ARISTA (UK) LIMITED
t/a Oddies Textiles
TERMS AND CONDITIONS OF SALE
1.1 In these Conditions the following definitions apply:-
Business Day: means a day other than Saturday, Sunday and public holidays;
Buyer: means the person(s), firm or company who purchase Goods from the Seller;
Conditions: means the terms and conditions set out in this document and any special terms and conditions agreed in writing by the Seller;
Contract: means any agreement between the Seller and the Buyer for the sale and purchase of Goods incorporating these Conditions;
Delivery Date(s): means the date(s) specified by the Seller when the Goods are to be delivered;
Delivery Location: means the address for delivery of the Goods;
Goods: means the textile materials and any other items and documentation to be supplied by the Seller to the Buyer;
Force Majeure: means an event or sequence of events beyond a party’s reasonable control which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable which prevents or delays a party from performing its obligations under the Contract;
Price List: The Seller’s published Price List, which is updated from time to time and which is available on the Seller’s website or upon request;
Seller: Arista (UK) Limited trading as Oddies Textiles whose registered office is at Charter House, 18-20 Finsley Gate, Burnley, Lancashire, BB11 2HA, company registration number 01147853;
Value Added Tax: means value added tax under the Value Added Tax Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods.
1.2 Unless the context otherwise requires:
1.2.1 Each gender includes the others;
1.2.2 The singular includes the plural and vice versa;
1.2.3 References to the Contract include the Conditions, the order and its schedule (if any);
1.2.4 References to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.5 Clause headings do not affect their interpretation;
1.2.6 General words are not limited by example, and
1.2.7 References to any legislation will be constituted as a reference to that provision as amended, re-enacted or extended at the relevant time.
2. Application of these Terms and Conditions
2.1 These Conditions apply and form part of the Contract between the Seller and the Buyer. They supersede any previously issued terms and conditions of supply.
2.2 These Conditions apply to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 No variation of these Conditions will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Seller.
2.4 Any samples, drawings, descriptive matter, or advertising produced by the Seller and any illustrations contained in the Seller’s price list, catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 Each order by the Buyer to the Seller will be deemed to be an offer to purchase Goods and subject to the Conditions.
2.6 The Seller reserves the right at all times to reject any order, in whole or in part, at is sole discretion.
2.7 Any proposal or quotation by the Seller for the provision of Goods will be deemed to be:
2.7.1 An invitation to treat (and shall not be an offer) by the Seller to supply Goods on and subject to the Conditions; and
2.7.2 Valid for 14 days only from the date of issue.
2.8 A Contract will be formed upon the earliest occurrence of the following events:
2.8.1 Written or oral acceptance by the Seller of the Buyer’s order;
2.8.2 The execution of a specific written agreement by both the Seller and the Buyer; and
2.8.3 Acceptance of delivery of the Goods by the Buyer.
3. Price and Payment
3.1 The price for the Goods shall either be provided in a quotation from the Seller or if no quotation is provided, be in accordance with the Seller’s published Price List in force at the date of the Contract.
3.2 The price will be subject to VAT.
3.3 The price is payable prior to delivery or, if an alternative payment structure is agreed between the Seller and Buyer in writing, in accordance with that payment structure.
3.4 The Buyer will pay all invoices in full, without deduction or set-off in accordance with the terms recorded therein.
3.5 The Seller may, without limiting its other rights, charge interest on any sum not paid in full by the due date at the rate of 15 percent per annum and such interest will apply from the due date for payment until actual payment in full, whether before or after judgment.
3.6 The Seller may charge interest and compensation for late payment at the rates set out in The Late Payment of Commercial Debts (Interest) Act 1998.
3.7 The Seller may recover any costs incurred in taking legal action to recover sums due in the event that any sum is not paid in full by the due date.
4. Credit limit
4.1 The Seller may at its absolute discretion set and vary credit limits from time to time and withhold all further supplies if the Buyer exceeds such credit limit.
4.2 The Buyer’s credit facility will be suspended with immediate effect, at the absolute discretion of the Seller, in the event of repeated late payment.
