DEFINITIONS “The Seller ” shall mean Diamond Furnishings “The Purchaser ” shall mean the other party to any quotation, offer, order, or contract for the sale of any goods by the Seller “Goods ” shall mean any products sold or services provided by the Seller to the Purchaser “Delivery Note ” shall mean the document accompanying the goods when they are collected by or delivered to the Purchaser by the Sellerʼs vehicle and on which the Purchaser signs for receipt of goods on delivery to or collection by it and which is then returned to the Seller. 1. GENERAL
(i) These Conditions alone shall govern and be incorporated in all transactions into which the Seller enters with the Purchaser.
(ii) These Conditions shall apply in place of and prevail over any terms or conditions which are inconsistent with them, contained or referred to in any documentation submitted by the Purchaser or in correspondence or elsewhere or implied by custom, practice or course of dealing unless specifically excluded or varied in writing by a director of the Seller and any purported provisions to the contrary are hereby excluded or extinguished.
(iii) Acceptance by the Purchaser of delivery by the Seller or collection by the Purchaser of any goods shall be deemed to constitute unqualified acceptance of these Conditions. (iv) If, subject to any contract of sale, which is subject to these Conditions, a contract of sale is made with the same Purchaser without reference to any conditions of sale or purchase, such contract, howsoever made, shall be deemed to be subject to these Conditions
(v) If any provision of these Conditions is held by a competent authority to be invalid or unenforceable in whole or in part, the remainder of these Conditions and, where applicable the remainder of the provision in question, shall not be affected thereby, but shall be severable.
(vi) Nothing in these Conditions or in the terms and conditions of any contract between the Seller and the Purchaser shall confer or purport to confer on any third party any benefit or right whatsoever which would otherwise be available under the Contracts (Rights of Third Parties) Act 1999. 2. QUOTATIONS PRICES AND ACCEPTANCE
(i) All prices listed in any magazine or catalogue of the Seller are correct at the time of publication of the current edition thereof. The Seller will make all reasonable efforts to ensure that goods are available at such prices. The Seller cannot be held responsible if supplies are unobtainable by it or otherwise unsaleable.
(ii) A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise the same at any time prior to the Sellerʼs acceptance of the Purchaserʼs order.
(iii) The Sellerʼs acceptance of the Purchaserʼs order (including telephone orders) shall be effective only where such acceptance is made on the Sellerʼs printed Order Acceptance form duly signed by an authorised representative of the Seller.
(iv) All prices quoted are subject to the addition of Value Added Tax at the rate current at the time of despatch. 3. PAYMENT TERMS
(i) Purchasers who wish to open credit facilities shall apply in writing to the Seller quoting the names and addresses of three current commercial referees and one Bankerʼs referee.
(ii) The Seller reserves the right to refuse any application for credit facilities without giving any reason.
(iii) Where a Purchaser has a credit facility with the Seller payment of invoices shall be made in full within 30 days of the date of the invoice. Time of payment shall be of the essence of all contracts between the Seller and the Purchaser. The Seller reserves the right to suspend the delivery of goods to the Purchaser where any amounts are overdue under any contract with the Purchaser until all such amounts have been paid.
(iv) Unless a Purchaser has an approved credit facility all goods must be paid for either by cash (or in the case of United Kingdom Purchasers only, cheque, Company Visa or Mastercard, bankerʼs draft, or letter of credit, and the Purchaser shall pay the price of the goods (without any deduction) on collection of the goods from the Seller, or if the goods are delivered by the Seller, within seven days of the date of the Sellerʼs invoice.
(v) Interest shall be payable on all overdue accounts at the rate of 2% per month to run from the due date for payment until receipt by the Seller of the full amount due whether or not proceedings are issued.
(vi) If in the reasonable opinion of the Seller the creditworthiness of the Purchaser shall have deteriorated to such an extent as to pose a serious risk that the Seller will not be paid in full for goods ordered by the Purchaser but not yet delivered the Seller may in its absolute discretion require full or partial payment for the goods prior to their being collected or delivered or the provision of security for payment in a form acceptable to the Seller. 4. RISK DELIVERY AND COLLECTION
(i) Risk for the goods shall pass to the Purchaser upon delivery, or if the goods are collected, upon collection.
(ii) From the time of delivery or collection until title to the goods passes to the Seller in accordance with Clause 5 herein the Purchaser shall insure the goods for their full value with a reputable insurer. Upon request the Purchaser shall use reasonable endeavours to have the Sellerʼs interest in the goods noted on the insurance policy. Until title to the goods passes to the Purchaser the Purchaser shall hold the proceeds of any claim on such insurance policy on trust for the Seller and shall upon demand account to the Seller for such proceeds.
(iii) The Seller gives delivery and collection times and dates referred to in any order acceptance form, quotation, or elsewhere, in good faith. However, they are estimates only, and shall not amount to any contractual obligation to deliver or make available for collection at the dates or times stated in any communication made by or on behalf of the Seller. Time for delivery or collection shall not be of the essence.
