CONSOLIDATED SALE OF GOODS TERMS AND CONDITIONS
These Conditions set out the basis on which 3DGBIRE will enter into the Contract with the Customer for the sale of Goods via the 3DGBIRE Website.
3DGBIRE acknowledges that, in entering into the Contract, the Customer will be either a Consumer or a Business (each of which are defined in clause 1 of these Conditions, below). In some areas of these Conditions, the Customer will have differing rights and obligations depending on whether it is entering into the Contract as a Consumer or a Business. These Conditions will clearly identify which clauses apply to only Businesses and which clauses apply to only Consumers, by including the statement “if the Customer is a Business” (with such clauses in blue font) or “if the Customer is a Consumer” (with such clauses in red font). Where no such indication is made, the relevant clause shall apply to both Businesses and Consumers (with such clauses in black font).
These Conditions adopt the use of defined terms, which be referred to throughout these Conditions and shall have the meaning given to them in clause 1 these Conditions, immediately below. In the event that the Customer has any queries regarding its legal status, or which of these Conditions apply to it, then it must raise the same prior to entering into the Contract, in accordance with the clause 18 (service of notices).
The Customer’s attention is particularly drawn to the provisions of clause 5 (Intellectual Property Rights), clause 11 (Price and Payment), clause 12 (Liability – Consumers), clause 13 (Liability and Indemnity – Businesses), clause 14 (Termination of the Contract by 3DGBIRE) and clause 15 (Termination and the Right to Change Your Mind).
- DEFINITIONS AND INTERPRETATION
1.1. The following definitions apply in these Conditions:
3DGBIRE: 3DGBIRE Limited, a company registered in England and Wales with company number 09815709 and whose registered office is Unit 44 & 45 Chorley North Industrial Park, Drumhead Road, Chorley, England, PR6 7BX.
3DGBIRE Website: https://www.3damps.com/.
Business: a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: these terms and conditions.
Confidential Information: information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of a party for the time being confidential to it and trade secrets including, without limitation, technical data and know-how relating to its business or any of its or their suppliers, customers, agents, distributors, shareholders, management or business contacts and, whether or not such information (if in anything other than oral form) is marked confidential.
Consumer: an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.
Contract: the contract between 3DGBIRE and the Customer for the sale of Goods in accordance with these Conditions.
Copy: has the meaning given in clause 4.1(a) and Copies shall be construed accordingly.
Customer: the Business or Consumer to which or whom 3DGBIRE wishes to provide the Goods and which wishes to purchase the Goods and from 3DGBIRE.
Customer IPRs: any and all Intellectual Property Rights which are provided to 3DGBIRE in order for the Goods to be manufactured under the Contract, including those forming part of the Customer’s Specification.
Delivery Location: the Customer’s premises or other such location as may be confirmed by 3DGBIRE within the Order Confirmation.
Force Majeure Event: any circumstance not within a party’s reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, restrictions arising out any other Force Majeure Event; collapse of buildings, fire, explosion or accident; and interruption or failure of utility service.
Goods: the goods (or any part of them), as set out in the Order, having been referred to initially within the Promotional Materials and any applicable Specification.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses: any actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements.
Order: the Customer’s order for the supply of Goods.
Order Confirmation: 3DGBIRE’s written confirmation that the Order is accepted, or in the absence of which that the Goods are to be shipped.
Promotional Materials: the 3DGBIRE Website, 3DGBIRE’s catalogues, brochures or such other applicable sales or promotional literature, materials or publications.
Quotation: means 3DGBIRE’s written quotation for the supply of the Goods, issued in accordance with clause 2.2 and which to the extent of any inconsistency shall take precedence over these Conditions.
Specification: any specification for the Goods, the intended function of the Goods, the temperature at which the Goods are to operate and the material that the Goods are to be printed in and which may take the form of a digital or tangible file, including any related concepts, images, plans, drawings and physical parts or prototypes.
