ROSE HILL DESIGNS TERMS & CONDITIONS
(a) “the Purchaser” means the purchasing firm or customer whose Order is accepted by the Company.
(b) “the Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Company.
(c) “the Goods” means the articles which the Purchaser agrees to buy from the Company.
(d) “the Price” means the price for the Goods excluding carriage, packaging and VAT.
(e) “the Company” means Rose Hill Designs of 19 Dean House, Stamford Hill London N16 5TQ.
(f) “the Order” means any order or instructions by the Purchaser, to the Company to supply the Goods by whatever means communicated.
2 CONDITIONS APPLICABLE
(a) The Conditions shall apply to all contracts for the sale of Goods by the Company to the Purchaser to the exclusion of all other terms and conditions including any terms or conditions which the Purchaser may purport to apply under any purchase order confirmation of order or similar document.
(b) All Orders shall be deemed to be an offer by the Purchaser to purchase Goods pursuant to these Conditions.
(c) No Order submitted by the Purchaser shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company, including Orders made through the Company’s website or otherwise.
(d) Unless you are contracting as a consumer, no Order which has been accepted by the Company may be cancelled by the Purchaser except with the agreement in writing of the Company and on the terms that the Purchaser shall indemnify the Company 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 Company as a result of cancellation.
(e) Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Purchaser’s acceptance of these Conditions.
(f) Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company.
(g) If you are contracting as a consumer and wish to cancel an Order before it has been fulfilled. In the case of specific Goods made according to your request, unfortunately, because we make these Goods to your specific requirements, you will not be able to cancel an Order once it is made.
(a) Subject to the provisions of (b) below, the Price of the Goods shall be the price stipulated in the Company’s published price list current at the date of delivery of the Goods. The Price is exclusive of VAT (which shall be due at the rate ruling on the date of the VAT invoice) and carriage which shall only be due in accordance with Clause 6(c).
(b) The Company reserves the right, by giving notice to the Purchaser at any time before delivery, to increase the price of the Goods to reflect any increase in the costs to the Company which is due to any factor beyond the control of the Company or any change in delivery dates, quantities or specification for the Goods which is requested by the Purchaser, or any delay caused by any instructions of the Purchaser or failure of the Purchaser to give the Company adequate information or instructions.
(a) Before a new account can be opened, the Company must be satisfied with the Purchaser’s credit references. The Purchaser shall supply the name and address of its bankers together with two trade references.
(b) The time of payment of the Price shall be of the essence for all contracts for the sale of Goods by the Company to the Purchaser.
(c) Payment in respect of the first Order on a new account shall be made on a Pro Forma invoice before the Goods are dispatched. Payment terms following a new account being opened will be agreed with the Purchaser, or in default of agreeing any further payment terms shall be 14 days from the date of invoice.
(d) Individual consignments of Goods shall be invoiced separately to the Purchaser and shall be due for payment in accordance with clause 4(c) above.
(e) The Company may suspend deliveries to the Purchaser if the Purchaser is in arrears. Also if the Company shall, in good faith, consider that the financial condition of the Purchaser does not justify delivery on the terms of payment agreed, then the Company may suspend delivery and require full or partial payment in advance as a condition of delivery.
(f) Interest on overdue invoices shall accrue from the date when payment becomes due and shall be calculated from day to day until the date of payment at a rate of 4% above Barclays Bank plc’s base rate from time to time in force and shall accrue at such a rate after, as well as before any judgment.
(g) The Company reserves the right to allocate any payments made by the Purchaser to invoices in the order in which they were issued notwithstanding any purported allocations of such sums by the Purchaser whether express or implied.
5 THE GOODS
(a) The Company warrants that the Goods will at the time of delivery be of satisfactory quality and that the Company has title to the Goods in order to transfer title of the Goods to the Purchaser on full payment of the Price in accordance with these Conditions.
(b) Except where the Purchaser is dealing as a consumer (as defined in applicable laws), all other warranties, conditions or terms relating to fitness for purpose, merchantability or condition of the Goods and whether implied by statute or common law or otherwise are excluded.
(c) Where a Purchaser is acting as a consumer in purchasing the Goods then before the Goods are delivered, the Purchaser has the following rights to cancel an Order for Goods (other than made-to-measure Goods), including where the Purchaser chooses to cancel because they are affected by an event outside the Company’s control or the Company changes these Conditions to the Purchaser’s material disadvantage:
(i) The Purchaser may cancel any Order for Goods at any time before the Company despatches the Goods by contacting the Company. The Company will confirm the Purchaser’s cancellation in writing;
(ii) If the Purchaser cancels an Order under clause 5(c)(i) and the Purchaser has made any payment in advance for Goods that have not been delivered to the Purchaser, the Company will refund these amounts to the Purchaser and any delivery charges;
(iii) Unfortunately, if the Purchaser cancels an Order for Goods under clause 5(c)(i) and the Company has already despatched the Goods to the Purchaser, the Company will not be able to cancel the Order until it is delivered. In this case, if the Purchaser returns the Goods to the Company, the Company will have to charge the Purchaser the cost of collection or the Purchaser will have to pay the cost of returning the Goods back to the Company. This will not affect the Purchaser’s refund for the Goods themselves, but the Company will not refund any charges for delivery and any charge for collection will be deducted from the refund that is due to the Purchaser.
