TERMS AND CONDITIONS
FLEMINGTON DESIGN LIMITED
1. APPLICATION OF TERMS
The Customer’s attention is drawn to these Terms and Conditions of Sale. All orders placed with the Company and contractual agreements with the Company are subject to these Terms and Conditions at all times to the exclusion of all other terms and conditions (to include but not limited to terms or conditions which the Customer purports to apply under any purchase order, specification or other document).
2. DEFINITIONS
The Company means Flemington Design Limited, Flemington House, Inverness-shire, IV2 7QP.
The Company’s Delivery Contractors means any contractors, sub-contractors or other authorised representative appointed by the Company to deliver the Goods to the Premises
Conditions means the following Terms and Conditions of Sale
Contract means any Contract for the supply of the Goods by the Company to the Customer
The Customer means any person or persons, firm, business, partnership, company or other organisation with whom the Company contracts for the supply of the Goods
The Goods means all goods, materials, equipment and items supplied by the Company to the Customer to include, where appropriate, all replacements thereof and additions thereto
Order means an order placed by the Customer with the Company for the supply of the Goods
The Premises means the delivery location address for the Goods as nominated by the Customer and advised to the Company. The Company shall only deliver and enter into a Contract with a Customer where the Premises are in England, Scotland or Wales or Northern Ireland
Company’s Literature means any publication by the Company published from time to time to promote the Goods whether in written, electronic or other recorded form to include, but not limited to, brochures, catalogues and price lists.
The Company’s Premises means the premises from which the Company may trade from time to time
The Price means the price for the supply of the Goods by the Company to the Customer
Force Majeure means an event which occurs outside the Company’s control
Website shall mean the website of the Company
3. PRICE
3.1 The Price shall subject to these Conditions be the price detailed on the Company’s Website or in the Company’s Literature or as may otherwise be notified by the Company to the Customer in writing and shall be valid until such time as amended or varied by the Company.
3.2 The Company reserves the right to amend the Price at any time at the Company’s sole discretion and without being responsible for any form of loss.
3.3 All prices detailed on the Company’s Website or in the Company’s Literature include packaging and delivery charges (if order is value is greater that £1000 and within the UK) but where applicable, are exclusive of any substitute taxes, levies, duties, imports, fees or charges whatsoever and howsoever payable, all of which shall be payable by the Customer in full and/or re-imbursed to the Company as appropriate. The Customer shall at all times indemnify the Company against non-payment of the same.
3.4 The Company reserves the right to withdraw any of the Goods for sale at any point (whether before or after an Order has been placed) at the Company’s sole discretion and without being responsible for any form of loss or damage.
3.5 Any typographical or clerical error or omission relating to the Price on the Company’s Website, Company’s Literature, Order, acceptance of Order, invoice or any other document issued by the Company shall be subject to correction without liability on the part of the Company at whatever time and whenever such a correction shall be deemed necessary by the Company.
3.6 Should the Company be prevented from adhering to the delivery date by the Customer’s postponements or delays (howsoever arising) then the Company reserves the right to amend the Price to reflect any extra costs incurred to the Company thereby.
3.7 Should the Company or the Company’s Delivery Contractors be unable to, or be prevented from, delivering the Goods to the Premises, the Company reserves the right to amend the Price to reflect any extra costs incurred to the Company as a result.
4. CONTRACT
4.1 Whilst the Company shall endeavour to ensure at all times that the details portrayed on the Company’s Website, Company’s Literature or elsewhere, including Goods descriptions, dimensions, drawings, specifications, sizings, photographs, colours, weights and information relating to the Goods is accurate, at all times such details are approximate only and do not form part of the Contract. The Company shall not be held responsible for any variation of the same nor have any liability in respect thereof. The Customer’s attention is in particular drawn to Clause 10.5 below.
4.2 The Company reserves the right at any time and without notice to amend, alter or change the design, make-up, materials or construction of any of the Goods provided at all times that the changes do not affect the quality, substantial appearance of, or performance of the Goods as anticipated at the time of the Order and the Customer shall raise no requisition in respect of the same.
4.3 A Contract shall only exist when an Order has been placed by or on behalf of the Customer and accepted by the Company notifying the Customer of such acceptance in writing. All Orders must be placed by the Customer by completing the Company’s written Customer Order form (which shall be available to the Customer on the Company’s Website or from the Company upon request) and returned to the Company by electronic mail, post or fax. The Company’s acceptance of an Order shall be sent to the Customer by electronic mail, post or fax and the Company’s confirmation of such transmission to the Customer shall be final and binding on both parties.
