STANDARD TERMS & CONDITIONS OF SALE
1. INTERPRETATION
1.1 Buyer: means the customer/purchaser of Goods from the Company
1.2 Company: means Foundry Sourcing Ltd registered in England and Wales with company number
12939713
1.3 Contract: means any contract between the Company and the Buyer for the sale and purchase of the Goods
1.4 Delivery Point: means the place where delivery of the Goods is to take place
1.5 Goods: means any goods agreed to be sold by the Company to the Buyer (including any part or parts
of them) under the Contract
1.6 Acknowledgement of Order means the acknowledgement of order referred to in clause 3.3
1.7 Unless expressly provided otherwise, a reference to writing or written includes emails but not
facsimile transmission.
1.8 Any words following the terms including, include, in particular, for example or any similar
expression shall be construed as illustrative and shall not limit the sense of the words, description,
definition, phrase or term preceding those terms.
2. APPLICATION OF TERMS
2.1 All Goods sold by the Company are on the express understanding that the Buyer agrees to these Terms and Conditions of Sale to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 The Company’s Acknowledgement of Order and these Terms and Conditions of Sale cannot be varied in any way other than by a written letter of authorisation signed by a director of the Company.
2.3 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.
3. OFFER AND ACCEPTANCE
3.1 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 purchase the Goods subject to these conditions.
3.2 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order (by email or other form of written communication) is issued by the Company or (if earlier) the Company delivers the goods to the Buyer.
3.3 Any quotation is given on the basis that no contract shall come into existence until the Company dispatches an acknowledgement of order is issued by the Company. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.4 Once the Company accepts an order for Goods, the Buyer shall become liable to pay the invoices raised against such Goods on the due payment date, whether the Buyer cancels the order (or any part of it) or not.
4. DESCRIPTION
4.1 The quantity and description of Goods shall be as specified in the Company’s Acknowledgement of Order.
4.2 All sizes, measurements and descriptions are intended to provide general guidance only and are supplied to industry tolerance.
4.3 The Company reserves the right for reasons of continuous improvement to make changes to the items shown in its catalogues without notice.
5. DELIVERY
5.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Buyer’s premises as set out in the Acknowledgement of Order.
5.2 Any dates specified by the Company in its Acknowledgement of Order for delivery of the Goods are intended to be an estimate and such time shall not be of the essence of the Contract. Time for delivery shall not be made of the essence of the Contract by notice.
5.3 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods.
5.4 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, licenses or authorizations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the
Company’s negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) 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).
5.5 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment
and manual labour for loading the goods.
5.6 The Company reserves the right to deliver +/- 5% of the agreed quantity. The Buyer shall not be
entitled to 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.
5.7 Shortages and damaged items within a delivery must be reported to the Company by the Buyer in
writing within 7 days of delivery, stating the relevant order and delivery note numbers and the date the
delivery was received.
5.8 Goods dispatched to a third party (anybody other than the Buyer) are at the Buyer’s risk. It is the
Buyer’s responsibility to ensure that the Goods are correct in every way before processing.
5.9 The Company may deliver the Goods by separate instalments. Each separate instalment shall be
invoiced and paid for in accordance with the provisions of the Contract.
5.10 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract
relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
6. RISK/TITLE
6.1 The property of the Goods shall not pass to the Buyer until:
(a) all sums due in respect of the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any
have been received in full in cleared funds.
6.2 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
account
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other Goods of the Buyer or
any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
and
(d) 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.
6.3 Notwithstanding the foregoing, the goods are at the entire risk of the Buyer from the time of delivery.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following basis:
(a) any sale shall be effected in the ordinary and normal course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such sale.
6.5 The Company, may without notice or liability, and without prejudice to any other legal remedy, enter upon the Buyer’s premises to repossess any goods unpaid for.
6.6 The Buyer’s right to possession of the goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition
with his creditors, or (being a body corporate) convenes a meeting of creditors, or enters into liquidation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, 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
(b) 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
(c) the Buyer encumbers or in any way charges any of the Goods.
6.7 The Buyer grants the Company, its agents and employees an irrevocable license 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.
7. PRICE
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in thee company's invoice.
