1. DEFINITIONS
2. BASIS OF CONTRACT
2.1
These Conditions apply to the Contract to the exclusion of any other terms that the Customer invoices, proffers, seeks to impose or incorporate by way of contract terms or notice, or which are implied by trade, custom, practice or course of dealing.
2.2
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3
The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.5
Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions or illustrations contained in the catalogues or brochures of the Company are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6
Any estimate for the Goods given by the Company shall not constitute an offer. An estimate shall only be valid for a period of 6 weeks from the date of its issue.
2.7
Except as set out in these Conditions, any variation to the Contract, including the introduction of additional terms and conditions, shall only be binding when agreed and signed by a Director of Ege Carpets Ltd on behalf of the Company.
3. QUALITY AND DESCRIPTION
3.1
The Company warrants that on delivery and for a period of 12 months from the date of delivery (“Warranty Period”) the Goods shall:-
3.1.1
conform in all material respects with their description or any Specification as set out in the Order;
3.1.2
be free from material defects in materials and workmanship; and
3.1.3
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
3.2
Subject to clause 3.3, if:-
3.2.1
the Customer gives notice in writing to the Company during the Warranty Period within:-
(a) in the case of a fault that is discoverable on reasonable examination, 3 days of delivery but in any event prior to the Goods being cut or fitted or otherwise installed; or
(b) in the case of any fault not discoverable on reasonable examination until after the Goods have been installed, 3 days of discovery
that some or all of the Goods do not comply with the warranty set out in clause 3.1; and
3.2.2
the Company is given a reasonable opportunity of examining such Goods including Goods which have been installed at any third party site and the Customer shall be responsible for arranging the full co-operation of all third parties as is reasonably required by the Company; and
3.2.3
the Customer (if asked to do so by the Company) within 7 days of the request of the Company, returns such Goods to the place of business of the Company at the cost of the Customer,
the Company shall, at its option, repair or replace the defective Goods at the original point of delivery, offer an allowance for the Customer to keep the defective Goods or refund the price of the defective Goods in full and recover possession of the Goods from the Customer.
3.3
The Company shall not be liable for failure of the Goods to comply with the warranty set out in clause 3.1 in any of the following events:-
3.3.1
the defect arises because the Customer failed to follow the oral or written instructions of the Company as to the handling, installation,maintenance and/or cleaning of the Goods or (if there are none) good trade practice regarding the same; or
3.3.2
the Customer alters such Goods without the written consent of the Company;
3.3.3
the defect arises as a result of wilful damage, negligence (other than of the Company) or unsuitable storage or transportation conditions.
3.4
Except as provided in this clause 3, the Company shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 3.1.
3.5
Except as set out in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
3.6
These Conditions shall apply to any replacement Goods supplied by the Company.
3.7
Special production tolerance – Customers will be expected to take any additional production up to a maximum of 5% although this will be kept to a minimum.
4. INSPECTION, SHADING AND COLOUR
4.1
The Customer shall examine and inspect the Goods upon Delivery and in any event before the Goods are cut or fitted.
4.2
The Customer shall fit or have the carpets fitted and maintained in accordance with the Company’s fitting, installation and maintenance instructions.
4.3
The Customer is advised that all cut pile carpets may become subject to shading or pile crushing which gives the appearance of light and dark areas or sometimes the impression of water marking – no manufacturer is able to guarantee goods against these phenomenon which are affected by environmental factors and shading or crushing is not and will not be accepted by the Company as a manufacturing fault or quality defect or warranty claim pursuant to clause 3.1. This tendency is not detrimental to wearing properties of the carpet.
4.4
Unless expressly agreed in the Order, the Company does not guarantee exact colour matching between rolls. Whilst the Company is able to guarantee colour matching of the Goods made in respect of any one order upon request, due to the nature of the Goods and batch dyeing, the Company is unable to guarantee an exact colour match for separate orders. The Company recommends where a close colour match is required, the Goods be ordered for production by the Company in one full batch.
5. DELIVERY
5.1
Delivery dates and delivery (“Delivery”) shall take place when the Customer is notified that the Goods are ready for collection or despatch ex the Company’s premises.
5.2
Unless otherwise stated in the Order, the cost of non-standard vehicle delivery outside mainland Europe and insurance shall be in addition to the price set out in the published price list. The cost of any non-standard vehicle delivery shall be agreed prior to despatch. All specific day/time delivery requirements, non-standard routes or special vehicle types are charged as extra to the Price and delivery shall be subject to the method of delivery and shall be payable at the same time and in the same manner as the Price for the Goods.
5.3
Where the Company is requested to arrange non-standard vehicle delivery of the Goods to or for the Customer, the Carrier shall be deemed to be the Customer’s agent.
5.4
The Company shall notify the Customer that the Goods are ready and hand the Goods to the carrier for delivery to such location as the parties may agree (“Delivery Location”).
5.5
Any delivery date quoted and any other date given under or pursuant to this contract is no more than an estimate and the time of delivery shall not in any event or circumstances be or become of the essence. The Company shall not be liable for any failure to deliver or delay in delivery of the Goods that is caused by a Force Majeure Event or the failure of the Customer to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or by the fault of the Carrier.
5.6
So that it is possible to establish the facts in any particular delivery, the Customer acknowledges and agrees:-
5.6.1
to inspect the Goods before signing the Carrier’s consignment note;
5.6.2
to satisfy itself as to the condition of the Goods before signing the Carrier’s consignment note;
5.6.3
that the entry or inscription of the Customer’s signature on the Company’s Carrier’s consignment note on delivery of the Goods to the customer shall be conclusive evidence that the Goods correspond in every respect with the Goods that the Customer is entitled to receive under this contract; and
5.6.4
that any shortages of delivery or damage to Goods in transit shall be notified to the Carrier at the time of delivery and a note of the shortage or damage made on the Carrier’s consignment note and all duplications thereof, the Company notified by telephone on the day of delivery and the Customer shall retain for inspection by the Company the packing and consignment note for those Goods, and details in writing shall be supplied within 3 days. All damaged Goods shall be returned to the Company forthwith.
5.7
If the Carrier fails to deliver the Goods or there is any shortage or the Goods are damaged in transit and the Customer complies with clause 5.8.1, the Company’s liability shall be limited to the replacement of the non-delivered or damaged Goods.
5.8
Where the Customer or the Customer’s carrier is to collect the Goods from the Company:-
5.8.1
delivery of the Goods shall take place when the Goods are handed to the Customer’s Carrier;
5.8.2
if the Customer fails to take delivery of the Goods within 3 Business Days of the Company notifying the Customer that the Goods are ready, then (except where such failure or delay is caused by a Force Majeure Event or the failure of the Company to comply with its obligations under the Contract) delivery of the Goods shall be deemed to have been completed at 9.00am on the second Business Day following the day on which the Company notified the Customer that the Goods were ready and, if the Customer has not taken delivery of them, the Company may re-sell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.9
The Company will endeavour to deliver the full quantity of the Goods ordered but in the event of any shortfall, the Customer shall be responsible for payment of the price in respect of the Goods actually delivered and the Customer shall not be entitled to reject the quantity of Goods actually delivered.
5.10
Unless otherwise agreed in the Order, if Goods are held by the Company against Orders from the Customer on a call off basis, they will be held in storage without charge for a maximum period of 3 months from the date that they become available for delivery. The Company reserves the right to invoice the remaining stocks of the Goods after the end of this (or any other agreed period) and to charge the Customer for storage at the cost stated in the Order until the Goods are collected by the Customer or instructions given for the Company to arrange delivery.
6. RISK AND PROPERTY
6.1
The risk in the Goods shall pass to the Customer when the Goods are handed to the Customer’s Carrier or to a third party Carrier organised by the Company as the Customer’s agent.
6.2
Notwithstanding passing of risk in the Goods pursuant to clause 6.1, title in the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for all Goods supplied at any time by the Company to the Customer. This clause shall apply irrespective of whether Delivery has been made.
6.3
Until title passes to the Customer, the Customer shall hold the Goods as the Company’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 Company’s property.
6.4
The Customer’s right to sell and/or install the Goods shall automatically cease if any of the events in clause 9.2 occurs.
6.5
If, before title in the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then (provided that the Goods have not been resold or installed and without limiting any other right or remedy the Company may have) the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1
The price of the Goods and identified ancillaries shall be the price set out in the Order and or the price set out in the published price list of the Company in force as at the date of Delivery plus any agreed transport and insurance charges.
7.2
The Company may, by giving notice to the Customer at any time up to 2 Business Days before Delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:-
7.2.1
any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, raw materials and other manufacturing costs); or
7.2.2
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or the Specification; or
7.2.3
any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
7.3
Unless otherwise expressly stated, the price of the Goods is inclusive of the costs and charges of insurance and transport of the Goods by standard vehicle delivery within mainland Europe. Standard vehicle deliveries are despatched ex-works Friday or Tuesday and delivered via a standard route plan.
7.4
The price of the Goods is exclusive of amounts in respect of Value Added Tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5
The Customer may apply for a credit account with the Company on the presentation of acceptable trade and banker’s references. The granting of a credit facility with the Company remains at the complete discretion of the Company.
7.6
Customers who have a pro-forma account or who’s account is on pre-payment terms, payment of the Goods plus VAT must be paid and funds cleared in our accounts before the manufacture of any Goods
7.7
The Company shall be entitled to invoice the Customer for each order on or at any time after Delivery.
7.8
The Customer shall pay invoices in full in cleared funds by the 20th of the month following the month in which they were invoiced.
7.9
If the Customer fails to make any payment due to the Company under the Contract by the due date for payment (“due date”), then the Company at its exclusive discretion shall:-
7.9.1
be entitled to charge interest on the overdue amount at the rate of 1.5% per month. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount;
7.9.2
require that the Customer make a payment in advance of any delivery not yet made and/or;
7.9.3
not to make any delivery.
7.10
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding, except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Company.
8. CANCELLATION AND RETURNS
8.1
Subject to clause 8.4 the Customer may cancel the Contract by serving express written notice on the Company to this effect, in which case the Customer shall:
8.1.1
subject to clause 8.2, pay to the Company the Handling Charge appropriate to the Goods, which the Customer hereby acknowledges and agrees to be a payment due in the course of this Contract on returns or (without prejudice to the foregoing) a genuine pre-estimate of our loss and expense incurred in relation to the returned Goods;
8.1.2
shall request to the Company to organise, via their carrier service, for the collection of the goods that are to be returned within 3 Business Days of the Goods being delivered. The Goods shall be in an unused condition and be returned in the original packaging, or in such similar packaging and otherwise in a manner appropriate to the nature of the Goods so as to ensure their safe and secure transportation in good condition;
8.1.3
be responsible for liaising with the Company for the return of the Goods;
8.1.4
remain responsible for the safe keeping and protection of the Goods held at its premises until collection is made by the Company’s appointed carrier, and the customer shall maintain appropriate insurance until the Goods are collected.
and (subject always to clause 8.2 and compliance by the Customer with the foregoing) where the Company has received payment in full under the Contract, the Company shall refund the Customer a sum proportionate to the returned Goods, less any proportionate discount allowed under clause 7.9 and sums due under this clause 8.1, within thirty (30) days of confirming receipt of the returned Goods at the Company’s premises.
8.2
If, following receipt by the Company of any Goods returned pursuant to clause 8.1, an inspection by the Company reveals any defect in the Goods which the Company reasonably believes to be due to the Customer’s failure to comply with clause 8.1 or any matter stated in clause 3.3, the Customer shall remain liable to the Company on demand for the full price of the Goods and all other sums due under the Contract.
