The Primary School Homework Book Co Ltd
Terms and Conditions of Sale
1. DEFINITIONS AND CONTRACT SUMMARY
Buyer means the educational establishment placing an order or orders for Products with the Seller.
Conditions means the terms and conditions relating to the purchase by the Buyer and the supply of Products by the Seller of the Products ordered by the Buyer as further set out hereto.
Products means those goods and materials which are the subject of the Buyer's order and which are to be supplied to the Buyer by the Seller under these Conditions.
Seller means The Primary School Homework Book Company Limited (Company No. 5244924) whose registered address is Kenton House, 666 Kenton Road, Harrow, Middlesex HA3 9QN.
CONTRACT SUMMARY
These Conditions detail the:
A) basis upon which the Seller agrees to provide Products to the Buyer;
B) rights and obligations upon the Seller and the Buyer in respect of any sale and supply of Products;
C) ordering process and delivery details of ordered Products;
D) price and payment details for the Products; and
E) cancellation or amendment process relating to any ordered Products.
2. FORMATION OF CONTRACT
2.1 The Seller shall only accept, at its discretion, all orders for Products which are submitted using the Seller’s order form which appears on the Seller’s website bearing the URL www.workabook.co.uk (the “Website”). The placing of an order for any Products by the Buyer shall indicate unqualified acceptance of these Conditions by the Buyer.
2.2 A contract of these Conditions shall be formed between the Seller and the Buyer for the sale of the Products when:
(a) the Buyer has sent its acceptance of these Conditions; and
(b) the Seller has received payment (by cleared funds) from the Buyer; and
(c) the Seller has issued its acceptance of the Buyer's order (in the form of an invoice marked "Paid") which it shall do where cleared funds have been received from the Buyer.
2.3 All Products sold by the Seller are sold subject to these Conditions. Unless otherwise agreed in accordance with clause 16 any terms and conditions which may be stipulated or referred to by the Buyer, whether in negotiations, course of dealing or otherwise, shall not be binding upon the Seller.
2.4 For the avoidance of doubt, the Buyer and the Seller agree that, to the extent permitted by law, the provisions of sections 9(1) and (2) (Information Requirements) and section 11 (Placing an Order) of the E-Commerce Regulations 2002 do not apply these to Conditions.
2.5 The Buyer acknowledges that there are no representations outside these Conditions which have induced the Buyer to place an order with the Seller. These Conditions shall constitute the entire understanding between the Buyer and Seller for the sale and supply of the Products. For the avoidance of doubt, nothing in this clause 2.5 shall exclude nor limit either the Buyer and/or the Seller’s liability for fraud including without limitation fraudulent misrepresentation.
2.6 Each order placed by the Buyer for the sale and supply of Products shall be the subject of a new contract between the Buyer and the Seller subject to these Conditions.
3. Order process, variation and cancellation; quotations3.1 Order Process : orders are accepted by the Seller subject to the availability of Products for delivery. The process for ordering Products is as set out in the "Place an Order" section of the Website.
3.2 Cancellation/Order Variation : the process for cancelling and/or amending the order for any Products is as set out in the "Place an Order" section of the Website.
3.3 All quotations provided by the Seller shall be in writing and shall be deemed to be withdrawn in accordance with the procedures set out under the "Place an Order" section of the Website.
4 Descriptions and samples
4.1 All descriptions and illustrations, drawings and particulars contained on the Seller's Website, or in any catalogues, price lists and advertisements or submitted with any quotation to the Buyer or otherwise communicated to the Buyer are intended merely to present a general idea of the scope of supply described therein and nothing contained in any of them shall be binding on the Seller or form any part of these Conditions or otherwise form any warranty from the Seller to the Buyer in relation to the same.
4.2 Notwithstanding that a sample of any Product may be inspected by the Buyer from the Website, it is agreed that such sample was so provided solely to enable the Buyer to assess the relevant Product and not as to constitute a sale by sample. Refunds shall not be issued to the Buyer where any Product has been purchased as a sample unless such Product is damaged or defective in accordance with clause 6 below.
