Business to Business - Terms & Conditions for Sale of Goods

B2B Terms &Conditions - V1

Updated 07 March 2023

The Buyer’s attention is particularly drawn to Clause 13

1. Definitions

Seller	means NightSearcher Ltd of Unit 4 Applied House, Fitzherbert Spur, Farlington, Portsmouth, Hampshire, PO6 1TT. Abbreviated to ‘Nightsearcher’ throughout this document
Buyer	the person, organization, firm or company who buys or agrees to buy the goods from the Seller, or on behalf of whom orders are received.
Conditions	the terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the Seller.
Goods	the items which the Buyer agrees to buy from the Seller as set out in the Schedule
Price	the price for the Goods, excluding VAT and any carriage, packaging and insurance costs
Force Majeure Event	has the meaning set out in Clause 15.
Absolute Assignment	is the act of complete transfer of the ownership (all rights, benefits and liabilities) of the policy completely to other party without any terms and condition.

2. Conditions

2.1 The following conditions apply to all business to business transactions with Nightsearcher Ltd.

2.2 Acceptance of delivery of the Goods shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.

3. Quotes

3.1 Quotes issued by Nightsearcher shall not constitute a formal offer and any purported acceptance of such quotes shall not constitute a binding contract.

3.2 Nightsearcher Quotations shall be valid for the period stated, or where there is no period stated then for a period of 30 days from the date of issue.

4. Orders, Acceptance and Cancellation

4.1 Any order placed by the Buyer represents a formal offer to purchase the product, which is only accepted by Nightsearcher when we dispatch the goods to the Buyer.

4.2 Any Order accepted by Nightsearcher shall be strictly subject to these Terms and Conditions of Sale (or any updated version thereof as notified to the Buyer from time to time). The Buyer understands and agrees that all future Orders accepted by Nightsearcher are subject to these Terms and Conditions regardless of any reference to, or any purported attempt to incorporate, alternative terms by the Buyer when placing any Order.

4.3 These Terms and Conditions represent the entire contract and no variations or other terms (written or oral) shall be incorporated unless confirmed in writing by Nightsearcher’s Managing Director.

4.4 No cancellation or amendment of any Order will be accepted unless received by Nightsearcher in writing at least three days before the delivery date notified by Nightsearcher to the Buyer.

4.5 No cancellation or amendment of an Order will be accepted where Product(s) have been manufactured ordered or purchased by Nightsearcher, to meet the Buyer's requirements or where a special price has been negotiated with the Buyer.

4.6 Subject to Clause 16, nothing in this Clause 4 affects the Buyer's statutory rights.

4.7 All prices quoted to the Buyer are on the basis of full quantities ordered by the Buyer. Nightsearcher reserves the right to revise prices in the event of alteration of the quantity of product(s) ordered.

4.8 The Buyer shall examine the goods immediately upon receipt and shall notify Nightsearcher in writing within 7 days of any shortage, or defective goods.

4.9 The Buyer must return the Goods to Nightsearcher at the Buyer’s cost for investigation and inspection of defective goods. See Clause 10 Warranties.

4.10 Where the Buyer has accepted the Goods, or has been deemed to have accepted, the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.

5. Price of Products

5.1 All prices quoted to the Buyer are on the basis of full quantities ordered by the Buyer. Nightsearcher reserves the right to revise prices in the event of alteration of the quantity of product(s) ordered.

5.2 The Price shall be the price quoted on Nightsearcher’s sales order (see clause 7.3 for carriage prices).

5.3 Any Order is accepted only on the condition that the price(s) of the Product(s) shall be those in force at the date we despatch the Product(s).

5.4 The currency will be GBP unless stated otherwise.

5.5 All prices and other sums payable by virtue of these Terms and Conditions are subject to the addition of Value Added Tax or such other tax required to be paid by law at the rate for the time being in force.

5.6 All prices are subject to change without prior notice.

5.7 Nightsearcher may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to any factor beyond Nightsearcher’s control (including but not limited to foreign exchange fluctuations and increases in taxes and duties).

