1.
Interpretation
1.1
In these conditions (“Conditions”)
“Carlton" means Carlton Furniture Limited; the “Buyer” means any person(s), firm
or company that purchases Goods from Carlton; “Contract” means any agreement
between Carlton and the Buyer for the sale and purchase of Goods; and “Goods”
means the Goods agreed in the Contract to be supplied by Carlton to the Buyer.
2.
The Contract
2.1
Subject to a variation under
Condition 2.2 all Contracts will be on these Conditions to the exclusion of all
other terms and conditions (including any terms and conditions the Buyer
purports to apply under any purchase order, confirmation of order, specification
or other document).
2.2
These Conditions apply to all
Carlton's sales and no variation of these Conditions or representation about
goods shall have any effect unless agreed in writing by an authorised official
of Carlton.
2.3
No Buyer’s order shall be deemed
accepted until Carlton delivers the Goods.
2.4
If Carlton gives any advice about how
to store or use the Goods it is general guidance only and not part of the
Contract. Carlton shall not be responsible for any errors in such advice.
2.5
Carlton’s catalogues,
instruction leaflets, manuals, drawings, specifications and price lists
("Information") are not an offer to create a Contract. Carlton can correct any
clerical error in the Information without any liability to the Buyer.
2.6
The Buyer must
make sure that all details contained in any order, specification and any
drawings, designs, or specifications are accurate. Carlton’s drawings, designs,
specifications and particulars of weights, volumes and dimensions are
approximate only and Carlton shall not be liable to the Buyer for any deviation
from them except where the Buyer specifically brings these to Carlton’s
attention on placing the order.
2.7
Carlton may make
any changes to the specification of the Goods which are needed to conform with
any safety or other statutory or EC requirement or, in relation to the Goods,
which do not materially affect their quality or performance.
2.8
Carlton may
deliver the Goods to the Buyer from verbal order only. If Carlton does so there
shall still be a Contract between Carlton and the Buyer.
2.9
Carlton will
allow use of their copyrighted images by prior written consent only
3
Quotations and Price
3.1 Quotations are subject to
these Conditions and are valid for 30 days from issue or until withdrawn by
Carlton, if earlier. If Carlton issues a quotation there will be no Contract
between Carlton and the Buyer until delivery of the Goods.
3.2
The price of the Goods shall be as
listed in Carlton’s price list as at date of invoice. Carlton may revise price
lists from time to time without notice. Prices and all other costs and charges
are exclusive of any value added tax, duties and levies which shall be for the
account of the Buyer.
4
Payment
4.1
Payments shall be made within 14 days
from the date of Carlton’s invoice or within the credit terms agreed in writing
between the Buyer and Carlton and shall be in the currency stated on the invoice
without any deduction, set-off or withholding whatsoever. Time for payment shall
be of the essence. Payment will only be deemed to have been received when
Carlton has received cleared funds.
4.2
If payment is not received by
Carlton on the due date, then without affecting any other of its rights or
remedies, Carlton can: cancel the Contract or suspend any further delivery of
goods; and/or charge the Buyer interest under the Late Payment of Commercial
Debts (Interest) Act 1998. The Buyer must pay Carlton all money it owes Carlton
under the Contract when the Contract is ended for any reason.
5
Delivery
5.1
Delivery shall take place on despatch
from Carlton’s premises or despatch from the premises of Carlton’s couriers.
5.2
All delivery times and dates are
estimates only given in good faith but without obligation. Time for delivery is
not of the essence. If no dates are specified, delivery will be within a
reasonable time. Carlton shall not be responsible if there is any delay in
delivery of the Goods except if caused by Carlton’s negligence.
5.3
If the Buyer (1) requests that
delivery be postponed or (2) refuses to accept delivery or (3) fails to give
Carlton adequate delivery instructions, then (a) risk of damage to or loss of
the Goods will pass to the Buyer (including for loss or damage caused by
Carlton’s negligence) and; (b) the Goods will be deemed to have been delivered
and; (c) Carlton may store the Goods until actual delivery and charge the Buyer
for all related costs including insurance for storage and; (d) Carlton may
increase the price according to price lists applying at time of actual delivery;
(e) Carlton may sell the Goods at the best price readily obtainable and charge
the Buyer for any shortfall below the price under the Contract; and (f) without
affecting any other of its rights or remedies Carlton may cancel the Contract or
suspend further deliveries.
5.4
If the Buyer nominates a place for
delivery it is its responsibility to make sure that suitable access equipment
and manual labour is available to unload the Goods. IF IN CARLTON’S DRIVER'S
REASONABLE OPINION THESE ARE NOT AVAILABLE CARLTON MAY REFUSE TO DELIVER THE
GOODS.
