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1. |
Theaishop.com
shall sell and the buyer("the Buyer") whose order for the goods,
including any instalment of the goods or any part of them, is accepted by
the Company shall purchase the goods ("the Goods") subject to
these Conditions which shall govern the contract for the sale and purchase
of the Goods ("the Contract") to the exclusion of any other terms
and conditions subject to which any such order is made or purported to be
made by the Buyer. "These Conditions" shall mean the standard
terms and conditions of sale set out in this document and shall include
any special terms and conditions agreed in writing between the Buyer and
the Company. |
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| 2. |
If the Buyer's
order purports to exclude these Conditions such clause shall be ineffective
unless the Buyer shall have obtained the Company's express written agreement
to vary these Conditions. |
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| (a) |
While the
Company will do its best to comply with any requirements notified by the
Buyer, the responsibility for ensuring that the Goods are suitable for the
Buyer's purpose and meet the Buyer's requirements is the Buyer's. |
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| (b) |
No warranty,
condition, description or representation (unless it was made fraudulently)
given or made before the Company's acceptance of order is to be treated
as a term of the contract or as inducing it unless expressly incorporated
in the contract documents. |
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| 3. |
Unless fixed
prices have been expressly agreed by the Company the price payable by the
Buyer shall be the Company's ruling price at the date of despatch of each
delivery. Prices are subject to a delivery charge where appropriate and
are subject to the addition of VAT. |
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| 4. |
Dates or periods
of delivery stated in the Contract are approximate only and time shall not
be of the essence of the contract. |
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| 5. |
The Company
shall not be liable or deemed to be in breach of contract for delay in delivery
or failure to make delivery of any Goods due to circumstances beyond its
control, including but without prejudice to the generality of the foregoing,
war, rebellion, revolution, strike, lock-outs, breakdown of plant or governmental
or other laws, regulations, rules or decrees. |
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| 6. |
a) The Company
warrants that where applicable the Goods are at the time of supply within
usual tolerances as to quality and finish and will replace or refund (at
its option) the price of any Goods which do not comply with this warranty
to the maximum of the price invoiced for the Goods. As the Company is generally
unaware of the use to which its Goods will be put all conditions and warranties
as to fitness for purpose whether express or implied and whether arising
by statute, custom of the trade or at common law are excluded. |
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b) Subject
to clause 6(a) above in respect of Goods manufactured by it the Company
will (at its option) repair, replace or credit to the maximum of the price
invoiced for the Goods the Buyer in respect of any defects resulting from
faulty materials or workmanship as long as |
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(i) the defect
does not arise from misuse by the Buyer or the use of the Buyer's own specification; |
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(ii) prompt
notification is given to the Company within 3 days of delivery or (where
the defect was not apparent on reasonable inspection at the date of delivery)
within reasonable time after the discovery of the defect. |
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(c) In respect
of hire work to include galvanising, undertaken by the Company on Goods
supplied by the Buyer the Company shall have no liability for any material
damaged or incorrectly processed other than (at the Company's option) to
process, free of charge, replacement material supplied by the Buyer (provided
that the charge for hire work has been paid) or to credit to the maximum
of the price invoiced for the Goods the hire work charge. |
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(d) Where
Goods supplied are not manufactured by the Company, the Company's liability
is limited to passing to the Buyer the benefit of any manufacturer's warranty. |
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(e) Where
the Goods are sold under a consumer sale (as defined by the Consumer transactions
(Restrictions on Statements) Order 1976) the statutory rights of the Buyer
are not affected by these Conditions. |
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(f) Except
in respect of death or personal injury caused by the Company's negligence,
the Company shall not be liable to the Buyer by reason of any representation
(other than fraudulent misrepresentation) or any implied warranty, condition
or other term, or any duty at common law, or under the express terms of
the Contract for any consequential loss or damage (whether for loss of profit
or otherwise), costs, expenses, or other claim for consequential compensation
whatsoever (and whether caused by the negligence of the Company, its employees
or agents or otherwise) which arises out of or in connection with the supply
of the Goods or their resale by the Buyer, except as expressly provided
in these Conditions. |
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| 7. |
Risk in respect
of Goods shall pass to the Buyer on delivery. When Goods are delivered by
the Company's own transport, delivery shall be deemed to take place at the
moment the Goods are lifted from the delivery vehicle. When Goods are delivered
by other means of transport, delivery shall be deemed to take place when
the Goods are loaded on to the road or rail vehicle used unless specifically
agreed otherwise in writing. |
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| 8. |
The ownership
of the Goods to be delivered by the Company will only be transferred to
the Buyer when payment of all monies owning by the Buyer to the Company
or our associated companies has been made in full. Where some of the Goods
supplied by the Company have been paid for and some have not, the company
shall be entitled to assume that any Goods disposed of are those that have
been paid for, and that any Goods remaining are those for which payment
has not been made. Until the date of payment the Buyer is required to store
the Goods in such a way that it is clearly the property of the Company.
