In these conditions "the Company" means Love Brands Limited and “the Buyer” means the purchaser of the Goods and "the Goods" or “Goods” means the goods items materials to be supplied.
In these conditions, unless the context requires otherwise:
1.1 ‘Buyer’ means the person or company who buys or agrees to buy the goods from the Company;
1.2 ‘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;
1.3 ‘Delivery Date’ means the date specified by the Company when the goods are to be delivered;
1.4 ‘Free Delivery area’ means the geographical area dictated by the Company from time to time and marked on a map of the United Kingdom from time to time available for inspection on request;
1.5 ‘Goods’ means the goods items or materials that the Buyer agrees to buy from the Company;
1.6 ‘Price’ means the price for the Goods excluding carriage, packing, insurance and VAT.
1.7 ‘In-Season Orders’ means orders placed in the current season for short order or in-season stock
1.8 ‘Forward Booked Orders’ means orders placed in advance of production being placed with suppliers to be delivered at a future agreed date.
1.9 ‘Working Days’ shall mean every day other than a Saturday, a Sunday or any official public holiday in England.
2 CONDITIONS APPLICABLE
2.1 These Conditions shall apply to all contracts for the sale of Goods by the Company to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document. If any contract for sale is concluded with the Buyer by any method whatsoever without express reference to these conditions of sale, it shall be a term of such a contract that these conditions of sale apply to such contract.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 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.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.6 The Buyer acknowledges that the Company’s employees and agents are not authorised to make any representations concerning the Goods and that it does not rely on any such representations that are not expressly confirmed by the Company in writing.
2.7 Any samples, drawings, descriptive matter or advertising produced by or supplied by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures 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 Conditions nor have any contractual force.
3.1 Where fixed prices have not been expressly agreed by the Company the price payable by the Buyer shall be based upon the Company's list price at the date of despatch of each delivery.
3.2 Where prices have expressly been agreed the Company reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in cost to the Company which is due to any factor beyond the control of the Company (including but not limited to any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in insurance costs, significant increase in the labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions).
3.3 Prices are exclusive of amounts in respect of VAT. The Buyer shall pay to the Company such additional amounts in respect of VAT as are chargeable on a supply of the Goods at the prevailing rate.
3.4 Delivery shall be at the Company’s cost unless the Buyer’s order requires delivery to an address outside of the Company’s ‘Free Delivery area’ in which case the Company may charge for delivery at the applicable rates determined from time to time by the Company.
4.1 Payment is due in full and in cleared funds within 30 days of the date of invoice. Payment shall be made to the bank account nominated in writing by the Buyer. Time for payment is of the essence.
4.3 If the Buyer fails to make any payment due to the Company by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time together with compensation under the Late Payment of Commercial Debts (Interest) Act 1998. 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 Buyer shall pay the interest together with the overdue amount.
4.4 The Buyer shall have no right to withhold payment of the price of the goods or any other amounts which have fallen due or to raise any deduction, set off or counterclaim in respect thereof relating to this or any other contract.
The Company shall be entitled, without prejudice to the Company’s other rights and remedies, to require the Buyer to supply to it such security for the Buyer’s liabilities under this contract as the Company shall require including but not limited to pro-forma payment, a letter of credit, guarantee, bond, bill of exchange or any other security as required by the Company.
6.1 The Company shall be entitled, without prejudice to the Company’s other rights and remedies, either to terminate the contract or to suspend any further deliveries in any of the following events:-
(a) non-compliance by the Buyer with the Company’s terms of payment;
(b) the Buyers commits a breach of the Conditions or any contract in place between the Company and the Buyer;
(c) failure by the Buyer to provide pro-forma payment, a letter of credit or guarantee, bill of exchange or any other security requested by the Company.
6.2 Termination shall not affect any of the Company's rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach that existed at or before the date of termination.
