Standard Conditions of Sale
In these conditions, unless the context requires otherwise:
- 1.1 'Buyer' means the person who buys or agrees to buy the goods from the Seller;
- 1.2 'Conditions' means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
- 1.2 'Contract' means the contract for purchase and sale of the Goods under these Conditions
- 1.3 'Delivery Date' means the date specified by the Seller when the goods are to be delivered;
- 1.4 'Goods' means the items which the Buyer agrees to buy from the Seller;
- 1.5 'Price' means the price for the Goods excluding carriage, packing, insurance and VAT; and
- 1.6 'Seller' means Total Merchandise Limited of Suite 1, The Centre, The Crescent, Colchester Business Park, Colchester, CO4 9QQ .
- 1.7 'Sales Order Confirmation' means the Seller's written confirmation of an order by the Buyer for the purchase of goods.
2 Conditions applicable
- 2.1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, Sales Order Confirmation or similar document.
- 2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
- 2.3 The placing by the Buyer of an order for the purchase of the Goods shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions.
- 2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
3. Seller's Representations
- 3.1 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any representations which are not so confirmed.
3.2 Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods. An order placed by the Buyer may not be withdrawn cancelled or altered prior to acceptance by the Seller and no contract for the sale of the Goods shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the Goods or has accepted an order placed by the Buyer by whichever is the earlier of:-
- (a) the Seller's written acceptance (including Sales Order Confirmation);
- (b) delivery of the Goods; or
- (c) the Seller's invoice
- 3.3 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
4. Orders and Specifications
- 4.1 No order submitted by the Buyer shall be deemed accepted by the Seller unless confirmed in writing by the Seller's authorised representatives.
- 4.2 The quantity and specification of the Goods shall be those set out in the Seller's Sales Order Confirmation unless varied expressly in the Buyer's order and accepted in writing by the Seller.
- 4.3 The Goods will only be supplied in the minimum units (or multiples) stated in the Seller's price list or as specified. Orders received for quantities other than these will be adjusted accordingly, illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Seller are intended as a guide only and shall not be binding on the Seller.
- 4.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
- 4.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller on the terms that the Buyer shall indemnify the Seller 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 Seller as a result of the cancellation.
- 4.6 It is the Buyer's responsibility to check the PDF visual proof. The Seller shall not be liable for any loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Buyer as a result of errors in printed artwork where those errors were evident within the PDF visual proof approved by the Buyer and the artwork was printed in accordance with that approved PDF visual proof.
- 4.7 Where the Buyer specifies that any printed artwork design etc (or any part thereof) is to match a specified Pantone reference the Buyer is aware that the colour of finished print may appear different from the specified Pantone reference depending upon the nature of the substrate printed upon and the Seller shall not be liable for any loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Buyer in this regard. In all such cases the Buyer should obtain a pre-production sample.
- 4.8 The Buyer uses all reasonable efforts to ensure that the product descriptions on their website are accurate however the Buyer is advised in all cases to request samples.
5. Price and payment
- 5.1 The Price shall be the Seller's price as listed in the Sales Order Confirmation or such other price as may be agreed in writing between the parties.
- 5.2 Where the Seller has quoted a price for the Goods other than in accordance with the Seller's published price list, the price quoted shall be valid for 30 days only or such lesser time as the Seller may specify.
- 5.3 The Seller reserves the right, by giving 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 Seller which is due to any factor beyond the control of the Seller, (which can include [but will not be limited to], any foreign exchange fluctuation, alteration of duties, significant increases in the costs of labour, materials or other costs of manufacture), any change in the Delivery Date, quantity or specification 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 Seller adequate and /or accurate information or instructions.
- 5.4 The Price is exclusive of any applicable VAT excise, sales or taxes or levies of a similar nature which are imposed or charges by any competent fiscal authority in respect of the Goods which the Buyer shall be additionally liable to pay the Seller.
- 5.5 Payment of the Price and VAT shall be due within 30 days of the date of the invoice or in accordance with such credit term as may have been agreed in writing between the parties in respect of the Contract. Time for payment shall be of the essence.
5.6 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
- (a) cancel or suspend any further deliveries to the Buyer;
- (b) appropriate any payment made by the Buyer to such of the Goods (or any goods supplied under any other contract between the Buyer and Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer).
- 5.7 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 4% above the Bank of England Base Rate base rate from time to time in force and shall accrue at such a rate after as well as before any judgment.
- 5.8 Receipts will be issued upon request only.
- 5.9 The Seller is not obliged to accept orders from customers who have not supplied the Seller with references to the satisfaction of the Seller.
- 5.10 if at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and notwithstanding condition 5.5 all amounts owing by the Buyer to the Seller shall be immediately payable in cash.
6. Warranties and liability
The Seller warrants that the Goods supplied will at the time of delivery correspond to the description given by the Seller. All other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.
- 7.1 Delivery of the Goods shall be made to the Buyer's address as specified in the Buyers order on the Delivery Date. If the Buyer's address is outside the United Kingdom the Buyer must first seek confirmation from the Seller that the Goods can be delivered prior to placing an order. If no address is provided on the order the Buyer must collect the Goods from the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection.
- 7.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
- 7.3 The Goods may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Buyer. The Buyer shall make all arrangements to take delivery of the Goods whenever they are tendered for delivery.
- 7.4 If the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more instalments shall not entitle the Buyer to treat the Contract as repudiated.
8. Acceptance of the Goods
- 8.1 The Buyer shall be deemed to have accepted the Goods 24 hours after delivery to the Buyer.
