Terms and Conditions
General Terms and Conditions of Delivery and Payment
1.) Scope of Application of the Terms and Conditions
All deliveries and services, agreements and offers are carried out based exclusively upon the terms and conditions given here. These also apply to all future business transactions, even if they have not expressly been agreed. These terms are taken to be in effect, no later than, when the delivery or services are signed for. All other conditions of purchase that contradict our general terms and conditions of delivery and payment or that differ from them are herewith specifically invalidated.
Deliveries are carried out based upon written or verbal orders that are made solely and exclusively by customers, who are in turn resellers. Verbal orders must be confirmed in writing by us in order to become legally valid.We endeavor to carry out deliveries as fast as is possible, however without setting fixed delivery deadlines. Insofar as a customer sets a specific delivery deadline, the licence will be deemed to be valid when a subsequent delivery date is set of no later than 30 days after the set deadline without any statement. The earliest that we can be considered to be in delay of performance is after the subsequent deadline has passed.In the event of a delay in performance, or should it not be possible to carry out the performance due to a reason for which we are responsible due to gross negligence, the rights of the customer are limited to terminating the licence pursuant to statutory provisions. Further claims are excluded, in particular claims for compensation. Insofar as claims by non-merchants cannot be effectively excluded they are limited to making good the direct damage and the total amount of the order. Unforeseen events that make it impossible or difficult technically or economically to complete our obligation to provide the performance and for which we are not responsible entitle us to withdraw fully or partially from the licence or to postpone our deliveries appropriately without the buyer having a right to make a claim for damages or a subsequent delivery. We are entitled to make partial deliveries and partial performances at all times.If the customer delays receiving ordered goods by more than 10 days then we are entitled to withdraw from the licence without any further notice. If deliveries are delayed because the customer is in default with payment, after 30 days from due date of delivery any discounts or other incentivised terms attached to order will be void; after 45 days from due delivery date the licence will automatically be terminated. After the licence has been terminated we are entitled to claim damages to the amount of 30% of the gross amount of the order in addition to reimbursement of transportation costs and the rights to make further claims for damages. It is the responsibility of the customer to prove that we have not been damaged or that the damage is less than the sum claimed.
The prices shown in our respective price lists are charged for all orders. Previous price lists become invalid when a new one is published. Prices shown in our price lists are net purchase prices without value added tax. In the final instance, prices are ruling on date of despatch. Unless anything to the contrary has been agreed. Deliveries are free of charge to the address of the buyer including normal packaging. We add a small order fee for all orders under £250 net per stock location. Location 1 – OMM, Bushbaby, Extreme Food. Location 2 – Nordisk, Yeti, Grand Canyon. Location 3 – Lurbel.
Delivery will only be carried out to customers who hold a current licence with Ark for the use of the brand names and imagery in their stores. Licences are granted annually in conjunction with Ark’s sales team. Licences are brand specific. Licences do not automatically renew. Licences will include the business address of the customer as well as specifying both the physical and the web addresses where a customer may offer the products for sale. A breach of any part of the licence can result in the immediate cancellation of the licence in its entirety.
5.) Passage of Risk
Shipments are made at the risk of the Ark Group. The risk transfers to the customer as soon as the shipment has been delivered (to the customer or his nominated party). Discrepancies are to be advised to the Ark Group within 7 days of invoice date.