1.2. In these Conditions, the following rules of interpretation apply:
(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 or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(e) a reference to writing or written includes and emails; and
(f) unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- USE OF THE 3DGBIRE WEBSITE AND FORMATION OF CONTRACT
2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2. In advance of raising the Order, the parties shall engage in pre-contractual discussions with a view to clarifying and better understanding the Customer’s requirements for the Goods and their intended usage, detailing and agreeing upon the Specification and issuing the Quotation. The Customer agrees and acknowledges that no pre-contractual discussions shall constitute advice issued on the part of 3DGBIRE and that 3DGBIRE owes no duty of care to the Customer at this stage. Following such pre-contractual discussions, 3DGBIRE shall return to the Customer with the Quotation including the Specification and which for the avoidance of doubt shall not constitute an offer capable of acceptance.
2.3. If the Customer wishes to purchase the Goods based on the Quotation, then the Customer shall first be required to raise an Order for the Goods.
2.4. An Order can be raised in the following ways:
(a) via the 3DGBIRE Website (either by creating an account or otherwise proceeding as a guest), by selecting the applicable Goods, delivery method and then proceeding to complete the Order;
(b) via email, by contacting one of 3DGBIRE’s authorised representatives; or
(c) via telephone, by contacting the number on the ‘Contact Us’ page on the 3DGBIRE Website.
2.5. When raising an Order, the Customer warrants (a warranty is a contractual promise which, if breached, will give rise to a damages claim) that:
(a) if the Customer is a Consumer, it is at least 18 years old; and
(b) if the Customer is a Business, it has the requisite authority on behalf of that Business to enter into the Contract with 3DGBIRE.
2.6. The Order constitutes an offer by the Customer to enter into a Contract in accordance with these Conditions and shall not incorporate any other terms and conditions beyond those set out in the Contract. In practice, this means that if the Customer is purchasing any Goods based on the Specification (whether issued by the Customer or 3DGBIRE in accordance with clause 2,2), it is the Customer’s responsibility to ensure that such is completely and accurately reflected in any Order that it wishes to raise.
2.7. Once the Order has been placed by the Customer, 3DGBIRE will assign the Order a unique reference number which shall be provided to the Customer in writing. To assist 3DGBIRE with any queries regarding the Goods, the Customer shall quote the applicable reference number. Following receipt of the Order but in advance of the Contract being formed in accordance with clause 2.8, 3DGBIRE may make further contact with the Customer for the purposes of clarifying the final form of the Specification. Upon agreeing the final form of the Specification, the Customer shall be deemed to have issued a new Order, incorporating and subject to that final form of Specification.
2.8. 3DGBIRE may reject any Order that the Customer raises or is deemed to have raised at its absolute discretion (including where it considers at its absolute discretion that the Goods constitute firearms, illegal items or otherwise infringe the rights, including the Intellectual Property Rights of any third party) and for any reason whatsoever and the Order shall only be deemed to be accepted at the earlier of when 3DGBIRE:
(a) issues an Order Confirmation to the Customer; or
(b) commenced with performance of its obligations under the Contract,
at which point the Contract shall come into existence. Where 3DGBIRE rejects any Order raised by the Customer in accordance with this clause 2.8, 3DGBIRE shall immediately refund any sums that have been paid by the Customer when placing the Order. The Customer agrees that the entering into of the Contract shall not constitute 3DGBIRE’s confirmation that the Goods are legal items, nor that they do not infringe the rights (including the Intellectual Property Rights) of any third party and where this comes to the attention of 3DGBIRE at any subsequent stage, it may cancel the Contract without liability or further obligation to the Customer.
2.9. Without prejudice to the Customer’s status as either a Business or a Consumer, the Customer shall be responsible for ensuring and warrants that the terms outlined on 3DGBIRE’s Website, in the Quotation, the Order and any Specification (notwithstanding whether it was issued by the Customer or 3DGBIRE in accordance with clause 2.2) are complete and accurate.
2.10. Any samples, drawings, descriptive matter or advertising produced by 3DGBIRE and any descriptions or illustrations contained in the Promotional Materials are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force and prior to raising the Order, it is the Customer’s responsibility to ensure that the Goods are suitable for the Customer’s intended application or use.
