TERMS AND CONDITIONS OF SALE
1. DEFINITIONS AND INTERPRETATION
a. In these Terms and Conditions the following words and expressions have the following meanings unless inconsistent with the context:
“Contract” the agreement for the sale of the Goods by TBD to the Customer, which includes the Contract Documentation;
“Contract Documentation” all documents which form part of, constitute or evidence the Contract, including these Terms and Conditions and any Quotations, offers, Orders, acknowledgements of order, acceptances and specifications of TBD or the Customer and any documents referred to in any of them;
“Customer” the person or business placing an Order with TBD, including any principal on whose behalf the person or business placing the Order is acting as agent;
“Goods” all goods supplied by TBD to the Customer pursuant to the Contract and as set out in the Contract;
“Input Materials” all documents, information and materials provided by the Customer for use by TBD in the processing, procurement or manufacture of the Goods, including specifications and any specific requirements set out in the Contract;
“Intellectual Property Rights” all patents, industrial designs, copyright and related rights, trade marks, rights in goodwill or to sue for passing off, rights in designs, moral rights, rights in confidential information (including know-how and trade secrets) and any other rights of a like nature, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Order” the order placed by the Customer with TBD for the Goods;
“Price” in relation to the Contract, the price payable for the Goods as detailed in the Order or otherwise specified by TBD;
“Quotation” any quotation, proposal or tender submitted to the Customer by TBD prior to the Contract being made;
“TBD” Trimmings By Design Limited, a Company incorporated in England and Wales with registered Company number 3865853 whose registered office is at Gresham Road, Derby, DE24 8AW; and
“Working Day” any day from Monday to Friday other than a statutory or public holiday in England and Wales.
b. Any reference to “writing” or any similar expression includes communications by post and email but excludes facsimile and text messages.
c. Use of any gender includes the other genders.
d. Words in the singular include the plural and words in the plural include the singular.
e. References to “persons” or “parties” include references to individuals, companies, corporations, partnerships and unincorporated associations.
f. References to “include” and “including” shall be construed without limitation.
g. References to any statute or statutory provision include, unless the context otherwise requires, a reference to the statute or statutory provision as substituted, modified or re-enacted from time to time.
2. BASIS OF CONTRACT
a. Each Order or acceptance by the Customer of a Quotation shall be deemed to be an offer by the Customer to purchase the Goods subject to these Terms and Conditions. All terms and conditions proffered at any time by the Customer are excluded from the Contract.
b. The Contract shall be deemed to have been entered into and shall become binding on the Customer when TBD:
i. acknowledges in writing either its acceptance of (i) the Order or (ii) the Customer’s acceptance of a Quotation; or
ii. commences the procurement, processing or manufacture of the Goods,
whichever is the earlier.
c. TBD is under no obligation to accept any Order or acceptance of a Quotation and shall not be regarded as having done so unless either of the circumstances set out in Condition 2b applies.
d. In the event of any inconsistency between any provision of these Terms and Conditions and the Order or Quotation or any other Contract Documentation, these Terms and Conditions shall prevail unless otherwise expressly agreed in writing.
e. Each Order or Quotation shall form the subject matter of a separate Contract.
f. Unless otherwise stated, a Quotation is valid for 90 days or, if earlier, until withdrawn by TBD.
3. CHANGES TO OR CANCELLATION OF AN ORDER
a. TBD reserves the right to cancel an Order at any time and for any reason. In the event that TBD cancels an Order the Customer shall be eligible for a refund of any amount paid by the Customer prior to cancellation unless the reason for cancellation is any wrongful act or omission on the part of the Customer, its officers, employees, agents or representatives.
b. The Customer may only cancel an Order or any part of an Order with the express prior written consent of TBD, and subject to the Customer indemnifying TBD in full against all losses, costs (including the cost of all labour and materials used), damages, charges and expenses incurred by TBD as a result of cancellation.
c. In the event of cancellation of an Order where the Goods are to be delivered in instalments, TBD shall be entitled at its option to deliver any instalments for which the Customer has already paid and the Customer shall be obliged to accept delivery of the same.
d. Cancellation of an individual instalment of Goods to be delivered under an Order shall not constitute cancellation of the entire Order unless expressly agreed in writing.
e. The Customer shall not be entitled, following the entering into of the Contract, to change the quantity or specification of the Goods, or the date for delivery of the Goods, without the express prior written consent of TBD. If any such change would result in TBD incurring additional cost or expense, or in delivery of the Goods being delayed, TBD shall be entitled, as a condition of giving such consent, to adjust the Price to the extent necessary to reflect the additional cost or delay (as the case may be).
f. Any typographical, clerical or other omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by TBD may be remedied without any liability on the part of TBD.
