in the goods, or any other provision of these Conditions, the property in the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
(c) Until such time as the property in the goods passes to the Buyer, the Buyer shall hold the goods as the Seller’s fiduciary agent and Bailee, and shall to the extent practicable keep the goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the goods in the ordinary course of its business (but any warranties, conditions or representations given or made by the Buyer to any third party shall not be binding on the Seller who shall be indemnified by the Buyer with respect thereto), but shall account to the Seller for the proceeds of sale or otherwise of the goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
(d) Until such time as the property in the goods passes to the Buyer (and provided the goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the goods.
(e) Save for normal invoice discounting arrangements the Buyer 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 the Seller but, if the Buyer does so, all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
(a) At the Seller’s discretion, all sketches and designs or other work including authors corrections on or after first proofs are produced or special materials are purchased at the Buyer’s request may be considered an order and charged for. No responsibility will be accepted for any error in proofs passed by the Seller.
(b) The Seller shall be indemnified by the Buyer against any claim by a third party against the Seller arising out of any goods supplied to or work done for the Buyer including any infringement of copyright, patent, trade mark or registered design.
(c) All sketches, drawings and designs or other work originated by or on behalf of the Seller and the copyright and all other intellectual property rights therein shall belong to the Seller.
Without prejudice to any of its other rights against the Buyer, the Seller shall in respect of all unpaid debts due from the Buyer have a general lien on all materials and equipment and other property of the Buyer in its possession, and shall be entitled if any part of such debts shall remain unpaid at the expiration of 14 days after giving written notice to the Buyer requiring payment thereof to dispose of such materials, equipment and other property as it thinks fit and to apply the proceeds of sale (if any) in or towards payment of such debts.
All technical manuals and other literature, drawings, designs and specifications furnished to the Buyer by the Seller shall remain the property of the Seller and be carefully preserved by the Buyer and returned to the Seller on demand. No such manuals, literature, drawings, designs or specifications shall except with the express written consent of the Seller be reproduced by the Buyer in whole or in part.
A delivery of goods consisting of a shortage or surplus not exceeding 10 per cent will be considered due execution of any order and the Buyer shall accept the same subject to a pro rata increase or reduction in the contract price.
The Buyer’s property when supplied to the Seller will be held at the Buyer’s risk. The Buyer shall supply adequate quantities to cover normal spoilage. Reasonable care will be taken to secure the best results where materials are supplied by the Buyer but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of materials so supplied. A separate stock indemnity form will be signed and this will also be part of the contract relating to buyer’s own stock.
No forbearance or indulgence by the Seller shown or granted to the Buyer whether in respect of the Conditions or otherwise shall in any way affect or prejudice the rights of the Seller against the Buyer or be regarded as a waiver of any of the Conditions.
No liability is accepted by the Seller for any direct or indirect loss arising from non-delivery or delay in delivery of any goods caused by act of God, riot or civil commotion, war, strike, lockout, fire, flood, drought, act of government, failure to obtain or shortages of raw materials or any other cause whatsoever beyond its control.
(a) The Seller has no obligation to accept return of goods supplied and to credit the Buyer’s account in full save in the following circumstances:
(i) if goods have been damaged in transit; or
(ii) if goods are subject to a bona fide complaint in respect of the quality of the goods made pursuant to Clause 5 hereof.
(b) Any return pursuant to Clause 16 (a) above shall be made within 15 days of receipt in accordance with the Seller’s Returns Policy in force from time to time, which is expressly incorporated into these Conditions. The Seller shall only be liable to credit 75% of the invoiced value of goods returned which do not conform with the requirements of this sub-clause and all returns in adherence with clause 16 (a) above will not be subject to any charge for the return of the goods, a full refund will be issued for the goods and the initial delivery charge.
(c) Any request for the return of goods under this Clause shall be made by the Buyer to the Distribution Centre Sales Office. The Seller’s Customer Service Office will provide the Buyer with a Return Note. Returns shall only be accepted if they are accompanied by the Seller’s Return Note.
(d) The Seller may, at its absolute discretion, elect to provide by post or any other means, any missing or faulty components or fixings for goods in lieu of accepting a return.
