ASIATIC CARPETS LIMITED TERMS AND CONDITIONS OF SALE
1.1 The “Seller” means Asiatic Carpets Limited, registered in England under company no. 01332676.
1.2 “Contract” the contract between the Seller and the Customer for the sale and purchase of the Goods in accordance with these Terms.
1.3 “Customer” means the person, firm or Seller whose order for Goods is accepted by the Seller. Where any order is placed by one party on behalf of or for the benefit of another party then unless contrary to the context in which the word appears “Customer” shall mean any and all such parties.
1.4 “Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these conditions.
1.5 “Order” means the Customer’s order for the Goods, as set out in the purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
2. APPLICATION These Terms and Conditions of Sale (“Terms”) shall constitute the entire understanding between the parties relating to the Goods (with the exception of an applicable additional terms imposed by the Seller) and override and exclude any other terms stipulated by the Customer.
3. CONTRACT FORMATION
3.1 An Order constitutes an offer by the Customer to purchase the Goods in accordance with these Terms. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
3.2 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order (which may be by email), at which point the Contract shall come into existence. The Seller is not obliged to accept any Order.
3.3 A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
4. DELIVERY If requested by the Customer, the Seller shall arrange for delivery of Goods, but such delivery shall throughout be at the Customer’s expense and risk unless otherwise agreed in writing by the Seller. The Seller will make all reasonable efforts to meet any delivery date quoted, but shall not be liable for failure to meet such date and for the purposes of this Clause, time shall not be deemed to be of the essence. The Seller has no obligation to provide any plant or machinery for the purpose of unloading the Goods. If required to render assistance for unloading such assistance will be at the Customer’s risk and the Customer will indemnify the Seller against all damage suffered in such unloading. Any and all expenses, costs and charges incurred by the Customer under these Terms or in relation to the importation of the Products shall be paid by the Customer.
5. PRICES AND PAYMENT The prices to be paid by the Customer to the Seller for the Goods shall be the price on the Seller’s published price list at the time the order for the Goods was submitted exclusive of any amounts in respect of VAT, packaging, insurance and carriage (all of which shall be additionally payable where applicable). Unless otherwise agreed in writing by the Seller, the Customer shall pay into the Seller’s bank account (as notified to the Customer) all invoices issued within 30 days from the date of invoice in pounds sterling without set-off or deduction. Customers may pay in Euros or US dollars by prior arrangement with the Seller. Where a Bill of Exchange is to be the instrument of payment it shall be properly accepted and returned within 14 days of issue unless a longer term has been agreed in writing. The Seller reserves the right to change the payment terms provided herein at any time, when in the Seller’s opinion, the Customer’s financial condition or previous payment records so warrant. Without prejudice to any rights and remedies which the Seller has, if the Customer fails to make payment when due and payable, the Customer agrees that the Seller will have the right to invoice and the Customer will pay interest on the amount due until the date of payment at the rate of 3% per annum above Bank of England Base Rate or, if higher, the rate specified pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 (or any successor, amending or supplementing legislation). In all cases the Customer shall reimburse the Seller’s expenses including Lawyer’s fees and the costs of collection.
6. DELAY IN PERFORMANCE The Seller shall not be liable for loss, damage or expense suffered by the Customer in respect of delays in performance or non-performance due to unforeseen circumstances or due to causes beyond the Seller’s control which prevent or hinder performance. Any date specified by the Seller for delivery of the goods are intend to be an estimate and the delivery shall not be made of the essence by notice. If no other dates are so specified delivery shall take place within a reasonable time.
7. TITLE AND PASSING OF RISK Notwithstanding delivery to the Customer, title to and the property in the Goods shall not in any circumstances pass to the Customer and shall remain the property of the Seller until the Customer has paid the Seller or any third party nominated in writing by the Seller the full price thereof. For the avoidance of doubt, title shall not pass until payment in full has been made of any negotiable instrument (including a Bill of Exchange) issued by the Customer. If at any time payment of the price due to the Seller is overdue, the Seller or the Seller’s representative may enter the Customer’s premises and recover and dispose of the Goods without liability to the Customer. Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Seller’s property. If required by the Seller, the Customer shall allow the Seller or its representative access to the Customer’s premises, in order to ensure that the Goods are clearly identified as the property of the Seller. Until that time, the Customer shall be entitled to re-sell or use the Goods in the ordinary course of its business but shall account to the Seller of the proceeds of sale or otherwise of the goods (including insurance proceeds) and shall keep all such proceeds separate from any monies or property of the Customer and third parties. The Customer shall 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 Customer does so, all monies owning by the Customer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable. Notwithstanding that the property in the Goods shall not pass to the Customer save as provided above, the goods shall be at the risk of the Customer from date of the Seller’s Invoice to the Customer.