8.3
Reference in this clause 8 to ‘Handling Charge’ shall mean the sum of:
8.3.1
25% of the price of the Goods set out in the Order where the quantity returned is equal to or greater than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles;
8.3.2
50% of the price of the Goods set out in the Order where the quantity returned is less than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles; 8.3.3 100% of the price of any Made to Order Goods where the Customer’s notice to cancel is served at any time after production deadline closure (Monday 12:00 noon) of any given week prior, to the Company notifying the Customer pursuant to clause 5.1 that the Goods are ready for Delivery.
8.4
[No Goods may be returned pursuant to clause 8.1 after Delivery where such Goods are Made to Order. This shall not affect the Customer’s rights pursuant to clause 3.]
9. THE CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1
If the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then (without limiting any other right or remedy available to the Company), the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company, without incurring any liability to the Customer and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2
For the purposes of clause 9.1, the relevant events are:-
9.2.1
any payment due by the Customer to the Company is overdue;
9.2.2
the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation;
9.2.3
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
9.2.4
the Customer ceases or threatens to cease to carry on business; or
9.2.5
the Company reasonable apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3
Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIABILITY
10.1
Nothing in these Conditions shall limit or exclude the liability of the Company for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable) or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2
Subject to clause 10.1:-
10.2.1
the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any special, indirect or consequential loss or damage arising under or in connection with the Contract and without limitation, the Company shall not be liable for the cost of re-cutting or removing the goods or any furniture or fittings or the costs of refitting the carpet or installing any defective goods including any replacement goods supplied by the Company; and
10.2.2
the total liability of the Company to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in all circumstances be limited to the price of the Goods.
11. FORCE MAJEURE
11.1
Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
2. BASIS OF CONTRACT
2.1
These Conditions apply to the Contract to the exclusion of any other terms that the Customer invoices, proffers, seeks to impose or incorporate by way of contract terms or notice, or which are implied by trade, custom, practice or course of dealing.
2.2
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3
The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.5
Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions or illustrations contained in the catalogues or brochures of the Company are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6
Any estimate for the Goods given by the Company shall not constitute an offer. An estimate shall only be valid for a period of 6 weeks from the date of its issue.
2.7
Except as set out in these Conditions, any variation to the Contract, including the introduction of additional terms and conditions, shall only be binding when agreed and signed by a Director of Ege Carpets Ltd on behalf of the Company.
3. QUALITY AND DESCRIPTION
3.1
The Company warrants that on delivery and for a period of 12 months from the date of delivery (“Warranty Period”) the Goods shall:-
3.1.1
conform in all material respects with their description or any Specification as set out in the Order;
3.1.2
be free from material defects in materials and workmanship; and
3.1.3
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
3.2
Subject to clause 3.3, if:-
3.2.1
the Customer gives notice in writing to the Company during the Warranty Period within:-
(a) in the case of a fault that is discoverable on reasonable examination, 3 days of delivery but in any event prior to the Goods being cut or fitted or otherwise installed; or
(b) in the case of any fault not discoverable on reasonable examination until after the Goods have been installed, 3 days of discovery
that some or all of the Goods do not comply with the warranty set out in clause 3.1; and
3.2.2
the Company is given a reasonable opportunity of examining such Goods including Goods which have been installed at any third party site and the Customer shall be responsible for arranging the full co-operation of all third parties as is reasonably required by the Company; and
3.2.3
the Customer (if asked to do so by the Company) within 7 days of the request of the Company, returns such Goods to the place of business of the Company at the cost of the Customer,
the Company shall, at its option, repair or replace the defective Goods at the original point of delivery, offer an allowance for the Customer to keep the defective Goods or refund the price of the defective Goods in full and recover possession of the Goods from the Customer.
3.3
The Company shall not be liable for failure of the Goods to comply with the warranty set out in clause 3.1 in any of the following events:-
3.3.1
the defect arises because the Customer failed to follow the oral or written instructions of the Company as to the handling, installation,maintenance and/or cleaning of the Goods or (if there are none) good trade practice regarding the same; or
3.3.2
the Customer alters such Goods without the written consent of the Company;
3.3.3
the defect arises as a result of wilful damage, negligence (other than of the Company) or unsuitable storage or transportation conditions.
3.4
Except as provided in this clause 3, the Company shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 3.1.
3.5
Except as set out in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
3.6
These Conditions shall apply to any replacement Goods supplied by the Company.
3.7
Special production tolerance – Customers will be expected to take any additional production up to a maximum of 5% although this will be kept to a minimum.
4. INSPECTION, SHADING AND COLOUR
4.1
The Customer shall examine and inspect the Goods upon Delivery and in any event before the Goods are cut or fitted.
4.2
The Customer shall fit or have the carpets fitted and maintained in accordance with the Company’s fitting, installation and maintenance instructions.
4.3
The Customer is advised that all cut pile carpets may become subject to shading or pile crushing which gives the appearance of light and dark areas or sometimes the impression of water marking – no manufacturer is able to guarantee goods against these phenomenon which are affected by environmental factors and shading or crushing is not and will not be accepted by the Company as a manufacturing fault or quality defect or warranty claim pursuant to clause 3.1. This tendency is not detrimental to wearing properties of the carpet.
4.4
Unless expressly agreed in the Order, the Company does not guarantee exact colour matching between rolls. Whilst the Company is able to guarantee colour matching of the Goods made in respect of any one order upon request, due to the nature of the Goods and batch dyeing, the Company is unable to guarantee an exact colour match for separate orders. The Company recommends where a close colour match is required, the Goods be ordered for production by the Company in one full batch.
5. DELIVERY
5.1
Delivery dates and delivery (“Delivery”) shall take place when the Customer is notified that the Goods are ready for collection or despatch ex the Company’s premises.
5.2
Unless otherwise stated in the Order, the cost of non-standard vehicle delivery outside mainland Europe and insurance shall be in addition to the price set out in the published price list. The cost of any non-standard vehicle delivery shall be agreed prior to despatch. All specific day/time delivery requirements, non-standard routes or special vehicle types are charged as extra to the Price and delivery shall be subject to the method of delivery and shall be payable at the same time and in the same manner as the Price for the Goods.
5.3
Where the Company is requested to arrange non-standard vehicle delivery of the Goods to or for the Customer, the Carrier shall be deemed to be the Customer’s agent.
5.4
The Company shall notify the Customer that the Goods are ready and hand the Goods to the carrier for delivery to such location as the parties may agree (“Delivery Location”).
5.5
Any delivery date quoted and any other date given under or pursuant to this contract is no more than an estimate and the time of delivery shall not in any event or circumstances be or become of the essence. The Company shall not be liable for any failure to deliver or delay in delivery of the Goods that is caused by a Force Majeure Event or the failure of the Customer to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or by the fault of the Carrier.
5.6
So that it is possible to establish the facts in any particular delivery, the Customer acknowledges and agrees:-
5.6.1
to inspect the Goods before signing the Carrier’s consignment note;
5.6.2
to satisfy itself as to the condition of the Goods before signing the Carrier’s consignment note;
5.6.3
that the entry or inscription of the Customer’s signature on the Company’s Carrier’s consignment note on delivery of the Goods to the customer shall be conclusive evidence that the Goods correspond in every respect with the Goods that the Customer is entitled to receive under this contract; and
5.6.4
that any shortages of delivery or damage to Goods in transit shall be notified to the Carrier at the time of delivery and a note of the shortage or damage made on the Carrier’s consignment note and all duplications thereof, the Company notified by telephone on the day of delivery and the Customer shall retain for inspection by the Company the packing and consignment note for those Goods, and details in writing shall be supplied within 3 days. All damaged Goods shall be returned to the Company forthwith.
5.7
If the Carrier fails to deliver the Goods or there is any shortage or the Goods are damaged in transit and the Customer complies with clause 5.8.1, the Company’s liability shall be limited to the replacement of the non-delivered or damaged Goods.
5.8
Where the Customer or the Customer’s carrier is to collect the Goods from the Company:-
5.8.1
delivery of the Goods shall take place when the Goods are handed to the Customer’s Carrier;
5.8.2
if the Customer fails to take delivery of the Goods within 3 Business Days of the Company notifying the Customer that the Goods are ready, then (except where such failure or delay is caused by a Force Majeure Event or the failure of the Company to comply with its obligations under the Contract) delivery of the Goods shall be deemed to have been completed at 9.00am on the second Business Day following the day on which the Company notified the Customer that the Goods were ready and, if the Customer has not taken delivery of them, the Company may re-sell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.9
The Company will endeavour to deliver the full quantity of the Goods ordered but in the event of any shortfall, the Customer shall be responsible for payment of the price in respect of the Goods actually delivered and the Customer shall not be entitled to reject the quantity of Goods actually delivered.
5.10
Unless otherwise agreed in the Order, if Goods are held by the Company against Orders from the Customer on a call off basis, they will be held in storage without charge for a maximum period of 3 months from the date that they become available for delivery. The Company reserves the right to invoice the remaining stocks of the Goods after the end of this (or any other agreed period) and to charge the Customer for storage at the cost stated in the Order until the Goods are collected by the Customer or instructions given for the Company to arrange delivery.
6. RISK AND PROPERTY
6.1
The risk in the Goods shall pass to the Customer when the Goods are handed to the Customer’s Carrier or to a third party Carrier organised by the Company as the Customer’s agent.
6.2
Notwithstanding passing of risk in the Goods pursuant to clause 6.1, title in the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for all Goods supplied at any time by the Company to the Customer. This clause shall apply irrespective of whether Delivery has been made.
6.3
Until title passes to the Customer, the Customer shall hold the Goods as the Company’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 Company’s property.
6.4
The Customer’s right to sell and/or install the Goods shall automatically cease if any of the events in clause 9.2 occurs.
6.5
If, before title in the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then (provided that the Goods have not been resold or installed and without limiting any other right or remedy the Company may have) the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1
The price of the Goods and identified ancillaries shall be the price set out in the Order and or the price set out in the published price list of the Company in force as at the date of Delivery plus any agreed transport and insurance charges.
7.2
The Company may, by giving notice to the Customer at any time up to 2 Business Days before Delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:-
7.2.1
any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, raw materials and other manufacturing costs); or
7.2.2
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or the Specification; or
7.2.3
any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
7.3
Unless otherwise expressly stated, the price of the Goods is inclusive of the costs and charges of insurance and transport of the Goods by standard vehicle delivery within mainland Europe. Standard vehicle deliveries are despatched ex-works Friday or Tuesday and delivered via a standard route plan.
7.4
The price of the Goods is exclusive of amounts in respect of Value Added Tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5
The Customer may apply for a credit account with the Company on the presentation of acceptable trade and banker’s references. The granting of a credit facility with the Company remains at the complete discretion of the Company.
7.6
Customers who have a pro-forma account or who’s account is on pre-payment terms, payment of the Goods plus VAT must be paid and funds cleared in our accounts before the manufacture of any Goods
7.7
The Company shall be entitled to invoice the Customer for each order on or at any time after Delivery.
7.8
The Customer shall pay invoices in full in cleared funds by the 20th of the month following the month in which they were invoiced.
7.9
If the Customer fails to make any payment due to the Company under the Contract by the due date for payment (“due date”), then the Company at its exclusive discretion shall:-
7.9.1
be entitled to charge interest on the overdue amount at the rate of 1.5% per month. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount;
7.9.2
require that the Customer make a payment in advance of any delivery not yet made and/or;
7.9.3
not to make any delivery.
7.10
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding, except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Company.
