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1. Interpretation ™

1.1 In these Conditions:

“Buyer” means the person(s), firm or company who purchases the Goods from the Seller.

“Seller” means Vivid Imaginations Limited.

“Goods” means all goods which are supplied to the Buyer by the Seller under any contract between them.

“Conditions” means the standard terms and conditions of sale set out in this document and including any special terms and conditions agreed in writing between the Buyer and the Seller.

“Contract” means any contract between the Seller and the Buyer for the purchase and sale of the Goods, incorporating these Conditions.

1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.

2. Basis for Sale

2.1 The Seller shall sell and the Buyer shall purchase the Goods set out on the front page of the Seller’s order form. By placing an order for goods the Buyer shall be deemed to have accepted these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions, including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document.

2.2 No variation to the Contract shall be binding unless agreed in writing by the authorised representatives of the Buyer and the Seller.

2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller or its agent in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representation which is not so confirmed. The Buyer acknowledges that the Goods are not sold by the Seller on a “sale or return” basis. Nothing in this Condition will exclude or limit the Seller’s liability for fraudulent misrepresentation.

3. Formation of Contract and Specifications

3.1 Subject to these Conditions and to receipt by the Seller of a satisfactory credit rating report relating to the Buyer the Contract shall be formed when the completed order form is returned to the Seller by the Buyer and signed by the Seller’s authorised representative. Each order for Goods from the Buyer to the Seller shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.

3.2 The description of the Goods shall be as set out or referred to in the Seller’s specification.

3.3 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements, or which do not materially affect the quality or performance of the Goods.

3.4 Subject to Condition 4.2, no order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller (whereupon the Seller shall issue to the Buyer a cancellation reference number applicable to the cancelled order) and on terms that the Buyer shall indemnify the Seller in full against all direct, indirect or consequential losses (including loss of profit); costs (including the cost of all labour and materials used); damages; charges and expenses incurred by the Seller as a result of cancellation.

4. Price

4.1 The price of the Goods shall be the price listed in the Seller’s published price list current at the date of delivery (or deemed delivery, under Condition 6.3).

4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery or deemed delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller including (without limitation) alterations in taxation, increases in the cost of labour, materials or other costs of manufacture, any change of delivery dates, quantities or specifications of the Goods which are requested by the Buyer, or any delay caused by any instructions of the Buyer, or failure of the Buyer to give the Seller adequate information or instructions. In the event that the Seller exercises its right to increase the price of the Goods in accordance with this Condition, the Buyer shall be entitled, by giving written notice to the Seller, to cancel the order relating to the Goods which are the subject of the price increase.

4.3 Unless otherwise agreed in writing, all prices include packaging and delivery charges.

4.4 The price is exclusive of Value Added Tax and all other taxes and duties (apart from corporation taxes referable to income or capital gains of the Seller), which shall be payable by the Buyer.

5. Payment

5.1 Unless otherwise agreed in writing, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price of the Goods at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

5.2 Unless otherwise specified in writing by the Seller, the Buyer shall pay the price of the Goods in full by the end of the month following the date on the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The Buyer shall not be entitled to make any deduction from such payment or exercise any right of set-off or contribution howsoever arising. The time of payment of the price shall be of the essence of the Contract.

5.3 No payment shall be deemed to have been received until the Seller has received cleared funds.

6. Delivery

6.1 Delivery of the Goods shall be at the Buyer’s premises unless otherwise agreed by the Seller in writing.

6.2 Delivery will be deemed to have taken place as soon as the Seller has notified the Buyer that the Goods are ready for collection, or, if the Buyer has for any reason failed to accept delivery of any of the Goods, when they are ready for delivery.

6.3 Where delivery is deemed to have taken place pursuant to Condition 6.2 the Seller may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation, storage and insurance).

6.4 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any reasonable 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.

6.5 The quantity of any consignment of Goods as recorded by the Seller upon despatch from the Seller shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence to the contrary.

6.6 If the Seller delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity accepted by the Seller, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall. The Buyer shall pay for any surplus goods at the pro rata Contract rate or may, at the Buyer’s option, return such surplus goods at its expense and risk to the Seller within 14 days of delivery.

6.7 Any shortages must be notified to the Seller in writing within 7 days of delivery. The Seller will not sanction shortage claims after this period. Any delivery signed unchecked will be deemed as received in full.

6.8 If the Seller is satisfied that the Goods have been short delivered, the Seller shall, with the Buyer’s agreement, either:

6.8.1 make up any short delivery by despatching to the Buyer such Goods as the Seller is satisfied were not delivered; or

6.8.2 allow the Buyer credit in respect thereof.

The Seller’s liability shall be limited to making up the delivery or allowing credit as above.

