General Terms And Conditions
General Terms and Conditions
Standard Terms and Conditions of Sale (2021 Edition, version 1)
Please read the following important terms and conditions before you Place an Order for Goods.
1. Application of these conditions
1.1. These Conditions apply to and form part of the Contract between the Supplier and the Dealer. They supersede any previously issued terms and conditions of purchase or supply.
1.2. No terms or conditions endorsed on, delivered with, or contained in the Dealer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
1.3. No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Supplier and the Dealer.
2. Application of Authorised Dealership
2.1. The Dealer has completed and submitted the application of authorised dealership in the form and manner acceptable to the Dealer (Application Form). The Dealer warrants and represents on a continuing basis that the information in the Application Form is true accurate and complete, and shall notify the Dealer forthwith of any change in the information set out in the Application Form.
2.2. The purpose of the Application Form is to ensure that the Dealer satisfies the professional standards expected by the Supplier, to ensure the reputation of the Supplier’s brand and the Goods sold is maintained.
3. How a contract is formed
3.1. Each Order shall be an offer to purchase the Goods subject to the Contract including these Conditions.
3.2. The offer constituted by an Order shall remain in effect and capable of being accepted by the Supplier for 7 Business Days from the date on which the Dealer submitted the Order, after which time it shall automatically lapse and be withdrawn.
3.3. The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Goods shall arise, until the earlier of: (a) the Supplier’s written acceptance of the Order; or (b) the Supplier dispatching the Goods or notifying the Dealer that they are available for collection (as the case may be), and each Order, when accepted, shall constitute a separate Contract.
3.4. Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Dealer.
3.5. Any quotations issued by the Supplier to the Dealer are invitations to treat, do not constitute an offer to supply the Goods and are incapable of being accepted by the Dealer.
4. Price and Payment
4.1. The price for the Goods shall be as set out in the Order in accordance with the most recent Published Price List, or as advised by the Supplier from time to time at the date the Order is placed (Price).
4.2. Unless otherwise stated in the Published Price List, the Price is exclusive of packaging, delivery, insurance, shipping carriage, VAT (or equivalent sales tax) and all other related charges or taxes which shall be charged in addition at the Supplier’s standard rates.
4.3. The Supplier shall invoice the Dealer for the Goods, partially or in full, at any time following acceptance of the Order.
4.4. The Dealer shall pay all invoices in full (including applicable VAT) without deduction or set-off, in cleared funds within 20 Business Days of the date of each invoice and to the bank account nominated by the Supplier.
4.5. Where sums due under the Contract are not paid in full by the due date, the Supplier may, without limiting its other rights, charge interest on such sums at 8% a year above the base rate of the Bank of England from time to time in force.
4.6. Interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, regardless of termination of the Contract and whether before or after judgment and the Supplier shall be entitled to recover, on a full indemnity basis, its costs incurred with the Dealer’s failure to pay in accordance with this clause
5. Credit limit
5.1. The Supplier may: (a) set and vary credit limits from time to time and withhold all further supplies if the Dealer exceeds such credit limit or breaches the payment terms in clause 4; and (b) exercise its sole and absolute discretion to authorise Dealers to hold a Trade Account with the Supplier.
6.1. The Goods shall be delivered by the Supplier, or its nominated carrier, to the Location and shall be deemed delivered on arrival of the Goods at the Location. The time of delivery is not of the essence. If the Dealer fails to accept delivery of the Goods the Supplier shall store and insure the Goods pending delivery, and the Dealer shall pay all costs and expenses incurred by the Supplier in doing so.
6.2. The Goods may be delivered in any number of consignments and the Dealer shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied in any one consignment. Any delay or defect in a consignment shall not entitle the Dealer to cancel the Order.
6.3. The Supplier shall use its reasonable endeavours to meet delivery dates but such dates are indicative only and the if the Goods fail to be delivered on any date given the Dealer shall notify the Supplier in writing within 5 days of the delivery date.
6.4. Delivery of the Products shall be accompanied by a delivery/collection note stating the date of the Order, the product numbers, type and quantity of the Products in the consignment and any special handling instructions.
7. Risk and Title
7.1. Risk in the Goods shall pass to the Dealer on delivery. Title in the Goods shall pass to the Dealer once the Supplier has received payment in full and cleared funds for the Goods. If payment is made in full before the Goods are delivered, title will pass on delivery.
7.2. Until title has passed to the Dealer, the Dealer shall hold the Goods as bailee for the Supplier and store the Goods separately from all other material in the Dealer’s possession. The Dealer shall take all reasonable care of the Goods and keep them in the condition in which they were delivered and insure the Goods from the date of delivery: (i) with a reputable insurer; (ii) against all risks; (iii) for an amount at least equal to their Price; (iv) noting the Supplier’s interest on the policy; and (v) ensure that the Goods are clearly identifiable as belonging to the Supplier. Packaging must not be removed.