4. DELIVERY
a. TBD shall use reasonable endeavours to deliver the Goods to the location specified in the Contract in the manner and within any timescale set out in the Contract. In the matter of delivery time shall never be of the essence of the Contract.
b. Where the Contract does not set out the delivery process, delivery shall be EXW (as defined by Incoterms 2010).
c. Unless otherwise agreed in writing, TBD shall have the right to deliver Goods in instalments.
d. The Customer shall acknowledge receipt of the Goods by signing either TBD’s or its carrier’s form of receipt. Unless the Customer states on acknowledgement that the Goods have not been examined, the Customer shall be deemed to have received and accepted all the Goods in the Order save to the extent of any short delivery or damage to Goods which is recorded by the Customer upon receipt or which is dealt with in accordance with Condition 4f, 4g or 9.
e. TBD reserves the right to deliver Goods in quantities up to 10% above or below the quantity stated in the Order. Where the Goods delivered are within this tolerance, the Price will be adjusted on a pro-rata basis.
f. The Customer shall notify TBD in writing of any shortfall of Goods which was not apparent on delivery within 14 days of delivery. TBD shall at its option make good the shortfall or refund the Customer on a pro-rata basis.
g. Where the Customer has ordered Goods by sample, the Customer shall notify TBD in writing of any discrepancy between the sample and the Goods delivered within 14 days of delivery of the Goods. If the Customer shall not give such notification it shall be deemed to have accepted the Goods.
h. Where the Customer places an Order for Goods which are to be held by TBD until called off by the Customer for delivery, TBD reserves the right to issue a final invoice for all Goods which have not been called off and delivered within 12 months of the date on which the Contract came into effect on the expiry of that period. Upon the settlement of such final invoice TBD will deliver the Goods in question to the Customer.
5. OWNERSHIP AND RISK
a. Risk of damage to or loss of the Goods shall pass to the Customer on delivery in accordance with the Contract, save that:
i. if TBD tenders delivery of the Goods at the time for delivery specified in the Contract and the Customer fails to take delivery, risk in the Goods will pass to the Customer upon the tendering of delivery; and
ii. where the Customer places an Order for Goods which are to be held by TBD until called off by the Customer, the Customer acknowledges, where earlier than the date of delivery, that risk will pass when the Customer pays for the Goods, notwithstanding that delivery has not taken place.
b. The ownership of the Goods shall not pass to the Customer until the Price for those Goods is paid in full.
c. Until such time as the Price has been paid in full:
i. the Customer shall insure the Goods against all normal commercial risks to their full replacement value with an insurance company of repute;
ii. without limiting TBD’s rights under Condition 5c(iii) below, the Goods shall be held by the Customer in a fiduciary capacity as bailee for TBD and stored by the Customer at its premises in such a manner that they are clearly identifiable as the property of TBD;
iii. without prejudice to any other rights that it may have against the Customer TBD shall be entitled to retake possession of the Goods and the Customer hereby grants to TBD and its representatives an irrevocable licence to enter the Customer's premises for the purpose of exercising its rights under this Condition 5c(iii), provided that, where the Customer does not own or control the premises in question, the Customer undertakes to procure such right for TBD;
iv. TBD hereby authorises the Customer to use or sell the Goods in the normal course of the Customer's business. The Customer's authority to use or sell the Goods shall terminate upon any of the events in Conditions 13a(iii) to 13a(viii) occurring in respect of the Customer.
d. TBD may bring an action against the Customer for the Price notwithstanding that ownership of the Goods has not passed to the Customer.
