of Order means the Company`s written acknowledgment by letter fax or e- means [Excelsior Group International Limited] trading from

Transcription

1 TERMS & CONDITIONS OF SALE 1 Definitions Acknowledgement of Order means the Company`s written acknowledgment by letter fax or e- mail to the Customer detailing the Goods and/or Services to be provided to the Customer under terms of these Conditions Company means [Excelsior Group International Limited] trading from [Hartshead Works, Deal Street, Bury BL9 7PU] Conditions means the terms and conditions of the supply of Goods and Services set out in this document and any special terms and conditions agreed in writing by the Company Contract means the Contract made between the Company and the Customer under the terms of these Conditions Customer means the person or company who buys or agrees to buy the Goods and Services from the Company Goods means the Goods manufactured by the Company which the Customer agrees to buy from the Company and the Company agrees to supply to the Customer. Price The Price stated in the Quotation or Acknowledgement of Order (if stated) subject to any amendments provided to the Customer to be paid by the Customer under the terms of these Conditions

2 The Quotation means the Company`s quotation for the supply of Goods and Services to be provided to the Customer under terms of these Conditions Services means the services which the Customer agrees to buy from the Company and the Services which the Company agrees to provide to the Customer 2. Conditions Applicable. (a) These Conditions shall apply to all Contracts, and any other sales and supplies of Goods and Services to the Customer to the exclusion of any terms and conditions proposed by the Customer at anytime verbal or otherwise and the provisions of these Conditions shall prevail unless expressly varied in writing by letter and signed by a Director on behalf of the Company. (b) These Conditions shall apply in substitution for all previous conditions of sale and terms upon which the Company and the Customer shall have carried on business and shall represent the whole of the Contract between the Company and the Customer to the exclusion of any previous course of dealing, trade, custom, practice or usage. (c) Any concession made or latitude allowed by the Company to the Customer shall not affect the strict rights of the Company under the Contract. (d) The Company retains the right to vary the terms of these Conditions at anytime on giving 7 days written notice to the Customer. (e) All orders for Goods and/or Services shall be deemed to be an offer by the Buyer to purchase Goods and Services pursuant to these Conditions. (f) The Contract between the Company and the Customer shall not exist until:

3 (1) the Customer confirms his acceptance of the Quotation in writing by letter or fax or e- mail (at an address notified to the Customer by the Company from time to time); or (2) in the event where a Quotation has not been requested by the Customer or is not required, the Company confirms acceptance of the order by an Acknowledgement of Order (g) Where the context so admits these conditions are intended to apply as well to the Contract for the supply of Services or mixed Goods and Services, as well as to the supply of Goods alone. 3. Price (a) Subject to clause 3 (d) below, any Quotations of Price provided by the Company are open to acceptance in writing by the Customer for a period of thirty days from the date of the Quotation. After this period of thirty days has expired the quoted Price will be deemed to have been withdrawn unless otherwise agreed in writing by the Company. (b) Notwithstanding any offer, Quotation, or price list, orders can only be accepted subject to the condition that Services and Goods will be invoiced at the Company s Prices ruling at the date of supply or dispatch. (c) All Prices are subject to the addition of V.A.T. at the rate in existence at the date of the invoice. (d) The Company`s Prices are subject to adjustment since the date of the Acknowledgement of Order or Quotation, taking account of any variations in the Company`s costs including (but not limited to) any foreign exchange fluctuation, currency regulation, alteration of duties increase in the costs of labour, materials or other

4 costs of manufacture, any change in delivery dates quantities or specifications for the Goods or Services which is requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions. The Company accordingly reserves the right to adjust the Price by the amount of any increase or decrease in such costs after the Price is quoted. The Price so adjusted shall be payable as if the price set out in a new quotation were the original quoted Price. (e) The Company will not carry out any Services additional to that originally quoted unless the Customer gives a variation order in writing to cover the charges for such Services and undertake to pay for such additional Services. 4. Terms of Payment. (a) Where Goods and/or Services are supplied on credit all invoices for Goods and/or Services together with all delivery packaging or other charges for which the Customer is liable shall become due on the 30th day (for the avoidance of doubt day includes weekends and bank holidays) from the date of invoice. Time for payment shall be of the essence. (b) Where Goods and Services are provided not on credit all invoices shall be payable before any Goods are manufactured for the Customer. In respect of the provision of Services, all invoices shall be payable on the date of completion of the Services or in accordance with clause 4(e) below. (c) Where payment is not made on the due date whether credit facilities have been allowed or not and without prejudice to any other rights which the Company may have arising from non payment the following rules shall apply:-

