The following conditions issued by Westex Carpets Limited (the “Company”) apply to any contract of which these conditions form part to the exclusion of any conditions of order or purchase of the Buyer or any other standards, specifications, conditions or particulars of or adopted by the Buyer, unless expressly accepted in writing by the Company as part of the contract. “Goods” means the subject matter of the contract and whether one or a number of items, whether or not identical or similar. Illustrations, specifications and performance schedules set out in the sales literature of the Company are statements of opinion only and are provided for information only and form no part of the contract.
2.1 No order placed in response to the Company’s quotation will be binding unless accepted by the Company in writing.
2.2 Where goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery.
2.3 Tenders submitted by the Company shall remain open for acceptance for a period of 30 days from the date of the tender, unless in the tender some other period is specified or accepted.
3.1 Where the Goods are sold by reference to the Company’s published price list, the price payable for the Goods shall be the ruling price as published in the price list current at the date of despatch of the Goods from the Company’s works.
3.2 Where the price for the Goods is varied in accordance with this condition the price as varied shall be binding on both parties and shall not give either party any option of cancellation.
3.3 There shall be added to the price for the Goods any value added tax and any other tax duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods (whether initially charged on or payable by the Company or the Buyer) and (where appropriate) the freight and other charges as specified in the relevant carriage tariff current at the date of despatch.
4.1 Subject to clause 4.2, prices quoted are net. All invoices dated 1st to 31st are due for payment not later than the 20th of the month following. When deliveries are spread over a period, each consignment will be invoiced as despatched and each month’s invoices will be treated as a separate account and be payable accordingly. Failure to pay for any Goods or for any delivery or instalment shall entitle the Company to suspend further deliveries and work both on the same order and on any other order from the Buyer without prejudice to any other right the Company may have. The Company also reserves the right to charge interest on overdue accounts at the rate of 2% per month. The Company reserves the right where genuine doubts arise as to a Buyer’s financial position or in the case of failure to pay for any Goods or any delivery or instalment as aforesaid to suspend delivery of any order or any part or instalment without liability until payment or satisfactory security for payment has been provided.
4.2 A settlement discount of 2.5% may be deducted from invoice values (exclusive of value added tax) for prompt payment in accordance with clause 4.1
All quantities of the Goods are to be mothproofed.
6.1 The delivery or performance dates specified in the contract are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery. The Company will not be liable in any circumstances for the consequences of any delay in delivery or failure to deliver or perform if the duration of the delay is not substantial or if the delay or failure is due to act of God, fire, inclement or exceptional weather conditions, industrial action (whether at the Company’s premises or elsewhere), hostilities, shortage of labour, materials, power or supplies, late delivery or performance or non-delivery or non-performance by suppliers or subcontractors, governmental order or intervention (whether or not having the force of law) or any other cause whatever beyond the Company’s control or of an unexpected or exceptional nature.
6.2 No delay shall entitle the Buyer to reject any delivery or any further instalment or part of the order or any other form the Buyer or to repudiate the contract or the order.
6.3 The Company cannot undertake to meet any schedule of Buyer’s requirements supplied after the date of the contract and will have no liability whatever for delay in meeting or failure to meet all or any of such requirements (howsoever such failure or delay may arise) unless and to the extent that the Company expressly agrees to meet such requirements, in which event clause 6.1 will apply.
If for any reason the Buyer is unable to accept delivery of the Goods when the Goods are due and ready for delivery, the Company may arrange storage of the Goods and the Buyer shall be liable to the Company for the reasonable costs (including insurance) of such storage. This provision is without prejudice to any other right, which the Company may have in respect of the Buyer’s failure to take delivery of the Goods or pay for them in accordance with the contract.
Without prejudice to clause 12 of these terms and conditions, the Buyer shall have a period of 14 days following delivery in which to examine the Goods, after which the Buyer shall be deemed to have accepted the Goods and the Buyer agrees that such a period is reasonable. Complaints relating to visual or apparent defects will only be considered prior to the Goods being laid or fitted in accordance with clause 12. The Buyer’s right in respect of acceptance and/or rejection of the Goods shall be construed in all respects in accordance with the clause and any other rights of the Buyer in respect of acceptance and/or rejection, whether statutory or otherwise and hereby excluded.
In accordance with clause 12, no Goods will be accepted for return by the Company without its written agreement. If, for any reason, the Buyer purports to accept only a proportion of the Goods supplied, it shall be redeemed to have accepted the whole of the Goods. The Buyer will thereafter not be entitled to reject the remainder of the Goods.
All risk of any kind shall pass to the Buyer unless the contract otherwise stipulates:
10.1 in the case of Goods stored on behalf of the Buyer upon the Company notifying the Buyer that the Goods are being stored on the Buyer’s behalf;
10.2 in the case of Goods to be despatched or delivered to the Buyer upon such Goods being despatched from the Company’s works and delivered to a carrier, even if such Carrier be the servant or agent for the Company;
10.3 in the case of Goods to be collected by the Buyer upon such collection, or upon the expiry of seven days from written notice given by the Company that such Goods are ready for delivery, whichever be the earlier.