- CHANGES TO THE CONTRACT
3.1. 3DGBIRE reserves the right to change the Contract to reflect any changes in relevant laws and regulatory requirements, or to implement minor technical adjustments and improvements to the Goods. In the event that 3DGBIRE makes a material change to the Contract then, subject to these Conditions, if the Customer is a Consumer it shall be entitled to terminate the Contract and receive a refund of any payments made for any Goods and not yet provided.
3.2. If the Customer is a Business, the Order, once accepted, may not be cancelled by the Customer except with the prior agreement of 3DGBIRE in writing. Without prejudice to any further terms that may be agreed between the parties, any such agreement is on the basis that the Customer shall indemnify 3DGBIRE in full against all Losses (which for the purpose of this clause shall include the cost of labour and materials, loss of profit, loss of business, loss of goodwill, loss of business opportunity, loss of anticipated saving and any other indirect, special or consequential loss) incurred by 3DGBIRE as a result of such cancellation.
3.3. If the Customer is a Consumer and it wants to change the Order once it has been accepted before the Goods have been delivered, then it will be required to contact 3DGBIRE, outlining any changes that it would like to make to the Contract. If such changes are possible, then 3DGBIRE will notify the Customer of such, also setting out any changes to the price of the Goods, timing of delivery and any other necessary changes as a result of the Customer’s changes, and this will be confirmed in writing. Thereafter, should the Customer not accept the changes and wish to terminate the Contract, clause 15 and clause 16 set out the procedure for doing so.
- THE GOODS
4.1. Upon entering into the Contract and receipt of payment in accordance with clause 11.4, 3DGBIRE shall:
(a) print a copy of the Goods (Copy) and send this to the Customer for validation, including against the Specification. The Customer shall feed back to 3DGBIRE in writing as to any required amendments to the Copy and 3DGBIRE shall repeat the process in this clause. The Customer agrees that 3DGBIRE shall produce no more than 5 Copies prior to further charges being incurred as notified to it by 3DGBIRE; or
(b) where it has received an STL file from the Customer as part of the Specification, immediately commence to print the Goods and in which case the Customer agrees that it shall have no entitlement to any Copies.
4.2. The Goods are described in the Promotional Materials as modified or supplemented by any applicable Specification. 3DGBIRE makes no warranties, undertakings or representations that the validity of any:
(a) policies of insurance held by the Customer (including car insurance); and
(b) warranties benefitted from by the Customer (including car warranties),
will not be invalided as a result of the Customer’s use of the Goods.
4.3. 3DGBIRE reserves the right to amend the specification of the Goods and, where applicable, the Specification if required by any applicable statutory or regulatory requirements from time to time in force or to improve the Goods where to do so would not have a material adverse effect on the Customer.
4.4. If for any reason beyond its control, 3DGBIRE is unable to supply a particular item of Goods, 3DGBIRE will notify the Customer of such. 3DGBIRE will use reasonable endeavours to replace it with an item of equivalent or superior standard and value; however, if it is unable to do so, then if the Customer is a Consumer, then it may be able to terminate the contract (see clause 15).
- INTELLECTUAL PROPERTY RIGHTS – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
5.1. 3DGBIRE acknowledges that the Customer IPRs are and remain the exclusive property of the Customer or, where applicable, the third-party licensor from whom the Customer derives the right to use them.
5.2. The Customer agrees and acknowledges that any and all Intellectual Property Rights used for the manufacture of the Goods that originate from 3DGBIRE shall remain the exclusive property of 3DGBIRE or, where applicable, the third party licensor from whom 3DGBIRE derives the right to use them.
5.3. The Customer hereby grants to 3DGBIRE a non-exclusive, transferable, royalty-free licence (including the right to grant sub-licences to third party subcontractors) to use the Customer IPRs for:
(a) the purpose of performing its obligations under this agreement; and
(b) advertising, marketing and promotional purposes, including but not limited to 3DGBIRE’s disclosure of the nature of the Goods supplied under the Contract within its Promotional Materials.