6. Product(s) Specification

6.1 The Buyer shall, within 14 days from and including the date of the delivery of the Product(s), carry out, at its own expense tests to ensure that the Product(s) satisfies the Buyer reference specification as set out in the delivery note, and shall notify Nightsearcher in writing within such 14 day period of any failure of the Product(s) to meet the referenced Product(s) specification. If no such written notice is received by Nightsearcher within such 14 days, the Buyer shall be deemed to have accepted the Product(s) as satisfying the Product(s) specification.

6.2 Nightsearcher reserves the right to alter the specification of any Product(s) by providing alternative Product(s) with similar specification without prior notice to the Buyer and without liability on the part of Nightsearcher.

7. Delivery

7.1 Nightsearcher shall use its best endeavours to supply and deliver the Product(s) in accordance with any dates, addresses and any general instructions specified by the Buyer as to delivery, but Nightsearcher shall not be liable for any losses suffered by the Buyer by not complying with such instructions. For the avoidance of doubt, time will not be of the essence in respect of any Order or delivery date unless agreed in writing by a Director of Nightsearcher.

7.2 Delivery of the Goods shall be made to the Buyer’s address unless requested otherwise. The Buyer shall make all arrangements necessary to take delivery of the Goods on the day of delivery.

7.3 The Buyer shall pay reasonable delivery charges to Nightsearcher in addition to the product price. Carriage will be chargeable as per the price quoted on Nightsearcher’s confirmation of order.

7.4 If short delivery does take place, the Buyer may not reject the Goods but shall accept the Goods delivered as part performance of the contract. A balance shipment will be made or a pro-rata adjustment to the Price shall be made.

7.5 In the case of delivery of goods by installments the Buyer will not be entitled to treat the delivery of faulty goods in any one installment or the late delivery or non-delivery of any one instalment as a repudiation of the whole contract.

7.6 If the Buyer fails to take delivery of the Goods on the agreed delivery date or, if no specific delivery date has been agreed when the Goods are ready for despatch, Nightsearcher shall store and insure the Goods at any available place at the Buyer’s expense.

8. Title & Risk

8.1 Risk in the Product(s) shall pass from Nightsearcher to the Buyer on delivery of the Product(s) to the Buyer or the specified delivery address advised by the Buyer, or at the time of collection if the Buyer collects.

8.2 The title of the Product(s) shall remain the property of Nightsearcher until payments of all sums owing to Nightsearcher on any Product(s) have been discharged in full.

8.3 The Buyer shall not interfere with any of Nightsearcher's distinguishing marks or labels attached to the Product(s) before the Product(s) have been paid for in full.

8.4 The Buyer shall store the Product(s) separately from any other Product(s) until they become the Buyer's property or they are attached to or incorporated in other Product(s) or they are delivered to a purchaser by the Buyer.

8.5 If the Buyer sells the Product(s) to a purchaser, ownership of the Product(s) will pass to the Buyer immediately before the Product(s) are delivered to the Buyer's purchaser and the Buyer shall hold the proceeds of the sale on trust for Nightsearcher in a separate bank account. Nightsearcher shall be entitled to trace the proceeds of the sale that the Buyer receives into any bank or any other account that the Buyer maintains.

8.6 In consideration of Nightsearcher agreeing to supply Product(s) to the Buyer and entering into this agreement with the Buyer, the Buyer hereby agrees absolutely to assign to Nightsearcher the Buyer's right to recover from the purchaser the price of the Product(s) supplied (by way of purported sale or otherwise) by the Buyer to the purchaser in respect of which Product(s) the Buyer has not paid Nightsearcher in full at the time of the said supply to the purchaser.

8.7 By virtue of the Buyer accepting these terms and conditions, no further action will be necessary by either Nightsearcher or the Buyer to convert this agreement to assign into an absolute assignment, which assignment will be deemed to come into affect simultaneously with the supply of any Product(s) by the Buyer to the purchaser.

8.8 Nothing in this Clause 8 shall prevent Nightsearcher from recovering the price of Product(s) supplied to the Buyer directly from the Buyer at any time, save that where Nightsearcher recovers the price from the purchaser by reason of the above assignment credit will be given to the Buyer for any part of the price so recovered.

