TERMS AND CONDITIONS OF SALE OF THE DALESMAN DIRECT LIMITED E-COMMERCE WEBSITE

Dalesman’s Terms and Conditions of Sales shall override any and all terms and conditions as proposed by the Buyer and no addition to or variations of these Conditions shall be made (and if made shall not be valid) unless agreed in writing by Dalesman. The following terms and conditions are incorporated by reference into the Contract (as defined below).

 

  1. Definitions and interpretation
    1. For the purpose of these Conditions:

“Account”

means the account a Buyer registers, for the purpose of purchasing Products by means of the Dalesman e-commerce website.

“Buyer”

means in reference to the individual firm or company to whom a quotation for the sale of Products is addressed or whose purchase order for the purchase of Products is accepted by Dalesman.

“Conditions”

means these standard terms and conditions of sale.

“Contract”

means the particular individual contract for the supply of Products by Dalesman to the Buyer created by the issue by Dalesman to the Buyer of the Sales Order Acknowledgement pursuant to Condition 3.2 below.

“Dalesman”

Means Dalesman Direct Limited, a company incorporated in England with registered number 10873031 whose registered office is at Dalesman House, Chase Way, Bradford, West Yorkshire, United Kingdom, BD5 8HW;

“Group Company”

means in relation to a party, that party, each and any subsidiary or holding company from time to time and each and any subsidiary from time to time of a holding company of that party (with “holding company” and “subsidiary” defined in accordance with Section 1159 of the Companies Act 2006).

“Products”

means goods, foods or materials as specified in a Sales Order Acknowledgement.

“Sales Order Acknowledgement”

means the document entitled Sales Order Acknowledgement generated by Dalesman and sent by post, courier, fax or e‑mail by Dalesman to the Buyer.

“Services”

means any services to be provided by Dalesman to the Buyer as ancillary services in respect of the supply of the Products by Dalesman.

“Special Conditions”

means such additional terms agreed from time to time in writing between Dalesman and the Buyer.

“Website”

means the Dalesman Direct Limited e-commerce website

www.dalesmandirect.com  

 

  1. The headings in these Conditions are inserted for convenience only and shall not affect their construction.
  2. All references to prices, Products and Services contained in these Conditions shall be taken to mean the prices, Products and Services detailed in Dalesman’s Sales Order Acknowledgement.
  3. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
  4. Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
  5. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re‑enactment and includes any subordinate legislation for the time being in force made under it.

 

  1. Application
    1. These Conditions shall govern and be incorporated in every Contract made by or on behalf of Dalesman with the Buyer and unless otherwise expressly agreed in writing between Dalesman and the Buyer shall prevail over any terms and conditions contained or referred to in any documentation submitted by the Buyer or in correspondence or elsewhere or implied by trade custom, practice or course of dealing.
    2. The Contract shall be based solely on these Conditions and any Special Conditions.
    3. Dalesman is prepared to receive the Buyer’s order through a Buyer’s Account but will have no responsibility whatsoever for any error or omission in the transmission of the Buyer’s order.
    4. No Contract shall take effect unless and until a Sales Order Acknowledgement has been issued by Dalesman to the Buyer.
    5. Dalesman shall be entitled to rely in all respects and in all circumstances on the contents of the Sales Order Acknowledgement as stating the quantity and grade of the Products and any Services to be supplied. Accordingly it shall be the Buyer’s sole responsibility to check the Sales Order Acknowledgement and to notify Dalesman forthwith after the receipt of the same where the Products and any Services are not properly stated in the Sales Order Acknowledgement.
    6. The Buyer acknowledges that these Conditions shall prevail over any qualification or condition purported to be imposed by the Buyer in any previous course of dealing between the Buyer and Dalesman.
    7. The Buyer expressly agrees that these Conditions and any Special Conditions shall take precedence over any contractual provisions offered by the Buyer.  Dalesman shall not be bound by and does not agree to any contractual provisions offered by the Buyer save to the extent, if any, that Dalesman expressly agrees to the same in writing.  The Buyer agrees that no actions taken by Dalesman shall be interpreted as Dalesman’s acceptance of any contractual provisions offered by the Buyer.
    8. No order which has been accepted by Dalesman may be cancelled by the Buyer except with the agreement in writing of Dalesman and on terms that the Buyer shall indemnify Dalesman in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses incurred by Dalesman as a result of cancellation.
    9. The Buyer shall at all times comply with any instructions as to storage contained in Dalesman's specifications relating to the Products or contained on the packaging or labels of the Products and comply with all legislation relating to the Products (including without limitation the storage, packaging, labelling and supply of the Products to its own buyers) and shall not use or re-sell or otherwise supply or offer to supply to third parties any of the Products after their "use by" or "best before" dates have expired.
    10. Product images are for illustrative purposes only, may be serving suggestions and may differ from the actual product. Due to differences in monitors, colours of products may also appear different to those shown on the site. 