5. Delivery5.1 Unless otherwise agreed in writing, delivery of Products shall, subject to the remaining provisions of these Conditions, be made to such delivery address as stipulated by the Buyer on the Seller’s order form. The Seller’s liability in respect of non delivered Products is as set out at clause 10.4. All deliveries shall be made by the Seller or its sub contractors, during the period as set out in the order acknowledgement sent by the Seller to the Buyer in accordance with clause 2.2(c).
5.2 The Buyer shall ensure that full and clear delivery details, including without limitation the stipulated delivery address, are included in any order form submitted by the Buyer to the Seller. The Buyer shall further ensure that it is able and willing to accept deliveries from the Seller on any due delivery date. The Seller shall not be liable to the Buyer for any loss or damage suffered by the Buyer arising from the late delivery or non delivery of any order Products where the Buyer is in breach of this clause 5.2.
5.3 The Seller shall use reasonable endeavours to deliver all order Products within the timescales stipulated by the Seller in the acceptance notification sent to the Buyer. However, all delivery dates are estimates only and time of delivery shall not be of the essence.
5.4 If the Buyer refuses or fails to take delivery of the Products on the due delivery date or the Buyer is in breach of clause 5.2 for a period of more than 14 days after the Seller has requested the Buyer to provide the requisite information regarding delivery, the Seller shall refund the Buyer the price paid for the Products minus the delivery costs and the Products, which are the subject of the failed delivery, shall be returned to stock.
5.5 The Seller reserves the right to deliver in instalments at its discretion. Without prejudice to the forgoing,the Buyer shall accept the supply of such quantity of the Products (whether more or less) as reasonably approximates to the stipulated amount of the Buyer's order on a rateable adjustment of the total price.
6. Title, risk and defective products
6.1 Subject at all times to clause 17.3, the Seller shall retain title to and ownership of the Products until it has received payment, by way of cleared funds, in full of all sums due for all Products supplied to the Buyer. The risk of loss or damage to the Products shall pass to the Buyer upon delivery of the Products in accordance with these Conditions.
6.2 Subject to as set out in this clause 6 and the provisions of clause 10, the Seller shall not be liable for any loss of any kind to the Buyer arising from any damage to the Products occurring after risk has passed to the Buyer however caused, nor shall any liability of the Buyer to the Seller be diminished or extinguished by reason of such loss.
6.3 The Buyer shall inspect the Products immediately on receipt thereof and shall within seven calendar days give written notice to the Seller detailing all grounds on which the Buyer alleges that the Products are damaged or not in accordance with these Conditions. If the Buyer fails to give such notice within seven calendar days of delivery, the Buyer shall be deemed to have accepted the delivered Products. In the event that the Buyer establishes, within the time periods set out in this clause 6.3, to the Seller's reasonable satisfaction that the Products are not in accordance with these Conditions or are damaged, the Buyer's sole remedy in respect of such non-accordance or damage shall be as detailed in clause 10.
7. Price
7.1 The price payable for the Products shall be as stated in the Seller's notification of acceptance of the Buyer’s order form and shall correspond with the Seller’s then current price list for the Products or any quotation relating to the Products which is relied upon by the Buyer in accordance with clause 3.3.
7.2 The price for the Products is exclusive of:
(a) the cost of packing, carriage, and, unless otherwise agreed in writing, delivery;
(b) where applicable, Value Added Tax, customs duties and all other taxes, duties and expenses in respect of the Products all of which shall be added to the price payable by the Buyer's for the Products.
7.3 Subject to clause 7.1, the Seller shall be free to amend the price, payable in respect of any Products, which have not been ordered by the Buyer.
8. Payment
8.1 Unless otherwise agreed in writing, the Buyer shall make payment by cheque, postal order, banker’s draft or bank transfer for the ordered Products at the time of submission of the Buyer’s order form and, in any event, all payment must occur prior to delivery of the Products. The Seller shall provide clear payment details to the Buyer in its notification of acceptance of the Buyer’s order form.
8.2 For the avoidance of doubt, the Seller shall be under no obligation pursuant to these Conditions or otherwise to deliver any Products to the Buyer until receipt of cleared funds from the Buyer in respect of all relevant orders placed by the Buyer for Products.
