1.1 All quotations and offers are made and Orders are accepted subject to and shall be deemed to incorporate the Conditions and they shall apply to all Contracts to the exclusion of any other terms and conditions including without limit those which the Buyer purports to apply under any Order. Variations to the terms of any Contract will only be effective if agreed in writing and signed by an authorised officer of Pacific Lifestyle. 1.2 All Orders shall be deemed to be an offer and shall only be deemed accepted by Pacific Lifestyle upon the earlier of the issue of a written acknowledgement of order by Pacific Lifestyle or delivery of Goods. 1.3 Pacific Lifestyle may modify the specification of Goods without notice provided that such modification does not materially affect the performance of the Goods. The Contract is not a contract for sale of goods by description. All descriptive matter, specifications and advertising issued by Pacific Lifestyle is solely aimed at giving an approximate idea of the Goods in them, they will not form part of the Contract.
2.1 Delivery times-dates named-accepted by Pacific Lifestyle are given in good faith but are an estimate only. Time of delivery of Goods is not of the essence. Pacific Lifestyle shall not be liable for any loss (including without limit loss of profit), costs, damages, charges or expenses caused directly or indirectly by failure (for any reason) to meet the delivery time-date stated-agreed (even if caused by Pacific Lifestyle’s own negligence), further, the Buyer shall have no right to cancel the Contract in the event of such a failure. 2.2 Goods will be delivered as stated in Pacific Lifestyle’s quotation or acknowledgement of order or as agreed by Pacific Lifestyle. Delivery shall be deemed to take place when the Goods arrive at the place stated in Pacific Lifestyle’s acknowledgement of order or if one is not issued at such place as is agreed by Pacific Lifestyle except that delivery to a carrier for the purpose of transmission to the Buyer shall be deemed to be delivery to the Buyer. Section 32(2) of the Sale of Goods Act 1979 shall not apply. The Buyer shall pay the delivery costs (as set out in Pacific Lifestyle’s published trade price list current at the time of delivery) when it is due to pay for the Goods. 2.3 Pacific Lifestyle may deliver Goods in instalments in any sequence. Deliveries of further
instalments may be withheld until the Goods comprised in earlier instalments have been paid for in full. Default by Pacific Lifestyle in respect of one or more instalments shall not entitle the Buyer to terminate the relevant Contract as a whole. 2.4 If: the Buyer fails or refuses to accept delivery of any Goods when they are ready for delivery in accordance with the relevant Order; or Pacific Lifestyle agrees (at its sole discretion) to postpone delivery of the Goods at the request of the Buyer; or the Buyer fails to provide any instructions consents or authorisations required to enable the goods to be delivered on the due date, then risk in the Goods shall pass to the Buyer, delivery of the Goods shall be deemed to have taken place. 2.5 If Pacific Lifestyle agrees to permit the Buyer to collect the Goods from Pacific Lifestyle’s place of business then delivery shall be deemed to take place when Pacific Lifestyle notifies the Buyer that the Goods are ready for collection and unless otherwise agreed in writing by Pacific Lifestyle it is a condition of the Contract that the Buyer will collect the Goods within 7 days of such notice. 2.6 Upon delivery to the Buyer, all Goods should be examined. Pacific Lifestyle shall not be liable for any shortages in, or non-delivery of, Goods unless the same is notified by the Buyer to Pacific Lifestyle (together with all specific details) in writing within 14 days of the actual or anticipated date of delivery (as relevant). Subject to such notice being provided Pacific Lifestyle shall, if it is satisfied that any Goods have not been delivered and the cause thereof being beyond the reasonable control of Pacific Lifestyle, at its sole discretion, either arrange for delivery as soon as reasonably possible or give credit to the Buyer for such Goods. Shortages in, or non-delivery of some of the Goods shall not affect the Contract in respect of the other or other parts of the Goods.
3. Risk and Title
3.1 Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery or at the notified time for delivery if the Buyer fails to take delivery of the Goods at the notified time. Section 20(2) of the Sale of Goods Act 1979 shall not apply.
3.2 Title to the Goods (both legal and equitable) shall remain with Pacific Lifestyle until full payment with cleared funds of all monies due from the Buyer to Pacific Lifestyle under all contracts between Pacific Lifestyle and the Buyer has been made, or title is properly vested in some other person by the operation of any statute. 3.3 Until title to the Goods passes, the Buyer shall hold the Goods on a fiduciary basis as Pacific Lifestyle’s bailee and must store the Goods (at no cost to Pacific Lifestyle) such that they are easily identifiable as the property of Pacific Lifestyle and must not destroy or deface any identifying marks on the Goods or their packaging. Until title to the Goods passes, the Buyer shall still be entitled to re-sell, use or otherwise dispose of the Goods in the ordinary course of its business provided that the Buyer shall ensure that the entire proceeds arising by virtue of any such sale, use or disposal shall be held in trust for Pacific Lifestyle and shall not be mixed with any other monies or paid into any overdrawn account and shall be identifiable as monies belonging to Pacific Lifestyle.