8. LIMITATION OF LIABILITY
8.1 Nothing in these Terms shall limit or exclude the Seller’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors; fraud or fraudulent misrepresentation; breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); defective products under the Consumer Protection Act 1987; or any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
8.2 Subject to clause 8.1 above, (i) all conditions, warranties and other terms which might otherwise be implied by law or otherwise are, to the fullest extent permitted by law, expressly excluded; (ii) the Seller’s liability to the Customer for loss shall be limited to the price paid for the Products during the 12 months prior to the date of the claim; and (iii) the Seller expressly excludes, to the fullest extent permitted by law, any liability for any direct, indirect or consequential loss or damage incurred by the Customer arising under or in connection with these Terms, including without limitation any liability for: loss of income or revenue; loss of business; loss of profits or contracts; loss of anticipated savings; loss of data; loss of goodwill; loss arising from third party claims; wasted management or office time; and for any other loss or damage of any kind, however arising and whether caused, even if foreseeable, provided that this condition shall not prevent claims for loss of or damage to the Customer’s tangible property or any other claims for direct financial loss that are not excluded by any of the categories set out above.
9. SALE OR RETURN Where Goods are sold to the Customer on sale or return, the Goods shall be returned to the Seller by the date specified by the Seller. If no date has been specified by the Seller for the return of the Goods, the Seller may at any time require the Goods to be returned in whole or part such return to be made within a stipulated time period specified by the Seller. The goods shall be returned at the Customer’s expense and risk. For the avoidance of doubt, where goods were sold on a consignment basis, the transaction shall in all respects be construed as a sale or return transaction. In respect of goods returned the Seller is entitled to refuse to accept the return of goods which are not in pristine condition. In respect of those goods which are in pristine condition but which have been removed from their original packaging the Seller shall be entitled to charge to the Customer the cost of repackaging.
10. DEFECTIVE GOODS When goods are delivered it is the Customer’s duty to check them. In the absence of written notification of damage defect or shortage being entered on the consignment note at the time of delivery it will be presumed that the Goods have been delivered intact. Goods represented by the Customer to be defective will, if the Seller accepts that they are defective, be replaced if practicable. If Goods which the Seller accepts are defective cannot be replaced then the Seller will refund the purchase price. Subject thereto, the Customer shall not be entitled to make any claim on the Seller for loss, damage or expense arising directly or indirectly from such defects. No claim for defective goods damage in transit, shortage of delivery or loss of goods will be entertained, unless a complete claim in writing is made to the Seller with answers to any enquiries in such form that the Seller may request in cases of damage, defective goods, in transit or shortage of delivery within 7 days of notification of intended delivery of the goods and in the case of loss of goods, within 7 days of the date on which the goods should have arrived at their destination. The Seller shall in any event be discharged from any liability unless legal proceedings are issued and served on the Seller within 6 months from the notification of intended delivery. The Customer must comply with the Sellers returns procedure details of which have been supplied in writing to the Customer. The Seller reserves the right to alter the returns procedure from time to time.
11. INSOLVENCY OF THE CUSTOMER If the Customer ceases to carry on its business, suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due, admits inability to pay its debts or becomes insolvent, the Seller shall have the right to terminate the Contract immediately and any outstanding orders shall be deemed to have been determined without prejudice to any other claim or right which the Seller may otherwise make or exercise.
12.1 Any notice required to be given hereunder shall be given in writing by fax, recorded delivery or registered mail to the address of each party notified in writing to the other.
12.2 The Seller’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
12.3 In the event of any conflict or discrepancy between these Conditions and any other Conditions of business, these Conditions shall prevail.
12.4 The Seller’s employees or agents are not authorized to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any representations which are not so confirmed.
12.5 If any provisions or portions thereof of these Terms are held to be invalid under any applicable Statute or rule of law, they are to that extent to be deemed omitted.
12.6 If the Customer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery then without prejudice to any other right or remedy available to the Seller the Seller may:
(a) Store the Goods until actual delivery and charge the Customer for the reasonable storage costs (including insurance).
(b) Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the contract or charge the Customer for any shortfall below the price under the contract.
12.7 Unless Goods are sold to the Customer on a sale or return basis the Customer is not entitled to return Goods unless there is damage defect or shortage in which event Clause 9 of these Conditions shall apply.
12.8 The Customer shall keep this agreement and all the terms under which it does business with the Seller strictly confidential at all times.
12.9 Nothing in these Terms shall establish any partnership or joint venture between the Customer and the Seller nor constitute either the agent or employee of the other.
12.10 The Customer shall not, without the prior written consent of the Seller, assign, transfer, sub-contract or deal in any other manner with the Contract or any of its rights and obligations under or arising out of the Contract.
12.11 A person who is not a party to the Contract shall not have any rights to enforce its terms.
13. LAW AND JURISDICTION The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. The parties irrevocably agree that the courts of England shall have non-exclusive jurisdiction.