Ness
Furniture Limited ('The Seller') General
Conditions of Sale |
1. (1) Any quotation by the Seller is not an offer for sale but shall be merely an invitation to treat and no order for the Seller's goods (whether pursuant to a quotation by the Seller or otherwise) is binding on the Seller until accepted in writing by the Seller.
(2) Each order is subject to these General Conditions of Sale (insofar as not inconsistent with any special terms agreed between the Seller and Buyer) to which the Buyer shall be deemed to assent.
(3) No other conditions or modifications of these Conditions shall be binding on the Seller unless the Seller agrees thereto in writing and the Seller shall not be deemed to accept such other conditions nor to waive any of these Conditions by failing to object to provisions contained in any purchase order or other communication from the Buyer.
(4) No representative, agent or salesman who is not a director of the Seller has any authority to amend or waive any of these Conditions or other provisions of the contract.
(5) Neither these Conditions nor any other provisions of the contract shall be suspended, amended or waived except with the written agreement of the Seller.
The Seller's specifications
2. (1) All descriptions, specifications, drawings, weights, dimensions, capacities, prices, performance ratings and other data quoted or submitted by the Seller or included in any catalogue, prospectus, circular, advertisement, illustrated matter or price list are to be deemed approximate only (except when stated in writing to be exact or expressly made of the essence) and subject thereto none of such items or any part thereof shall form part of the contract other than as approximations.
(2) Except to the extent agreed otherwise in writing the Seller has the right to modify the design and specifications of the goods without notice to the Buyer.
Prices
3. (1) Until an order has become binding on the Seller all prices are subject to change without prior notice.
(2) After an order has become binding on the Seller all prices will have VAT added at the appropriate rate and are subject to increase to reflect increases from time to time in list prices and any increases in costs to the Seller (including without limitation costs of materials, labour, transport and services, and fluctuations in currency exchange rates and any tax, duty, fee or charge imposed by any government or other authority) prior to delivery.
(3) Except in the case of an order where the net invoice amount is less than £250.00 (a 'Small Order'), packaging, transport and delivery charges are included in the price where the goods are to be delivered to a destination within the mainland of the United Kingdom. Where the goods are to be delivered to a destination outside the United Kingdom then an additional freightage charge will be payable by the Buyer calculated by reference to the costs incurred by the Seller.
(4) In the case of a Small Order the Buyer will pay to the Seller a charge of £25.00 for a U.K mainland delivery of a single package. Charge includes admin, packaging and delivery. Account customers and export by arrangement.
Payment
4. (1) Unless otherwise agreed by the Seller or stated in any acknowledgement of an order the net invoice amount shall become due for payment by the Buyer thirty days after the date of the invoice. On-line purchases without account can pay by GBC or credit card.
(2) The Seller reserves the right to charge interest at an annual rate of two per cent above base rate of Barclays Bank plc from time to time on all overdue monies.
(3) The Seller shall have a lien on all undelivered goods which the Buyer agrees to buy from the Seller and for all monies due from the Buyer to the seller under this or any other contract between them and the Buyer shall have no right of set-off in respect of such monies.
Delivery
5. (1) Time is not of the essence of the contract and any time or date specified by the Seller as the time at which or the date on which the goods will be despatched or delivered or as the case may be made available for collection is given and intended as an estimate only and the Seller shall not be liable for any loss, damage or expense howsoever arising from delay in delivery.
(2) The Buyer shall at the request of the Seller supply the Seller with details necessary to allow the Seller to make delivery and shall accept delivery whenever the Seller proffers delivery. If the Buyer does not comply with the foregoing it shall not be entitled to withhold any payment and shall indemnify the Seller against any consequential loss, damage or expense and the Seller may enforce its remedies for payment and may (if it so wishes) cancel intended delivery and sell the goods to which such intended delivery related without prejudice to its right to claim damages in respect of such breach of contract or may store the goods at the Buyer's risk in a place of its choosing at the cost of the Buyer and delivery by the Seller of deposit receipt or other evidence of storage to the Buyer shall be deemed to be delivery of goods.
(3) Notwithstanding any express agreement as to the date of delivery the Seller shall be entitled to postpone or cancel delivery in whole or in part when it is delayed in or prevented from making or obtaining any goods or materials or parts or components or services therefore or making delivery thereof by strikes, lockouts, trade disputes or labour troubles or any cause beyond the Seller's control including, but without limitation, Act of God, act of the Buyer or its agents, embargo or other governmental act, regulation or request, fire, accident, war, riot, delay in transportation, inability to obtain adequate labour, materials or manufacturing facilities. During any of the foregoing events the Seller's obligations shall be suspended until such events cease or until the Seller cancels delivery (as case may be) and the Seller shall not be required to obtain elsewhere in the market goods with which to replace or permit it to produce the goods delivery of which had been postponed or cancelled as a result of any said events. In the event of Cancellation, the Seller shall be paid pro rata for the goods delivered or work done to the date of cancellation.