5.4. 3DGBIRE makes no warranty and provides no assurance to the Customer that the Goods (and any Intellectual Property Rights subsisting therein) shall not breach the rights (including Intellectual Property Rights) of any third parties.
5.5. The Customer warrants and undertakes (an undertaking is a promise by each party under the Contract, which if breached could give rise to a claim that a serious breach of the Contract has taken place) that:
(a) the Customer IPRs;
(b) the Specification (whether provided by the Customer or not); and
(c) the manufacture of the Goods by 3DGBIRE in accordance with the Order,
do not and shall not breach the rights (including Intellectual Property Rights) of any third parties.
5.6. The Customer shall indemnify 3DGBIRE against any and all Losses (including those which are direct, indirect or consequential, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by 3DGBIRE in connection with any actual or threatened claim made against 3DGBIRE for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with any breach by the Customer of a warranty or undertaken set out in this agreement. This clause 5.6 shall survive termination of the Contract. If the Customer is a Consumer, this indemnity is a contractual promise by the Customer that it will pay to 3DGBIRE (following a demand for payment made by 3DGBIRE) compensation for any Losses (please note the definition of Losses at clause 1 of these Conditions) that 3DGBIRE suffers on a pound for pound basis as a result of its use of the Customer IPRs, the Specification and/or the manufacture of the Goods further to the Order and any other contractual promise being made by the Customer being found to be untrue or otherwise causing any third party’s Intellectual Property Rights to be breached.
- DELIVERY – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A BUSINESS
6.1. 3DGBIRE shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and 3DGBIRE reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if 3DGBIRE requires the Customer to return any packaging materials to 3DGBIRE, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as 3DGBIRE shall reasonably request. Returns of packaging materials shall be at 3DGBIRE’s expense.
6.2. 3DGBIRE (or, where appropriate, the instructed carrier) shall deliver the Goods to the Delivery Location or such other location as the parties may agree.
6.3. Unless otherwise agreed, delivery of the Goods shall be on the basis of:
(a) EXW (3DGBIRE’s address as first set out above) (Ex Works – Incoterms 2020) where the final destination for the Goods is in the United Kingdom; or
(b) FCA (3DGBIRE’s address as first set out above) (Free Carrier – Incoterms 2020) where the final destination for the Goods is outside of the United Kingdom.
6.4. Any dates quoted for delivery are approximate only and 3DGBIRE is under no obligation to provide an estimated delivery time. If a quoted date for delivery is not provided, delivery will be made within a reasonable time.
6.5. The time of delivery is not of the essence.
6.6. 3DGBIRE shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event suffered by it or an instructed carrier (save where it is reasonably practicable to instruct another carrier) or the Customer’s failure to provide 3DGBIRE with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.7. If the Customer fails to take delivery of the Goods within seven Business Days of 3DGBIRE notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the fourth Business Day after the day on which 3DGBIRE notified the Customer that the Goods were ready; and
(b) 3DGBIRE shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
6.8. If 10 Business Days after the day on which 3DGBIRE notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, 3DGBIRE may resell or otherwise dispose of part or all of the Goods.
6.9. 3DGBIRE may deliver the Goods by 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 the Customer to cancel any other instalment.
- DELIVERY – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A CONSUMER
7.1. The costs of delivery of the Goods shall be as set out in the Quotation).
7.2. 3DGBIRE will deliver the Goods as soon as reasonably possible and otherwise within 30 days from the date on which the Contract came into existence.
7.3. If nobody is available at the Delivery Location to take delivery and the Goods cannot be posted through the letterbox at the Delivery Location, then 3DGBIRE (via its instructed carrier) will take reasonable steps to leave the Goods either in a safe place at or near the Delivery Location or with a neighbour.
7.4. If, in the event that 3DGBIRE (via its instructed carrier) is unable to deliver Goods to the Delivery Location, a safe place at or near the Delivery Location or with a neighbour in accordance with clause 7.3, and the he Customer does not re-arrange delivery or collect them from 3DGBIRE, 3DGBIRE will contact the Customer for further instructions and may charge the Customer for storage costs and any further delivery costs. If, despite 3DGBIRE’s reasonable efforts, it is still unable to contact the Customer or re-arrange delivery or collection, 3DGBIRE may terminate the Contract (see clause 15).
