1. Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
"Jupiter Blue" means Jupiter Blue Ltd incorporated and registered in England and Wales with company number 06411066 and whose registered office is at Unit 86 Marston Moor Business Park, Tockwith, YO26 7QF.
"Business Day" means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
"Conditions" means the terms and conditions set out in this document as amended from time to time in accordance with clause 12.6.
"Contract" means the contract between Jupiter Blue and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
"Customer" means the person or firm who purchases the Goods from Jupiter Blue.
"Force Majeure Event" has the meaning given in clause 11.
"Goods" means the goods (or any part of them) set out in the Order and any applicable Specification.
"Intellectual Property" means copyright and neighbouring and related rights, trademarks and service marks, business names and domain names and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Order" means the Customer's order for the Goods, as set out in the Customer's purchase order form.
"Specification" means any specification for the Goods, including any related plans and drawings, that are agreed in writing by the Customer and Jupiter Blue.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted, and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.3 A reference to writing or written includes faxes but not e-mails.
2. Basis of Contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Jupiter Blue issues a written acceptance of the Order or dispatches the Goods, at which point the Contract shall come into existence.
2.4 Any cancellation of an Order by the Customer must be approved in writing by the director of Jupiter Blue, at Jupiter Blue's sole discretion. In the event that such cancellation is accepted, the Customer shall be liable to pay to Jupiter Blue all costs and expenses incurred by Jupiter Blue up to the date of cancellation within 14 days of the same.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Jupiter Blue which is not set out in the Contract.
2.6 Any samples, drawings, specification sheets, price lists, descriptive matter, or any other advertising produced by Jupiter Blue and any descriptions or illustrations contained in Jupiter Blue's catalogues, website or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.7 A quotation for the Goods given by Jupiter Blue shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3. Goods
3.1 The Goods are described in the Order and any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Jupiter Blue against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Jupiter Blue in connection with any claim made against Jupiter Blue for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Jupiter Blue's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Jupiter Blue reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4. Delivery
4.1 Jupiter Blue shall ensure that each delivery of the Goods is accompanied by a delivery note showing the date of the Order, all relevant reference numbers, the type and quantity of the Goods, special storage instructions (if any) and any outstanding balance of Goods remaining to be delivered; that any requirement to return packaging is clearly stated; and that, where Goods are damaged in transit or not delivered in accordance with the delivery note, Jupiter Blue shall at its option repair or replace the damaged Goods provided the Customer notifies Jupiter Blue in writing as soon as is reasonably practicable and no later than two days after receipt.
4.2 Jupiter Blue shall deliver the Goods to the location set out in the Order or such other location as the parties may agree ("Delivery Location") at any time after Jupiter Blue notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Jupiter Blue shall not be liable for any delay in delivery caused by a Force Majeure Event or the Customer's failure to provide adequate delivery or other relevant instructions.
4.5 If Jupiter Blue fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods, save where such failure is caused by a Force Majeure Event or the Customer's failure to provide adequate instructions.
4.6 If the Customer fails to take delivery within five Business Days of being notified the Goods are ready (except where caused by a Force Majeure Event or Jupiter Blue's default), delivery shall be deemed completed at 9.00 am on the third Business Day after notification, and Jupiter Blue shall store the Goods and charge the Customer for all related costs (including insurance).
4.7 If five Business Days after notification the Customer has not taken delivery, Jupiter Blue may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over, or charge the Customer for any shortfall below, the price of the Goods.
4.8 Jupiter Blue may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. Quality
5.1 Jupiter Blue warrants that on delivery, and for a period of 24 months from the date of delivery ("warranty period"), the Goods shall conform in all material respects with the Order and any applicable Specification; be free from material defects in design, material and workmanship; be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and be fit for any purpose held out by Jupiter Blue.
