Terms and Conditions of Sale
The buyer's attention is in particular drawn to the provisions
of condition 10.4.
1 Interpretation
1.1 The definitions and rules of interpretation in this condition
apply in these conditions. Acknowledgement of Order the acknowledgement
of order form provided by the Company and signed by the Buyer
Buyer the person, firm or company who purchases the Goods from
the Company. Company Lifestyle & Forbidden City UK Limited. Contract
any contract between the Company and the Buyer for the sale and
purchase of the Goods, incorporating these conditions. Delivery
Date the estimated date inserted on the Acknowledgement of Order.
Delivery Point the place where delivery of the Goods is to take
place under condition 4. Goods any goods agreed in the Contract
to be supplied to the Buyer by the Company (including any part
or parts of them).
1.2 A reference to a particular law is a reference to it as it
is in force for the time being taking account of any amendment,
extension, application or re-enactment and includes any subordinate
legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural
include the singular.
1.4 A reference to one gender includes a reference to the other
gender.
1.5 Condition headings do not affect the interpretation of these
conditions.
2 Application of Terms
2.1 Subject to any variation under condition 2.3 the Contract
shall be on these conditions to the exclusion of all other terms
and conditions.
2.2 No terms or conditions endorsed on, delivered with or contained
in the Buyer's purchase order, confirmation of order, specification
or other document shall form part of the Contract simply as a
result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company's sales and any
variation to these conditions and any representations about the
Goods shall have no effect unless expressly agreed in writing
and signed by Russell Stevens of the Company. The Buyer acknowledges
that it has not relied on any statement, promise or representation
made or given by or on behalf of the Company which is not set
out in the Contract. Nothing in this condition shall exclude or
limit the Company's liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the
Buyer from the Company shall be deemed to be an offer by the Buyer
to buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted
by the Company until a written Acknowledgement of Order (a Pi)
is issued by the Company or (if earlier) the Company delivers
the Goods to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any
applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall
come into existence until the Company despatches an Acknowledgement
of Order to the Buyer. Any quotation is valid for a period of
30 days only from its date, provided that the Company has not
previously withdrawn it.
2.8 The Buyer may within a maximum period of two days of placing
an order amend or cancel such order by written notice to the Company.
If the Buyer amends or cancels an order at any other time it shall
be required to pay a cancellation and administration charge to
the Buyer equal to a minimum of 30% of the total order value or,
if a Buyer has paid a 30% deposit, the Company shall be entitled
to retain such deposit monies in satisfaction of its cancellation
and administration charge. The cancellation and administration
charge will become due and payable within 7 days of the date upon
which the Company notifies the Buyer of such charge. In the event
that the Company's losses arising as a result of such amendment
or cancellation exceed 30% of the total order value, then the
Company reserves the right to claim such additional losses from
the Buyer on the same terms.
3 Description
3.1 The quantity and description of the Goods shall be as set
out in the Company's quotation or Acknowledgement of Order.
3.2 All samples, drawings, descriptive matter, specifications
and advertising issued by the Company and any descriptions or
illustrations contained in the Company's catalogues or brochures
are issued or published for the sole purpose of giving an approximate
idea of the Goods described in them. They shall not form part
of the Contract and this is not a sale by sample.
4 Delivery
4.1 Delivery of the Goods shall take place on the Delivery Date
on board the vessel to be notified to the Company by the Buyer
in writing (the "Vessel") lying at the port stated in the Acknowledgement
of Order. For the avoidance of doubt, 'on board the vessel' shall
mean when the Goods have passed the Vessel's rails. The Company
shall promptly notify the Buyer that the Goods have been delivered
aboard. Title to and risk in the Goods shall pass to the Buyer
upon such delivery being effected.
4.2 The Company shall promptly provide the Buyer with a clean
shipped bill of lading in respect of the Goods.
4.3 The Buyer shall reserve the necessary space on board the
Vessel and give the Company due notice of the loading berth and
any revised delivery dates to the Vessel. The Buyer shall bear
all risks of loss, damage, theft and/or destruction to the Goods
and is responsible for all costs and insurance associated with
the transportation of the Goods after delivery, including, without
limitation, the cost of the Vessel and onward transportation to
the Buyer's storage facility or place of business.