 

  1. Account
    1. The Buyer shall ensure that any Account details as true, correct, complete and up to date. The Buyer shall immediately amend any changes to those details if they change. The Buyer is responsible for maintaining the confidentiality of their Account and password and for restricting access to your computer, and to the extent permitted by applicable law the Buyer agrees to accept responsibility for all activities that occur under their Account or password.
    2. The Buyer shall inform Dalesman immediately if the Buyer has any reason to believe their username and/or password has become known to anyone else, or are being, or are likely to be, used in an unauthorised manner.
    3. The Buyer can access and update their Account details using the 'My Account' section of the Website.
    4. The Buyer must not use the Website or their Account: (i) in any way that causes, or is likely to cause, any Dalesman service, or any access to the Website to be interrupted, damaged or impaired in any way, or (ii) for fraudulent purposes, or in connection with a criminal offence or other unlawful activity, or (iii) to cause annoyance, inconvenience or anxiety. The Buyer shall wholly indemnify Dalesman against all losses it may incur due to the Buyer’s breach of this clause 3.4.
    5. Dalesman reserve the right to terminate any Account and to remove or edit content or cancel orders within an Account, at Dalesman’s discretion.

 

  1. Orders
    1. Unless otherwise agreed in writing between the parties, the Buyer shall place orders for Products in bulk with a lead time of at least 10 working days.
    2. Dalesman shall, as soon as reasonably practicable after receipt of an order, notify the Buyer of whether it accepts such order and the anticipated delivery date for that order by issuing a Sales Order Acknowledgement.  Each order which is so accepted shall constitute an individually binding Contract.

 

  1. Delivery
    1. The Buyer shall sign all delivery notes presented at the time of delivery of the Products.
    2. Time for delivery of the Products and completion of the Services is given as accurately as possible but is not guaranteed. Except where otherwise agreed in the Sales Order Acknowledgement, Dalesman shall deliver to the Buyer’s premises as stated in the Buyer’s order(s).
    3. The Buyer shall have no right to cancel the Contract for failure of Dalesman to meet any delivery or completion time stated.
    4. Upon receipt of each delivery of Products sold hereunder, the Buyer shall examine such Products for any damage, defects or shortage.  Dalesman will have no liability for damage in transit unless the Buyer notifies Dalesman within three days of receipt of the Products and confirms by notification in writing within seven days of receipt of the goods, following which the provisions of Condition 10.2 shall apply. If the Buyer fails to give either such notice of rejection, the Buyer shall be deemed to have accepted the delivery in full.
    5. Dalesman shall be entitled to deliver the Products by instalments.  Each instalment shall be treated as if it constituted a separate and distinct contract between Dalesman and the Buyer. The Buyer waives its right to reject part only of a consignment of the Products under Section 35A of the Sale of Goods Act 1979.
    6. Failure by the Buyer to take delivery of any one or more instalments of Products delivered in accordance with the Contract shall entitle Dalesman to terminate the Contract either in whole or part.
    7. If Dalesman agrees to deliver the Products:
      1. All Products delivered to the Buyer shall be delivered to the Buyer’s named delivery point.
      2. the Buyer shall provide Dalesman with safe and adequate access to the Delivery Address for delivery of the Products;
      3. Dalesman shall be entitled to deliver the Products to any person whom Dalesman reasonably believes has authority to accept delivery on behalf of the Buyer; and
      4. the risk in the Products shall pass to the Buyer upon the Products being unloaded at the Delivery Address.
    8. Dalesman reserves the right to put the Products, or any portion thereof, into storage at the Buyer's risk and expense in the following cases, or in any other comparable circumstances:
      1. where the Products are about to be despatched and the Buyer notifies Dalesman that the Buyer is or will be unable to accept delivery of the Products when tendered; or
      2. where the Buyer fails to collect the Products when ready; or
      3. where the Buyer refuses without good cause to take delivery of the Products or provide Dalesman with the information or instructions Dalesman requires in order to deliver the Products.

