1.1 ‘Contract’ means the contract for the sale and purchase of the Goods.
1.2 ‘Customer’ means the customer placing an order for Goods with the Company.
1.3 ‘Company’ means Trans-Continental Group Ltd, and its subsidiary companies.
1.4 ‘Goods’ means all goods which are subject to the Customer’s order which are to be supplied to the Customer by the Company under these Conditions.
2. CONDITIONS APPLICABLE
2.1 These Conditions shall apply to all contracts for the sale of Goods by the Company to the Customer to the exclusion of all other terms and conditions including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 All orders for Goods shall be deemed to be an offer by the Customer to purchase Goods pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company.
3.1 The Company shall sell and the Customer shall purchase the Goods in accordance with these Conditions, which shall govern the Contract to the exclusion of any other Conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Customer.
3.2 No Variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Company and the Customer.
3.3 There shall be no binding agreement between the Customer and the Company until the Customer’s order has been accepted in writing by the Company. Any prior indications by the Company made verbally shall be provisional only.
3.4 The Customer accepts that these Conditions and any specific details stated on its accepted order constitute the entire understanding between the parties and supersede any prior promise, representation, undertaking or understanding of any kind.
3.5 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms. All orders are accepted subject to the availability of the Goods.
3.6 No order which has been accepted by the Company may be cancelled or amended by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnity the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used and any storage costs incurred by the company), damages, charges and expenses incurred by the Company as a result of cancellation.
3.7 In the event that the Customer declines to accept the goods in breach of this contract the Customer shall pay to the Company the price of the goods as specified in clause 3. hereof and will also pay to the Company a weekly storage charge of £2.00 per pallet per week until the goods are delivered to the Customer provided always that if the Customer does not take delivery within 12 weeks of the date of initial dispatch of the goods by the Company then the Company reserves the right to sell the goods and recover from the Customer an amount equal to the goods less the net proceeds received by the Company on such resale after deducting the costs and expenses of the resale.
4.1 Unless otherwise expressly agreed in writing the Goods shall be sold and invoiced at the Company’s current prices at the date of dispatch. Catalogues, price lists and other advertising material are provided for illustrative purposes only.
4.2 Unless otherwise agreed in writing prices do not include delivery and taxes (if any) and such costs shall be payable by and invoiced to the Customer.
4.3 The Company reserves the right to revise prices to take into account increases in any costs of providing the Goods which occurs between the date of order and delivery.
4.4 Prices are based on estimated freight rates at the time of order. The Company reserves the rights to increase prices if the freight rates increase above estimated rates.
5.1 Delivery shall be at the Customer’s premises or, if different, the place specified in the Customer’s order.
5.2 Dates and times quoted by the Company for delivery are estimates only and any delay in meeting delivery dates shall not give rise to a right to cancel the order or to claim damages. Time of delivery shall not be of the essence.
5.3 The Customer shall notify the Company of any claim for short delivery and/or damage to Goods within 24 hours of delivery and shall confirm such claims in writing to the Company within 5 working days from the date of delivery. All Goods are deemed delivered and completed if such notice is not received within such period.
5.4 The Company reserves the right to make part deliveries and each such delivery shall constitute a separate contract and failure by the Company to deliver any one of more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
5.5 Risk in the Goods shall pass on delivery or collection by the Customer or its agent, whoever is the earlier.
6.1 Ex warehouse deliveries will be invoiced on the date of dispatch and are payable by the end of the month following the month of the invoice, unless otherwise agreed in writing by the Company.
6.1.1 Pro-Forma payments to be paid prior to despatch. On payment receipt goods will be released for immediate despatch.
6.2 Direct container deliveries made to the customer’s premises or place specified in the Customer’s order will be invoiced within 10 days of shipment and must be paid within 7 days of receipt of the Goods by the Customer, unless otherwise agreed in writing by the Company.
6.3 Goods supplied on a FOB basis will be invoiced within 10 days of shipment and are payable within 30 days of shipment, unless otherwise agreed in writing by the Company.