4.4 The Buyer shall bear any additional costs caused due to the
failure of the Vessel to be available to load the Goods on the
Delivery Date.
4.5 Subject to the other provisions of these conditions the Company
shall not be liable for any direct, indirect or consequential
loss (all three of which terms include, without limitation, pure
economic loss, loss of profits, loss of business, depletion of
goodwill and similar loss), costs, damages, charges or expenses
caused directly or indirectly by any delay in the delivery of
the Goods (even if caused by the Company's negligence), nor shall
any delay entitle the Buyer to terminate or rescind the Contract
unless such delay exceeds 180 days.
4.6 If for any reason the Buyer fails to accept delivery of any
of the Goods when they are ready for delivery, or the Company
is unable to deliver the Goods on time because the Buyer has not
provided appropriate instructions, documents, licences or authorisations
(including, without limitation, the information to be provided
pursuant to condition 4.3):
4.6.1 risk in the Goods shall pass to the Buyer (including
for loss or damage caused by the Company's negligence);
4.6.2 the Goods shall be deemed to have been delivered; and
4.6.3 the Company may store the Goods until delivery, whereupon
the Buyer shall be liable for all related costs and expenses
(including, without limitation, storage and insurance).
4.7 The Buyer shall provide at the Delivery Point and at its
expense adequate and appropriate equipment and manual labour for
loading the Goods.
4.8 If the Company delivers to the Buyer a quantity of Goods
of up to 10% more or less than the quantity accepted by the Company,
the Buyer shall not be entitled to object to or reject the Goods
or any of them by reason of the surplus or shortfall and shall
pay for such goods at the pro rata Contract rate.
5 Non-Delivery
5.1 The quantity of any consignment of Goods as recorded by the
Company upon despatch from the Company's place of business shall
be conclusive evidence of the quantity received by the Buyer on
delivery unless the Buyer can provide conclusive evidence proving
the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods
(even if caused by the Company's negligence) unless the Buyer
gives written notice to the Company of the non-delivery within
3 days of the date when the Goods would in the ordinary course
of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods
shall be limited to replacing the Goods within a reasonable time
or issuing a credit note at the pro rata Contract rate against
any invoice raised for such Goods.
6 Risk/Title
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until
the Company has received in full (in cash or cleared funds) all
sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company
from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the
Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company's
bailee;
6.3.2 not destroy, deface or obscure any identifying mark or
packaging on or relating to the Goods; and
6.3.3 maintain the Goods in satisfactory condition and keep
them insured on the Company's behalf for their full price against
all risks to the reasonable satisfaction of the Company. On
request the Buyer shall produce the policy of insurance to the
Company.
6.4 The Buyer may not resell the Goods before ownership has passed
to it.
6.5 The Buyer's right to possession of the Goods shall terminate
immediately if:
6.5.1 the Buyer has a bankruptcy order made against him or
makes an arrangement or composition with his creditors, or otherwise
takes the benefit of any statutory provision for the time being
in force for the relief of insolvent debtors, or (being a body
corporate) convenes a meeting of creditors (whether formal or
informal), or enters into liquidation (whether voluntary or
compulsory) except a solvent voluntary liquidation for the purpose
only of reconstruction or amalgamation, or has a receiver and/or
manager, administrator or administrative receiver appointed
of its undertaking or any part thereof, or documents are filed
with the court for the appointment of an administrator of the
Buyer or notice of intention to appoint an administrator is
given by the Buyer or its directors or by a qualifying floating
charge holder (as defined in paragraph 14 of Schedule B1 to
the Insolvency Act 1986), or a resolution is passed or a 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
or possible insolvency of the Buyer; or
6.5.2 the Buyer suffers or allows any execution, whether legal
or equitable, to be levied on his/its property or obtained against
him/it, or fails to observe or perform any of his/its obligations
under the Contract or any other contract between the Company
and the Buyer, or is unable to pay its debts within the meaning
of section 123 of the Insolvency Act 1986 or the Buyer ceases
to trade; or
6.5.3 the Buyer encumbers or in any way charges any of the
Goods.
