1. In these conditions:
APPROVED STOCKIST: Means those Customers that may, without impediment or restriction sensibly use the intellectual property of Bachmann or associated companies for the purposes of marketing, advertising and promotion of goods to public consumers.
BACHMANN: Means Bachmann Europe Plc
CUSTOMER: Means the person or organisation who accepts a quotation of Bachmann for the sale of Goods or whose order for the Goods is accepted by Bachmann.
CONDITIONS: Means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) include any special terms and conditions agreed in Writing between the Customer and Bachmann.
CONSUMER: Means the buyer of goods from the Customer.
CONTRACT: Means the contract for the purchase and sale of Goods.
EU: Means the European Union.
GOODS: Means the Goods (including any instalment of the Goods or any part of them) which Bachmann is to supply in accordance with these Conditions.
NETT TRADE PRICE: Means the cost of Goods charged to the Customer including VAT.
NETT TRADE ORDER: Means contracts made at the Nett Trade Price.
NOTICE: Means any form of communication, either verbal or in Writing.
UK: Means The United Kingdom of Great Britain and Northern Ireland.
VAT: Value Added Tax applicable and prevailing at the current UK rate.
WRITING: Including letter, telex, cable, fax, e-mail and comparable means
of communication.
2. (A) Bachmann shall sell and the customer shall purchase the goods in accordance with any written quotation of Bachmann which is accepted by the customer, or any written order of the customer which is accepted by Bachmann, subject in either case to these conditions, which shall govern the contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the customer. (B) No variation to these conditions shall be binding unless agreed in writing between customer and a director of Bachmann. (C) Bachmann’s employees or agents are not authorised to make any representations concerning the goods unless confirmed by Bachmann in writing. In entering into the contract, the customer acknowledges that it does not rely on any such representations which are not so confirmed. (D) Any advice or recommendation given by Bachmann or its employees, or agents as to the storage, application or use of the goods which is not confirmed in writing by Bachmann is followed or acted upon entirely at the customer’s own risk, and accordingly Bachmann shall not be liable for any such advice or recommendation which is not so confirmed. (E) Any typographical, clerical or other error or omission is any sales literature, quotation, price list or other invitation to treat, acceptance of offer, invoice or other document or information issued by Bachmann shall be subject to correction without any liability on the part of Bachmann.
3. (A) The company shall be responsible to Bachmann for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the customer, and for giving Bachmann any necessary information relating to the goods within a sufficient time enable Bachmann to perform the contract in accordance with its terms. (B) The quantity, quality and description of and any specification for the goods shall be those set out in Bachmann’s quotation (if accepted by the customer) or the customer’s order (if accepted by Bachmann. (C) Bachmann reserves the right to make any changes in the specification of the goods which are required to conform with any applicable UK statutory or EU legislative requirements or, where the goods are to be supplied to Bachmann’s specification, which do not materially affect their quality or performance. (D) Orders for goods are accepted subject to availability, and Bachmann accepts no liability for late delivery or non-delivery. (E) All orders are subject to VAT at the prevailing rate which the customer shall be additionally liable to pay to Bachmann.
4. (A) The risk in the goods shall pass to the customer on delivery to Bachmann’s nominated carriers. (B) The property in the goods supplied under the contract shall not pass to the customer until full payment has been received in cleared funds. Until such time as the property in the goods passes to the customer shall insure the goods and hold them as Bachmann’s fiduciary agent and bailee and keep the goods separate from those of the customer and third parties, properly stored, protected and identified as Bachmann’s property but shall be entitled to resell or use the goods in ordinary course of the customer’s business. (C) Until such time as property in the goods passes to the customer (and provided the goods are still in existence and have not been sold) Bachmann shall be entitled at any time to require the customer to deliver up the goods to Bachmann and if the customer fails to do so forthwith to enter upon all and any premises on which such goods may be and repossess and remove the same. It is further agreed and declared that Bachmann shall be entitled to take and remove goods supplied by Bachmann to the value of arrears on account whether such goods have been paid for or not.
5. Items on Bachmann’s price list may be subject to patents and registered designs in Great Britain and in other countries. Bachmann reserves the right to withdraw or to modify the design or specifications of any item without notice at any time.
6. (A) Orders are accepted on the condition that prices charged are those ruling at date of despatch. Once an order has been accepted, Bachmann is not bound to agree to any variation but would normally agree to vary the order provided a request is put in writing, giving reasonable notice prior to despatch of the goods. Time shall not be of the essence of delivery and Bachmann shall not be liable for any such loss or damage or expense (including consequential economic, special or other indirect loss or damage including loss of profits) whatsoever or howsoever arising from delay in delivery, or for failure to deliver. (B) Orders for goods accepted by Bachmann are only subject for cancellation or amendment at Bachmann’s sole discretion. If Bachmann accepts a cancellation or amendment to an order (which must be made in writing giving at least one month’s clear notice) the customer shall indemnify Bachmann against all loss (including loss of profit), damages, charges and expenses incurred by Bachmann as a result of such cancellation or amendment and Bachmann reserves the right to make a handling charge of 20% of the invoice price of goods refused, cancelled orders or goods returned without due cause. This is subject to a minimum charge of £25.00. Any discounts allowed on any invoice where the order or any part thereof is subsequently cancelled will immediately become forfeit and become a debt due and owing to Bachmann with interest thereon as an overdue account from the date of the invoice.