5. The Goods
5.1 The quantity and description of the Goods shall be set out in the Seller’s invoice and/or delivery note.
6.1 Delivery takes place either:
6.1.1 At the Buyer’s premises or the address specified by the Buyer for delivery (if we are arranging carriage of the Goods) provided that the Goods are signed for on behalf of the Buyer at the point of delivery; or
6.1.2 At the Seller’s premises at the point of despatch (if the Buyer is collecting the Goods or arranging carriage or has requested delivery to a location where the Goods are not signed for on behalf of the Buyer).
6.2 Each delivery will be accompanied by a delivery note stating the details of the order.
6.3 Upon delivery the Buyer will:
6.3.1 Inspect the outer packaging of the delivery;
6.3.2 Compare the number of parcels delivered with the delivery note before accepting the delivery;
6.3.3 Report any damage to the outer packaging of the delivery or to the Goods that would be visible upon inspection to the Seller within 3 Business Days of the Delivery Date;
6.3.4 In the case of delivery by carrier, report any damage to the outer packaging of the delivery or to the Goods that would be visible upon inspection and/or any discrepancy in the number of parcels delivered compared with the delivery note to the carrier at the time of delivery.
6.4 The Seller will use its reasonable endeavours to meet Delivery Dates but such dates are approximates only, and time of delivery is not of the essence.
6.5 The Seller will not be liable for any delay in or failure of delivery caused by:
6.5.1 The Buyer’s failure to (i) make the Delivery Location available, (ii) prepare the Delivery Location in accordance with the Seller’s instructions as required for delivery of the Goods or (iii) provide the Seller with adequate instructions, for delivery or otherwise relating to the Goods;
6.5.2 The Buyer’s failure to collect the Goods from the Seller’s premises; or
6.5.3 An event of Force Majeure.
6.6 If the Buyer fails to accept delivery of or collect the Goods as provided in clause 6.1.1 or 6.1.2 within 5 Business Days of the Seller advising the Buyer that the Goods are available:
6.6.1 Delivery of the Goods will be deemed to have occurred at 4.00 pm on the fifth Business Day following such notification;
6.6.2 The Seller will store and insure the Goods pending delivery, and the Buyer will pay all costs and expenses incurred by the Seller in doing so.
6.7 If 5 Business Days after the due date for delivery or collection the Buyer has not taken delivery or collected them, the Seller may resell or otherwise dispose of the Goods. The Seller will:
6.7.1 Deduct reasonable storage charges and costs of resale; and
6.7.2 Account to the Buyer for any excess of the resale price over, or invoice the Buyer for any shortfall of the resale price below, the price paid by the buyer for the Goods.
7. Title and risk
7.1 Risk in the Goods will pass to the Buyer on delivery under clause 6.1.
7.2 Title to the Goods will pass to the Buyer once the Seller has received payment in full for the Goods.
7.3 Until title to the Goods have passed to the Buyer, the Buyer will:
7.3.1 Hold the Goods as bailee for the Seller;
7.3.2 Take all reasonable care of the Goods and keep them in reasonable condition;
7.3.3 Make no alteration or amendment to the Goods;
7.3.4 Shall not sell on the Goods to any third party;
8. Warranty and Liability
8.1 The period of warranty provided by the Seller (“the Warranty Period”) will be provided in the Seller’s quotation or will be limited to a period of six months. During the Warranty Period, the Goods will:
8.1.1 Conform in all material respects to its description and to any applicable specification;
8.1.2 Be free from material defects in design, material and workmanship;
8.1.3 Be of satisfactory quality within the meaning of the Sale of Goods Act 1979, as amended;
8.1.4 Be fit for any purpose held out by the Seller.
8.2 The above warranty is given by the Seller subject to the following conditions:-
8.2.1 The Seller shall be under no liability in respect of any defect in the Goods arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), or misuse;
8.2.2 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods have not been paid by the due date for payment;
8.2.3 The Seller shall be under no liability under clause 8.1 where the Buyer repairs, cuts or alters the Goods without the Seller’s prior written agreement;
8.2.4 The Seller shall be under no liability under clause 8.1 where the Buyer uses any of the Goods after notifying the Seller that they do not comply with clause 8.1.
