Please find our terms and conditions of sale below.
1.1 In these Conditions:
‘BUYER’ means the person whose order for the Goods is accepted by the Seller;
‘GOODS’ means any goods agreed in the Contract to be supplied to the Buyer by the Seller;
‘SELLER’ means KAN. Kan is a trading name of Warndon Sails Ltd. whose principal place of business is at 15 Compass Point, Ensign Way, Hamble, Hampshire, SO31 4RA, England;
‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;
‘CONTRACT’ means the contract for the purchase and sale of the Goods;
‘WRITING’ includes electronic mail, facsimile transmission and comparable means of communication;
‘MATERIALS’ means any artwork, alterations together with proofs films, printing plates and stereos and subsequent replacements for them and any licence fees in respect of any trademark or logo to be printed on the Goods.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re‑enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of the sale
2.1 These Conditions shall apply to each and every Contract for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order confirmation of order or similar document.
2.2 No terms and conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, the confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all of the Seller’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Seller. Nothing in this condition 2.3 will exclude or limit the Seller’s liability for fraudulent misrepresentation.
2.4 Each order for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Seller until a written acknowledgement of order is issued by the Seller or (if earlier) the Seller delivers the Goods to the Buyer.
2.6 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.7 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not confirmed in Writing.
2.8 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not confirmed in Writing.
2.9 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3 Orders and specifications
3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.2 For Goods which require printing the Buyer shall be responsible for checking the proofs of artwork and the Buyer’s written acceptance of or signature on the proofs shall be evidence of the Buyer’s approval of the artwork. The Seller shall not be liable for any printing errors which may occur as a result of the Buyer’s approval of the artwork.
3.3 The quantity, and description of and any specification for the Goods shall be those set out in the Buyer’s order. Where the Seller provides samples of the Goods or proofs of artwork for Goods to be made to the Buyer’s specification or colour shade samples these are provided as an indication only and the Seller does not guarantee that the Goods shall conform exactly to the samples or proofs provided.
3.4 The Seller is authorised by the Buyer to obtain all Materials as are necessary to comply with any specification for the Goods required by the Buyer.
3.5 The Buyer shall pay all and any charges incurred by the Seller in respect of obtaining the Materials in addition to the price of the Goods and payment shall be due on the date for payment of the price.
3.6 Property in the materials obtained by the Seller shall pass to the Buyer on payment of the price for the Goods and the Materials.
3.7 The Seller shall store the Materials free of charge for a period of three years from the date on which the Goods are delivered to the Buyer but shall thereafter be entitled to destroy the Materials without giving prior notice to the Buyer. Alternatively if the Buyer demands delivery of the Materials, the Seller shall be entitled to charge the Buyer for the delivery costs.
3.8 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EU requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.9 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit and machine down-time), costs (including the cost of all labour and materials purchased for the contract), damages, charges and expenses incurred by the Seller as a result of cancellation.
4 Price of the goods
4.1 The price of the Goods shall be the price set out in the Seller’s quotation or where no quotation has been given or accepted, the price quoted by the Seller to the Buyer at the time the Buyer’s order is accepted or if none, the price listed in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice in writing to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices exclude delivery. An additional charge will be made for special packaging (other than the Sellers standard packaging) provided at the request of the Buyer.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall pay at the rate ruling on the date of the Seller’s invoice, and all costs or charges for carriage and insurance.
5 Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after despatch of the Goods by the Seller.
5.2 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days of receiving the invoice. The time of payment of the price shall be of the essence of the Contract.
5.3 If the Seller has reasonable cause to believe that the Buyer may not comply with the terms of payment set out in clause 5.2 the Seller shall not be bound to deliver the Goods until the Buyer has paid for them and payment shall be due with the Buyer’s order for the Goods.
5.4 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.4.1 cancel the contract or suspend any further deliveries to the Buyer;
5.4.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.4.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the relevant rate of interest set in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 being at the date of this edition of the terms and conditions of sale 8% above the Bank of England’s official dealing rate plus compensation for the costs of recovery at the rate prevailing as set out in the Act.
5.5 No payment shall be deemed to have been received until the Seller has received cleared funds.
5.6 All payments payable to the Seller under the Contract shall become due immediately upon termination of this Contract.
6.1 The Goods shall be delivered to the Buyer’s premises or if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place. The Buyer shall arrange to unload the Goods promptly and with all reasonable speed.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Delivery dates quoted for Goods which require printing are conditional upon receipt by the Seller of artwork or design instructions at least 6 weeks before the delivery date or printing plates at least 4 weeks before the delivery date.
6.3 Time for delivery shall not be of the essence of the Contract unless the Buyer has notified the Seller that the Goods are required by a specific date and the Seller has agreed in writing that the time shall be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.4 If time for delivery has not been agreed to be of the essence of the Contract notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 6 weeks of any delivery date specified in the Contract.