The Buyer's obligations and claims on delivery
6. (1) The Buyer will:-
(i) examine the goods carefully within 7 days of taking delivery;
(ii) notify the seller (and any carrier for the seller) in writing within 14 days of taking delivery of any error in quantity or weight or description of the goods delivered or that they were mixed with others not included in the contract or of any damage to the goods revealed by such examination and not caused since delivery was taken;
(iii) notify the seller (and any carrier for the seller) in writing within 10 days of the date of the seller's invoice if the goods the subject of the invoice have not been received.
(iv) in the case of Pro Forma or Credit Card Promise the buyer to notify the seller within 10 days of the acknowledged delivery date.
(2) Failure to make any notification in accordance with paragraph (iii) above which examination under (i) above should have enabled the Buyer to make shall constitute waiver by the Buyer of all claims based on or relating to facts which such examination should have revealed.
Risk
7. (1) Risk in the goods shall pass to the Buyer when the goods are delivered to the Buyer. Delivery to a carrier or to any person firm or company on the Buyer's behalf shall constitute delivery to the Buyer.
(2) Where the goods are sold to f.o.b. all risk of loss or damage in transit shall pass to the Buyer when the goods are placed on board ship, and the Seller shall be under no obligation to give to the Buyer notice specified in Section 32(3) of Sale of Goods Act, 1979.
Title to goods
8. (1) Unless otherwise agreed in writing or until the Seller otherwise in writing agrees or notifies the Buyer, the goods shall continue to be in the ownership of the Seller until the Buyer has paid for them in full.
(2) The Buyer may, while not in default in the terms of Condition 13 below, sell the goods notwithstanding the Seller's title.
(3) Any sale by the Buyer of goods owned by the Seller shall, as between the Buyer and person to whom the Buyer sells, be made by the Buyer as principal, but the proceeds of sale shall belong to the Seller to the extent that the Buyer has not paid the Seller for such goods until such payment has been made, and until such time such proceeds shall be held by the Buyer in a fiduciary capacity on behalf of the Seller and shall be kept in a separate account without prejudice to the Seller's rights to trace the same if the Buyer fails to keep such proceeds separate as aforesaid.
(4) The Buyer will, if the Seller so requires, assign to the Seller free of charge the Buyer's rights to the unpaid resale proceeds of the Seller's goods.
(5) Pending delivery of the goods owned by the Seller pursuant to a resale authorised by this Condition, the Buyer shall store the same on its property in such a way as to keep them clearly identified as being the property of the Seller and will take such care of them (including effecting all proper insurance) as a careful businessman would take of his own property.
(6) The Seller may while owner of goods (and without prejudice to any other rights it may have under or by virtue of the contract) demand immediate return of the goods at any time and the Buyer shall forthwith comply with such demand and bear the expense of such return. The Seller will not exercise such right without giving 3 days prior written notice unless the Buyer fails to pay for the goods in whole or in part on the due date or if before the due date any of the events referred to in Condition 13 below occurs.
(7) If the Buyer fails forthwith to return the goods so demanded the Seller may enter on the Buyer's premises during normal business hours for the purpose of removing the goods (the cost of doing which shall be borne by the Buyer) or may sell or otherwise deal with the goods.
(8) The Buyer hereby grants licence to the Seller and its successors in title to the goods, their respective employees and agents to enter on to the Buyer's premises. Other than the Buyer's own the Buyer shall use its best endeavours to procure such licence from the appropriate person. The Buyer will give any assistance required by the Seller to register the Seller's right of entry and will pay the reasonable costs and expenses incurred by the Seller in effecting any such registration.
(9) The foregoing rights of the Seller are in addition to and not in lieu of any other rights it may have at common law or by statute including the right to payment for the goods and the right to recover the goods.
Warranty of the Seller
9. (1) Each of the Seller and the Buyer shall be regarded as having received no representation made by or on behalf of the other of them before the contract was entered into which in any way induced it to enter into the contract, but this shall not apply to any representation made to one party by or on behalf of the other which was reduced to writing and signed by or on behalf of the representor and was in the possession of the representee prior to the making of the contract, and in particular, without prejudice to the generality of the foregoing, those recorded in quotation or order or acknowledgement of it.
(2) The Seller warrants that it has the right to sell the goods and that the goods are free from any change or encumbrance unknown to the Buyer.
(3) Subject to the application of Condition 10 below the Seller will replace, repair or rectify (at its choice) the goods or take back the goods and refund or credit the Buyer with the cost thereof provided:-
(i) any defect appears within 30 days of delivery and the Buyer notifies the Seller in writing within 14 days of discovering the defect giving full details thereof: and
(ii) the Seller shall be entitled and shall be afforded facilities to inspect and test the goods as it thinks fit: and
(iii) the Seller is satisfied that the goods are defective as the result of a defect in materials or workmanship or are otherwise not in accordance with the contract.
