| Marquis
de Sade Furniture Limited
Standard terms for the sale of goods
1 Interpretation
1.1 In these Terms:
“Buyer” means the person who accepts the Company’s
written quotation for the sale of the Goods or whose Written
order for the Goods is accepted by the Company;
“Goods” means the goods (including any instalment
of the goods or any parts for them) which the Company is to
supply in accordance with these Terms;
“Company” means Marquis de Sade Furniture Limited
(registered in England and Wales under number ______ );
“Contract” means the contract for the sale and
purchase of the Goods;
“INCOTERMS” means the international rules for
the interpretation of trade terms of the International Chamber
of Commerce as in force at the date when the Contract is made;
“Terms” means the standard terms of sale set out
in this document and (unless the context otherwise requires)
includes any special terms agreed in Writing between the Buyer
and the Company;
“Writing” and any similar expression, includes
facsimile transmission and comparable means of communication,
but not electronic mail.
1.2 A reference in these Terms to a provision of a statute
shall be construed as a reference to that provision as amended,
re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and
shall not affect their interpretation.
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2 Basis of the sale
2.1 The Company shall sell and the Buyer shall purchase the
Goods in accordance with the Company’s Written quotation
(if accepted by the Buyer), or the Buyer’s Written order
(if accepted by the Company), subject in either case to these
Terms, which shall govern the Contract to the exclusion of
any other terms 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 Buyer.
2.2 No variation to these Terms shall be binding unless agreed
in Writing between the authorised representatives of the Buyer
and the Company.
2.3 The Company’s employees or agents are not authorised
to make any representations concerning the Goods unless confirmed
by the Company in Writing. In entering into the Contract the
Buyer acknowledges that it does not rely on any such representations
which are not so confirmed, but nothing in these Terms affects
the liability of either party for fraudulent misrepresentation.
2.4 Any typographical, clerical or other error or omission
in any sales literature, quotation, price list, acceptance
of offer, invoice or other document or information issued
by the Company shall be subject to correction without any
liability on the part of the Company.
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3 Orders and specifications
3.1 No order submitted by the Buyer shall be deemed to be
accepted by the Company unless and until confirmed in Writing
by the Company’s authorised representative.
3.2 The Buyer shall be responsible to the Company for ensuring
the accuracy of the terms of any order (including any applicable
specification) submitted by the Buyer, 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.
3.3 The quantity, quality and description of the Goods and
any specification for them shall be as set out in the Company’s
quotation (if accepted by the Buyer) or the Buyer’s
order (if accepted by the Company).
3.4 If the Goods are to be manufactured or any process is
to be applied to the Goods by the Company in accordance with
a specification submitted by the Buyer, the Buyer shall indemnify
the Company against all loss, damages, costs and expenses
awarded against or incurred by the Company in connection with,
or paid or agreed to be paid by the Company in settlement
of, any claim for infringement of any patent, copyright, design,
trademark or other industrial or intellectual property rights
of any other person which results from the Company’s
use of the Buyer’s specification.
3.5 The Company reserves the right to make any changes in
the specification of the Goods which are required to conform
with any applicable statutory or E.U. requirements or which
do not materially affect their quality or performance.
3.6 No order which has been accepted by the Company may be
cancelled by the Buyer except with the agreement in Writing
of the Company and on terms that the Buyer shall indemnify
the Company in full against all loss (including loss of profit),
costs (including the cost of all labour and materials used),
damages, charges and expenses incurred by the Company as a
result of cancellation.
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4 Price of the goods
4.1 The price of the Goods shall be the Company’s quoted
price or, where no price has been quoted (or a quoted price
is no longer valid), the price listed in the Company’s
published price list current at the date of acceptance of
the order. Where the Goods are supplied for export from the
United Kingdom, the Company’s published export price
list shall apply. All prices quoted are valid for 30 days
only or until earlier acceptance by the Buyer, after which
time they may be altered by the Company without giving notice
to the Buyer.
