Terms & Conditions of Sale
CONDITIONS OF SALE
The Customer's attention is drawn in particular to the provisions of clause 9
1. Definitions and Interpretation
1.1 In these Conditions, the following definitions apply:
Arville: means Arville Textiles Limited, registered in England and Wales under number 00493873, whose registered office is at Sandbeck Lane, Wetherby, LS22 7DQ;
Business Day: means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Conditions: means the terms and conditions set out in this document, as amended from time to time in accordance with clause 11.8;
Confidential Information: means any and all information provided by either Party under the Contract that is either: (i) marked as being confidential (or in the case of verbal discussions is later confirmed in writing to be confidential); or (ii) information (however communicated) that is of a type that the other Party could reasonably have been expected to know that the information was confidential;
Contract: means any contract between the Parties for the sale and purchase of the Goods, which incorporates these Conditions, the Specification and the Sales Order Confirmation;
Customer: means the person who is purchasing the Goods from Arville under the Contract, as identified in the Sales Order Confirmation;
Force Majeure Event: means has the meaning given in clause 11.1;
Goods: means the goods, (or any part of them), to be supplied under the Contract, as identified in the Sales Order Confirmation;
Order: means the Customer's order for the Goods, as described in clause 2.3;
Party: means, as appropriate, either of Arville or the Customer (and, collectively, the Parties);
Sales Order Confirmation: means Arville's written confirmation of the Order for the Goods, incorporating these Conditions; and
Specification: any specification for the Goods that is agreed in writing by the Parties, as described in clause3.1.
1.2 In these Conditions the following rules apply, unless a contrary intention appears:
(1) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(2) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted, and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(3) any phrase introduced by the terms including, include, in particular or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms; and
(4) a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 Subject to clause 11.8, these Conditions apply to the Contract to the exclusion of all other terms and conditions, including any terms that the Customer may seek to impose or incorporate under any purchase order, confirmation of order or other document, or which are implied by trade, custom, practice or course of dealing. No terms or conditions endorsed on, delivered with or contained in an order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.2 Unless Arville has expressly confirmed otherwise in writing, any quotation that it may issue from time to time will be entirely non-binding, and will not constitute an offer for the supply of the Goods.
2.3 Each Order will be deemed to be an offer by the Customer to purchase the Goods subject to these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable specification documents submitted by it are complete and accurate.
2.4 No Order will be deemed to have been accepted by Arville, and no Contract will be formed, until a Sales Order Confirmation has been issued by Arville.
2.5 Any statements, samples, drawings, descriptive matter, or advertising produced by Arville are produced for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract or have any contractual force.
2.6 The Contract constitutes the entire agreement between the Parties. Except as otherwise provided in these Conditions, all other terms, conditions, warranties and representations (whether oral or in writing) are excluded from any contract between Arville and the Customer and these Conditions supersede any and all prior promises, representations, undertakings or implications. The Customer hereby acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Arville which is not set out in the Contract.
3.1 Any product specifications, including any related plans and drawings, which are submitted by the Customer, in association with an Order or otherwise, will be considered by Arville, but will not form part of the Contract until such time as the Parties have agreed the content in writing, whereupon it will become the Specification, and it will be deemed to form part of the Contract.
3.2 Notwithstanding clause 3.1, Arville reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.3 To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer will indemnify, keep indemnified and hold harmless Arville against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Arville in connection with any claim made against Arville for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Arville's use of the Specification.
3.4 Arville will ensure that each delivery of the Goods is accompanied by:
(1) a delivery note which shows all relevant order reference numbers and any special storage instructions, (if any), the type and quantity of the Goods being delivered and, if Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(2) those Arville laboratory test results and applicable notices of compliance with third party certification requirements, (if any), as set out in the Specification.
4.1 Arville will deliver the Goods to the location set out in the Sales Order Confirmation, or such other location as the Parties may agree in writing (Delivery Location). Subject to clause 4.4, delivery of the Goods will be completed on the Goods' arrival at the Delivery Location.
4.2 Any dates quoted for delivery are approximate only and are not guaranteed. The time of delivery is not of the essence.
