These Terms and Conditions were last updated on 6th December 2018.
In this document the following words shall have the following meanings:
"Agreement" means these Terms and Conditions together with any applicable Specification Document;
"Customer" or “you” means the organisation or person who purchases goods on behalf of the organisation from the Supplier. Please note that Proper Goose operates on a B2B basis only and does not sell Products to individual consumers;
"Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 “Products” means any products supplied by us to fulfil your order on a Specification Document;
"Specification Document" means a statement of work, quotation, purchase order or other similar document describing the goods to be provided by the Supplier;
“Proper Goose”, "Supplier", “we” or “us” means Proper Goose Limited (trading as Proper Goose, Foundry Fifty or Bark and Rock), a limited company registered in England and Wales under company number 09119257 and have our registered office at Karno House, Hampton Court Road, East Molesey, Surrey KT8 9BP. Our main trading address is Bark & Rock, 85 Island Farm Road, West Molesey, Surrey, KT8 2LN. Our VAT number is 196 5046 80.
2.1 These Terms and Conditions shall apply to all contracts for the supply of Products by the Supplier to the Customer. Please read these Terms and Conditions carefully and make sure that you understand them, before ordering any Products from us.
2.2 Before the supply of any Products the Supplier shall submit to the Customer a Specification Document which shall specify the goods to be supplied and the price payable. The Specification Document constitutes an offer by the Supplier to supply the Products in accordance with these Terms and Conditions. The Customer shall notify the Supplier immediately if the Customer does not agree with the contents of the Specification Document.
2.3 The Specification Document shall only be deemed to be accepted when the Customer accepts the Specification Document in writing via email or post. A Specification Document is valid only for the period set out in the Specification Document or if no period is set out in the Specification Document, for a period of 30 days from its date of issue. Once the Specification Document has been accepted in accordance with this clause 2.3, the effect and performance of all orders fulfilled under the Specification Documents shall be subject to these Terms and Conditions.
2.4 We may amend these Terms and Conditions from time to time. Every time you wish to order Products, please check these Terms to ensure you understand the terms which will apply at that time. The Terms and Conditions in force at the time of your order will apply to any Agreement between you and us.
2.5 Proper Goose operates on a B2B basis only and we do not sell our Products to consumers. By purchasing our Products you confirm that you are a business customer aiming to use the Products in connection with your trade, business, craft or profession, and not an individual intending to use the Products wholly or mainly for your personal use.
3 PRICE AND PAYMENT
3.1 The price for the supply of Products, including delivery charges, are as set out in the Specification Document. The Supplier shall invoice the Customer on delivery.
3.2 The Specification Documents will state the price of a Product and rate of VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Products in full before the change in VAT takes effect.
3.2 Invoiced amounts shall be due and payable once the goods have been delivered. The Supplier shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 1.5% per annum above the base rate of the Bank of England. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order to payment, the Customer shall be responsible for issuing such purchase order before the Products are supplied.
4 SPECIFICATION OF THE GOODS
All goods shall be required only to conform to the specification in the Specification Document. For the avoidance of doubt no description, specification or illustration contained in any product pamphlet, on the Supplier’s websites or other sales or marketing literature of the Supplier and no representation written or oral, correspondence or statement shall form part of the contract.
5.1 The date of delivery specified by the Supplier is an estimate only. Time for delivery shall not be of the essence of the contract and the Supplier shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products.
5.2 All risk in the Products shall pass to the Customer upon delivery.
5.3 Delivery of a Product shall be completed when we or our carrier, Royal Mail, deliver the Products to the address you gave us and the Products will be your responsibility from that time.
Title in the Products shall not pass to the Customer until the Supplier has been paid in full for the Products.
7 CUSTOMER`S OBLIGATIONS
7.1 To enable the Supplier to perform its obligations under this Agreement the Customer shall:
7.1.1 co-operate with the Supplier;
7.1.2 provide the Supplier with any information reasonably required by the Supplier;
7.1.3 obtain all necessary permissions, licences and consents which may be required before commencing production of the Products and/or to enable us to produce your requested Products (e.g. in relation to any custom artwork provided by you); and
7.1.4 comply with such other requirements as may be set out in the Specification Document or otherwise agreed between the parties.
7.2 The Customer shall be liable to compensate the Supplier for any expenses incurred by the Supplier as a result of the Customer’s failure to comply with Clause 7.1.
