TERMS & CONDITIONS OF SALE
These Terms and Conditions of Sale (together with any other documents referred to in it) explain the terms and conditions on which Denholme Velvets Ltd (“Denholme”, “we”, “our”, and “us”) supply our service to you for orders of fabrics placed via our agents, direct e-mail or by telephone.
Please read these terms and conditions carefully before you submit your order to us, as these terms will apply to all orders you place. By placing an order with us, you agree to be bound by these terms and conditions. If you do not accept these terms and conditions, you should not place an order.
If you have any questions about our terms and conditions, please contact firstname.lastname@example.org.
2. Basis of the Sale
2.1. The Seller will sell and the Buyer will purchase the Goods in accordance with any order of the Buyer which is accepted by the Seller subject to those Conditions which will govern the Contract to the exclusion of any other terms and conditions, whether of the Buyer or which are implied by trade, custom, practice or course of dealing, subject to which any such order is made or purported to be made by the Buyer.
2.2. The Contract is the entire agreement between the parties in relation to its subject matter. The Buyer acknowledges that it has not relied on any statement, promise or representation or assurance or warranty that is no set out in the Contract.
2.3. No variation of these Conditions will be binding unless signed in writing between the authorised representatives of the Buyer and the Seller.
2.4. The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations, which are not so confirmed.
2.5. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or called upon entirely at the Buyer’s own risk and accordingly the Seller will not be liable for any such advice or recommendation which is not so confirmed.
2.6. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller will be subject to correction without any liability on the part of the Seller.
2.7. These Conditions and the Contract are made only in the English language.
3. Orders and Specifications
3.1. The Buyer will be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specifications) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.2. For online orders, the Buyer should follow the onscreen prompts to place an order. Each order is an offer by the Buyer to buy the Goods subject to these Conditions. The online order process enables the Buyer to check and amend any errors before submitting its order to the Seller.
3.3. The Seller’s acceptance of the Buyer’s order will take place when the Seller emails the Buyer to accept it (“Order Confirmation”), at which point a Contract will come into existence between the Buyer and the Seller. The Seller will assign an order number to the order, which will be communicated, to the Buyer in the Order Confirmation. The Seller will give an estimated date to the Buyer for delivery of their order, this is an indication only and not definitive and no liability will be accepted by the Seller for late delivery.
3.4. The quantity and description of any specifications for the Goods shall be those set out in the Buyer’s order (if accepted by the Seller).
3.5. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted to the Buyer, the Buyer shall indemnify the Seller against all loss, damage costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specifications.
3.6. The Seller reserves the right to make any changes in the specifications of the Goods which are required to conform with any applicable statutory or regulatory requirements or where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performances.
3.7. No order which has been accepted by the Seller may be cancelled by the Buyer in whole or in part and subject to clause 8.7 and the Buyer will not be entitled to return any Goods to the Seller except with the agreement in writing of the Seller and on terms that the Buyer will indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of the cancellation or return of the Goods.
4. Price of the Goods
4.1. The price of the goods will be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid) the price listed in the Seller’s applicable published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list will apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving prior notice to the Buyer.
4.2. The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the seller which is due to any factors beyond the control of the Seller (such as, limitations, any foreign exchange fluctuation, currency regulations, alteration of duties, significant increase in the cost of labour, materials or other costs of manufacture) and change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3. Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer will be liable to pay the Seller’s charges for transport, packaging and insurance. .
4.4. The price is exclusive of any applicable value added tax which the Buyer will be additionally liable to pay to the Seller.
5. Terms of Payment
5.1. Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller will be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods in which event the Seller will be entitled to invoice the Buyer for the price at any time after the Seller has tendered delivery of the Goods.
5.2. The Buyer will pay the price of the Goods (less any discount to which the Buyer is entitled but without any other deductions) within the agreed time from the date of the Seller’s invoice and the Seller shall be entitled to recover the price notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
5.3. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: -
5.3.1. cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2. appropriate any payment made by the Buyer to such of the Goods(or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3. charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 4 per cent per annum above National Westminster Bank plc. base rate from time to time until payments in full is made.
6.1. Delivery of the goods will be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or if some other place for delivery is agreed by the Seller, by the Seller delivering the goods to that place.
6.2. Any dates quoted for delivery of the Goods are approximate only and the Seller will not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the buyer.
6.3. Where delivery of the Goods is to be made to the Seller in bulk, the Seller reserves the right to deliver up to ten per cent more or ten per cent less than the quantity ordered without any adjustment in the price and the quantity so delivered shall be deemed to be the quantity ordered.
6.4. Where the Goods are to be delivered in instalments each delivery shall constitute a separate contact and failure by the Seller to deliver any one or more of the instalments in accordance with those Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5. If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.
6.6. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise then by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.6.1. hold the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.6.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. Risk and Property
7.1. Risk of damage to or loss of the Goods will pass to the Buyer.
7.1.1. in the case of Goods being delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2. in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods will not pass to the Buyer until the Seller has received in cash or cleared funds payments in full of the price of the Goods and other goods agreed to be sold by the Seller to the Buyer for which payments is then due.
7.3. Until such time as the property in the Goods passes to the Buyer, the Buyer will hold the Goods as the Seller’s fiduciary agent and bailee and will keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
7.4. Until such time as the property in the Goods passes to the buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller, and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5. The Buyer will not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the buyer does so all the monies owing by the Buyer to the Seller will (without prejudice to any other right or remedy of the seller) forthwith become due and payable.
