Buyer: a person, firm or company who purchases the goods from the seller
Seller: Bootcharms Designs
Goods: any goods agreed in the contract to be supplied to the buyer by the seller
Contract: any contract between the company and the buyer for the sale and purchase of the goods incorporating these conditions.
Particular attention is drawn to clause 7.4 (this limits the liability of the seller)
1- This confirmation contact the entire bargain between the Seller and the Buyer and the Buyer’s conditions of purchase (if any) or any other terms and conditions shall not be recognised or deemed to form part of this Contract unless expressly accepted in writing signed by a Director of the Seller No variation of the terms of these conditions of Sale shall be binding upon the Seller unless made in writing by a Director of the Seller.
1.1 Subject to any variation under the condition 1.2 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms and conditions which the buyer purports to apply under any purchase order, confirmation of order, specification or other document).
1.2 Any variation of the above can only be accepted in writing by a Director of the Seller providing that both parties have not relied on any other representation or statement made outside of this written agreement/contract.
1.3 These conditions apply to all the company sales and only variations to these conditions and any representations about the goods shall have no effect unless explicitly agreed in writing and signed by a director of the Seller. The Buyer's knowledge is that he 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. Nothing in this condition should exclude or limit the Seller's liability for fraudulent misrepresentation.
1.4 Each order or acceptance of a quotation for goods by the buyer from the Seller shall be deemed to be an offer by the buyer to buy goods subject to these conditions.
1.5 No order placed by the buyer shall be deemed to be accepted by the Seller until a written acknowledgement of order is issued by the company or (if earlier) the company delivers the goods to the buyer.
1.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2 Delivery dates are stated as exactly as can be at present ascertained but not guaranteed.
2.1.1All C and F and CIS contracts are based upon current rates of freight and insurance are subject to increase in those rates. Such contracts are also subject to available shipping space.
2.1.2The Seller will use its best endeavours to deliver on the date or dates specified but the time for delivery shall not unless expressly agreed be of the essence of the contract.
2.1.3If the delivery date, terms of delivery, colour, design or any other particulars necessary for the making of the goods are not specified in the contract the Buyer shall give such particulars in reasonable time to allow the performance of the contract.
2.1.4. Subject to the other provisions of these conditions the company should not be liable for any direct, indirect or consequential loss (all 3 of which terms include without limitation, pure economic loss, loss of profit, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses cause directly or indirectly by any delay in the delivery of the goods (even if caused by the company’s negligence)
2.1.5 each delivery shall constitute a separate contract and the failure of any delivery shall not vitiate the contract as to other deliveries.
3. Deliveries may be partially or totally suspended by the Seller during any period in which it may be prevented from manufacturing, supplying or delivering by normal route or means of delivery the goods covered by the contract through any circumstances falling within the ordinary meaning of force majeure including strikes, lock-outs or difference with workmen, civil disturbances, war, Queen’s enemies, Act of God, storm, flood, tempest, seizure, arrest or requisition of the goods or the raw materials from which they are ordinarily made, Government requirements, quota or licence restrictions, shortage or delay in obtaining fuel, power, materials or labour. If the total or partial suspension of the contract shall exceed 6 months the contract may be cancelled by either party or written notice. The Seller shall not be under any liability arising out of its failure to deliver which is directly or indirectly attributable to such event.
4.1 Normal terms of payment are cash 30 days from the despatch/delivery of goods. Where different terms apply these will be notified in writing.
4.2 If the Buyer does not pay on the day when payment is due the Seller shall be entitled to interest from the date due until Payment is made at the rate of 8 %per month above the base lending rate of the Bank of England. The Seller reserves the right to claim interest under the Late Payment of the Commercial Debt (Interest) Act 1998. This penalty also include the cost of any administrative costs incurred in trying to collect due payment (inclusive of travel, postage, telephone calls etc)
4.3 In addition to the Seller’s remedies under Clause 5.2 if any payments due to the Seller by the Buyer are not made on the
Due dates the Seller reserves the right to cancel or suspend the whole of this contract (or such goods not already delivered) and to cancel or suspend any other contract existing between the parties at the date of such default without being liable for
Consequential loss. The Seller shall also be entitled to require immediate payment for all goods delivered under any other contracts and/or suitable security of payment.
