Published Sep 20, 2011
TERMS AND CONDITIONS (SALE OF GOODS AND SERVICES)
In these Terms and Conditions the following words shall have the following meanings:-
"Company" means Area Rugs & Carpets Limited.
"Goods" means the subject matter of the Contract specified in the order placed by the customer with the Company including the raw materials, finished or semi-finished materials or articles and any goods supplied in substitution for or in replacement of or in addition thereto.
“Contract” means an agreement between the Company and the Customer of which these Terms and Conditions shall form part.
“Customer” means the individual firm partnership company or other body howsoever constituted acting as the buyer of goods to be supplied either directly or indirectly or otherwise by the Company
“Order” means the written, printed or typed or stencilled letter, form of communication, fax or telex sent by the Customer to the Company offering to purchase goods in the quantities at the price and on the terms and conditions specified and detailed herein and signed by a Director, Secretary, Partner or sole proprietor or other purchaser or any person authorised to sign and order on behalf of the Customer.
(1) Any order issued by the Customer is subject to acceptance by the Company and a Contract will only be formed when the Company has accepted the Customers offer to buy in writing by Acknowledgement of Order.
(2) All orders are placed under these Terms and Conditions alone which exclude any other terms and conditions inconsistent therewith which a Customer might seek to impose and the placing of any order
shall be deemed to be an unqualified acceptance of these Terms and Conditions
(3) It will be the responsibility of the Customer to confirm to the Company that the type, make, colour and specifications of any goods to be provided by the Company are as contained on the Acknowledgement
of Order submitted to the Customer.
(4) Any order for goods provided by the Customer must specify and give full instructions relating to delivery of the Goods and any other special requirement
The Company cannot guarantee that the colour, texture, pile depth or other aspects of the appearance of the Goods will exactly match that of the sample. The Customer acknowledges that the Company's carpets contain natural products and accepts that some variations in colour and texture are possible. The Customer further accepts and acknowledges that the finishing of the Goods may produce some difference in appearance from that of the samples provided. Samples provided are for guidance only and as a genera] indication of the nature of the Goods and not so as to constitute a sale by sample.
(1) Unless otherwise stated all prices quoted are based on current material costs and operating costs (including wages) at the date of quotation but the Company reserves the right at any time prior to the delivery of the Goods or provision of Services to adjust the price to take account of any increase in the cost of raw materials labour services or any currency fluctuations affecting the cost of imported materials.
(2) There shall be added to the price for the Goods or Services any value added tax and any other tax or duty relating to the manufacture transportation export import sale provision or delivery of the Goods or Services (whether initially charged on or payable by the Company or the Customer)
5.TERMS OF PAYMENT
(1) AIl sums become due and payable in accordance with the Contract under these Terms and Conditions on the date of despatch of the Goods or by Agreement on completion of the installation of the Goods. In the case of special products payment must be received before the commencement of manufacture unless otherwise agreed in writing
(2) For the avoidance of doubt payments by cheque shall not be deemed to constitute payment for the purposes of fulfilment of the Contract unless the cheque is cleared upon first presentation. Payment of the price shall be made in full on the due date without any deductions or set-off, statutory or otherwise
(3) Where the Contract is to be fulfilled by more than one instalment each instalment shall be treated as a separate Contract and payment shall become due and payable upon each instalment being completed.
(4) Time for payment shall be of the essence.
(5) The Company reserves the right to charge interest at 3% per month over Barclays Bank base rate (applying at the time) on all overdue accounts such interest being deemed to accrue on a day to day basis from the due date for payment
(6) The Company reserves the right where genuine doubts arise as to a Customers financial position or in the case of failure to pay for any Goods or Services or any delivery or instalment as aforesaid to suspend delivery of any order or any part or instalment or job without liability until payment or satisfactory security for payment has been provided.
(7) The Company reserves the right at any time at its discretion to demand security for payment before continuing with or delivering any order.
(8) If the Customer commits a material or serious breach of these conditions (and in the case of such a breach being remediable fails to remedy it within seven days of receiving notice to do so) he will be deemed to repudiate the Contract
(9) Insolvency of Customer:
This clause applies if: the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or ) has a Petition presented for its winding-up or passes a Resolution for voluntary winding-up or otherwise, or has an administrator or administrative receiver appointed over all or any part of its assets; or (i)an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or (ii)the Customer ceases, or threatens to cease, to carry on business; or (iii) the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
6.DELIVERY OR COMPLETION
(1) The delivery or completion date specified in the Contract is approximate only and unless otherwise expressly stated time is not at the essence for delivery or completion.
(2) The Company will use all reasonable endeavours to deliver the Goods by the date or dates agreed between the parties but the Customer shall not be entitled to refuse delivery on account of any delays, nor to deduct any Sums of money at any time.
(3) The Company shall not be liable for any loss damage or shortage on delivered orders unless informed within seven working days of the date of delivery.