(iv) Upon delivery by the Seller or collection by the Purchaser the Purchaser shall check the goods so delivered and sign the Delivery Note for the goods; mark any discrepancies between goods ordered and goods delivered or collected on the Delivery Note prior to signing; refuse any goods found to be damaged and mark the Delivery Note accordingly.
(v) Any claims over damaged goods or discrepancies between goods ordered and goods delivered or collected must be submitted to the Seller with full particulars of the Order, the Delivery Note (which must have been signed after the goods have been examined), and any other relevant information in writing within two days of delivery, in default of which the Seller will not accept liability in relation to such claim.
(vi) If the Purchaser fails to take delivery of or collect goods tendered in accordance with a sales order or fails to take any action necessary on its part for delivery and/or shipment of the goods, the Seller shall be entitled to terminate the contract with immediate effect, to dispose of the goods as the Seller may determine, and to recover from the Purchaser any loss and additional costs incurred as a result of such failure (including without limitation) storage costs for the goods from the due date for delivery.
(vii) The Seller may effect delivery by instalments. Where delivery is made by instalments each instalment shall be treated as a separate contract governed by these Conditions. 5. RETENTION OF TITLE
(i) The goods shall remain the property of the Seller until such time as the buyer shall have paid to the Seller the agreed price (together with any accrued interest) for all goods, which the Purchaser has contracted to purchase from the Seller under any contract between the Seller and the Purchaser.
(ii) Until such payment the Purchaser shall hold the Sellerʼs goods in a fiduciary capacity as bailee thereof on behalf of the Seller and shall deliver the same up to the Seller upon demand and shall not deal with the Sellerʼs goods except in accordance with the written instructions of the Seller provided that if the Purchaser is in possession of the Sellerʼs goods with the Sellerʼs consent the Purchaser may in the ordinary course of its business sell the goods on condition that: (a) as between the Purchaser and its sub-purchaser the Purchaser shall sell the goods as principal and the Purchaser shall not and shall not be empowered to commit the Seller to any contractual relationship with or liability to the sub-purchaser or any other person. (b) as between the Seller and the Purchaser the Purchaser shall sell the goods in a fiduciary capacity as agent for the Seller; and (c) notwithstanding any agreed period of credit for payment of the price for the goods the Buyer shall pay the proceeds of such sales to the Seller forthwith upon receipt. (d) the Purchaser shall, until receipt by the Seller of the proceeds of sale of the goods, hold the proceeds in trust for the Seller and pay the proceeds into a bank account in the name of the Seller and the Purchaser shall not credit any moneys other than moneys received on the sale of such goods of the Seller to such account or draw on such account except for the purpose of paying to the Seller the price payable to the Seller and no other funds shall be credited to such account. Any interest accrued on such an account shall be payable to the Seller. (e) if the Purchaser has not been paid for the sale by it of goods belonging to the Seller it shall, if called upon to do so by the Seller, within seven days of such call, assign to the Seller all rights against the person or persons to whom it has supplied the Sellerʼs goods in respect of those goods.
(iii) The Purchaser will take proper care of the Sellerʼs goods and take all reasonable steps to prevent any damage to or deterioration of them.
(iv) Until the Purchaser becomes owner of the goods it will store them on its premises separately from its own goods and those of any other person and identify them by suitable marking or labelling as the goods of the Seller and will take all necessary steps fully to protect the interest of the Seller in the goods.
(v) Notwithstanding the provisions of this Clause 5 the Seller shall be entitled to bring proceedings against the Purchaser for the price of the goods in the event of non-payment by the Purchaser by the due date even though title to the goods has not passed to the Purchaser and shall have the right by notice to the Purchaser at any time after delivery to pass title in the goods to the Purchaser from the date of such notice.
(vi) The Purchaser acknowledges that before entering into an agreement for the purchase of any goods from the Seller it has expressly represented that it is not insolvent and has not committed any act of bankruptcy, or, being a company with limited or unlimited liability, knows of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver, administrative receiver, or liquidator, to petition for the winding up of the Purchaser or exercise any other rights over or against the Purchaserʼs assets.
(vii) The Seller reserves the right to repossess and re-sell any goods to which it has retained title and the Sellerʼs consent to the Purchaserʼs possession of the goods and any right the Purchaser may have to possession of the goods shall in any event cease if any sum owed by the Purchaser to the Seller (whether in respect of the goods or otherwise) is not paid by the Purchaser to the Seller by the date on which it is due, or the Purchaser commits a breach of any contract with the Seller, or the Purchaser becomes insolvent.
