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TERMS AND CONDITIONS OF SALE
CLAUSE NUMBER HEADING
2 Conditions Applicable
4 Price and Payment
5 The Goods
7 Delivery of the Goods
8 Title and Risk
9 Acceptance of the Goods
11 Remedies of the Buyer
12 Force Majeure
13 Insolvency of the Buyer
15 Rights of Third Party
16 Proper Law of Contract
In these Conditions, unless the context requires otherwise:
1.1 ‘Buyer’ means the person who buys or agrees to buy the Goods from the Seller;
1.2 ‘Conditions’ means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.3 ‘Contract’ means any contract between the Seller and the Buyer for the sale and purchase of the Goods incorporating these Conditions;
1.4 ‘Delivery Date’ means the date specified by the Seller when the Goods are to be delivered;
1.5 ‘Goods’ means the articles which the Buyer agrees to buy from the Seller;
1.6 ‘Price’ means the price for the Goods excluding carriage, packing, insurance but including VAT; and
1.7 ‘Seller’ means ‘Portland Marquee Sales’ a part of C & D King Ltd whose address is at Unit 15, Havenbury Estate, Station Road, Dorking Surrey, RH4 1ES.
• Conditions Applicable
2.1 These Conditions shall apply to all Contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions. A Contract is formed when the order is accepted by the Seller, either by way of a written acknowledgement of order (or similar document) issued by the Seller or where no such document is issued, either by the Seller despatching the Goods ordered or commencing work on their preparation for despatch.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the Seller and the Buyer) shall be inapplicable unless agreed in writing by the Seller.
2.5 Orders, once accepted by the Seller, may only be cancelled with the Seller’s written agreement.
3.1 All headings are for ease of reference only and shall not affect the construction of these Conditions.
3.2 Any provision of these Conditions which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of these Conditions.
3.3 No waiver or forbearance by the Seller (whether express or implied) in enforcing any of its rights under the Contract shall prejudice its right to do so in the future. The Seller may licence or sub-contract all or any part of its rights and obligations under these Conditions or the Contract without the Buyer’s consent
• Price and Payment
4.1 The Price shall be the Seller’s quoted price. The Price is inclusive of VAT which shall be due at the rate ruling on the date of the Seller’s invoice and which the Buyer shall be additionally liable to pay to the Seller.
4.2 Unless the Seller agrees otherwise and an agreed credit account is opened for the Buyer the Price shall be paid in before the Goods are delivered. The Goods will not be delivered until the Seller has received cleared funds for the total payment.
4.3 Where an agreed credit account has been opened payment of the Price shall be due within 30 days of the date of the invoice. Time for payment shall be of the essence.
4.4 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 4% above Lloyds TSB public limited company’s base rate from time to time in force and
shall accrue at such a rate after as well as before any judgement together with any reasonable legal or other recovery costs.
4.5 If the Buyer fails to make any payment on the due date then without prejudice to any of the Seller’s other rights the Seller may in its discretion:
4.5.1 suspend or cancel deliveries of any Goods due to the Buyer; and/or
4.5.2 appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other Contract with the Buyer) as the Seller may in its sole discretion think fit; and/or
4.5.3 retain any deposit paid on account of damages for breach of contract.
4.6 If the Buyer fails to make any payment within three months of the due date then without prejudice to any of the Seller’s other rights the Seller may, at its discretion treat the Contract as repudiated and either sell the Goods or any part of the Goods to a third party or reuse components included in the Goods or both. If the Seller does so and the combined total amount received by the Seller from the Buyer in respect of the Goods (less any sum appropriated to any other transaction under clause 4.5.2), the amount received from any third party for the Goods and the value of any component parts of the Goods re-used by the Seller exceeds the combined total amount of the Price and any expenditure incurred by the Seller in exercising its
rights under this clause, then the Seller will pay any such excess to the Buyer.
4.7 The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set off or counterclaim which the Buyer may have or allege to have or for any reason whatever.
4.8 Occasionally an error may occur with our web site and goods may be incorrectly priced in which circumstances we will not be obliged to supply the goods at the incorrect price.
4.9 Where delivery costs are listed as ‘free’ delivery is only available to mainland England. Other parts of the UK and Europe may incur a surcharge.
• The Goods
5.1 The quantity and description of the Goods shall be as set out in the Seller’s quotation.
5.2 The Goods shall be supplied in accordance with the description contained in the Seller’s specification.
5.3 The Seller may from time to time make changes in the specification of the Goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods.
5.4 Except as specified in clause 5.5 the specification and designs of the Goods (including the copyright, design right or other intellectual property in them) shall remain the exclusive property of the Seller.
5.5 Where any designs or artwork have been supplied by the Buyer for display on the Goods then the Buyer warrants that the use of those designs or artwork for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party. Such designs or artwork provided by the Buyer to the Seller (including the copyright, design right or other intellectual property in them) shall remain the exclusive property of the Buyer.
6.1 The Seller warrants that the Goods supplied will at the time of delivery correspond to the description given by the Seller. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977 Section 12 and/or the Unfair Terms in Consumer Contracts Regulations 1999 Regulation 3(1)) all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law Provided that nothing in the Contract shall restrict or exclude the liability of the Seller (if any) to the Buyer for death or personal injury caused by the negligence of the Seller or for fraud or affect the statutory rights of a buyer dealing as a consumer.
6.2 If the Goods are not in accordance with the Contract for any reason the Buyer’s sole remedy shall be limited to the Seller making good any shortage by replacing such Goods or, if the Seller shall elect, by refunding a proportionate part of the Price.