4. Price and Payment
4.1 Unless Pacific Lifestyle has agreed fixed prices in writing all prices are those set out in Pacific Lifestyle’s published trade price list price ruling at the date of despatch of Goods and prices set out in any of Pacific Lifestyle’s price lists, quotations and acknowledgement of order are exclusive of any VAT, purchase or other taxes and any costs of carriage, package and insurance which shall be payable in addition to the price when due. 4.2 Pacific Lifestyle may invoice the Buyer for the Goods at any time after delivery of the Goods and Goods delivered in instalments may be invoiced separately provided that if delivery of Goods is postponed at the request or by the default of the Buyer then Pacific Lifestyle may submit its invoice at any time after the Goods are ready for delivery or would have been ready but for the request or default on the part of the Buyer. 4.3 The Contract price shall be payable within 30 days of the date of invoice. 4.4 Payment shall only be deemed received by Pacific Lifestyle from the Buyer upon receipt by Pacific Lifestyle of cleared funds. Payment shall be made in full without any deduction, set-off or abatement on any grounds. Pacific Lifestyle may appropriate any payment made by the Buyer to any outstanding invoice. Pacific Lifestyle may bring an action for the price of the Goods even though the property in them may not have passed to the Buyer. 4.5 Time for payment of the Contract price shall be of the essence. The Buyer shall indemnify Pacific Lifestyle for all expenses and costs including interest in recovering overdue amounts.
5.1 Subject to Condition 5.2 Pacific Lifestyle warrants that all Goods shall upon delivery and for a period of 12 months thereafter be of satisfactory quality and be reasonably fit for any purpose for which they are commonly supplied and all conditions, warranties or other terms whether express or implied, statutory or otherwise, inconsistent with this Condition 5.1, are hereby expressly excluded to the fullest extent permitted by law. 5.2 The warranty given in Condition 5.1 will not apply and Pacific Lifestyle shall have no liability for any defect in the Goods: (a) where the defect complained of arises from any specification or IPR supplied by the Buyer or arises from fair wear and tear, wilful damage, the Buyer’s negligence, abnormal working conditions, or misuse or alteration or repair of the Goods without Pacific Lifestyle’s approval or arises from any failure to follow Pacific Lifestyle’s instructions (whether oral or in writing or whether relating without limit to the fabrication, operation, use or maintenance of the Goods); (b) if the total price for the Goods has not been paid by the due date for payment;
(c) unless the Buyer gives written notice of the defect to Pacific Lifestyle and to the carrier within 14 days of (i) the date of delivery (where the defect would be apparent to the Buyer upon a reasonable inspection); or (ii) the date when the Buyer knew or ought to have known of the defect (where the defect would not be apparent to the Buyer upon reasonable inspection). 5.3 The obligations of Pacific Lifestyle under the Contract are limited such that in the event of a breach by Pacific Lifestyle of the warranty in Condition 5.1 or any defect in any Goods Pacific Lifestyle shall only be obliged (and shall have no further liability in contract, negligence or otherwise for any defect in quality of the Goods or fitness for purpose of the Goods) at its option either to credit the price (if already paid) attributable to the faulty Goods, repair or replace the faulty Goods provided that such Goods are returned to Pacific Lifestyle in their delivered state at the Buyer’s expense if so requested by Pacific Lifestyle within 12 months from the date of their delivery. Any replacement Goods will be guaranteed on the terms set out in this Condition 5 for the unexpired portion of the 12-month period.
6.1 Nothing in these Conditions shall exclude or limit the liability of Pacific Lifestyle for death or personal injury caused by Pacific Lifestyle’s negligence or fraudulent misrepresentation. 6.2 Pacific Lifestyle shall not be liable to the Buyer in contract, tort (including without limit negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof:
(i) for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings; or (ii) for damage to the Buyer’s reputation or goodwill; or (iii) for any loss resulting from any claim made by any third party; or (iv) for any special, indirect or consequential loss or damage. 6.3 Without prejudice to Conditions 5.3, 6.1 and 6.2, Pacific Lifestyle’s liability in contract, tort (including without limit negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the Contract price. 6.4 The Buyer warrants that the use by Pacific Lifestyle of any IPRs, designs, specifications, drawings or other materials or information of any nature provided to Pacific Lifestyle by the Buyer pursuant to an Order shall not infringe any third party’s IPRs. If any claim is brought or threatened against Pacific Lifestyle in respect of such an infringement Pacific Lifestyle, shall be entitled to suspend carrying out further work to the Buyer, and the Buyer shall indemnify Pacific Lifestyle against all actions, claims, costs, demands, expenses and liabilities of whatsoever nature suffered or incurred by Pacific Lifestyle as a result of any such claim or threatened claim brought against Pacific Lifestyle. 6.5 Nothing in these Conditions shall be construed as a representation or warranty by Pacific Lifestyle that the design, manufacture, use or sale of the Goods is not an infringement of any third party’s IPRs.
