B2B (Not for sales to consumer)
“Business Day“ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Conditions“ means these terms and conditions of Sale of Goods and IKAWA shall reserve the right, at any time, to modify these Conditions. The Conditions which you accept to be bound by shall be the most recent version at the time of the Order. It is your responsibility to ensure that you have read and understood the Conditions as once the Order is accepted you will be deemed to have accepted them without reserve. We shall not be bound to notify previous Buyers of any amendments to the Conditions.
“Contract” means the contract between You and Us for the supply of the Goods which arises from your order and our acceptance of Your order.
“Goods” means the products which We have supplied to You following an order from You.
“Order” means Your order for the Goods, as set out in Your purchase order form.
“VAT rate” means the rate of Value Added Tax applying in the UK at the date of dispatch of the Goods from us.
“Warranty Terms” has the meaning given In clause 11.
“We/Us/Our/Seller” means IKAWA Ltd (company number 07133409) of Unit 9, Bayford Street Business Centre, London Fields, London E8 3SE (hereafter ‘IKAWA’).
“You/Your/Buyer” means the person, firm or company to whom the Goods are supplied.
a) a reference to a statute or statutory provision is a reference to such statute or 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.
b) 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.
c) a reference to writing or written includes emails.
2. Structure of the Contract
Every contract between Us and You will be subject only to these Conditions and the Warranty Terms and all other terms, conditions and warranties, whether written or implied (including any terms which You purport to apply through any conversation, negotiation, or implied by trade, custom, practice or course of dealing) will not apply.
For the avoidance of doubt, acceptance by Us of Your order shall not imply acceptance by Us of any terms and conditions accompanying, endorsed upon or relating to any such order. No contract for the sale of goods shall be concluded until We have issued an Acknowledgement of Order. Our acceptance of Your sales order is confirmed by an Acknowledgement of Order which shall be deemed conclusive evidence of Your acceptance of these Conditions.
3.1: All quotations which We provide to You for the supply of Goods:
a) are based upon the cost of materials, utilities, transport and labour at the date of the quotation;
b) are subject to these Conditions;
c) are valid for 30 days from the date of the quotation unless We have otherwise specified in writing;
d) do not constitute an offer to supply the Goods.
3.2: You must ensure that all the details You include in an order are complete and accurate. Each of Your orders for Goods constitutes an offer to purchase the Goods subject to these Conditions. After we receive an Order from You either in writing, by email, by telephone or by word of mouth, we will communicate to You by email or by written acknowledgement whether or not we will accept Your order. Our acceptance of Your order means that a contract has been set up between You and Us. No Contract shall be set up without either a written or emailed confirmation. We may use our discretion to refuse an Order particularly in circumstances where we have insufficient goods available to satisfy your Order or when there are unpaid invoices in your name, or when your creditworthiness is unacceptable to Us. A Contract set up shall be binding on both You and Us and You have no right to change it any way whatsoever.
All descriptions and illustrations contained in Our website, catalogue(s), price list(s) and /or advertisements or otherwise communicated to You are intended to present a general idea of the Goods described and not intended to form part of the Contract or have any contractual force. If a sample of Goods supplied but not manufactured by Us was inspected by You, You agree that such samples were inspected solely to enable You to judge for yourself the general quality of the Goods and not so as to constitute a sale by sample. We reserve the right to make substitutions and modifications to the specifications of the Goods, provided that this does not materially affect their performance.
5.1: The price of Goods shall be as is stated by Us in the Acknowledgment of Order and is net of VAT at the appropriate rate.
5.2: Where shipping, insurance, storage or any other charges are shown separately from the price of Goods they are nonetheless payable by You at the same time as if they form part of the price and shall be treated as such for the purpose of these Conditions.
5.3: We reserve the right at any time before delivery of the Goods to revise the price (to reflect changes in costs of raw materials, transport, labour etc) except in the case that a fixed price has been agreed with you. We shall notify You as soon as possible of any price alteration and this will serve to vary the Contract. Where the price alteration exceeds 10% of the net price of Goods, You shall have the right to cancel the order, provided such cancellation is received within 7 days of the Order.