7.5. The Customer will only own the Goods once 3DGBIRE has received payment in full, whether or not delivery of the Goods has already taken place prior to this time. In the event that, following delivery of the Goods and 3DGBIRE’s reasonable attempts to obtain payment from the Customer, the Customer fails to make payment, 3DGBIRE reserve the right to enter the Customer’s premises and retrieve those in respect of which 3DGBIRE has still not received payment.
- QUALITY – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A BUSINESS
8.1. The Customer shall be required to inspect the Goods immediately upon receipt. In the event that:
(a) there are any damages or defects in the Goods; or
(b) an incorrect quantity of the Goods has been received; or
(c) anything other than the Goods are received,
the Customer shall be required to notify 3DGBIRE within 10 Business Days of receipt. Where no such notification is made by the Customer to 3DGBIRE in accordance with this clause, the Goods shall be deemed to have been accepted in all respects by the Customer (Acceptance).
8.2. Without prejudice to clause 8.1 and subject to the Customer’s warranty at clause 2.9, 3DGBIRE warrants that on delivery, and for a period of:
(a) 12 months from the date of delivery; or
(b) such other period as may be specified in the Promotional Materials,
(Warranty Period), the Goods shall:
(c) conform in all material respects with their description and any applicable Specification;
(d) be free from material defects in design, material and workmanship;
(e) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(f) be fit for any purpose held out by 3DGBIRE.
8.3. Subject to clause 8.4, if:
(a) the Customer gives notice in writing to 3DGBIRE during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 8.2;
(b) 3DGBIRE is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by 3DGBIRE) returns such Goods to 3DGBIRE’s place of business at the Customer’s cost (such reasonable return costs to be refunded to the Customer if the Goods are found to not comply with the warranty set out in clause 8.2),
3DGBIRE shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full in addition to any reasonable return costs in accordance with clause 8.3(c).
8.4. 3DGBIRE shall not be liable for the Goods’ failure to comply with the warranty set out in clause 8.2 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 8.3;
(b) the defect arises because the Customer failed to follow 3DGBIRE or the manufacturer’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of 3DGBIRE following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of 3DGBIRE;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description and any Specification provided as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.5. Except as provided in this clause 8, 3DGBIRE shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 8.2.
8.6. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
8.7. These Conditions shall apply to any repaired or replacement Goods supplied by 3DGBIRE.
- QUALITY – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A CONSUMER
9.1. If, following delivery of the Goods, the Customer notices any problems with the products, then it shall contact 3DGBIRE
(a) via email, by contacting one of 3DGBIRE’s authorised representatives; or
(b) via telephone, by contacting the number on the ‘Contact Us’ page on the 3DGBIRE Website.
9.2. 3DGBIRE is under a legal duty to supply Goods that are in conformity with the Contract. As a Consumer, the Customer has certain legal rights in relation to Goods that are faulty or not as described. 3DGBIRE is under a duty to supply Goods that are in conformity with the Contract, and the Consumer Rights Act 2015 states that the Goods must be as described, fit for purpose and of a satisfactory quality.
9.3. In the event that 3DGBIRE breaches its obligations under this clause 9, then the Customer may have a right to terminate the Contract (please see clause 15).
- TITLE – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A BUSINESS
10.1. Title to the Goods shall not pass to the Customer until the earlier of:
(a) 3DGBIRE receiving payment in full (in cash or cleared funds) for the Goods; or
(b) the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 10.4 and the proceeds of sale shall be immediately accounted to 3DGBIRE and otherwise held in a fiduciary capacity on trust for 3DGBIRE to the extent of any liability for unpaid sums.
10.2. Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as 3DGBIRE’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify 3DGBIRE immediately if it becomes subject to any of the events listed in clause 14.2; and
(e) give 3DGBIRE such information relating to the Goods as 3DGBIRE may require from time to time.
