OCEAN DESIGNS (GB) LTD TERMS & CONDITIONS
1)These conditions are the only conditions upon which Ocean Designs (GB)Ltd(“The Seller”) is prepared to deal with its customer(“The Buyer”) and they shall govern the contract to the entire exclusion of any other express or implied conditions.
2)No waiver – Theses conditions may only be modified by a variation in writing signed on behalf of the seller by a Director and no other action on the part of seller (Whether delivery of the goods or otherwise) shall be construed as an acceptance of any other conditions.
3) These Conditions (as modified in accordance with paragraph (2) and together with the matters referred to on the face of the Sellers acceptance of order) embody the entire understanding of the parties and supersede any prior promises.
4) No contract shall be concluded until the seller despatches an acknowledgement of order to the buyer. Any quotation in whatever form given to the buyer is given subject to these conditions and does not constitute an offer to sell.
1) The seller warrants that the goods shall be at the time of delivery are free from defects in workmanship and materials. If any goods do not conform to this warranty the seller will at its options:
(a)Replace the goods found not to conform to the warranty or
(b)Take such steps as the seller deems necessary to bring the goods into a state where they are free from such defect or
(c)Take back the goods found not to conform to the warranty and refund the appropriate part of the purchase price.
2) The foregoing warranty is conditional upon:
(a)The buyer giving written notice to the seller of the alleged defect in the goods such notice to be received within ten days of the time when the buyer discovers or ought to have discovered the defect and in any event within one month of the date of the sellers invoice and
(b)The buyer affording the seller a reasonable opportunity to inspect the goods and, if so requested by the seller returning allegedly defective goods to the sellers works carriage pre paid, for inspection to take place there.
(c)Goods not having been altered in any way whatsoever or not having been subject to misuse or unauthorised repair and
(d)The buyer complying with its obligations under this or any other contract made with the seller.
3) Save as provided in paragraph (1) of this condition and in section 12 of the Sale of Goods Act 1979:
(a)All conditions and warranties express or implied as to the quality or fitness for any purpose of the goods are hereby expressly excluded: and
(b)The seller shall be under no liability for any loss or damage (whether direct or consequential) howsoever arising which may be suffered by the Buyer, except for death or personal injury caused by the sellers negligence.
4 ) The Seller shall be under no liability in respect of defects in goods should any form of secondary treatment to fabrics or other alterations and additions be applied of affected after the goods have been delivered to the buyer and the warranty given under paragraph 2(2) of this condition of sale shall not apply.
5) In the event that notwithstanding the forgoing provisions of this condition, the Seller is found liable for any loss or damage suffered by the Buyer, that liability shall in no event exceed the purchase price of the goods.
6) The forgoing provisions of this condition shall not apply to sales which are made to persons who deal as consumers (as that expression defined in section12 of the Unfair Contract Terms Act 1977), unless the contract is an international supply contract (as described in section 26 of that Act).
1) The price for each consignment of the goods will be that expressed on the face of the invoice for the goods.
2) The contract price is inclusive of value added tax or any similar taxes, levies or duties, which will be added to or changed on invoices at the appropriate rates.
Note: The Sellers prices are calculated on the basis that the above company will apply. Buyer requiring prices to be quoted on a different basis should inform the Seller in writing.
1) Unless otherwise agreed in writing the Buyer shall pay for the goods upon placing order.
2) If any payment that is to made hereunder by the buyer to the Sellers is overdue, interest will be chargeable thereon as well after as before judgment on a day to day basis at an annual rate of 2 per cent above HSBC Bank Plc base rate from time applicable until the sum due is paid.
3) If any payment that is to be made hereunder is overdue and the seller has to take legal action to recover the balance due, the Seller will charge the Buyer 5% of the balance due and also the cost of issuing and serving any writ issue.
4) Where any sum owed by the Buyer to the Seller under this or any other contract is overdue the seller may withhold any deliveries of goods due to be made under this contract until arrangement as to payment or credit have been established which are satisfactory and only as agreed in writing by a Director.
5) The Seller may, if reasonable doubt exists about the purchaser’s ability or willingness to pay on the due date to cancel the contract or to postpone delivery until payment is received.