8.3 The Seller will, at its option, replace or refund the price of defective Goods, provided that and subject to clause 8:-
8.3.1 The Buyer has complied with clause 6.3;
8.3.2 The Buyer informs the Seller in writing within 10 Business Days of delivery that some or all of the Goods do not comply with clause 8.1;
8.3.3 The Buyer gives the Seller a reasonable opportunity to examine the defective Goods.
9. Limitation of liability
9.1 The Seller does not exclude its liability:
9.1.1 For death or personal injury caused by its negligence; or
9.1.2 For breach of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982;
9.1.3 For defective products under the Consumer Protection Act 1987; or
9.1.4 For fraud or fraudulent misrepresentation.
9.2 The Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), 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.
9.3 The Seller’s total liability to the Buyer in respect of all other losses arising or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
9.4 The Seller does not provide washing or drying instructions in respect of the Goods supplied. The Buyer is responsible for ensuring that washing and/or drying of the Goods is undertaken at appropriate temperatures. The Seller accepts no responsibility for any damage caused by washing and/or drying.
10. Force Majeure
10.1 A party will not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
10.1.1 Promptly notifies the other of the Force Majeure event and its expected duration; and
10.1.2 Uses reasonable endeavours to minimise the effects of that event.
10.2 If, due to Force Majeure, the Seller:
10.2.1 Is or will be unable to perform a material obligation; or
10.2.2 Is delayed in or prevented from performing its obligations for a continuous period exceeding sixty days the Buyer may terminate this agreement on immediate notice.
11.1 The Contract may be terminated forthwith at any time by the Seller on written notice to the Buyer if:
11.1.1 The Buyer commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or is not remedied within 15 Business Days of written notice to do so;
11.1.2 The Buyer suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;
11.1.3 The Buyer (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposals to or compounds with its creditors in respect of its debts or (c) makes an application to court for protection from its creditors generally;
11.1.4 The Buyer passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the other; or a winding-up order is made in relation to the other;
11.1.5 A receiver or administrative receiver may be or is appointed to the Buyer or any of its assets;
11.1.6 Any creditor of the Buyer attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Buyer’s assets, and such attachment or process is not discharged within 14 days;
11.1.7 The Buyer takes or suffers any action similar to any of the above in any jurisdiction;
11.1.8 There is a material change in the management, ownership or control of the Buyer;
11.1.9 The Buyer suspends trading, ceases to carry on business, or threatens to do either;
11.1.10 The Buyer, (being an individual), dies or ceases to be capable of managing his own affairs; or
11.1.11 The Buyer is subject to an event of Force Majeure under clause 10.
11.2 In addition to its rights under clause 11.1 the Seller may terminate the Contract forthwith at any time if the Buyer has failed to pay any amount due under the Contract on the due date.
11.3 On termination of the Contract for any reason:
11.3.1 The Buyer will within 10 Business Days pay all invoices of the Seller that have not yet been paid and are not disputed in good faith;
11.3.2 The Seller will, within 10 Business Days, invoice the Buyer for all Goods delivered or provided but not yet invoiced and the Buyer will pay such invoices within a further 10 Business Days (unless the invoice is disputed in good faith);
11.3.3 The Buyer will forthwith return any Goods of the Seller then in its possession or control; if it fails to do so, the Seller may enter onto any premises owned by or under the control of the Buyer and take possession of the Goods;
11.3.4 The Buyer will be responsible for payment of the Seller’s costs of collecting the Goods, together with any costs and expenses incurred by the Seller in collecting any sums due, including any storage, insurance, repair, re-marketing and legal costs;
11.3.5 The accrued rights and liabilities of the parties will not be affected; and
11.3.6 Any clause which expressly or by implication are to survive termination will do so.
12.1 Time: Unless stated otherwise, time is not of the essence of any date or period specified in these Conditions.
12.2 No set-off: All payments by the Buyer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
12.3 Relationship: The parties are independent businesses and not principal and agent, partners, or employer and employee.
12.4 Severability: If any part of these Conditions is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Conditions and the remaining provisions of the Conditions will otherwise remain in full force.
12.5 Waiver: No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
12.6 Rights of Third Parties: This Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
12.7 Priority: The terms of the Conditions prevail over those of the Order or Schedule (if any).
12.8 Entire Agreement: The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
12.9 Succession: This Contract will bind and benefit each party’s successors and personal representatives.
12.10 Governing Law and Jurisdiction:
12.10.1 This Contract will be governed by the law of England and Wales.
12.10.2 Disputes will be submitted to the exclusive jurisdiction of the courts of England and Wales.
Terms and Conditions of Sale issued February 2013.