(e) A separate returns procedure applies in respect of electronic office supplies and business machines. Where the manufacturer or distributor operates a returns policy, returns will only be accepted in accordance with that policy which is available on written request. To the extent that a manufacturer or distributor’s policy does not apply, the policy set out in this clause 16 will apply. The Seller will not be responsible for installation of repaired goods after repair or exchange. Any labor costs in extracting defective parts and / or components will be borne by the Buyer. The Buyer will be responsible for the cost and insurance of returning goods. If the Seller agrees to collect the Goods for return and they are not ready for collection at the agreed time the Buyer will be responsible for any additional costs. Goods returned must be in their packaging and accompanied by a description of the alleged fault and accompanied by the Returns Note. If the Buyer fails to comply with this requirement the Seller may charge a handling fee of 25% of the invoice price of the goods. A handling charge of an amount notified to the Buyer will apply in respect of all returned goods. If any goods returned are not faulty they will be returned to the Buyer at the Buyer’s cost and the Buyer will pay the Seller’s costs. All amounts payable by the Buyer to the Seller will be payable within 14 days of invoice.
(f) In no circumstances will the Seller accept a return of any items flagged in the Spicers file as non-returnable or any lines that are not stocked by Spicers/OT Group.
(g) The Seller will not supply goods to the Buyer on an “on approval” basis. The Seller may, in its absolute discretion, accept a return of goods ordered by the Buyer in accordance with its Returns Policy.
(h) Returns not conforming to clause 16(a) will be subject to the standard delivery charge to collect and no refund will be issued for the original delivery charges. In addition only 75% of the value of the goods will be refunded.
These Conditions shall be governed by English law. The parties agree to the non-exclusive jurisdiction of the English Courts.
The Buyer undertakes to comply with the Seller’s Anti-Bribery policy in place from time to time, and confirms that it has processes in place to ensure this. The Buyer agrees to notify the Seller of any breach of this policy that comes to its notice, and understands that any breach of the policy by the Buyer may entitle the Buyer to terminate this Agreement and any order for Goods immediately without liability.
The Buyer agrees to maintain the confidentiality of the contents of the Agreement, all matters relating to the Seller and its business and any related correspondence and discussions, past, current or future (“Information”). The Buyer agrees not to use the Information other than for the purposes of this Agreement or to communicate the Information to any party without the express prior permission of Spicers. This does not apply to any Information which (i) is already in the public domain at the time of disclosure to the Buyer (ii) which comes into the public domain other than as a result of a breach by the Buyer or (iii) which is already known to the Buyer (without any restriction on disclosure).
The Seller’s Terms and Conditions for Bespoke Publications shall govern the production of Buyer bespoke publications.
“Controller”, “Data Subject”, “Personal Data”, “Processor” and “processing” shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processing, processed, and processes shall be construed accordingly) and international organization and Personal Data Breach shall have the respective meanings given to them in the GDPR;
“Data Protection Laws” means any applicable law relating to the processing, privacy and use of Personal Data, as applicable to either party or the Services, including:
(a) the Directive 95/46/EC (Data Protection Directive) and/or Data Protection Act 1998 or the GDPR;
(b) any laws which implement any such laws;
(c) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; and
(d) all guidance, guidelines, codes of practice and codes of conduct issued by any relevant supervisory authority relating to such Data Protection Laws (in each case whether or not legally binding);
“GDPR” means the General Data Protection Regulation (EU) 2016/679;
“Protected Data” means Personal Data received from or on behalf of the Buyer, or otherwise obtained in connection with the performance of the Seller’s obligations under this Agreement;
“Sub-Processor” means any agent, subcontractor or other third party engaged by the Seller (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data; and
“Supervisory Authority” means any regulator, authority or body responsible for administering Data Protection Laws.
The parties agree that the Buyer is a Controller and that the Seller is a Processor for the purposes of processing Protected Data pursuant to this Agreement. The Seller shall, and shall ensure its Sub-Processors and each of the Seller Personnel shall, at all times comply with all Data Protection Laws in connection with the processing of Protected Data and the provision of the Services and shall not by any act or omission cause the Buyer (or any other person) to be in breach of any of the Data Protection Laws. Nothing in this Agreement relieves the Seller of any responsibilities or liabilities under Data Protection Laws.
The Seller shall indemnify and keep indemnified the Buyer against:
(a) all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, sanctions, expenses, compensation paid to Data Subjects (including compensation to protect goodwill and ex gratia payments), demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Seller of its obligations under this addendum; and
(b) all amounts paid or payable by the Buyer to a third party which would not have been paid or payable if the Seller’s breach of this addendum had not occurred.