8. CANCELLATION AND RETURNS
8.1
Subject to clause 8.4 the Customer may cancel the Contract by serving express written notice on the Company to this effect, in which case the Customer shall:
8.1.1
subject to clause 8.2, pay to the Company the Handling Charge appropriate to the Goods, which the Customer hereby acknowledges and agrees to be a payment due in the course of this Contract on returns or (without prejudice to the foregoing) a genuine pre-estimate of our loss and expense incurred in relation to the returned Goods;
8.1.2
shall request to the Company to organise, via their carrier service, for the collection of the goods that are to be returned within 3 Business Days of the Goods being delivered. The Goods shall be in an unused condition and be returned in the original packaging, or in such similar packaging and otherwise in a manner appropriate to the nature of the Goods so as to ensure their safe and secure transportation in good condition;
8.1.3
be responsible for liaising with the Company for the return of the Goods;
8.1.4
remain responsible for the safe keeping and protection of the Goods held at its premises until collection is made by the Company’s appointed carrier, and the customer shall maintain appropriate insurance until the Goods are collected.
and (subject always to clause 8.2 and compliance by the Customer with the foregoing) where the Company has received payment in full under the Contract, the Company shall refund the Customer a sum proportionate to the returned Goods, less any proportionate discount allowed under clause 7.9 and sums due under this clause 8.1, within thirty (30) days of confirming receipt of the returned Goods at the Company’s premises.
8.2
If, following receipt by the Company of any Goods returned pursuant to clause 8.1, an inspection by the Company reveals any defect in the Goods which the Company reasonably believes to be due to the Customer’s failure to comply with clause 8.1 or any matter stated in clause 3.3, the Customer shall remain liable to the Company on demand for the full price of the Goods and all other sums due under the Contract.
8.3
Reference in this clause 8 to ‘Handling Charge’ shall mean the sum of:
8.3.1
25% of the price of the Goods set out in the Order where the quantity returned is equal to or greater than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles;
8.3.2
50% of the price of the Goods set out in the Order where the quantity returned is less than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles; 8.3.3 100% of the price of any Made to Order Goods where the Customer’s notice to cancel is served at any time after production deadline closure (Monday 12:00 noon) of any given week prior, to the Company notifying the Customer pursuant to clause 5.1 that the Goods are ready for Delivery.
8.4
[No Goods may be returned pursuant to clause 8.1 after Delivery where such Goods are Made to Order. This shall not affect the Customer’s rights pursuant to clause 3.]
9. THE CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1
If the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then (without limiting any other right or remedy available to the Company), the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company, without incurring any liability to the Customer and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2
For the purposes of clause 9.1, the relevant events are:-
9.2.1
any payment due by the Customer to the Company is overdue;
9.2.2
the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation;
9.2.3
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
9.2.4
the Customer ceases or threatens to cease to carry on business; or
9.2.5
the Company reasonable apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3
Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIABILITY
10.1
Nothing in these Conditions shall limit or exclude the liability of the Company for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable) or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2
Subject to clause 10.1:-
10.2.1
the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any special, indirect or consequential loss or damage arising under or in connection with the Contract and without limitation, the Company shall not be liable for the cost of re-cutting or removing the goods or any furniture or fittings or the costs of refitting the carpet or installing any defective goods including any replacement goods supplied by the Company; and
10.2.2
the total liability of the Company to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in all circumstances be limited to the price of the Goods.
11. FORCE MAJEURE
11.1
Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
2. BASIS OF CONTRACT
2.1
These Conditions apply to the Contract to the exclusion of any other terms that the Customer invoices, proffers, seeks to impose or incorporate by way of contract terms or notice, or which are implied by trade, custom, practice or course of dealing.
2.2
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3
The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.5
Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions or illustrations contained in the catalogues or brochures of the Company are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6
Any estimate for the Goods given by the Company shall not constitute an offer. An estimate shall only be valid for a period of 6 weeks from the date of its issue.
2.7
Except as set out in these Conditions, any variation to the Contract, including the introduction of additional terms and conditions, shall only be binding when agreed and signed by a Director of Ege Carpets Ltd on behalf of the Company.
3. QUALITY AND DESCRIPTION
3.1
The Company warrants that on delivery and for a period of 12 months from the date of delivery (“Warranty Period”) the Goods shall:-
3.1.1
conform in all material respects with their description or any Specification as set out in the Order;
3.1.2
be free from material defects in materials and workmanship; and
3.1.3
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
3.2
Subject to clause 3.3, if:-
3.2.1
the Customer gives notice in writing to the Company during the Warranty Period within:-
(a) in the case of a fault that is discoverable on reasonable examination, 3 days of delivery but in any event prior to the Goods being cut or fitted or otherwise installed; or
(b) in the case of any fault not discoverable on reasonable examination until after the Goods have been installed, 3 days of discovery
that some or all of the Goods do not comply with the warranty set out in clause 3.1; and
3.2.2
the Company is given a reasonable opportunity of examining such Goods including Goods which have been installed at any third party site and the Customer shall be responsible for arranging the full co-operation of all third parties as is reasonably required by the Company; and
3.2.3
the Customer (if asked to do so by the Company) within 7 days of the request of the Company, returns such Goods to the place of business of the Company at the cost of the Customer,
the Company shall, at its option, repair or replace the defective Goods at the original point of delivery, offer an allowance for the Customer to keep the defective Goods or refund the price of the defective Goods in full and recover possession of the Goods from the Customer.
3.3
The Company shall not be liable for failure of the Goods to comply with the warranty set out in clause 3.1 in any of the following events:-
3.3.1
the defect arises because the Customer failed to follow the oral or written instructions of the Company as to the handling, installation,maintenance and/or cleaning of the Goods or (if there are none) good trade practice regarding the same; or
3.3.2
the Customer alters such Goods without the written consent of the Company;
3.3.3
the defect arises as a result of wilful damage, negligence (other than of the Company) or unsuitable storage or transportation conditions.
3.4
Except as provided in this clause 3, the Company shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 3.1.
3.5
Except as set out in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
3.6
These Conditions shall apply to any replacement Goods supplied by the Company.
3.7
Special production tolerance – Customers will be expected to take any additional production up to a maximum of 5% although this will be kept to a minimum.
4. INSPECTION, SHADING AND COLOUR
4.1
The Customer shall examine and inspect the Goods upon Delivery and in any event before the Goods are cut or fitted.
4.2
The Customer shall fit or have the carpets fitted and maintained in accordance with the Company’s fitting, installation and maintenance instructions.
4.3
The Customer is advised that all cut pile carpets may become subject to shading or pile crushing which gives the appearance of light and dark areas or sometimes the impression of water marking – no manufacturer is able to guarantee goods against these phenomenon which are affected by environmental factors and shading or crushing is not and will not be accepted by the Company as a manufacturing fault or quality defect or warranty claim pursuant to clause 3.1. This tendency is not detrimental to wearing properties of the carpet.
4.4
Unless expressly agreed in the Order, the Company does not guarantee exact colour matching between rolls. Whilst the Company is able to guarantee colour matching of the Goods made in respect of any one order upon request, due to the nature of the Goods and batch dyeing, the Company is unable to guarantee an exact colour match for separate orders. The Company recommends where a close colour match is required, the Goods be ordered for production by the Company in one full batch.
5. DELIVERY
5.1
Delivery dates and delivery (“Delivery”) shall take place when the Customer is notified that the Goods are ready for collection or despatch ex the Company’s premises.
5.2
Unless otherwise stated in the Order, the cost of non-standard vehicle delivery outside mainland Europe and insurance shall be in addition to the price set out in the published price list. The cost of any non-standard vehicle delivery shall be agreed prior to despatch. All specific day/time delivery requirements, non-standard routes or special vehicle types are charged as extra to the Price and delivery shall be subject to the method of delivery and shall be payable at the same time and in the same manner as the Price for the Goods.
5.3
Where the Company is requested to arrange non-standard vehicle delivery of the Goods to or for the Customer, the Carrier shall be deemed to be the Customer’s agent.
5.4
The Company shall notify the Customer that the Goods are ready and hand the Goods to the carrier for delivery to such location as the parties may agree (“Delivery Location”).
5.5
Any delivery date quoted and any other date given under or pursuant to this contract is no more than an estimate and the time of delivery shall not in any event or circumstances be or become of the essence. The Company shall not be liable for any failure to deliver or delay in delivery of the Goods that is caused by a Force Majeure Event or the failure of the Customer to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or by the fault of the Carrier.
5.6
So that it is possible to establish the facts in any particular delivery, the Customer acknowledges and agrees:-
5.6.1
to inspect the Goods before signing the Carrier’s consignment note;
5.6.2
to satisfy itself as to the condition of the Goods before signing the Carrier’s consignment note;
5.6.3
that the entry or inscription of the Customer’s signature on the Company’s Carrier’s consignment note on delivery of the Goods to the customer shall be conclusive evidence that the Goods correspond in every respect with the Goods that the Customer is entitled to receive under this contract; and
5.6.4
that any shortages of delivery or damage to Goods in transit shall be notified to the Carrier at the time of delivery and a note of the shortage or damage made on the Carrier’s consignment note and all duplications thereof, the Company notified by telephone on the day of delivery and the Customer shall retain for inspection by the Company the packing and consignment note for those Goods, and details in writing shall be supplied within 3 days. All damaged Goods shall be returned to the Company forthwith.
5.7
If the Carrier fails to deliver the Goods or there is any shortage or the Goods are damaged in transit and the Customer complies with clause 5.8.1, the Company’s liability shall be limited to the replacement of the non-delivered or damaged Goods.
5.8
Where the Customer or the Customer’s carrier is to collect the Goods from the Company:-
5.8.1
delivery of the Goods shall take place when the Goods are handed to the Customer’s Carrier;
5.8.2
if the Customer fails to take delivery of the Goods within 3 Business Days of the Company notifying the Customer that the Goods are ready, then (except where such failure or delay is caused by a Force Majeure Event or the failure of the Company to comply with its obligations under the Contract) delivery of the Goods shall be deemed to have been completed at 9.00am on the second Business Day following the day on which the Company notified the Customer that the Goods were ready and, if the Customer has not taken delivery of them, the Company may re-sell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.9
The Company will endeavour to deliver the full quantity of the Goods ordered but in the event of any shortfall, the Customer shall be responsible for payment of the price in respect of the Goods actually delivered and the Customer shall not be entitled to reject the quantity of Goods actually delivered.
5.10
Unless otherwise agreed in the Order, if Goods are held by the Company against Orders from the Customer on a call off basis, they will be held in storage without charge for a maximum period of 3 months from the date that they become available for delivery. The Company reserves the right to invoice the remaining stocks of the Goods after the end of this (or any other agreed period) and to charge the Customer for storage at the cost stated in the Order until the Goods are collected by the Customer or instructions given for the Company to arrange delivery.
6. RISK AND PROPERTY
6.1
The risk in the Goods shall pass to the Customer when the Goods are handed to the Customer’s Carrier or to a third party Carrier organised by the Company as the Customer’s agent.
6.2
Notwithstanding passing of risk in the Goods pursuant to clause 6.1, title in the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for all Goods supplied at any time by the Company to the Customer. This clause shall apply irrespective of whether Delivery has been made.
6.3
Until title passes to the Customer, the Customer shall hold the Goods as the Company’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 Company’s property.
6.4
The Customer’s right to sell and/or install the Goods shall automatically cease if any of the events in clause 9.2 occurs.
6.5
If, before title in the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then (provided that the Goods have not been resold or installed and without limiting any other right or remedy the Company may have) the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1
The price of the Goods and identified ancillaries shall be the price set out in the Order and or the price set out in the published price list of the Company in force as at the date of Delivery plus any agreed transport and insurance charges.
7.2
The Company may, by giving notice to the Customer at any time up to 2 Business Days before Delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:-
7.2.1
any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, raw materials and other manufacturing costs); or
7.2.2
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or the Specification; or
7.2.3
any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
7.3
Unless otherwise expressly stated, the price of the Goods is inclusive of the costs and charges of insurance and transport of the Goods by standard vehicle delivery within mainland Europe. Standard vehicle deliveries are despatched ex-works Friday or Tuesday and delivered via a standard route plan.