4.3 Subject to the other provisions of these Conditions, Arville will not be liable for any direct, indirect or consequential loss, including, loss of profit, costs, damages, charges or expenses caused by any delay in the delivery of the Goods (even if caused by Arville's negligence), nor will any delay entitle the Customer to terminate the Contract.
4.4 If for any reason the Customer fails to take delivery of any of the Goods on arrival at the Delivery Location, or Arville is otherwise unable to deliver the Goods because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(1) risk in the Goods will immediately pass to the Customer (including for loss or damage caused by Arville's negligence);
(2) the Goods will be deemed to have been delivered;
(3) Arville may store the Goods at the Customer's cost until actual delivery (including the cost of insurance); and
(4) if the Customer fails to take delivery of the Goods within five (5) Business Days following the date of delivery, Arville may rescind the Contract and sell the Goods to a third party.
4.5 Due to the nature of the production of the Goods, Arville cannot guarantee that it will deliver volumes of the Goods entirely in accordance with the volumes set out in the Sales Order Confirmation. Consequently, Arville shall be entitled to deliver different volumes of the Goods within reasonable tolerances, and the Customer will not be entitled to reject the Goods for such reason. In such event, a pro rata adjustment will be made to the invoice.
4.6 Unless the Parties expressly agree otherwise, Arville may deliver the Goods in separate instalments. Each separate instalment will be invoiced and paid for in accordance with the provisions of the Contract. Any failure by Arville to deliver, or any claim by the Customer in respect of, any one or more of the instalments in accordance with these Conditions will not entitle the Customer to treat the Contract as a whole as repudiated.
4.7 Arville reserves the right, at its sole option, to cancel or withhold the delivery of any Goods, (in whole or in part):
(1) until receipt of a satisfactory credit reference in respect of the Customer, or where the supply of such Goods would exceed any credit limit which Arville may, in its absolute discretion, have granted to the Customer;
(2) if any of the events listed in clause 8.2 occur; or
(3) subject to clause 7.9, if the Customer breaches the Contract and, where such breach is remediable, has not remedied the breach within five (5) Business Days of notice from Arville detailing such breach.
4.8 On delivery of the Goods the Customer should immediately check the Goods against the delivery note. Arville can accept no liability for damage, destruction, breakages or shortage, unless notice is given by the Customer to Arville within twenty-four (24) hours of delivery.
4.9 Any liability of Arville for non-delivery of the Goods will be limited, at Arville's sole option, to:
(1) delivering the Goods within a reasonable time; or
(2) issuing a credit note against any invoice raised for such Goods, at the pro rata Contract rate based on the quantity of the Goods which have not been delivered; or
(3) refunding at the pro rata Contract rate the Price paid for the quantity of the Goods which have not been delivered;
and this will be the Customer's sole and exclusive remedy in relation to such non-delivery.
5.1 Arville warrants that on delivery the Goods will conform with the Specification in all material respects (including compliance with the third party standards and accreditations, if any, specified therein (the Product Warranty)).
5.2 Subject to clause 5.3, if:
(1) the Customer gives notice in writing to Arville within a reasonable time of discovery (and in any event not more than three (3) months after delivery) that some or all of the Goods do not comply with the Product Warranty; and
(2) Arville is given a reasonable opportunity of examining such Goods; and
(3) the Customer, if asked to do so by Arville, returns such Goods to Arville in accordance with Arville's reasonable instructions, and at Arville's cost;
Arville will, at its option, repair or replace the defective Goods, or refund the price of faulty Goods at the pro rata Contract rate, based on the quantity of the Goods which are faulty.
5.3 Arville will not be liable for Goods' failure to comply with the Product Warranty if:
(1) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2.1;
(2) the defect arises because the Customer has failed to follow Arville's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or, in the absence of such instructions, has failed to follow good trade practice regarding the same;
(3) the defect arises as a result of Arville following the Specification, or as a result of changes made to the Goods to ensure they comply with applicable statutory or regulatory requirements;
(4) the Customer alters or repairs such Goods without the written consent of Arville; or
(5) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
5.4 If Arville reasonably considers that any Goods returned in accordance with clause 5.2.3 is actually in accordance with the Product Warranty, or is otherwise not faulty, or that such Goods have been damaged or otherwise caused to be unworkable as a result of any action of the Customer and/or the end user of the Goods, then Arville may at its sole discretion, return the same Goods, without further liability to the Customer.