9. Warranties
9.1 The Buyer hereby warrants and undertakes to the Seller:
(a) it has all due capacity and authority to enter into these Conditions with the Seller;
(b) it is not contracting with the Seller as a consumer and is purchasing all Products on a business to business basis. The Buyer agrees to immediately contact the Seller where it regards itself as contracting on a consumer basis with the Seller in any regard;
(c) it has sufficient skill, experience and expertise to assess whether the Products will be fit for its intended purpose in the fields education and teaching; and
(d) nothing in these Conditions conflict with any obligations which the Buyer may owe to any third party.
9.2 The Seller warrants and undertakes that the Products will, as at date of delivery, be free from defects in materials and workmanship and comply in all material respects with the Seller's description of the Products as may appear on the Website at the time at which the Buyer placed its relevant order.
9.3 For the avoidance of doubt, the Seller gives no recommendations and/or advice to the Buyer as to methods of using or applying the Products nor for the purposes for which the Products may be applied by the Buyer. The Buyer acknowledges and agrees that:
(a) any and all notes, guidance sheets, answer sheets, presentations and/or any other documentation issued by the Seller relating to use of the Products are NOT intended and/or NOT provided by the Company as teaching or educational advice; and
(b) the documentation set out in clause 9.3(a) is NOT designed to replace a teacher's knowledge and/or experience in relation to any topic covered by any Product; and
(c) all warranties and/or representations made by the Company as to use of the Products are for guidance purposes only.
9.4 Except as provided for in these Conditions and as permitted by law, there are no other warranties, terms, conditions or representations, express or implied, of satisfactory quality or of fitness for a particular purpose, or of any other kind except as to title. In particular, all conditions, terms and warranties (save as to title) which would otherwise be implied by statute or under the common law are hereby excluded in so far as permitted by law.
10. Liability
10.1 Subject to clause 10.2, the Seller shall under no circumstances be liable to the Buyer for any direct loss of profits nor for any indirect, special or consequential loss suffered by the Buyer howsoever arising either from the breach or non-performance of any of its obligations under these Conditions and/or from the use of the Products purchased by the Buyer.
10.2 Nothing in these Conditions shall have the effect of excluding or limiting the Seller’s liability for fraud (including without limitation fraudulent misrepresentation) or for loss arising from death or personal injury resulting from the proven negligence of the Seller or under the Consumer Protection Act 1987 to a person who has suffered damage caused by a defective product, or to a dependent or relative of such person.
10.3 Subject to clauses 10.1, 10.2 and 10.4, the Seller’s maximum liability under or in connection with these Conditions, whether for breach of contract, negligence or otherwise, shall not exceed the price paid or payable for the Products ordered by the Buyer in the twelve month period preceding the act or omission giving rise to the Seller’s liability hereunder.
10.4 In respect of all Products which are damaged or defective and notified by the Buyer to the Seller in accordance with clause 6.3, the Seller's liability shall be limited to re-sending the ordered Products in accordance with these Conditions. This clause 10.4 shall not affect the Buyer's rights pursuant to clause 6.3 in respect of any re-sent Products.
11. Termination
11.1 The Seller shall have the right to terminate these Conditions forthwith and without liability upon written notice to the Buyer in the event that:
(a) the Buyer commits an irremediable material breach of these Conditions; or
(b) the Buyer commits a remediable breach of any term of these Conditions and such breach has not have been remedied within 14 days of a written request by the Seller to remedy the same; or
(c) the Buyer becomes subject to any voluntary arrangement, is unable to pay its debts as and when they fall due within the meaning of Section 123 of the Insolvency Act 1986, has a receiver, manager, administrator or administrative receiver appointed over its assets, undertakings or income, has passed a resolution for its winding-up, or has a petition presented to any Court for its winding-up or for an administration order (other than in the case of a reconstruction, amalgamation or consolidation on terms approved by the other party prior to the step being taken) or has otherwise ceased or threatens to cease the operation of a significant proportion of its business.
