Terms and Conditions of Sale

Thank you very much for your business and your support. TOPL LTD is a private company incorporated and registered in Jersey with company number 125883. Please take the time to read the following to understand our contractual relationship relating to the products and services we provide.

CONTENTS

CLAUSE

Interpretation
Basis of Contract
Products
Customised Products
Delivery
Quality
Title and risk
TOPL'S IP
Orders
Price and Payment
Liability
Representations to end-users
Your obligations in relation to our IP and Products
Termination
Force majeure
General

Your attention is drawn in particular to the provisions of clause 11.

1. Interpretation

1.1. Definitions:

Additional Charges: includes all shipping, delivery, handling and storage charges, any bank transfer charges or credit card fees, Value-Added Tax (VAT), interest, legal and other costs of recovery, any other government imposts and all money, other than the Purchase Price, payable by you to TOPL arising out of the sale of the Products;
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with 15.4.
Contract: the contract between TOPL and you for the sale and purchase of the Products in accordance with these Conditions.
Customer: the person or firm (means “you” / “your” / “yours”) who purchases the Products from TOPL.
Delivery Location: has the meaning given in 4.2.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
Products: the products (or any part of them) set out in the Order.
Order: your order for the Products, as set out in your purchase order form.
Payment Terms: means payment in full for the products before they are shipped and delivered, unless a credit account has been approved for you, in which case payment for the products must be made in accordance with: (a) the payment terms set out in our written confirmation of the Order and/or our invoices; or (b) any other payment terms agreed to by TOPL and you in writing.
Purchase Price: means the price for the Products (excluding Additional Charges) as set out in the Order or as agreed by TOPL and you prior to delivery of the products. If no purchase price has been agreed, the Purchase Price shall be the list price for the products as charged by us as at the date of delivery.
Specification: any specification for the Products, including any related plans and drawings, that is agreed in writing by you and TOPL.
Supplier: TOPL LTD (means “TOPL”/"we”/“us”/“our”) registered in Jersey with company number 125883.
TOPL’s IP: means all intellectual property of any nature whatsoever, owned by TOPL and/or pertaining to the products, including but not limited to, any patent, discovery, invention, know-how, manner or method of process, copyright work, trademark, designs, get up, trade dress or any improvement, modification or development of any of the foregoing
Warranty Period: has the meaning given in 6.1.

1.2. Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its personal representatives, successors and permitted assigns.

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

(e) A reference to writing or written excludes fax but not email.

2. Basis of contract

2.1. These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2. The Order constitutes an offer by you to purchase the Products in accordance with these Conditions. You are responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

2.3. The Order shall only be deemed to be accepted when TOPL issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4. You waive any right you might otherwise have to rely on any term endorsed upon, delivered with, or contained in any documents of you that is inconsistent with these Conditions.

2.5. Any samples, drawings, descriptive matter or advertising produced by TOPL and any descriptions or illustrations contained on our website or in our catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6. A quotation for the Products given by TOPL shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.

3. Products

3.1. The Products are described in TOPL's catalogue as modified by any applicable Specification.

3.2. To the extent that the Products are to be manufactured in accordance with a Specification supplied by you, you shall indemnify TOPL against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by us in connection with any claim made against us for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with TOPL's use of the Specification. This 3.2 shall survive termination of the Contract.

3.3. TOPL reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and we shall notify you in any such event.

4. Customised Products

4.1. To the extent that the Products are to be customised in accordance with your instructions, you agree to indemnify TOPL against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by us in connection with any claim made against us for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with our compliance with your instructions. This provision shall survive termination of the Contract.

5. Delivery

5.1. TOPL shall ensure that:

(a) each delivery of the Products is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any) and, if the Products are being delivered by instalments, the outstanding balance of Products remaining to be delivered; and

(b) if we require you to return any packaging materials to us, that fact is clearly stated on the delivery note. You shall make any such packaging materials available for collection at such times as we shall reasonably request. Returns of packaging materials shall be at our expense.

5.2. TOPL shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after we notify you that the Products are ready.

5.3. Delivery is completed on the completion of the unloading of the Products at the Delivery Location.

5.4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. TOPL shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

5.5. If TOPL fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement products of similar description and quality in the cheapest market available, less the price of the Products. We shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

5.6. If you fail to take delivery of the Products within three Business Days of TOPL notifying you that the Products are ready, then, except where such failure or delay is caused by a Force Majeure Event or our failure to comply with its obligations under the Contract in respect of the Products:

(a) delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which we notified you that the Products were ready; and

(b) we shall store the Products until actual delivery takes place, and charge you for all related costs and expenses (including insurance).

5.7. If seven Business Days after the day on which TOPL notified you that the Products were ready for delivery you have not taken actual delivery of them, we may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Products or charge you for any shortfall below the price of the Products.

5.8. If TOPL delivers up to and including 5% more or less than the quantity of Products ordered you may not reject them, but on receipt of notice from you that the wrong quantity of Products was delivered, we shall make a pro rata adjustment to the invoice for the Products.