 

  1. Price
    1. Save as otherwise agreed in writing by Dalesman, or as indicated in the Sales Order Acknowledgement or any Special Conditions, the prices of the Products:
      1. will be those prevailing at the time of delivery;
      2. are stated as a price per quantity, tonne, litre, metre, squared metre or kilogram (or as appropriate);
      3. shall exclude all costs associated with expedited delivery including but not limited to costs relating to freight, transportation, insurance, delivery and unloading; and
      4. are exclusive of any sales, excise or other taxes, which Dalesman shall add at the appropriate prevailing rate.
    2. Where a quotation or tender has been submitted, unless otherwise stated in writing by a duly authorised representative of Dalesman, the specified price shall only remain open for acceptance by the Buyer within 14 days from the date of such quotation or tender.
    3. The price of the Products shall be subject to the addition of Value Added Tax and other taxes (if any) and the cost of any special packaging required by the Buyer.
    4. Any increase in costs or expenses arising from any act or omission or any special requirements of the Buyer or any modifications made at the Buyer's request may, at Dalesman's option, be charged to the Buyer.
    5. Prices quoted are subject to revision for errors and omissions at any time without any liability on the part of Dalesman.

 

  1. Retention of title
    1. Risk of damage or loss of the Products shall pass to the Buyer at the time of delivery. Dalesman shall not in any event be liable for any loss or damage to the Products occurring after delivery to the Buyer.
    2. Notwithstanding delivery and passing of the risk of loss, Products will remain the property of Dalesman until Dalesman receives payment in full (in cash or cleared funds) for the Products and any other goods or Services that Dalesman has supplied to the Buyer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums.
    3. If the Buyer collects the Products delivery shall be deemed to be made at Dalesman’s premises and the risk in the Products shall pass to the Buyer upon the Products being loaded on to the Buyer’s delivery vehicle(s) at Dalesman’s premises.
    4. From delivery until title to the Products passes to the Buyer, the Buyer shall insure the Products for full value.  The Buyer shall hold the proceeds of any claim on the insurance policy on trust for Dalesman and shall immediately account to Dalesman for any proceeds.
    5. Until such time as the property in the Products passes to the Buyer, the Buyer shall hold the Products as Dalesman’s trustee and shall keep the Products separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Dalesman property, but shall be entitled to use (or where authorised by Dalesman in writing in advance, resell) the Products in the ordinary course of its business in which case all proceeds from such resale or reuse shall be held by the Buyer in trust for the benefit of Dalesman.
    6. Until such time as title to the Products passes to the Buyer, (and provided the Products are still in separate identifiable existence and have not  been resold) Dalesman shall be entitled at any time to require the Buyer to deliver up the Products to Dalesman and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer where the Products are stored and repossess the Products (all to the fullest extent permitted by law, and where the Products are stored at the premises of a third party the Buyer shall procure a right for Dalesman to enter such third party’s premises to repossess the Products).
    7. The Buyer shall not be entitled to pledge, grant a security interest in, or charge by way of security for any indebtedness any of the Products which remain the property of Dalesman and if the Buyer does so all monies owing by the Buyer to Dalesman shall (forthwith become due and payable, without prejudice to any other right or remedy of Dalesman). If the Buyer's right to possession of the Products shall cease in accordance with clause 6.8, Dalesman may, without prejudice to its other rights, demand immediate payment by the Buyer of all unpaid amounts and suspend further deliveries and cancel all contracts between Dalesman and the Buyer without any liability attaching to Dalesman in respect of such suspension or cancellation and debit the Buyer with any loss sustained thereby.
    8. Notwithstanding any other provision of this Condition 6:
      1. the Buyer shall be entitled to use (or where authorised by Dalesman in writing in advance, resell) the Products in the ordinary course of business, provided that this right shall automatically cease should the Buyer become subject to any of the events listed in Condition 11.1.2; and
      2. Dalesman may elect for title to the Products to pass to the Buyer at any time following delivery to the Buyer.
    9. The Buyer's right to possession of the Products shall cease if it shall fail to pay to Dalesman on the due date any sum payable hereunder, or shall convene a meeting of its creditors, or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986, or if a proposal is made for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors or if the Buyer shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or if a trustee, receiver or administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Buyer, or if a petition is presented or a meeting is convened for the purpose of considering a resolution, or other steps are taken, for the winding up of the Buyer, or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or if Dalesman reasonably believes that any of the foregoing events is likely to occur and notifies the Buyer accordingly.
    10. Any provision of sample materials by Dalesman during the course of any Contract shall not create an obligation on the part of Dalesman to make such sample materials commercially available and Dalesman shall be entitled to cease the provision of sample materials, at any time, in its sole discretion.