Subject to the foregoing the Buyer has the right to sell the Goods before
all outstanding liabilities between the Buyer and the Company have been
paid. |
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| 9. |
Unless ownership
has been transferred, the Buyer shall not and shall have no power to mortgage,
charge or otherwise encumber the Goods or dispose of them (otherwise than
by resale in the ordinary course of the buyer's business) without the Company's
prior written consent but if the Buyer does so all monies owing by the Buyer
to the Company shall (without prejudice to any other right or remedy of
the Company) forthwith become due and payable. |
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| 10. |
If at any
time whilst any monies are due from the Buyer to the Company (howsoever
the same shall have arisen) the Buyer shall deal with the Goods in any manner
(save by resale or usage in the ordinary course of the Buyer's business)
adverse to the Company's title or (being an individual) shall have a receiving
order made against him or be made bankrupt or (being a Company) shall enter
into liquidation or appoint or have appointed a receiver or if any Goods
in the possession of the Buyer (whether the Company's Goods or not) are
seized under any execution or distress or any other form of legal process
or if the Buyer shall fail to pay the Company in full for the Goods (or
any other Goods previously supplied by the company) within 48 hours of service
of formal written demand for payment then thereupon the Buyer shall cease
to be in possession of the Goods with the Company's consent and its representative(s)
shall be entitles to enter upon the premises of any Buyer and to remove
such Goods and shall not be liable for any damage or injury reasonably done
to any other property of the Buyer or in the Buyer's possession during such
removal and retaking of possession. |
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| 11. |
Claims for
non delivery, discrepancy in weight or damage must be notified in writing
in the case of Goods despatched: |
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(a) by road,
within 3 days of the date of despatch; |
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(b) by rail,
within 21 days of the date of despatch; |
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(c) by ship
or OF (Incoterms 1990) export contracts, within 28 days of the date of arrival
at the Port of destination. |
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(d) FOB (Incoterms
1990) export contracts, within 90 days of the date of shipment |
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Invoice overcharges
must be notified within 14 days. |
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| 12. |
If the Buyer
fails to take delivery of the Goods or fails to give the Company adequate
delivery instructions at the time stated for delivery (otherwise than by
reason of any cause beyond the Buyer's reasonable control or by reason of
the Company's fault) then without prejudice to any other right or remedy
available to the Company, the Company may: |
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(a) store
the Goods until actual delivery and charge the Buyer for the reasonable
costs (including insurance) of storage and administration expenses; or |
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(b) sell the
Goods at the best price readily obtainable and (after deducting all reasonable
storage, administration expenses and selling expenses) account to the Buyer
for the excess over the price under the Contract or charge the Buyer for
any shortfall below the price under the Contract |
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| 13. |
Orders placed
cannot be cancelled by the Buyer except with the Company's consent and on
terms which will indemnify the Company against loss (including loss of profit),
costs (including the costs of all labour and materials used), damages, charges
and expenses incurred by the Company as a result of cancellation. The Buyer
cannot return any Goods made to the Buyer's specification and drivers cannot
accept the return of Goods without the Company's written authority. Any
Goods returned without the Company's consent will not be accepted for credit. |
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| 14. |
Return of Goods: a restocking fee of £15.00 or 25% (whichever is higher) will be made on all Goods returned in good condition having been ordered in error or in excess of requirement. In addition, where the Company regards the Goods as being special or not standard stock items or quantities then a further handling charge will be made equal to either
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(a) the handling charge paid by the Company to its supplier; or |
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(b) the price at which the Company can sell the Goods elsewhere (after deducting all reasonable storage, selling and administration expenses). |
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| 15. |
The Buyer
shall have no right to reject any deliveries of Goods on the grounds of
variation of quantity from the Buyer's order where such variation is not
more than 10% or not less than 10% of the quantity of Goods ordered. |
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| 16. |
The Buyer
shall not be entitled to withhold payment of any sums due to the Company
by reason of any disputed claim of the Buyer for defective Goods or alleged
breach of contract by the Company. |
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| 17. |
Without prejudice
to any of its other rights the Company may without giving notice to the
Buyer terminate the contract or suspend further deliveries without liability
to the Buyer in the event of the Buyer failing to make payment for any Goods
when due or if the Buyer exceeds any credit limit specified by the Company
or if any distress execution or other legal process shall be levied upto
the Buyer or if the Buyer ceases or threatens to cease to carry on business
becomes insolvent or being a body corporate has passed a Resolution for
voluntary winding-up or is subject to a winding-up Order of the Court or
has had a Receiver appointed or the Company reasonably apprehends that any
of the events mentioned in this clause is about to occur in relation to
the Buyer and notifies the Buyer accordingly. |
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| 18. |
The Company
may, in whole or in part, release, compound, compromise, waive or postpone,
in its absolute discretion, any liability owed to it or right granted to
it under the Contract by the Buyer without in any way prejudicing or affecting
its rights in respect of any other liability or right not so released, compounded,
compromised, waived or postponed. |
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| 19. |
No single
or partial exercise or failure or delay in exercising any right, power or
remedy by either party shall constitute a waiver by that party of, or impair
or preclude any further exercise of that or any right, power or remedy arising
under the Contract or otherwise. |
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| 20. |
To the extent
that any provision of these Conditions is found by any court or competent
authority to be invalid, unlawful or enforceable in any jurisdiction, that
provision shall be deemed not to be a part of these Condition, it shall
not affect the enforceability of the remainder of these Conditions nor shall
it affect the validity, lawfulness or enforceability of that provision in
any other jurisdiction. |
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| 21. |
The contract
between the Company and the Buyer shall be deemed to have been made in England
and shall be governed in all respects by English law. The Buyer shall submit
to the jurisdiction of the English Courts. |