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BLUESKY (UK) LTD (Company Number: 07763362)
TERMS & CONDITIONS OF SALE (2013 Edition)
The Buyer’s attention is in particular drawn to the provisions of clause 10.
1.1 In these Conditions the following words shall have the following meanings:
"Buyer" the person, firm or company who purchases Goods and/or Services from Bluesky.
"Conditions" the standard terms and conditions set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in writing between Bluesky and the Buyer.
"Contract" the contract between Bluesky and the Buyer for the sale and purchase of the Goods and/or supply of the Services, incorporating these Conditions.
"Goods" any goods agreed in the Contract to be supplied to the Buyer by Bluesky (including any part or parts of them).
"Bluesky" Bluesky (UK) Limited (company registration no. 07763362) trading as Bluesky Solutions of Horizon House, Units 32-33, Estate Road Five, Grimsby, DN31 2TG and any other or future trading address.
"Services" any services including but not limited to printing, spraying or etching agreed in the Contract to be supplied to the Buyer by Bluesky.
2. Application of Conditions
2.1 These Conditions shall govern the Contract to the exclusion of any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document and the Buyer waives any right which it might have to rely on such terms or conditions.
2.2 No variation to these Conditions or any representation about the Goods and/or the Services shall have effect unless expressly agreed in writing and signed by a duly authorised representative of Bluesky.
2.3 Each order for Goods and/or Services by the Buyer from Bluesky shall be deemed to be an offer by the Buyer to purchase Goods and/or Services subject to these Conditions.
2.4 No order placed by the Buyer shall be deemed to be accepted by Bluesky until a written acknowledgement of order is issued by Bluesky or (if earlier) Bluesky delivers the Goods to the Buyer or commences performance of the Services.
2.5 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate. Where the Buyer supplies artwork, the Buyer shall ensure that the artwork is in all respects accurate and is supplied with all relevant pantone colours.
2.6 Any quotation is given on the basis that no contract will come into existence until Bluesky dispatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 90 days only from its date, provided that Bluesky has not previously withdrawn it.
2.7 Orders accepted by Bluesky may not be cancelled by the Buyer without the prior written consent of Bluesky.
3. Description and Suitability
3.1 The description of the Goods and/or the Services shall be as set out in Bluesky's quotation.
3.2 All drawings, descriptive matter, specifications and advertising issued by Bluesky and any descriptions or illustrations contained in Bluesky's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or the Services described in them. They shall not form part of the Contract.
3.3 The Buyer shall satisfy itself as to the suitability of the Goods for any purpose for which the Buyer intends to use the Goods.
3.4 The Buyer acknowledges that Bluesky is not the manufacturer of the Goods and that Bluesky will source them from third party suppliers. Where the Services comprise printing or spraying of the Goods, Bluesky agrees to use all reasonable endeavours to ensure that the surface of the Goods is suitable for the Services to be applied but shall not be liable to the Buyer if, despite such endeavours, the surface of the Goods by the manufacturer or contamination of the surface not disclosed to Bluesky, or where caused by the contents of the Goods.
3.5 Where a Service such as printing, spraying or other treatment is applied to the Goods the Buyer agrees that the quantity of the Goods to be delivered by Bluesky may be up to 5% more or less than the quantity ordered, to allow for wastage during the application of the Service. Where more than one Service is applied to the Goods, the Buyer agrees that the quantity of the Goods to be delivered by Bluesky may be further reduced by up to 5% each time such a Service is applied to the Goods, to allow for wastage during the application of each such Service. The Buyer shall pay for the actual quantity delivered.
4.1 Unless otherwise stated, Bluesky shall deliver or arrange delivery of the Goods to the Buyer's normal place of business or such other place agreed in writing with the Buyer.
4.2 Any date specified by Bluesky for delivery of the Goods and/or performance of the Services is an estimate only and time for delivery of the Goods and/or performance of the Services shall not be made of the essence by notice.
If no date has been so specified, delivery of the Goods and/or performance of the Services will be within a reasonable time.
4.3 Subject to the other provisions of these Conditions, Bluesky shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods and/or performance of the Services nor will any delay entitle the Buyer to terminate or rescind the Contract.
4.4 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or Bluesky is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations, risk in the Goods will pass to the Buyer and Bluesky may store them until actual delivery and the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
5.1 The quantity of any consignment of Goods as recorded by Bluesky upon despatch from Bluesky's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 Bluesky shall not be liable for any non-delivery of Goods unless written notice is given to Bluesky within 3 working days of delivery.
5.3 Any liability of Bluesky for non-delivery of any Goods shall be limited to replacing those Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 Unless otherwise agreed in writing by Bluesky the price for the Goods and/or the Services shall be the price set out in Bluesky's price list in force at the date of delivery.
6.2 The price for the Goods and/or the Services shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance of the Goods which the Buyer shall pay in addition.
7.1 Bluesky reserves the right to require payment in full of the price with order. Where Bluesky agrees to grant credit terms to the Buyer, Bluesky's normal credit terms are payment in full of the price within 30 days of Bluesky's invoice. Time of payment is of the essence.
7.2 All sums payable to Bluesky under the Contract shall become due immediately upon termination of the Contract despite any other provision.