7.4
The price of the Goods is exclusive of amounts in respect of Value Added Tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5
The Customer may apply for a credit account with the Company on the presentation of acceptable trade and banker’s references. The granting of a credit facility with the Company remains at the complete discretion of the Company.
7.6
Customers who have a pro-forma account or who’s account is on pre-payment terms, payment of the Goods plus VAT must be paid and funds cleared in our accounts before the manufacture of any Goods
7.7
The Company shall be entitled to invoice the Customer for each order on or at any time after Delivery.
7.8
The Customer shall pay invoices in full in cleared funds by the 20th of the month following the month in which they were invoiced.
7.9
If the Customer fails to make any payment due to the Company under the Contract by the due date for payment (“due date”), then the Company at its exclusive discretion shall:-
7.9.1
be entitled to charge interest on the overdue amount at the rate of 1.5% per month. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount;
7.9.2
require that the Customer make a payment in advance of any delivery not yet made and/or;
7.9.3
not to make any delivery.
7.10
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding, except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Company.
8. CANCELLATION AND RETURNS
8.1
Subject to clause 8.4 the Customer may cancel the Contract by serving express written notice on the Company to this effect, in which case the Customer shall:
8.1.1
subject to clause 8.2, pay to the Company the Handling Charge appropriate to the Goods, which the Customer hereby acknowledges and agrees to be a payment due in the course of this Contract on returns or (without prejudice to the foregoing) a genuine pre-estimate of our loss and expense incurred in relation to the returned Goods;
8.1.2
shall request to the Company to organise, via their carrier service, for the collection of the goods that are to be returned within 3 Business Days of the Goods being delivered. The Goods shall be in an unused condition and be returned in the original packaging, or in such similar packaging and otherwise in a manner appropriate to the nature of the Goods so as to ensure their safe and secure transportation in good condition;
8.1.3
be responsible for liaising with the Company for the return of the Goods;
8.1.4
remain responsible for the safe keeping and protection of the Goods held at its premises until collection is made by the Company’s appointed carrier, and the customer shall maintain appropriate insurance until the Goods are collected.
and (subject always to clause 8.2 and compliance by the Customer with the foregoing) where the Company has received payment in full under the Contract, the Company shall refund the Customer a sum proportionate to the returned Goods, less any proportionate discount allowed under clause 7.9 and sums due under this clause 8.1, within thirty (30) days of confirming receipt of the returned Goods at the Company’s premises.
8.2
If, following receipt by the Company of any Goods returned pursuant to clause 8.1, an inspection by the Company reveals any defect in the Goods which the Company reasonably believes to be due to the Customer’s failure to comply with clause 8.1 or any matter stated in clause 3.3, the Customer shall remain liable to the Company on demand for the full price of the Goods and all other sums due under the Contract.
8.3
Reference in this clause 8 to ‘Handling Charge’ shall mean the sum of:
8.3.1
25% of the price of the Goods set out in the Order where the quantity returned is equal to or greater than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles;
8.3.2
50% of the price of the Goods set out in the Order where the quantity returned is less than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles; 8.3.3 100% of the price of any Made to Order Goods where the Customer’s notice to cancel is served at any time after production deadline closure (Monday 12:00 noon) of any given week prior, to the Company notifying the Customer pursuant to clause 5.1 that the Goods are ready for Delivery.
8.4
[No Goods may be returned pursuant to clause 8.1 after Delivery where such Goods are Made to Order. This shall not affect the Customer’s rights pursuant to clause 3.]
9. THE CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1
If the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then (without limiting any other right or remedy available to the Company), the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company, without incurring any liability to the Customer and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2
For the purposes of clause 9.1, the relevant events are:-
9.2.1
any payment due by the Customer to the Company is overdue;
9.2.2
the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation;
9.2.3
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
9.2.4
the Customer ceases or threatens to cease to carry on business; or
9.2.5
the Company reasonable apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3
Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIABILITY
10.1
Nothing in these Conditions shall limit or exclude the liability of the Company for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable) or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2
Subject to clause 10.1:-
10.2.1
the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any special, indirect or consequential loss or damage arising under or in connection with the Contract and without limitation, the Company shall not be liable for the cost of re-cutting or removing the goods or any furniture or fittings or the costs of refitting the carpet or installing any defective goods including any replacement goods supplied by the Company; and
10.2.2
the total liability of the Company to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in all circumstances be limited to the price of the Goods.
11. FORCE MAJEURE
11.1
Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
2. BASIS OF CONTRACT
2.1
These Conditions apply to the Contract to the exclusion of any other terms that the Customer invoices, proffers, seeks to impose or incorporate by way of contract terms or notice, or which are implied by trade, custom, practice or course of dealing.
2.2
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3
The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.5
Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions or illustrations contained in the catalogues or brochures of the Company are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6
Any estimate for the Goods given by the Company shall not constitute an offer. An estimate shall only be valid for a period of 6 weeks from the date of its issue.
2.7
Except as set out in these Conditions, any variation to the Contract, including the introduction of additional terms and conditions, shall only be binding when agreed and signed by a Director of Ege Carpets Ltd on behalf of the Company.
3. QUALITY AND DESCRIPTION
3.1
The Company warrants that on delivery and for a period of 12 months from the date of delivery (“Warranty Period”) the Goods shall:-
3.1.1
conform in all material respects with their description or any Specification as set out in the Order;
3.1.2
be free from material defects in materials and workmanship; and
3.1.3
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
3.2
Subject to clause 3.3, if:-
3.2.1
the Customer gives notice in writing to the Company during the Warranty Period within:-
(a) in the case of a fault that is discoverable on reasonable examination, 3 days of delivery but in any event prior to the Goods being cut or fitted or otherwise installed; or
(b) in the case of any fault not discoverable on reasonable examination until after the Goods have been installed, 3 days of discovery
that some or all of the Goods do not comply with the warranty set out in clause 3.1; and
3.2.2
the Company is given a reasonable opportunity of examining such Goods including Goods which have been installed at any third party site and the Customer shall be responsible for arranging the full co-operation of all third parties as is reasonably required by the Company; and
3.2.3
the Customer (if asked to do so by the Company) within 7 days of the request of the Company, returns such Goods to the place of business of the Company at the cost of the Customer,
the Company shall, at its option, repair or replace the defective Goods at the original point of delivery, offer an allowance for the Customer to keep the defective Goods or refund the price of the defective Goods in full and recover possession of the Goods from the Customer.
3.3
The Company shall not be liable for failure of the Goods to comply with the warranty set out in clause 3.1 in any of the following events:-
3.3.1
the defect arises because the Customer failed to follow the oral or written instructions of the Company as to the handling, installation,maintenance and/or cleaning of the Goods or (if there are none) good trade practice regarding the same; or
3.3.2
the Customer alters such Goods without the written consent of the Company;
3.3.3
the defect arises as a result of wilful damage, negligence (other than of the Company) or unsuitable storage or transportation conditions.
3.4
Except as provided in this clause 3, the Company shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 3.1.
3.5
Except as set out in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
3.6
These Conditions shall apply to any replacement Goods supplied by the Company.
3.7
Special production tolerance – Customers will be expected to take any additional production up to a maximum of 5% although this will be kept to a minimum.
4. INSPECTION, SHADING AND COLOUR
4.1
The Customer shall examine and inspect the Goods upon Delivery and in any event before the Goods are cut or fitted.
4.2
The Customer shall fit or have the carpets fitted and maintained in accordance with the Company’s fitting, installation and maintenance instructions.
4.3
The Customer is advised that all cut pile carpets may become subject to shading or pile crushing which gives the appearance of light and dark areas or sometimes the impression of water marking – no manufacturer is able to guarantee goods against these phenomenon which are affected by environmental factors and shading or crushing is not and will not be accepted by the Company as a manufacturing fault or quality defect or warranty claim pursuant to clause 3.1. This tendency is not detrimental to wearing properties of the carpet.
4.4
Unless expressly agreed in the Order, the Company does not guarantee exact colour matching between rolls. Whilst the Company is able to guarantee colour matching of the Goods made in respect of any one order upon request, due to the nature of the Goods and batch dyeing, the Company is unable to guarantee an exact colour match for separate orders. The Company recommends where a close colour match is required, the Goods be ordered for production by the Company in one full batch.
5. DELIVERY
5.1
Delivery dates and delivery (“Delivery”) shall take place when the Customer is notified that the Goods are ready for collection or despatch ex the Company’s premises.
5.2
Unless otherwise stated in the Order, the cost of non-standard vehicle delivery outside mainland Europe and insurance shall be in addition to the price set out in the published price list. The cost of any non-standard vehicle delivery shall be agreed prior to despatch. All specific day/time delivery requirements, non-standard routes or special vehicle types are charged as extra to the Price and delivery shall be subject to the method of delivery and shall be payable at the same time and in the same manner as the Price for the Goods.
5.3
Where the Company is requested to arrange non-standard vehicle delivery of the Goods to or for the Customer, the Carrier shall be deemed to be the Customer’s agent.
5.4
The Company shall notify the Customer that the Goods are ready and hand the Goods to the carrier for delivery to such location as the parties may agree (“Delivery Location”).
5.5
Any delivery date quoted and any other date given under or pursuant to this contract is no more than an estimate and the time of delivery shall not in any event or circumstances be or become of the essence. The Company shall not be liable for any failure to deliver or delay in delivery of the Goods that is caused by a Force Majeure Event or the failure of the Customer to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or by the fault of the Carrier.
5.6
So that it is possible to establish the facts in any particular delivery, the Customer acknowledges and agrees:-
5.6.1
to inspect the Goods before signing the Carrier’s consignment note;
5.6.2
to satisfy itself as to the condition of the Goods before signing the Carrier’s consignment note;
5.6.3
that the entry or inscription of the Customer’s signature on the Company’s Carrier’s consignment note on delivery of the Goods to the customer shall be conclusive evidence that the Goods correspond in every respect with the Goods that the Customer is entitled to receive under this contract; and
5.6.4
that any shortages of delivery or damage to Goods in transit shall be notified to the Carrier at the time of delivery and a note of the shortage or damage made on the Carrier’s consignment note and all duplications thereof, the Company notified by telephone on the day of delivery and the Customer shall retain for inspection by the Company the packing and consignment note for those Goods, and details in writing shall be supplied within 3 days. All damaged Goods shall be returned to the Company forthwith.
5.7
If the Carrier fails to deliver the Goods or there is any shortage or the Goods are damaged in transit and the Customer complies with clause 5.8.1, the Company’s liability shall be limited to the replacement of the non-delivered or damaged Goods.
5.8
Where the Customer or the Customer’s carrier is to collect the Goods from the Company:-
5.8.1
delivery of the Goods shall take place when the Goods are handed to the Customer’s Carrier;
5.8.2
if the Customer fails to take delivery of the Goods within 3 Business Days of the Company notifying the Customer that the Goods are ready, then (except where such failure or delay is caused by a Force Majeure Event or the failure of the Company to comply with its obligations under the Contract) delivery of the Goods shall be deemed to have been completed at 9.00am on the second Business Day following the day on which the Company notified the Customer that the Goods were ready and, if the Customer has not taken delivery of them, the Company may re-sell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.9
The Company will endeavour to deliver the full quantity of the Goods ordered but in the event of any shortfall, the Customer shall be responsible for payment of the price in respect of the Goods actually delivered and the Customer shall not be entitled to reject the quantity of Goods actually delivered.
5.10
Unless otherwise agreed in the Order, if Goods are held by the Company against Orders from the Customer on a call off basis, they will be held in storage without charge for a maximum period of 3 months from the date that they become available for delivery. The Company reserves the right to invoice the remaining stocks of the Goods after the end of this (or any other agreed period) and to charge the Customer for storage at the cost stated in the Order until the Goods are collected by the Customer or instructions given for the Company to arrange delivery.