(iv) the Seller is satisfied that no-one other than the Seller has so dealt or tampered with the goods as to contribute to their defectiveness and that the goods have been properly used, handled, maintained, stored and serviced (where appropriate) and have not been used whilst allegedly defective or otherwise not in accordance with the contract or order:
(v) where the Buyer notifies the Seller as aforesaid and the Seller performs its obligations under this condition the Buyer shall not be entitled to any claim in respect of the goods, or for work done thereon, transport costs, loss of profit, damage to property not the subject matter of the contract, or otherwise (save where death or personal injury has been caused by the Seller's negligence) nor shall the Buyer be entitled to treat delivery thereof as a ground for repudiating the contract failing to pay for the goods or canceling further deliveries.
(4) Account and contract customers may have separate negotiated extended warranties of up to 5 years. Such warranties are confirmed in writing.
Limitation of the Seller's liability
10. (1) Except as provided in these Conditions or otherwise agreed by the Seller in writing and except where death or personal injury has been caused by the Seller's negligence no warranty, condition, representation, undertaking or obligation express or implied imposed by statute, common law, custom, course of dealing or otherwise on the part of the Seller shall apply in respect of the goods.
(2) Where the goods or any part thereof are supplied, designed or manufactured other than by the Seller the Seller's obligations to the Buyer shall not exceed those owed to the Seller by the relevant supplier, designer or manufacturer.
(3) The Buyer shall in no circumstances, save for death or personal injury caused by the Seller's negligence, be entitled to recover from the Seller damages for breach of contract of which these Conditions form part for negligence or otherwise arising exceeding the price of the goods paid by the Buyer under such contract.
Indemnity by the Buyer
11. The Buyer undertakes to indemnify the Seller against all claims relating to or arising from the goods sold to the Buyer by the Seller in respect of any loss, damage or expenses sustained by any third party howsoever caused save for death or personal injury caused by the Seller's negligence.
Trade marks, patents and other industrial rights
12. (1) The Buyer shall have no right to apply to the goods any trade mark owned or used by the Seller.
(2) If any claim is made against the Buyer alleging that the goods infringe any patent rights, registered designs, copyright or other industrial property rights of another then:-
(i) the Buyer shall forthwith notify the Seller with full particulars, and
(ii) the Seller or its suppliers or licensors (as case may be) shall be at liberty at their expense to conduct all negotiations and/or litigation in respect thereof and (if necessary) in the name of the Buyer and if as a result of such negotiations or litigation the Buyer shall be unable to use the goods substantially for purposes for which they were bought the Seller shall (except where Condition 12 (3) applies) take them back and refund price thereof to the Buyer and such refund shall be in full satisfaction of all claims by the Buyer against the Seller.
(3) The Buyer shall indemnify the Seller against all actions costs (including the cost of defending legal proceedings) expenses claims proceedings and demands in respect of any infringement or alleged infringement by the Seller of patent rights registered design copyright or other industrial rights attributable to the Seller complying with any special instructions from or requirements of the Buyer relating to goods.
Default of the Buyer
13. If the Buyer defaults in or commits any breach of any of its obligations to the Seller or ceases to carry on its business or a substantial part thereof, or if any distress or execution is levied on any of the Buyer's property, or if the Buyer makes or offers to make any arrangement or composition with its creditors or commits any act of bankruptcy, or if any resolution or petition to wind up the Buyer's business is passed or presented, or a Receiver appointed of the Buyer's undertaking, property or assets or any material part thereof, then such event shall be deemed to constitute a breach of contract by the Buyer and the Seller shall be entitled forthwith to terminate this and any other contract with the Buyer and on written notice of such termination being posted by it to the Buyer's last known address this contract (and if notice so states every other contract subsisting between the Seller and the Buyer or such contracts as are specified in such notice) shall be terminated and all the Seller's unpaid invoices to the Buyer shall be immediately due for payment but without prejudice to any claim or right which the Seller might otherwise make or exercise or have against the Buyer.
Notices
14. Any notice given hereunder must be in writing and may be effected by personal delivery, fax, e-mail or by registered mail postage and if effected by fax or e-mail shall be deemed to be received on the day of sending and if effected by post shall be deemed to be received 48 hours after the date of posting.
No assignment
15. The contract of which these conditions form part shall be personal to the Buyer and shall not nor shall any rights under it be assigned by the Buyer without the written consent of the Seller.
Governing Law
16. These conditions and the contract of which they form part shall be construed in accordance with English law and the Buyer hereby submits to the jurisdiction of English Courts.
Internet on-line purchases
17. Purchasers rights are not wavered, nor are sellers. All arbitration in accordance with general law.
Prevailing Conditions
1. In certain conditions contracts between buyer and seller; seller may have agreed to waive their conditions in
favour of buyers.