4.2 The Company reserves the right, by giving Written notice
to the Buyer at any time before delivery, to increase the
price of the Goods to reflect any increase in the cost to
the Company which is due to any factor beyond the control
of the Company (such as, without limitation, any foreign exchange
fluctuation, currency regulation, alteration of duties, significant
increase in the costs of labour, materials or other costs
of manufacture), any change in delivery dates, quantities
or specifications for the Goods which is requested by the
Buyer, or any delay caused by any instructions of the Buyer
or failure of the Buyer to give the Company adequate information
or instructions.
4.3 Except as otherwise stated in the Company’s Written
quotation or in any price list of the Company, and unless
otherwise agreed in Writing between the Buyer and the Company,
all prices are given by the Company on an ex works basis,
and where the Company agrees to deliver the Goods otherwise
than at the Company’s premises, the Buyer shall be liable
to pay the Company’s charges for transport, packaging
and insurance.
4.4 The price is exclusive of any applicable value added tax,
which the Buyer shall be additionally liable to pay to the
Company.
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5 Terms of payment
5.1 Subject to any special terms agreed in Writing between
the Buyer and the Company, payment for the price of the Goods
must be made before the date of delivery of the Goods.
5.2 If the Buyer fails to make any payment on the due date
then, without limiting any other right or remedy available
to the Company, the Company may:
5.2.1 cancel the contract or suspend any further deliveries
to the Buyer;
5.2.2 appropriate any payment made by the Buyer to such of
the Goods (or the goods supplied under any other contract
between the Buyer and the Company) as the Company may think
fit (notwithstanding any purported appropriation by the Buyer);
and
5.2.3 charge the Buyer interest (both before and after any
judgment) on the amount unpaid, at the rate of four cent per
annum above Barclays Bank base rate from time to time, until
payment in full is made (a part of a month being treated as
a full month for the purpose of calculating interest).
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6 Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting
the Goods at the Company’s premises at any time after
the Company has notified the Buyer that the Goods are ready
for collection or, if some other place for delivery is agreed
by the Company, by the Company delivering the Goods to that
place.
6.2 Any dates quoted for delivery of the Goods are approximate
only and the Company shall not be liable for any delay in
delivery of the Goods however caused. Time for delivery shall
not be of the essence of the Contract unless previously agreed
by the Company in Writing. The Goods may be delivered by the
Company in advance of the quoted delivery date on giving reasonable
notice to the Buyer.
6.3 Where delivery of the Goods is to be made by the Company
in bulk, the Company reserves the right to deliver up to 5
per cent more or 5 per cent less than the quantity ordered
without any adjustment in the price, and the quantity so delivered
shall be deemed to be the quantity ordered.
6.4 Where the Goods are to be delivered in instalments, each
delivery shall constitute a separate contract and failure
by the Company to deliver any one or more of the instalments
in accordance with these Terms or any claim by the Buyer in
respect of any one or more instalments shall not entitle the
Buyer to treat the Contract as a whole as repudiated.
6.5 If the Company fails to deliver the Goods (or any instalment)
for any reason other than any cause beyond the Company’s
reasonable control or the Buyer’s fault, and the Company
is accordingly liable to the Buyer, the Company’s liability
shall be limited to the excess (if any) of the cost to the
Buyer (in the cheapest available market) of similar goods
to replace those not delivered over the price of the Goods.