6) In addition and without prejudice to any other rights of the seller late payment shall entitle the Seller at its option to charge interest on all overdue balances at the rate of 2 % per annum above the base rate of HSBC Bank Plc from time in force and shall be calculated and accrue on a day to day basis from which payment fell due until payment (whether made before or after judgment has been obtained by the Seller against the Purchaser )The seller may at any time in its absolute discretion appropriate any payment made by the purchaser in respect of goods outstanding debt as the Seller thinks fit notwithstanding any purported appropriation to the contrary by the purchaser.
1) Delivery of each consignment shall be made to the place, and in the manner designated by the Buyer when placing the order provided that the seller shall be entitled to withhold delivery of the goods until the buyer has paid all sums due to the seller hereunder.
2) Unless otherwise agreed the price quoted for the good by the Seller shall be exclusive of the costs of packing and delivering the same for which the seller shall invoice the buyer separately, such charges may include the costs of freight and insurance and the Sellers handling charge.
3)Unless otherwise expressly agreed in writing any delivery times specified by the seller in its quotation or otherwise are business estimates only and the seller will not be liable to the buyer for any loss or damage (whether direct, indirect or consequential)sustained by the Buyer as a result of the Sellers failure to comply with such delivery times.
4) If the Buyers being a company shall pass a resolution or suffer an order of a court to be made for its winding up or if a receiver or an administrator receiver shall be appointed, or if a petition for the appointment of an administrator shall be presented in respect of it or being an individual or partnership shall suspend payment or propose to enter into any composition with creditors or become unable to pay its debts (or have no reasonable prospect of so doing) or suffer a bankruptcy order or (being either a company, an individual or a partnership) shall breach any provision of these Conditions then the contract and any other contract between the Seller and the Buyer will automatically terminate and the Seller without any prejudice to any other right suspend or cancel delivery or recover the possession of any goods for which payment in full has not been received.
6) RETENTION OF TITLE
1)Until such time as the Seller shall have received payment in full of all sums owed to it on any account by the purchaser(whether arising under this or any other contract) legal and beneficial title in ownership of all goods supplied(”the goods”) shall remain in the Seller.
2) the purchaser at its risk and expense insure all goods supplied by the seller from the date of delivery for their replacement value against all risks and keep all goods safe and in good condition stored separately and clearly identifiable as the Sellers property with all identifying marks intact and legible.
3) The purchaser may use or sell the goods or any of them in the ordinary course of its business on the basis that any proceeds of sale shall be held in trust by the Purchaser for the Seller absolutely. The Purchasers rights under this condition shall be conditional upon the Purchaser including a retention of the title condition substantially in the form of that contained at condition6 (1) above all contracts entered into by the purchaser for the sale of goods or any of them.
4) The Purchasers rights under condition 6(3) shall terminate:
(i) Immediately on notice from the Seller: or
(ii) Immediately and automatically on the presentation of petition for the winding up of the Purchaser or for the appointment of an administrator of its undertaking (whether it be a company partnership) or if the purchaser is an individual on the presentation of a bankruptcy petition or an application for an interim order under Part VIII of the Insolvency Act 1986 or if the Purchaser has an administrator, receiver or administrative receiver appointed over any of its assets or undertaking of it the Purchaser resolves to or goes into voluntary administration (other than for the purposes of a bona fide reconstruction or amalgamation of a solvent company) or if then Purchaser proposes or make any voluntary arrangement with its creditors or if the purchaser ceases to carryon business or if the purchaser is unable to pay its debts(in the case of a company) within the meaning of section 123 of the Insolvency Act 1986 or (in the case of an individual) Section 268 of the Insolvency Act 1986 or upon the happening of any equivalent event under the laws of any relevant jurisdiction.
5) The Seller may at any time enter the premises of the purchaser or of any third party where the goods are stored for the purpose of inspecting the goods and identifying them as the Sellers property and upon termination of the Purchasers powers of use and sale under condition 6(c) above may repossess them and the Purchaser irrevocably authorise the Seller to enter upon such premises for the purposes.