7.3. If the Dealer becomes the subject of an Insolvency Event it shall on reasonable notice permit the Supplier to inspect the Goods during the Dealer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.
7.4. Notwithstanding clause 7.2, the Dealer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an Insolvency Event has occurred or is likely to occur.
7.5. If the Dealer resells the Goods in accordance with clause 7.4, title to the Goods shall pass to the Dealer immediately prior to the resale.
7.6. If, at any time before title to the Goods has passed to the Dealer, the Contract terminates and/or the Dealer informs the Supplier, or the Supplier reasonably believes, that the Dealer has or is likely to become subject to an Insolvency Event, the Supplier may: (a) require the Dealer (at the Dealer’s expense) to re-deliver the Goods to the Supplier; and (b) if the Dealer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
8.1. The Supplier warrants that the Goods shall, upon delivery conform in all material respects to the Order and be free from material defects in design, material and workmanship.
8.2. As the Dealer’s sole and exclusive remedy, the Supplier shall, at its option, repair, replace, or refund the Price of any of the Goods that do not comply with clause 8.1, provided that the Dealer gives the Supplier a reasonable opportunity to examine the defective Goods and returns the alleged defective Goods to the Supplier.
8.3. Except as set out in this clause 8, the Supplier gives no warranties and makes no representations in relation to the Goods and all warranties and conditions whether express or implied by Applicable Law are excluded to the extent permitted by Applicable Law.
9. Obligations of the Dealer
9.1. The Dealer shall: (a) sell and advertise the Goods in accordance with the Required Standard to be reasonably expected of a business in the retail industry; (b) ensure that its websites satisfy the Required Standards; (c) use its best endeavours to: (i) to achieve the Minimum Turnover Thresholds set by the Supplier where the Application Form states that the Dealer holds an LTW Account or a Trade Account; and (ii)adopt environmentally friendly business processes which include recycling all recyclable materials attaining carbon neutrality; and (iii) sell the Goods to its customers located within the UK (including Northern Ireland) and Europe only.
9.2. The Dealer agrees and warrants that it shall not directly or indirectly establish any sales outlet or sales presence for the Goods on any websites other than those stated on the Application Form.
9.3. The Dealer shall comply with (and ensure that its personnel, associates and subcontractors comply with): (a) all Applicable Law (in particular the Modern Slavery Act 2015.)
10. Indemnity and insurance
10.1. The Dealer shall indemnify the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses which the Supplier may suffer or incur directly or indirectly from the Dealer’s breach of any of its obligations under the Contract.
10.2. The Dealer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract.
11. Limitation of liability
11.1. The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
11.2. Subject to clauses 11.3 and 11.4, the Supplier’s total liability shall not exceed the total amount paid by the Dealer to the Supplier under the Contract.
11.3. Subject to clauses 11.3 and 11.4, the Supplier shall not be liable for: (a) consequential, indirect or special losses; (b) any of the following losses (whether direct or indirect) profit, data; use, production, contract, opportunity, saving, discount or rebate (whether actual or anticipated) or loss of goodwill.
11.4. Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of death or personal injury caused by negligence, fraud or fraudulent misrepresentation, any other losses which cannot be excluded or limited by Applicable Law and any losses caused by wilful misconduct.
12. Force majeure
12.1. The Supplier shall not be liable or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. If the Force Majeure event continues for a continuous period of more than 30 Business Days, either party may terminate the Contract by written notice to the other party.
13.1. The Supplier may terminate the Contract (or any other contract which it has with the Dealer) at any time: by giving notice in writing to the Dealer if: (a) the Dealer: (i) commits a material breach of the Contract and such breach is not remediable or, if capable of remedy, is not remedied within 14 Business Days of receiving written notice of such breach; (ii) has failed to pay any amount due under the Contract on the due date and such amount remains unpaid 20 days after the date that the Supplier has given notification to the Dealer that the payment is overdue; (iii) is subject to an Insolvency Event; and/or (iv) is the subject of a change of Control; and/or (b) by giving notice in writing to the Dealer if any consent, licence or authorisation held by the Dealer is revoked or modified such that the Dealer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled, and termination or expiry of the Contract shall not affect any accrued liabilities of the Supplier at any time up to the date of termination and any amounts which are not due and payable at the date of termination shall immediately become due and payable.
13.2. The Dealer shall notify the Supplier forthwith in writing if it becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 13.