- 8.2 After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the Contract.
9.1 If the Seller fails to deliver the Goods or any of them on the Delivery Date other than for reasons outside the Seller's reasonable control including by fault of the Buyer or carrier the following shall apply:-
- (a) If the Seller delivers the Goods at any time thereafter the Seller shall have no liability in respect of such late delivery;
- (b) if the Buyer gives written notice to the Seller within 7 working days after the Delivery Date and the Seller fails to deliver the Goods within 7 working days after receiving such notice the Buyer may cancel the order and the Seller'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 those not delivered over the price of the Goods not delivered.
- 9.2 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
- 9.3 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 3 months of the Delivery Date
- 9.4 If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instruments, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods. Delivery will be deemed to have taken place and the Buyer shall immediately pay to the Seller the costs and expenses including storage and insurance charges arising from such failure.
- 10.1 The Buyer is under a duty to inspect the Goods on delivery or collection whenever possible.
- 10.2 Where the Goods have not been examined the carriers note or such other note as appropriate shall be marked "not examined".
- 10.3 The Seller will be under no liability for any damage or shortages that would be apparent on reasonable careful inspection of the Goods, and in any event will be under no liability if a written complaint is not delivered to the Seller within 7 days of delivery detailing the alleged damage or shortage.
- 10.4 In all cases where defects or shortages are complained of the Seller shall be under no liability in respect thereof unless the Buyer allows the Seller to inspect the Goods as supplied before they are used, altered or modified by the Buyer.
- 10.5 Subject to conditions 10.3 and 10.4 the Seller shall make good any shortage in the Goods and where appropriate replace any goods damaged in transit as soon as it is reasonable to do so but otherwise shall be under liability whatsoever arising from damage or shortage.
11. Title and risk
11.1 Risk shall pass at:
- (a) the time when the Seller notifies the Buyer that the Goods are available for collection if the Goods are to be delivered at the Seller's premises; or in every other case
- (b) the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
- 11.2 Following delivery, the Goods shall remain the sole and absolute property of the Seller until payment for them has been made by the Buyer in full including all monies owed to the Seller from the Buyer regardless of how the indebtedness arose.
- 11.3 Until payment has been made to the Seller in accordance with these conditions, the Buyer shall be in possession of the Goods as bailee for the Seller and the Buyer will store the Goods separately and in an appropriate environment so that they are identifiable as being supplied by the Seller. The Buyer will insure the Goods against all reasonable risks.
- 11.4 The Buyer will not pledge or in any way charge the Goods which remain the property of the Seller. If the Buyer does so charge or pledge the Goods all money owing from the Buyer to the Seller shall become immediately payable.
- 11.5 The Seller reserves the right to repossess any Goods in which the Seller retains title without notice. The Buyer irrevocably authorises the Seller to enter the Buyer's property during normal working hours for the purpose of repossessing the Goods in which the Seller retains title and inspecting the Goods to ensure compliance with the storage and identification requirements.
- 12.1 The Seller may assign the Contract to any person, firm or company.
- 12.2 The Buyer may not assign the Contract without the prior written consent of the Seller.
13. Limitation of Liability
- 13.1 The Seller shall be under no liability whatsoever to the Buyer for any indirect loss and/or expense including loss of profit) suffered by the Buyer arising out of a breach by the Seller of this contract.
- 13.2 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
14. Buyer's Default
If the Buyer:
- (a) commits or permits any material breach of his obligations under these conditions;
- (b) enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with his creditors;
- (c) is or becomes the subject of a bankruptcy order takes advantage of any other statutory provision for the relief of insolvent debtors;
- (d) convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed in respect of its assets or undertakings or any part thereof, a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency of the Buyer;
the Seller will be entitled to cancel or suspend any further deliveries to the Buyer; appropriate any payment made by the Buyer to such of the Goods (including goods supplied under any other contract between the Buyer and Seller) as the Seller thinks fit and charge interest in accordance with condition 5.6. If the Buyer is in possession of the Goods this right will terminate and the Seller may enter the Buyers property in accordance with condition 11.5.
15.1 The Buyer agrees that it will:
- (a) regard as confidential the Contract and all information relating to the Contract and that it will not use or disclose such information to any third party without the Seller's prior written consent;
- (b) not use or authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller owns or is licensed to use;
- (c) not use all reasonable endeavours to ensure compliance with this Condition by its employees, servants and agents.
- 15.2 This Condition will remain in force after the Contract is completed.
- 16.1 All communications under the Contract shall be in writing and delivered by hand, sent by pre-paid first class post, fax or electronic mail. The Seller's address will be that provided to the Buyer on the quotation or as advised to the Buyer from the Seller. The Buyer's address will be that noted on the order or as advised to the Seller from the Buyer.
16.2 Communications shall be deemed to have been received:
- (a) two working days after posting if sent by pre-paid post;
- (b) on the day of delivery if delivered by hand;
- (c) if sent by fax or electronic mail on a working day prior to 4:00 pm, at the time of transmission and if after 4:00 on the next working day.
- 16.3 Unless the Buyer is specifically advised otherwise all communication to the Seller shall be addressed to Michelle Rae.
No omission by the Seller whether by way of indulgence or otherwise or failure to enforce the Seller's rights shall be construed as a waiver of any of the Seller's rights.
If any of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provision of these Conditions shall remain in full force and effect.
19. Third Party Rights
A person who is not a party to the Contract will have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
20. Proper law of contract
This contract is subject to the law of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English Courts.