8.9 Nothing in these provisions shall be taken by way of implication or otherwise as conferring on the Buyer the right to sell or otherwise transfer possession of Product(s) supplied by Nightsearcher to the Buyer.

8.10 Nightsearcher may at any time before title passes and without any liability to the Buyer:
8.10.1 require the Buyer to deliver up all the Goods in it’s possession, and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the relevant Products are stored in order to recover them or determine what if any Goods are held by the Buyer and inspect them; and
8.10.2 repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Buyer’s right to use, sell or otherwise deal in them.

8.11 Nightsearcher may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Buyer.

9. Payment & Interest

9.1 Unless terms of credit have been agreed, all Product(s) supplied by Nightsearcher must be paid for by the Buyer before they are despatched.

9.2 Any Buyer requiring a credit facility must complete a credit application form which Nightsearcher will submit to various credit risk agencies for credit worthy assessment. A credit line will only be offered on favourable responses to these credit worthy checks and, in any event, at Nightsearcher's absolute discretion.

9.3 In respect of any Product(s) supplied by Nightsearcher pursuant to any agreed credit facility, Nightsearcher shall render an invoice to the Buyer on delivery of the Product(s). Payment for the Product(s), delivery charges, any taxes and other sum(s) invoiced shall be due and payable by the Buyer no later than 30 days from and including the date of invoice unless specifically agreed otherwise, and without the right of deduction or set off.

9.4 The Buyer shall pay Nightsearcher in the currency as stated on the Sales Order & Invoice.

9.5 In respect of any Buyer for whom a credit facility is provided, the Buyer shall immediately notify Nightsearcher in writing in the event of any of the following:
a) Change or alteration in registered company or trading name.
b) Change of banker.
c) Any change of Directors, Principals and Partners.
d) Change of your registered or trading address or that of any Director, Principals or Partners
e) Financial changes

9.6 Nightsearcher shall be at liberty at any time to vary or suspend any terms of credit or credit limit givento the Buyer.

9.7 Failure to make due repayment in respect of deliveries or instalments under this or any other contract between the Buyer and Nightsearcher shall entitle Nightsearcher to delay, suspend or cancel deliveries in whole or in part.

9.8 Without limiting Nightsearcher’s remedies under Clause 14 Interest and compensation shall be payable by the Buyer in respect of any overdue invoices from the date they became overdue, at the rate prescribed pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 until paid in full. In the event any judgment is obtained by Nightsearcher in respect of any overdue invoices, interest will continue to accrue after judgment at the same rate until paid in full.

9.9 The Buyer shall pay all accounts in full and not exercise any rights of set-off or counter-claim against invoices submitted by Nightsearcher.

9.10 All payments payable to Nightsearcher or the Buyer under these Conditions shall become due immediately on this contract's termination. This clause is without prejudice to any right to claim for interest under the law or under these Conditions.

10. Warranties

10.1 In accordance with the Sale of Goods Act, Nightsearcher warrants that for a minimum period of 12 months commencing on the date of the invoice of the Goods (Warranty Period), the Goods shall:
10.1.1 conform with their description;
10.1.2 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
10.1.3 be fit for any purpose held out by Nightsearcher subject to their reasonable use in accordance with relevant provided instruction manuals.
In view of these commitments, 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.

10.2 All non ATEX Nightsearcher products are sold with a 3-year standard warranty on all manufacturing defects and 1-year warranty on all rechargeable batteries and ATEX products from the date of despatch of the products.

10.3 Some Goods will carry a longer warranty. Current extended warranty information , including extended warranty conditions can be found at https://nightsearcher.co.uk/en/warranty.html or on request via Sales@Nightsearcher.co.uk or Telephone: +44 2392389774.

10.4 In the event of any established breach of warranty, Nightsearcher shall repair or replace in it’s absolute discretion any defective Product(s). The Buyer shall be liable for the delivery charges incurred in returning the defective Product(s) to Nightsearcher, but shall not be liable for the cost of repair or replacement, or the delivery charge for returning the repaired or replaced Product(s) to the Buyer. If Nightsearcher complies with this clause then it shall have no further liability for breach of the warranty.