6.4 Time is of the essence with regard to payment of any sums due to the Company.
6.5 The Customer shall not be entitled to withhold payment of any amount due to the Company in respect of any claim for damage to Goods or any alleged breach of contract by the Company nor shall the Customer be entitled to any right of set-off.
6.6 Without prejudice to the Company’s other rights if the Customer fails to pay any amount on the due date:
6.6.1 the Company shall have the right to cancel any contract made with the Customer and/or to suspend deliveries;
6.6.2 the Company reserves the right to charge interest on a daily basis on overdue amounts at the rate of 2.5% above the HSBC base rate until payment;
6.6.3 the Customer shall indemnify the Company and keep it indemnified in respect of all costs (including legal fees) reasonably incurred in attempting to recover such overdue amounts;
6.6.4 the whole of the balance then outstanding to the Company by the Customer on any account whatsoever shall become immediately due and payable.
6.7 The Company reserves the right to require the Customer to pay for Goods in advance if the Customer has not purchased Goods from the Company before or, if an established Customer has failed to maintain credit account arrangements satisfactory to the Company.
7.1 The Company shall retain full ownership and title to all Goods delivered to the Customer or any part thereof unless and until the Customer has paid all sums owing to the Company.
7.2 While any amount remains outstanding to the Company from the Customer;
7.2.1 the Customer shall keep the Goods as fiduciary bailee for the Company and shall store the Goods separately from its other chattels and in a manner which clearly shows that they are owned by the Company;
7.2.2 the Customer shall not pledge or in any way charge by way of security for any indebtedness on any of the Goods which remain the property of the company;
7.2.3 the Customer will deliver up to or have delivered up to the Company Goods upon demand and the company may without limiting any other rights or remedies available to it at law in equity or by statute seize repossess and/or re sell Goods at its discretion and in the exercise of such right the Company may enter any premises in which it reasonably believes from time to time and Goods are located;
7.2.4 the Customer may only sell, transfer or otherwise dispose of the Goods to its customers in the ordinary course of its business and in accordance with the provisions of these Conditions;
7.2.5 where the Customer is paid by or on behalf of any customer of shall receive the proceeds of any insurance claim in respect of any Goods it shall pay such proceeds to the Company as soon as reasonably practicable to do so after receipt until the Company is paid in full and shall hold the same as trustee for the Company and keep a separate account of all such proceeds for such purpose;
7.2.6 the Customer is paid by or on behalf of any customer or shall receive the proceeds of any insurance claim in respect of any Goods it shall pay such proceeds to the Company as soon as reasonably practicable to do so after receipt until the Company is paid in full and shall hold the same as trustee for the Company and keep a separate account of all such proceeds for such purpose;
7.2.7 the Customer shall take all due care (or ensure that all due care is taken) of the Goods and the Customer shall bear the sole liability for insurance of the Goods and shall indemnify the Company for any loss whatsoever suffered or incurred by the Company arising out of any failure to insure such Goods.
8.1 Subject to the following provisions the Company warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship.
8.2 The above warranty is given by the Company subject to the following conditions;
8.2.1 the Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer;
8.2.2 the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;
8.2.3 the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the goods has not been paid by the due date for payment;
8.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty of guarantee as is given by the manufacturer of to the Company.
8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions) Restrictions on Statements Order 19760 the statutory rights of the Customer are not affected by these Conditions.
8.5 A claim by the Customer which is based on any defect in the quality or conditions of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) by notified to the Company within 2 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure (which time, in respect of Christmas Goods, shall be the period between delivery and the following 31st January and which time in respect of garden furniture Goods shall be the period between delivery and the following 30th September) and in any event within 12 months of the date of delivery. If delivery is not refused, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect of failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contact. The procedure for the return of defective Christmas Goods shall be as detailed in the Company Returns Policy, a copy of which will be supplied upon request.
8.6 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the goods or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company may replace the Goods (or the part in question) free of charge or , at the Company’s sole discretion, refund to the Customer the price of the Goods (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Customer the price of the goods (or a proportionate part of the price), in which case the Company shall have no further liability to the Customer.
