These Conditions apply to all sales of goods by Beaudesert Limited and/or Beaudesert Fabrics Limited (the “Company”) to any purchaser (the “Customer”) and shall apply in place of and prevail over any terms or conditions contained or referred to in the Customer’s order or in correspondence or elsewhere or implied by trade custom practice or course of dealing and any purported provisions to the contrary are hereby excluded or extinguished.
2. TERMS OF PAYMENT
Terms strictly net. Payment of invoices shall, unless otherwise agreed in writing by the Company, be made in full without any deduction or set-off not later than the twentieth day of the month following the date of the invoice concerned. Any extension of credit allowed to the Customer may be changed or withdrawn at any time. If in the opinion of the Company the credit-worthiness of the Customer shall have deteriorated prior to delivery the Company may require full or partial payment of the price prior to delivery. The Company reserves the right to hold back any order pending if an account is overdue for payment.
3. GOODS AND PRICES
The prices payable for the goods shall be those contained in the Company’s list prices therefore current at the time of despatch. The company shall have the right at any time without notice to change its prices and/or to withdraw any goods from the range of products offered by the Company. Unless otherwise specified VAT and any other tax or duties payable by the Customer shall be added to the price.
The minimum order is one metre of fabric. All goods shall be supplied and invoiced in metres and orders not expressed in metric measurements will be converted into metric measurements and rounded up to the nearest ten centimetres. Orders must be made or confirmed in writing by the Customer and are in all cases subject to written acceptance by the Company. If any written confirmation of an oral or telephone order by the Customer does not expressly and prominently state that it is a confirmation of an existing order the Customer shall be responsible for any consequent duplication of the said existing order and shall pay the Company a handling charge equal to twenty percent of the net list price of the goods comprising the duplicate order plus all carriage costs arising from the delivery or return of the said goods.
5. DELIVERY CHARGES
All prices quoted are for delivery from the London warehouse of the Company and the Company will charge for delivery elsewhere at the rates ruling at the date of despatch. All delivery charges quoted exclude VAT and any other tax or duties payable by the Customer and the same shall be added to the delivery charge.
Any time or date for delivery mentioned in any quotation, acknowledgement of order or elsewhere is approximate only and not of any contractual effect and the Company shall not be under any liability in respect of any failure to deliver at any particular time or date.
7. REFUSAL OR FAILURE TO TAKE DELIVERY
If the Customer refuses or fails to take delivery of goods tendered in accordance with the contract or fails to take any action necessary on its part for delivery and/or shipment of the goods the Company shall be entitled to terminate the contract with immediate effect and recover from the Customer any loss and additional costs incurred as a result of such refusal or failure.
It shall be the responsibility of the Customer to inspect and check all goods immediately on delivery (and in any event before such goods are cut or hung) for colour, condition and accuracy of printing and in order to ensure that such goods are those ordered by the Customer. The Customer’s said responsibility shall not be in any way diminished or extinguished in the case of goods which are delivered to a third party on the instruction of the Customer. Any queries regarding the above must be referred to the Company prior to the fabric being cut.
9. RISK AND TITLE
Goods shall be at the Customer’s risk immediately on delivery to the Customer or into custody on the Customer’s behalf, and the Customer shall insure accordingly. The goods shall remain the sole and absolute property of the Company as legal and equitable owner until such time as the customer shall have paid to the Company the agreed price therefore. Until such payment the Customer shall be in possession of the goods solely as bailee for the Company and in a fiduciary capacity and shall store the goods in such a way as to enable them to be identified as the property of the Company. The Company reserves the immediate right of re-possession of any goods to which it has retained title as aforesaid and thereafter to re-sell the name and for this purpose the Customer hereby grants an irrevocable right and licence to the Company’s servants and agents to enter upon all or any of its premises with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the contract for any reason and is without prejudice to any accrued rights of the Company thereunder or otherwise.
(A) Subject always to Condition 11 below, the Company shall not be liable to the Customer:-
(i) for shortages in quantity delivered unless the Customer notifies the Company of any claim for short delivery within fourteen days of the date of the Company’s invoice for the goods;
(ii) for non-delivery of the goods or damage to or loss of the goods or any part thereof in transit (where the goods are carried by the Company’s own transport or by a carrier on behalf of the Company) unless the Customer shall notify the company of any such claim within fourteen days of the date of the Company’s invoice for the goods and in the case of goods all or any part of which received damaged, unless the Customer shall sign for them as damaged and shall immediately notify the Company of the damage in writing;
(iii) for defects in the goods caused by fair wear and tear, abnormal conditions of storage or use or the application of any treatment or process whatsoever to the goods after purchase (including, without limitation, any spray or flameproofing) or any act, neglect or default of the Customer or of any third party;
(iv) for other defects in the goods unless notified to the Company within twenty-eight days of the date of the Company’s invoice for the goods and in any event before the said goods are cut or hung.