6.6 The Company shall be entitled to recover payment for the
Goods notwithstanding that ownership of any of the Goods has not
passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an
irrevocable licence at any time to enter any premises where the
Goods are or may be stored in order to inspect them, or, where
the Buyer's right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods
are the goods in respect of which the Buyer's right to possession
has terminated, the Buyer shall be deemed to have sold all goods
of the kind sold by the Company to the Buyer in the order in which
they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, the Company's
(but not the Buyer's) rights contained in this condition 6 shall
remain in effect.
7 Price
7.1 Unless otherwise agreed by the Company in writing, the price
for the Goods shall be the price set out in the Company's price
list published on the Delivery Date or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added
tax and all costs or charges in relation to packaging, loading,
unloading, carriage and insurance, all of which amounts the Buyer
shall pay in addition when it is due to pay for the Goods.
8 Payment
8.1 With the exception of a Buyer who transacts with the Company
on an insured basis, a 30% deposit of the total price for the
Goods is payable by the Buyer immediately upon receipt of the
Company's acceptance of the Buyer's order and, subject to condition
8.5, the balance or, in the case of a Buyer who transacts on an
insured basis, full payment, is due when delivery is made in accordance
with condition 4.
8.2 Subject to condition 8.5, where agreed by the Company payment
of the price of the Goods shall be secured by an irrevocable letter
of credit satisfactory to the Company, established by the Buyer
in favour of the Company immediately upon receipt of the Company’s
acceptance of the Buyer's order and confirmed by a United Kingdom
bank acceptable to the Company. The letter of credit shall be
for the price payable for the Goods (together with any tax or
duty payable) to the Company and shall be valid for six months.
The Company shall be entitled to immediate cash payment on presentation
to such United Kingdom bank of the documents specified in the
letter of credit.
8.3 Payment of the price for the Goods shall be payable in US
dollars or such other currency as communicated to the Buyer by
the Company in writing.
8.4 Time for payment shall be of the essence and no payment shall
be deemed to have been received until the Company has received
cleared funds.
8.5 All payments payable to the Company under the Contract shall
become due immediately on its termination despite any other provision.
8.6 The Buyer shall make all payments due under the Contract in
full without any deduction whether by way of set-off, counterclaim,
discount, abatement or otherwise.
8.7 If the Buyer fails to pay the Company any sum due pursuant
to the Contract, the Buyer shall be liable to pay interest to
the Company on such sum from the due date for payment at the annual
rate of 4% above the base lending rate from time to time of National
Westminster Bank plc, accruing on a daily basis until payment
is made, whether before or after any judgment. The Company reserves
the right to claim interest under the Late Payment of Commercial
Debts (Interest) Act 1998.
9 Quality
The Company shall endeavour to transfer to the Buyer the benefit
of any warranty or guarantee given to the Company.
10 Limitation of Liability
10.1 Subject to condition 4 and condition 5, the following provisions
set out the entire financial liability of the Company (including
any liability for the acts or omissions of its employees, agents
and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of these conditions;
10.1.2 any use made or resale by the Buyer of any of the Goods,
or of any product incorporating any of the Goods; and
10.1.3 any representation, statement or tortious act or omission
including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute
or common law (save for the conditions implied by section 12 of
the Sale of Goods Act 1979) are, to the fullest extent permitted
by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability
of the Company:
10.3.1 for death or personal injury caused by the Company's
negligence; or
10.3.2 under section 2(3), Consumer Protection Act 1987; or
10.3.3 for any matter which it would be illegal for the Company
to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3:
10.4.1 the Company's total liability in contract, tort (including
negligence or breach of statutory duty), misrepresentation, restitution
or otherwise, arising in connection with the performance or contemplated
performance of the Contract shall be limited to the Contract price;
and
10.4.2 the Company shall not be liable to the Buyer for any pure
economic loss, loss of profit, loss of business, depletion of goodwill
or otherwise, in each case whether direct, indirect or consequential,
or any claims for consequential compensation whatsoever (howsoever
caused) which arise out of or in connection with the Contract.