10.3. Subject to clause 10.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before 3DGBIRE receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as 3DGBIRE’s agent; and
(b) title to the Goods shall pass from 3DGBIRE to the Customer immediately before the time at which resale by the Customer occurs.
10.4. If before title to the Goods passes to the Customer the Customer fails to make any payment to 3DGBIRE when due or becomes subject to any of the events listed in clause 14.2, then, without limiting any other right or remedy 3DGBIRE may have:
(a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) 3DGBIRE may at any time:
- require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
- if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
- PRICE AND PAYMENT – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
11.1. The price of the Goods shall be as set out in the Quotation.
11.2. If the Customer is a Business, 3DGBIRE may by giving notice to the Customer at any time before delivery of the Goods, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to any:
(a) factor beyond 3DGBIRE’s control (including foreign exchange fluctuations, increases in taxes and duties (which shall include import and export duties), and increases in labour, materials and other manufacturing costs);
(b) request by the Customer to change the delivery and/or performance date(s), quantities or types of Goods ordered, or the Specification; or
(c) delay caused by any instructions of the Customer or failure of the Customer to give 3DGBIRE adequate or accurate information or instructions.
11.3. 3DGBIRE shall invoice the Customer for the Goods in advance of delivery of the Goods.
11.4. Save to the extent set out in the Quotation or unless otherwise agreed in writing between the parties, payment for the Goods must be made in advance of 3DGBIRE commencing performance of its obligations under this Contract.
11.5. In the case of all other invoices or payments under the Contract, the Customer shall pay each invoice in full and in cleared funds within 30 days of the date of that invoice.
11.6. Payments made under the Contact shall be made to the bank account nominated in writing by 3DGBIRE. Time for payment is of the essence, which means that if payment is not received within the required time frame then, in addition to its other rights and remedies under the Contract, 3DGBIRE shall be entitled to terminate the Contract.
11.7. All amounts payable by the Customer under the Contract are:
(a) inclusive of amounts in respect of value added tax chargeable from time to time (VAT), where the Customer is a Consumer; or
(b) exclusive of amounts in respect of VAT, which shall be added to the sums in question, where the Customer is a Business.
11.8. If the Customer fails to make any payment due to 3DGBIRE under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of:
(a) 8% per annum above the Bank of England’s base rate from time to time if the Customer is a Business; or
(b) 2% per annum above the Bank of England’s base rate from time to time if the Customer is a Consumer.
Interest due under this clause 11.8 shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
11.9. 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).
- LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE AND THIS CLAUSE ONLY APPLIES TO CONSUMERS
12.1. 3DGBIRE shall be responsible for loss or damage suffered by the Customer that is a foreseeable result of any failure by 3DGBIRE to comply with the Contract but, except as set out in clause 12.2, 3DGBIRE shall not be responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both parties knew it might happen, for example, if it was discussed between the parties during the sales process.
12.2. 3DGBIRE does not exclude or limit in any way its liability to the Customer where it would be unlawful to do so. This includes liability for death or personal injury caused by 3DGBIRE’s negligence or the negligence of 3DGBIRE’s employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of the Customers legal rights in respect of the Goods (as stated within clause 8).
- LIMITATION OF LIABILITY AND INDEMNITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE AND THIS CLAUSE ONLY APPLIES TO BUSINESSES
13.1. Nothing in the Contract shall limit or exclude 3DGBIRE’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) any other matter for which it is not legally possible to limit or exclude its liability.
13.2. Subject to clause 13.1, 3DGBIRE’s shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect, special or consequential Loss.
13.3. Subject to clause 13.1, 3DGBIRE’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any Losses suffered or incurred by it arising under or in connection with this Contract shall be limited to the price paid by the Customer to 3DGBIRE for the Goods in cleared funds under this Contract.
13.4. The Customer shall fully indemnify 3DGBIRE, keep 3DGBIRE indemnified and hold 3DGBIRE harmless for and against any and all Loss suffered or incurred by 3DGBIRE whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract.
- TERMINATION OF THE CONTRACT BY 3DGBIRE – THE CUSTOMER’S PARTICULAR ATTENTION IS DRAWN TO THIS CLAUSE
14.1. Without limiting its other rights or remedies, 3DGBIRE may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of being notified in writing to do so;
(b) the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to perform the Contract;
(c) there is an actual or suspected (in the reasonable opinion of 3DGBIRE) infringement of clause 5; or
(d) the Customer becomes subject to any of the events listed in clause 14.2.
14.2. For the purposes of clause 14.1, the relevant events are:
(a) the Customer (being a Business) suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer (being a Business) takes 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), 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) the Customer (being a Business) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) the Customer (being a Business) suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(e) the Customer’s financial position deteriorates to such an extent that in 3DGBIRE’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
(f) the Customer (being a Consumer) is the subject of a statutory demand, bankruptcy petition, application or order; and
(g) the Customer (being a Consumer) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.
14.3. Without limiting its other rights or remedies, 3DGBIRE may suspend provision of the Goods under the Contract or any other contract between the Customer and 3DGBIRE if the Customer becomes subject to any of the events listed in clause 14.2 (a) to clause 14.2 (g), or 3DGBIRE reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
14.4. Without limiting its other rights or remedies, 3DGBIRE may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
- TERMINATION AND THE RIGHT TO CHANGE YOUR MIND – THE CUSTOMER’S PARTICULAR ATTENTION IS DRAWN TO THIS CLAUSE AND THIS CLAUSE ONLY APPLIES TO CONSUMERS
15.1. Where the Customer is a Consumer, it can always terminate the Contract with 3DGBIRE. The Customer’s rights when it terminates the Contract will depend on the Goods that it has purchased, whether there is anything wrong with those Goods, the conduct of 3DGBIRE and when the Customer decides to terminate the Contract.
15.2. If the Customer is terminating the Contract for any reason set out in clause 15.2(a) to clause 15.2(e), then the Contract will be terminated immediately and 3DGBIRE will refund the Customer in full for any Goods which have not been provided. These reasons are:
(a) 3DGBIRE has informed the Customer about an upcoming material change to the Contract which the Customer does not agree to (see clause 3.1);
(b) 3DGBIRE has informed the Customer about an error in the price or description of the Goods which is 3DGBIRE’s fault and the Customer does not wish to proceed;
(c) there is a risk that supply of the Goods may be significantly delayed because of events outside of 3DGBIRE’s control (see clause 19 – Force Majeure);
(d) 3DGBIRE has suspended supply of the Goods for technical reasons, or notifies the Customer that it is going to suspend them for technical reasons, in each case for a period of more than 1 month; or
(e) the Customer has a legal right to end the Contract because of something that 3DGBIRE has done wrong. Please see clause 8 which sets out 3DGBIRE’s legal obligations to the Customer in relation to the supply of Goods, the breach of which may give the Customer the right to terminate the Contract.
15.3. Where the Customer has changed its mind about the Goods, then the Customer may be able to receive a refund where it has changed its mind within the cooling off period. However, this refund may be subject to reductions and the Customer will be required to pay the costs of returning the Goods to 3DGBIRE.
15.4. Where the Contract is for the sale of Goods, the Customer has 14 days after the day that the Goods have been delivered in order to change its mind, unless the Goods are split into several deliveries over different days. In this case the Customer has until 14 days after the day of the last delivery to change its mind about the Goods.
15.5. Where the Customer terminates the Contract under this clause 15, the Contract will end immediately and subject to the remaining provisions of these Conditions, 3DGBIRE will refund any sums paid by the Customer for any Goods not provided.
- HOW TO TERMINATE THE CONTRACT – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A CONSUMER
16.1. To terminate the Contract, please refer to clause 18 which sets out how notices are to be served under the Contract. In the event that the Customer wishes to terminate the contract via telephone, then it will also need to confirm such in writing in accordance with clause 18. Alternatively, the Customer can complete and return by email or by pre-paid post, addressed to 3DGBIRE’s registered office as above, the Model Cancellation Form contained within Schedule 1 of these Conditions.