4.4 The Company shall be entitled to regard any person placing an Order with the Company as having been authorised by the Customer to do so and shall bind the Customer in its entirety.
4.5 The Company shall be entitled to cancel any Contract at any time for whatever reason and shall not be responsible to the Customer for any loss or damage arising therefrom, subject to the Company refunding to the Customer any monies paid by the Customer to be agreed between the Company and the Customer.
5. PAYMENT
5.1 In consideration of the supply of the Goods by the Company to the Customer, the Customer shall pay the Price.
5.2 Payment of the Price shall be paid by the Customer to the Company at the time of the Order. The Company accepts payment by Visa, Delta, Visa Electron, Mastercard, Eurocard, Switch, Maestro, Solo, by bank transfer, by cheque or postal order.
5.3 Time for payment shall be of the essence. In the event that payment has not been received and the Order has been confirmed, the Company shall be entitled to charge interest on any balance due at the rate of 4% above Barclays Bank plc minimum base rate, with interest being calculated from the on which payment of the Price is due.
5.4 Payment of the Price shall only be deemed to have been made where the Company has received payment of the Price in cleared funds.
5.5 The Price shall be paid by the Customer without any deduction whether by way of set off, counterclaim, discount or otherwise.
6. DELIVERY
6.1 At the time of placing an Order the Customer shall specify on the Company’s Customer Order form the Premises for the delivery of the Goods.
6.2 No delivery of the Goods shall take place until the Company has received payment of the Price in cleared funds.
6.3 The Customer confirms and acknowledges that the Company may at its sole discretion appoint the Company’s Delivery Contractors to deliver the Goods.
6.4 In consideration of the payment of the Price by the Customer to the Company the Company or the Company’s Delivery Contractors shall deliver the Goods to the Customer at the Premises on a date to be notified and, where-ever possible, agreed with the Customer. Delivery shall be effected as detailed in Clause 6.5 below.
6.5 Delivery of the Goods shall be effected and be deemed to have taken place by the Company or the Company’s Delivery Contractors delivering the Goods to the Premises. The Company warrants to ensure that adequate access is available to the Premises to enable the Company or its Delivery Contractors to deliver the Goods and in the event that it is not, the Goods shall be delivered to the closest point of accessibility to be determined by the Company, its contractors, employees or representatives at their sole discretion and the Customer shall raise no objection in this regard.
6.6 Notwithstanding Clause 6.5 above, in the event that the Company, its contractors, employees or representatives deem that it is impossible to deliver the Goods, the Company reserves the right to charge to the Customer a minimum charge of £25 to cover part of the cost of failed delivery.
6.7 The Company shall not be liable for any penalty, loss, injury, damage, cost or expense arising from any delay or failure in delivery of the Goods or performance of the Contract from any cause at all, nor shall any such delay or failure entitle the Customer to refuse to accept any delivery under the Contract, performance of the Contract or to repudiate the Contract.
6.8 Any dates quoted or provided by the Company to the Customer or by the Customer to the Company for delivery are approximate only, although the Company shall use its best endeavours to supply the Goods within any time notified by the Company to the Customer but time shall never and not be of the essence at any point. The Company shall not incur any liability whatsoever for failure either by itself or the Company’s Delivery Contractors to supply or deliver Goods by any given date or dates.
6.9 The Customer shall carefully examine the Goods upon delivery and shall notify the Company in writing on the Company’s written Customer Complaints form (which shall be available to the Customer on the Company’s website or from the Company upon request) of any shortages or defects discoverable upon careful examination and return the Complaints form to the Company. Any other purported notification by the Customer to the Company of such alleged shortages or defects shall not be valid. Such notification must be received by the Company within 7 days of delivery. In the absence of such notification within this stated time and in this stated form, the Company hereby excludes all liability in respect of any defects or shortages.
6.10 For the avoidance of doubt, delivery of the Goods may take place separately and on a piecemeal basis.
7. RETURN OF GOODS
7.1 In the event that a Customer should be of the opinion that the Goods are damaged or defective the Customer’s attention is drawn to Clauses 6.8 and 10.
7.2 Following receipt by the Company of notification by a Customer of a complaint pursuant to Clause 6.8 above, the Company shall at the Company’s expense collect the Goods from the Customer from the Premises at a time to be agreed between the parties and shall transfer the Goods to the Company’s Premises to thereafter be examined by the Company.