 

  1. Services
    1. The provisions of this Condition 7 shall only apply if Dalesman is providing Services to the Buyer.
    2. In providing Services, Dalesman shall:
      1. provide Services with reasonable care and skill;
      2. use reasonable endeavours to meet any performance dates agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services; and
      3. have the right to make any changes to the Services that are necessary to comply with any applicable law or safety requirement, or which do not materially or adversely affect the nature or quality of the Services.

 

  1. Payment
    1. All payments for Products must be made by the Buyer when the order is placed using Sage Pay. Dalesman will not reserve or despatch goods before payment is received.
    2. Dalesman cannot accept cheques or cash as payments.
    3. The Buyer shall not ever send Dalesman payment information using such mediums such as telephone, email and fax. Any and all payments for Products must be made through the Buyer logging onto and placing an order through the website.
    4. For details of the security measures Dalesman employ, please read Dalesman’s Privacy Notice for this e-commerce site and Dalesman’s Cookie Policy.
    5. Dalesman will not be liable to the Buyer for any losses caused as a result of unauthorised access to the personal and transactional information the Buyer provides Dalesman with when placing an order.
    6. Interest is payable on any overdue amounts at the rate of 3% over the Bank of England base rate from time to time, to run from the due date for payment until receipt by Dalesman of the full amount (including any accrued interest) whether before or after any judgment.
    7. Dalesman may suspend the supply of Products to the Buyer where any payment is overdue from the Buyer to Dalesman under any Contract or any contract between Dalesman (or any Group Company of Dalesman) and a Group Company of the Buyer, until all such amounts have been paid.
    8. All sums payable in respect of an order shall be payable in full by the Buyer without deduction of any kind, whether by way of set‑off, counterclaim or otherwise howsoever.  The Buyer shall not be entitled to set‑off an amount owing or alleged to be owing to it by Dalesman against amounts owing by it to Dalesman.

 

  1. Data Protection and Security

10.1           Each party shall for the duration of this Agreement comply with the provisions of the Data Protection Act 2018 (including the Data Protection Principles set out in that Act), the General Data Protection Regulation and any similar or analogous laws, regulatory requirements or codes of practice (the ‘Data Protection Legislation’) governing the use, storage or transmission of “Buyer’s Personal Data” (for clarity, this is Personal Data provided by the Buyer pursuant to the performance of this Agreement by the parties) and shall not do or permit anything to be done which might cause or otherwise result in breach of the same. For clarity this clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

10.2           Dalesman acknowledges that for the purposes of the Data Protection Legislation, it is the Data Processor and the Buyer is the Data Controller of any Buyer’s Personal Data provided to it by the Buyer or obtained by it as part of its obligations under this Agreement.  For clarity Data Controller, Data Processor, Personal Data and Sub-Processor have the meanings as defined in the Data Protection Legislation. In its capacity as Data Processor, Dalesman undertakes to use reasonable endeavours to keep Buyer’s Personal Data secure to ensure that the Buyer is not in breach of its obligations under the current or any future Data Protection Legislation.