6) Upon the termination of the Purchasers powers of use and sale under condition 6(3) above the price for all goods delivered but not paid for in full shall become immediately due and payable notwithstanding the provisions of condition 4 above and in addition the seller shall be entitled at its option(i) to cancel all or any part of any orders for goods placed with it by the purchaser and not yet delivered(whether or not accepted or whether or not under the contract or any other contract and/or (ii) to deal direct with any customers of the purchaser in which case any proceeds or any sale to such customers shall belong to the Seller absolutely.
7) DAMAGE OR LOSS IN TRANSIT
1) The seller will repair or replace, free of charge goods damaged or lost in transit where delivery has been made by the seller carrier, provided the buyer shall give to the seller written notification of such damage or loss within ten days of the date of the seller’s invoice therefore (in order that the seller be enabled to comply with the carriers conditions of carriage)
8) INITIAL DEFECTS
1 The buyer shall have no claim in respect of ant breach of the warranty in condition 2(1) hereof which should have been apparent on a reasonable visual examination of the goods unless the condition in paragraph (3) hereof are satisfied.
2) The buyer shall have no claim in respect of the fact that the goods delivered are of the wrong description unless the conditions in paragraph (3) hereof are satisfied.
3) The condition being referred to be that:
(a) The receipt for the goods is qualified by a remark to that effect and.
(b) The claim is made upon the seller in writing by letter within ten days of delivery.
4) In any event the buyer shall be treated as having accepted any consignment of the goods if it retains them for longer than ten days after their delivery.
1) The seller shall be entitled to store the goods (or any of them) at the buyer’s expense at its own premises or elsewhere if:
(a) Where the buyer is required to collect the goods from the seller’s works, the buyer fails to take delivery at the time specified therefore
(b) Where the arrangement is for the good to be delivered by the seller, either the seller is unable to despatch the goods by reason of any act or omission on the part of the buyer, or the seller has despatched the goods but the buyer fails to take delivery.
(c) The seller is withholding delivery of the goods pursuant to condition 4 (3) hereof.
2) The expense that the seller may re –claim from the buyer include all reasonable costs incurred by the seller (whether by way of storage, insurance or otherwise) in respect of the goods and it is expressly declared that it shall be reasonable for the seller to effect insurance in respect of the goods notwithstanding that the risk therein has passed the buyer.
10) PATENT INFRINGEMNET
1) The seller warrants only that the goods themselves and the delivery or importation will not infringe any patent rights published (at the date of contract) in the United Kingdom or in any other territory specified in the contract as a territory in which the goods are to be used and the seller shall indemnify the buyer against damages and costs awarded or any such infringement.
Provided always that:
(a) This indemnity shall not apply to any infringement which is due to the seller having followed an instruction furnished or given by the buyer or to the use of such material in a manner of for a purpose or in a foreign country not specified or disclosed to the seller or in combination with any other materials or process, and
(b) This indemnity is conditional on the buyer giving to the seller the earliest possible notice in writing of any claims made or action being threatened or brought against the buyer and on the buyer permitting the seller at the latter’s expense to conduct any litigation that may ensue and negotiations’ for a settlement of the claim
2) The buyer warrants that any instructions furnished or given by the buyer shall not be such as will cause the seller to infringe any letters patent, copyright registered design, right of confidence or trade mark in execution of the buyers order.
11) LIMITS OF LIABILITY
1) Photographs, illustrations, specifications’ and publicity material are intended to give a general idea of the goods portrayed. They do not constitute a description of the goods nor shall they be taken as representations made by the seller. Recommendations’ as to maintenance of fabrics and materials are given in good faith. Neither those recommendations nor any photographs, illustrations, specifications or other publicity material relating to the goods form part of the contract and the seller shall have no liability in respect thereof to the purchaser.
2) The sellers liability under conditions 2 shall be accepted by the purchaser in lieu of any warranty or condition whether express or implied by law as to the quality or fitness for any particular purpose of the goods and save as provided in these terms and conditions the seller shall not be under any liability to the purchaser whether in contract. Tort or otherwise for any defects in the goods, materials supplied or workmanship performed by the seller of for any damage loss resulting from such defects and the purchaser shall indemnify the seller against any claims in respect thereof.
