1.1 All orders are accepted subject to the following conditions which shall form part of and govern the contract of sale. Any variation of those conditions in any document of the buyer is inapplicable unless accepted in writing by the seller.
1.2 In these conditions the seller means Bespoke Home and Garden Limited and the buyer means the party to whom this document is addressed.
1.3 These terms and conditions apply in preference to and supersede any terms and conditions referred to or offered by the seller whether in negotiation or at any stage in the dealings between the parties with reference to the goods to which this contract relates. Without prejudice to the generality of the foregoing, the seller will not be bound by any standard or printed terms furnished by the buyer in any of its documents, unless the buyer specifically states in writing separately from such terms that it intends such terms to apply and the seller acknowledges such notification in writing.
1.4 No variation may be made to the contract of sale except by agreement in writing between the parties and signed on their behalf.
2.1 The placing of an order following the seller’s quotation shall not be binding on the seller unless and until accepted by the seller. An order accepted by the seller may only be cancelled or varied with the seller’s consent: the giving of the seller’s consent shall not in any way prejudice the seller’s right to recover from the buyer full compensation for any loss or expense arising from such cancellation or variation.
2.2 Additions or alterations to orders, however made, shall not be binding on the seller until they have been confirmed by the seller in writing.
3.1 The prices quoted are exclusive of United Kingdom Value Added Tax unless otherwise specifically stated in the contract. Any variation to prices resulting from taxes or levies shall be for the buyer’s account.
4.1 Where goods are ordered by the buyer for delivery at his request:
(i) If a period is stated for delivery and such period is not extended by agreement in writing the buyer shall take delivery within that period:
(ii) If no period is stated for delivery, the buyer shall take delivery of the goods as soon as they are ready:
(iii) If the buyer does not take delivery within the period the buyer will reimburse the seller’s storage and insurance costs. An invoice will be issued for the full amount of the goods on the last date on which delivery is due and shall be payable in accordance with the provisions of Clause 10.1.
4.2 In any other case:
(i) Any time stated in respect of delivery is given in good faith but is by way of estimation only and is not binding on the seller:
(ii) Time for delivery, whether expressly stated or not, shall not be or be deemed to be of the essence of the contract of sale.
4.3 The seller will deliver the goods as near as possible to the delivery address as far as hard road permits. The buyer shall provide at his own expense the labour for unloading and stacking with utmost despatch. Damage caused to the goods due to inadequate site access or careless unloading shall be at the buyer’s expense.
4.4 The seller shall not be liable for any loss or damage whether direct or indirect or consequential or in whatsoever way arising which is or might be occasioned to the buyer or to any purchaser or customer of his arising out of or in any way due to any delay or default in delivery of any goods under the contract however caused.
4.5 The seller shall be entitled to make partial deliveries of the goods unless otherwise agreed in writing.
4.6 In the case of partial deliveries of goods, the buyer will not be entitled to treat the delivery of faulty goods in any one instalment, or the late delivery of any one instalment, as a repudiation of the whole contract.
PACKAGING, CONSIGNMENT AND CARRIAGE
5.1 Unless otherwise stated in the contract, and subject to the following provisions of this clause:
(i) Goods will be consigned by the method of transport chosen by the seller to the address specified by the buyer for consignment of the goods (“the delivery address”).
5.2 If packaging is marked “returnable”, it is not included in the price, but will be charged for unless returned within one month, carriage paid and in good condition to the seller’s premises.
TRANSFER OF RISK
6.1 The goods shall be at risk of the buyer as soon as they are delivered to the delivery address unless otherwise agreed and the seller shall be under no obligation to give the buyer the notice specified in Section 32(3) of the Sale of Goods Act 1979.
ACCEPTANCE OF GOODS
7.1 The buyer will be deemed to have accepted the goods unless he rejects them within 24 hours after their receipt at the delivery address.
7.2 The seller shall have no liability for goods delivered in a damaged condition or lost in transit or for shortages in delivery unless:
(i) In the case of damage or shortage of delivery, short details are endorsed on the carrier’s delivery note or receipt and notice in writing giving full particulars of the damage or shortage is received by the seller and the carrier within 24 hours after receipt of the goods at the delivery address; and:
(ii) In the case of goods lost in transit, notice in writing of the non-delivery is received by the seller and by the carrier within fourteen days after the date of the advice note or invoice (as the case may be) issued by the seller.
7.3 Subject to the buyer complying with Clauses 7.1 or 7.2 above (as the case may be) and subject to Clause 8 below, the seller shall replace or make good any goods rejected by the buyer or delivered in a damaged condition or lost in transit (or, in lieu thereof, at the option of the seller, shall allow credit to the buyer of the amount of the price of goods lost or rejected or a proportionate amount thereof in the case of goods damaged), but the seller shall have no liability whatsoever, other than liability for death or personal injury due to the seller’s negligence, including consequential loss in respect of goods rejected by the buyer or delivered in damaged condition or lost in transit.