6. RISK AND PROPERTY
6.1
The risk in the Goods shall pass to the Customer when the Goods are handed to the Customer’s Carrier or to a third party Carrier organised by the Company as the Customer’s agent.
6.2
Notwithstanding passing of risk in the Goods pursuant to clause 6.1, title in the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for all Goods supplied at any time by the Company to the Customer. This clause shall apply irrespective of whether Delivery has been made.
6.3
Until title passes to the Customer, the Customer shall hold the Goods as the Company’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 Company’s property.
6.4
The Customer’s right to sell and/or install the Goods shall automatically cease if any of the events in clause 9.2 occurs.
6.5
If, before title in the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then (provided that the Goods have not been resold or installed and without limiting any other right or remedy the Company may have) the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1
The price of the Goods and identified ancillaries shall be the price set out in the Order and or the price set out in the published price list of the Company in force as at the date of Delivery plus any agreed transport and insurance charges.
7.2
The Company may, by giving notice to the Customer at any time up to 2 Business Days before Delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:-
7.2.1
any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, raw materials and other manufacturing costs); or
7.2.2
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or the Specification; or
7.2.3
any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
7.3
Unless otherwise expressly stated, the price of the Goods is inclusive of the costs and charges of insurance and transport of the Goods by standard vehicle delivery within mainland Europe. Standard vehicle deliveries are despatched ex-works Friday or Tuesday and delivered via a standard route plan.
7.4
The price of the Goods is exclusive of amounts in respect of Value Added Tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5
The Customer may apply for a credit account with the Company on the presentation of acceptable trade and banker’s references. The granting of a credit facility with the Company remains at the complete discretion of the Company.
7.6
Customers who have a pro-forma account or who’s account is on pre-payment terms, payment of the Goods plus VAT must be paid and funds cleared in our accounts before the manufacture of any Goods
7.7
The Company shall be entitled to invoice the Customer for each order on or at any time after Delivery.
7.8
The Customer shall pay invoices in full in cleared funds by the 20th of the month following the month in which they were invoiced.
7.9
If the Customer fails to make any payment due to the Company under the Contract by the due date for payment (“due date”), then the Company at its exclusive discretion shall:-
7.9.1
be entitled to charge interest on the overdue amount at the rate of 1.5% per month. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount;
7.9.2
require that the Customer make a payment in advance of any delivery not yet made and/or;
7.9.3
not to make any delivery.
7.10
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding, except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Company.
8. CANCELLATION AND RETURNS
8.1
Subject to clause 8.4 the Customer may cancel the Contract by serving express written notice on the Company to this effect, in which case the Customer shall:
8.1.1
subject to clause 8.2, pay to the Company the Handling Charge appropriate to the Goods, which the Customer hereby acknowledges and agrees to be a payment due in the course of this Contract on returns or (without prejudice to the foregoing) a genuine pre-estimate of our loss and expense incurred in relation to the returned Goods;
8.1.2
shall request to the Company to organise, via their carrier service, for the collection of the goods that are to be returned within 3 Business Days of the Goods being delivered. The Goods shall be in an unused condition and be returned in the original packaging, or in such similar packaging and otherwise in a manner appropriate to the nature of the Goods so as to ensure their safe and secure transportation in good condition;
8.1.3
be responsible for liaising with the Company for the return of the Goods;
8.1.4
remain responsible for the safe keeping and protection of the Goods held at its premises until collection is made by the Company’s appointed carrier, and the customer shall maintain appropriate insurance until the Goods are collected.
and (subject always to clause 8.2 and compliance by the Customer with the foregoing) where the Company has received payment in full under the Contract, the Company shall refund the Customer a sum proportionate to the returned Goods, less any proportionate discount allowed under clause 7.9 and sums due under this clause 8.1, within thirty (30) days of confirming receipt of the returned Goods at the Company’s premises.
8.2
If, following receipt by the Company of any Goods returned pursuant to clause 8.1, an inspection by the Company reveals any defect in the Goods which the Company reasonably believes to be due to the Customer’s failure to comply with clause 8.1 or any matter stated in clause 3.3, the Customer shall remain liable to the Company on demand for the full price of the Goods and all other sums due under the Contract.
8.3
Reference in this clause 8 to ‘Handling Charge’ shall mean the sum of:
8.3.1
25% of the price of the Goods set out in the Order where the quantity returned is equal to or greater than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles;
8.3.2
50% of the price of the Goods set out in the Order where the quantity returned is less than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles; 8.3.3 100% of the price of any Made to Order Goods where the Customer’s notice to cancel is served at any time after production deadline closure (Monday 12:00 noon) of any given week prior, to the Company notifying the Customer pursuant to clause 5.1 that the Goods are ready for Delivery.
8.4
[No Goods may be returned pursuant to clause 8.1 after Delivery where such Goods are Made to Order. This shall not affect the Customer’s rights pursuant to clause 3.]
9. THE CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1
If the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then (without limiting any other right or remedy available to the Company), the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company, without incurring any liability to the Customer and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2
For the purposes of clause 9.1, the relevant events are:-
9.2.1
any payment due by the Customer to the Company is overdue;
9.2.2
the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation;
9.2.3
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
9.2.4
the Customer ceases or threatens to cease to carry on business; or
9.2.5
the Company reasonable apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3
Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIABILITY
10.1
Nothing in these Conditions shall limit or exclude the liability of the Company for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable) or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2
Subject to clause 10.1:-
10.2.1
the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any special, indirect or consequential loss or damage arising under or in connection with the Contract and without limitation, the Company shall not be liable for the cost of re-cutting or removing the goods or any furniture or fittings or the costs of refitting the carpet or installing any defective goods including any replacement goods supplied by the Company; and
10.2.2
the total liability of the Company to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in all circumstances be limited to the price of the Goods.
11. FORCE MAJEURE
11.1
Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
2. BASIS OF CONTRACT
2.1
These Conditions apply to the Contract to the exclusion of any other terms that the Customer invoices, proffers, seeks to impose or incorporate by way of contract terms or notice, or which are implied by trade, custom, practice or course of dealing.
2.2
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3
The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.5
Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions or illustrations contained in the catalogues or brochures of the Company are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6
Any estimate for the Goods given by the Company shall not constitute an offer. An estimate shall only be valid for a period of 6 weeks from the date of its issue.
2.7
Except as set out in these Conditions, any variation to the Contract, including the introduction of additional terms and conditions, shall only be binding when agreed and signed by a Director of Ege Carpets Ltd on behalf of the Company.
3. QUALITY AND DESCRIPTION
3.1
The Company warrants that on delivery and for a period of 12 months from the date of delivery (“Warranty Period”) the Goods shall:-
3.1.1
conform in all material respects with their description or any Specification as set out in the Order;
3.1.2
be free from material defects in materials and workmanship; and
3.1.3
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
3.2
Subject to clause 3.3, if:-
3.2.1
the Customer gives notice in writing to the Company during the Warranty Period within:-
(a) in the case of a fault that is discoverable on reasonable examination, 3 days of delivery but in any event prior to the Goods being cut or fitted or otherwise installed; or
(b) in the case of any fault not discoverable on reasonable examination until after the Goods have been installed, 3 days of discovery
that some or all of the Goods do not comply with the warranty set out in clause 3.1; and
3.2.2
the Company is given a reasonable opportunity of examining such Goods including Goods which have been installed at any third party site and the Customer shall be responsible for arranging the full co-operation of all third parties as is reasonably required by the Company; and
3.2.3
the Customer (if asked to do so by the Company) within 7 days of the request of the Company, returns such Goods to the place of business of the Company at the cost of the Customer,
the Company shall, at its option, repair or replace the defective Goods at the original point of delivery, offer an allowance for the Customer to keep the defective Goods or refund the price of the defective Goods in full and recover possession of the Goods from the Customer.
3.3
The Company shall not be liable for failure of the Goods to comply with the warranty set out in clause 3.1 in any of the following events:-
3.3.1
the defect arises because the Customer failed to follow the oral or written instructions of the Company as to the handling, installation,maintenance and/or cleaning of the Goods or (if there are none) good trade practice regarding the same; or
3.3.2
the Customer alters such Goods without the written consent of the Company;
3.3.3
the defect arises as a result of wilful damage, negligence (other than of the Company) or unsuitable storage or transportation conditions.
3.4
Except as provided in this clause 3, the Company shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 3.1.
3.5
Except as set out in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
3.6
These Conditions shall apply to any replacement Goods supplied by the Company.
3.7
Special production tolerance – Customers will be expected to take any additional production up to a maximum of 5% although this will be kept to a minimum.
4. INSPECTION, SHADING AND COLOUR
4.1
The Customer shall examine and inspect the Goods upon Delivery and in any event before the Goods are cut or fitted.
4.2
The Customer shall fit or have the carpets fitted and maintained in accordance with the Company’s fitting, installation and maintenance instructions.
4.3
The Customer is advised that all cut pile carpets may become subject to shading or pile crushing which gives the appearance of light and dark areas or sometimes the impression of water marking – no manufacturer is able to guarantee goods against these phenomenon which are affected by environmental factors and shading or crushing is not and will not be accepted by the Company as a manufacturing fault or quality defect or warranty claim pursuant to clause 3.1. This tendency is not detrimental to wearing properties of the carpet.
4.4
Unless expressly agreed in the Order, the Company does not guarantee exact colour matching between rolls. Whilst the Company is able to guarantee colour matching of the Goods made in respect of any one order upon request, due to the nature of the Goods and batch dyeing, the Company is unable to guarantee an exact colour match for separate orders. The Company recommends where a close colour match is required, the Goods be ordered for production by the Company in one full batch.
5. DELIVERY
5.1
Delivery dates and delivery (“Delivery”) shall take place when the Customer is notified that the Goods are ready for collection or despatch ex the Company’s premises.
5.2
Unless otherwise stated in the Order, the cost of non-standard vehicle delivery outside mainland Europe and insurance shall be in addition to the price set out in the published price list. The cost of any non-standard vehicle delivery shall be agreed prior to despatch. All specific day/time delivery requirements, non-standard routes or special vehicle types are charged as extra to the Price and delivery shall be subject to the method of delivery and shall be payable at the same time and in the same manner as the Price for the Goods.
5.3
Where the Company is requested to arrange non-standard vehicle delivery of the Goods to or for the Customer, the Carrier shall be deemed to be the Customer’s agent.
5.4
The Company shall notify the Customer that the Goods are ready and hand the Goods to the carrier for delivery to such location as the parties may agree (“Delivery Location”).
5.5
Any delivery date quoted and any other date given under or pursuant to this contract is no more than an estimate and the time of delivery shall not in any event or circumstances be or become of the essence. The Company shall not be liable for any failure to deliver or delay in delivery of the Goods that is caused by a Force Majeure Event or the failure of the Customer to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or by the fault of the Carrier.
5.6
So that it is possible to establish the facts in any particular delivery, the Customer acknowledges and agrees:-
5.6.1
to inspect the Goods before signing the Carrier’s consignment note;
5.6.2
to satisfy itself as to the condition of the Goods before signing the Carrier’s consignment note;
5.6.3
that the entry or inscription of the Customer’s signature on the Company’s Carrier’s consignment note on delivery of the Goods to the customer shall be conclusive evidence that the Goods correspond in every respect with the Goods that the Customer is entitled to receive under this contract; and
5.6.4
that any shortages of delivery or damage to Goods in transit shall be notified to the Carrier at the time of delivery and a note of the shortage or damage made on the Carrier’s consignment note and all duplications thereof, the Company notified by telephone on the day of delivery and the Customer shall retain for inspection by the Company the packing and consignment note for those Goods, and details in writing shall be supplied within 3 days. All damaged Goods shall be returned to the Company forthwith.