6. PRICE
a. Unless otherwise stated by TBD, the Price and any additional charges are quoted exclusive of VAT or any other sales tax which may be charged at the rate in force at the time of despatch.
b. The Price is inclusive of basic packaging costs but excludes delivery, storage and insurance costs except as stated in the Contract. Where delivery, storage, insurance or additional packaging are requested after the Contract has come into effect TBD reserves the right to charge the Customer for the cost of each, and such additional charge will appear separately on TBD’s invoice, to be paid in accordance with Condition 7 below.
c. TBD reserves the right to increase the Price by giving (written) notice at any time prior to delivery to take account of any increase howsoever arising in the cost of the Goods or performance of the Contract including any increase in the cost of materials, labour or delivery or to take account of any fluctuations in exchange rates, or alteration of duties as shall be reasonable in the circumstances provided that the Customer may cancel the Contract by giving notice to TBD within five (5) Working Days of the date of receipt of any such notice from TBD, without prejudice to the provisions of Condition 3.
7. PAYMENT
a. Unless otherwise specified by TBD, the Customer shall make payment for the Price and any other sums due under the Contract in cleared funds in the currency stated in the Contract by cheque, cash, telegraphic transfer, credit or debit card. Unless otherwise agreed in writing, any payment received by TBD in any other currency or by any other method will not be deemed payment for the Goods in question.
b. Except in relation to new Customers, Customers with which TBD has not dealt in the preceding 12 months and any other Customers as TBD may notify (to which the provisions of Condition 7c shall apply), TBD shall be entitled to invoice the Customer at any time on or after despatch of the Goods, save that where TBD has notified the Customer of its intention to do so TBD may invoice the Customer at any time following receipt of the Order or acceptance of the Quotation (as the case may be).
c. TBD shall be entitled to issue proforma invoices to new Customers, Customers with which TBD has not dealt in the preceding 12 months and any other Customers as TBD may notify and TBD shall be under no obligation to deliver any Goods until such time as payment of those invoices has been received in full and cleared funds.
d. Unless otherwise specified by TBD in writing, payment is due on the 20th day of the month following the month in which the invoice is issued (“Due Date”). The amount due under an invoice shall be payable notwithstanding that delivery of the Goods may not have taken place and title may not have passed to the Customer.
e. If payment for any Goods is not made in full on or before the Due Date TBD, at its discretion, reserves the right to:
i. charge interest from the Due Date until the actual date of payment (whether before or after judgement) in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended from time to time;
ii. refuse to make further deliveries of Goods due to be made under any contract until arrangements as to the payment of arrears have been made which are satisfactory to TBD in its discretion; and
iii. by notice to the Customer unilaterally vary payment terms for the Order or the future supply of Goods by TBD to the Customer.
f. TBD will (without prejudice to any other remedy available to it) have in respect of all unpaid amounts due from the Customer a general lien on all property of the Customer in the possession of TBD for whatever purpose and whether worked upon or not and be entitled on the expiration of not less than 14 days' notice to the Customer to dispose of such property and to apply the proceeds towards the satisfaction of such debts.
g. TBD reserves the right to charge a reasonable administrative fee where payment is made by credit or debit card.
h. All amounts due under the Contract from the Customer to TBD shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law) save that where TBD issue a written credit note to the Customer this may be set-off against the amounts due under the Contract to the extent set out in the credit note.
8. QUALITY
a. TBD shall use such materials as the Customer may specify but subject to all reasonable tolerances in colour and performance.
b. TBD will not be liable for any defect, fault or failure to meet the required specification which is a result of TBD using Input Materials.