7. The price of the goods shall be stated in Bachmann’s price list current at the date of despatch. (A) The trade price is the nett trade price (as herein before defined). The price is subject to adjustment without notice and orders will only be accepted as multiples of the minimum quantities stated on the price list. (B) The company unilaterally operates a pricing policy in relation to the supply of new products to customers. When a new Bachmann product is announced, from the date of that announcement, until a period of eight weeks has elapsed from the date of the first deliveries of that new product to customers (“the launch period”), customers who have ordered or purchased the new product must not advertise, offer for sale or sell that new product at a discount of more than 15% from the Bachmann recommended retail price for that product. Customers will be given prior notification of the first delivery date for a new product. Until the launch period has expired Bachmann reserves the right to withhold supplies from any dealer who does not comply with this policy, including the cancellation of any orders already placed.
8. Carriage will be charged on all orders less than £200. Separate carriage charges will apply to all Highlands and Islands orders. Bachmann will not supply any orders under the value of £75 either one brand name or mixed. The first nett trade order for new trade accounts will be £1,000 minimum. All Customers encouraged to achieve an annual turnover of not less than £2,000 in any one financial year. This figure is considered to be a minimum economic figure for adequate sales support, promotion and representation to be provided for the benefit of the customer. All accounts will be reviewed annually and are required to trade from suitable retail premises.
9. (A) In the case of non-credit account Customers, paying will be due in cleared funds on receipt of Bachmann’s invoice and prior to despatch. (B) In the case of Customers with approved monthly accounts, payment will be due 30 days from the date of the invoice; after which date, Bachmann’s without prejudice to its other rights under this contract, shall be entitled to charge, in addition to any monies due under the contract, interest on the overdue amount at the rate of 2% per month until the outstanding amount and accrued interest is paid. (C) An early settlement discount of 5% will be available for payments within 15 days of the invoice date only if paid by bank transfer. (D) Where a Customers payment is not met upon presentation, a charge of £25.00 will be made against the Customer upon each and every occasion of default to defray administration costs. (E) The Customer shall not be entitled to withhold or set off payment for goods for any reason whatsoever.
10. Where payments are not made in full by their due date or where;- (A) the customer commits an act of bankruptcy or compounds with his creditors; or (B) a receiving order is made against the Customer; or (C) the Customer (being a company) passes a resolution or the court makes an order that the customer shall be wound up (otherwise than for the purpose of amalgamation);
or (D) a receiver of any of the Customer’s assets or undertakings; or (E)
the Customer takes or suffers any similar action in consequence or debt; or(F) the Customer commits any breach of these conditions then (in any such case) Bachmann reserves the right to cancel all uncompleted and outstanding contracts and credit facilities and any right to discount or special terms of purchase and/or to withhold deliveries of further goods; and the Customer shall immediately become liable to pay the full value of the goods already delivered.
11. Bachmann may allocate a credit limited to each customer’s account, details of which will be supplied on request. (A) Bachmann shall be under no obligation to extend credit above that limit or to apply a credit limit at all. (B) Credit accounts are subject to the Customer being able to display acceptance and fulfilment of the Approved Stockist criteria, namely that, (i) the customer is trading from registered retail premises or other publicly accessible business premises to which they are the named freeholder or lessee (ii) at least 70% of retail floor space is dedicated to models, hobbies, toys, games and giftware (iii) freely open to the public at least 5 days a week during normal daytime working hours. Bachmann reserve the right to withdraw any trading agreement from any customer who Bachmann deem to be in direct competition with Bachmann as a manufacturer or distributor
12. For the avoidance of doubt unless otherwise agreed all IP rights relating to products belong to Bachmann. Bachmann reserves the right to select those Customers that are entitled to be nominated as Approved Stockists and allowed rights of usage of intellectual property within their normal sales and marketing activities. (A) In the event of the suspension of this status, the Customer must withdraw and remove from their marketing promotions and advertising materials all reference to any logos, signs, registered trademarks or other intellectual property of Bachmann immediately. (B) By this agreement it is accepted that Approved Stockists will be trading from retail or other suitable premises concurrent with the sales and marketing of Bachmann Goods to consumers, defined as members of the general public with mixed abilities and requiring differing levels of accessibility. Should the Customer or business operations not/no longer meet this requirement, or by exclusion prevent physical access by members of the public. Bachmann reserves the right to withdraw account facilities and Approved Stockist status. (C) Customers that are not Approved Stockist must obtain prior permission in writing before using any intellectual property of Bachmann, its subsidiaries or affiliated organisations.
13. Bachmann reserves the right to protect itself against unreasonable credit or other risk when supplying goods to credit account customers. (A) Customers who in Bachmann’s opinion persistently charge insufficient mark-up to maintain reasonable profitability will be regarded by Bachmann as a potential credit risk. Bachmann will continue to supply all such customers at normal trade terms but will not accept any credit risk which might jeopardize the viability of Bachmann in the event of failure to settle accounts. (B) At the sole discretion of Bachmann, all such customers may be placed on a
pro-forma invoice basis only.
14. Subject to the liability set out in this clause, (A) Bachmann warrants that the Goods will be free from defects in material and workmanship for a period of 12 months from the date of purchase by the Consumer or 3 years from purchase by the Customer of Bachmann whichever is the first to expire. Save as aforesaid and with the exception of the conditions and warrants implied by Section 12 of the Sale of Goods Act 1979, all conditions, warranties, terms and undertakings, express or implied, whether by statute, common law or otherwise in respect of the goods are hereby excluded to the fullest extent permitted by law. (B) The above warranty is given by Bachmann subject to the following conditions: -
- (i) Bachmann shall be under no liability in respect of any defect in the goods arising from any drawing design or specification from the Customer;
- (ii) Bachmann shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Bachmann’s instructions (whether oral or in writing), misuse or alteration or repair of the goods without Bachmann’s approval;
- (iii) Bachmann shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment. (C) If it is proved to Bachmann’s satisfaction that there has been no breach of the warranty in clause 14 (a) or that the good or any of them have been lost or damaged whilst at Bachmann’s risk. Bachmann shall at its sole discretion either rectify or replace them or issue a credit for the net price paid by the customer, subject always to the provisions of clause 14 (d) below and to the return of the faulty Goods by the Customer to Bachmann and Bachmann shall have no further liability to the Customer. Faulty Goods shall only be returned to Bachmann in accordance with the company’s published RETURN OF GOODS procedure current at the date of despatch and a Customer shall be deemed to have agreed to be bound by its terms. Goods will not be deemed faulty where they or their packaging are damaged after leaving Bachmann’s premises. Bachmann shall be entitled to return the Goods in question to the Customer and make a charge of 20% of the value in respect of Goods which are found not to be faulty. (D) Bachmann shall not be liable for any physical damage to the Customer’s property resulting from a breach of warranty in clause 14 (a) or from defects in, loss of or damage to the goods or any of them or from any other cause. (E) Except on respect of death or personal injury caused by Bachmann’s negligence, Bachmann shall not be liable to the Customer by reason of any representation, warranty, conditions or other term, whether express or implied by statute, common law or otherwise or any statutory duty at common law, or under the express terms of the agreement between Bachmann and the Customer, for any consequential loss or damage including, without limitation, economic loss, loss of profit, revenue or goodwill, costs, expenses or other claims for consequential compensation, whatsoever (and whether caused by the negligence of Bachmann, it’s employees or agents or otherwise) howsoever arising except as expressly provided in these conditions. (F) Bachmann shall not be liable to the Customer or be deemed to be in breach of the agreement between Bachmann and the Customer by reason of any delay in performing, or failure to perform, any of Bachmann’s obligations, if the delay or failure was due to any cause beyond Bachmann’s reasonable control. (G) The Customer shall indemnify Bachmann against all loss, damages, costs (including legal costs) and expenses awarded against or incurred by Bachmann in connection with any claim or claims of whatsoever nature made against Bachmann by third parties in respect of the goods sold by the Customer and to co-operate fully with Bachmann in defending any such claim.
15. (A) Bachmann does not accept return of Goods and does not enter into contracts for the sale or return of Goods. Any such contract purporting to incorporate such terms shall not be binding on Bachmann unless signed by a director of Bachmann. (B) If such agreement were to be made, all transportation costs will be borne by the Customer unless specifically agreed otherwise in writing.
16. (A) The Customer shall advise Bachmann in writing of any change of address. Unless evidence of change of address is received in writing, Bachmann shall not entertain any claim for Goods wrongly delivered or lost in transit. (B) Any Notice served by Bachmann upon the customer shall be deemed good service if sent to the last known address of the Customer.
17. All goods delivered to the Customer shall be deemed to have been ordered by the Customer unless, in respect of goods which have not been ordered by the Customer, notice is given to Bachmann in writing within 21 days of the date of delivery and the said goods are returned to Bachmann undamaged within 28 days of the date of delivery.
18. (A) No liability for claims or risk for Goods damaged in transit or claims for shortages will be accepted unless written notification is made to both the carrier and Bachmann’s Warehouse Manager, Bachmann Europe Plc, Moat Way, Barwell, Leicestershire, LE9 8EY within 7 days of the delivery. No claim for non-delivery will be allowed unless Bachmann is advised in Writing within 21 days of the invoice date. (B) Claims in respect of alleged faulty Goods, shortages or non-delivery are not grounds for withholding payments of account s and shall not give the Customer any right of set off against payments due to Bachmann.
19. These conditions will not affect a Consumer’s statutory rights.
20. The contract shall not be capable of assignment by the Customer.
21. These conditions shall be governed by and construed exclusively under the laws of England.