10.5 In the event of any dispute as to the condition of Goods the
Buyer will only investigate such dispute if:
10.5.1 the Buyer provides written notice and photographic
evidence (taken when the Goods are delivered (i.e. the Goods pass
the Vessel’s rails)) of the defect to the Company within
7 days of the receipt of the Goods by the Buyer, or within 7 days
of the defect being discovered where the defect could not reasonably
have been discovered earlier; and
10.5.2 the Company is given a reasonable opportunity after receiving
the notice of examining such Goods and the Buyer (if asked to
do so by the Company) returns such Goods to the Company's place
of business at the Company's cost for the examination to take
place there.
10.6 The Company shall not be liable for any damage to Goods if:
10.6.1 the damage is sustained after the date of delivery
in accordance with condition 4.1; or
10.6.2 the Buyer makes any further use of such Goods after giving
such notice; or
10.6.3 the damage arises because the Buyer failed to follow the
Company's oral or written instructions as to the storage, installation,
commissioning, use or maintenance of the Goods or (if there are
none) good trade practice; or
10.6.4 the Buyer alters or repairs such Goods without the written
consent of the Company.
11 Import and Export Licences
11.1 The Company is responsible at its expense for obtaining any
export licences required pursuant to this Contract.
11.2 The Buyer is responsible at its expense for obtaining any import
licences required pursuant to this Contract.
12 Assignment
12.1 The Company may assign the Contract or any part of it to any
person, firm or company.
12.2 The Buyer shall not be entitled to assign the Contract or any
part of it without the prior written consent of the Company.
13 Force Majeure
The Company reserves the right to defer the date of delivery or
to cancel the Contract or reduce the volume of the Goods ordered
by the Buyer (without liability to the Buyer) if it is prevented
from or delayed in the carrying on of its business due to circumstances
beyond the reasonable control of the Company including, without
limitation, acts of God, governmental actions, war or national emergency,
acts of terrorism, protests, riot, civil commotion, fire, explosion,
flood, epidemic, lock-outs, strikes or other labour disputes (whether
or not relating to either party's workforce), or restraints or delays
affecting carriers or inability or delay in obtaining supplies of
adequate or suitable materials, provided that, if the event in question
continues for a continuous period in excess of 28 days, the Buyer
shall be entitled to give notice in writing to the Company to terminate
the Contract.
14 General
14.1 Each right or remedy of the Company under the Contract is without
prejudice to any other right or remedy of the Company whether under
the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal
or administrative body of competent jurisdiction to be wholly or
partly illegal, invalid, void, voidable, unenforceable or unreasonable
it shall to the extent of such illegality, invalidity, voidness,
voidability, unenforceability or unreasonableness be deemed severable
and the remaining provisions of the Contract and the remainder of
such provision shall continue in full force and effect.
14.3 Failure or delay by the Company in enforcing or partially enforcing
any provision of the Contract shall not be construed as a waiver
of any of its rights under the Contract.
14.4 Any waiver by the Company of any breach of, or any default
under, any provision of the Contract by the Buyer shall not be deemed
a waiver of any subsequent breach or default and shall in no way
affect the other terms of the Contract.
14.5 The parties to the Contract do not intend that any term of
the Contract shall be enforceable by virtue of the Contracts (Rights
of Third Parties) Act 1999 by any person that is not a party to
it.
14.6 The formation, existence, construction, performance, validity
and all aspects of the Contract shall be governed by English law
and the parties submit to the exclusive jurisdiction of the English
courts.
15 Communications
15.1 All communications between the parties about the Contract shall
be in writing and delivered by hand or sent by pre-paid first class
post or sent by fax:
15.1.1 (in case of communications to the Company) to
its registered office or such changed address as shall be notified
to the Buyer by the Company; or
15.1.2 (in the case of the communications to the Buyer) to the
registered office of the addressee (if it is a company) or (in
any other case) to any address of the Buyer set out in any document
which forms part of the Contract or such other address as shall
be notified to the Company by the Buyer.
15.2 Communications shall be deemed to have been received:
15.2.1 if sent by pre-paid first class post, two days
(excluding Saturdays, Sundays and bank and public holidays) after
posting (exclusive of the day of posting); or
15.2.2 if delivered by hand, on the day of delivery; or
15.2.3 if sent by fax on a working day prior to 4.00 pm, at the
time of transmission and otherwise on the next working day.
15.3 15.3 Communications addressed to the Company shall be marked
for the attention of Russell Stevens.
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