8. Warranties and Liability
8.1. Subject to Clause 8.3, the Seller warrants to the Buyer that;
8.1.1. the Goods will be of “satisfactory quality” (as defined in Clause 8.2);
8.2. For the purpose of Clauses 8.1.1 “satisfactory quality” means the Goods will meet the standard that a reasonable person qualified or knowledgeable in relation to the Goods would regard as satisfactory taking account of any description of the Goods the price and all the other relevant circumstances.
8.3. The warranties in Clause 8.1 will be subject to the following conditions:
8.3.1. in respect of Goods which are silk products, the existence of either of the following will not be regarded as defects in the Goods and will not constitute a breach of any of the warranties in Clause 8:
(a) any variations or irregularities in the weaving of the silk which are characteristic of the yarn;
(b) any normal impurities within the silk fabric; or
(c) any of the specific performance characteristics listed in the ‘Fabric Performance’ sheet supplied with every delivery.
8.3.2. The warranty in Clause 8.1.2 will only apply where the Buyer has clearly explained to the Seller the particular purpose for which the Goods are being purchased and the Seller has confirmed in writing to the Buyer that the Goods will be reasonably fit for that purpose.
8.3.3. Where the Contract is a contract for sale by sample it is possible that there may be minor differences in the colour or finish of the Goods as against the samples resulting from the processing of the Goods. The existence of such minor differences will not constitute a breach of any of the warranties in Clause 8.1.
8.3.4. The warranties in Clause 8.1 will not apply in respect of any defects in the Goods or any other circumstances relating to the Goods which:
(a) are specifically drawn to the Buyer’s attention before the Contract is made;
(b) where the Buyer examines the Goods before the Contract is made, which that examination ought to reveal;
(c) in the case of a contract for sale by sample, which would have been apparent on a reasonable examination of the sample; or
(d) have risen from fair wear and tear, wilful damage, negligence, exposure to sunlight, failure to follow the Seller’s instructions (whether oral or in writing) or misuse of the Goods.
8.4. Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by statue or common law are excluded to the fuller extent permitted by law.
8.5. The Buyer must inspect and test the Goods as soon as possible following delivery and will notify the Seller within 14 days from the date of delivery of any shortages or incorrect delivery or claim that the Goods do not comply with the Contract or the warranties in Clause 8.1. If the Buyer does not notify the Seller in accordance with this Clause within the said 14 day period then the Buyer shall not be entitled to reject the Goods and the seller shall have no liability for any such shortages, incorrect delivery or claim, that the Goods do not comply with the Contract or the warranties in Clause 8.1 and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6. Subject to Clause 8.8 where any valid claim is made by the Buyer within the 14 day period referred to in Clause 8.6 of any shortages or incorrect delivery or any claim that the Goods do not comply with the Contract or the warranties in Clause 8.1 the Seller shall be entitled to replace or repair the Goods (or the part in question) free of charge, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or proportionate part of the price) but the Seller will have no further liability to the Buyer whatsoever arising therefrom. Always subject to the conditions of clauses 8.6 and 8.8 in such circumstances where a Buyer has a) correctly ordered a fabric but changed their mind or b) incorrectly ordered a fabric and wishes to return the goods, the Seller may at their discretion agree to accept the return of the goods and will charge a 15% handling surcharge to cover administrative costs.
8.7. The obligations of the Seller under Clause 8.7 will not apply in respect of any Goods which have been cut or processed by the Buyer not withstanding that the Buyer may have notified the Seller of a valid claim within the 14-day period in accordance with Clause 8.7. The Seller will have no liability to the buyer whatsoever in respect of any Goods which have been cut or processed by the Buyer or any third party even if the Goods do not comply with the Contract or the warranties in Clause 8.1and the Buyer will accordingly ensure that it does not cut or process the Goods until it has inspected and tested them and satisfied itself that they comply with the terms of the Contract and in particular the warranties in Clause 8.1.
8.8. Except in respect of death or personal injury caused by the Seller’s negligence the Seller will not be liable to the Buyer by reason of any representation (unless fraudulent) or any implied warranty, condition or other terms or any duty at common law or under the express terms of the Contract for:
8.8.1. any loss of profits, sales, business, or revenue; or
8.8.2. loss of business opportunity; or
8.8.3. loss of goodwill; or
8.8.4. any indirect, special or consequential loss,
which arise out of or in connection with the supply of Goods or their use or resale by the Buyer.
8.9. The entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods except as expressly provided in these Conditions.
8.10. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as cause beyond the Seller’s reasonable control:
8.10.1. Act of God, explosion, flood, tempest, fire or accidents;
8.10.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition
8.10.3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.10.4. import or export regulations or embargoes;
8.10.5. strike, lockouts or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.10.6. difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.10.7. power failure or breakdown in machinery.
9.Insolvency of the Buyer
9.1. The clause applies if;
9.1.1. the Buyer makes any voluntary agreement 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 purpose of amalgamation or reconstruction), or
9.1.2. an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
9.1.3. the Buyer ceases or threatens to cease to carry on business; or
9.1.4. the Seller reasonably apprehends any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2. If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller will be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer 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.
10. Export Terms
10.1. In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chambers of Commerce as in force at the date when the Contract was made. Unless the contract otherwise requires any term of expression which is defined in or given a particular meaning by the provision of the Incoterms shall have the same meaning in the Conditions but if there is any conflict between the provisions of Incoterms and these conditions the latter will prevail.
10.2. Where the goods are supplied for export from the United Kingdom, the Provisions of this Clause 10 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provisions of these Conditions.
10.3. The Buyer 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.
11.1. Any notice required or permitted to be given by either party to the other under these Conditions will be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question will not be affected.
11.4. The Contract shall be governed by the Laws of England and the Buyer agrees to submit to the exclusive jurisdiction of the English Courts.