10.3           Without limitation to clauses 10.1 and 10.2, Dalesman agrees to:

10.3.1       ensure a level of security appropriate to the nature of the Personal Data to be protected;

10.3.2       take appropriate steps so that Dalesman’s employees and subcontractors who have access to Buyer’s Personal Data comply with this clause 10;

10.3.3      comply with the Buyer’s reasonable instructions pursuant to the Data Protection Legislation in relation to the collection, processing and disposal of any Buyer’s Personal Data.

10.4           Without limitation to clauses 10.1 and 10.2 Dalesman shall, in relation to any Buyer’s Personal Data processed in connection with the performance by Dalesman of its obligations under this Agreement:

10.4.1       process Buyer’s Personal Data only on the written instructions of the Buyer which is to be provided within reasonable notice unless Dalesman is required by the laws of any member of the European Union or by the laws of the European Union applicable to Dalesman to process Buyer’s Personal Data  (the ‘Applicable Laws’);

10.4.2       ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Buyer’s Personal Data and against accidental loss or destruction of, or damage to Buyer’s Personal Data, having regard to the state of technological development and the cost of implementing any measures (those measures may include measures appropriate under the Data Protection Legislation and specifically Article 32 of the GDPR);

10.4.3       ensure that all personnel who have access to and/or process Buyer’s Personal Data  are obliged to keep Buyer’s Personal Data confidential;

10.4.4       not transfer any Buyer’s Personal Data outside of the European Economic Area unless the prior written consent of the Buyer has been obtained and the following conditions are fulfilled:

(i)         the Buyer has provided appropriate safeguards in relation to the transfer;

(ii)        the Data Subject has enforceable rights and effective legal remedies;

(iii)       Dalesman provides an adequate level of protection to any Buyer’s Personal Data that is transferred; and

(iv)      Dalesman complies with reasonable instructions notified to it in advance by the Buyer with respect to the processing of Buyer’s Personal Data;

10.4.5       assist the Buyer, at the Buyer’s cost, in responding to any request from a Data Subject and in ensuring compliance with each party’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

10.4.6       notify the Buyer without undue delay on becoming aware of a breach of Buyer’s Personal Data;

10.4.7       at the written direction of the Buyer, delete or return Buyer’s Personal Data and copies thereof to the Buyer on termination or expiry of the Agreement unless required by Applicable Law to store Buyer’s Personal Data; and

10.5           The Buyer consents to Dalesman appointing third-party processors of Buyer’s Personal Data under this Agreement. As between the Buyer and Dalesman, The Buyer authorises third party contractors to process any of Buyer’s Personal Data (as defined in the Data Protection Legislation) provided that the third party contractor’s agreement with Dalesman is:

10.5.1       on terms similar to these set out in this Agreement; and

10.5.2       terminated automatically on termination of this Agreement.

10.6          The Buyer shall indemnify and keep indemnified Dalesman in respect of all Data Protection Losses suffered or incurred by, awarded against or agreed to be paid by Dalesman and any Sub-Processor arising from or in connection with any:

10.6.1       non-compliance by the Buyer with the Data Protection Laws;

10.6.2       processing carried out by Dalesman or any Sub-Processor pursuant to any processing instructions that infringes any Data Protection Laws; or

10.6.3       any breach by the Buyer of any of its obligations under this clause 10.

10.7           Dalesman may propose at any time and the Buyer shall not unreasonably object to, revisions to this clause 10.

10.8           The Buyer shall maintain complete and accurate records and information to demonstrate its compliance with this clause 10.

10.9           Each party agrees to provide evidence to each other in the event that the other party may reasonably request and upon being given sufficient notice, to demonstrate a party’s compliance with the current Data Protection Legislation.