(4) The Company shall be under no liability if it is prevented from carrying out any provision of the Contract for any reason beyond its control including (but without limitation) Act of God, legislation, war, fire, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a trade dispute or owing to any inability to procure materials or labour required for the performance of the Contract
(5) Deviations in dimensions of the of the Goods delivered (representing no more than 5% ) from that stated in the Contract shall not (where time is of the essence in the Contract) give the Customer any right to repudiate the Contract or to claim damages and the Customer shall be obliged to accept and pay at the Contract rate for the quantity of the Goods delivered and for the balance of the Goods which are delivered subsequently.
(6) The Company reserves the right to make delivery by instalments and to tender a separate invoice in respect of each instalment.
(7) In the event that the Goods are manufactured by the Company for delivery on a specific date at the request of the Customer but cannot be installed on that specific date due to fault on the part of the Customer then the Company shall still be entitled to invoice the value of the Goods and payment will be required under the normal payment terms of the Company
(8) Should the Customer postpone delivery of any item of the Goods or if delivery instructions are delayed then the Company may arrange storage of the Goods and the Customer shall be liable to the Company for the Reasonable costs (including insurance) of such storage which will be payable in accordance with clause 5 hereof.
(9) Without prejudice to any other right which the Company may have in respect of the Customers failure to take delivery of the Goods if the Customer delays delivery to a period in excess of 30 days then the Company shall be entitled to serve written notice upon the Customer of its intention to dispose of the Goods and seven days after deemed receipt by the Customer of such notice the Company shall be entitled but not obliged at the Company's option either to:
(a) deliver the Goods to the Customer; or
(b) dispose of the Goods at the best price reasonably obtainable but if the Goods are not easily realisable then in any way.
(1) It will be the duty of the Customer to inspect the Goods upon arrival at the nominated point of delivery specified in the Order.
(2) The Customer shall notify the Company in writing within seven days of delivery of the Goods at the nominated point of delivery by the Company or by the carrier of the Company of any defect in the Goods delivered. If notification of any defect is not received within the appropriate seven day period then the Customer shall be deemed to have accepted the order in full and shall not be entitled to reject the Goods in any way at any time after that period of seven days.
(3) The Company reserve the absolute and specific right to rectify any defect drawn to the attention of the Company within the period of seven days after delivery to the nominated point of delivery. The Company will use its best endeavours to ensure that the Goods if capable of rectification are rectified within a period of 28 days but provides no guarantee as to the specific time period in which such rectification shall take place. The Customer acknowledges that he is in possession of the Goods solely as fiduciary for the Company until such time as title to the Goods passes to him. The Customer further acknowledges that the entire proceeds of sale of the Goods by the Customer are held on trust for the Company and shall be placed in a separate Bank Account.
8.TITLE TO GOODS
(1) Risk in the Goods shall pass to the Customer when the Goods are delivered to or collected by the Customer or it's agent.
(2) Notwithstanding sub-clause (1) above legal ownership of the Goods shall remain with the Company which reserves the right to dispose of them until payment has been received in full or the Goods have been sold by way of bona fide sale for full market value and in the meantime the Customer holds them as bailee and in a fiduciary capacity. The Goods shall be stored in such a way as to be identifiable as being Company property
(3) Even when payment for the Goods has been received in full by the Company in respect of the Goods delivered under the Contract. Ownership of the Goods shall remain with the Company as aforesaid until payment has been received in full in respect of all other sums due from the Customer to the Company on any account and in the meantime the fiduciary relationship shall subsist.
(4) As long as title to the Goods remains with the Company the Customer may not encumber them or purport to transfer title to them for security purposes. The Customer shall immediately notify the Company by registered or recorded delivery letter if a third party attempts to seize or exercise any lien over the Goods. The Customer shall bear the cost of any action resulting from such attempt seizure or lien
(5) At any time when the Company has title to the Goods it may by notice in writing to the Customer (to be given by posting to or leaving at the Customers address) determine the Customers rights to sell and to have possession of the Goods. At any time after the giving of such notice the Company may enter upon any premises where the Goods are or are reasonably expected to be and may remove the Goods The Customer undertakes to give the Company access to its premises and to the Goods and to enable the Company to retake possession thereof and to notify any keeper where the Goods are stored that the Company IS authorised and entitled to give instructions for their removal. The Company agrees only to exercise its rights under this sub-clause in the event of the Customer defaulting on a payment or payments: having a receiver appointed over any of its assets: entering into any arrangement or composition with its creditors; entering into liquidation or administration or committing any act of bankruptcy; having any person attempt to exercise any lien over the Goods; or in the reasonable opinion of the Company having its solvency materially impaired
(6) Nothing in this clause shall in any way limit or modify the Customer's obligation to pay for the Goods.
(7) Each paragraph of this clause shall be constituted as a separate clause to the intent that the invalidity of anyone or more shall not affect the validity or enforceability of any other paragraph.
(1) The Company warrants in relation to Goods of the Company's manufacture that it will (at the Company's choice) either repair or supply a replacement for, or refund the full purchase price of any Goods which are found within a period of:
(a) seven working days from despatch of such Goods from the Company's works to have a patent defect; or
(b) three months from despatch of such Goods from the Company's works to have a latent defect or not to be in accordance with the Contract or any express description or representation given or made on behalf of the Company in respect of the Goods.