7.3 Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Customer unlawfully terminates or cancels the Products agreed to in the Specification Document, the Customer shall be required to pay to the Supplier as agreed damages and not as a penalty the full amount of any third party costs to which the Supplier has committed and in respect of cancellations on less than five working days’ written notice the full amount of the goods contracted for as set out in the Specification Document, and the Customer agrees this is a genuine pre-estimate of the Supplier’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 7.1 shall be deemed to be a cancellation of the goods and subject to the payment of the damages set out in this Clause.
7.4 In the event that the Customer or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, then the Supplier shall notify the Customer as soon as possible and:
7.4.1 the Supplier shall have no liability in respect of any delay to the completion of any project;
7.4.2 if applicable, the timetable for the project will be modified accordingly;
7.4.3 the Supplier shall notify the Customer at the same time if it intends to make any claim for additional costs.
8 ALTERATIONS TO THE SPECIFICATION DOCUMENT
8.1 The parties may at any time mutually agree upon and execute new Specification Documents. Any alterations in the scope of goods to be provided under this Agreement shall be set out in the Specification Document, which shall reflect the changed goods and price and any other terms agreed between the parties.
8.2 The Customer may at any time request alterations to the Specification Document by notice in writing to the Supplier. On receipt of the request for alterations the Supplier shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties.
8.3 Where the Supplier gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Supplier by notice in writing whether or not it wishes the alterations to proceed.
8.4 Where the Supplier gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Specification Document shall be amended to reflect such alterations and thereafter the Supplier shall perform this Agreement upon the basis of such amended terms.
9.1 The Supplier warrants that as from the date of delivery for a period of 28 days the goods and all their component parts, where applicable, are free from any material defects in design, workmanship, construction or materials. Any additional warranties described in the specification document are manufacturers warranties only.
9.2 Except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the Products to be provided by the Supplier to the fullest extent permitted by law.
9.3 Subject to Clause 9.4, if:
9.3.1 the Customer gives notice in writing to the Supplier during the warranty period, within 14 Business Days of discovery that some or all of the Products do not comply with the warranties set out in Clause 9.1;
9.3.2 the Supplier is given a reasonable opportunity of examining such Products; and
9.3.3 the Customer (if asked to do so by the Supplier) returns such Products to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace any Products that are found to be defective, or refund the price of such defective Products in full.
9.4 The Supplier shall not be liable for Products' failure to comply with the warranties set out in Clause 9.1 if:
9.4.1 the Customer makes any further use of such Products after giving notice of defects in accordance with Clause 7.2;
9.4.2 the Customer alters or repairs such Goods without the written consent of the Supplier; or
9.4.3 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
9.5 The Supplier's only liability to the Customer if the Products fail to comply with the warranties set out in Clause 9.1 is as set out in Clause.
The Customer shall indemnify the Supplier against all claims, costs and expenses which the Supplier may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims brought against the Supplier alleging that any goods provided by the Supplier in accordance with the Specification Document infringes the Intellectual Property Rights or other similar rights of a third party.
11 LIMITATION OF LIABILITY
11.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of the Supplier to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid by the Customer to which the claim relates.
11.2 In no event shall the Supplier be liable to the Customer for any loss of business, loss of opportunity, loss of anticipated savings, loss of goodwill, loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Supplier had been made aware of the possibility of the Customer incurring such a loss.11.3 Nothing in these Terms and Conditions shall exclude or limit the Supplier’s liability for:
11.3.1 death or personal injury resulting from the Supplier’s negligence or that of its employees, agents or sub-contractors;
fraud or fraudulent misrepresentation;
11.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
defective products under the Consumer Protection Act 1987.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
12.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
12.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
12.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
12.4 the other party ceases to carry on its business or substantially the whole of its business; or
12.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13 INTELLECTUAL PROPERTY RIGHTS
13.1 As between the Customer and Supplier, all Intellectual Property Rights in any drawings, designs or other materials supplied by the Customer in order for the Supplier to produce the Products will remain vested in the Customer.
13.2 All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement is hereby assigned to the Supplier, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.14 FORCE MAJEURE
14.1 Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services (a “Force Majeure Event”).
14.2 Where a party gives notice to the other of a Force Majeure Event that affects its performance of its obligations under the Agreement, both parties’ obligations under the Agreement will be suspended until the conclusion of that Force Majeure Event, and the notifying party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events so as to arrange a new delivery date and/or other alteration to the Specification Document as necessary.
15 INDEPENDENT CONTRACTORS
The Supplier and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Specification Document.
16.1 The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Supplier.
16.2 We may transfer our rights and obligations under an Agreement to another organisation, but this will not affect your rights or our obligations under these Terms and Conditions.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
20 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
21 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
22 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.