6.6 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 limiting any other
right or remedy available to the Company, the Company may:
6.6.1 store the Goods until actual delivery and charge the
Buyer for the reasonable costs (including insurance) of storage;
or
6.6.2 sell the Goods at the best price readily obtainable
and (after deducting all reasonable storage 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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7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the
Buyer:
7.1.1 in the case of Goods to be delivered at the Company’s
premises, at the time when the Company notifies the Buyer
that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than
at the Company’s premises, at the time of delivery or,
if the Buyer wrongfully fails to take delivery of the Goods,
the time when the Company has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the
Goods, or any other provision of these Terms, the property
in the Goods shall not pass to the Buyer until the Company
has received in cash or cleared funds payment in full of the
price of the Goods and all other goods agreed to be sold by
the Company to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to
the Buyer, the Buyer shall hold the Goods as the Company’s
fiduciary agent and bailee, and shall keep the Goods separate
from those of the Buyer and third parties and properly stored,
protected and insured and identified as the Company’s
property, but the Buyer may resell or use the Goods in the
ordinary course of its business.
7.4 Until such time as the property in the Goods passes to
the Buyer (and provided the Goods are still in existence and
have not been resold), the Company may at any time require
the Buyer to deliver up the Goods to the Company and, if the
Buyer fails to do so forthwith, enter on any premises of the
Buyer or any third party where the Goods are stored and repossess
the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way
charge by way of security for any indebtedness any of the
Goods which remain the property of the Company, but if the
Buyer does so all moneys owing by the Buyer to the Company
shall (without limiting any other right or remedy of the Company)
forthwith become due and payable.
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8 Warranties and liability
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 all Goods manufactured and sold by the Company are for
novelty use only and the Company accepts no liability whatsoever
for personal injury or death arising out of inappropriate
or negligent use of the Goods;
8.2.2 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 Buyer;
8.2.3 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;
8.2.4 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;
8.2.5 the above warranty does not extend to parts, materials
or equipment not manufactured by the Company, in respect of
which the Buyer shall only be entitled to the benefit of any
such warranty or guarantee as is given by the manufacturer
to the Company.
8.3 Subject as expressly provided in these Terms, 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 1976) the statutory rights of the Buyer
are not affected by these Terms.
8.5 A claim by the Buyer which is based on any defect in the
quality or condition of the Goods or their failure to correspond
with specification shall (whether or not delivery is refused
by the Buyer) be notified to the Company within seven 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. If delivery
is not refused, and the Buyer does not notify the Company
accordingly, the Buyer shall not be entitled to reject the
Goods and the Company shall have no liability for such defect
or failure, and the Buyer shall be bound to pay the price
as if the Goods had been delivered in accordance with the
Contract.
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 Terms, the Company may replace
the Goods (or the part in question) free of charge or, at
the Company’s sole discretion, refund to the Buyer the
price of the Goods (or a proportionate part of the price),
in which case the Company shall have no further liability
to the Buyer.
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 Buyer by reason of any representation
(unless fraudulent), or 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 Buyer, 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 Terms.
8.8 The Company shall not be liable to the Buyer or be deemed
to be in breach of the Contract by reason of any delay in
performing, or any failure to perform, any of the Company’s
obligations in relation to the Goods, if the delay or failure
was due to any cause beyond the Company’s reasonable
control. Without limiting the foregoing, the following shall
be regarded as causes beyond the Company’s reasonable
control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil
disturbance or requisition;
8.8.3 acts, restrictions, regulations, bye-laws, prohibitions
or measures of any kind on the part of any governmental, parliamentary
or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-outs or other industrial actions or trade
disputes (whether involving employees of the Company or of
a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel,
parts or machinery;
8.8.7 power failure or breakdown in machinery.