(2) In relation to Goods not of the Company's manufacture (including but not limited to parts and components supplied by others for Goods manufactured by the Company) the Company shall so far as it is able to do so give the Customer the benefit of any express guarantee or warranty by the manufacturer or supplier of such Goods and of any other rights which the Company has against the manufacturer or supplier
(3) In no circumstances shall the Company's liability for any loss or damage howsoever caused arising in breach of the express or implied terms of the Contract exceed the invoice value of the Goods.
(4) Pile reversal is a permanent form of shading which may occur with cut pile carpets. The pile becomes permnetly distorted following installation for no apparent reason and gives the effect of light and dark areas. As its occurence is an unexplainable phenomenon and not a manufacturing fault no manufacturer can be held responsible if or when it occurs.
1. EXPORT TERMS
In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Customer and the Company) apply notwithstanding any other provision of these Conditions.
The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
Unless otherwise agreed in Writing between the Customer and the Company, the Goods shall be delivered fob the air or sea port of shipment and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer in favour of the Company and confirmed by a bank in[ ] acceptable to the Company or, if the Company has agreed in writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to the Company of a bill of exchange drawn on the Customer payable 60 days after sight to the order of the Company at such branch of
[HSBC] Bank in England as may be specified in the bill of exchange.
The Customer undertakes not to offer the Goods for resale in [ ] or any other country notified by the Company to the Customer at or before the time the Customer’s order is placed, or to sell the Goods to any person if the Customer knows or has reason to believe that that person intends to resell the Goods in any such country.
(1) In circumstances where the Customer provides a plan or measurements for the carpet to be manufactured the Customer must make it clear on any plan or measurements provided exactly what is required and furthermore must indicate in specific detail whether an allowance has been incorporated into the measurements for any tolerance in connection with the fitting of the carpet. The Company will not be responsible for errors resulting from misinformation, ambiguity, subsequent alterations or any mistakes for which the Customer is responsible resulting in shortage
(2) The Company cannot be held responsible for late delivery and will not accept cancellation of order after seven working days of receipt of order. All delivery dates given are given in good faith but do not constitute a contractual undertaking. In the event of cancellation after seven working days the Company reserve the right to charge 80% of the value of the order to cover materials purchased and work carried out. In the event of a special dye order this amount will be increased by the special dyeing charge.
(3) The Company cannot accept responsibility for any "shading" that may occur following manufacture of the carpet and the Customer acknowledges that in relation to all cut pile carpets a phenomenon known as pile pressure often occurs which is not a manufacturing fault and is inherent in all cut pile fabrics and is not in any way detrimental to the wear of the carpet.
(4) The Company cannot accept any responsibility for information provided by any third party other than where information is provided by a Director of the Company in relation to the products provided by the Company in particular in relation to style, pile depth, size, colour, shading or any other specific information which may be provided by such third party.
(5) The Company and the Customer acknowledge that these terms and conditions form the basis of the full agreement between the Customer and the Company and no other representations, warranties, undertakings or statements of fact shall be valid and binding upon the Company unless expressly acknowledged and confirmed in writing by the Company to the Customer.
(6) The Customer acknowledges that it will be the responsibility of the Customer to move any furniture from the room where the Goods are to be supplied and fitted by the Company. in the event that the Company is requested to move furniture of any description the Company shall be entitled to charge the Customer for such removal at the rate of £15.00 per man hour . Any liability for damage to Goods which occurs in the course of removal by the Company either at the request of the Customer or otherwise is hereby specifically excluded.
(7) In the event that the Company is requested to fit and supply any Goods at the request of the Customer or the Customer's Agent and the Goods cannot be fitted for reasons beyond the control of the Company then the Company shall be entitled to charge at the rate of £15.00 per man hour for all time expended in travel, consideration or other attendance time where such difficulties. are outside the control of the Company.
1. ENTITLEMENT TO ASSIGNMENT
The Company shall be entitled to assign or sub-contract this Contract or any part thereof. Failure by the Company to enforce any of these terms or conditions shall not be construed as a waiver of any of its rights hereunder.
The validity construction and performance of this Contract shall be governed by the Laws of England and Wales and the Customer and the Company submit to the non-exclusive jurisdiction of the English Court
The Customer must within 14 days advise the Company of any change of address. Any notice hereunder sent by the Company to the Customer shall be deemed served within 48 hours of posting to the last known address of the Customer or in the case of facsimile transmission upon receipt of confirmation of the facsimile transmission by the Company to the Customer.
If any dispute or difference shall arise between the parties concerning the subject matter of this contract. Such dispute or difference shall be and is hereby referred to the arbitration of a person to be agreed between the parties or, failing agreement, a person appointed at the request of either party by the President for the time being of the Chartered Institute of Arbitrators, provided that the Customer shall not have the right to invoke the provisions of this clause unless it does so within one month after payment is due to the Company in accordance with these conditions.