CAMIRA FABRICS LIMITED ("Seller") TERMS AND CONDITIONS OF SALE
Each order or acceptance of a quotation for goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy goods subject to these conditions. No order placed by the Buyer shall be deemed to be accepted by the Seller until a written acknowledgement of order is issued by the Seller or (if earlier) the Seller delivers the goods to the Buyer. No alterations shall take effect unless confirmed by the Seller in writing. No term, condition or warranty not recorded herein shall be binding on the Seller, except where such is necessarily imported into the contract under any Statute or Common Law.
2. Validity Unless otherwise stated, any quotation issued by the Seller will remain valid for 30 days only from its date provided that the Seller has not previously withdrawn it.
i Errors and omissions are subject to correction.
ii Unless otherwise stated in writing, prices charged will be those prices set out in the Seller's price list which is in force at the date of placing the order.
iii Unless otherwise specified, prices include the supply and delivery only of goods but not for their off-loading.
iv All prices are exclusive of VAT which will be charged as applicable.
i With all first orders and whenever else specified by the Seller, the Buyer shall pay the Seller in full as a condition precedent to despatching the goods. In all other cases, unless otherwise agreed in writing with the Seller, payment must be made in full by not later than the end of the month following the month of despatch. Time for payment shall be of the essence.
ii Interest on overdue accounts may be levied at a rate of 4% per annum above the Bank of Scotland base rate from time to time. Interest accrues daily from the due date of payment.
iii Should the Seller be prevented by the Buyer from effecting delivery on the agreed due date, the full price of the goods shall become payable as if the goods had been delivered.
iv Unless otherwise agreed in writing, payment shall be made in the currency as set out on the invoice.
v The Buyer shall make all payments due under the contract in full without any deduction whether by way of set-off or counterclaim and no sums shall be deducted from the contract price unless any such discount has been separately agreed with the Seller. If deliveries are spread over a period, each consignment will be invoiced as despatched and each invoice will be treated as a separate account and be payable accordingly.
vi Failure to pay any invoice in accordance with these terms or with terms as may be agreed separately shall entitle the Seller to suspend further deliveries and work on the same order and on any other order from the Buyer without prejudice to any other right which the Seller may have.
i Any time expressed for delivery shall be deemed to be an estimate only, time not being of the essence of the contract unless separately agreed to in writing by the Seller.
ii Subject to the other provisions of these conditions the Seller shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits or business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods (even if caused by the Seller's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 60 days.
iii Where a time for delivery has been agreed but delivery is delayed for any reason beyond the control of the Seller (for example due to the lack of availability of raw materials or late delivery by a supplier) a reasonable extension of time shall be allowed to the Seller. This sub-clause shall operate independently of clause 15 (Force Majeure).
iv Where a time for delivery is agreed and the Buyer fails for whatever reason to accept delivery, risk in the goods shall pass to the Buyer (including for loss or damage caused by the Seller's negligence, the goods shall be deemed to have been delivered and the Seller may store the goods until the Buyer picks up the goods, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
v The Buyer shall provide adequate and appropriate equipment and manual labour for unloading the goods. In the event that such labour is not provided and the Seller's deliveryman assists with unloading, the Seller shall not be liable for any damage caused to the goods by the deliveryman unless it is proved that such damage was directly attributable to the negligence of the deliveryman.
vi If advance notice of the appropriate arrival time is required, this must be stated on the order.
i Standard Items - A cancellation fee of £150 shall be charged in respect of the extra administrative work required or, if the value of the cancelled order shall be less than £150, such charge will be the value of the order itself. The Buyer also agrees to indemnify the Seller against any losses which it suffers as a result of loss of any materials which cannot be re-used as a result of work carried out in compliance with the order placed by the Buyer.
ii Special Items - once manufacture has commenced, cancellation of items made to a Buyer's specific requirements will involve, in addition to the cancellation fee at 6(i), payment for all materials and manufacturing costs incurred up to the time of cancellation.
i The Buyer is under a duty, wherever reasonable, to inspect the goods on delivery and any damage or otherwise shall be noted on the deliveryman's note and, in any event, the Buyer shall inspect the goods within a reasonable time from delivery.
ii The Seller shall be under no liability for any defects or shortages that would be apparent on careful inspection before cutting.
i The Seller's responsibility ends with the arrival of goods at the designated delivery point. Subject to clause 5(v), the Seller shall not be liable for any damage or loss caused during unloading.
ii Damaged goods will not be replaced or repaired if they have been used.
iii In the event of damage prior to delivery, the damaged goods will be replaced free of charge providing that:-
a. The Seller is notified in writing of such damage within 3 days of receipt of goods;
b. The Seller is afforded the opportunity to inspect the alleged damage at its request; and
c. In the event that the Seller accepts the goods as being damaged, the goods and packing are returned to the Seller (at the Seller's cost) within 14 days of delivery clearly marked 'Return' and stating the reason.
iv Shortages must be advised within 3 days of receipt of goods and the Seller will endeavour to deliver the balance of the goods within a reasonable time but time shall not be of the essence.
i The Seller reserves the right to make an additional charge for packing and delivery outside the mainland of Great Britain in accordance with the company's latest price list.
ii A carriage charge will be made on small orders, unless agreed in writing.