8.1 Unless otherwise specifically stated in the contract all specifications and particulars of weights and dimensions stated in the contract and in the supplier’s sales literature are approximate only.
8.2 Whilst every effort is made for these figures to be accurate, it must be understood that the specification of goods manufactured and supplied by the seller is subject to normal trade tolerances.
8.3 The seller reserves the right to change the specification of any goods quoted in his sales literature at any time without notice
8.4 Whilst the seller takes every precaution in the preparation of his literature, these documents are for the buyer’s general guidance only and the particulars contained therein shall not constitute representations by the seller and the seller shall not be bound thereby.
9.1 It is the buyer’s responsibility to ensure that all necessary approvals have been granted before manufacture commences. The seller will assist in supplying drawings and calculations when requested to do so.
9.2 It is the buyer’s responsibility to satisfy himself that the drawings, calculations and specifications are correct and that the goods are suitable and fit for the purpose.
10.1 Except where otherwise specifically agreed, payment must be made to the seller’s address stated on his invoice not later than the last day of the month following the date of his invoice.
10.2 Where partial delivery is made, the buyer shall be obliged to pay for each instalment separately, if the seller so requires, by invoicing him.
10.3 If payment is not made on the due date the seller shall be entitled to:
(i) Charge interest on the outstanding amount at the rate of 4% above Lloyds Bank Plc base rate, accruing daily:
(ii) Require payment in advance of delivery of undelivered goods:
(iii) Refuse to make delivery of any undelivered goods whether ordered under the contract or not and without incurring any liability whatever to the buyer for non-delivery or any delay in delivery:
(iv) To terminate the contract:
(v) To enforce the terms of clauses 11.2 and 11.3
10.4 Unless otherwise agreed the buyer shall not be entitled to exercise any right of set-off or counterclaim against monies owed to the seller for goods invoiced and delivered to him.
OWNERSHIP OF GOODS
11.1 Subject to the following clauses, the goods shall remain the seller’s property until payment in full of all monies due to the seller under this contract and all other contracts between the seller and buyer.
11.2 The buyer shall be entitled to sell the goods in the ordinary course of business, provided that the proceeds of the sale shall be held in trust for the seller by the buyer until payment of all sums due to the seller by the buyer under this contract and all other contracts between the seller and buyer.
11.3 Should the buyer default in any payment when due the seller will be entitled to repossess all the goods held by the buyer which are still the seller’s property (without prejudice to any other right or remedy arising out of such default in payment) and for this purpose the seller will be entitled to enter upon any land or buildings on or in which the goods may be situated and to remove the same. All costs incurred by the seller in repossessing the goods shall be borne by the buyer.
11.4 Any goods so repossessed shall be sold and the proceeds of sale set off against the amounts due to the seller by the buyer. Any balance remaining of the proceeds of sale shall be paid to the buyer. If the said proceeds of the sale are not sufficient the buyer shall remain liable to pay to the seller the amount remaining due, together with any interest accruing thereon.
12.1 The buyer shall indemnify the seller against all damages, penalties, costs and expenses to which the seller may be liable as a result of work done in accordance with the buyer’s specification which involves the infringement of any letters patent or registered design.
DETERMINATION OF CONTRACT
13.1 If the buyer shall make default in or commit a breach of the contract or of any other of his obligations to the seller, or if any distress or execution shall be levied upon the buyer’s property or assets, or if the buyer shall make or offer to make any arrangement or composition with creditors, or commit an act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against him, or if the buyer is a limited company and any resolution or petition to wind up such company’s business shall be passed or presented, or if a receiver of such company’s undertaking, property or assets of any part thereof shall be appointed, the seller shall have the right by written notice to the buyer to determine this and/or to suspend further deliveries of goods under this and/or any other contract between the buyer and the seller. Such right shall be without prejudice to any other claim or right the seller may otherwise make or exercise.
14.1 Notices required to be given to the seller must be sent to the seller’s address by first class post. Notices required to be given to the buyer will be sent by first class post to the address specified by the buyer for consignment of the goods unless a different address is specified for this purpose by the buyer. Notices shall be deemed to have been delivered on the next business day after the day of posting. In proving service by first class post it shall only be necessary to prove that the notice was contained in an envelope which was duly addressed and posted in accordance with this clause.
15.1 No liability will be accepted for any failure of, or delay in, performance which is due wholly or partially to restriction by Government or other competent authority, strikes, lock-out, failure by suppliers to supply raw materials or to any cause whatsoever outside the seller’s control.
15.2 Any waiver by the seller of its rights hereunder in respect of breach by the buyer shall not affect the rights of the seller in the event of a subsequent breach by the buyer.
16.1 These conditions and the contract shall be subject to and consulted in accordance with English Law, and the buyer is deemed to submit to the non-exclusive jurisdiction of the High Court of Justice of England.