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TERMS AND CONDITIONS
In these terms and 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 and as amended from time to time (including any necessary “Brexit clauses”).
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 13.
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 (email shall suffice).
Specification: any description of the Goods, including fabric composition, physical properties and any related shades or designs.
Supplier: Dugdale Bros. & Co. Limited, registered in England and Wales.
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes emails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to 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 (and will not rely) 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 Any samples, drawings or advertising produced by Supplier and any descriptions and / or illustrations contained in the Supplier’s catalogues, brochures or websites are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.7 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 Specification, Supplier’s collection book and / or in accordance with Supplier’s sample (if provided).
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 Contract, the Supplier shall own all intellectual property rights in such Goods unless otherwise agreed in writing between the parties.
4.2 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 and / or the Specification. These may be expressed or implied, including but not limited to compliance with instructions from the Customer in relation to tartan design services and / or Goods 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 (or shall arrange for a third party to deliver) the Goods to the location set out on the Order or other such location as the parties may agree at any time after the Supplier has notified the Customer that the Goods are ready prior to despatch (the “Delivery Address”).
5.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Address or if applicable, at the time the Customer collects such Goods from Supplier.
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 (as defined below) 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 If the Customer fails to take delivery of the Goods within three (3) Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
5.7 If ten (10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and charge the Customer for any shortfall below the price of the Goods.
5.8 The Supplier will not be liable for Goods that have been amended in any way, cut, subjected to any chemical treatment or processed in any way after delivery.
5.9 The Customer accepts that the quantity of the Goods supplied in bulk (50+ metres of fabric) may be considered supplied in full if such quantities of the Goods supplied are 10% plus or minus the quantity of Goods ordered. The Customer will be invoiced for the actual quantity delivered.
5.10 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.
5.11 With prior arrangement, and only where agreed by Supplier in writing, the Supplier will hold Goods up to a maximum of 6 months, on a scheduled basis which will be delivered in relation to clause 5.10.
5.12 Should the time allowance in clause 5.11 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 do not 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 any other process, or otherwise.
6.3 The Supplier reserves the right to levy a handling charge of 20% of the price of the Goods.
7.1 The Customer will not, without the Supplier’s prior written permission:
(a) export any Goods to which these Conditions apply, or supply them for export to any territory which is not within the European Union (the “EU”); or
(b) advertise, canvas or otherwise attempt to sell any Goods in, or for export to, any territory which is not within the EU; or
(c) 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.
7.2 In instances where the Supplier has given prior written permission for the Customer to undertake any activities described in this paragraph 7, the United Kingdom customers purchasing the relevant Goods for export must (and the Customer will procure that they will) furnish proof to the Supplier of such export within sixty (60) days of taking delivery of the relevant Goods. Where such evidence is not available, the Supplier 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.
7.3 The Customer acknowledges that it is contrary to the marketing strategies of the Supplier and would have a detrimental effect on the Supplier’s business, if any Goods provided by Customer under these Conditions were to be resold by mail order. The Customer, therefore undertakes and agrees to indemnify Supplier, 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 Customer 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.
7.4 The following conditions will apply to any Customer wishing to sell the Supplier’s Goods via the internet:
(a) The reputation, brand, goodwill and/or image of the Supplier 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.
(b) Any third party goods / products being offered for sale on the same website as any of the Supplier’s Goods must not (in its sole and reasonable opinion) harm the Supplier’s brand, goodwill, image or reputation.
(c) Any photographs, banners or advertisement appearing on the same website as any of the Supplier’s Goods must not (in its sole and reasonable opinion) harm the Supplier’s brand, goodwill, image or reputation.
(d) The Supplier must be notified by the Customer in writing prior to the Customer offering any of the Supplier’s Goods for sale via the Customer’s website. In addition the Supplier 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 Supplier’s Goods on that website.
(e) Any reference to brand names, registered designs, trademarks, images, copyright or any other (registered or unregistered) intellectual property right owned by the Supplier should only be used on the website with the Supplier’s prior written approval.
(f) The Customer’s website must not contain any links or hypertext to any other websites.
8.1 The Supplier warrants that on delivery that 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.
8.2 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.
8.3 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 8.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 8.2(a);
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions without limitation but including the fabric care, storage and maintenance of the Goods and / or good trade practice regarding any of 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 and / or law.
8.4 Except as provided in this clause 8, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 8.1.
8.5 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.
8.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
8.7 The supplier reserves the right to withdraw Goods from its current price list without prior notice.
8.8 The Supplier provides no guarantee in respect to continuity of shade.
8.9 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.
9. TITLE AND RISK
9.1 The risk in the Goods shall pass to the Customer on completion of delivery or collection.
9.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full of cleared funds for the Goods.
9.3 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; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
9.4 The Customer may resell or use the Goods in the ordinary course of its business but at all times subject to paragraph 7 above. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
10. PRICE AND PAYMENT
10.1 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. The Supplier may, by giving notice to the Customer (email shall be sufficient), increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond Supplier’s control (including foreign exchange fluctuations, increased in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure or delay by the Customer to give the Supplier adequate or accurate information or instructions.
10.2 The price of the Goods is exclusive of the transport of the Goods, which shall be invoiced to the Customer (unless otherwise agreed).
10.3 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.
10.4 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery, or Supplier may request Customer to pay a deposit and / or instalment payments prior to delivery depending on the Order / Contract.
10.5 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.
10.6 If Customer fails to make any payment due to Supplier by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of four per cent (4%) per annum above base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
10.7 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.
10.8 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%.
11.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in paragraph 11.1(a) - (d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
11.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
11.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
11.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
11.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
12. LIMITATION OF LIABILITY
12.1 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;
12.2 Subject to clause 12.1:
(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.
13. 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 (but without limitation) 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.
14.1 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.
14.3 Third party rights – No one other than a party to the Contract shall have any right to enforce any of its terms.
(a) Customer agrees that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the Supplier, including the terms of any order, contract or agreement with the Supplier.
(b) Customer shall disclose such confidential information: (i) to its employees, officers or advisers who need to know such information for the purposes of exercising Customer’s rights and / or obligations but shall ensure that such persons comply with this clause 14.4; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.5 Entire Agreement
(a) These Conditions together with the Order / Order Confirmation constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. In the event that there is a conflict between the terms of the Conditions and the Order and / or Order Confirmation, then the Order and / or Order Confirmation shall take precedence but only to the extent necessary to resolve the conflicted point.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
14.6 Waiver – no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.7 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.
14.8 Governing law – these Conditions and any Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
14.9 Jurisdiction – each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.