9. WARRANTY AND DEFECTIVE GOODS
a. Where TBD is the reseller of any Goods, TBD shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee received by TBD.
b. Subject to the following provisions of this Condition 9 TBD warrants that upon delivery of the Goods, they will:
i. be of satisfactory quality; and
ii. be free from material defects in quality or workmanship; and
iii. comply with any specification forming part of the Contract. TBD may from time to time make changes in the specification of the Goods which are necessary in order to comply with any applicable safety or statutory requirements or which do not materially affect the quality of the Goods;
provided that the warranty in this Condition 9b shall not extend to cover any goods not manufactured by TBD.
c. Subject as expressly provided in these Terms and Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
d. TBD shall not be liable for a breach of any of the warranties in this Condition 9 unless:
i. the Customer gives notice of the defect to TBD within ten (10) Working Days of discovery of the defect, specifying the details of the defect and delivery date; and
ii. TBD is given a reasonable opportunity after receiving notice of the defect to examine the Goods and the Customer complies with any request from TBD to return Goods to TBD’s place of business at the Customer’s cost for examination to take place there.
e. TBD shall not be liable for breach of warranty under Condition 9 if:
i. the Customer makes any further use of such Goods after giving notice under Condition 9; or
ii. the defect arises because the Customer has failed to follow TBD’s or the manufacturer’s instructions as to the storage, proper use and maintenance of the Goods or good trade practice; or
iii. the Customer alters or repairs the Goods or purports to do so without the express prior written consent of TBD.
f. Where any valid claim in respect of the Goods is made by the Customer TBD shall be entitled at its option to:
i. replace or repair the Goods (or the part of the Goods in question) found not to conform to warranty at TBD’s cost; or
ii. at TBD’s sole discretion, refund to the Customer the Price (or a proportionate part of the Price) of the relevant part of the Goods found not to conform to warranty,
which in either case shall be the Customer’s sole and exclusive remedy for any defect or deficiency in or relating to the Goods.
10. LIMITATION OF LIABILITY
a. Nothing in these Terms and Conditions seeks to limit TBD’s liability:
i. for personal injury or death caused by TBD’s negligence;
ii. for fraud or fraudulent misrepresentation; or
iii. for any matter in respect of which it would be unlawful or illegal to exclude or limit liability.
b. Subject to Condition 10a:
i. TBD shall have no liability to the Customer for any loss of profits, loss of business, loss of goodwill, loss of anticipated savings or loss of use or for any type of consequential, special or indirect loss or damage howsoever caused and regardless of whether TBD had been advised of the possibility of such loss or damage arising; and
ii. in respect of all other direct loss (whether TBD’s liability for the same arises in contract, tort or otherwise) TBD’s total liability under the Contract shall not exceed the Price.
c. Any claim by the Customer under the Contract shall not entitle the Customer to withhold or delay payment in respect of any other Goods in respect of which no such claim has been made whether or not those Goods form part of the same consignment.
d. The Customer shall indemnify TBD and hold TBD harmless from any and all actions, claims, demands, costs (including reasonable legal costs), expenses, damages and liability suffered or incurred by TBD, or TBD’s employees or agents or by any third party to the extent that the same were caused by, relate to or arise from any wrongful act or omission on the part of the Customer, its officers, employees, agents or representatives relating to the Goods or Contract.
e. The Customer will have no right of set-off in relation to any amounts owed by TBD.
11. CUSTOMER OBLIGATIONS
a. The Customer will co-operate with TBD in all matters relating to the Goods and the Contract, including providing access to any location for delivery and supplying such Input Materials or raw materials as may be necessary for the performance of the Contract.
b. If TBD’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, TBD shall not be liable for any costs, expenses, losses or charges sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
c. Notwithstanding the provisions of Condition 11b, TBD may charge the Customer as an additional charge for any additional reasonable costs and expenses incurred by TBD caused by the Customer’s instructions, failure to provide instructions, or failure to comply with Condition 11a.
12. INTELLECTUAL PROPERTY RIGHTS
a. The Customer acknowledges that TBD is the owner or the licensee of all Intellectual Property Rights in the Goods other than Intellectual Property Rights in the Input Materials, which shall remain with the Customer.
b. The Customer shall indemnify and hold TBD harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by TBD as a result of or in connection with any alleged or actual infringement, whether or not under English Law, by TBD and arising out of the use by it of any Input Materials.