7. Intellectual Property Rights and Confidentiality
7.1 The Buyer shall not, under any circumstances, acquire any right in or to any of the IPRs subsisting in, resulting from or relating to the Goods, or any documents, drawings and/or specifications relating thereto either (a) supplied by Pacific Lifestyle to the Buyer in connection the Goods; or (b) resulting from the Goods, unless otherwise expressly agreed by Pacific Lifestyle in writing. If the Buyer shall in any way acquire any such rights then the Buyer shall immediately inform Pacific Lifestyle and shall forthwith take such steps as may be required by Pacific Lifestyle to assign such rights or vest such title in Pacific Lifestyle. 7.2 The Buyer shall keep confidential and not use, without the prior written consent of Pacific Lifestyle, all information of a confidential nature including without limit, that (as referred to in Condition 7.1) supplied by Pacific Lifestyle to the Buyer or disclosed to or obtained by the Buyer as a result of the Contract, and shall not divulge the same to any third party.
8.1 Without prejudice to any of its other rights Pacific Lifestyle may immediately terminate the Contract and demand payment of any amount due or accruing to Pacific Lifestyle whether under the Contract or otherwise, re-sell the Goods and/or withhold or cancel any deliveries if any of the following occurs or is likely to occur: (a) the Buyer is in breach of any of its obligations under the Contract which, if capable of remedy, the Buyer has not remedied within 30 days of receiving written notice from Pacific Lifestyle; or (b) the Buyer is or becomes Insolvent or the Buyer ceases to carry on its business.
9.1 The failure to exercise or delay in exercising by Pacific Lifestyle of a right or remedy provided by the Contract or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. 9.2 In the event that Pacific Lifestyle is prevented or delayed in or from carrying out its obligations under the Contract as a result of any cause beyond its control, then Pacific Lifestyle shall be relieved of its obligations and liabilities under the Contract for as along as such fulfilment is prevented. 9.3 The Buyer shall not be entitled to assign or sub-contract any of its rights or obligations under the Contract, without the prior written consent of Pacific Lifestyle. Pacific Lifestyle may assign, license or sub-contract all or any part of its rights or obligation under the Contract without the Buyer’s consent. 9.4 A person who is not a party to a Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act. 9.5 The Conditions contain the whole agreement between Pacific Lifestyle and the Buyer. 9.6 The Buyer shall be responsible for complying with all relevant laws, bylaws, regulations, orders, directions, codes of practice or requirements of any statutory, public, local or other competent authority or court of competent jurisdiction applicable to the storage, sale, marketing and supply of the Goods. 9.7 The Contract shall be construed in accordance with and governed by English Law and the Buyer submits to the exclusive jurisdiction of the English Courts.
In these Conditions, unless the context requires otherwise any reference to the singular shall include the plural and vice versa and:
"Pacific Lifestyle" means Pacific Lifestyle Limited and its successors and assigns.
"Buyer" means the person, firm or company that has requested any Goods;
"Conditions" means the standard terms and conditions of sale set out herein;
"Contract" means any contract for the supply of Goods;
"Goods" means any goods supplied or to be supplied by Pacific Lifestyle (as may be described in Pacific Lifestyle’s quote or acknowledgement of order);
"Insolvency" means any of the following (as relevant):the appointment of any nominee, sequestrator, trustee, supervisor, administrator, administrative receiver, receiver or liquidator pursuant to the Insolvency Act 1986; or the entry into any compromise or arrangement with its creditors; or if it commits any act of bankruptcy; or if an order is made or effective resolution is passed for its winding up (except for the purposes of amalgamation or reconstruction of a solvent company) or the appointment of a manager or receiver to the Law of Property Act 1925 or the occurrence or sufferance of anything equivalent under any other jurisdiction and "Insolvent" shall be construed accordingly;
"IPRs" means any intellectual property rights of any nature including without limit any and all inventions, patents, utility models, design rights, copyright, know how, trade secrets, confidential information, trademarks, service marks, trade names and goodwill; and
"Order" means an order placed by the Buyer with Pacific Lifestyle for Goods.