6.9 Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and defective delivery by the Seller of any one or more of the installments in accordance with these Conditions shall not entitle the Buyer to treat the Contract as a whole as repudiated.

7. Risk

The risk of loss and damage to the Goods (including for loss or damage caused by the Seller’s negligence) shall pass to the Buyer immediately upon delivery or deemed delivery under Condition 6.2.

8. Title

8.1 Notwithstanding delivery and the passing of risk in the Goods, the property in the Goods shall not pass to the Buyer and shall remain in the Seller until either such time as the Seller has received in full (in cash or cleared funds) the full price for all Goods sold by the Seller to the Buyer under any and all contracts between them or the Seller shall have written to the Buyer notifying the Buyer that the property in the Goods has passed to the Buyer.

8.2 Until such payment the Buyer shall

8.2.1 hold the Goods on a fiduciary basis as the Seller’s bailee;

8.2.2 carefully store the Goods separately from all other Goods of the Buyer or any third party in such a way as to enable them to be identified as the property of the Seller;

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

8.2.4 keep them insured against all loss or damage howsoever caused at its own expense.

8.3 The Seller reserves the immediate right of re-possession of any Goods to which the Seller has retained title as aforesaid exercisable at any time after delivery or collection of the Goods and the Buyer hereby grants an irrevocable right and licence to the Seller’s servants and agents to enter upon all or any premises where the Goods are stored without prior notice for this purpose.

8.4 The Buyer may in the ordinary course of its business sell the Goods at market value to any third party as principal but not as agent for the Seller.

9. Liability

9.1 Any claim by the Buyer which is based on any defect in the quality or fitness for purpose of the Goods or their failure to correspond with their specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 14 days after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

9.2 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or fitness for purpose of the Goods or their failure to meet their specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to repair or 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).

9.3 Subject to the foregoing all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Goods (apart from terms implied as to title under the Sale of Goods Act 1979 or terms implied under the Consumer Protection Act 1987) are hereby excluded to the fullest extent permitted by law and the Seller shall be under no liability to the Buyer whether under contract, tort, misrepresentation, restitution or otherwise in connection with the Contract for any direct or indirect loss or damage, pure economic loss, loss of profit, loss of business, depletion of goodwill, or other loss or damage resulting from defective material, faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Seller its employees or agents save that the Seller accepts liability for death or personal injury caused by the negligence of the Seller or for fraudulent misrepresentation.

9.4 The Seller’s prices are determined on the basis of the limits of liability set out in this Condition. The Buyer may by written notice to the Seller request the Seller to agree a higher limit of liability provided insurance cover can be obtained therefor. The Seller shall effect insurance up to such limit and the Buyer shall pay upon demand the amount of any and all premiums. The Buyer shall disclose such information as the insurers shall require. In no case shall the Buyer be entitled to recover from the Seller more than the amount received from the insurers.

10. Force Majeure

10.1 The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of the Goods by the Seller being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond the Seller’s reasonable control including (but not limited to) Act of God, war, riot, strike, lock-out, trade dispute or labour disturbance, accident, break-down of plant or machinery, fire, flood, storm, difficulty or increased expense in obtaining workmen, materials or transport or other circumstances affecting the supply of the Goods or of raw materials therefor by the Seller’s normal source of supply or the manufacture of the Goods by the Seller’s normal means or the delivery of the Goods by the Seller’s normal route or means of delivery.

10.2 If due to such circumstances or events the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks among its customers at its sole discretion.

11. General

11.1 Failure by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.

11.2 The Buyer shall not assign or transfer or purport to assign or transfer the Contract or the benefit of it to any other person without the prior written consent of the Seller.

11.3 If any provision or part of a provision of these Conditions shall be, or be found by any authority or court of competent jurisdiction to be, wholly or partly illegal, invalid, void, voidable, or unenforceable, or unreasonable, it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions or parts of such provisions of these Conditions shall remain in full force and effect.

11.4 Any notice hereunder shall be in writing and shall be deemed to have been duly given if sent by prepaid first class registered post or facsimile to the party concerned at its registered office or principal place of business or such other address as may have been notified pursuant to this provision to the party giving the notice. Notices sent by first class registered post shall be deemed to have been given 48 hours after despatch and notices sent by facsimile shall be deemed to have been given on the date of despatch.

11.5 The Contract shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts provided that the Seller may sue the Buyer in the courts of any country, such proviso being for the sole benefit of the Seller.

11.6 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

12. Entire Agreement

12.1 These Conditions constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of any Contract.

12.2 Each of the parties acknowledges and agrees that in entering into a Contract subject to these Conditions it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to these Conditions or not) other than as expressly set out in these Conditions. The only remedy available to it for breach of these Conditions shall be for breach of contract under the terms of these Conditions. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.

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