10.5 Repairs undertaken by Nightsearcher under the terms of it’s warranty are guaranteed for 90 days from the date of dispatch to the Buyer.

10.6 Where Nightsearcher in it’s absolute discretion replaces any defective Product(s), the warranty on such replacement Product(s) shall continue in effect for the remainder of the unexpired term of the warranty commencing from the original date of despatch of the defective Product(s). Any replaced Product(s) become the property of Nightsearcher.

10.7 The warranty shall not cover any defect caused:
a) by fair general wear and tear.
b) in whole or in part by the negligence of the Buyer or a User.
c) by improper or unauthorised use of the Product(s) including any attempt to carry out repairs, modifications or alterations to the Product(s).
d) by causes external to the Product(s).
e) by lack of maintenance
f) by battery leakage
g) related to Imprinting or colour finishes
h) by not adhering to the user manual

10.8 Failure by the Buyer to settle accounts rendered for Product(s) supplied will render the warranty null and void.

10.9 If the Buyer adds labels to any of the Product(s) the warranty will be invalidated.

10.10 Failure by the Buyer to present proof of original purchase will render the warranty null & void

11. Returns Procedure

11.1 The Buyer shall be responsible for the cost of carriage and insurance in respect of all Product(s) returned by the Buyer to Nightsearcher for repair, replacement or credit which Product(s) will be at the risk of the Buyer until actual receipt by Nightsearcher.

11.2 Nightsearcher will not accept returned Product(s) for repair, replacement or credit unless such a return has been agreed in advance with proof of purchase provided and the Product(s) are received in stock condition, original packaging and clearly marked with the appropriate "Returns Materials Authorisation' number issued by Nightsearcher at the time of the intent to return the Product(s) is notified to us together with a full description of any alleged defect.

11.3 Any notification of return dead on arrival (DOA) Product(s) must be made no later than 7 days from the date of invoice.

11.4 Nightsearcher reserves the right to determine whether returned Product(s) will be repaired, replaced or credited at its absolute discretion.

11.5 Nightsearcher reserves the right to levy a surcharge of 25% of the value of the Product(s) to the Buyer in the event of returned Product(s) being found to be in working order in accordance with the specifications of the Order.

11.6 Nightsearcher reserves the right to replace Product(s) with Product(s) considered by Nightsearcher to be of similar or equal specification to the Product(s) being replaced.

11.7 Notwithstanding, Nightsearcher will not be liable to any claim of value greater than the product(s) as set out in Clause 16.

12. Design Changes

12.1 Nightsearcher reserves the right to supply Product(s) with design and specification changes as technological development may require without prior notice.

13. Intellectual Property Rights

13.1 All Nightsearcher trademarks, designs and logos are the intellectual property of Nightsearcher Limited. Unless specified otherwise, all Nightsearcher trademarks are protected by trademark law.

13.2 Nightsearcher endeavours not to offer for sale product which infringes known and valid patents and other intellectual property rights but shall not be liable in any manner whatsoever to the Buyer for any costs or damages or loss of profits arising from the use or sale of good which infringe or allegedly infringe any patent, registered design, copyright or other intellectual property rights of any third party.

13.3 The Buyer shall promptly notify Nightsearcher of any claim received by the Buyer alleging an infringement of patent or other intellectual property rights of a third party. Where Nightsearcher are not the ‘manufacturer’ they will refer such matters forthwith to the manufacturer of the Product(s).

13.4 The Buyer shall co-operate with Nightsearcher in defending any patent or other right claimed in respect of the Product(s) and the Buyer shall execute all such documents and do all things as Nightsearcher may require pursuant thereto. Nightsearcher shall not be liable to the Buyer in respect of any patent infringement or claim based upon the Use of Product(s) or a part thereof modified for Use in connection with equipment or devices not supplied by Nightsearcher or in a manner for which the Product(s) were not designed. Liability is further limited to Use of the Product(s) in countries for which patent protection has been obtained.