14.1. The Dealer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part.
14.2. The Dealer shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
14.3. The Dealer undertakes that it shall: (a) keep the Supplier’s Confidential Information confidential at all times; (b) not disclose (whether directly or indirectly) the Confidential Information or allow it to be disclosed in whole or in part to any third party; (c) take and maintain proper and reasonable measures to ensure the confidentiality of the Confidential Information; (d) not use or seek to derive benefit or commercial advantage from the Confidential Information; and (e) not copy or reproduce in any form the Confidential Information.
14.4. The Supplier reserves the right at our sole discretion to amend or replace any part of these terms and conditions.
14.5. The Supplier’s rights and remedies provided in the Contract are cumulative and not exclusive of any rights and remedies provided by law.
14.6. Any notice or other communication given by a party under these Conditions shall be in writing and in English. The notice must be signed by, or on behalf of, the party giving it (except for notices sent by email) and be sent to the relevant party at the address set out in the Order. This clause 14 does not apply to notices given in legal proceedings or arbitration.
14.7. Time is of the essence of any date or period specified in the Contract in relation to the Dealer’s obligations only.
14.8. The Contract and any documents entered into pursuant to it constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. Nothing in these Conditions limits or excludes any liability for fraud.
14.9. Nothing in this agreement constitutes, or will be deemed to constitute, a partnership between the parties nor make any party the agent of another party.
14.10. If any provision of these conditions (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these conditions shall not be affected.
14.11. No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under these terms shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy. No single or partial exercise of any right, power or remedy provided by law or under this agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
14.12. If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail to the extent of the conflict.
14.13. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
14.14. The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
15. Definitions and interpretation
15.1. In these Conditions the following definitions apply: Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force; Business Day means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England; Conditions means the Supplier’s terms and conditions of sale set out in this document; Confidential Information means any commercial, financial or technical information, information relating to the Goods, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract; Contract means the agreement between the Supplier and the Dealer for the sale and purchase of the Goods incorporating these Conditions and the Order, and including all its schedules, attachments, annexures and statements of work but excluding all marketing and other promotional material; Control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company; Dealer means the named party in the Order which has agreed to purchase the Goods from the Supplier and whose details are set out in the Order; Force Majeure means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations under the Contract (which includes but shall not be limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster, epidemic, and/or pandemic; Goods means the goods and other physical material set out in the Order and to be supplied by the Supplier to the Dealer in accordance with the Contract; Insolvency Event means any of the following events whereby the Dealer: (a) stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so; (b) is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case; (c) becomes the subject of a company voluntary arrangement under the Insolvency Act 1986; (d) becomes subject to a moratorium under Part A1 of the Insolvency Act 1986; (e) becomes subject to a restructuring plan under Part 26A of the Companies Act 2006; (f) becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006; (g) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income; (h) has a resolution passed for its winding up; (i) has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it; (j) is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced; (k) has a freezing order made against it; (l) is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items; or (m) is subject to any events or circumstances analogous to those in limbs (a)) to (l)) in any jurisdiction. Location means the address or addresses for delivery of the Goods as set out in the Order; LTW Account means a Dealer who supports the Oceanic and Hollis brands life time warranty service kits programme; Minimum Turnover Thresholds means the minimum turnover threshold as set out in the Application Form; Order means an order placed by the Dealer for the supply of Goods by the Supplier in the form or manner prescribed by the Seller; Price has the meaning given in clause 4.1; Published Price List means the price of the Goods (as amended from time) and produced by the Supplier following a request from the Dealer; Required Standard means the standard to be reasonably expected of a competent and customer-focussed business in the retail industry; Specification means the description, any samples,, instructions, manuals, literature, technical details or other related materials relating to and/or provided for the Goods (and their packaging) set out or referred to in the Contract; Supplier means Poseidon Diving Systems GmbH, trading as “Poseidon Diving Systems” a company registered in the Federal Republic of Germany under company number: Handelsregister: HRB 16348 12276 /Amtsgericht 63739 Aschaffenburg and whose registered office is at Akazienweg 7, 63796 Kahl, Germany; Trade Account means an account held by a Dealer under which the Dealer agrees to purchase more than 3,000 GBP per annum of Goods from the Supplier; VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods; and Warranty Period has the meaning given in clause 8.1.
15.2. In these Conditions, unless the context requires otherwise: (a) a reference to: (i) the ‘Contract’ includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any); (ii) a party includes that party’s personal representatives, successors and permitted assigns; (iii) ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email); (iv) ‘legislation’ is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and includes all subordinate legislation made from time to time under that legislation; and the ‘parties’ means the Supplier and the Dealer together and a ‘party’ means either of them; (b) any: (i) clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions; and (ii) words that follow ‘include’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; and (iii) words in the singular include the plural and vice versa.