6.3 The Seller’s liability to the Buyer, whether for any breach of contract or otherwise, shall not in any event exceed the Price and the Seller shall be under no liability for any direct loss and/or expense or indirect loss and/or expense suffered by the Buyer or liability to third parties incurred by the Buyer.
6.4 The Seller shall be under no liability whatever to the Buyer for any form of economic loss special or consequential loss and/or expense (including loss of profit, wasted expenditure, increased loss, loss of production or opportunity) suffered by the Buyer howsoever arising and of whatever nature, whether or not such loss could reasonably have been foreseen by the Seller and whether or not such loss is a direct or indirect loss.
6.5 In the event of any breach of the Contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
• Delivery of the Goods
7.1 Unless you order and collect the goods from our factory, we will deliver them in accordance with your order. A valid signature will be required on collection or delivery.
7.2 If the Buyer declines to accept the Goods in breach of these Conditions the Buyer shall pay to the Seller as and by way of agreed liquidated damages an amount equal to the price of the Goods less any net proceeds received by the Seller on reselling the Goods after deducting the costs and expenses of resale.
7.3 For reasons of health and safety and to avoid any property damage, pallets can only be delivered to the nearest lorry access at the delivery address.
• Title and Risk
8.1 The Goods shall be at the Buyer’s risk as from delivery.
8.2 In spite of delivery having been made property in the Goods shall not pass from the Seller until:
8.2.1 the Buyer shall have paid the Price plus VAT in full; and
8.2.2 no other sums whatever shall be due from the Buyer to the Seller.
8.3 Until property in the Goods passes to the Buyer in accordance with clause 8.2 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.
8.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings.
8.5 The Seller shall be entitled to recover the Price notwithstanding that property in any of the Goods has not passed from the Seller.
8.6 Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clause 8.4 shall cease.
8.7 The Buyer 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 Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
8.8 The Buyer shall insure and keep insured the Goods to the full Price against ‘all risks’ to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
• Acceptance of the Goods
9.1 The Buyer shall inspect the Goods on delivery and shall within 7 days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with description or sample. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Buyer shall be deemed to have accepted the Goods.
9.2 The Buyer shall notify the Seller of any non-delivery of a whole consignment of Goods within 14 days of the date of dispatch (as stated on the invoice). Notwithstanding the receipt by the Seller of any such notice a clear signature on a carrier’s delivery advice sheet shall be deemed to signify receipt of the Goods indicated on the advice sheet.
9.3 If you have notified us of a problem with the goods within 7 days of delivery, we will (subject to clause 10) either make good any shortage or non-delivery; replace or repair any goods that are damaged or defective upon delivery; or refund to you the amount paid by you for the goods in question.
While we endeavour to hold sufficient stock to meet all orders, if we have insufficient stock to supply or deliver the goods ordered and paid for by you, we may, at our discretion, supply or deliver a substituted product or refund you the price paid for such goods as soon as possible and in any case within 30 days or, in the case of an account customer, we may, in our absolute discretion, as soon as possible raise a credit to offset the amount invoiced to you.
• Remedies of Buyer
11.1 Where the Buyer rejects any Goods then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such Goods or the failure by the Seller to supply Goods which conform to the Contract.
11.2 Where the Buyer accepts or has been deemed to have accepted any Goods then the Seller shall have no liability whatever to the Buyer in respect of those Goods other than as provided for in clause 6.
11.3 The Seller shall not be liable to the Buyer for late delivery or short delivery of the Goods.
• Force Majeure
12.1 Save for the Buyer’s obligation of payment under clause 4 neither the Seller or the Buyer shall be deemed to be in breach of the Contract or otherwise be liable to the other for any default due to any act of God, war, civil disturbance, malicious damage, strike, lockout, industrial action, fire, flood, drought, extreme weather conditions, compliance with any law or governmental order, rule, regulation, direction or other circumstance beyond the reasonable control of the party affected (‘Force Majeure Event’).
12.2 Each of the Seller and the Buyer shall upon becoming aware of a Force Majeure Event impacting on it give notice forthwith to the other specifying details of the circumstances giving rise to the Force Majeure Event.
• Insolvency of the Buyer
13.1 If the Buyer fails to make payment for the Goods in accordance with the Contract or commits any other breach of the Contract or if any distress or execution shall be levied upon any of the Buyer’s goods or if the Buyer offers to make any arrangement with its creditors or if any bankruptcy petition is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if, being a limited company, any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver, administrator, administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect
of the Goods shall become payable immediately. The Seller may in its absolute discretion and without prejudice to any other rights which it may have:
13.1.1 suspend all future deliveries of Goods to the Buyer and/or terminate the Contract without liability upon its part; and/or
13.1.2 exercise any of its rights pursuant to clause 8.
14.1 Any notice under or in connection with the Contract shall be in writing and shall be delivered by first class post or by hand or sent by recorded delivery or e-mail addressed to the recipient at its registered office or other trading address notified for these purposes.
14.2 In the absence of evidence of earlier receipt any notice shall be deemed to be duly served:
14.2.1 if delivered personally when left at the address in clause 14.1;
14.2.2 if sent by recorded delivery 3 days after posting; and
14.2.3 if sent by e-mail, when received.
• Rights of Third Parties
The provisions of the Contracts (Rights of Third Parties Act) 1999 shall not apply to the Contract and a person who is not a party to the Contract shall have no right under that Act to enforce any term of the Contract.
• Proper Law of Contract
16.1 The Contract is subject to the law of England and Wales.
16.2 All disputes arising out of the Contract shall be subject to the exclusive jurisdiction of the courts of England and Wales