14. Termination

14.1 Without affecting any other right or remedy available to it, Nightsearcher may terminate this contract with immediate effect by giving written notice to the Buyer if:
14.1.1 the Buyer fails to pay any undisputed amount due under this contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
14.1.2 the Buyer 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), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
14.1.3 the Buyer ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
14.1.4 the Buyer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this contract is in jeopardy.
14.1.5 the Buyer infringes NightSearcher intellectual property

14.2 Without limiting it’s other rights or remedies, Nightsearcher may suspend provision of the Goods under this contract or any other contract between the Buyer and Nightsearcher and demand payment of all outstanding sums due if the Buyer becomes subject to any of the events listed in Clauses 14.1.1 to 14.1.5 inclusive, or Nightsearcher reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this contract on the due date for payment.

15. Force Majeure

15.1 For the purposes of this contract, Force Majeure Event means an event beyond Nightsearcher’s reasonable control and not reasonably forseeable.

15.2 Nightsearcher shall not be liable for any failure to supply and/or deliver Product(s) for any incomplete supply or delivery or for any damage to or defect in the Product(s) caused by strikes, lockouts, labour disturbances, Acts of God or any reason beyond Nightsearcher’s control including any act or default of Nightsearcher's own suppliers, the Buyer or third parties.

15.3 As soon as reasonably practicable after the start of the Force Majeure Event, Nightsearcher shall notify the Buyer in writing of the Force Majeure Event, the date on which it started, it’s likely or potential duration, and the effect of the Force Majeure Event on it’s ability to perform any of it’s obligations under this contract.

15.4 Nightsearcher shall not be liable to the Buyer as a result of any delay or failure to perform it’s obligations under this contract as a result of a Force Majeure Event.

15.5 If the Force Majeure Event prevents Nightsearcher from providing any of the Goods for more than 4 weeks, it shall, without limiting other rights or remedies, have the right to terminate this contract immediately by giving written notice to the Buyer.

16. Limitation of Liability - THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

16.1 Nothing in these Conditions shall limit or exclude Nightsearcher’s liability for:
16.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
16.1.2 fraud or fraudulent misrepresentation;
16.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
16.1.4 defective products under section 2 (3) of the Consumer Protection Act 1987.

16.2 Subject to clause 16.1:
16.2.1 Nightsearcher shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
16.2.2 Nightsearcher’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £1000.

16.3 After the Warranty Period, 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.

16.4 This Clause 16 shall survive termination of the Contract.

17. General

17.1 Notices.
17.1.1 Any notice or other communication given to a party under or in connection with this 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 prepaid firstclass post or other next working day delivery service, or by commercial courier, fax or e-mail.
17.1.2 The provisions of this Clause shall not apply to the service of any proceedings or other documents in any legal action

17.2 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.

17.3 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

17.4 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

17.5 This Contract contains the entire agreement and understanding of the parties relating to the subject matter of this Contract and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral.

17.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Nightsearcher’s Managing Director.

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

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

17.9 Disposal of Electrical and Electronic Equipment and UK Batteries Regulations
17.9.1 The WEEE Regulations ensure that the amount of waste on certain electrical and electronic equipment is reduced, separated from household waste, collected separately and ultimately disposed of in a sound environmental manner (recycled and recovered). As a business (trade) customer, you agree that the collection, recovery/treatment and disposal of non-household Electrical or Electronic Equipment purchased from us will be your responsibility.
17.9.2 As a Producer of Industrial Batteries, NightSearcher offers free take back of waste industrial batteries from it’s customers and final holders. Such industrial batteries can be returned to the following location: NightSearcher Ltd, Unit 4 Applied House, Fitzherbert Spur, Farlington, Portsmouth, Hampshire, PO6 1TT or contact BatteryBack - 0330 331 1801.
17.9.3 If you would prefer us to collect your industrial batteries from your premises, please contact us as there will be a transport charge for collection of industrial batteries from your premises and onward delivery of such industrial batteries to an Approved Battery Treatment Operator (ABTO) or Approved Battery Exporter (ABE). The charge will only cover the cost of transportation and handling and will not include any cost in relation to the treatment or reprocessing of such industrial batteries as defined by the UK Battery Regulations.