13. TERMINATION AND CONSEQUENCES
a. Without prejudice to any other remedies or rights whether under the Contract or otherwise, either party may terminate the Contract with immediate effect at any time by giving notice to the other if the party receiving notice:
i. commits a material or persistent breach of any of these Terms and Conditions, and (if such a breach is remediable), fails to remedy that breach within 10 Working Days of being requested to do so in writing;
ii. fails to pay any sum due by the Due Date, including any interest accrued, in full cleared funds in accordance with Condition 5 within 10 Working Days of being notified in writing;
iii. (being a company) passes a resolution or suffers an order of a court to be made for its winding up or a receiver or administrative receiver is appointed or a petition for the appointment of an administrator is presented in respect of it;
iv. suspends, or threatens to suspend, payment of its debts or makes or proposes to make any 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);
v. is the subject of a creditor or encumbrancer attaching or taking possession of, or a distress, execution, sequestration or other such process, against the whole or any part of its property or assets;
vi. is unable to pay its debts as they fall due;
vii. suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
viii. gives the other party reasonable grounds to believe that any of the events mentioned above is about to occur.
b. Upon termination of the Contract for any reason:
i. the Customer shall immediately settle, in full and without deduction, all outstanding invoices previously issued by TBD in respect of the Goods, and in respect of any part of the Price or other sums payable by the Customer but for which no invoice has been submitted, TBD may submit an invoice which shall be payable immediately on receipt;
ii. TBD shall deliver to the Customer all completed Goods for which the Customer had made payment prior to the effective date of termination;
iii. each party shall return, delete or destroy all confidential information and all other information which has been provided to it by the other party belonging to that other party in whatever medium in accordance with the instructions of that other party; and
iv. the accrued rights and remedies of the parties as at the effective date of termination.
c. The provisions of Conditions 6, 7, 8, 9, 10, 11, 12, 16a, 16g, 16i and 16j shall survive expiry or termination of the Contract.
14. NOTICES
a. Any notice required or permitted to be given by either party to the other under the Contract shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this Condition 14 to the party giving the notice. Any notice:
i. sent by post shall be deemed served on the second Working Day following posting where the notice is sent and received within the United Kingdom, or 7 Working Days following posting where the notice is sent or received outside of the United Kingdom;
ii. delivered personally shall be deemed served at the time of personal delivery, provided the same occurs before 4:00 pm on a Working Day, otherwise it shall be deemed served on the next Working Day; and
iii. sent by email shall be deemed served at the time of transmission provided that the transmission occurs before 4:00 pm on a Working Day, otherwise it shall be deemed served at 9:00 am on the next Working Day, provided that no notice sent by email shall be deemed validly served unless a confirmatory copy of the email containing the notice is sent by post within 24 hours of the transmission of the email.
b. To prove service it shall be sufficient to show that the email was transmitted to the email address of the other party or that the envelope containing the notice was properly addressed and posted.
15. FORCE MAJEURE
a. TBD shall not be liable to the Customer or be deemed to be in breach of this Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Contract, as a result of any event, matter or circumstance beyond the reasonable control of TBD.
b. TBD shall notify the Customer in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than thirty (30) days, TBD may terminate the Contract by notice to the Customer.
16. GENERAL
a. The Contract constitutes the entire agreement between the parties in relation to its subject matter, supersedes any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law. The parties acknowledge and agree that in entering into the Contract they have not relied on or been induced by any warranty, statement or representation of the other party or any other person relating to the Contract which has not been incorporated into the Contract by express provision. Nothing in the Contract shall affect any liability of a party for fraudulent misrepresentation.
b. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for or to bind the other party in any way.
c. 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 TBD 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.
d. No variation of the Contract is effective unless it is made in writing, refers specifically to the Contract and is signed by duly authorised representatives of TBD and the Customer.
e. If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions shall remain in full force and effect.
f. TBD may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer shall not, without TBD’s prior written consent, assign, transfer, charge, sub-contract or deal in any manner with all or any of its rights or obligations under the Contract.
g. A person who is not a party to this Contract will not have any rights under the Contract.
h. These Terms and Conditions of Sale supersede all previous Terms and Conditions of Sale of TBD.
i. The proper law of this Contract shall be the law of England and Wales.
j. The Courts of England and Wales shall have non-exclusive jurisdiction to determine any dispute arising in respect of this Contract or the Goods supplied under it.