7.3 If following the Company’s examination of the Goods the Company shall be satisfied that in the Company’s opinion the Goods are satisfactory and are as detailed in the Order, and are not damaged nor defective, Company shall notify the Customer in writing of such findings following which the Customer shall have a further 7 days to cancel the Order. In the event that the Customer cancels the Order in the circumstances set out in this Clause 7.3, the Company shall be entitled to deduct from any payment received from the Customer a minimum sum of £25.00 from any monies refunded to the Customer + any insured carriage fees to return the goods. The Customer must make payment of such collection charges before collecting the Goods from the Company’s Premises at the Customer’s own expense at a time to be agreed between the Company and the Customer.
7.4 In the event that the Customer has failed to collect such Goods within the time specified by the Company, the Company shall be entitled to sell, transfer, dispose of or otherwise deal with the Goods as it sees fit, notwithstanding that title to the Goods may have passed to the Customer pursuant to Clause 9. The Customer acknowledges that in such circumstances it has no claim or right to the Goods whatsoever.
7.5 Any Goods delivered to a Customer may subject to Clauses 7.7 and 7.8 below be cancelled at any time between placement of the Order and 7 days from the date of delivery of the Goods. The Customer in such circumstances shall contact the Company’s customer service department to arrange for collection of the Goods from the Premises which shall be collected by the Company or the Company’s Delivery Contractors at a minimum cost of £25.00which shall be deducted by the Company from any monies refunded to the Customer.
7.6 Where any Order is cancelled by a Customer any monies paid to the Company by the Customer shall (after taking account of any deductions permitted by this Clause) be refunded to the Customer within 30 days of receipt by the Company of notification from the Customer that it wishes to cancel the Order.
7.7 The Customer shall not be permitted to cancel an Order and the Company shall not accept returned Goods where:
7.7.1 In the Company’s reasonable opinion the Goods have been misused, mis-applied, damaged or destroyed by the Customer;
7.7.2 The Goods have not been returned to the Company in the same or similar packaging to that in which they were supplied;
7.7.3 Mattresses or other cushioned items have been opened.
7.7.4 In relation to: (a) leather upholstery Goods or (b) bespoke Goods that have been manufactured to meet with a Customer’s specific requirements.
7.8 At the companies discretion returns maybe made which are subject to clause 7.7.
8 RISK
8.1 The risk in the Goods shall pass to the Customer immediately upon delivery and the Customer shall take out and ensure appropriate insurance is in place accordingly.
9 RETENTION OF TITLE
9.1 Notwithstanding clause 8.1 above, the Company shall retain title and ownership in the Goods until the Price and all other sums outstanding and owing by the Customer to the Company are paid in full.
9.2 Pending payment in full pursuant to clause 5 above, the following sub-clauses shall apply.
9.2.1 The Customer shall store the Goods separately and in such a way that they can be readily identifiable as belonging to and being Goods of the Company;
9.2.2 The Customer shall at the Customer’s own expense immediately return the Goods to the Company should the Company or its authorised representatives so request at any time after payment is due.
9.2.3 In the event that the Goods shall be in any way mixed, compounded, or entwined with the property of a third party or parties then the product or products thereof shall be deemed to be held in common with such third party or parties.
9.2.4 Without prejudice to clause 8 above, the Customer shall hold the Goods as the Company’s trustee and bailee and shall keep the Goods properly stored, protected, insured, labelled and identified as being the Company’s property.
9.2.5 The Customer shall not sell, give away, transfer or otherwise dispose of the Goods until the Price and all sums outstanding have been paid to the Company. In the event that the Customer should do so then any monies received and the proceeds of sale, or disposal, including any cheque received or other payment shall be held on trust by the Customer for the Company and the Customer will forward the cheque or payment to the Company immediately. Pending the same, the Customer shall keep any monies received in a separate account so as to be identifiable as the Company’s monies. In particular, but without prejudice to the foregoing, the Customer shall not pay the proceeds into any bank account which is overdrawn.
9.2.6 The Company shall be entitled at any time following the date upon which payment is due and without additional notice to enter the premises of the Customer or any third party where the Goods are situate or shall be stored and repossess the same accordingly. For the avoidance of doubt, the Customer irrevocably consents to allow the Company access onto their premises for this purpose. The Customer shall reimburse the Company for all reasonable expenses and fees incurred (including, but not limited to, legal expenses) in so doing.
9.2.7 The Company shall be entitled to maintain an action for the Price of the Goods notwithstanding that title to the same shall not have passed to the Customer.