6 CARRIAGE AND DELIVERY
(a) Delivery of the Goods shall be made by the Company delivering the Goods to the agreed place for delivery.
(b) Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Company in writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Purchaser.
(c) Where the Price of the Goods is not more than £125, or where the destination of the Goods as stated in the order is outside Great Britain, the cost of carriage and delivery will be charged to the Purchaser.
(d) Where the Price of the Goods net of VAT is more than £125, and the destination of the Goods is within Great Britain, the cost of carriage and delivery will be paid by the Company.
(e) Risk in the Goods passes to the Purchaser on delivery and the Purchaser shall keep the Goods fully insured in their full replacement value against all risks prudently insured against at least throughout the period between the risk therein passing to the Purchaser and the property therein ceasing to remain with the Company.
(f) The Company reserves the right to deliver in part, any order and the Purchaser shall not in any event be entitled to reject any Goods on the grounds of part delivery.
(g) If the Goods are not delivered or upon delivery are found to be damaged or short the Company shall not in any event be liable unless:
(i) the Purchaser gives written notice to the Company and to the carrier within seven days of the date of delivery or, in the case of non-delivery, of the expected date of delivery as stated on the invoice or such later date as the Company may have advised to the Purchaser; and
(ii) in the case of short or damaged delivery the Purchaser gives the Company or its representative(s) a reasonable opportunity to inspect the goods concerned in the state and condition and location in which they were delivered.
(h) The signature on any delivery note by the Purchaser or by any agent, employee or representative of the Purchaser shall be conclusive proof of delivery of the Goods.
(i) Should the Company be delayed or prevented from delivering the Goods by reason of fire, flood, lockout, strike, war, riot, explosion, shortages of materials or labour, or any other cause beyond the Company’s control, the delivery time shall be extended until the cause preventing or delaying delivery has ended.
(j) The Company reserves the right to charge £10 (plus VAT) for obtaining any proof of delivery documents requested by the Purchaser, unless the documentation confirms non-delivery by the Company.
(a) The property in the Goods shall remain with the Company until the Purchaser has paid to the Company in full for all Goods supplied the Price together with VAT and the cost of any carriage and packaging due in accordance with Clause 6.
(b) The Purchaser shall, until such time as the property in the Goods has passed to him under paragraph (a) above, hold the goods as bailee for the Company and shall ensure that the Goods may be readily identified as the property of the Company.
(c) The Purchaser may sell or use the goods in the ordinary course of its business notwithstanding that the property in the Goods may not have passed to it. The Company may terminate the Purchaser’s powers of sale and use and may repossess the Goods if:
(i) any sums due to the Company in respect of Goods supplied under these terms become overdue;
(ii) any sums due to the Company in respect of any goods supplied under any other terms become overdue;
(iii) the Purchaser has an administrator, administrative receiver or liquidator appointed or such appears likely in the reasonable opinion of the Company;
(iv) the Purchaser commits any breach of these Conditions or of any other contract with the Company;
(v) the Purchaser abandons, discontinues or disposes of the whole or a substantial proportion of its business.
The Company, its employees and authorised agents shall be entitled to enter any of the Purchaser’s premises for such purpose.
(d) The Company shall account to the Purchaser for any surplus of the value of any Goods or proceeds of sale recovered by the Company in respect of any Goods supplied to the Purchaser under these Conditions plus any expenses incurred by the Company in effecting such recovery.
(e) Nothing in condition 7(a)-(d) shall entitle the Purchaser to return the Goods or to delay payment therefore.
8 PURCHASER’S BREACH
In the event that the Purchaser defaults or is in breach of the Conditions or any other contract with the Company, all amounts owing from the Purchaser to the Company shall become immediately due and payable and the Company may cancel any unfulfilled Orders.
9 SUBSTITUTION OF GOODS
The Company will use all reasonable endeavours to supply the Goods ordered but reserves the right, without prior notice, to supply reasonable alternative Goods to those ordered unless the Purchaser specifically states “No substitutes” on the Order.
10 RETURNED GOODS
The Company shall only accept Goods returned for credit that are in a pristine and re-saleable condition and only with prior authorisation in writing from the Company.
(a) Subject to Clauses 11(c) and (d), the Company shall not be liable to the Purchaser by reason of any representation, or any implied warranty, condition or term, or any duty at common law, or under the express terms of the contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use at resale by the Purchaser, except as expressly provided in these Conditions.