4.4 The Buyer shall not be entitled to withhold payment of any amount payable under this contract to the Seller because of a
Disputed claim of any nature nor shall the Buyer be entitled to set off against any amount payable under this contact to the Seller.
PASSING OF PROPERTY AND RISK
OWNERSHIP OF ANY GOODS
5.1 The ownership of any goods delivered by the Seller to the Buyer shall remain in the Seller until such time as the Buyer has
Cleared funds for the goods and for any other goods previously delivered by the Seller to the Buyer. If the Buyer resells any of the goods, which remain the property of the Seller then it, is required that the Buyer does so at market value and in the ordinary course of the Buyer’s business
5.2 Notwithstanding this reservation of ownership, and subject to sub-clause 5.3
5.2.1 The Buyer has the Seller consent to re-sell any goods which remain the property of the Seller in which event the Buyer shall remit the proceeds of such sale to the Seller up to the amount of any sums then owing under sub-clause 5.1 and until so doing shall hold such proceeds of the sale on behalf of the Seller in such a way that they are kept separate and readily identifiable, they do not destroy, deface or obscure any identifying marks of the packaging on or relating to the goods and maintain the goods in a satisfactory condition and keep them insured on the company’s behalf for their full price against all risks to the reasonable satisfaction of the company. Damaged goods by the Buyer or its Customers are excluded from this agreement and the Buyer agrees to replace the full cost of such or undertakes the responsibility and costs or repairing such items to their original state. The buyer will be required to produce a policy of insurance to the company to substantiate this.
5.2.2 The Buyer has the Seller’s consent to use any goods which remain the property of the Seller for sales and marketing purposes, and if, as a result of such use, then the Seller shall have and retain a share in the original ownership of any of these goods resulting from such sales and marketing purposes and of the proceeds of sale thereof. Such share in the ownerships of the goods or the proceeds of sale thereof shall be in an amount equal to the Buyer’s indebtedness to the
Seller in respect of all goods belonging to the Seller and incorporated in the re-sale, and marketing/promotional activities undertaken by the Buyer. The property thus retained by the Seller in such usage shall pass to the Buyer upon discharge of the indebtedness.
5.3 If the Buyer
(i) Has a bankruptcy order made against him: or
(ii) Goes into liquidation whether voluntary or compulsory; or
(iii) Makes an arrangement with the Buyers creditors: or
(iv) Has a receiver or administrative receiver appointed over any of the Buyer’s assets: or
(v) Receives a written demand from the Seller to pay overdue sums owed to the Seller
Then the Buyer’s consent from the Seller to do the acts referred to in sub-clause 5.2 shall determined and be deemed to have determined forthwith and the Buyer shall not thereafter sell or use goods belonging to the Seller, save with the consent in writing of the Seller, until the Seller has been paid in full in accordance with sub-clause5.1.
5.4 The Seller may recover and dispose of any goods in which the Seller has retained the property under sub-clause 5.1 and upon the happening of any of the events referred to in sub-clause 5.3. The Seller, save with the consent in writing of the Seller may for that purpose enter upon any premises where such goods may be.
5.5 The Buyer agrees to store all goods that are the property of the Seller in such a way that they are readily identifiable as such and to make a note in its accounting records that the goods are the property of the Seller.
5.6 Notwithstanding the provisions in sub-clause 5.1 the goods shall be at the risk of the Buyer from the time when they are tendered for delivery at an agreed destination or are available for collection by the Buyer or cease to be in the possession of the Seller and in particular when they are delivered into the possession or custody of a carrier, forwarding agent, warehouseman or other bailiff or agent for the purpose of transmission whether or not such person contracts with or is instructed by the Seller on re-sale.