7 INSOLVENCY OF BUYER
(a) the Buyer makes any voluntary or other composition or arrangement with its creditors or (being an individual or firm) a petition for his bankruptcy is presented or (being a company) becomes subject to an application for an administration order or a petition for liquidation or winding up is presented (otherwise than for the purposes of amalgamation or reconstruction); or
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
(c) the Buyer ceases, or threatens to cease, to carry on business; or
(d) the Buyer suspends, threatens to supend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(e) the Buyer's financial position deteriorates to such an extent that in the Company's opinion the Buyer's capability to adequately fulfil its obligations under any contract with the Company has been placed in jeopardy; or
(f) the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly,
THEN, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
8.1 Until payment has been made to the Company of all monies owing to the Company from the Buyer for all Goods (or batches thereof) supplied under the contract and for any other goods that the Company has supplied to the Buyer, the Goods so supplied shall be held by that Buyer as bailee for the Company and it shall be an express term of this Contract that all legal and equitable title in the goods shall remain in the Company until such payments have been made in full and in cleared funds.
8.2 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery with the Company’s interest noted on the insurance policy;
(d) notify the Company immediately if it becomes subject to any of the events listed in clause 7; and
(e) give the Company such information relating to the Goods as the Company may require from time to time.
8.3 All express terms of the contract shall be read subject to this clause 8 and in the event of any of the express terms being inconsistent with this clause, this clause shall prevail.
8.4 The Buyer shall permit the servants or agents of the Company to enter on the Buyer's premises (or any other location where the goods are located, insofar as the Buyer is entitled to or is able to procure such access) and to repossess the goods at any time prior to such payment.
8.5 Although title to the goods shall not pass to the Buyer until the Buyer has paid their price to the Company, the Company shall be entitled to sue for their price once payment has become due.
8.6 The Buyer shall only be at liberty to resell the goods purchased from the Company prior to the passing of title on the understanding that if it does resell the goods then it will hold on trust (and in a separate bank account) for the Company so much of the proceeds of sale received by it and will hold on trust for the Company an action for the sale proceeds thereof, under contracts which include any of the goods hereby sold either in their original or altered state, as are equal to the amount payable.
8.7 If before title to Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 7 inclusive, then, without limiting any other right or remedy the Company may have the Buyer's right to resell Goods or use them in the ordinary course of its business ceases immediately.
9.1 A date specified by the Company or the Buyer for delivery is not in any way a guaranteed delivery date and shall be an estimated date only and the time of delivery is not of the essence.
9.2 Delivery will be to the place of delivery agreed and specified by the Company and the Buyer will ensure that delivery is accepted at such place of delivery, and will indemnify the Company in respect of all costs and liabilities incurred by the Company as a result of any delay in or refusal of acceptance of delivery or unloading.
9.3 The Company shall not be liable for any delay in delivery of the Goods that is caused by an event beyond the control of the Company or the Buyer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
9.4 The Buyer shall have no right to damages or to terminate the contract for failure for any cause to meet any delivery date.
9.5 When the Goods or any of them are delivered by the Company's own transport, delivery shall be deemed to take place at the moment the goods are lifted from the delivery vehicle.
9.6 When the Goods or any of them are delivered by other means of transport delivery shall be deemed to take place when they are loaded on to the vehicle used.
9.7 Delivery shall be to the address stated on the Buyer's order.
10 POSTPONEMENT OR CANCELLATION OF ORDERS
10.1 The Company shall only accept the cancellation of an order (but only when a whole order is to be cancelled) subject to the terms of this clause.
10.2 Modification or cancellation of any order may only be made by the Buyer for a) In-Season Orders within 3 working days from the date of placing the order and for b) Forward Booked Orders within 10 working days from the date of placing the order.
10.3 The Company will only be capable of becoming bound to accept cancellation following the giving of clear notice in writing of cancellation by a properly authorised person on behalf of the Buyer in accordance with clause 10.2 above.
10.4 Subject to clause 10.2, cancellation under this clause 10 will only operate from the date of receipt of the notice of cancellation by the Company (the ‘Cancellation Date’) and shall not apply if any of the Goods which were subject of the order sought to be cancelled have been delivered or are in transit.