8.7 Except in respect of death or personal injury caused by the company’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), at any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the goods in accordance with the Contract or at all) or their use or resale by the Customer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the goods, except as expressly provided in these Conditions.
8.8 The Company makes no representation and gives no warranty in respect of the sources of origin of manufacture or production of the goods or any part thereof.
9 PRODUCT CHANGES
9.1 The Company will use its reasonable endeavours to inform the Customer of any alterations made by the manufacturer to the specifications of Goods.
9.2 All sizes stated are approximate and goods may vary from descriptions given. Any typographical, clerical or other error or omission in any literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company should be subject to correction without any liability on the part of the Company.
10 TRADEMARKS, PATENTS AND COPYRIGHTS
10.1 The Customer recognizes the manufacture’s ownership of the title to all trademarks, service marks, trade names, patents, copyright and other intellectual property rights in relation to Goods.
10.2 The Customer will take no action to violate, obliterate, remove, alter, conceal or misuse any such marks, trade name or copyright notice.
10.3 The Customer will promptly notify the Company if it becomes aware of any infringement of such intellectual property by any third party and shall provide its reasonable assistance to the Company and/or the manufacture in connection with any resultant proceedings.
11 INSOLVENCY OF THE BUYER
11.1 This clause 11 applies if:
11.1.1 the Customer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
11.1.2 an encumbrance takes possession, or receiver is appointed, of any of the property or assets of the Customer or
11.1.3 the Customer ceases, or threatens to cease, to carry on business; or
11.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
11.2 If this clause applies then, without limiting any other right or remedy available to the Company, the Company may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due to the payable not withstanding any previous agreement or arrangement to the contrary.
12.1 If and to the extent that any provision or any part of these Conditions is deemed to be illegal, void or unenforceable for any reason then such provisions or part thereof (as the case maybe) shall be deemed to be served from the remaining provisions or parts of the relevant provisions (as the case may be) all of which remaining provisions shall remain in full force and effect.
12.2 In particular, should any limitation of the Company’s liability contained in these Conditions be held to be illegal, void or unenforceable under any applicable statue or rule of law it shall to that extent only be deemed served here from, but if the Company thereby becomes liable for any loss or damage, such liability shall be subject to all other relevant limitations contained in these Conditions.
13 FORCE MAJEURE
13.1 The Company shall not be liable to the Customer or any account whatsoever in the event that the Company is prevented from fulfilling its obligations hereunder due in whole or in part to an event of force majeure which expressions shall mean:
13.1.1 act of God, fire flood, storm, power failure, mechanical failure or lack of shortage or materials or stock or any other circumstance beyond the reasonable control of the Company; and
13.1.2 whether or not within the Company’s control, strikes, lock-outs or industrial disputes in relation to the company or any other party or any action taken by the company in connection therewith or in consequence or furtherance thereof.
13.2 In such event the Company may at its option either suspend performance or cancel the contract in question or so much of it as remains unperformed without liability for any loss and without prejudice to the Company’s rights to receive payment of the price of all Goods previously delivered.
14.1 The Company may cancel this contract at any time before the goods are delivered by giving written notice. On giving such notice the Company shall promptly repay to the Customer any sums paid in respect of the price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.
15.1 Any notice under or in connection with this contract of sale shall be in writing and shall be served by first class post or by hand on the party or sent by recorded delivery or email at or to the address of the party set out in this contract or to such other address as may be subsequently notified by one party to the other.
15.2 In the absence of evidence of earlier receipt any notice shall be deemed to be duly served:-
15.2.1 if delivered personally when left at the address in clause 14.1
15.2.2 if sent by recorded delivery three days after posting and
15.2.2 if sent by email when received
16.1 The relationship between the Customer and the Company shall be as buyer and seller and nothing contained herein shall be deemed to create a partnership or agency.
17.1 These Conditions shall be constructed according to the laws of England the Company and the Customer submit to the non-exclusive jurisdiction of the English Courts in connection with any dispute or proceedings arising out of any contract incorporating these Conditions.