6 Without prejudice to his rights under the Sale of Goods Act 1983 the Seller shall have a first and paramount lien on the goods sold for the purchase price and shall further have a first and paramount lien on the sold goods for any moneys other than the purchase price which might be owing to it by the Buyer or his estate and the Seller shall be entitled in exercise of any of the said liens to re-sell the goods if the Buyer makes default, without notification to the Buyer and upon such re-sale the Buyer shall continue to be liable to the Seller for all moneys owed by him including costs, charges and damages but less the proceeds received by the Seller on re-sale.
INTELLECTUAL PROPERTY RIGHTS
7 You acknowledge and agree that all copyright, designs, trademarks and all other intellectual property and material rights relating to the Goods as herein described, including BOOTCHARMS DESIGNS ("BC") packaging material, leaflets etc, shall remain at all times the property of BOOTCHARMS DESIGNS ("BC") and/or all its other businesses/companies are the property of the owner. All such material, including TRADEMARKS, designs and related intellectual property rights mentioned or displayed in your shops, sites or promotional material are protected by national intellectual property and other laws and international treaty provisions. You are permitted to use the Goods only as expressly authorised by BOOTCHARMS DESIGNS ("BC). Any reproduction, copying, adjustments or redistribution of the supplied Goods is prohibited and may result in civil and criminal penalties. Infringements/Violators will be prosecuted to the fullest extent permissible under applicable law. Without limiting the foregoing, copying and use of the supplied goods/merchandise in any other way but in the manner agreed between the Seller and the Buyer in writing is expressly prohibited
7.1 All claims must be submitted in writing with full details and adequate samples. Opportunity to inspect must be afforded to The Seller’s representatives.
7.2 Claims for apparent defects must be notified within 3 days of receipt by the Buyer of the goods and will only be accepted by the Seller if the goods are still in their original state and packaging and have not been amended in any way
7.3 Claims for latent defects must be notified within 3 days after receipt of goods or immediately after identification, which shall the earlier. The items/goods must not be put on display or available to the public in order to minimise damage.
7.4 The Seller’s liability shall in no event exceed the invoice value of the goods in respect of which damages are claimed. No liability for loss of profit, indirect or consequential loss shall fall on the Seller. The Seller excludes all liability for any indirect consequential loss such as loss of profit or loss or business. The Seller limits the amount of their liability to that of the price of the price paid for the services.
7.5 The Seller shall have no liability for any damage or loss incurred by the Buyer in respect of any goods, which have adjusted, or amended in any way after the same have been delivered by the Seller.
7.6 All further claims for damages howsoever arising are hereby expressly excluded
7.7 All warranties or conditions, statutory or otherwise as to quality or the fitness of the goods for any particular purpose, whether known to the Seller or not are excluded. The Seller is not the manufacturer of the goods but will endeavour to transfer to the Buyer the benefit of any warranty or group guarantee given to Bootcharms designs. Bootcharms Designs warrants that on delivery the goods shall be of satisfactory quality within the meaning of the Sale of Goods act 1979 and will therefore not be liable for any breach of the warranty where the buyer does not give written notice of a defect to the company within 14 days of receipt and as such not giving the company a reasonable opportunity after receiving the notice to examine the goods. Bootcharms Designs will not be liable for any breach of warranty if the Buyer has failed to follow the seller’s oral or written instructions as to storage, installation, commission, use or maintenance of the goods. Further, if the Buyer alters or repairs the goods without permission or notice to the company. Bootcharms Designs provides that if the goods do not confirm with any warranties then the company shall at its option repair or replace such goods or refund the price of the goods and this will be the limit of the company’s liability.
A deposit of 50% is required as confirmation of an agreement between both parties for a commission to be undertaken. This deposit is non-refundable.
Once the commission is complete an invoice will be posted to you and the balance due must be paid within 15 days from the date of invoice. Failing to do so, a daily charge of 6% interest will be added to the balance. Payment must be paid in full within 14 days of this clause or your deposit will be forfeited and the commission will be sold to cover costs.
The amount due must be paid in full by cash on collection or by cheque 5 working days prior to postage or collection.
9 This contract and the construction thereof are to be governed by English Law.