10.5 In the event of unauthorised cancellation, in respect of each separate order, the Company will be entitled (in its absolute discretion) to apply the following and the damages described therein shall become payable by the Buyer to the Company on demand. The Buyer agrees that money payable under the following provisions is fair recompense for the loss or damage sustained by the Company and is reasonable, genuine and proportionate to protect the Company’s legitimate commercial and business interests:
(a) Where the Cancellation Date is no earlier than the 4th Working Day for In-Season Orders and 15th Working Day for Forward Booked Orders but not more than the end of the 20th Working Day for In-Season Orders and the 30th Working Day for Forward Orders next following the date of acceptance by the Company of the order, then the Buyer shall pay a sum equivalent to 50% of the total Price for that order together with all those sums applicable for carriage, packing, insurance and VAT on the cancelled order that the Buyer would otherwise have paid;
(b) Where the Cancellation Date is a date after the 21st Working Day for In-Season Orders and 31st Working Day for Forward Booked Orders next following the date of acceptance by the Company of the order, then the Buyer shall pay a sum equivalent to 75% of the total Price for that order together with all those sums applicable for carriage, packing, insurance and VAT on the cancelled order that the Buyer would otherwise have paid.
10.6 The Company will endeavour to comply with any reasonable request by the Buyer for postponement of delivery but shall be under no obligation to do so and the customer is obliged to take delivery as agreed under the contract. Where postponement is agreed by the Company in writing the Buyer shall if required pay a reasonable charge for storage and any increased costs of delivery and any costs incurred by the Company in relation to any insurance payments reasonably made by it.
10.7 Nothing in the foregoing shall have effect to limit or extinguish the liability of the Buyer for breach of any intellectual property rights of the Company, nor for any losses incurred by the Company as a result of any misrepresentation by the Buyer.
10.8 The foregoing does not and is not intended by the parties to render the Company liable for any losses accruing to any third party as a result of a cancelled order of the Buyer.
10.9 Notwithstanding any other provision of these Conditions the Buyer shall not be entitled to cancel or modify any order which are designated by the Company from time to time as special, bespoke or exclusive orders.
11 LIMITATION ON LIABILITY
11.1 In any sale of Goods by the Company to the Buyer, there shall be no condition or warranty or other term either express or implied, as to material, workmanship or fitness of the goods for any particular purpose, whether such purpose be known to the Company or not (save for any statutorily implied terms).
11.2 All Goods are sold with all faults and imperfections and the Buyer should satisfy themselves by inspection as to their condition and otherwise and rely on their own judgement. The Buyer should satisfy themselves as to the suitability for any particular purpose intended.
11.3 The Company does not exclude any liability for the death or personal injury of any person resulting from its negligence, that of its servants or agents, but it shall not be liable for any direct or indirect costs, loss, damages or expenses or consequential loss relating to damage to property or injury or loss to any person, firm or company, or for any loss of profits or production arising out of or occasioned by any defect in or failure of materials or workmanship and the Buyer shall indemnify the Company in respect of all claims made or proceedings taken against the Company by any third party in respect thereof.
11.4 For the avoidance of doubt the Company's liability in respect of or consequent upon any such defect or breach of these Conditions, whether in original or replaced material or workmanship, is limited as aforesaid.
11.5 The Company shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity or any indirect or consequential loss, expenditure or damages.
11.6 The Company accepts no liability of any kind where any goods have been damaged by any person in any manner following delivery or for any misuse by any person.
11.7 Any advice or recommendation given by the Company or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Buyer's own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed in writing.
11.8 Without limitation to the preceding provisions hereof in no circumstances shall the Company’s liability whether in respect of one claim or all claims arising out of any contract exceed the purchase price payable under that contract
11.9 Intellectual Property Rights. All intellectual property rights in all material produced by or for the Company relating to the Goods remain the property of the Company and shall not be used by the Buyer without the Company’s prior express written consent. No representations or warranties are given that in acquiring the Goods the Buyer will acquire any intellectual property rights or any rights of reproduction.