5 (i) the Company may charge interest on the overdue amount at the rate of 10% above Barclays Bank PLC Base Rate per calendar month calculated from day to day and compounded on a calendar monthly basis from the date the payment becomes due until the date the Company receives payment. (ii) the Company may treat any or all other agreements between the Company and the Customer as repudiated without prejudice to any other remedies the Company may have in respect of the non payment by the Customer. (iii) the Company may refuse to supply any other Goods and/or Services to the Customer until all payments due or deemed due pursuant to this clause including any interest accrued under clause 4(c)(i) above. (d) The Customer shall not be entitled:- (i) to withhold payment of any amount payable pursuant to this Contract because of any disputed claim of the Customer in respect of defective Goods and/or Services any other alleged breach of Contract. (ii) to withhold payment of any invoice or other amount due to the Company by reason of any right of set-off or counter claim which the Customer may have or allege to have or for any reason whatsoever. (e) Where Goods are supplied by installment deliveries or Services are supplied over a period of time, the Company shall be entitled to render interim invoices for each installment of Goods or for the provision of Services. Each interim invoice rendered pursuant to this clause 4 shall be treated as a final invoice and the provisions for payment set out in this clause 4 shall apply as if it were a final invoice.

6 (f) Payment of all invoices should be made by cheque and sent to the Company s address as stated in these Conditions or by card payment or directly to the Company s bank account as notified to the Customer and it should be noted that no agent, salesman or representative has authority to accept or give a receipt for the payment of invoices. (g) The Company reserves the right to withdraw credit facilities at any time without giving a reason and thereafter and the Company will not dispatch any further Goods or supply any further Services to the Customer until payment (including any delivery or carriage charges) in full has been received by the Company in respect of the Goods and/or Services under all outstanding invoices and credit facilities. (h) The Customer shall indemnify the Company in full and hold The Company harmless from all expenses and liabilities the Company may incur (directly or indirectly and including costs for time spent, finance costs and legal costs) for the costs of the Company to recover a debt due to the Company if the Customer breaches the terms of payment under these Conditions.. 5. Delivery. (a) Unless otherwise agreed between the Company and the Customer, the Company shall have the right to determine the method of delivery of the Goods. The cost of such delivery plus any additional costs to cover packaging and insurance will be charged to the Customer. (b) When Goods are offered for delivery to the Customer s premises the Company s obligations will be to deliver as near as possible to the premises as access permits and no further or otherwise.

7 (c) The Company will endeavour to deliver the Goods and/or provide the Services on the dates (if any) specified by its duly authorised representatives but in all cases any dates given for delivery or provision of Services are estimates only and the Company will not be liable for any loss, damage or expense suffered by the Customer as a result of the Company s failure to deliver the Goods or supply the Services on any specified date or at any specified time. (d) The Customer shall accept delivery by installments if required to do so by the Company. Where the Goods are to be delivered in installments each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the installments in accordance with these conditions or any claim by the Customer in respect of any one or more installments shall not entitle the Customer to treat the Contract as a whole as repudiated. (e) The Company shall not be liable for any delay in delivery of the Goods or supply of the Services howsoever caused. Time for delivery of Goods or provision of Services shall not be of the essence. The Goods or the provision of Services may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer. (f) If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions within 5 days of the Goods being ready for delivery (otherwise than by reason of any cause beyond the Customer's reasonable controls or by reason of the Company's fault) then without prejudice to any other right or remedy available to the Company the Company shall:

8 (i) store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or (ii) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the contract or charge the Customer for any shortfall below the price under the Contract: and (iii) charge further delivery costs to the Customer if the Goods have to be redelivered to the Customer; or (iv) be at liberty at its sole discretion to deal with, sell, otherwise dispose of the Goods without any liability. 6. Goods Lost/Damaged in Transit/or Short Delivered. (a) The Company must be notified of non-delivery of Goods within 2 days of receipt of the proposed delivery date. (b) The Company shall only replace the Goods lost or damaged in transit at its sole discretion and on the proviso that the Customer has acted in accordance with clause 6(a). (c) If the Goods are damaged in transit or short delivered the Company must be notified within 2 days of receiving the Goods. If the Customer shall fail to give such notice within the specified period the Goods shall be deemed to be in all respects in accordance with the Contract and the Customer shall be deemed to have accepted the Goods and be bound to pay accordingly. (d) If the Customer notifies the Company of any shortages as detailed in clause 6(c) above in the Goods which are not in accordance with the Contract the Customer shall

