(1) These Conditions are the only conditions upon which CELEBRITY MOTION FURNITURE 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) These 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 the 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 Seller's acceptance of order) embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications.
(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 at the time of delivery be free from defects in workmanship and materials. If any goods do not conform to this warranty the Seller will at its option:-
(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 defects; or
(c) Take back the goods found not to conform to the warranty and refund the appropriate part of the purchase price.
Provided that the liability of the Seller shall in no event exceed the purchase price of the goods, and performance of any one of the above options shall constitute an entire discharge of the Seller's liability under this warranty.
(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 by the Seller 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 Seller's Invoice; and
(b) The Buyer affording the Seller a reasonable opportunity to inspect the goods and if so requested by the Seller, returning the allegedly defective goods to the Seller's 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, indirect or consequential) howsoever arising which may be suffered by the Buyer except for death or personal injury caused by the Seller's negligence.
(4) The Seller shall be under no liability in respect of defects in goods arising from secondary treatment to Fabrics or other alterations and additions after the goods have been delivered to the Buyer and the warranty given under paragraph 2(1) of this Condition of Sale shall not apply.
(5) In the event that notwithstanding the foregoing 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 foregoing provisions of this Condition shall not apply to sales which are made to persons who deal as consumers (as that expressions is defined in Section 12 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 hereof subject to such discount for prompt payment as may be agreed by the Seller.
(2) The contract price is exclusive of value added tax or any similar taxes, levies or duties, which will be added to or charged on invoices at the appropriate rates.
(1) Unless otherwise agreed in writing, the Buyer shall pay for the goods by cash on delivery. Where a contract is designated by the Seller as a credit sale, payment will be made by the Buyer not later than the terms of payment as shown on the invoice.
(2) If any payment that is to be made hereunder by the Buyer to the Seller is overdue, interest will be chargeable thereon as well after as before judgement on a day to day basis at an annual rate of 2 per cent above Royal Bank of Scotland Group Plc base rate from time to time applicable, until the sum due is paid.
(3) 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 arrangements as to payment or credit have been established which are satisfactory to the Seller.
(1) Delivery of each consignment of the goods shall be made to the place, and in the manner, designated by the Buyer when placing the order provided that the Seller shall be entitle 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 goods 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 Seller's 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 Seller's failure to comply with such delivery times.
(4) If the Buyer 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 administration 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 may without 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. RISK AND PROPERTY
(1) The risk in the goods shall pass to the buyer upon delivery of the goods to the Buyer or any carrier acting on the Buyer's behalf.
(2) The property in the goods shall not pass to the Buyer until the full price of the goods and goods which are the subject of any other contract between the Buyer and the Seller is paid.
Until such time as the full price of all such goods has been paid:-
(a) they shall be held by the Buyer in a fiduciary capacity and stored by the Buyer at its premises in such a manner that they are clearly identifiable as the goods of the Seller and shall be kept separate from any other goods whether or not supplied by the Seller.
(b) they shall be handed over to the Seller on demand and the Seller shall be entitled to re-take possession of them without prejudice to any of its other rights against the Buyer and the Seller is hereby granted a licence to enter into the Buyer's premises for the purpose of recovering the goods.
(c) if the Buyer fails to pay for the goods in accordance with these conditions, the Seller will have the right to bring an action against the Buyer for the price of the goods at any time notwithstanding that property in the goods has not passed to the Buyer.
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's 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 shall be enabled to comply with carrier's conditions of carriage).
8. INITIAL DEFECTS
(1) The Buyer shall have no claim in respect of any breach of the warranty in Condition 2(1) hereof which should have been apparent on a reasonable
visual examination of the goods unless the conditions in paragraph (2) 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 conditions before referred to are that:-
(a) The receipt of 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.
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 goods 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 thereof
(c) The Seller is withholding delivery of the goods pursuant to Condition 4(3) hereof
The expenses 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 to the Buyer.
10. PATENT INFRINGEMENT
The Seller warrants only that the goods themselves and the delivery or importation thereof will not infringe any patent rights published (at the date of the 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 for 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 or for a purpose or in a foreign country not specified or disclosed to the Seller or in a 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 claim being made or action 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.
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 Buyer's order.
11. DRAWINGS AND DESCRIPTIONS
All drawings, photographs, illustrations, specifications, performance data, dimensions, weights, publicity matter and the like, whether contained in the
contract or made by way of representation, have been provided by the Seller in the belief that they are as accurate as reasonably possible but are
only intended to give a general idea of the goods portrayed. They do not constitute a description of the goods shall not be taken to be representations
made by the Seller, and are not warranted to be accurate. Recommendation as to the maintenance of fabrics and materials are given in good faith but
the Seller shall not be liable for any damage resulting from their observance.
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 considers 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 for were proprietary or special parts ordered by the Buyer
(2) Such substitute parts shall be accepted by the Buyer in full satisfaction and performance of the Seller's obligation in that particular.
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, and any adjustment to the price made by the Sellers.
13. DELAY OCCASIONED BY THE BUYER
The Buyer shall promptly furnish all designs, information and instructions necessary for the Seller to be able to undertake the work in performance of
the contract and the Buyer shall compensate the Seller for all loss and expenses incurred by the Seller by reason of any error, defect or omission
therein or by reason of any other act or omission on the part of the Buyer.
14. 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 re-imbursement of any costs incurred by the Seller in connection with the contract.
16. FORCE MAJEURE
The Seller shall have the right to cancel or to reduce the volume of the goods delivered if it is prevented from or hindered in delivery of the goods
through any circumstances beyond its control including (but not limited to) industrial action, war, fire, or prohibition or enactment of any kind, without incurring any liability for any loss or damage whatsoever resulting therefrom.
17. 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
taking proceedings against the Buyer in any other country of competent jurisdiction.
Note: The Seller's prices are calculated on the basis that the above Conditions will apply. Buyer requiring prices to be quoted on a different basis should inform the Seller.