5.2 Subject to clause 5.3, where the Customer gives written notice during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty in clause 5.1, Jupiter Blue is given a reasonable opportunity to examine them, and (if asked) the Customer returns them at its cost, Jupiter Blue shall, at its option, repair or replace the defective Goods, or refund the price in full.
5.3 Jupiter Blue shall not be liable for a failure to comply with clause 5.1 where: the Customer makes further use of the Goods after giving notice; the defect arises from failure to follow Jupiter Blue's instructions or good trade practice as to storage, commissioning, installation, use and maintenance; the defect arises from a drawing, design or Specification supplied by the Customer; the Customer alters or repairs the Goods without Jupiter Blue's written consent; the defect arises from fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or the Goods differ from the Order as a result of changes made to comply with statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Jupiter Blue shall have no liability in respect of the Goods' failure to comply with the warranty in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Jupiter Blue.
6. Title and Risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of Jupiter Blue receiving payment in full (in cash or cleared funds) for the Goods and any other goods supplied for which payment has become due, or the Customer reselling the Goods (in which case title passes at the time specified in clause 6.4).
6.3 Until title has passed, the Customer shall store the Goods separately and identifiably as Jupiter Blue's property; not deface or obscure any identifying mark or packaging; maintain the Goods in satisfactory condition and keep them insured for their full price; notify Jupiter Blue immediately if it becomes subject to any of the events listed in clause 9; and provide such information relating to the Goods as Jupiter Blue may require.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of business before payment, doing so as principal and not as Jupiter Blue's agent, with title passing from Jupiter Blue immediately before resale.
6.5 If, before title passes, the Customer becomes subject to any of the events listed in clause 9, the Customer's right to resell or use the Goods ceases immediately, and Jupiter Blue may require the Customer to deliver up all Goods not yet resold or incorporated and, failing prompt delivery, enter premises where the Goods are stored to recover them.
7. Price and Payment
7.1 The price of the Goods shall be the price set out in the Order, or as otherwise agreed between the parties.
7.2 Jupiter Blue may, by notice up to two Business Days before delivery, increase the price to reflect any increase in cost due to factors beyond its control (including foreign exchange fluctuations, taxes, duties, labour and materials), a Customer-requested change to date, quantity, type or Specification, or any delay caused by the Customer.
7.3 The price is exclusive of the costs of packaging, insurance and transport, which shall be invoiced to the Customer.
7.4 Jupiter Blue may charge an additional fee for urgent delivery, notified on acceptance of the Order.
7.5 Where packaging costs have been charged, the Customer will be credited in full subject to the packaging being returned in good condition (in Jupiter Blue's reasonable opinion) within three months of delivery.
7.6 The price is exclusive of VAT. The Customer shall, on receipt of a valid VAT invoice, pay such additional amounts in respect of VAT as are chargeable.
7.7 Jupiter Blue may invoice the Customer on or at any time after completion of delivery.
7.8 The Customer shall pay each invoice in full and in cleared funds by the end of the month following the month the invoice was dated, to the bank account nominated by Jupiter Blue. Time of payment is of the essence.
7.9 If the Customer fails to pay by the due date, it shall pay interest on the overdue amount at 4% per annum above Barclays Bank Plc's base rate from time to time, accruing daily from the due date until payment, before or after judgment.
7.10 The Customer shall pay all amounts in full without set-off, counterclaim, deduction or withholding (except as required by law). Jupiter Blue may set off any amount owing to it against any amount payable by it to the Customer.
8. Intellectual Property
8.1 The Customer acknowledges that Jupiter Blue's rights to the Intellectual Property used on or in relation to the Goods are Jupiter Blue's property.
8.2 The Customer accepts that it may only use the Intellectual Property for selling the Goods and only as authorised by Jupiter Blue; that otherwise it has no right to use or allow others to use it; that it shall not remove, alter or tamper with any trademarks, trade names, logos or other identification on the Goods or packaging, nor place its own marks on them; that it shall not do anything which could invalidate or be inconsistent with the Intellectual Property; and that it shall acknowledge ownership of relevant Intellectual Property in any advertising or promotional literature.