6.5 Where delivery of Goods made to the Buyer’s Specification is to be made by the Seller in bulk, and the Seller delivers up to 25 per cent more or 25 per cent less than the quantity ordered where the quantity ordered does not exceed 5000 items; and where the quantity is 5000 items or more then the Seller delivers up to 10 per cent more or 10 per cent less than the quantity ordered the Buyer shall not be entitled to object or to reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata contract rate.
6.6 The Seller may deliver the Goods by separate instalments where this is unavoidable for technical or logistical reasons. Each separate instalment shall be invoiced and paid for in accordance with these Conditions.
6.7 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.8 Subject to the other provisions of these Conditions the Seller will not be liable for any direct, indirect or consequential loss (which includes, without limitation, loss of profits, loss of business and loss of goodwill), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such a delay exceeds 180 days.
6.9 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.8.1 agree to re-deliver the Goods to the Buyer at the Buyer’s expense.
6.8.2 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.8.3 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
6.10 The Seller shall be entitled to make a charge for any proof of delivery requested after delivery has been made unless there is a claim by the Buyer for shortages defects or failures.
6.11 The quantity of any consignment of Goods as recorded by the Seller upon dispatch from the Seller’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.12 The Seller shall not be liable for any non delivery of Goods (even if caused by the Seller’s negligence) unless written notice is given to the Seller within seven days of the date when the Goods would in the ordinary course of events have been received.
6.13 Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at a pro rata Contract rate against any invoice raised for such Goods.
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer on delivery to the Buyer’s premises or in the case of Goods to be delivered otherwise than at the Buyer’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
If the Buyer has with the Seller’s agreement arranged for collection of the Goods from the Seller risk of damage to or loss of the Goods shall pass to the Buyer when the Goods are delivered to the Buyer or the Buyer’s carrier at the Seller’s premises.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business at full market value on account of the Seller.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8 Warranties and liability
8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and where the Seller is the manufacturer of the Goods that they will be free from defects in material and workmanship upon delivery and for 12 months thereafter.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall have no liability to the Buyer where some part of the Goods in any consignment which is not a material part of the Goods taken as a whole does not correspond with their specification at the time of delivery;
8.2.2 the Seller shall be under no liability in respect of any defect in the Goods arising from any sample drawing, design instructions or specification supplied by the Buyer;
8.2.3 the Seller 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 the Seller’s instructions (whether oral or in writing), misuse or alteration of the Goods without the Seller’s approval;
8.2.4 the Seller 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;
8.2.5 the above warranty does not extend to materials not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3 Any claim by the Buyer which is based on a shortage in the quantity of Goods delivered or any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller in writing
8.3.1 within 3 workings days from the date of delivery in respect of shortages defects or failures immediately apparent on delivery (as well as on the carrier’s delivery note); or
8.3.2 within 14 days from the date of delivery or
8.3.3 (where the shortage or defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the shortage defect or failure.
If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such shortage defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. In no event shall the Buyer be entitled to reject the Goods on the basis of any shortage defect or failure which is so slight that it would be unreasonable for the Buyer to reject them.
8.4 Where any valid claim in respect of any of the Goods which is based on any shortage or defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to rectify the defect replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.5 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit, loss of business or loss of goodwill), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
8.6 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.6.1 Act of God, explosion, flood, tempest, fire or accident;
8.6.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.6.3 acts, restrictions, regulations, bye‑laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.6.4 import or export regulations or embargoes;
8.6.5 strikes, lock‑outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.6.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.6.7 power failure or breakdown in machinery.
9 Indemnity – Industrial Property rights
9.1 The Buyer shall not:
9.1.1 Make any modifications to the Goods or their packaging;
9.1.2 Alter, remove or tamper with any trade marks, numbers, or other means of identification used on or in relation to the Goods;
9.1.3 Use any of the trade marks in any way which might prejudice their distinctiveness or validity or the goodwill of the Seller.
9.2 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
9.3 The Buyer shall promptly and fully notify the Seller of any claim by any third party coming to its attention that the sale of the Goods infringes any rights of any other person, and the Buyer shall at the request and expense of the Seller do all such things as may be reasonably required to assist the Seller in resisting any proceedings in relation to any such claim.
Without prejudice to any other rights to which it may be entitled, either party may give notice in writing to the other terminating this agreement with immediate effect if:
a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
b) an order is made or a resolution is passed for the winding up of the other party or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party;
c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
d) a receiver is appointed of any of the other partys assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party or if any other person takes possession of or sells the other party’s assets;
e) the other party makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
f) the other party ceases to trade;
g) there is a change of control of the other party; or
h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
11.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
11.2 The Seller may assign the Contract or any part of it to any person, firm or company.
12.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
12.4 No term of these Conditions or the Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Contract.
12.5 Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of The Chartered Institute of Arbitrators.
12.6 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
Kan, 15 Compass Point, Ensign Way, Hamble, Hampshire, SO31 4RA.
Registered Office: 25 Crowsport, Hamble, Hampshire, SO31 4HG.