5.9. TOPL may deliver the Products in instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.

6. Quality

6.1. TOPL warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Products shall:

(a) conform in all material respects with their description and the Specification; and

(b) be free from material defects in design, material and workmanship.

6.2. Subject to 5.3, if:

(a) you give notice in writing to us during the Warranty Period within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in 6.1;

(b) we are given a reasonable opportunity of examining such Products; and

TOPL shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.

6.3. TOPL shall not be liable for the Products' failure to comply with the warranty set out in 6.1 if:

(a) you make any further use of such Products after giving notice in accordance with 6.2;

(b) the defect arises because you failed to follow our oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;

(d) you alter or repair such Products without the written consent of TOPL;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(f) the Products differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

6.4. Except as provided in this 6, TOPL shall have no liability to you in respect of the Products' failure to comply with the warranty set out in 6.1.

6.5. The terms implied by sections 13 to 15 of the Sale of Products Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

6.6. These Conditions shall apply to any repaired or replacement Products supplied by TOPL.

7. Title and risk

7.1. The risk in the Products shall pass to you on completion of delivery.

7.2. Title to the Products shall not pass to you until the earlier of:

(a) TOPL receives payment in full (in cash or cleared funds) for the Products; and

(b) you resell the Products, in which case title to the Products shall pass to you at the time specified in 7.4.

7.3. Until title to the Products has passed to you, you shall:

(a) store the Products separately from all other products held by you so that they remain readily identifiable as our property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;

(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify us immediately if it becomes subject to any of the events listed in 14.1(b) to 14.1(d); and

(e) give us such information as we may reasonably require from time to time relating to:

(i) the Products; and

(ii) the ongoing financial position of you.

7.4. Subject to 7.5, you may resell or use the Products in the ordinary course of its business (but not otherwise) before we receive payment for the Products. However, if you resell the Products before that time:

(a) it does so as principal and not as TOPL’s agent; and

(b) title to the Products shall pass from TOPL to you immediately before the time at which resale by you occurs.

7.5. At any time before title to the Products passes to you, TOPL may:

(a) by notice in writing, terminate your right under 7.4 to resell the Products or use them in the ordinary course of its business; and

(b) require you to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product and if you fail to do so promptly, enter any premises of you or of any third party where the Products are stored in order to recover them.

8. TOPL'S IP

8.1. TOPL is the owner of its IP, and we will take action to enforce our rights. The sale of the Products does not have the effect of vesting in you any right to any of our IP, the ownership of which will remain with TOPL at all times. No licence is given to you in respect of our IP except as is expressly set out in this Contract or agreed in writing by TOPL. You shall promptly give notice in writing to TOPL if you become aware of any infringement or suspected infringement of our IP.

9. Orders

9.1. When you submit an Order to TOPL, it constitutes an offer to purchase the products in accordance with these Terms and Conditions. We reserve the right to accept or reject an Order (or any part of it) at any time. If we reject an Order (or any part of it), we will refund you any money paid for any part of the Order that has been rejected.

9.2. Once your Order has been submitted, you will receive an email acknowledging the details of your order. This is NOT an acceptance of your Order, just a confirmation that we have received it.

9.3. An Order becomes a binding Contract between you and us when:(a) a written acceptance is issued by TOPL; or (b) when the products are delivered to you by TOPL in accordance with the Order; whichever occurs first.

9.4. If an Order relates to customised products, the Order becomes binding when: (a) written acceptance is issued by us and we receive payment (or, if agreed, a deposit for the products) together with artwork approval for the customisation of the products; or (b) we commence design or other work required for the manufacture of the customised products; whichever occurs first.

9.5. An Order which has been accepted in whole or in part by TOPL cannot be cancelled by you without our prior written approval.

9.6. We reserve the right not to accept your Order in the event, for example, that we are unable to obtain authorisation for payment, that shipping restrictions apply to a particular item, the item ordered is out of stock or does not satisfy our quality control standards and is withdrawn from sale, or that you do not meet the eligibility criteria set out within these Terms and Conditions.

9.7. We may also refuse to process and therefore accept an Order for any reason or refuse to supply our products to you at any time at our sole discretion. We will not be liable to you for compensation, loss of prospective profits, expenditures, investment, or any other actual or potential damages whatsoever as a result of our refusal to supply products.

9.8. Any purported variation of these Terms and Conditions, or purported incorporation of other terms, by you will not be binding on us unless specifically accepted by TOPL in writing.

10. Price and payment

10.1. The price of the Products shall be the price set out in the Order, or, if no price is quoted, the price set out in our published price list in force as at the date of delivery.

10.2. TOPL may, by giving notice you at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:

(a) any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) any request by you to change the delivery date(s), quantities or types of Products ordered, or the Specification; or

(c) any delay caused by any instructions of you or failure of you to give us adequate or accurate information or instructions.

10.3. The price of the Products, unless otherwise agreed in writing by TOPL:

(a) excludes amounts in respect of value added tax (VAT), which you shall additionally be liable to pay to us at the prevailing rate, subject to the receipt of a valid VAT invoice; and

(b) excludes the costs and charges of packaging, insurance and transport of the Products , which shall be invoiced to you.