You may only cancel the Contract with Our prior written consent and prior to the dispatch of the Goods. If We agree to Your request to cancel the Contract (other than in the case of our price increase under section 5 of these Conditions), a cancellation charge of 20% of the agreed price will be levied to cover handling, administration and other costs incurred by Us.
7.1: Payment shall be made to Us in full in cleared funds to the bank account we nominate in our Acknowledgment of Order but in any event within 31 days of the date of the invoice relating to the Goods.
7.2: We reserve the right to require payment for the Goods prior to delivery or despatch. Time of payment shall be of the essence in the Contract.
7.3: We may withhold the delivery of further Orders to You if any sums are overdue under the Contract or terminate the Contract.
7.4: We shall be entitled to charge interest at a rate of 2% per month above HSBC’s base rate from time to time calculated on a daily basis from the due date until actual payment of the overdue amount.
7.5: You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by You against any amount payable by Us to You.
8.1: We may deliver by instalments and treat each delivery as a separate contract.
8.2: The place of delivery shall be to the address You specified in Your Order (the ‘Delivery Location’). Delivery is completed on the completion of the unloading of the Goods at the Delivery Location
8.3: If You fail to accept delivery of the Goods or if We are unable to deliver the Goods in time because You have not provided Us with appropriate delivery instructions or other relevant information, then at that time all additional costs will pass to You together with the risk in the Goods and the Goods may be deemed to have been delivered.
8.4: If You require advance notice of the approximate time of delivery, this must be requested in writing on Your Order.
8.5: All dates quoted for delivery shall be estimate only. Time of delivery shall not be of the essence.
8.6: We reserve the right to extend times for delivery by a reasonable period if the delay is a ‘Force Majeure’ event or Your failure to provide adequate delivery instruction or any other instructions that are relevant to the supply of the Goods. We shall not be liable for any delay in delivery as a result thereof.
8.7: If We fail to deliver the Goods, Our liability shall be limited to the costs and expenses incurred by You in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. We shall have no liability for any failure to deliver the Goods 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 Goods.
9. Risk and Property
9.1: Property in the Goods shall not pass from Us to You until You have paid for the Goods in full. The Goods shall be at Your risk on completion of delivery (in accordance with Clause 8).
9.2: Until title to the Goods has passed to You, You shall:
a) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
b) notify Us immediately if You become subject to any of the events listed in clause 14.1.
9.3: If before title to the Goods passes to You, You become subject to any of the events listed in clause 14.1, then, without limiting any other right or remedy We may have, We may at any time:
a) require You to deliver up all Goods in Your possession that have not been resold, or irrevocably incorporated into another product; and
b) if You fail to do so promptly, enter any premises of Yours or of any third party where the Goods are stored in order to recover them.
10. Verification of Goods
It is Your responsibility to verify the Goods and their condition upon delivery. In the event that You observe that either the Goods are not what We confirmed in Our Acknowledgment of Order that We (or our delivery agents) would deliver to You or that they are damaged then You must immediately inform Us of the issue. We shall have no liability for loss or damage to the Goods if You do not notify Us in writing within 5 days of the date of delivery of damage to the Goods or of either partial or total loss of the Goods.
11. Machine Warranty and After Sales service
11.1: We warrant that the Goods will remain for a period ending on the later of 12 months from the date of the Contract or the date of delivery of the Goods (“Warranty Period”):
a) of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
b) free from any material defect in design, workmanship and materials. We also warrant that the Goods shall, for the Warranty Period, correspond with any agreed written specification. Please consult the IKAWA website (www.ikawacoffee.com/corporate/legal/pro-warranty/) for our full warranty terms.
11.2: The warranty described above is given in lieu of and shall be deemed to exclude all other warranties and conditions whether express or implied whether arising by common law, statute or otherwise, other than that relating to title in the Goods.
11.3: All Goods are sold on the basis that You are not a consumer nor deal as a consumer within the meaning of the Unfair Contract Terms Act 1977 and that You have satisfied Yourself as to the suitability of the Goods for use or resale in accordance with Your own specialised knowledge and skill.
11.4: These Conditions shall apply to any repaired or replacement Goods supplied by Us.
12. Limitation of Liability
12.1: The photographs, videos and texts illustrating and describing the Goods on the IKAWA website are non-contractual and for information purposes only. We shall not be liable for any error or omission in them.
12.2: Except as provided under the Unfair Contract Terms Act 1977 and without limiting the scope of these Conditions, no claim of any kind, whether concerning the Goods delivered or non-delivered, shall exceed the cost to You of replacing or repairing the Goods. Except as provided under the Unfair Contract Terms Act 1977 We shall under no circumstances be liable to You for any loss of profit, any indirect loss or consequential loss arising in connection with these Conditions. 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 these Conditions.
You agree to indemnify and hold Us harmless against: i) all claims relating to the Goods sold to You in respect of any loss, damage or expense sustained by any third party, and ii) any costs or losses incurred by Us directly or indirectly due to Your default, except only in respect of death or personal injury caused by Our negligence or the negligence of our employees or agents.
14.1: Without limiting Our 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) fail to remedy that breach within 7 days of You being notified in writing to do so;
b) You take any step or action in connection with You entering administration, provisional liquidation or any composition or arrangement with Your 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 Your assets or ceasing to carry on business;
c) You suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of Your business; or
d) Your financial position deteriorates to such an extent that in Our opinion Your capability to adequately fulfil Your obligations under the Contract has been placed in jeopardy.
14.2: Without limiting Our other rights or remedies, We may suspend provision of the Goods under the Contract or any other contract between You and Us if You become subject to any of the events listed in clause 14.1: (a) to clause 14.1(d), or We 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 Our 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 Us all of Your outstanding unpaid invoices and interest.
14.5: 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.
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 shall remain in full force and effect.
15. Force Majeure
We will make every reasonable effort to fulfil Our obligations under the contract between You and Us. However, We cannot be held responsible or liable for delays or failure to deliver caused by circumstances beyond Our reasonable control. Such circumstances include strikes, wars, natural catastrophes or any other events that make it impractical or impossible for Us to produce or deliver the Goods that You have ordered. In the event of delay, We will perform Our obligations as soon as reasonably possible, and We reserve the right to allocate any remaining Goods amongst Our customers in a fair and reasonable way, or to suspend or cancel the whole or part of any delivery.
16. No Waiver
The failure or delay by Us to enforce any provision of these Conditions shall not be treated as a waiver of that provision, nor shall it affect Our right subsequently to enforce that provision.
a) Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in the Order; 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
c) This clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
18.1: You may not assign or transfer any Contract to which these Conditions apply.
18.2: You agree to be bound by these Conditions, which you consider to be reasonable. If any clause of these Conditions is held by any Court or competent authority as invalid or unenforceable in whole or in part the validity of the remainder of these Conditions shall not be affected.
18.3: These Conditions represent the entire agreement and understanding between You and Us and supersede any previous agreement or understanding between You and Us relating to the subject matter of these Conditions. You acknowledge that You have not relied on any statement, promise, representation assurance or warranty made or given by or on behalf of Us that is not set out in these Conditions.
18.4: A person who is not a party to these Conditions may not enforce any of its terms under the Contract (Rights of Third Parties) Act 1999.
19. Applicable Law
The Contract between You and Us shall be governed by English Law. All disputes between You and Us concerning the Contract shall be subject to the jurisdiction of the High Court of London. The Contract and these Conditions are drawn up in the English language. If the Contract and/or these Conditions are translated into another language the English language text will prevail. All legal proceedings shall be conducted in English.
1st May 2019