5.5
Carlton shall have no liability for
non-delivery or short delivery unless notified by the Buyer in writing within
two working days of due delivery date. Carlton’s liability for non-delivery
shall be limited to replacing the Goods within a reasonable time or issuing a
credit note against any invoice raised for the relevant Goods. If the Buyer does
not notify Carlton within this time limit, the Buyer shall be deemed to have
received the Goods and shall be bound to pay the price as if the Goods had been
received by it. The Buyer must arrange for inspection of the Goods immediately
upon delivery and before the delivery receipt, if required, is signed.
5.6
Carlton will deliver to the companies
designated warehouse(s) only, any additional warehouse or delivery address must
be approved by Carlton Furniture Ltd prior to that delivery taking place.
5.7
Carlton will not allow collections
from their premises unless with a prior written agreement.
6
Passing
of risk and property
6.1
Risk of
loss, damage or deterioration in the Goods shall pass to the Buyer when
despatched
from Carlton’s premises or the premises of its couriers.
6.2
Ownership of the Goods shall not pass to the Buyer until Carlton has received
full payment of all sums due to Carlton from the Buyer on any account in cash or
cleared funds. Until ownership of the Goods has passed to the Buyer, the Buyer
must hold them on Carlton’s behalf (but without the Buyer owning them); store
them (at the Buyer’s cost) separately from all of the Buyer’s other goods so
that they can be identified as Carlton’s property; not destroy, deface or
obscure any identifying mark or packaging on them; and maintain them in
satisfactory condition insured on behalf of Carlton for their full price against
all risks to Carlton’s reasonable satisfaction.
6.3 The Buyer may resell the
Goods before ownership has passed to it only where; (a) that sale is effected in
the ordinary course of the Buyer’s business at full market value and; (b) it is
a sale of Carlton’s property on the Buyer’s own behalf, and the Buyer deals as
principal when making such a sale and the Buyer must account to Carlton for the
proceeds of sale and shall keep all such proceeds separate from any monies or
property of the Buyer and third parties.
6.4
The Buyer shall not use the Goods
which remain Carlton’s property as security for any of the Buyer’s debts.
6.5
The Buyer’s right to possession of the Goods shall end immediately and Carlton
can end the Contract under Condition 11 if the Buyer:
6.5.1 is the subject of insolvency, administration, bankruptcy (or
similar) orders, notices, proceedings, resolutions or arrangements in whatever
jurisdiction or is unable to pay its debts within the meaning of section 123
Insolvency Act 1986 or ceases (or threaten to cease) to trade;
6.5.2 is the subject of any execution on its property or breaches the
Contract or any other contract with Carlton and (if capable of remedy) fails to
remedy the breach within 30 days after being required to do so by written
notice; or
6.5.3
uses any of the Goods as security.
6.6 If
Carlton is owed any money by the Buyer it may (in addition to any other rights
or remedies it has) enter any of the Buyer’s premises on reasonable notice where
the Goods are or may be stored to inspect them or to repossess them and the
Buyer grants to Carlton an irrevocable licence so to do. Carlton shall also be
entitled to an injunction to prevent the Buyer from selling or otherwise
disposing of the Goods (subject to Condition 6.3).
7
Cancellation
7.1 Cancellation of an order
by the Buyer, in whole or in part cannot be accepted without Carlton's consent
in writing which shall only be given if a full indemnity is given by the Buyer
to Carlton.
8.1
The Goods are not tested and Carlton
gives no warranty to the Buyer in relation to the Goods other than that on
delivery the Goods will be of satisfactory quality. All other warranties,
conditions or other terms implied by statute or common law (save for the
conditions implied by Section 12 of the Sale of Goods Act 1979) are excluded to
the fullest extent permitted by law.
8.4 Where the Buyer complies
with Condition 8.2, at Carlton’s discretion, Carlton shall replace or repair the
defective Goods or refund the price to the Buyer (or a proportionate part of the
price). Carlton shall have no further liability to the Buyer for any defect in
the Goods in any event. It is the Buyer’s responsibility to collect from
Carlton any Goods returned under this Condition if its claim in respect of such
Goods proves to be invalid. Despite any of the other provisions of this
Condition, if the Buyer (a) sells the Goods or (b) does not return the Goods to
Carlton when asked to do so or (c) alters the Goods in any way, the Buyer shall
be deemed to have accepted the Goods.
9
Export Terms
9.1
Unless any special terms are agreed
in writing between authorised representatives of the Buyer and Carlton, where
the Goods are supplied for export from the United Kingdom the Buyer shall be
responsible (at its own expense) for complying with any legislation or
regulations governing the importation of the Goods into the country of
destination (including obtaining relevant licences, permits and permissions) and
for the payment of any duties and for supplying all relevant details to the
Seller where delivery is to be made at the Buyer's premises.
9.2
Unless the Goods are to be collected
by the Buyer or its carrier from Carlton's premises, the Goods shall be
delivered at the Buyer's nominated premises (as agreed by Carlton).