5.7
If the Carrier fails to deliver the Goods or there is any shortage or the Goods are damaged in transit and the Customer complies with clause 5.8.1, the Company’s liability shall be limited to the replacement of the non-delivered or damaged Goods.
5.8
Where the Customer or the Customer’s carrier is to collect the Goods from the Company:-
5.8.1
delivery of the Goods shall take place when the Goods are handed to the Customer’s Carrier;
5.8.2
if the Customer fails to take delivery of the Goods within 3 Business Days of the Company notifying the Customer that the Goods are ready, then (except where such failure or delay is caused by a Force Majeure Event or the failure of the Company to comply with its obligations under the Contract) delivery of the Goods shall be deemed to have been completed at 9.00am on the second Business Day following the day on which the Company notified the Customer that the Goods were ready and, if the Customer has not taken delivery of them, the Company may re-sell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.9
The Company will endeavour to deliver the full quantity of the Goods ordered but in the event of any shortfall, the Customer shall be responsible for payment of the price in respect of the Goods actually delivered and the Customer shall not be entitled to reject the quantity of Goods actually delivered.
5.10
Unless otherwise agreed in the Order, if Goods are held by the Company against Orders from the Customer on a call off basis, they will be held in storage without charge for a maximum period of 3 months from the date that they become available for delivery. The Company reserves the right to invoice the remaining stocks of the Goods after the end of this (or any other agreed period) and to charge the Customer for storage at the cost stated in the Order until the Goods are collected by the Customer or instructions given for the Company to arrange delivery.
6. RISK AND PROPERTY
6.1
The risk in the Goods shall pass to the Customer when the Goods are handed to the Customer’s Carrier or to a third party Carrier organised by the Company as the Customer’s agent.
6.2
Notwithstanding passing of risk in the Goods pursuant to clause 6.1, title in the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for all Goods supplied at any time by the Company to the Customer. This clause shall apply irrespective of whether Delivery has been made.
6.3
Until title passes to the Customer, the Customer shall hold the Goods as the Company’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 Company’s property.
6.4
The Customer’s right to sell and/or install the Goods shall automatically cease if any of the events in clause 9.2 occurs.
6.5
If, before title in the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then (provided that the Goods have not been resold or installed and without limiting any other right or remedy the Company may have) the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1
The price of the Goods and identified ancillaries shall be the price set out in the Order and or the price set out in the published price list of the Company in force as at the date of Delivery plus any agreed transport and insurance charges.
7.2
The Company may, by giving notice to the Customer at any time up to 2 Business Days before Delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:-
7.2.1
any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, raw materials and other manufacturing costs); or
7.2.2
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or the Specification; or
7.2.3
any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
7.3
Unless otherwise expressly stated, the price of the Goods is inclusive of the costs and charges of insurance and transport of the Goods by standard vehicle delivery within mainland Europe. Standard vehicle deliveries are despatched ex-works Friday or Tuesday and delivered via a standard route plan.
7.4
The price of the Goods is exclusive of amounts in respect of Value Added Tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5
The Customer may apply for a credit account with the Company on the presentation of acceptable trade and banker’s references. The granting of a credit facility with the Company remains at the complete discretion of the Company.
7.6
Customers who have a pro-forma account or who’s account is on pre-payment terms, payment of the Goods plus VAT must be paid and funds cleared in our accounts before the manufacture of any Goods
7.7
The Company shall be entitled to invoice the Customer for each order on or at any time after Delivery.
7.8
The Customer shall pay invoices in full in cleared funds by the 20th of the month following the month in which they were invoiced.
7.9
If the Customer fails to make any payment due to the Company under the Contract by the due date for payment (“due date”), then the Company at its exclusive discretion shall:-
7.9.1
be entitled to charge interest on the overdue amount at the rate of 1.5% per month. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount;
7.9.2
require that the Customer make a payment in advance of any delivery not yet made and/or;
7.9.3
not to make any delivery.
7.10
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding, except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Company.
8. CANCELLATION AND RETURNS
8.1
Subject to clause 8.4 the Customer may cancel the Contract by serving express written notice on the Company to this effect, in which case the Customer shall:
8.1.1
subject to clause 8.2, pay to the Company the Handling Charge appropriate to the Goods, which the Customer hereby acknowledges and agrees to be a payment due in the course of this Contract on returns or (without prejudice to the foregoing) a genuine pre-estimate of our loss and expense incurred in relation to the returned Goods;
8.1.2
shall request to the Company to organise, via their carrier service, for the collection of the goods that are to be returned within 3 Business Days of the Goods being delivered. The Goods shall be in an unused condition and be returned in the original packaging, or in such similar packaging and otherwise in a manner appropriate to the nature of the Goods so as to ensure their safe and secure transportation in good condition;
8.1.3
be responsible for liaising with the Company for the return of the Goods;
8.1.4
remain responsible for the safe keeping and protection of the Goods held at its premises until collection is made by the Company’s appointed carrier, and the customer shall maintain appropriate insurance until the Goods are collected.
and (subject always to clause 8.2 and compliance by the Customer with the foregoing) where the Company has received payment in full under the Contract, the Company shall refund the Customer a sum proportionate to the returned Goods, less any proportionate discount allowed under clause 7.9 and sums due under this clause 8.1, within thirty (30) days of confirming receipt of the returned Goods at the Company’s premises.
8.2
If, following receipt by the Company of any Goods returned pursuant to clause 8.1, an inspection by the Company reveals any defect in the Goods which the Company reasonably believes to be due to the Customer’s failure to comply with clause 8.1 or any matter stated in clause 3.3, the Customer shall remain liable to the Company on demand for the full price of the Goods and all other sums due under the Contract.
8.3
Reference in this clause 8 to ‘Handling Charge’ shall mean the sum of:
8.3.1
25% of the price of the Goods set out in the Order where the quantity returned is equal to or greater than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles;
8.3.2
50% of the price of the Goods set out in the Order where the quantity returned is less than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles; 8.3.3 100% of the price of any Made to Order Goods where the Customer’s notice to cancel is served at any time after production deadline closure (Monday 12:00 noon) of any given week prior, to the Company notifying the Customer pursuant to clause 5.1 that the Goods are ready for Delivery.
8.4
[No Goods may be returned pursuant to clause 8.1 after Delivery where such Goods are Made to Order. This shall not affect the Customer’s rights pursuant to clause 3.]
9. THE CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1
If the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then (without limiting any other right or remedy available to the Company), the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company, without incurring any liability to the Customer and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2
For the purposes of clause 9.1, the relevant events are:-
9.2.1
any payment due by the Customer to the Company is overdue;
9.2.2
the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation;
9.2.3
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
9.2.4
the Customer ceases or threatens to cease to carry on business; or
9.2.5
the Company reasonable apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3
Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIABILITY
10.1
Nothing in these Conditions shall limit or exclude the liability of the Company for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable) or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2
Subject to clause 10.1:-
10.2.1
the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any special, indirect or consequential loss or damage arising under or in connection with the Contract and without limitation, the Company shall not be liable for the cost of re-cutting or removing the goods or any furniture or fittings or the costs of refitting the carpet or installing any defective goods including any replacement goods supplied by the Company; and
10.2.2
the total liability of the Company to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in all circumstances be limited to the price of the Goods.
11. FORCE MAJEURE
11.1
Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
2. BASIS OF CONTRACT
2.1
These Conditions apply to the Contract to the exclusion of any other terms that the Customer invoices, proffers, seeks to impose or incorporate by way of contract terms or notice, or which are implied by trade, custom, practice or course of dealing.
2.2
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3
The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.5
Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions or illustrations contained in the catalogues or brochures of the Company are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6
Any estimate for the Goods given by the Company shall not constitute an offer. An estimate shall only be valid for a period of 6 weeks from the date of its issue.
2.7
Except as set out in these Conditions, any variation to the Contract, including the introduction of additional terms and conditions, shall only be binding when agreed and signed by a Director of Ege Carpets Ltd on behalf of the Company.
3. QUALITY AND DESCRIPTION
3.1
The Company warrants that on delivery and for a period of 12 months from the date of delivery (“Warranty Period”) the Goods shall:-
3.1.1
conform in all material respects with their description or any Specification as set out in the Order;
3.1.2
be free from material defects in materials and workmanship; and
3.1.3
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
3.2
Subject to clause 3.3, if:-
3.2.1
the Customer gives notice in writing to the Company during the Warranty Period within:-
(a) in the case of a fault that is discoverable on reasonable examination, 3 days of delivery but in any event prior to the Goods being cut or fitted or otherwise installed; or
(b) in the case of any fault not discoverable on reasonable examination until after the Goods have been installed, 3 days of discovery
that some or all of the Goods do not comply with the warranty set out in clause 3.1; and
3.2.2
the Company is given a reasonable opportunity of examining such Goods including Goods which have been installed at any third party site and the Customer shall be responsible for arranging the full co-operation of all third parties as is reasonably required by the Company; and
3.2.3
the Customer (if asked to do so by the Company) within 7 days of the request of the Company, returns such Goods to the place of business of the Company at the cost of the Customer,
the Company shall, at its option, repair or replace the defective Goods at the original point of delivery, offer an allowance for the Customer to keep the defective Goods or refund the price of the defective Goods in full and recover possession of the Goods from the Customer.
3.3
The Company shall not be liable for failure of the Goods to comply with the warranty set out in clause 3.1 in any of the following events:-
3.3.1
the defect arises because the Customer failed to follow the oral or written instructions of the Company as to the handling, installation,maintenance and/or cleaning of the Goods or (if there are none) good trade practice regarding the same; or
3.3.2
the Customer alters such Goods without the written consent of the Company;
3.3.3
the defect arises as a result of wilful damage, negligence (other than of the Company) or unsuitable storage or transportation conditions.
3.4
Except as provided in this clause 3, the Company shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 3.1.
3.5
Except as set out in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
3.6
These Conditions shall apply to any replacement Goods supplied by the Company.
3.7
Special production tolerance – Customers will be expected to take any additional production up to a maximum of 5% although this will be kept to a minimum.
4. INSPECTION, SHADING AND COLOUR
4.1
The Customer shall examine and inspect the Goods upon Delivery and in any event before the Goods are cut or fitted.
4.2
The Customer shall fit or have the carpets fitted and maintained in accordance with the Company’s fitting, installation and maintenance instructions.
4.3
The Customer is advised that all cut pile carpets may become subject to shading or pile crushing which gives the appearance of light and dark areas or sometimes the impression of water marking – no manufacturer is able to guarantee goods against these phenomenon which are affected by environmental factors and shading or crushing is not and will not be accepted by the Company as a manufacturing fault or quality defect or warranty claim pursuant to clause 3.1. This tendency is not detrimental to wearing properties of the carpet.
4.4
Unless expressly agreed in the Order, the Company does not guarantee exact colour matching between rolls. Whilst the Company is able to guarantee colour matching of the Goods made in respect of any one order upon request, due to the nature of the Goods and batch dyeing, the Company is unable to guarantee an exact colour match for separate orders. The Company recommends where a close colour match is required, the Goods be ordered for production by the Company in one full batch.
5. DELIVERY
5.1
Delivery dates and delivery (“Delivery”) shall take place when the Customer is notified that the Goods are ready for collection or despatch ex the Company’s premises.
5.2
Unless otherwise stated in the Order, the cost of non-standard vehicle delivery outside mainland Europe and insurance shall be in addition to the price set out in the published price list. The cost of any non-standard vehicle delivery shall be agreed prior to despatch. All specific day/time delivery requirements, non-standard routes or special vehicle types are charged as extra to the Price and delivery shall be subject to the method of delivery and shall be payable at the same time and in the same manner as the Price for the Goods.
5.3
Where the Company is requested to arrange non-standard vehicle delivery of the Goods to or for the Customer, the Carrier shall be deemed to be the Customer’s agent.
5.4
The Company shall notify the Customer that the Goods are ready and hand the Goods to the carrier for delivery to such location as the parties may agree (“Delivery Location”).
5.5
Any delivery date quoted and any other date given under or pursuant to this contract is no more than an estimate and the time of delivery shall not in any event or circumstances be or become of the essence. The Company shall not be liable for any failure to deliver or delay in delivery of the Goods that is caused by a Force Majeure Event or the failure of the Customer to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or by the fault of the Carrier.
5.6
So that it is possible to establish the facts in any particular delivery, the Customer acknowledges and agrees:-
5.6.1
to inspect the Goods before signing the Carrier’s consignment note;
5.6.2
to satisfy itself as to the condition of the Goods before signing the Carrier’s consignment note;
5.6.3
that the entry or inscription of the Customer’s signature on the Company’s Carrier’s consignment note on delivery of the Goods to the customer shall be conclusive evidence that the Goods correspond in every respect with the Goods that the Customer is entitled to receive under this contract; and
5.6.4
that any shortages of delivery or damage to Goods in transit shall be notified to the Carrier at the time of delivery and a note of the shortage or damage made on the Carrier’s consignment note and all duplications thereof, the Company notified by telephone on the day of delivery and the Customer shall retain for inspection by the Company the packing and consignment note for those Goods, and details in writing shall be supplied within 3 days. All damaged Goods shall be returned to the Company forthwith.
5.7
If the Carrier fails to deliver the Goods or there is any shortage or the Goods are damaged in transit and the Customer complies with clause 5.8.1, the Company’s liability shall be limited to the replacement of the non-delivered or damaged Goods.
5.8
Where the Customer or the Customer’s carrier is to collect the Goods from the Company:-
5.8.1
delivery of the Goods shall take place when the Goods are handed to the Customer’s Carrier;
5.8.2
if the Customer fails to take delivery of the Goods within 3 Business Days of the Company notifying the Customer that the Goods are ready, then (except where such failure or delay is caused by a Force Majeure Event or the failure of the Company to comply with its obligations under the Contract) delivery of the Goods shall be deemed to have been completed at 9.00am on the second Business Day following the day on which the Company notified the Customer that the Goods were ready and, if the Customer has not taken delivery of them, the Company may re-sell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.9
The Company will endeavour to deliver the full quantity of the Goods ordered but in the event of any shortfall, the Customer shall be responsible for payment of the price in respect of the Goods actually delivered and the Customer shall not be entitled to reject the quantity of Goods actually delivered.
5.10
Unless otherwise agreed in the Order, if Goods are held by the Company against Orders from the Customer on a call off basis, they will be held in storage without charge for a maximum period of 3 months from the date that they become available for delivery. The Company reserves the right to invoice the remaining stocks of the Goods after the end of this (or any other agreed period) and to charge the Customer for storage at the cost stated in the Order until the Goods are collected by the Customer or instructions given for the Company to arrange delivery.
6. RISK AND PROPERTY
6.1
The risk in the Goods shall pass to the Customer when the Goods are handed to the Customer’s Carrier or to a third party Carrier organised by the Company as the Customer’s agent.
6.2
Notwithstanding passing of risk in the Goods pursuant to clause 6.1, title in the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for all Goods supplied at any time by the Company to the Customer. This clause shall apply irrespective of whether Delivery has been made.
6.3
Until title passes to the Customer, the Customer shall hold the Goods as the Company’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 Company’s property.
6.4
The Customer’s right to sell and/or install the Goods shall automatically cease if any of the events in clause 9.2 occurs.
6.5
If, before title in the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then (provided that the Goods have not been resold or installed and without limiting any other right or remedy the Company may have) the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1
The price of the Goods and identified ancillaries shall be the price set out in the Order and or the price set out in the published price list of the Company in force as at the date of Delivery plus any agreed transport and insurance charges.
7.2
The Company may, by giving notice to the Customer at any time up to 2 Business Days before Delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:-
7.2.1
any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, raw materials and other manufacturing costs); or
7.2.2
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or the Specification; or
7.2.3
any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
7.3
Unless otherwise expressly stated, the price of the Goods is inclusive of the costs and charges of insurance and transport of the Goods by standard vehicle delivery within mainland Europe. Standard vehicle deliveries are despatched ex-works Friday or Tuesday and delivered via a standard route plan.
7.4
The price of the Goods is exclusive of amounts in respect of Value Added Tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5
The Customer may apply for a credit account with the Company on the presentation of acceptable trade and banker’s references. The granting of a credit facility with the Company remains at the complete discretion of the Company.
7.6
Customers who have a pro-forma account or who’s account is on pre-payment terms, payment of the Goods plus VAT must be paid and funds cleared in our accounts before the manufacture of any Goods
7.7
The Company shall be entitled to invoice the Customer for each order on or at any time after Delivery.
7.8
The Customer shall pay invoices in full in cleared funds by the 20th of the month following the month in which they were invoiced.
7.9
If the Customer fails to make any payment due to the Company under the Contract by the due date for payment (“due date”), then the Company at its exclusive discretion shall:-
7.9.1
be entitled to charge interest on the overdue amount at the rate of 1.5% per month. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount;
7.9.2
require that the Customer make a payment in advance of any delivery not yet made and/or;
7.9.3
not to make any delivery.
7.10
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding, except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Company.
8. CANCELLATION AND RETURNS
8.1
Subject to clause 8.4 the Customer may cancel the Contract by serving express written notice on the Company to this effect, in which case the Customer shall:
8.1.1
subject to clause 8.2, pay to the Company the Handling Charge appropriate to the Goods, which the Customer hereby acknowledges and agrees to be a payment due in the course of this Contract on returns or (without prejudice to the foregoing) a genuine pre-estimate of our loss and expense incurred in relation to the returned Goods;
8.1.2
shall request to the Company to organise, via their carrier service, for the collection of the goods that are to be returned within 3 Business Days of the Goods being delivered. The Goods shall be in an unused condition and be returned in the original packaging, or in such similar packaging and otherwise in a manner appropriate to the nature of the Goods so as to ensure their safe and secure transportation in good condition;
8.1.3
be responsible for liaising with the Company for the return of the Goods;
8.1.4
remain responsible for the safe keeping and protection of the Goods held at its premises until collection is made by the Company’s appointed carrier, and the customer shall maintain appropriate insurance until the Goods are collected.
and (subject always to clause 8.2 and compliance by the Customer with the foregoing) where the Company has received payment in full under the Contract, the Company shall refund the Customer a sum proportionate to the returned Goods, less any proportionate discount allowed under clause 7.9 and sums due under this clause 8.1, within thirty (30) days of confirming receipt of the returned Goods at the Company’s premises.
8.2
If, following receipt by the Company of any Goods returned pursuant to clause 8.1, an inspection by the Company reveals any defect in the Goods which the Company reasonably believes to be due to the Customer’s failure to comply with clause 8.1 or any matter stated in clause 3.3, the Customer shall remain liable to the Company on demand for the full price of the Goods and all other sums due under the Contract.
8.3
Reference in this clause 8 to ‘Handling Charge’ shall mean the sum of:
8.3.1
25% of the price of the Goods set out in the Order where the quantity returned is equal to or greater than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles;
8.3.2
50% of the price of the Goods set out in the Order where the quantity returned is less than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles; 8.3.3 100% of the price of any Made to Order Goods where the Customer’s notice to cancel is served at any time after production deadline closure (Monday 12:00 noon) of any given week prior, to the Company notifying the Customer pursuant to clause 5.1 that the Goods are ready for Delivery.
8.4
[No Goods may be returned pursuant to clause 8.1 after Delivery where such Goods are Made to Order. This shall not affect the Customer’s rights pursuant to clause 3.]
9. THE CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1
If the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then (without limiting any other right or remedy available to the Company), the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company, without incurring any liability to the Customer and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2
For the purposes of clause 9.1, the relevant events are:-
9.2.1
any payment due by the Customer to the Company is overdue;
9.2.2
the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation;
9.2.3
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
9.2.4
the Customer ceases or threatens to cease to carry on business; or
9.2.5
the Company reasonable apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3
Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIABILITY
10.1
Nothing in these Conditions shall limit or exclude the liability of the Company for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable) or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2
Subject to clause 10.1:-
10.2.1
the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any special, indirect or consequential loss or damage arising under or in connection with the Contract and without limitation, the Company shall not be liable for the cost of re-cutting or removing the goods or any furniture or fittings or the costs of refitting the carpet or installing any defective goods including any replacement goods supplied by the Company; and
10.2.2
the total liability of the Company to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in all circumstances be limited to the price of the Goods.
11. FORCE MAJEURE
11.1
Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
8. CANCELLATION AND RETURNS
8.1
Subject to clause 8.4 the Customer may cancel the Contract by serving express written notice on the Company to this effect, in which case the Customer shall:
8.1.1
subject to clause 8.2, pay to the Company the Handling Charge appropriate to the Goods, which the Customer hereby acknowledges and agrees to be a payment due in the course of this Contract on returns or (without prejudice to the foregoing) a genuine pre-estimate of our loss and expense incurred in relation to the returned Goods;
8.1.2
shall request to the Company to organise, via their carrier service, for the collection of the goods that are to be returned within 3 Business Days of the Goods being delivered. The Goods shall be in an unused condition and be returned in the original packaging, or in such similar packaging and otherwise in a manner appropriate to the nature of the Goods so as to ensure their safe and secure transportation in good condition;
8.1.3
be responsible for liaising with the Company for the return of the Goods;
8.1.4
remain responsible for the safe keeping and protection of the Goods held at its premises until collection is made by the Company’s appointed carrier, and the customer shall maintain appropriate insurance until the Goods are collected.
and (subject always to clause 8.2 and compliance by the Customer with the foregoing) where the Company has received payment in full under the Contract, the Company shall refund the Customer a sum proportionate to the returned Goods, less any proportionate discount allowed under clause 7.9 and sums due under this clause 8.1, within thirty (30) days of confirming receipt of the returned Goods at the Company’s premises.
8.2
If, following receipt by the Company of any Goods returned pursuant to clause 8.1, an inspection by the Company reveals any defect in the Goods which the Company reasonably believes to be due to the Customer’s failure to comply with clause 8.1 or any matter stated in clause 3.3, the Customer shall remain liable to the Company on demand for the full price of the Goods and all other sums due under the Contract.
8.3
Reference in this clause 8 to ‘Handling Charge’ shall mean the sum of:
8.3.1
25% of the price of the Goods set out in the Order where the quantity returned is equal to or greater than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles;
8.3.2
50% of the price of the Goods set out in the Order where the quantity returned is less than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles; 8.3.3 100% of the price of any Made to Order Goods where the Customer’s notice to cancel is served at any time after production deadline closure (Monday 12:00 noon) of any given week prior, to the Company notifying the Customer pursuant to clause 5.1 that the Goods are ready for Delivery.
8.4
[No Goods may be returned pursuant to clause 8.1 after Delivery where such Goods are Made to Order. This shall not affect the Customer’s rights pursuant to clause 3.]
9. THE CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1
If the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then (without limiting any other right or remedy available to the Company), the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company, without incurring any liability to the Customer and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2
For the purposes of clause 9.1, the relevant events are:-
9.2.1
any payment due by the Customer to the Company is overdue;
9.2.2
the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation;
9.2.3
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
9.2.4
the Customer ceases or threatens to cease to carry on business; or
9.2.5
the Company reasonable apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3
Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIABILITY
10.1
Nothing in these Conditions shall limit or exclude the liability of the Company for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable) or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2
Subject to clause 10.1:-
10.2.1
the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any special, indirect or consequential loss or damage arising under or in connection with the Contract and without limitation, the Company shall not be liable for the cost of re-cutting or removing the goods or any furniture or fittings or the costs of refitting the carpet or installing any defective goods including any replacement goods supplied by the Company; and
10.2.2
the total liability of the Company to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in all circumstances be limited to the price of the Goods.