16.2. Where the Customer wishes to terminate the Contract after the Goods have been dispatched, the Customer is required to return the Goods to 3DGBIRE, at its registered office address. Where the Goods are not suitable for posting, the Customer shall allow 3DGBIRE (or its instructed carrier) to collect them, acting reasonably at all times. Where the Customer is exercising the right to change its mind, it must return the Goods within 14 days of informing 3DGBIRE that it shall be terminating the Contract.
16.3. 3DGBIRE agrees to pay the costs of returning the Goods where the instances in clause 15.2(a) to clause 15.2(e) apply. In all other instances, which shall include where the Customer changes its mind, the Customer shall be responsible for the costs of returning the Goods.
16.4. If the Customer is responsible for the costs of returning the Goods and 3DGBIRE is arranging for collecting to take place, 3DGBIRE will charge the Customer for the associated collecting costs. Payment for charges under this clause 16.4 shall be made in accordance with the provisions of clause 11.
16.5. Any refunds that are due to the Customer under the Contract will be made using the same method of payment used by the Customer when purchasing the Goods and shall be made within 14 days from the day on which 3DGBIRE receives the Goods back from the Customer.
16.6. In addition to those reductions referred to in clause 15.3 or otherwise under the Contract, 3DGBIRE reserves the right to make further reductions to any refund to reflect any reduction in the value of the Goods, if such has been caused by the Customer’s mishandling of the Goods or any other damage caused by the Customer. In the event that 3DGBIRE refunds the Customer before it has had the opportunity to inspect them, upon 3DGBIRE’s identifying any loss of value, the Customer must pay to 3DGBIRE an appropriate amount as compensation for that loss.
- CONSEQUENCES OF TERMINATATION
17.1. Subject, in the case of the Customer being a Consumer, to any refunds (and reasonable deductions) being provided under clause 15 or 16, on termination of the Contract for any reason the Customer shall immediately pay to 3DGBIRE all of 3DGBIRE’s outstanding unpaid invoices and interest.
17.2. Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination. If the Customer is a Consumer, this means the termination of the Contract will not affect the Consumers legal rights should 3DGBIRE act in breach of its obligations under the Contract.
17.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
18.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company), its principal place of business (if a partnership, sole trader or otherwise), or if the Customer is a Consumer, its residential address; or
(b) sent by email to contact details specified in the Proposal or Order or otherwise as notified previously by that party or contained in these Conditions.
18.2. Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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 at the time recorded by the delivery service; or
(c) if sent by email, at 9.00 am on the next Business Day after transmission.
18.3. This clause does not apply to service of any proceedings or other documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.
- FORCE MAJEURE
19.1. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the Customer is a Consumer, please note the definition of Force Majeure Event at the beginning of these Conditions, which sets out the instances in which this clause 19 may be relevant.
19.2. 3DGBIRE shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
19.3. If a Force Majeure Event prevents, hinders or delays 3DGBIRE’s performance of its obligations for a continuous period of more than thirty days, the Customer may terminate the Contract immediately by giving written notice to 3DGBIRE and source the Goods from a third party supplier.
20.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 20.2.
20.2. Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 20; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
20.3. No party shall use any 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.
21.1. Assignment and other dealings.
(a) 3DGBIRE may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with (Transfer) all or any of its rights or obligations under the Contract. Where the Customer is a Consumer, any assignment or otherwise under this clause shall not adversely affect the supply of the Goods.
(b) The Customer may not Transfer any or all of its rights or obligations under the Contract without the prior written consent of 3DGBIRE.
21.2. Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of 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.
21.3. Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21.4. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21.5. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
21.6. Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms as though it were a party to it and the provisions of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded to the fullest extent permitted by law.
21.7. Privacy. Details on how 3DGBIRE handles personal information can be found within its Privacy and Cookies Policy, which is available on the 3DGBIRE Website via [INSERT LINK].
21.8. 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.
(a) Where the Customer is a Business, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
(b) Where the Customer is a Consumer, if the Customer lives in Scotland it can bring legal proceedings under the Contract in either the Scottish or the English courts. If the Customer lives in Northern Ireland it can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.