9 nonetheless pay the full Price for such Goods and the Company s only liability shall be at its sole discretion as soon as reasonably practicable to make good any shortages, or refund to the Customer the apportioned Price for the shortage of the Goods. 7. Return of Goods for Credit. (a) The Company will not accept Goods returned for credit unless previously agreed in writing by the Company. (b) Before consideration can be given to the acceptance of Goods returned for credit the Customer must provide the date of original supply and the invoice number on which they were charged. (c) The Company reserves the right:- (i) to refuse to accept any Goods which are not in their original condition. (ii) to make a 20% re-stocking charge for accepting Goods returned for credit to cover administration and other costs involved unless alternative arrangements have been previously agreed by the Company in writing. (d) If Goods are returned for credit without any prior arrangement in writing with the Company as provided for in clause 7 (a) above the Company does not accept any responsibility for any damage caused to the Goods or loss suffered while the Goods are in the possession of the Company and the Company shall charge for storing the Goods until the Customer collects them from the Company and the Company shall be at liberty at its sole discretion to deal with, sell, otherwise dispose of the Goods without any liability but the Price plus any other charges shall still be owing and payable by the Customer for the Goods. 8. Title.

10 (a) The Goods shall be at the Customer s risk as from the date the Company notifies the Customer that the Goods are ready for collection or delivery or on the date of delivery (whether or not the delivery of the Goods has been accepted by the Customer) if the Company is required to arrange delivery of the Goods. (b) In spite of delivery having been made title in the Goods shall not pass from the Company until: (i) (ii) the Customer shall have paid the Price plus VAT in full; and no other sums whatever shall be due from the Customer to the Company. (c) Until title in the Goods passes to the Customer in accordance with clause 8(b) above the Customer shall hold the Goods and each of them on a fiduciary basis as bailee for the Company. The Customer shall store the Goods (at no cost to the Company) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Company s property. (d) Notwithstanding that the title in the Goods (or any of them) remain the Company s the Customer may sell or use the Goods in the ordinary course of the Customer s business at full market value for the account of the Company. Any such sale or dealing shall be a sale or use of the Company s property by the Customer on the Customer s own behalf and the Customer shall deal as principal when making such sales or dealings. Until title in the Goods passes from the Company the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Company and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Company s money.

11 (e) The Company shall be entitled to recover the Price (plus VAT and interest) notwithstanding that title in any of the Goods has not passed from the Company. (f) Until such time as title in the Goods passes from the Company the Customer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Company. If the Customer fails to do so the Company may enter upon any premises (and the Customer authorises the Company by its agents or servants to enter those premises) owned occupied or controlled by the Customer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Customer under clause 8(d) shall cease. (g) The Customer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Company. Without prejudice to the other rights of the Company, if the Customer does so all sums whatever owing by the Customer to the Company shall immediately become due and owing. (h) The Customer shall insure and keep insured the Goods to the full Price against all risks to the reasonable satisfaction of the Company until the date that title in the Goods passes from the Company, and shall whenever requested by the Company produce a copy of the policy of insurance. Without prejudice to the other rights of the Company, if the Customer fails to supply such copy policy all sums whatever owing by the Customer to the Company shall forthwith become due and payable. 9. Intellectual Property. (a) The Customer agrees that any intellectual property (including but not limited to not limited to registered designs, unregistered designs, copyright, trade mark, patent, know how, ideas, technical knowledge and any other intellectual property whatsoever) in the

12 design, pattern, moulds or specification of the Goods or Services is exclusively owned and belongs to the Company (unless otherwise agreed in writing between the Company and Customer) irrespective of the input or information provided by the Customer and for the avoidance of doubt the Customer irrevocably (for no payment) assigns all rights in the said intellectual property in the design, pattern, moulds or specification of the Goods and Services which was produced jointly by the Company and Customer. (b) In the event that the Company agrees to release all or part of its intellectual property in the design, pattern, moulds or specification of the Goods and Services produced jointly by the Customer and the Company then the Customer agrees and grants the right to the Company (at no cost) to use any of the intellectual property specifically any jointly produced intellectual property for perpetuity for use in any other Goods that the Company may produce for other customers. (c) the Customer agrees and undertakes (without the previous written consent of the Company): (i) not copy, reproduce or change, in any way, any of the specification of the Goods, moulds or patterns or designs manufactured by the Company, (ii) not to instruct any third party to copy, reproduce or change in any way shape or form any Goods manufactured by the Company on the Customers behalf. (d) The Customer agrees if it comes to the Customer s knowledge of and actual, threatened or suspected infringements of the intellectual property as detailed in clause 9(a) above that the Customer shall promptly, and to fully notify the Company the identity of such persons breaching the intellectual property and details on how such intellectual property is being breached. If required by the Company and at the cost of the Company