7.3 The Buyer shall make all payments due under the Contract without any deduction by way of set-off, counterclaim, discount, abatement or otherwise.
7.4 If the Buyer fails to make any payment due to the Bluesky under the Contract by the due date for payment (Due Date), then the Buyer shall pay interest on the overdue amount at the rate of 8% per annum above Lloyds TSB Bank base rate from time to time. Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
8. Risk, Ownership and Insolvency
8.1 The Goods shall be at the risk of the Buyer from the time of delivery.
8.2 Ownership of the Goods shall not pass to the Buyer until Bluesky has received in full (in cash or cleared funds):
8.2.1 all sums payable in respect of the Goods including any interest; and
8.2.2 all other sums which are or which become due to Bluesky from the Buyer on any account including any interest on such sums.
8.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
8.3.1 hold the Goods on a fiduciary basis as Bluesky's bailee,
8.3.2 store the Goods separately to other goods of the Buyer or any third party in a way that they remain readily identifiable as Bluesky's property;
8.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
8.3.4 maintain the Goods in satisfactory condition insured for their full price against all risks and hold the proceeds of insurance on trust for Bluesky and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
8.4 The Buyer may resell the Goods before ownership has passed to it solely on the condition that any sale shall be on the Buyer's own behalf in the ordinary course of the Buyer's business and the Buyer shall deal as principal when making such sale.
8.5 If before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in clause 8.7, or Bluesky reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Bluesky may have, Bluesky may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
8.6 If the Buyer becomes subject to any of the events listed in clause 8.7, or Bluesky reasonably believes that the Buyer is about to become subject to any of them and notifies the Buyer accordingly, then, without limiting any other right or remedy available to the Bluesky, the Bluesky may cancel or suspend all further deliveries under the Contract or under any other contract between the Buyer and the Bluesky without incurring any liability to the Buyer, and all outstanding sums in respect of Goods delivered to the Buyer shall become immediately due.
8.7 For the purposes of clauses 8.5 & 8.6, the relevant events are:
(a) the Buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
(d) (being an individual) the Buyer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer;
(g) (being a company) a floating charge holder over the Buyer's assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Buyer's assets or a receiver is appointed over the Buyer's assets;
(i) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a)to clause 8.2(h) (inclusive);
(j) the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Buyer's financial position deteriorates to such an extent that in the Bluesky's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.8 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9.1 Bluesky warrants (subject to the other provisions of these Conditions) that:
9.1.1 upon delivery the Goods will comply with Bluesky's specification for the Goods; and
9.1.2 the Services will be performed with reasonable care and skill and upon completion will comply with any specification agreed in writing by Bluesky with the Buyer.
9.2 Bluesky shall not be liable for a breach of warranty in condition 9.1 unless:
9.2.1 the Buyer gives written notice of any defect to Bluesky within 3 working days of delivery of the Goods or completion of performance by Bluesky of the Services; and
9.2.2 Bluesky is given a reasonable opportunity of examining the Goods and/or alleged defective Services and the Buyer (if asked to do so by Bluesky) returns the Goods to Bluesky's place of business at the Buyer's expense for the examination to take place there.
9.3 Bluesky shall not be liable for a breach of warranty in condition 9.1 if:
9.3.1 the Buyer makes any further use of the Goods after giving notice of any defect; or
9.3.2 the defect arises because the Buyer failed to follow Bluesky's instructions as to the storage or use of the Goods, or
9.3.3 the Buyer alters or repairs the Goods or attempts to rectify the Services without the written consent of Bluesky.
9.4 Subject to conditions 9.2 and 9.3, if any of the Goods and/or Services do not conform with the warranty in condition 9.1 Bluesky shall of its option repair or replace such Goods (or the defective part) or rectify such Services or refund the price of such Goods and/or Services at the pro rota Contract rate and shall have no further liability for breach of warranty in condition 9.1. If Bluesky so requests, the Buyer shall, at the Buyer's expense, return the Goods or the parts of such Goods which are defective to Bluesky.
10. Limitation of Liability
10.1 Subject to clauses 4 (Delivery), 5 (Non-Delivery) and 9 (Warranty) of these Conditions, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company's negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3:
(a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
(b) the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11. Designs and Tooling
11.1 Unless otherwise agreed in writing by Bluesky, all designs and tooling created by Bluesky or by any third party for Bluesky and all copyright, design rights and other intellectual property rights in such designs and tooling shall belong to and remain with Bluesky.
12. Events beyond Bluesky's control
12.1 Bluesky reserves the right to defer the date of delivery of the Goods and/or performance of the Services or to cancel the Contract or to reduce the volume of Goods and/or scope of Services ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Bluesky including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either party's workforce), restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
13.1 The Buyer shall not assign the Contract or any part of it without the prior written consent of Bluesky.
13.2 Bluesky shall be entitled to assign the Contract or any part of it to any person, firm or company.
13.3 Subject to Condition 13.2, nothing in the Contract confers or purports to confer on any third party any benefit or any right to enforce any of the terms of the Contract.
13.4 The Buyer shall not use Bluesky's name, logo or other intellectual property rights in advertising or publicity without Bluesky's prior written consent.
13.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.6 Failure or delay by Bluesky in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.7 Any waiver by Bluesky of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.8 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
13.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.