(b) Subject to Clauses 11(c) and (d), the Company’s liability in respect of any defect in the Goods, or any breach of these Conditions or of any duty owed to the Purchaser in connection therewith shall be limited to the Price of the relevant Goods in question.
(c) When the Purchaser contracts as a consumer, if the Company fails to comply with these Conditions, it is responsible for loss or damage the Purchaser suffers that is a foreseeable result of the Company’s breach of the Conditions or its negligence, but it is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of our breach or if it was contemplated by the Purchaser and the Company at the time we entered into this contract. In addition, the Company does not seek to exclude or limit its liability in any way for:
(i) breach of the terms implied by sections 13, 14 and 15 of the Sale of Goods Act 1979 (description, satisfactory quality, fitness for purpose and samples); or
(ii) defective products under the Consumer Protection Act 1987.
(d) The Company does not exclude or limit in any way liability for:
(i) death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors;
(ii) fraud or fraudulent misrepresentation;
(iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).
(a) If any claim is made against the Purchaser that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, the Company shall indemnify the Purchaser against all damages, costs and reasonable expenses awarded against or incurred by the Purchaser in connection with the claim, or paid or agreed to be paid by the Purchaser in settlement of the claim, provided that:
(i) the Company is given full control of any proceedings or negotiations in connection with any such claim;
(ii) the Purchaser shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations;
(iii) except pursuant to a final award, the Purchaser shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld);
(iv) the Purchaser shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Purchaser may have in relation to such infringement, and this indemnity shall not apply to the extent that the Purchaser recovers any sums under any such policy or cover (which the Purchaser shall use its best endeavours to do);
(v) the Company shall be entitled to the benefit of, and the Purchaser shall accordingly account to the Company for, all damages and costs (if any) awarded in favour of the Purchaser which are payable by or agreed with the consent of the Purchaser (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
(vi) without prejudice to any duty of the Purchaser at common law, the Company shall be entitled to require the Purchaser to take such steps as the Company may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Company is liable to indemnify the Purchaser under this clause.
(b) The foregoing states the entire liability of the Company with regard to the infringement of any intellectual property right by the use, resale or possession of the Goods by or on behalf of the Purchaser.
13 EXPORT TERMS
(a) In these conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
(b) Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 13 shall (subject to any special terms agreed in writing between the Purchaser and the Company) apply notwithstanding any other provision of these Conditions.
(c) The Purchaser shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
(d) Unless otherwise agreed in writing between the Purchaser and the Company, the Goods shall be delivered “ex works” and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
(e) Unless otherwise agreed, payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Purchaser in favour of the Company and confirmed by a bank acceptable to the Company or, if the Company has agreed in writing on or before acceptance of the Purchaser’s Order to waive this requirement, by acceptance by the Purchaser and delivery to the Company of a bill of exchange drawn on the Purchaser payable 60 days after sight to the order of the Company at such branch of the Bank in England as may be specified in the bill of exchange.
(a) Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office of principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
(b) No waiver by the Company of any breach of the contract by the Purchaser shall be considered as a waiver of any subsequent breach of the same or any other provisions.
(c) Any provision of these Conditions which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of these Conditions.
(d) Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to non-binding mediation in the first instance, subject to the ability of the Company to be able to seek to enforce its intellectual property rights or breach of any obligations of confidentiality through the courts without having to refer to mediation in the first instance.
15 INTELLECTUAL PROPERTY
No right or licence is granted under this contract of sale to the Purchaser under any patent, trade mark, copyright, registered design or other intellectual property rights except the right to use or resell the Goods. The Purchaser may not copy or reproduce any of the Company’s designs or supply the same to any other person for the purposes of such copying or reproduction and shall not deal in any items which copy or reproduce any such designs in such a way as to infringe the Company’s intellectual property rights. Without limiting the Company’s rights, whether in respect of criminal or civil proceedings, for any infringement of its intellectual property rights, should the Company receive evidence that the Purchaser is in breach of this Condition or is otherwise infringing the Company’s intellectual property rights, the Company shall have the right to cancel any outstanding Orders and take all other action as deemed appropriate by the Company to protect its intellectual property rights and confidential information.
16 DATA PROTECTION ACT
When considering the Purchaser’s application to open a Credit Account, the Company reserves the right to disclose the Purchaser’s name and address to a Credit Reference Agency. The Company will regularly review the Purchaser’s payment record and account information only for purposes registered under the Data Protection Act 1998, including general business purposes, making credit decisions and marketing.
These Conditions and all other express terms shall be governed and construed in accordance with the Laws of England and the Purchaser hereby submits to the jurisdiction of the English Courts (in relation to contractual and non-contractual matters).