13 the Customer agrees to do all that maybe reasonably required by the Company to assist the Company in protecting its intellectual property including being a party to proceedings. (e) Where designs and specifications are supplied by the Customer for the manufacture of Goods by the Company, the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party and the Customer shall fully indemnify the Company in full against all loss, costs (including legal costs), damages, charges and expenses incurred by the Company as a result of the breach this clause 9(e) by the Customer. 10. Warranties and Limit of Liability. (a) Both the Company and Customer acknowledges that, in entering into the Contract, it does not do so in reliance on any representation, warranty or other provision except as provided in the Contract and any conditions, warranties or other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law. (b) In the event of any defect in or failure of any Goods or Services supplied under these Conditions the maximum liability of the Company will be the Price of the Goods and Services. (c) The Company shall not in any circumstances, notwithstanding anything to the contrary contained in the Conditions, be under any liability (whether for breach of contract or otherwise) for any direct, indirect, or consequential loss (which includes without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and any similar loss) or damage, howsoever caused (other than death or personal injury resulting from the Company`s negligence) suffered by the Customer or

14 liabilities to third parties arising out or in connection with this Contract including breach, performance or non performance of this Contract. (d) Where drawings are supplied by the Customer to quote against the subsequent quotes submitted by the Company to the Customer are on the basis of as supplied drawings and the Company shall not be liable for any loss damage or expense arising out of a defect or inaccuracy in the drawings supplied. Further the Customer shall reimburse the Company for any additional Services required to be done by the Company to rectify such defect or inaccuracy. (e) The Goods description is on the Company s website and in the Company s brochures or catalogues are for the sole purpose of giving an approximate idea of the Goods represented by or described in them but due to product development and design specification changes (which include the weight of the Goods or the raw materials used to manufacture the Goods), these may vary from time to time. The images on the Company s website or in the Company s brochures or catalogues are to assist with the Customer s selections and all specifications are given as a guide only and are approximate. Representations of colour are approximate due to the limitations of photographic and calibrations of different output devices. The name given to the product colour is not necessarily representative of the colour. The Company reserves the right to alter descriptions and specifications without prior notice to the Customer. Such descriptions and illustrations will not form part of the Company s Contract with the Customer. (f) The Customer hereby agrees to fully indemnify the Company in respect of all claims, liabilities, demands, costs and expenses (including legal costs and expenses on an

15 indemnity basis) for any direct, indirect, or consequential loss (which includes without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and any similar loss) or damage, howsoever caused (other than death or personal injury resulting from the Company`s negligence) suffered by the Company or liabilities to third parties which may be incurred by the Company in respect of claims brought or threatened against the Company or the Customer or both as a result of the breach of the Contract by the Customer. 11. Minimum Order Charge and Samples. (a) The Company reserves the right to apply a minimum order charge for Goods or Services of 300 excluding carriage, costs and V.A.T. (b) If the Customer requires a sample of the Goods, the Company at its sole discretion may agree to send a sample of the Goods however, the cost associated with sending such sample on the cost of such sample itself shall be paid by the Customer before dispatch of the sample. (c) If the Contract is to be a Contract for sale by sample of Goods the Customer must have confirmed in writing that the sample of the Goods they have received by the Company are the relevant specifications that the Customer requires the bulk of the Goods to be manufactured. The provisions of these conditions shall apply in establishing a Contract. (d) The bulk of the Goods will correspond substantially with the sample supplied to the Customer in quality, size and weight provided that the Company shall have no liability to the Customer unless more than 30% of the Goods do not correspond with the said sample. If the Customer notifies the Company in writing of any alleged failure to comply

