In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: has the meaning given in clause 11.
Goods: the goods (or any part of them) set out in the Order Confirmation.
Order: the Customer's request for the Goods, as offered in a written or verbal form.
Order Confirmation: the supplier’s written acceptance of the Customer’s Order
Specification: any description of the Goods, including fabric composition, physical properties and any related shades or designs.
Supplier: Huddersfield Textiles Limited, registered in England and Wales.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 A quotation for the Goods given by the Supplier shall specify the duration of validity but does not constitute an offer.
3.1 The Goods are described in the Supplier's price list or with the fabric swatch.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. INTELLECTUAL PROPERTY
4.1 Where the Supplier designs Goods as part of the Services, the Supplier shall own all intellectual property rights in such Goods unless otherwise agreed in writing between the parties.
4.2 If such an agreement is reached, the Customer shall be liable for a registration fee as set out by the Supplier.
4.3 The Customer shall indemnify the Supplier on demand against all costs, claims, damages and expenses arising directly or indirectly out of any breach or alleged breach of any third-party intellectual property rights resulting from compliance with the Customer’s instructions. These may be expressed or implied, including but not limited to compliance with instructions from the Customer in relation to fabric design services to be provided by the Supplier.
5.1 The Supplier shall ensure that each delivery of Goods is accompanied by a delivery note or piece ticket which shows all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
5.2 The Supplier shall deliver the Goods to the location set out on the Order or other such location as the parties may agree at any time prior to despatch (The Delivery Address)
5.3 Delivery of the Goods shall be completed on the Goods' arrival at The Delivery Address.
5.4 Any delivery date quoted by the Supplier verbally or in writing, is an estimate only. Time of delivery shall not be of the essence and the Supplier shall incur no liability whatsoever in respect of any loss or damage arising as a consequence of any deviation from the timetable agreed between the Customer and Supplier.
5.5 The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6 The Supplier will not be liable for Goods that have been cut, subjected to any chemical treatment or processed in any way after delivery.
5.7 The Customer accepts that the quantity of the Goods supplied in Bulk (50-70+) may be subject to an either way 10% tolerance of more or less than the quantity of Goods ordered. The Customer will be invoiced for the actual quantity delivered
5.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.9 With prior arrangement the Supplier will hold Goods up to a maximum of 6 months, on a scheduled basis which will be delivered in relation to clause 5.8
5.10 Should the time allowance in clause 5.9 expire then the Supplier reserves the right to deliver the Goods.
6.1 The Supplier shall use reasonable endeavours to ensure that all Goods are free from material defect and comply with the Specification.
6.2 The Customer may return such Goods to the Supplier which comply with clause 6.1 provided the request to return such Goods is made within 14 days of delivery for cut lengths and 30 days for full pieces and the Goods have not been subjected to any form of cutting or process. The Goods must be returned in the same standard they arrived with the customer.
6.3 The Supplier reserves the right to levy a handling charge of 20% of the price of the Goods.
The buyer will not, without the sellers prior written permission: 1 Export any goods to which these terms and conditions apply, or supply them for export to any territory which is not within the European Union (the “EU”); or 2 Advertise, canvas or otherwise attempt to sell any goods in, or for export to, any territory which is not within the EU; or 3 Sell the said goods to any third party within the United Kingdom whose dealings and/or other activities relating to the said goods would constitute a breach of this paragraph 5 if such dealings and/or other activities relating to the said goods would constitute a breach of this paragraph 6.A if such dealings and/or other activities had been carried out by the buyer.
In instances where the Seller has given prior written permission for the Buyer to undertake any activities described in the foregoing provisions of this paragraph 6A, the United Kingdom customers purchasing the relevant goods for export must (and the buyers will procure that they will) furnish proof to the Seller of such export within sixty (60) days of taking delivery of the relevant goods. Where such evidence is not available, the seller expressly reserves the right, in accordance with HMRC Notice 703 (August 2006), or any replacement thereof or equivalent thereto, to charge VAT at the appropriate rate.