10.4. TOPL’s invoices will show an amount which is exclusive of VAT and the amount of VAT payable by you will be shown separately. You agree to indemnify us in respect of VAT paid and payable by us for the supply of the products. All prices and offers remain valid as advertised from time to time. The price of a product displayed on our website at the time the order is placed and accepted will be honoured, except in cases of patent error.

10.5. TOPL may invoice you for the Products on or at any time after the completion of delivery.

10.6. You shall pay in full for the Products before they are shipped and delivered, in accordance with:

(a) the Payment Terms set out in our written confirmation of the Order and/or our invoices; or

(b) any other payment terms agreed to by TOPL in writing.

10.7. You must pay the Purchase Price plus any Additional Charges to TOPL in accordance with the Payment Terms. Where funds are to be transferred electronically, you shall ensure that all fees and charges are deducted at source and that we receive the full amount invoiced. If you are in default, we may at our option withhold further deliveries or cancel future Orders without prejudice to any of its existing rights. Interest for late payment will be charged per annum at the rate of 4% above the HSBC base rate from the due date for payment until the actual date of payment on any overdue amounts.

10.8. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

11. Liability

11.1. References to liability in this clause 11 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

11.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation;

(d) defective products under the Consumer Protection Act 1987.

11.3. Subject to 11.2,

(a) TOPL shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any Contract between us; and

(b) TOPL's total liability to you, for all other losses arising under or in connection with any Contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the price payable for any products ordered under that Contract.

11.4. Subject to 11.2, the following types of loss are wholly excluded:

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; and

(g) indirect or consequential loss.

11.5. Notwithstanding all of the above, to the maximum extent permitted by law, TOPL will not be liable to you for any defect or damage caused or partly caused by or arising as a result of:

(a) your failure to properly maintain the products;

(b) your failure to follow any instructions or guidelines provided by TOPL;

(c) any failure to the extent that the failure is not a failure of the product to perform in accordance with its specifications;

(d) any use of the products otherwise than for any application specified in the instructions provided by TOPL;

(e) the continued use of the products after any defect has become apparent (or would have become apparent to a reasonably prudent user);

(f) fair wear and tear;

(g) damage to the products resulting from negligence, misuse or abuse;

(h) slight colour variations between colour selection samples and finished product;

(i) any accident or force majeure; or

(j) if the products and/or workmanship are repaired or altered in any way without TOPL’s prior consent.

11.6. This section 11 shall survive termination of the Contract.

12. Representations to end-users

12.1. Any recommendations TOPL makes to you are to be used as guides only and it is your responsibility to wholly consider the products and their suitability for the end-user. We make no representations to your end-users and you shall indemnify TOPL and its officers, employees and agents in respect of all claims relating to any representations made by you to end-users which are inconsistent with TOPL’s instructions and guidelines.

13. Your obligations in relation to our IP and Products

13.1. You agree that:

you will clearly and visibly display our brand and trademark on all products and sales collateral;
any visual merchandising of the products will identify the products by name and display the TOPL’s trademark;
you will only use our trademark, and present the products, as outlined in the brand guidelines;
no other component of the products may be customised without written authority from us;
products will always be displayed, represented and sold in their complete form, never as components;
you must not sell, distribute, display, market, advertise or give away individual components of the products;
products are not permitted to be re-sold online;

You must not extend any warranty or guarantee relating to the products or make representations without express written authorisation from us.

14. Termination

14.1. Without limiting its other rights or remedies, we may terminate this Contract with immediate effect by giving written notice to you if:

(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

(b) you take any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) you suspend, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) your financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

14.2. Without limiting its other rights or remedies, we may suspend provision of the Products under the Contract or any other contract between you and TOPL if you becomes subject to any of the events listed in 9.1(b) to 9.1(d), or TOPL reasonably believes that you are about to become subject to any of them, or if you fail to pay any amount due under this Contract on the due date for payment.

14.3. Without limiting its other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under the Contract on the due date for payment.

14.4. On termination of the Contract for any reason you shall immediately pay to TOPL all of our outstanding unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt.

14.5. Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

14.6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

15. Force majeure

15.1. Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 30 days, the party not affected may terminate the Contract by giving 10 days' written notice to the affected party.

16. General

16.1. Assignment and other dealings

(a) We may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

(b) You may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of TOPL.

16.2. Confidentiality

(a) Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by 11.2(b).

(b) Each party may disclose the other party's confidential information:

(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this 16.2; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

16.3 Entire agreement

(a) The Contract constitutes the entire agreement between the parties.

(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

16.4. Variation

No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.5. Waiver

(c) Except as set out in 2.4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

(d) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

16.6. Severance If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this 16.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

16.7. Notices

(e) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to an officer of TOPL.

(f) Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

(g) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16.8. Third party rights

(h) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

(i) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

16.9. Governing law The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

16.10. Jurisdiction. Each party irrevocably agrees that English courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.