5.5 These Conditions will apply to any repaired or replacement Goods supplied by Arville.
5.6 Except as provided for in this clause 5, Arville will have no liability to the Customer in respect of the Goods' failure to comply with the Product Warranty.
6. Title and risk
6.1 The risk in the Goods will pass to the Customer upon delivery, in accordance with clause 4.
6.2 Title to the Goods will not pass to the Customer until Arville has received payment in full, in cash or cleared funds, of all sums due to it in respect of the Goods and all sums otherwise due or becoming due to Arville from the Customer. Arville will be entitled to recover payment for the Goods notwithstanding that ownership of the Goods has not passed from Arville.
6.3 Until title to the Goods has passed to the Customer, the Customer will:
(1) hold the Goods on a fiduciary basis as Arville's bailee;
(2) store the Goods at no cost to Arville separately from all other goods held by the Customer, so that they remain readily identifiable as Arville's property;
(3) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(4) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(5) notify Arville immediately if it becomes subject to any of the events listed in clause 8.2; and
(6) give Arville such information relating to the Goods as Arville may require from time to time; but the Customer may resell or use the Goods in the ordinary course of its business, provided that: (i) any sale will be effected in the ordinary course of the Customer’s business at full market value; and (ii) any such sale will be a sale of Arville's property on the Customer’s own behalf, and the Customer will deal as principal when making such a sale.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or Arville reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Arville may have, Arville may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Price and payment
7.1 Subject to clause 7.2, the price of the Goods will be as set out in the Sales Order Confirmation.
7.2 Arville may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in its costs, due to:
(1) any factor beyond Arville's reasonable control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(2) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(3) any delay caused by any instructions of the Customer, or failure of the Customer to give Arville adequate or accurate information or instructions.
7.3 Unless an alternative arrangement is agreed in writing, the price of the Goods is on an ex works basis and is therefore exclusive of the costs and charges of packaging, insurance and transport of the Goods, which may be separately invoiced to the Customer.
7.4 The price is exclusive of amounts in respect of value added tax (VAT). The Customer will, on receipt of a valid VAT invoice from Arville, pay to Arville such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 Unless alternative arrangements have been agreed, Arville may invoice the Customer for the Goods on or at any time after the completion of delivery. The Customer will pay the invoice in full and in cleared funds by the due date for payment stated on the invoice or, where no due date for payment is stated thereon, within thirty (30) days of the date of the invoice. Payment will be made to the bank account stated on the invoice or otherwise nominated in writing by Arville. Time of payment is of the essence.
7.6 Any queries in respect of invoices should be brought to Arville's attention within five (5) Business Days of the date of the invoice. If the Customer reasonably disputes an invoice, the Customer will pay the undisputed sum under the invoice in accordance with clause 7.5 whilst the Customer and Arville try and reach agreement over the disputed amount.
7.7 The Customer will pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding. Arville may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Arville to the Customer.
7.8 If the Customer fails to make any payment due to Arville under the Contract by the due date for payment, then Arville may charge the Customer interest on the overdue amount at the rate of four per cent (4%) per annum above Barclays Bank plc's base rate from time to time. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer will pay the interest together with the overdue amount.
7.9 In the event of default of payment by the Customer, Arville will be entitled, without prejudice to any other right or remedy:
(1) to suspend or cancel, without notice, any or all further deliveries under the Contract and under any other contract between the Parties; and/or
(2) to serve notice on the Customer requiring immediate payment for Goods supplied by Arville under the Contract and all other contracts with the Customer, whether or not payment is otherwise due or invoiced.