16 with the sample of the Goods within 48hours of delivery then the Company at its sole discretion as soon as reasonably practicable shall provide a credit note to the Customer or make up the shortage. If the Company does not receive such notification the Customer shall have deemed to have examined the Goods and accepted them. 12. Cancellation and Termination (a) Any order of Goods or Services by the Customer which has been accepted by the Company cannot be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss, costs, damages, charges and expenses incurred by the Company as a result of the cancellation and the Company retains the right to charge a cancellation fee. (b) Subject to clause 12(e) below, the Company may cancel the Contract at any time on 14 days written notice to the Customer. The Company shall not be liable for any loss or damage whatever arising out of such cancellation. (c) If the Company agrees to cancel or cancels the Contract itself then the Customer will be responsible for the cost of any Goods the Company are contractually committed to manufacturing to the date of cancellation (whether or not the Company need to pay for them before or after the date the Contract is cancelled) and/or any of the Company s time in performing the Services up to the date of cancellation. (d) In the circumstance stated in clause 12(c) the Company will first deduct the amounts for which the Customer is responsible from any deposit the Customer has paid. Any remaining deposit will be returned to the Customer. If the amount owing is greater than

17 the deposit the Company will invoice to the Customer for the amount in excess of the deposit for payment immediately. (e) The Company may terminate the Contract at any time by written notice to the Customer and the notice taking effect as specified in the notice: (i) if the Customer is in breach of the Contract and where a breach is capable of remedy within 5 days, the breach is not remedied with 5 days by the Customer receiving notice which specifies the breach and requiring the breach to be remedied; or (ii) if the provisions of clause 14 shall apply to the Customer. 13. Goods Not Belonging to the Company The Company does not accept responsibility or liability for any loss or damage suffered to drawings, documentation, patterns or any other items belonging (but excluding moulds and tooling) to the Customer while such items are in the Company s possession unless such loss or damage arises as a result of the deliberate acts or negligence of the Company, its servants or agents After termination of the Contract or completion of the Contract, the Customer shall collect the Customers items from the Company s premises within 14 days from the termination of the Contract and if the Customer does not collect the items within that time, the Company reserves the right to charge for storage of such items until collection by the Customer and any other costs (including insurance) for such storage. 14. Insolvency If the Customer fails to make payment for the Goods or Services in accordance with this Contract or commits any other breach of this Contract or if any distress execution shall be

18 levied upon any of the Customers Goods or if the Customer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Customer or the Customer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Customer(other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a Receiver Administrator or Administrative Receiver or manager shall be appointed over the whole or any part of the Customer's business or assets or if the Customer shall suffer any analogous proceedings all sums outstanding in respect of the Goods or Services shall become payable immediately. The Company may in its absolute discretion and without prejudice to any other rights which may have: (i) suspended all future deliveries of Goods or supply of Services to the Customer and/or terminate immediately the Contract without liability upon its part; and /or (ii) exercise any of its rights pursuant to clause Assignments The Company may assign, transfer or sub contract any or all of the duties, obligations and benefits in the Contract to a third party, at its sole discretion 16. Notices Notices given under the Contract shall be in writing and shall either be delivered personally, or by first class mail or by fax or by and shall be deemed to be duly served: (a) in the case of the Notice delivered personally, at the time of delivery; (b) sent by first class post, two clear business days after the date of dispatch;

19 (c) in the case of a fax if sent during normal business hours then at the time of transmission if sent outside the normal business hours then on the following business; (d) in the case of an the day it was sent. Each Notice shall be addressed in respect of the Company to the address set out in these Conditions or to an and fax number that the Company notifies the Customer of from time to time and in respect of the Customer to the address or address detailed in the Quotation or Acknowledgement of Order or such address or address the Company has corresponded with the Customer before. 17. Force Majeure The Company shall not be liable for any delay or failure in the performance of its obligations under the Contract where such delay or failure arises from any cause not within the Company`s control, including, without limitation, any Act of God, war, strikes, riots, lock outs, labour disputes, fire, flood, tempests, delay in delivery of materials and action by any Government. In the event of delay in performance arising from such cause, the period for performance under the Contract shall be extended accordingly. 18. Severance and Validity If any term of provision in the Contract shall in whole or in part be held to the extent to be illegal or unenforceable under any enactment or rule of law that term of provision of part shall to the extent be deemed not to form part of the Contract and the enforceability of the remainder of the Contract shall not be affected. 19. Third Party Clause

20 For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of these conditions these conditions are not intended to, and do not, give any person who is not a party to it any right to enforce any of its provisions. 20. Governing Law The Contract shall be governed by and construed in accordance with the Laws of England and all parties accept the exclusive jurisdiction of the Courts of England.