6.) Payment Conditions
Invoices become due upon dispatch of the goods. Our invoices are payable (calculated from the date of the invoice). All terms and discounts are conditional on payment within 30 days from date of invoice. In the event of a non-payment the purchaser is in default in payment from the 31st day. Should the purchaser choose to pay by credit card more than 7 days after the invoice date, then a fee (calculated at the current rate) will be added to the invoice value to cover the card charges that will be levied on us. Regardless of any differing terms and conditions on the part of the customer, we are entitled to set off payments by the customer against old debts upon notification to the customer. If costs and interest have accrued then each incoming payment is offset firstly against the costs, then against the interest and finally against the main performance. A payment is only considered to have been made when the money is at our disposal. If payment is made by cheque, the payment is only considered to have been made after the cheque has been cleared at the bank upon which it is drawn. If payment is made by automatic transfer, the payment is only considered to have been made after it has been irrevocably credited to our bank account. We are entitled to claim interest at the rate of 10% above bank base rate from the date of default. A charge of £10.00 + VAT will be raised for each demand for payment commencing from the second demand (a total of three demands for payment are permitted). The purchaser shall pay a handling charge of £35.00 + VAT for each declined bank transfer, uncleared cheque (returned cheque) in addition to any bank charges that are accrued. In accordance with generally accepted practice, deliveries are only made to new customers against cash on delivery or payment in advance until we are in possession of a satisfactory financial appraisal of the customer. Should we become aware of circumstances during the business relationship that place the creditworthiness of the customer in question, then we are entitled to demand all charged amounts immediately, including those from other sales transactions, and to cancel uncompleted orders. Insofar as the business relationship with the customer continues we are also entitled to demand payments in advance or payment by cash on delivery.
7.) Reservation of Ownership
Our goods remain our property until payment is made in full of all amounts charged arising from the business relationship between the customer and ourselves. The goods may be resold as part of orderly business on the part of the customer. Pledging or assigning the goods as security is not permitted.In the case of a resale our reservation of ownership extends to the charged selling price of the goods up to the amount of our price charged including interest on defaulted payment and ensuing legal costs. The customer shall transfer this charged selling price to us. We accept this assignment.We undertake to release the securities that are due to us under the foregoing terms and conditions when the purchaser so requests and at our discretion to the amount that its value exceeds the amounts charged to be secured by 20% or more. Insofar as third parties have access to the goods that are subject to reservation of ownership, especially by being pledged, the customer is to point out our ownership and inform us without delay so that we will be able to assert our right of ownership. In the event that the third party is unable to refund the accrued legal or out-of-court costs then the customer is liable to us in this regard. In the case of a default in payment or other action contrary to the terms of the licence on the part of the customer we are entitled to take back the goods that are subject to reservation of ownership or, if applicable, to demand the assignment of the rights to recover possession against third parties. Taking back of goods as well as pledging the goods subject to reservation of ownership on our part is not a ground to withdraw from the licence.
Visible defects to the delivered goods or errors in amounts are to be reported in writing within a cut-off period of eight days after receipt of the goods quoting the customer number, invoice number and date. The customer is to obtain from the carrier confirmation of damages detected as having been sustained through transportation. In the event of defects we are under obligation to rectify the fault or to provide replacements, at our discretion. We will take the goods back at the current price should it not be possible to provide replacements or rectify faults, however, at no higher than the price of delivery. Any warranty is excluded for damage that results from improper use and handling, natural wear and tear, excessive use or other natural influences. Insofar as we have given a guarantee to the first owner (first purchaser of our customer) for our products in respect of faults in materials and manufacture we will take the goods back under the same, aforesaid conditions.
9.) Data Storage
The purchaser should note that we store all information about the purchaser that is necessary for the purposes of automatic data processing as a result of the contractual relationship. The purchaser waives the right to a special notification under the data protection law.
10.) Product Change
We retain the right to make changes to designs and models at any time; however, we are not under obligation to carry out such changes to products that have already been delivered.
11.) Returned Goods and Complaints
Customers should notify Ark's office for a returns form to assist in dealing with any complaints. Customers should complete this form and send it to our office in Lancaster. After we have acknowledged the complaint the customer will receive a substitute delivery or alternatively a credit for the goods that were the subject of the complaint. The customer must store the goods that were the subject of the complaint as proof until the next visit of our responsible sales representative and hand these goods to the representative.
Should a stipulation in these terms and conditions of delivery and payment or a stipulation in another agreement be or become ineffective then this shall not influence the effectiveness of all other stipulations or agreements. England is the place of fulfilment and sole place of jurisdiction for all disputes. English law applies to all points at issue that have not been set out in these terms and conditions.
All disputes that arise from this licence or are in connection with it shall be decided by arbitration in accordance with the Arbitration Act 1996.
This licence is agreed for a minimum period of 1 year, after which time either party may terminate on one months’ written notice. In such cases, all outstanding trade balances under this licence become due immediately.