11.2 The Buyer and Seller agree that the following provisions shall survive termination of this Agreement: clauses 1, 4, 6.1, 6.2, 8.2, 9.1, 9.3, 10, 11.2, 12, 13, 14, 15, 17, 18, 19 and 20.
12. Legal Compliance; health and safety
The Buyer must comply with all instructions, information and warnings which the Seller provide in respect of the Products. The Buyer shall be responsible for ensuring that the Products are used in compliance with all relevant laws and regulations. The Buyer shall further ensure that the Products are at all times labelled and/or used in such a way as to ensure the safety of any person (including without limitation any child) who may utilise all Products purchased by the Buyer pursuant to these Conditions. The Buyer will indemnify the Seller against any claim made or loss suffered by the Seller as a result of the Buyer’s failure to comply with this clause 12.
13. Force majeure
The Seller shall not be liable to the Buyer for any loss or damage caused to or suffered by the Buyer (and the Seller shall not be deemed to have breached these Conditions) as a direct or indirect result of the Seller being prevented, restricted, hindered or delayed by performing any of its obligations under these Conditions by reason of any circumstances beyond the reasonable control of the Seller including without limitation any act of God, act of war, an event of terrorism, riot, explosion, fire, flood, strike, lock-out and/or any shortage of materials or labour.
14. Waiver
The failure of the Seller to insist upon the strict performance of any of these Conditions shall not be construed as a waiver of any such term or condition and shall in no way affect the Seller's right to enforce such provision later. All waivers given by Seller shall only be valid and effective if set down in writing and bearing the authorised signatures of the directors of the Seller.
15. Severability
If any term or condition of these Conditions (or part thereof) is found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such term or condition (or part thereof) shall not affect any other term or condition (or the other part of the term or condition of such invalid, ineffective or unenforceable section) of these Conditions and all such other terms and conditions (or parts thereof) shall remain in full force and effect.
16. Variation of these Conditions
No modification of these Conditions shall be effective unless made and signed in writing by the Buyer and the Seller. The signing by the Seller of any of the Buyer's documentation shall not imply any modification of these Conditions.
17. Confidentiality and Intellectual Property
17.1 For the purposes of this clause 17:
Confidential Information means all information which the Seller provides or has, prior to the date of these Conditions, provided to or which has been made available to the Buyer, directly or indirectly, in any form (including, without limitation, written, graphic, photographic or any machine readable form or orally conveyed) which relates to the Products, business, business operations, strategies and/or methodologies, pricing and/or customers of the Seller; and
Intellectual Property Rights means i) copyright, patents, know-how, Confidential Information, database rights, rights in domain names, rights in trade marks and designs (whether registered or unregistered), (ii) applications for registration, and the right to apply for registration, for any of the same, and (iii) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
17.2 The Buyer shall maintain the Seller's Confidential Information securely, in accordance with this clause 17 and in accordance with all applicable laws. The Buyer shall not use nor disclose the Seller's Confidential Information for any purpose other than for the purchase and supply of any ordered Products. The Buyer shall further procure that any third party, to whom it discloses the Seller's Confidential Information, shall be bound by the provisions of this clause 17 as if such third party were party to this clause 17.
17.3 Notwithstanding any other provision of these Conditions, as between the Buyer and the Seller, the Seller retains and owns all Intellectual Property Rights in and to all or any Products and the Buyer shall assert no right, title nor interest in and to the same. Further, the Buyer shall not copy, distribute, amend and/or publish the content of any Product without the Seller's prior written consent. Nothing in this clause 17.3 shall affect the Buyer's right pursuant to sections 29 – 33 inclusive and section 36 of the Copyright, Design and Patents 1988 (as the same may be amended or superseded).
18. Third Party Rights
Nothing in these Conditions is intended to give any party who is not a contracting party to these Conditions any benefit or any rights enforceable hereunder.
19. Assignment and Transfer
The Buyer shall not assign, sub contract or otherwise transfer any of its rights and/or obligations pursuant to these Conditions without the Seller’s prior written consent. The Seller may assign, sub contract or otherwise transfer any of its rights and/or obligations under these Conditions.
20. Governing law
The construction, validity and performance of these Conditions shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.