(viii) The Purchaser grants an irrevocable right and licence to the Seller and its servants and agents to enter upon all or any of the Purchaserʼs premises with or without vehicles during normal business hours for the purpose of inspecting and/or repossessing any goods to which it has retained title. This right and licence shall continue to subsist notwithstanding the termination for any reason of any contract which is subject to these conditions and is without prejudice to any accrued rights of the Seller under such contracts or otherwise 6. VARIATIONS IN QUANTITY
The Seller shall be deemed to have fulfilled its contractual obligations in respect of any goods ordered even though the quantity may be up to 20% more or less than the quantity in th 7. LIABILITY GUARANTEES AND WARRANTIES
(i) Without prejudice to the operation of any other condition herein any liability of the Seller shall be limited to and not exceed a sum equal to the purchase price of the defective, or damaged, or undelivered goods which give rise to such liability as determined by the net price invoiced to the Purchaser in respect of any occurrence or series of occurrences. In particular, the Seller shall not be liable for loss of profit caused to the Purchaser by a breach of contract on the part of the Seller or for any other consequential loss to the Purchaser howsoever caused.
(ii) Except where otherwise provided herein the Seller gives no guarantee or warranty in respect of goods supplied by the Seller in addition to those given by the manufacturer of such goods, and accepts no liability and gives no warranty in relation to defects in such goods, and in particular, but without prejudice to the generality of the foregoing, the Seller does not accept any liability in respect of fitness for purpose quality or merchantability of such goods, whether express or implied, statutory or otherwise. The term “satisfactory quality” implied under the Sale and Supply of Goods Act 1994 in contracts for the sale of goods shall be expressly excluded from all such contracts, which the Seller enters with the Purchaser.
(iii) The Seller will at its absolute discretion repair or replace any goods supplied by it, or refund the purchase price, which are defective in materials or workmanship at the time of delivery or collection provided that such defect would not have been apparent on inspection, and notice has been given of such defect within 14 days of the date of delivery or collection, and providing the Purchaser could not reasonably have ascertained that such defect existed, and the Purchaser or end-user has not dealt with the goods in such a way as to render their condition worse than when they were delivered.
(iv) The Seller shall not be liable for any loss, damage or liability of any kind suffered by any third party directly or indirectly caused by repairs or remedial work carried out without the Sellerʼs prior written approval and the Purchaser shall indemnify the Seller against any and all claims and costs arising out of such claims to the extent that such repairs or remedial work have been performed by the Purchaser or its agents.
(v) The Purchaser warrants that the goods will not be sold or distributed or otherwise dealt with unless the Purchaser has first applied to the goods such protective or other packaging and all such warnings, notices, statements or markings, and taken all such other precautions of whatsoever nature required by legislation and appropriate to preclude the making of any legal claim or prosecution on the grounds of failure to satisfy such legal requirements as may be in force from time to time, by any person who may use consume or be affected by the goods. The Purchaser shall fully indemnify the Seller against all claims, proceedings, costs and expenses in respect of any loss or damage of whatsoever nature suffered by the Seller or by any employee, former employee, beneficiary or contingent beneficiary of the Seller or of any other person or institution arising from any breach of this warranty or the use or misuse of the goods by the Purchaser or the Purchaserʼs employee, former employee, agent or sub-contractor. The Purchaser shall take out and maintain appropriate insurance cover against all liabilities that may arise under the terms of this indemnity and shall provide the Seller, upon request, with a certificate or other evidence of such insurance cover. 8. SAMPLES
Any samples supplied to the Purchaser are supplied solely for information and in no way import any express or implied conditions or warranties as to quality, description, fitness for purpose, or suitability, and the Purchaser shall be deemed to have satisfied itself as to such matters prior to ordering goods. 9. LIEN
The Seller shall retain a general lien on all goods and property owned by the Purchaser in the Sellerʼs possession (even if the Purchaser has paid for them in full) in satisfaction of the whole or part as the case may be of the unpaid price of any goods sold and delivered to the Purchaser or collected by the Purchaser under any contract between the Seller and the Purchaser. The Seller shall be entitled to offset any sum or sums owed by it to the Purchaser against any sums owed by the Purchaser to the Seller. 10. ASSIGNMENT
None of the rights of the Purchaser under these Conditions shall be assigned without the prior written consent of the Seller. 11. WAIVER
Failure by the Seller to exercise or enforce any of its rights herein shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of each right at any time thereafter. 12. NOTICES
Any notice pursuant to these conditions shall be in writing and be deemed to have been duly served if delivered personally or sent by pre-paid first class post (airmail if to an address outside the United Kingdom, or by fax or e-mail to the party concerned at its last known address, fax number or e-mail address. Notices delivered personally shall be deemed to have been received when delivered; notice sent by first class post shall be deemed to have been received two working days after being posted; notice sent by airmail shall be deemed to have been received seven working days after being posted; notice sent by fax or e-mail shall be deemed to have been received by 4pm on the day the fax or e-mail message has been sent, unless it was sent after 4pm in which case the notice will be deemed to have been received at 9am on the first working day thereafter. 13. GOVERNING LAW
These Conditions are subject to and shall be construed in accordance with the law of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.