10. Property, Risk and Termination
i The risk in the goods shall pass to the Buyer on delivery.
ii Ownership of the goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the goods which are supplied to the Buyer under this contract (including any part or parts of them); and
(b) all other goods supplied by the Seller to the Buyer under any contract whatsoever and has received all sums which are or which become due to the Seller from the Buyer on any account.
iii Until ownership of the goods has passed to the Buyer, the Buyer shall:
(a) hold the goods on a fiduciary basis as the Seller's bailee;
(b) store the goods (at its own cost) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the goods; and
(d) maintain the goods in satisfactory condition and keep them insured on the Seller's behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.
iv The Buyer's right to possession of the goods shall terminate immediately if the Buyer ceases to trade or has a bankruptcy order made against him or makes any arrangement with his creditors, or (being a body corporate) convenes any meeting of creditors, or enters into liquidation (except a solvent voluntary liquidation for the purpose only of reconstruction), or has a receiver, manager, or administrator appointed of any part of its undertaking or notice of intention to appoint an administrator is given by the Buyer or by a qualifying floating charge holder, or a resolution is passed or a petition presented to a court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer, or the Buyer encumbers or in any way charges any of the goods.
v The Seller shall be entitled to recover payment for the goods notwithstanding that ownership of any of the goods has not passed from the Seller.
vi The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
vii On termination of the contract, howsoever caused, the Seller's (but not the Buyer's) rights contained in this condition 10 shall remain in effect.
viii If the Buyer is subject to any of the eventualities contained in clause 10(iv), all orders shall expire and such orders shall not be transferred to any new or successor company except with the express agreement of the Seller.
11. Drawings and Specifications Any specifications, data or documentation ("Information") provided by the Seller to the Buyer and any forms of intellectual property rights in all Information so supplied or not so supplied but used by the Seller specifically in the manufacture of the goods shall at all times be and remain the exclusive property of the Seller. Information held by the Buyer shall be held in safe custody at its own risk and kept in good condition by the Buyer until returned to the Seller at its request and shall not be disposed of other than in accordance with the Seller's written instructions. No Information shall be used other than as authorised by the Seller in writing.
12. Description All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods described in them. They shall not form part of the contract and this is not a sale by description or sample. The Seller's policy is one of continuous improvement and the Seller reserves the right to vary the design specification without notice unless agreed in writing to the contrary.
13. Replacements, Returns and Liability
i Where the goods supplied by the Seller are of the Seller's design and manufacture, the Seller will make good any defects in those goods subject to the following conditions:
a The Buyer shall notify the Seller in writing at the address from which the goods were ordered or sold, as shown upon the relevant delivery note or invoice and in the absence of such address, at its registered office, Hopton Mills, Mirfield, West Yorkshire WF14 8HE as soon as practicable after the defect has become known and, unless otherwise agreed in writing with the Seller, such right shall expire on the date falling 6 months after delivery, such period being the Warranty Period.
b The Seller shall be provided with an adequate opportunity to examine the goods.
c The Seller shall not be obliged to replace any goods or make any allowance or other arrangements if, in the reasonable opinion of the Seller, the defect has arisen from accident, misuse, neglect, incorrect storage or installation, lack of reasonable maintenance or any other cause beyond the reasonable control of the Seller.
d Where the defect is reasonably attributable to the fault of the Seller, the Seller shall replace or repair the defective goods but shall not be liable to the Buyer for any costs of installation of replacement goods nor any direct or consequential loss or damage of the Buyer arising therefrom.
e The Seller shall not be under any duty arising from these provisions if the Buyer is in breach of the contract with the Seller until the Buyer has remedied the breach.
f The Seller shall not be liable to the Buyer for loss of profit, loss of business or depletion of goodwill in each case whether direct, indirect or consequential or any claims for consequential compensation whatsoever (however caused) which arise out of or in connection with the contract.
g The Buyer's remedies in respect of any claim under this clause 13 or any condition or warranty implied by law or any other claim in respect of the goods or workmanship (whether or not involving negligence on the part of the Seller) shall in all cases be limited to repair or replacement and any condition or warranty implied by law shall cease to apply after the expiry of the Warranty Period. A claim in respect of any defect or failure to comply with the specification or in respect of any delivery of any order or any such part shall not entitle the Buyer to cancel or refuse delivery of or payment for any other order, delivery or instalment or any part of the same order, delivery or instalment. At all times, the total liability of the Seller shall be limited to the invoice value of the goods.
ii If the Buyer wishes to return goods delivered due to its mistake (for example, but not limited to, over-ordering or placing an incorrect order), the Buyer, only with the Seller's approval, may return the incorrect goods at its own expense to the Seller and the Seller will charge a handling fee of 30% of the invoice value with a minimum charge of £50. The right to return such goods under this sub-clause shall not be exercisable after 1 month has passed from the date of delivery of the goods to the Buyer.
The Buyer agrees upon demand to indemnify the Seller against all losses, damages, injury, costs and expenses of whatever nature suffered by the Seller to the extent that the same are caused by or relate to:
a. designs, drawings or specifications given to the Seller by the Buyer in respect of the goods;
b. defective materials or products supplied by the Buyer to the Seller and incorporated by the Seller in the goods; or
c. the improper incorporation, assembly, use, processing, storage or handling of Goods by the Buyer.
15. Force Majeure
The Seller reserves the right to defer the date of delivery or to cancel the contract or reduce the volume of the goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to the circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, breakdown of plant, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 365 days, the Buyer shall be entitled to give notice in writing to the Seller to terminate the contract.
16. Law and Arbitration
i Each right or remedy of the Seller under the contract is without prejudice to any other right or remedy of the Seller whether under the contract or not.
ii If any provision of the contract is found by any court or administrative body of competent jurisdiction to be in any way illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such finding be deemed severable and the remaining provisions of the contract and the remainder of such provision shall continue in full force and effect.
iii Failure or delay by the Seller in enforcing or partially enforcing any provision of the contract shall not be construed as a waiver of any of its rights under the contract.
iv This contract and any dispute or claim arising out of it 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 English law and the parties submit to the exclusive jurisdiction of the English courts.