9.2.8 The Customer will immediately notify the Company of any damage to the Goods and will hold any insurance monies received in trust for the Company absolutely. In the event that a claim is to be made under the Customer’s insurance, the Company may, at the Company’s sole discretion, conduct negotiations and effect a settlement with the insurers in place of the Customer. The Customer at all times irrevocably authorises the Company to collect any insurance monies from the insurers. The Company may apply any insurance monies as the Company shall see fit.
10 WARRANTY
10.1 In lieu of all warranties, conditions, or liabilities imposed by law, the Company’s sole liability in respect of any defect in, damage to, or failure of the Goods supplied or for any loss, injury, or damage attributable thereto is limited to making good by replacement or repair defects which under proper use appear therein and arise solely from defective design, workmanship, or faulty materials within a period of 3 calendar months from the date of delivery.
10.2 The Company will only accept liability under clause 10.1 above provided it is notified in writing within 7 days of any such defect or failure becoming apparent to the Customer and the provisions set out in Clause 7.3 above have been complied with.
10.3 At no time shall the Company be liable for any defect in, failure of, or damage to the Goods as a result of misuse by the Customer or any third party, due lack of care and attention, lack of general maintenance, or inappropriate use.
10.4 At no time shall the Company be liable for any defect in, failure of, or damage to the Goods or non performance or inadequate performance of the Contract which occurs as a result or consequence of the actions of any third party to include, but not limited to, the Company’s suppliers or the Company’s Delivery Contractors.
10.5 In particular, the Customer accepts and acknowledges in entering into the Contract that the Goods may consist of natural product and that there may be some variation in the colour, texture and general appearance of the Goods and the Customer shall not regard the same as a breach of Contract.
11 LIABILITY
11.1 The Company shall only be liable as stated in clause 10 above. This clause is in lieu of all conditions, warranties, and statements of whatever nature in respect of the Contract whether express or implied by statute, trade, custom, or otherwise and any such condition, warranty, or statement is hereby excluded.
11.2 Without prejudice to the foregoing clauses, the Company’s liability for any loss or damage sustained by the Customer as a direct result of any breach of the Contract or any liability whatsoever of the Company (including negligence) in respect of the performance of the Contract shall be limited to payment of damages not exceeding the invoice value of the Contract.
11.3 The Company will not be liable for the following loss or damage which shall or may arise out of or in connection with any failure in, defect of, or damage to the whole or any part of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or its use by the Customer or howsoever caused (even if foreseeable or in the Company’s contemplation)
11.3.1 Loss of profit or profits, business, or revenue whether sustained by the Customer or any third party, and/or
11.3.2 Special, indirect, or consequential loss or damage, whether sustained by the Customer or any third party, including, but not limited to, loss of profit, loss of interest, loss of Contract, loss of chance, damage to property of the Customer or any third party, and/or
11.3.3 Any loss arising from any claim made against the Customer by any person or third party, and/or
11.3.4 Any personal injury to the Customer or any other person or individual where such injuries are not caused by the Company’s negligence.
11.4 The Customer shall indemnify the Company against all claims, actions, costs, expenses (including any Court costs and legal fees incurred) or other liabilities whatsoever. Non-exhaustive illustrations of the same include
11.4.1 Any liability arising under the Consumer Protection Act 1987, unless caused by the negligent act or omission of the Company in the supply of the Goods, and/or
11.4.2 Any claim for breach of industrial and/or intellectual property rights arising out of the order of the Customer, and/or
11.4.3 Any breach of Contract or negligent or wilful act or omission of the Customer in relation to the Contract.
11.5 These conditions do not purport to exclude or restrict any liability which is prohibited by Section 2 (1) and (6) of the Unfair Contract Terms Act 1977.
12 FORCE MAJEURE
12.1 The Company shall be entitled, without liability on its part, and without prejudice to its other rights, to terminate the Contract or any unfulfilled part thereof, or, at its option, to suspend or give partial performance under it, if performance by the Company or its suppliers is prevented, hindered, or delayed whether directly or indirectly by any reason or cause whatsoever beyond the Company’s or its supplier’s reasonable control, whether or not such cause existed on the date when the Contract was made. Non-exhaustive illustrations include act or acts of God, war, riot, terrorism, explosion, abnormal weather conditions, fire, flood, government action, strike, lock-out, delay by suppliers, accidents and shortage of materials, labour, or manufacturing facilities.