7.2 The price for the Goods shall be exclusive of any value added tax. V.A.T will be charged at the rate ruling on the date of the invoice.
8. PAYMENT
8.1 Payment is to be made by the Buyer in pounds sterling strictly 30 days from date of the Company’s invoice, unless agreed otherwise at the time of order in writing by a director of the Company.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds. 8.4 You shall pay our reasonable extra charges in respect of:-
(a) Any special arrangements made at your request in order to expedite delivery.
(b) Costs, expenses and liabilities incurred by us where you give inadequate or inaccurate
instructions.
(c) Art work or production/origination time and materials where a request to produce goods and or
a design commission is subsequently cancelled.
8.5 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 unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer. Please note that interest will be charged on overdue accounts at an annual rate of 4% above the prevailing base rate of Nat West Bank Plc from the due date for payment, accruing daily until payment is made whether before or after any judgment.
8.6 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision contained within these conditions.
9. QUALITY
9.1 The Company warrants that (subject to the other provisions of these conditions) upon delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and shall be reasonably fit for their purpose.
9.2 The Company shall not be liable for a breach of any of the warranties in paragraph 9.1 if
(a) the Buyer notifies the Company of a defect and then makes further use of such Goods; or
(b) a defect arises because the Buyer failed to follow the Company’s oral or written instructions as
to storage, use or maintenance of the goods.
9.3 Subject as aforesaid, if any of the Goods do not conform with any of the above warranties the Company
shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company. If the Company complies with this paragraph 9.3 the Company shall have no further liability for a breach of any of the warranties in paragraph 9.1 in respect of such Goods.
10. LIMITATION OF LIABILITY
10.1 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.
10.2 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its
liability; or
(d) for fraud or fraudulent misrepresentation.
10.3 Subject as aforesaid:
(a) the Company’s total liability in contract, tort, misrepresentation, restitution or otherwise, arising
in connection with the performance or contemplated performance of the Contract shall be
limited to 2.5% of the invoice value of the Goods sold under the Contract less VAT; and
(b) 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.
10.4 Garment care - all products supplied should be washed or cleaned strictly in accordance with the
washing and cleaning Instructions given. The Company shall not be responsible if these instructions are deviated from in any way. All items are provided with the relevant washing and cleaning label attached.
11. FORCE MAJEURE
11.1 Where the Company is unable to perform any of its obligations in this Contract due to any circumstances beyond its reasonable control including without limitation, acts of god, governmental actions, war or national emergency, acts of terrorism, protest, riot, civil commotion, fire, explosion, flood, epidemic, lockouts, strikes or other labour disputes or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials the Company reserves the right to:
(a) suspend performance while those circumstances subsist and any agreed date or period for delivery shall be regarded as extended accordingly;
(b) cancel the Contract; or
(c) reduce the volume of the Goods ordered by the Buyer.
12. GENERAL
12.1 Save as is otherwise agreed in writing all copyright, design rights, trademark rights, patents and any other intellectual property rights of any nature whatsoever in any artwork, design or goods or materials or their get up supplied, manufactured, designed or otherwise produced by the Company shall at all times be and remain the exclusive property of the Company
12.2 The Company may assign the Contract or any part of it to any person, firm or company. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12.3 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.
12.4 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.
12.5 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.
12.6 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.
12.7 The parties to the Contract do not intend that any terms 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.
12.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
12.9 Unless expressly stated otherwise in these Terms and Conditions, all notices and communications between the parties shall be served in writing either personally or by recorded delivery, or by pre-paid first class post or by email to the registered office address (or such other address as agreed between the parties) of the addressee (or if to someone other than a company, to his last known address). Notices and communications shall be deemed to have been received if delivered by hand, on the day of delivery, if by recorded delivery, one day after posting, if by first class post, two days after posting (and in each case excluding the day of posting and excluding Saturdays, Sundays and bank holidays) and if by email on a working day prior to 5pm at the time of transmission and otherwise on the next working day. Where a notice or communication by email is expressly permitted by these Terms and Conditions, such notice or communication shall be deemed to have been received on confirmation of transmission. In proving the service of any email it shall be sufficient to prove that such email was sent
to a current email address of the addressee.