The Seller shall only process (and shall ensure Seller Personnel only process) the Protected Data in accordance with Schedule 1, this Agreement and the Buyer’s written instructions from time to time except where otherwise required by applicable law (and in such a case shall inform the Buyer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest). The Seller shall immediately inform the Buyer if any instruction relating to the Protected Data infringes or may infringe any Data Protection Law.
The Seller shall at all times implement and maintain appropriate technical and organisational measures to protect Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access. Such technical and organisational measures shall be at least equivalent to the technical and organisational measures set out in Part B of Schedule 1 and shall reflect the nature of the Protected Data.
The Seller shall:
(i) adequately trained on compliance with this addendum as applicable to the processing;
(ii) informed of the confidential nature of the Protected Data and that they must not disclose Protected Data;
(iii) subject to a binding and enforceable written contractual obligation to keep the Protected Data confidential; and
(iv) provide relevant details and a copy of each agreement with a Sub-Processor to the Buyer on request.
The Seller shall (at its own cost and expense):
(i) security of processing;
(ii) data protection impact assessments (as such term is defined in Data Protection Laws);
(iii) prior consultation with a supervisory authority regarding high risk processing; and
(iv) any remedial action and/or notifications to be taken in response to any Personal Data Breach and/or any complaint or request relating to either party’s obligations under Data Protection Laws relevant to this Agreement, including (subject in each case to the Buyer’s prior written authorisation) regarding any notification of the Personal Data Breach to supervisory authorities and/or communication to any affected Data Subjects.
The Seller shall (at no cost to the Buyer) record and refer all requests and communications received from Data Subjects or any supervisory authority to the Buyer which relate (or which may relate) to any Protected Data promptly (and in any event within three days of receipt) and shall not respond to any without the Buyer’s express written approval and strictly in accordance with the Buyer’s instructions unless and to the extent required by law.
The Seller shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom or to any international organisation without the prior written consent of the Buyer (which may be refused or granted subject to such conditions as the Buyer deems necessary).
The Seller shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of the Buyer. Such records shall include all information necessary to demonstrate its and the Buyer’s compliance with this addendum, the information referred to in Articles 30(1) and 30(2) of the GDPR and such other information as the Buyer may reasonably require from time to time. The Seller shall make copies of such records available to the Buyer promptly (and in any event within 21 days) on request from time to time.
The Seller shall (and shall ensure all Sub-Processors shall) promptly make available to the Buyer (at the Seller’s cost) such information as is reasonably required to demonstrate the Seller’s and the Buyer’s compliance with their respective obligations under this addendum and the Data Protection Laws, and allow for, permit and contribute to audits, including inspections, by the Buyer (or another auditor mandated by the Buyer) for this purpose at the Buyer’s request from time to time. The Seller shall provide (or procure) access to all relevant premises, systems, personnel and records during normal business hours for the purposes of each such audit or inspection upon reasonable prior notice (not being more than two Business Days) and provide and procure all further reasonable co-operation, access and assistance in relation to any such audit or inspection.
The Seller shall promptly (and in any event within 24 hours):
The Seller shall (and shall ensure that each of the Sub-Processors and Seller Personnel shall without delay (and in any event within 5 days), at the Buyer’s written request, either securely delete or securely return all the Protected Data to the Buyer in such form as the Buyer reasonably requests after the earlier of:
(a) the end of the provision of the relevant Services related to processing of such Protected Data; or
(b) once processing by the Seller of any Protected Data is no longer required for the purpose of the Seller’s performance of its relevant obligations under this Agreement,
and securely delete existing copies (except to the extent that storage of any such data is required by applicable law and, if so, the Seller shall inform the Buyer of any such requirement).
SCHEDULE 1 – DATA PROCESSING
Part A: Data processing details
Processing of the Protected Data by the Seller under this Agreement shall be for the subject-matter, duration, nature and purposes and involve the types of personal data and categories of Data Subjects set out in this Part A.
Subject-matter of processing: The Buyer’s staff and customer contact details such as name, email address, phone numbers.
Duration of the processing: for the duration of trading between Seller and Buyer
Nature and purpose of the processing: For the purposes of enabling the Buyer and Seller to receive, place and process orders and manage the sale or receipt of Goods and Services under this Agreement.
Type of Personal Data: Non-sensitive personal data
Categories of Data Subjects: Employees and customers of the Buyer
Specific processing instructions: TBA as and when necessary
Part B: Minimum technical and organisational security measures
Without prejudice to its other obligations, the Seller shall implement and maintain at least the following technical and organisational security measures to protect the Protected Data:
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