8.1 Upon: (i) any failure of the Customer to observe or perform any of its obligations under the Contract; or (ii) the occurrence of any of the events listed in clause 8.2, or upon any such events becoming reasonably likely to occur, or upon Arville otherwise having reasonable grounds for believing that any such events are about to occur, and notifying the Customer accordingly; then, without limiting any other right or remedy available to it, Arville may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Arville without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer will become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
(1) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due, or otherwise admits its inability to pay its debts; or
(2) the Customer goes into liquidation; or, (being an individual), is the subject of a bankruptcy petition or order; or has a petition for winding up, or an administration order presented against it; or it passes a resolution for its winding up; or calls any meeting of its creditors, or proposes to make any arrangement with its creditors; or has an administrative or other receiver or an administrator appointed over all or any part of its undertaking or assets; or
(3) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which the Customer is subject that has an effect equivalent or similar to any of the preceding events set out in clause 8.2.2; or
(4) the Customer's financial position deteriorates to such an extent that in Arville's reasonable opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(5) the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or
(6) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business.
8.3 Termination of the Contract, however arising, will not affect any of the Parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract will continue in full force and effect.
9. Limitation of liability
9.1 Nothing in these Conditions will limit or exclude either Party's liability for:
(1) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(2) fraud or fraudulent misrepresentation; or
(3) any matter in respect of which it would be unlawful for it to exclude or restrict liability.
9.2 Save as provided by Section 12 of the Sale of Goods Act 1979 and in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Subject to clause 9.1, Arville will under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any claim, damage, loss or costs in respect of (whether direct or indirect):
(1) loss of profit;
(2) loss of use;
(3) loss of anticipated contracts and/or savings;
(4) loss of goodwill;
(5) loss of opportunity;
(6) loss of business and/or business interruption; or
(7) any indirect loss or consequential or special loss or damage;
and the Parties intend that each type of loss under this clause will be severable in accordance with clause 11.5.
9.4 Arville's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed the price of the Goods under the Contract.
9.5 Arville will not be liable for, and the Customer will indemnify, keep indemnified and hold Arville harmless against, any and all actions, awards, proceedings or claims, complaints, costs, expenses (including legal expenses and disbursements), penalties, damage or loss arising by reason of the sale and/or use of the Goods after the Customer becomes aware of any defect or after circumstances have occurred which should reasonably have indicated to the Customer the existence of a defect.
10.1 Each Party will, and will procure that their employees, agents, representatives and sub-contractors will, keep secret and not disclose any Confidential Information in relation to the other Party obtained by reason of the Contract.
10.2 The obligations under clause 10.1 will not apply to the extent that the Confidential Information (based on documentary evidence):
(1) is already publicly known at the time it is disclosed to the receiving Party;
(2) later becomes publicly known other than as a result of a breach by the receiving party of clause 10.1;
(3) was already known to the receiving Party before it was disclosed; or
(4) is required to be disclosed by the receiving Party by a court order or statutory law, provided that the receiving Party will inform the disclosing Party as soon as possible of any such obligation to disclose.
11.1 Force majeure - Arville reserves the right to defer the date of delivery and/or to cancel any Contract, and will not be liable for any failure to meet its obligations under any Contract, if it is prevented from or delayed in the carrying on of its business due to a Force Majeure Event. For these purposes, a Force Majeure Event means any event beyond Arville's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.2 Remedies - Each right or remedy of Arville under the Contract is without prejudice to any other right or remedy of Arville, whether under the Contract or not.
11.3 Assignment and other dealings - Arville may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Arville.
(1) Any notice or other communication given to a Party under or in connection with the Contract will be in writing, addressed to that Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing in accordance with this clause, and will be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(2) A notice or other communication will be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.4.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(3) The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
11.5 Severance - If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity and enforceability of the rest of the Contract.
11.6 Waiver - No failure or delay by Arville to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will 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 will prevent or restrict the further exercise of that or any other right or remedy.
11.7 Third party rights - Except as otherwise provided in these Conditions or the Contract, a person who is not a Party will have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions or the Contract.
11.8 Variation - Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, will be effective unless it is in writing and signed by a director of Arville.
11.9 Governing law and Jurisdiction - The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), will be governed by, and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).