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9 Indemnity
9.1 If a claim is made against the Buyer that the Goods infringe
or that their use or resale infringes the patent, copyright,
design, trade mark or other industrial or intellectual property
rights of any other person, then unless the claim arises from
the use of a drawing, design or specification supplied by
the Buyer, the Company shall indemnify the Buyer against all
loss, damages, costs and expenses awarded against or incurred
by the Buyer in connection with the claim, or paid or agreed
to be paid by the Buyer in settlement of the claim, provided
that:
9.1.1 the Company is given full control of any proceedings
or negotiations in connection with the claim;
9.1.2 the Buyer shall give the Company all reasonable assistance
for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not
pay or accept the claim, or compromise any such proceedings
without the consent of the Company (which shall not be unreasonably
withheld);
9.1.4 the Buyer shall do nothing which would or might vitiate
any policy of insurance or insurance cover which the Buyer
may have in relation to such infringement, and this indemnity
shall not apply to the extent that the Buyer recovers any
sums under any such policy or cover (which the Buyer shall
use its best endeavours to do);
9.1.5 the Company shall be entitled to the benefit of, and
the Buyer shall accordingly account to the Company for, all
damages and costs (if any) awarded in favour of the Buyer
which are payable by, or agreed with the consent of the Buyer
(which consent shall not be unreasonably withheld) to be paid
by, any other party in respect of any such claim; and
9.1.6 without limiting any duty of the Buyer at common law,
the Company may require the Buyer to take such steps as the
Company may reasonably require to mitigate or reduce any such
loss, damages, costs or expenses for which the Company is
liable to indemnify the Buyer under this clause.
9.2 For the avoidance of doubt the Company retains all intellectual
property rights in the Goods manufactured by it including
Goods specifically commissioned by the Buyer unless otherwise
specified between the parties in writing.
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10 Insolvency of buyer
10.1 This clause 10 applies if:
10.1.1 the Buyer 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
10.1.2 an encumbrancer takes possession, or a receiver is
appointed, of any of the property or assets of the Buyer;
or
10.1.3 the Buyer ceases, or threatens to cease, to carry on
business; or
10.1.4 the Company reasonably apprehends that any of the events
mentioned above is about to occur in relation to the Buyer
and notifies the Buyer accordingly.
10.2 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 Buyer, and if the
Goods have been delivered but not paid for the price shall
become immediately due and payable notwithstanding any previous
agreement or arrangement to the contrary.
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11 Export terms
11.1 Unless the context otherwise requires, any term or expression
which is defined in or given a particular meaning by the provisions
of Incoterms shall have the same meaning in these Terms, but
if there is any conflict between the provisions of Incoterms
and these Terms, the latter shall prevail.
11.2 Where the Goods are supplied for export from the United
Kingdom, the provisions of this clause 11 shall (subject to
any special terms agreed in Writing between the Buyer and
the Company) apply notwithstanding any other provision of
these Terms.
11.3 The Buyer shall be responsible for complying with any
legislation or regulations governing the importation of the
Goods into the country of destination and for the payment
of any duties on them.
11.4 Unless otherwise agreed in Writing between the Buyer
and the Company, the Goods shall be delivered fca the air
or sea port of shipment and the Company shall be under no
obligation to give notice under section 32(3) of the Sale
of Goods Act 1979.
11.5 The Buyer shall be responsible for arranging for testing
and inspection of the Goods at the Company’s premises
before shipment. The Company shall have no liability for any
claim in respect of any defect in the Goods which would be
apparent on inspection and which is made after shipment, or
in respect of any damage during transit.
11.6 Unless otherwise required by the Company, payment of
all amounts due to the Company shall be made by an irrevocable
letter of credit, in a form acceptable to the Company, to
be opened by the Buyer in favour of the Company and confirmed
by a bank in the United Kingdom acceptable to the Company
within 14 days after the Contract is concluded.
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12 General
12.1 Any notice required or permitted to be given by either
party to the other under these Terms 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 provision to the
party giving the notice.
12.2 No waiver by the Company of any breach of the Contract
by the Buyer shall be considered as a waiver of any subsequent
breach of the same or any other provision.
12.3 If any provision of the Contract is held by a court or
other competent authority to be invalid or unenforceable in
whole or in part the validity of the other provisions of the
Contract and the remainder of the provision in question shall
not be affected.
12.4 The Contract shall be governed by the laws of England,
and the Buyer agrees to submit to the non-exclusive jurisdiction
of the English courts.
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