10
Liability
10.1
Carlton does not accept any liability
to the Buyer or to others in connection with the Contract for loss of profit,
loss of business, depletion of goodwill, loss of opportunity, loss of data, loss
of use, loss of contracts, loss of expected savings or interruption to the
Buyer’s business ("Losses"). If however, Carlton is found to be liable to the
Buyer or to others for any of the Losses or for breach of contract,
misrepresentation, misstatement or other tortious acts or omissions, including
negligence, arising under or in connection with the Contract, Carlton’s maximum
liability shall be the price paid by the Buyer to Carlton under the Contract.
If it is found that to limit Carlton’s liability to this amount is unfair then
Carlton shall only be liable to the Buyer for the matter described in this
Condition for up to the amount of insurance cover that it has from time to time.
10.2 Nothing in these
Conditions excludes Carlton’s liability to the Buyer for fraudulent
misrepresentation or for death or personal injury resulting from Carlton’s
negligence.
10.3
Except in respect
of any loss or damage caused by Carlton’s negligence, the Buyer undertakes to
indemnify Carlton against any loss, costs, claims, damages, expenses, fees or
other sums Carlton may incur relating to the Buyer’s breach of the Contract.
11 Termination
11.1 Carlton may end the
Contract or suspend any further deliveries of the Goods immediately if one of
the events at Condition 6.5 applies, or on not less than three months written
notice to the Buyer.
11.2
The Buyer can end
the Contract by giving not less than three months' written notice to Carlton.
11.3 On the ending of the
Contract the Buyer and any connected or associated company (including any
subsidiary, holding or other group company) must immediately pay to Carlton all
monies which the Buyer owed to Carlton under the Contract and on any account of
whatever nature and Carlton may also exercise its rights under Condition 6.6.
12 “Force Majeure”
12.1 Carlton reserves
the right to defer the date of delivery, to cancel the Contract, to reduce the
volume of the Goods ordered (without liability to the Buyer) if Carlton is
prevented from or delayed in the carrying on of Carlton’s business due to
circumstances beyond its reasonable control including, without limitation,
strikes, lock outs or other industrial disputes (whether involving the workforce
of the Seller or of any other party), act of God, government actions, war riot,
hostilities (whether war be declared or not), armed conflict, terrorist attack,
terrorist activity, nuclear, chemical or biological contamination, sonic boom,
civil commotion, invasion, revolution, malicious damage, compliance with any law
or governmental order, rule, regulation or direction, accident, power failure,
breakdown of plant or machinery, fire, flood, storm, disease, epidemic, default
of suppliers or subcontractors, difficulties or increased expense in obtaining
raw materials, labour, fuel, parts of machinery, or import or export regulations
or embargoes. If the event in question continues for a continuous period in
excess of 20 days either Carlton or the Buyer shall be entitled to give each
other written notice to end the Contract.
13 General
13.1 Any notice required or permitted to be given by either party to the other
under these Conditions 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 and may be delivered personally or by fax, first class
recorded delivery post or first class air mail letter. A notice shall be deemed
to have been served (if personally delivered) at the time of delivery or (if
sent by first class recorded delivery post) 48 hours after posting or (if sent
by first class air mail letter) 96 hours after posting or (if sent by fax) at
the time of transmission.
13.2
The Buyer cannot assign, transfer,
charge or deal in any other manner with the Contract or any of its rights under
it, nor purport to do any of the same, nor subcontract any or all of its
obligations under the Contract without having obtained Carlton’s prior written
consent.
13.3 Carlton shall be entitled to assign its rights under the Contract and sub
contract any or all of its obligations under the Contract to any third party.A
person who is not a party to the Contract has no rights under the Contracts
(Rights of Third Parties) Act 1999 to enforce any terms of the Contract but this
does not affect any right or remedy of a third party which exists or is
available apart from the Act.
13.4 No waiver by Carlton of any breach by the Buyer of the Contract shall be
considered as a waiver of any subsequent breach of the same or any other
provision.
13.5
No failure by Carlton to exercise
or delay in exercising any right or remedy under the Contract shall constitute a
waiver of that right or remedy.
13.6
Except in respect of any undisputed
credit or payment due and owing by Carlton to the Buyer, the Buyer shall pay all
amounts due under the Contract in full without any deducting or withholding any
money other than as required by law and shall not be entitled to assert any
credit, set off or counterclaim against Carlton in order to justify withholding
payment of any such amount in whole or in part.
13.7
If any of these Conditions is, or
at any stage in the future becomes invalid, illegal or cannot be enforced in
law, it will not affect the other terms which will stay in force.
13.8 If there is a dispute between Carlton and the Buyer, both agree that the
Courts of England and Wales will be the only courts with the power to deal with
the dispute and that English law will apply.