 

  1. Warranty and liability
    1. Dalesman warrants that:

11.1.1      The Products shall meet and comply in each and every respect with the Contract;

11.1.2      the Products and their supply shall comply in each and every respect with all relevant legal or other requirements that are in force and apply that to the Products, manufacture, storage or supply of the Products.

11.1.3       the Products shall be of satisfactory quality, fit for purpose and free from defects;

11.1.4       all necessary instructions or recommendations relating to the handling, use, storage, life expectancy and durability of the Products will be provided by Dalesman to the Buyer. Such instructions or recommendations shall comply with all relevant statutory or other legal requirements that are in force, and shall be complete and accurate so as to enable the Products to be sold, used, stored and retained safely and without any deterioration in its nature, substance or quality;

11.1.7       all Products have, prior to supply to Dalesman, been sold in the EEA (or post Brexit in the UK) by or with the consent of the owner of the intellectual property rights in the Products;

11.1.9       any documents that Dalesman supplies relating to the Products are valid and that the information contained in such documents is correct;

11.2           It shall be the sole responsibility of the Buyer to determine the suitability of the Products for use in the manufacture of products by the Buyer or any other application and any use that the Buyer may make of the Products is at the Buyer’s own risk.

11.3           Dalesman is not liable to the Buyer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for:

11.3.1       any defect in the Products or Services caused by fair wear and tear, abnormal or unsuitable conditions of storage or use after delivery, or an act, omission or default  of the Buyer or a third party; or

11.3.2       loss of revenues, loss of contracts or loss of profits, whether direct, indirect or consequential loss, nor for any indirect or consequential loss and whether arising from negligence, breach of contract or otherwise.

11.4           The entire liability of Dalesman under or in connection with the Contract, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, is limited to an amount equal to the total of the charges payable by the Buyer under the Contract. If a Court finds that it would not be reasonable for Dalesman to rely upon the exclusions or limitations contained in these Conditions it is expressly agreed that Dalesman's liability in respect of any claim in any event shall be limited to such sum as Dalesman may by reasonable steps be able to obtain under any insurance it may have which covers the Buyer's claim.

11.5           Nothing in these Conditions shall exclude or limit a party’s liability for fraud, for death or personal injury caused by its negligence, any breach of the Data Protection Laws, or for any other matter, if and to the extent that under English Law, liability for it cannot be excluded, restricted or limited in the context of a Contract.  The invalidity, illegality or unenforceability of any part of these Conditions does not affect or impair the continuation in force of the remainder of these Conditions.

  1. Any claim by the Buyer which is based on any defect in the quality or condition of the Products or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to Dalesman within 72 hours from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure and in any event before the expiration of the "use by" or "best before" dates applicable to such Products. If delivery is not refused, and the Buyer does not notify Dalesman accordingly, the Buyer shall not be entitled to reject the Products and Dalesman shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Products had been delivered in accordance with the Contract.
  2. In the case of any claim that the Products are defective or otherwise fail to meet specification, at Dalesman's request, the Buyer shall by such means as Dalesman may reasonably specify forward to Dalesman a sample of the Products in question together with details of the consignment in which the Products were contained. In all such cases the Buyer shall immediately cease to use all similar Products received under the same consignment and the Buyer shall immediately give to Dalesman all facilities which it reasonably requires to check (where appropriate) that the Products have been stored by the Buyer under the correct conditions and to check any tests or assessments of the Products made or to be made by the Buyer.
  3. Except as set out in these Conditions, all conditions, warranties and representations, express or implied by:
    1. statute;
    2. common law; or
    3. otherwise, in relation to:
      1. the Products; or
      2. any intellectual property that may subsist in the Products or in any use or application thereof,

are excluded to the fullest extent permitted by law.

 

  1. Termination
    1. Either party shall be entitled to terminate the Contract by giving written notice to the other if:
      1. the other party commits a material breach of any of the terms and conditions of the Contract and in the case of a material breach capable of remedy, fails to do so within 30 days of written notice being received specifying the material breach and requiring its remedy; and/or
      2. if any encumbrancer takes possession of or a receiver, administrative receiver or similar officer is appointed over any of the property or assets of the other party or if the other party makes any  voluntary  arrangement with its creditors or becomes subject to an administration order or has an administrator appointed or goes into liquidation or has a resolution for its winding‑up passed (except for the purpose of amalgamation or reconstruction not involving insolvency where the resulting entity agrees to be bound by or assumes the obligations imposed on the other party) or becomes insolvent or bankrupt or anything analogous to any of these events under the law of any jurisdiction occurs in relation to the other party or if the other party ceases or threatens to cease to carry on business or if the financial position of the other party deteriorates to such an extent that in the reasonable opinion of the performing party the capability of the other party adequately to fulfil its obligations under the Contract has been placed in jeopardy.
    2. The termination or expiry of the Contract, however arising, will be without prejudice to the rights and remedies of Dalesman accrued prior to termination.  The Conditions that expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination or expiry of the Contract.

 

  1. Intellectual property
    1. All intellectual property rights (including but not limited to patents, trademarks, service marks, rights in designs, copyrights, database rights (whether or not any of these is registered and including applications for registration of the foregoing) and all rights and forms of protection of a similar nature or which have equivalent or similar effect to any of the foregoing which may subsist anywhere in the world) in or to the Products which vest in Dalesman shall remain vested in Dalesman.  The Buyer acknowledges that these Conditions or any Contract do not operate to vest in the Buyer any right, title or interest in or to any such rights.  The Buyer shall not at any time assert any rights in the goodwill attaching to any of Dalesman’s trademarks or other intellectual property, and all such rights shall vest in and ensure exclusively for the benefit of Dalesman.  If the Buyer challenges the validity of Dalesman’s rights in or to, or the validity of any of Dalesman’s trademarks (or any applications or registrations thereof) or any other intellectual property of Dalesman, then Dalesman shall be entitled to terminate the Contract immediately. The Buyer shall not use or sell the Products in such a manner so as to infringe any rights of Dalesman or any third party and in particular shall not alter, obscure, conceal, remove or otherwise interfere with any labelling or markings or packaging on the Products. Where the Products are supplied in any packaging or containers designed by the Buyer or which are marked in accordance with the Buyer's instructions/requests, the Buyer warrants that such packaging, containers and markings will not infringe any third party's intellectual property rights.
    2. The Buyer shall not cause or allow to be analysed any Products, or any samples provided by Dalesman, to determine the chemical composition, formulation or measure the properties of such Products or samples, unless with the prior written consent of Dalesman, which may be given or withheld in the sole and absolute discretion of Dalesman.

 

  1. Confidentiality
    1. Each party agrees that all information received from the other party under the Contract, including the nature of the Products and/or Services to be provided by Dalesman and the existence of any Contract shall be maintained in confidence and not disclosed to others, except as such disclosure may be required by applicable law or court order and the receiving party agrees not to use such information for any purpose other than the fulfilment of a Contract without the prior written consent of the other party.  The obligations of confidentiality shall survive termination or expiry of the Contract.
    2. Each party shall use reasonable care to protect the confidentiality of information received from the other party but in all events no lesser standard of care to protect the confidentiality of information received from the other party than it uses to protect its own confidential information, and shall limit disclosure of such information to those of its personnel and consultants and those of Dalesman’s Group Companies who have an actual need to know and have a written obligation to protect the confidentiality of such information.

 

  1. Anti-bribery
    1. Each party shall comply with all applicable laws, statutes, regulations and codes relating to anti‑bribery and anti‑corruption in any jurisdiction applicable to the parties and the supply of the Products and/or Services (“Applicable Bribery Law”).  No party shall place the other in breach of any Applicable Bribery Law.
    2. Each party shall maintain in place throughout the term of this Contract its own adequate policies and procedures to ensure compliance by it and its personnel with the Applicable Bribery Law, and will enforce those policies and procedures as necessary to avoid any breach by it or its personnel of Applicable Bribery Law.  Each party shall promptly answer reasonable enquiries from the other party relating to those policies and procedures.
    3. The Buyer shall promptly report to Dalesman any request or demand for any undue financial or other advantage of any kind received by the Buyer in connection with the performance of this Contract.
    4. Breach of this Condition 15 shall be deemed a material breach and not capable of remedy.

 

  1. Force majeure

If Dalesman is prevented, hindered or delayed from or in supplying Products by an event or circumstance beyond its control (including, without limitation, strikes, lockouts and other industrial disputes, accidents, act of God, war, riot, civil commotion, malicious damage, compliance with a law or governmental order, rule, regulation or direction, reductions in or unavailability of power at manufacturing plant, breakdown of plant or machinery, or shortage or unavailability of raw materials from normal sources or routes of supply or delay by the Buyer in the performance of any of its obligations under the Contract (each of the foregoing being a “Force Majeure Event”)) Dalesman may, at its option and without any liability for any loss or damage suffered by Buyer:

  1. suspend deliveries while the Force Majeure Event (or its effects) continues (or continue); or
  2. terminate any Contract so affected with immediate effect by written notice to the Buyer.

 

  1. Variation, Remedies and waivers

No delay or omission by either party in exercising any right, power or remedy provided by law or under these Conditions shall:

  1. affect that right, power or remedy; or
  2. operate as a waiver of it.

The single or partial exercise of any right, power or remedy provided by law or under these Conditions shall not preclude any other or further exercise of it or the exercise of any other right, power or remedy.  The rights, powers and remedies provided in these Conditions are cumulative and not exclusive of any rights, powers and remedies provided by law.

17.3        Dalesman reserve the right to make changes to these Terms and Conditions of Sale at any time. The Buyer will be subject to the Terms and Conditions in force at the time that the Buyer uses the Website.

 

  1. Contracts (Rights of Third Parties) Act 1999
    1. The Buyer agrees that the controls, benefits, rights and licences granted to Dalesman under the Contract are also granted to each member of Dalesman’s Group and that any loss suffered by Dalesman or a member of Dalesman’s Group as a result of any action or omission under the Contract shall be deemed to be a loss of Dalesman and recoverable from the Buyer under the Contract (subject to the agreed exclusions and limits on liability).
    2. Other than as set out in Condition 18.1 above, a person who is not a party to the Contract will have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any of its terms.

 

  1. No partnership

Nothing in these Conditions and no action taken by the parties pursuant to these Conditions and any Contract made under them shall constitute a partnership, association, joint venture or other co-operative entity between the parties.

 

  1. Indemnity

The Buyer agrees to indemnify, hold harmless, and defend Dalesman, any Group Company of Dalesman, and each of its or their respective officers, directors, agents, employees, representatives, successors, and assigns (collectively, “Indemnified Parties”) from and against any and all claims, demands, damages, fines, penalties, losses, causes of action, liabilities, and judgments (collectively, “Claims”) of every kind (including all expenses of litigation, court costs, and reasonable legal fees), for damage to any property or injury to or death of any person (including, but not limited to, employees of the Buyer) resulting from, arising out of, or in any way connected with the acts or omissions to act, of the Buyer, its officers, agents, employees, representatives, and contractors (collectively, the “Buyer Parties”), including to the extent any such Claims are based in part upon the  joint or concurrent negligence or strict liability of Indemnified Parties, or whether any such Claims are by way of tort or contract or otherwise.  The Buyer will not be required to indemnify Indemnified Parties for any Claims determined by final judgment of a court to have been caused by the wilful misconduct or gross negligence of Indemnified Parties.  The Buyer shall also indemnify, hold harmless, and defend Indemnified Parties from and against any and all Claims resulting from, arising out of, or in any way connected with, any breach of the Agreement by any of the Buyer Parties, including breaches of any representation or warranty made hereunder, or the failure of any of the Buyer Parties to comply with any third party requirements or with any laws including, but not limited to, fines, penalties, and monetary sanctions imposed by any governmental entity, or political subdivision or agency thereof, associated with any such failure.

  1. Governing law

These Conditions and any Contract made under them are governed by, and shall be construed in accordance with, English law.  All disputes are to be settled by arbitration in London (in English) under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with such rules.