3) The seller shall not be liable by way of indemnity or by reason of breach of contract, tort or breach of statutory duty in any other manner for consequential or indirect loss of whatsoever nature suffered by the purchaser or for special damages, loss of use(Whether complete or partial) of the good or loss of profit or any contract.
4) The seller’s total liability for all claims arising out of the contract due to the seller’s negligence or otherwise shall not exceed the purchase price of the goods in issue.
5) Nothing in this condition 11 shall be construed as limiting or excluding the sellers liability under part 1 of the consumer protection act 1987 of for death or personal injury resulting from its negligence (as defined in section 1 of the unfair contract terms act 1977)
12) ALTERATIONS AND MODIFICATIONS
1) The seller may carry out without notice to the buyer alterations or improvements in design, materials, parts or methods of manufacture from time to time. And may substitute other parts deemed by the seller to be suitable for the intended purpose as understood by the seller for any parts unavailable for the timely satisfaction of the contract or which the seller consider to be unprocurable in sufficient quantities, or unprocurable in sufficient time or procurable with difficulty or at an excessive cost whether or not such parts being substituted or were proprietary or special parts by the buyer such substitute parts shall be accepted by the buyer in full satisfaction and performance of the sellers obligation in that particular.
2) If the seller deems that there is no suitable substitute for any available material or part or that there is no suitable substitute design or type or such substitutes if any are unavailable. The seller’s obligation to complete performance of the contract shall, upon notification posted to the buyer be suspended until such time as the materials or parts or design or type previously unavailable or substitutes thereof as provided for above become available, any adjustment to the price made by the sellers.
13) FABRIC PROVIDED BY YOU
If the purchaser has asked and the seller has agreed to upholster the goods using fabric specially selected by or provided by the purchaser the purchaser will be responsible for ensuring that the fabric is suitable for use as a furnishing fabric and that it complies with standards required by the Furniture and Furnishings (fire) (Safety) Regulations 1988(“the regulations”). The seller accepts no liability for any defects in such fabrics or for any loss or damage which the purchaser may suffer as a result of the fabric in the manufacture of the goods. The Purchaser will indemnify and keep the seller fully indemnified against any and all claims, Liability, costs and expenses whatsoever and howsoever arising as a result of the fabric failing to comply with the standards required by the Regulations. If the fabric becomes lost or damaged whilst in the seller’s possession our liability in respect of that lost or damaged fabric shall be limited to the cost of replacing that lost or damaged fabric.
14) DELAY OCCASIONED BY THE BUYER
The buyer shall promptly furnish all designs, information and instructions necessary for the seller to be able to undertake work in performance of the contract and the buyer shall compensate the seller for all loss and expense incurred by the seller by reason of any error, defect or omission herein or by reason of any other act or omission on the part of the buyer.
15) SET OFF
The buyer will have no right of set-off statutory or otherwise.
Contracts are not subject to cancellation without the seller’s written consent. Where cancellation is accepted the seller shall in addition to any express terms of acceptance of cancellation be entitled to reimbursement of any costs incurred by the seller in connection with the contract.
17) FORCE MAJURE
The seller shall not be liable to the purchaser for any loss or damage caused by any delay in the performance of any sellers obligations hereunder where the same is occasioned by any cause whatsoever beyond the sellers control including but not limited to Acts Of God, legalisation, war, civil commotion, strike, lock out, trade dispute (whether involving its own employees or those of any other person) difficulties in obtaining workmen or materials, breakdown of machinery, fire, flood, drought, or failure of power supply. Should any such event occur the seller may cancel or suspend this contract in whole or in part or act in accordance with the provisions of condition 12 without incurring any liability to the purchaser for any loss or damage thereby occasioned.
18) GOVERNING LAW
The contract is governed by the laws of England and is subject to the exclusive jurisdiction of the English courts except that where the customer is domiciled within a member state of the EEC, this clause shall operate for the exclusive benefit of the seller and shall not prevent the seller from taken proceedings against the buyer in any other country of competent jurisdiction.