9. Termination and Suspension
9.1 Without prejudice to its other rights and remedies, Jupiter Blue may terminate the Contract with immediate effect by written notice if the Customer fails to pay any amount due and remains in default at least 30 days after written notice; commits an irremediable material breach, or fails to remedy a remediable breach within 30 days of written notice; suspends or threatens to suspend payment of its debts or is unable to pay its debts; commences negotiations or enters an arrangement with creditors; is the subject of winding-up, administration, receivership or bankruptcy proceedings or an equivalent event in any jurisdiction; suffers a creditor or encumbrancer taking possession of, or distress or execution being levied on, the whole or part of its assets; ceases or threatens to cease to carry on all or a substantial part of its business; suffers a deterioration in financial position such that, in Jupiter Blue's opinion, its capability to fulfil the Contract is in jeopardy; or (being an individual) dies or becomes incapable of managing his or her affairs.
9.2 Without limiting its other rights, Jupiter Blue may suspend provision of the Goods if the Customer becomes subject to any of those events, or Jupiter Blue reasonably believes it is about to, or if the Customer fails to pay any amount due on the due date.
9.3 On termination for any reason, the Customer shall immediately pay all of Jupiter Blue's outstanding unpaid invoices and interest.
9.4 Termination shall not affect any accrued rights, remedies, obligations and liabilities.
9.5 Clauses which expressly or by implication survive termination shall continue in full force and effect.
10. Limitation of Liability
10.1 Nothing in these Conditions shall limit or exclude Jupiter Blue's liability for death or personal injury caused by its negligence; fraud or fraudulent misrepresentation; breach of the terms implied by section 12 of the Sale of Goods Act 1979; or any matter in respect of which it would be unlawful to exclude or restrict liability.
10.2 Subject to clause 10.1, Jupiter Blue shall not be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit or any indirect or consequential loss arising under or in connection with the Contract, including any failure or delay in delivery; and Jupiter Blue's total liability in respect of all other losses shall in no circumstances exceed 100% of the price of the Goods.
11. Force Majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent caused by a Force Majeure Event — any event beyond a party's reasonable control which by its nature could not have been foreseen, or if foreseeable was unavoidable, including strikes, lock-outs or other industrial disputes, failure of energy sources or transport networks, acts of God, war, terrorism, riot, civil commotion, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics, natural disasters or extreme adverse weather, or default of suppliers or subcontractors.
12. General
12.1 Assignment. Jupiter Blue may assign, transfer, mortgage, charge, subcontract or otherwise deal with any of its rights or obligations under the Contract. The Customer may not do so without Jupiter Blue's prior written consent.
12.2 Notices. Any notice shall be in writing, addressed to the party's registered office or principal place of business, and delivered personally, by pre-paid first class post or next-working-day delivery, by commercial courier, or by fax, with deemed receipt as set out in these Conditions. This clause does not apply to the service of legal proceedings.
12.3 Severance. If any provision is or becomes invalid, illegal or unenforceable, it shall be modified to the minimum extent necessary to make it valid or, if not possible, deemed deleted, without affecting the rest of the Contract; the parties shall negotiate in good faith to achieve the intended commercial result.
12.4 Waiver. A waiver of any right or remedy is only effective if in writing and shall not be deemed a waiver of any subsequent breach. No failure or delay in exercising a right shall constitute a waiver of it.
12.5 Third party rights. A person who is not a party to the Contract shall have no rights to enforce its terms.
12.6 Variation. No variation of the Contract is effective unless in writing and signed by Jupiter Blue.
12.7 Governing law. The Contract and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
12.8 Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
Jupiter Blue Ltd
Registered office: Unit 86 Marston Moor Business Park, Tockwith, YO26 7QF
Registered in England & Wales · Company No: 06411066