11. FORCE MAJEURE
11.1
Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
8. CANCELLATION AND RETURNS
8.1
Subject to clause 8.4 the Customer may cancel the Contract by serving express written notice on the Company to this effect, in which case the Customer shall:
8.1.1
subject to clause 8.2, pay to the Company the Handling Charge appropriate to the Goods, which the Customer hereby acknowledges and agrees to be a payment due in the course of this Contract on returns or (without prejudice to the foregoing) a genuine pre-estimate of our loss and expense incurred in relation to the returned Goods;
8.1.2
shall request to the Company to organise, via their carrier service, for the collection of the goods that are to be returned within 3 Business Days of the Goods being delivered. The Goods shall be in an unused condition and be returned in the original packaging, or in such similar packaging and otherwise in a manner appropriate to the nature of the Goods so as to ensure their safe and secure transportation in good condition;
8.1.3
be responsible for liaising with the Company for the return of the Goods;
8.1.4
remain responsible for the safe keeping and protection of the Goods held at its premises until collection is made by the Company’s appointed carrier, and the customer shall maintain appropriate insurance until the Goods are collected.
and (subject always to clause 8.2 and compliance by the Customer with the foregoing) where the Company has received payment in full under the Contract, the Company shall refund the Customer a sum proportionate to the returned Goods, less any proportionate discount allowed under clause 7.9 and sums due under this clause 8.1, within thirty (30) days of confirming receipt of the returned Goods at the Company’s premises.
8.2
If, following receipt by the Company of any Goods returned pursuant to clause 8.1, an inspection by the Company reveals any defect in the Goods which the Company reasonably believes to be due to the Customer’s failure to comply with clause 8.1 or any matter stated in clause 3.3, the Customer shall remain liable to the Company on demand for the full price of the Goods and all other sums due under the Contract.
8.3
Reference in this clause 8 to ‘Handling Charge’ shall mean the sum of:
8.3.1
25% of the price of the Goods set out in the Order where the quantity returned is equal to or greater than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles;
8.3.2
50% of the price of the Goods set out in the Order where the quantity returned is less than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles; 8.3.3 100% of the price of any Made to Order Goods where the Customer’s notice to cancel is served at any time after production deadline closure (Monday 12:00 noon) of any given week prior, to the Company notifying the Customer pursuant to clause 5.1 that the Goods are ready for Delivery.
8.4
[No Goods may be returned pursuant to clause 8.1 after Delivery where such Goods are Made to Order. This shall not affect the Customer’s rights pursuant to clause 3.]
9. THE CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1
If the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then (without limiting any other right or remedy available to the Company), the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company, without incurring any liability to the Customer and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2
For the purposes of clause 9.1, the relevant events are:-
9.2.1
any payment due by the Customer to the Company is overdue;
9.2.2
the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation;
9.2.3
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
9.2.4
the Customer ceases or threatens to cease to carry on business; or
9.2.5
the Company reasonable apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3
Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIABILITY
10.1
Nothing in these Conditions shall limit or exclude the liability of the Company for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable) or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2
Subject to clause 10.1:-
10.2.1
the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any special, indirect or consequential loss or damage arising under or in connection with the Contract and without limitation, the Company shall not be liable for the cost of re-cutting or removing the goods or any furniture or fittings or the costs of refitting the carpet or installing any defective goods including any replacement goods supplied by the Company; and
10.2.2
the total liability of the Company to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in all circumstances be limited to the price of the Goods.
11. FORCE MAJEURE
11.1
Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
8. CANCELLATION AND RETURNS
8.1
Subject to clause 8.4 the Customer may cancel the Contract by serving express written notice on the Company to this effect, in which case the Customer shall:
8.1.1
subject to clause 8.2, pay to the Company the Handling Charge appropriate to the Goods, which the Customer hereby acknowledges and agrees to be a payment due in the course of this Contract on returns or (without prejudice to the foregoing) a genuine pre-estimate of our loss and expense incurred in relation to the returned Goods;
8.1.2
shall request to the Company to organise, via their carrier service, for the collection of the goods that are to be returned within 3 Business Days of the Goods being delivered. The Goods shall be in an unused condition and be returned in the original packaging, or in such similar packaging and otherwise in a manner appropriate to the nature of the Goods so as to ensure their safe and secure transportation in good condition;
8.1.3
be responsible for liaising with the Company for the return of the Goods;
8.1.4
remain responsible for the safe keeping and protection of the Goods held at its premises until collection is made by the Company’s appointed carrier, and the customer shall maintain appropriate insurance until the Goods are collected.
and (subject always to clause 8.2 and compliance by the Customer with the foregoing) where the Company has received payment in full under the Contract, the Company shall refund the Customer a sum proportionate to the returned Goods, less any proportionate discount allowed under clause 7.9 and sums due under this clause 8.1, within thirty (30) days of confirming receipt of the returned Goods at the Company’s premises.
8.2
If, following receipt by the Company of any Goods returned pursuant to clause 8.1, an inspection by the Company reveals any defect in the Goods which the Company reasonably believes to be due to the Customer’s failure to comply with clause 8.1 or any matter stated in clause 3.3, the Customer shall remain liable to the Company on demand for the full price of the Goods and all other sums due under the Contract.
8.3
Reference in this clause 8 to ‘Handling Charge’ shall mean the sum of:
8.3.1
25% of the price of the Goods set out in the Order where the quantity returned is equal to or greater than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles;
8.3.2
50% of the price of the Goods set out in the Order where the quantity returned is less than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles; 8.3.3 100% of the price of any Made to Order Goods where the Customer’s notice to cancel is served at any time after production deadline closure (Monday 12:00 noon) of any given week prior, to the Company notifying the Customer pursuant to clause 5.1 that the Goods are ready for Delivery.
8.4
[No Goods may be returned pursuant to clause 8.1 after Delivery where such Goods are Made to Order. This shall not affect the Customer’s rights pursuant to clause 3.]
9. THE CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1
If the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then (without limiting any other right or remedy available to the Company), the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company, without incurring any liability to the Customer and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2
For the purposes of clause 9.1, the relevant events are:-
9.2.1
any payment due by the Customer to the Company is overdue;
9.2.2
the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation;
9.2.3
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
9.2.4
the Customer ceases or threatens to cease to carry on business; or
9.2.5
the Company reasonable apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3
Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIABILITY
10.1
Nothing in these Conditions shall limit or exclude the liability of the Company for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable) or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2
Subject to clause 10.1:-
10.2.1
the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any special, indirect or consequential loss or damage arising under or in connection with the Contract and without limitation, the Company shall not be liable for the cost of re-cutting or removing the goods or any furniture or fittings or the costs of refitting the carpet or installing any defective goods including any replacement goods supplied by the Company; and
10.2.2
the total liability of the Company to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in all circumstances be limited to the price of the Goods.
11. FORCE MAJEURE
11.1
Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
8. CANCELLATION AND RETURNS
8.1
Subject to clause 8.4 the Customer may cancel the Contract by serving express written notice on the Company to this effect, in which case the Customer shall:
8.1.1
subject to clause 8.2, pay to the Company the Handling Charge appropriate to the Goods, which the Customer hereby acknowledges and agrees to be a payment due in the course of this Contract on returns or (without prejudice to the foregoing) a genuine pre-estimate of our loss and expense incurred in relation to the returned Goods;
8.1.2
shall request to the Company to organise, via their carrier service, for the collection of the goods that are to be returned within 3 Business Days of the Goods being delivered. The Goods shall be in an unused condition and be returned in the original packaging, or in such similar packaging and otherwise in a manner appropriate to the nature of the Goods so as to ensure their safe and secure transportation in good condition;
8.1.3
be responsible for liaising with the Company for the return of the Goods;
8.1.4
remain responsible for the safe keeping and protection of the Goods held at its premises until collection is made by the Company’s appointed carrier, and the customer shall maintain appropriate insurance until the Goods are collected.
and (subject always to clause 8.2 and compliance by the Customer with the foregoing) where the Company has received payment in full under the Contract, the Company shall refund the Customer a sum proportionate to the returned Goods, less any proportionate discount allowed under clause 7.9 and sums due under this clause 8.1, within thirty (30) days of confirming receipt of the returned Goods at the Company’s premises.
8.2
If, following receipt by the Company of any Goods returned pursuant to clause 8.1, an inspection by the Company reveals any defect in the Goods which the Company reasonably believes to be due to the Customer’s failure to comply with clause 8.1 or any matter stated in clause 3.3, the Customer shall remain liable to the Company on demand for the full price of the Goods and all other sums due under the Contract.
8.3
Reference in this clause 8 to ‘Handling Charge’ shall mean the sum of:
8.3.1
25% of the price of the Goods set out in the Order where the quantity returned is equal to or greater than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles;
8.3.2
50% of the price of the Goods set out in the Order where the quantity returned is less than 100m² broadloom or (where the Goods are tiles) one standard box of full tiles; 8.3.3 100% of the price of any Made to Order Goods where the Customer’s notice to cancel is served at any time after production deadline closure (Monday 12:00 noon) of any given week prior, to the Company notifying the Customer pursuant to clause 5.1 that the Goods are ready for Delivery.
8.4
[No Goods may be returned pursuant to clause 8.1 after Delivery where such Goods are Made to Order. This shall not affect the Customer’s rights pursuant to clause 3.]
9. THE CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1
If the Customer becomes subject to any of the events listed in clause 9.2 or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then (without limiting any other right or remedy available to the Company), the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company, without incurring any liability to the Customer and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2
For the purposes of clause 9.1, the relevant events are:-
9.2.1
any payment due by the Customer to the Company is overdue;
9.2.2
the Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation;
9.2.3
an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
9.2.4
the Customer ceases or threatens to cease to carry on business; or
9.2.5
the Company reasonable apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.3
Termination of the Contract, howsoever arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIABILITY
10.1
Nothing in these Conditions shall limit or exclude the liability of the Company for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors (as applicable) or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2
Subject to clause 10.1:-
10.2.1
the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any special, indirect or consequential loss or damage arising under or in connection with the Contract and without limitation, the Company shall not be liable for the cost of re-cutting or removing the goods or any furniture or fittings or the costs of refitting the carpet or installing any defective goods including any replacement goods supplied by the Company; and
10.2.2
the total liability of the Company to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in all circumstances be limited to the price of the Goods.
11. FORCE MAJEURE
11.1
Neither the Company nor the Customer shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
1. DEFINITIONS
12. INTELLECTUAL PROPERTY
12.1
The Specifications and designs for the Goods and the design of the packaging (including the copyright, design right and other intellectual property rights in the Goods (“IPRs”)) shall as between the parties be the sole property of the Company.
12.2
Where any designs or specifications have been supplied by the Customer for manufacture by the Company, then the Customer warrants that the use of such designs or specifications shall not infringe the rights of any third party and the Customer shall indemnify the Company and keep it indemnified fully and effectively against all liability, loss, damages, costs and expenses (including legal expenses on a full indemnity basis) awarded against or incurred or paid by the Company as a result of or in connection with any claim that the Goods infringe or their importation, use or resale infringes the IPRs of any other person.
12.3
The Company has a policy of continuous development and shall have the right at any time to change the Specification of any Goods ordered (without materially affecting the performance of the Goods or their suitability for their purpose).
13. GENERAL
13.1
Assignment and Subcontracting
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2
Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
13.3
Severance
If any court of competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4
Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5
Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
14. GOVERNING LAW AND JURISDICTION
14.1
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 clams), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