(B) Subject always to Condition 11 below:-
(i) Where liability is accepted by the Company under paragraph (A) the Company’s only obligation shall be at its option to make good any shortage or non-delivery and/or as appropriate to replace or repair any goods found to be damaged or defective and/or to refund the cost of such goods to the Customer.
(ii) The Company’s aggregate liability to the Customer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the cost of the defective, damaged or undelivered goods which give rise to such liability as determined by the net price invoiced to the Customer for the said goods in respect of any occurrence or series of occurrences.
(C) Subject to the foregoing and to Condition 11 below, conditions, warranties and representations expressed or implied by statute common law or otherwise in relation to the goods are hereby expressly excluded and the Company shall be under no liability to the Customer for any loss damage or injury direct or indirect resulting from defective material, faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Company, its employees or agents save that the Company shall accept liability for death or personal injury caused by the negligence of the Company.
(D) The Company’s prices are determined on the basis of the limits of liability set out in this Condition. The Customer may by written notice to the Company request the Company to agree a higher limit of liability provided insurance cover can be obtained therefore.
11. CONSUMER RIGHTS
These Conditions do not and will not affect the statutory rights of a Customer who is a consumer. No provisions in these Conditions which would be void by virtue of Section 6 or Section 20 of the Unfair Contract Terms Act 1977 (as amended) shall apply to any consumer transaction. For the purposes of the foregoing the expressions “consumer” and “consumer transaction” shall have the respective meanings given thereto in paragraph 2 of the Consumer Transactions (Restrictions on Statements ) Order 1976 (as amended).
Subject always to Condition 11 above:
(i) No goods can be accepted back for credit unless the Company’s prior written agreement for their return has been obtained. Goods must be returned within twenty-eight days of invoice date. A Returned Goods Note should be obtained in respect of such Goods from the Company before they are returned. Claims for credit will only be considered for goods which are returned with the Returned Goods Notes issued in respect of them.
(ii) The Company reserves the right to impose a twenty per cent handling charge on the invoice price of returns of over fifteen metres of fabric. Returns of under five metres of fabric will not be accepted.
13. COLOUR MATCHING
(i) Subject always to Condition 11 above, all conditions, warranties and representations expressed or implied by statute common law or otherwise that the colour or shade of the goods shall match accurately the colour or shade of any sample or cutting or of goods shown in any advertisement, pattern book, display card or elsewhere are hereby excluded.
(ii) Without prejudice to paragraph (i) of this Condition, in the event that the customer requires an accurate match, the customer shall either deliver a cutting of the required colour and shade to the Company or ask the Company to supply a cutting from its current stock.
Samples and cuttings will be sent by post. Samples on approval not returned within thirty days will be charged at the price per sample ruling at the date of despatch.
15. INSOLVENCY AND DEFAULT
If the Customer enters into a deed of arrangement or commits an act of bankruptcy or compounds with his creditors or if a receiving order is made against him or if (being a company) an order is made or a resolution is passed for the winding up of the Customer (otherwise than for the purposes of amalgamation or reconstruction previously approved in writing by the Company) or if a receiver is appointed or any of the Customer’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up Order or if the Customer takes or suffers any similar or analogous action in consequence of the debt or commits any breach of this or any other contract between the Company and the Customer the Company may without prejudice to any of its other rights stop any goods in transit and/or suspend further deliveries and/or by notice in writing to the Customer determine the contract.
Failure by the Company to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
Any notice hereunder shall be deemed to have been duly given if sent by prepaid first class post or fax to the party concerned at its last known address. Notice sent by first class post shall be deemed to have been given seven days after despatch and notices sent by fax shall be deemed to have been given on the date of despatch.
18. We reserve the right to withdraw or close an Account if there are any material changes in the circumstances of any customer.
19. The Company may from time to time alter the terms and conditions under which the agreement is made. Any such changes will be contained within our terms and conditions attached to our annual price list. The customer has 28 days within which to refuse the said terms and conditions and thereafter he is deemed to accept.
20. GOVERNING LAW
The contract shall be governed by and construed in accordance with the Laws of England and the parties hereby submit to the jurisdiction of the English Courts.