Risk in respect of the Goods shall pass upon delivery.
13 DEFECTIVE DELIVERY AND DAMAGE IN TRANSIT
13.1 No claim for damage to the Goods in transit will be considered by the Company unless:-
(a) an appropriately qualified signature, e.g. "Material received damaged, (signed)" is clearly made by the Customer on the delivery note; and
(b) the Company is advised in writing of the precise particulars of the damage, in addition to 13.1(a) above, within 72 hours of delivery of the goods in question.
13.2 Claims will not be considered for short delivery or unsuitability unless the Company is notified in writing and given an opportunity for verifying the same within 72 hours.
13.3 A failure to notify the Company in writing under this clause 13 by the expiry of the time limit shall release the Company from any and all liability in respect of that matter and the Company shall have no liability for such Goods and the Buyer shall be bound to pay the full price of the Goods as if they had been delivered without damage.
14 REFUNDS AND RETURNS
14.1 Refunds or replacements may be given for faulty or defective Goods on a case by case basis at the entire discretion of the Company. Your statutory rights remain unaffected.
14.2 Any claim for faulty or defective Goods must be made in writing within 14 days of receipt of the goods. If the Buyer fails to give written notice within such time, it shall be deemed to have accepted these goods and the Company shall have no liability for such Goods and the Buyer shall be bound to pay the full price of the Goods as if they had been delivered without defects or faults.
14.3 When any valid claim in respect of any faulty or defective Goods is made within the time period in clause 14.2, the Company shall be entitled to rectify or replace the relevant Goods (or the part in question) or if rectification or replacement is not practicable, will credit the value of the goods at the invoice price, if required in writing to do so, provided that the relevant defective or faulty Goods are first returned to the Company with the prior agreement of the Company and in the manner and under the procedures prescribed by the Company from time to time.
14.5 The Company’s liability (if any) whether in contract, tort or otherwise in respect of any defect or fault in the Goods shall be at the Company’s option limited to either making good, repair, replacement, or credit for the value of the relevant defective or faulty Goods.
15 FORCE MAJEURE
The Company shall not be liable to the Buyer or be deemed to be in breach of any contract by reason of any delay in performing, or any failure to perform, any of the Company's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company's reasonable control for the purposes of these Conditions:-
(a) act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, laws, bye-laws, prohibitions or measures of any kind on the part of any European Union, governmental, parliamentary or local authority including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent or any change in law;
(d) import or export regulations or embargoes;
(e) fuel shortages, epidemics or contagious diseases;
(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
(h) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause).
No failure or delay by the Company to exercise any right or remedy provided under the Conditions 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.
The Buyer shall indemnify the Company against all actions, costs, (including the cost of defending any legal proceedings) claims, proceedings, accounts and demands in respect of any infringement or alleged infringement of patent rights, registered design or similar protective rights resulting from compliance with the Buyer's instructions requirements or specifications, whether express or implied.
Illustrations, weights, measures, performance capabilities, application suitability information and other data set out in the sales literature of the Company are statements of opinion and are provided for information only and form no part of the Contract.
19 ENTIRE AGREEMENT
19.1 The contract between the Company and the Buyer for the sale and purchase of the Goods in accordance with these Conditions constitutes 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.
19.2 The Buyer 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 the Conditions. The Buyer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Conditions.
20.1 If any provision or part-provision of these Conditions are or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If that modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to, or deletion of, a provision or part-provision under this clause 20 shall not affect the validity and enforceability of the rest of these Conditions.
20.2 If any provision or part-provision of these Conditions are invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend that provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21 APPLICABLE LAW AND JURISDICTION
This agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereto each expressly submits to the exclusive jurisdiction of the Courts of England and Wales.
22 THIRD PARTIES
This Agreement does not create any right enforceable by any person or body who is not a party to it under the Contracts (Rights of Third Parties) Act 1999 and the Act shall not apply to this Agreement.