13 TERMINATION
13.1 In the event of any payment due by the Customer to the Company not being paid on the due date, or in the event of the Customer becoming insolvent or bankrupt or a petition being presented or a resolution being passed for the liquidation (otherwise for the purpose of amalgamation or reconstruction) or sequestration of the Customer or a receiver, administrator, administrative receiver or judicial factor being appointed over all or any of the assets of the Customer, or if any steps are taken in relation to any of the foregoing, or the Customer making any voluntary arrangements with its creditors generally, or if the Customer shall cease, or threaten to cease trading or carrying on business, or if the Customer shall, without prior written consent of the Company, sell or otherwise dispose of the whole or substantially the whole of its assets, or if the Company reasonably apprehends that any of the foregoing events is about to occur (and notifies the Customer accordingly), the Company shall be entitled to treat the Contract of which these conditions form part and any other Contract between the Company and the Customer as repudiated and shall be entitled to suspend deliveries to the Customer without being liable for any form of loss.
14. ENTIRE AGREEMENT CLAUSE
14.1 The Customer confirms that it has not relied upon any warranty, representation, or undertaking of or on behalf of the Company by any of its employees or agents (whether written or oral) in respect of the Goods and the Company shall have no liability in respect thereof.
14.2 This agreement supersedes any other arrangements, if appropriate, and whether past or present, Contracts, assurances, understandings, course of dealings, or promises between the parties hereto.
14.3 These Conditions represent the entire agreement between the Company and the Customer.
14.4 Nothing in these terms and conditions is intended to exclude nor limit the Company’s liability for fraud or fraudulent misrepresentation.
15. COMPATIBILITY
15.1 The Customer confirms and acknowledges that it is the sole responsibility of the Customer alone to ensure that the Goods ordered from the Company shall be appropriate for the Customer’s requirements. The Company shall not at any time be liable in any way shape or form for any information or suggestion provided by the Company (its employees or agents) in relation to the use of the Goods, the capabilities of the Goods, or as to whether or not the Goods shall be suitable for the Customer’s requirements, and/or compatible with any of the Customer’s own Goods.
16. INTELLECTUAL PROPERTY
16.1 The Company shall have and shall retain the property, copyright, and all other intellectual or industrial property rights in any designs, proofs, catalogues, brochures, pricelists, quotations, and literature generally prepared by the Company.
16.2 The Customer shall indemnify the Company from all actions, costs, claims, demands, expenses and liabilities whatsoever arising from any actual or alleged infringement brought in connection with clause 16.1.
17. MISCELLANEOUS
17.1 The Company may at the Company’s sole discretion subContract the performance of this Contract in whole or in part.
17.2 In the event of these Conditions conflicting with any other terms and conditions, then these terms and conditions shall prevail.
17.3 This Contract is between the Company and the Customer as principals and shall not be assignable by the Customer without express written consent of the Company.
17.4 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.
17.5 No waiver by the Company of any breach of Contract by the Customer shall be construed as a waiver of any subsequent breach of the same or any other provision hereof.
17.6 Failure or delay by the Company in enforcing or partially enforcing any provision of this Contract shall not be construed as a waiver of its rights generally under the Contract.
17.7 For the avoidance of doubt, nothing in this agreement shall confer on any third party any benefit or the right to enforce any term or terms of this agreement.
17.8 If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part then the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be effected thereby.
17.9 Obligations by more than one person are joint and several and where any party under this agreement at any time is more than one person, references to it are to each person individually as well as jointly with the others comprising it.
17.10 Words importing the singular also include the plural and vice versa where the context so requires.
17.11 The headings, marginal notes, and notes for guidance in this agreement shall not be deemed to be part thereof nor taken into consideration in the interpretation or construction thereof.
17.12 All references herein to clauses are references to clauses numbered in this agreement and not to those in any other document unless otherwise stated.
17.13 These terms and conditions on behalf of the Company have been prepared to reflect the Unfair Contract Terms Act 1977. The Company considers these terms and conditions to be reasonable. Should the Customer consider that these terms and conditions may be unreasonable, given the Customer’s particular circumstances, then the Customer shall inform the Company before any order is placed and Contract entered into. In such circumstances, the Company may, at the Company’s sole discretion, either agree to vary these terms and conditions, enter into different terms and conditions, or insist upon the Customer being bound by these terms and conditions which, for the avoidance of doubt, the Company maintains at all times are fair and reasonable. Should the Customer not notify the Company to the contrary then the Customer shall be deemed to accept that these terms and conditions are fair and reasonable.
17.14 These Conditions shall be governed by and construed in accordance with the law of Scotland and the parties shall submit to the jurisdiction of the Scottish Courts in their entirety.
