1. APPLICATION OF TERMS AND CONDITIONS
1.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller.
1.2 These Terms and Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted by the Seller, or any such order is made or purported to be made, by the Buyer.
2. DEFINITIONS AND INTERPRETATION
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
"Business Day" means any day other than a Saturday, Sunday or bank holiday;
"Buyer" means the person who accepts a quotation or offer of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
"Calendar Day" means any day of the year;
"Contract" means the contract for the purchase and sale of the Goods which shall incorporate, and be subject to, these Terms and Conditions;
"Contract Price" means the price stated in the Contract payable for the Goods;
"Delivery Date" means the date on which the Goods are to be delivered as stipulated in the Buyer's order and accepted by the Seller, as evidenced in the Contract;
"Goods" means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with the Contract;
"Month" means a calendar month;
"Seller" means Voodoo Games, Schillo & Müller GbR, Zur Pappelallee 4, 65474 Bischofsheim, Germany, DE294756180, and includes all employees and agents of Voodoo Games;
2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.2.1 "writing", and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.2.3 "these Terms and Conditions" is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
2.2.4 a Schedule is a schedule to these Terms and Conditions; and
2.2.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
2.2.6 a "Party" or the "Parties" refer to the parties to these Terms and Conditions.
2.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4 Words imparting the singular number shall include the plural and vice versa.
2.5 References to any gender shall include the other gender.
3. BASIS OF SALE
3.1 The Seller`s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 No variation to these Terms and Conditions, or to the Contract, shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
3.3 Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the goods or has accepted an order placed by the Buyer by whichever is the earlier of:
3.3.1 the Seller`s written acceptance;
3.3.2 delivery of the Goods; or
3.3.3 the Seller`s invoice.
3.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
4. ORDERS AND SPECIFICATIONS
4.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller`s authorised representative.
4.2 The specification for the Goods shall be that set out in the Seller`s sales documentation unless varied expressly in the Buyer`s order (if such variation(s) is/are accepted by the Seller). The Goods will only be supplied in the minimum units thereof stated in the Seller`s price list or in multiples of those units. Orders received for quantities other than these will be adjusted accordingly
4.3 Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Seller are intended as a guide only and shall not be binding on the Seller.
4.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer`s specification, which do not materially affect their quality or performance.
4.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.
5.1 The Contract Price of the Goods shall be the price listed in the Seller`s website price list current at the date of acceptance of the Buyer`s order or such other price as may be agreed in writing by the Seller and the Buyer.
5.2 Where the Seller has quoted a price for the Goods other than in accordance with the Seller`s published price list the price quoted shall be valid for 30 days days only or such lesser time as the Seller may specify.
5.3 The Seller reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which are requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
5.4 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices for orders of more than a specific value listed in the SHIPPING & RETURNS section, are inclusive of the Seller`s charges for packaging and transport for orders inside the European Union.
5.5 The Contract Price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to the Seller.
6.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the Contract Price of the Goods, before, on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the Contract Price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
6.2 The Buyer shall pay the Contract Price of the Goods (less any discount or credit allowed by the Seller, but without any other deduction credit or set off) before shipment of the Goods or by payment on delivery. Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer. The time for the payment of the Contract Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3 All payments shall be made to the Seller in the specified currency currently listed on the contract or on the official Voodoo Games website price-list at its office as indicated on the form of acceptance or invoice issued by the Seller.
7.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the place specified in the Buyer`s order and/or the Seller`s acceptance and/or the Contract as the location to which the Goods are to be delivered by the Seller.
7.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer.
7.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms and Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.4 If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provisions of sub-Clause 8.1 risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure.
8. RISK AND RETENTION OF TITLE
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
8.1.1 in the case of Goods to be delivered at the Seller`s premises, the time when the Seller notifies the Buyer that the Goods are available for collection; or
8.1.2 in the case of Goods to be delivered otherwise than at the Seller`s premises, the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Contract Price of the Goods.
8.3 Sub-Clause 8.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Contract Price of the Goods and any other goods supplied by the Seller and the Buyer has repaid all moneys owed to the Seller, regardless of how such indebtedness arose.
8.4 Until payment has been made to the Seller in accordance with these Terms and Conditions and the Contract and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as bailee for the Seller and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Seller and shall insure the Goods against all reasonable risks.
8.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.6 The Seller reserves the right to repossess any Goods in which the Seller retains title without notice. In the event of repossession the Buyer shall deliver up to the Seller all Goods in which title has not passed, the cost of which shall be born by the Buyer.
8.7 The Buyer`s right to possession of the Goods in which the Seller maintains legal and beneficial title shall terminate if:
8.7.1 the Buyer commits or permits any material breach of his obligations under these Terms and Conditions or the Contract;
8.7.2 the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors.
9.1 The Seller may assign the Contract or any part of it to any person, firm or company without the prior written consent of the Buyer.
9.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
10. RIGHT TO RETURN THE GOODS AND RECEIVE A REFUND
10.1 If the Buyer is not satisfied with any Goods purchased from the Seller, the Buyer may cancel the Contract and return the Goods to the Seller and obtain a refund of the Contract Price of the returned Goods, provided:
10.1.1 the Buyer informs the Seller of the decision to cancel the Contract within 14 Calendar Days of delivery of the Goods; and
10.1.2 the Goods are returned in their original condition; and
10.1.3 the Goods are returned in accordance with sub-Clause 10.3 below.
10.2 While the Goods remain in the Buyer`s possession the Buyer is under a duty to ensure that the Goods are kept safe and secure.
10.3 The buyer is responsible for all transportation charges for returning goods.
The Seller provides no additional guarantees.
12.1 All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
12.2 Notices shall be deemed to have been duly given:
12.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
12.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
12.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
12.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
12.3 All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
13. FORCE MAJEURE
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
16. THIRD PARTY RIGHTS
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
17. CONSUMER RIGHTS
The provisions of these Terms and Conditions are in addition to and do not affect the Buyer`s statutory rights as a consumer.
18. LAW AND JURISDICTION
18.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of Germany.
18.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of Germany.