Without prejudice to any of the Company’s other rights under the terms and provisions hereof and notwithstanding the provisions of clause 10 hereof and notwithstanding delivery of the Goods or any part thereof:
11.1 the Goods shall remain the sole and absolute property of the Company as legal and equitable owner until such time as the Buyer shall have paid to the Company in full the agreed price;
11.2 until such time as the Buyer becomes the owner as aforesaid of the Goods the Buyer shall store them at his premises separately from his own Goods or those of any other person and in a manner which makes them readily identifiable as the Goods of the Company;
11.3.1 payment for the Goods or any other Goods the subject of any other Contract between the Buyer and the Company is overdue whether in whole or in part; or
11.3.2 the Buyer shall suffer distress or execution to be levied upon him or his property or assets; or
11.3.3 the Buyer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy; or
11.3.4 any Petition or Receiving Order in Bankruptcy is presented or made against the Buyer; or
11.3.5 (where the Buyer is a Limited Company) any Resolution of Petition to wind up the business of the Buyer is passed or presented (otherwise than for the purpose of reconstruction or amalgamation) or a Receiver is appointed of the whole or any part of the undertaking, property or assets of the Buyer; or
11.3.6 there shall be commenced any other proceedings or act in which the Buyer’s solvency is involved; then the Company may (without prejudice to any of its other rights) recover, repossess or resell the Goods or any part thereof and may enter upon the Buyer’s premises, by its servants or agents, for that purpose upon any premises where they are stored or where they are reasonably thought to be stored for which purpose the Buyer grants to the Company a licence; and
11.4 the Buyer acknowledges that until the circumstances specified in sub-paragraph 11.1 hereof prevail the Buyer is in possession of the Goods solely as a bailee for the Company. Without prejudice to sub-paragraph 11.2 hereof the Buyer is licensed by the Company to agree to sell on the Company’s Goods subject to the express condition that the entire proceeds thereof are held in trust for the Company and are not mingled with other monies or paid into an overdrawn bank account and shall be at all times identifiable as the Company’s monies.
11.5 every clause and sub-clause of this clause is separate severable and distinct and, accordingly, in the event of any of them being for whatever reason unenforceable according to its terms, the others shall remain in full force and effect.
12.1 The Company warrants in relation to Goods the Company’s manufacture that it will replace or repair any Goods which are found within a period of six months from the date of despatch of such Goods from the Company’s works (the “warranty period”) to be defective (excluding fair wear and tear or damage due to misuse or faulty operation) with the Company to be the sole arbiter as to whether the Goods are defective. The Company will require a reasonable period of time to replace or repair the Goods. This warranty does not extend to any Goods not manufactured by the Company, to second-hand or reconditioned Goods nor to Goods sold as “imperfect” and accepted by the Buyer.
12.2 The Buyer’s remedies in respect of any claim under the foregoing express warranty or any claim under any condition or warranty implied by law or any other claim in respect of the Goods or any workmanship in relation thereto (whether or not involving negligence on the part of the Company) shall in relation to Goods of the Company’s manufacture be limited to replacement or repair as aforesaid and any condition or warranty implied by law shall cease to apply after the expiry of the warranty period.
12.3 The Buyer agrees that no statement of representation has been made by the Company relating to the Goods other than any which may be expressly contained in the quotation given by the Company or in the contract of which these conditions form part or in any document expressly stipulated by the Company to form part of the contract. If any other statement or representation has been made by or on behalf of the Company or is contained in the Company’s sales literature the Buyer confirms and warrants that it understood this to be a statement of opinion only and did not rely on it.
12.4 The Company shall not in any circumstances be liable for any defect or failure of any Goods manufactured or supplied by the Company which have been subjected to any process or processes after leaving the Company’s works.
12.5 The Company shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct or consequential, and any other remedy which would otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any rule of law.
13.1 The Company agrees to make every effort to match varying lots in the Goods to, as near as possible but an exact colour match cannot be guaranteed. In addition, as all pile carpets (the “Goods”) are liable to shading and pile pressure, which is outside the control of the Company, the Company cannot accept responsibility.
13.2 In terms of tolerance the Goods, slight variations by the Company cannot be avoided but the Company warrants that tolerance should be within BS 3655, i.e. 1.25% either way.
The Buyer agrees upon demand to indemnify the Company against all losses, damages, injury, costs and expenses of whatever nature suffered by the Company to the extent that the same are caused by or related to:
14.1 designs, drawings or specifications given to the Company by the Buyer in respect of the Goods;
14.2 defective materials or products supplied by the Buyer to the Company and incorporated by the Company in the Goods; or
14.3 the improper incorporation, assembly, use, processing, storage, or handling of Goods by the Buyer.
15.1 The Company is entitled to assume that all drawings, descriptions, specifications and other information supplied by the Buyer to the Company, whether written or verbal, is in all respects complete, accurate and entirely suitable for the Buyer’s requirements.
15.2 Unless otherwise expressly agreed, the Company shall have no responsibility for the performance, suitability or durability of any Goods or any materials or workmanship comprised therein to the extent the same is manufactured in accordance with the Buyer’s designs, drawings, standards or specifications.
The Buyer shall indemnify the Company against all actions, costs (including the cost of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement or alleged infringement of any patent, registered design, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Company with the Buyer’s instructions, whether express or implied.
The Company accepts no responsibility for any damage or loss in transit. Claims for damages or loss in transit should be made on the carrier and any condition imposed by the carrier in relation to claims for damage or loss in transit should be complied with.
The Buyer agrees to pay due regard to any information or any revised information whenever supplied by the Company (and is deemed to have been given adequate information and to have read and understood it) relating to the use for which the Goods are designed or have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person at work or when they are being dismantled or disposed of, and the Buyer undertakes to take such steps as may be specified by the above information to ensure that as far as reasonably practicable the Goods will be safe and without risk to health at all times as mentioned above. For these purposes the Buyer is deemed to have been given a reasonable opportunity to test and examine the Goods before delivery.
The Company reserves the right to subcontract the whole or any part of the contract.
The contract shall in all respects be governed by and constituted in accordance with English law and the Buyer hereby submits to the nonexclusive jurisdiction of the English courts.