The Buyer acknowledges that it is contrary to the marketing strategies of the Seller and would have a detrimental effect on the Sellers business, if any goods provided by the Buyer under these terms and conditions were to be resold by mail order. The Buyer, therefore undertakes to the Seller that it will not be (or become) involved, either directly or indirectly, in the provision of such goods by mail under any circumstances whatsoever and the Buyer further undertakes to use its best endeavours to ensure that any third party to who such goods are re-sold will not be involved in the provision of the relevant goods to any party by mail order.
The following conditions will apply to any Buyer wishing to sell the Sellers goods via the internet:
The reputation, brand, goodwill and/or image of the Seller must not (in its sole and reasonable opinion) be damaged, or be likely to be damaged, as a result of the name, appearance or contact of the relevant website.
Any third-party goods/ products being offered for sale on the same website as any of the Sellers goods must not (in its sole and reasonable opinion) harm the Seller’s brand, goodwill, image or reputation.
Any photographs, banners or advertisement appearing on the same website as any of the Sellers goods must not (in its sole and reasonable opinion) harm the Sellers brand, goodwill, image or reputation.
The Seller must be notified by the Buyer in writing prior to the Buyer offering and of the Sellers goods for sale via the Buyers website. In addition, the Seller must be given a reasonable period of time (and in any event, no less than 14 days) to approve all aspects of the website and the proposed appearance/ description of the Sellers goods on that website.
Any reference to brand names, registered designs, trademarks, images, copyright or any other (registered or unregistered) intellectual property right owned by the Seller should only be used on the website with the Sellers prior written approval
The website must not contain any links or hypertext to any other websites.
7.1 The Supplier warrants that on delivery the Goods shall:
(a) conform in all material respects with their description and Specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(c) be fit for any purpose held out by the Supplier.
7.2 The Supplier shall, at its option, repair or replace defective Goods, or refund the price of the defective Goods in full. if:
(a) the Customer gives notice in writing to the Supplier within 14 days from delivery of goods for cut lengths and 30 days for full pieces;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer returns such Goods to the Supplier's place of business at the Customer's cost.
7.3 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 7.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 7.1(c);
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the fabric care, and maintenance of the Goods or good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4 Except as provided in this clause 7, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 7.1.
7.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
7.7 The supplier reserves the right to withdraw Goods from its current price list without prior notice.
7.8 The Supplier provides no guarantee in respect to continuity of shade.
7.9 Where the Customer requires an exact shade match of Goods with the same order code as set out in the price list, this should be specified by the Customer in the Order.
8. TITLE AND RISK
8.1 The risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment of cleared funds for the Goods
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time,
8.4 The Customer may resell or use the Goods in the ordinary course of its business.
9. PRICE AND PAYMENT
9.1 The price of the Goods shall be the price set out in the Current Price List or Order Confirmation, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
9.2 The price of the Goods is exclusive of the transport of the Goods, which shall be invoiced to the Customer.
9.3 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
9.4 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
9.5 The Customer shall pay the invoice in full and in cleared funds within the set payment terms. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
9.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.
9.7 Should the customer wish to pay any outstanding amounts by Credit card, then the payments will be subject to a levy charge of 2.5%.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
10.2 Subject to clause 10.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort, breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Contract value;
(c) the Supplier shall not be liable for any change in appearance, durability and performance, or for any defect or damage caused to the Goods by any treatment or process, whether mechanical or chemical, subsequent to delivery;
(d) the Supplier provides no warranties or assurances in relation to quality, condition, performance, merchantability or fitness of purpose for a specified application.
11. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather
conditions, or default of suppliers or subcontractors.
12.1 Assignment and subcontracting
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.3 Third party rights - a person who is not a party to the Contract shall not have any rights under or in connection with it.
12.4 Variation - except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
12.5 Governing law and jurisdiction - the Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance.