Terms and Conditions
In these General Conditions F.M.BIRCH LIMITED is referred to as "The Company" the person to whom the Company is selling is referred as 'The buyer" and the goods, material equipment or services (as applicable) being sold by the Company to the buyer is referred to as "the product".
All sales are made and all orders accepted are subject to the following conditions. No contract shall come into existence until such time as the Company has accepted the buyers order by communicating acceptance of the order to the buyer. The following conditions govern the contract
to the entire exclusion of all other terms and conditions (including any terms and conditions which the buyer purports to apply under any quotation acknowledgement or acceptance of order, specification or any other documents).
1 VARIATIONS OF CONDITIONS
No amendments or change shall be made in these conditions except by agreement in writing signed by an authorised official of each party.
In the case of all products sold unless the contract expressly provides otherwise the price payable by the buyer for each delivery shall be the Company's ruling price at the date of despatch which shall be the price specified on the acceptance of order produced by the Company together with any additional costs incurred by the Company resulting from lack
of instructions from the buyer or any increases in the prices of materials forming part of the product to which shall be added any Value Added
Tax or any other Tax or duty relating to the manufacture transportation import sale or delivery of the products together with any appropriate freight carriage or related charges specified in the relevant carriage tariff at the date of despatch.
2.2 PRICE VARIATION
Where the contract between the buyer and the company provides for variation in the price of either goods or freight carriage and related charges by reference to fluctuation in the rates of exchange of currency then the Company shall have the option of fulfilling the contract at such adjusted prices as reflect the changes in the rate of exchange or in circumstances where the fluctuation exceeds 5 per cent and on giving notice to the buyer the option of cancelling the contract.
With the advent of numerous and frequent price increases we strongly recommend that prices be queried with our Sales Office at the time of placing order.
(a) All quotations unless a contrary intention appears on the face thereof are open for acceptance for a period of twenty eight days from the date thereof. Any acceptance received late may be accepted by the Company in its discretion in which case it shall be binding upon the buyer
(b) Clerical errors and/or omissions in the Company's quotation acknowledgement or invoice shall be rectified by the Company as soon as discovered and such errors and omissions shall not be binding upon the Company nor permit the buyer to vary the contract or any of its terms.
2.4 REJECTION OF ORDERS
The Company reserves the right to reject an order on giving written notice thereof to the buyer within seven days of receipt of the order. In the event of such rejection no liability shall accrue to the Company.
3 PAYMENT OF ACCOUNTS
Unless otherwise expressly agreed between the Company and the buyer the price is strictly net and is payable in the case of deliveries to a buyer in the United Kingdom at the end of the month following that in which the products are despatched. Payment shall be due from the buyer to the Company in English pounds sterling. If payment shall not have been made by the due date the Company reserves the right to claim statutory interest at 8% above the Bank of England base rates from the date that the debt becomes overdue until the date of actual payment (including interest) both before and after any judgment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. Payment in respect of any product supplied shall become due immediately upon the commencement of any act or proceeding in which the buyer's solvency is involved.
4 PROPERTY AND RISK
(a) The risk in the product shall pass to the buyer when the product is loaded on to the buyer's or the buyer's carriers vehicle or when delivered to the buyer's order.
(b) The ownership of the product shall remain with the company which reserves the right to dispose of the material until payment in full for the product has been received by it in accordance with the terms of this contract or until such time as the buyer sells the product to its customers by way of a bona fide sale at the full market value.
(c) If payment is overdue in whole or in part the Company may (without prejudice to any of its other rights) recover or re-sell the product (or any of it) and may enter upon the buyer's premises by its servants or agents for that purpose and the buyer hereby grants the Company an irrevocable licence to enter its premises for this purpose.
(d) Until payment in full is made by the buyer to the Company in respect of any indebtedness arising other than from a failure to pay for the product the subject matter of this order, ownership of the product shall remain with the Company.
(e) The buyer shall pending payment to the Company store the goods (at no cost to the Company) separately from all of the goods of the buyer or any third party in such a way that they remain readily identifiable as the Company's property and shalll not destroy, deface or obscure any identifying mark or packaging on or relating to the product.
(f) Notwithstanding the foregoing the Company may at its election and in its absolute discretion by notice in writing to the buyer transfer the property in the product to him.
5 PRODUCT AVAILABILITY
(a) All offers to supply products from stock are subject to the products being available at the time of receipt by the Company of the buyer's order.
(b) Any increase occurring after the date hereof in the rate of insurance or other charge, tax, levy duty or imposition charged to the Company relating to the product shall be reimbursed to the Company by the buyer.
(c) MATCHING WIDTHS We draw your attention to the difficulties in providing an exact match on shades and pattern repeats when different widths are required to be laid together. As it is not possible for us to be given or to obtain from the manufacturers guarantees of perfect matching, we regret that orders are accepted on the understanding that the nearest obtainable match is provided. Naturally, every effort will be made to supply as satisfactory a match as possible.
(d) SIZES: All goods are sold subject to dimensional tolerances laid down in British Standards.
6.1 DELIVERY BY INSTALMENTS
In all cases where the contract provides for delivery by instalments or part deliveries each instalment or part delivery shall be deemed to be a separate contract and cancellation of any one instalment or part delivery shall not avoid or affect contracts as to the other instalments or part deliveries.
Notwithstanding the provisiorns of clause 6.1 if the buyer breaches any instalment of a contract in such a way as entitles the Company to terminate the contract, any termination by the Company of the contract shall (if the Company indicates it to be the case) include termination of all future instalments of the contract.
7 BUYERS DEFAULT
The Company may, at its option, cancel or withhold all further deliveries under the contract in the event that any debt is due and payable to the Company by the buyer but is unpaid or upon the commencement of any act or proceeding in which the buyer's solvency is involved or in the event of the buyer being a Company of the appointment of a Receiver.
8 NON DELIVERY AND DELAY
(a) Dates for delivery are approximate and unless the parties agree in writing otherwise time shall not be of the essence of the agreement.
(b) The Company shall not be liable for any direct or indirect loss arising from non-delivery or delay in delivery of any products as a result of any cause beyond the Company's reasonable control. The buyer shall have no right to cancel any order nor to refuse delivery of any consignment on the grounds of delay or non-delivery resulting from such a cause.
(c) Where a delay in delivery or non delivery is due to a cause within the Company's reasonable control the Company's liability and the buyer's exclusive remedy shall be limited to the right to cancel the contract to the extent only of the products affected.
Cancellations cannot be accepted on cut lengths after goods have been cut or despatched. Cancellations must be confirmed in writing.
When goods are returned solely on the account of customer error, we will only issue credit against the actual value obtained for the goods on resale, less 20% handling charge based on the original invoice value. In cases where goods returned are seriously damaged irn transit due to inadequate packing or failure to roll the carpet up properlY, credit for scrap value only can be expected. Credit up to a maximum of 80% only will be given. Carpet which is returned is at the customer's risk and should be clearly marked with the sender's name and address.
11 LOSS OR DAMAGE IN TRANSIT
(a) Save in cases where the Company is responsible for the delivery of the product it shall not be liable for any damage, shortage or loss in transit or in respect of any claim consequential thereon.
(b) In cases where the Company is responsible for the delivery of the product the buyer shall notify the Company in writing of any shortage, damage or loss in transit within fourteen days of the date of receipt.
(c) In cases where notice is given under (b) hereof the Company's liability shall be limited to the cost of the product so damaged, lost or in short supply. The company shall not be liable for any consequential loss save in cases where the buyer has given notice in writing to the Company at the time of placing the order of the natured extent of any claim liable to arise from loss or damage in transit.
(d) In cases where the Company is responsible for delivery of the product the buyer shall be responsible for the purpose of unloading and such unloading shall be at the buyer's risk. In the event of unloading being undertaken by the Company's employees either (a) pursuant to the buyer's instructions or (b) in the absence of instructions from the buyer, such unloading shall again be at the buyer's risk.
(a) Any defects in the product howsoever arising must be notified in writing to the Company by the buyer within three months of their receipt.
(b) In the event of such notice being received and the defects complained of being confirmed by the Company or by an independent expert the Company shall replace the defective product free of charge or allow the buyer a credit in the amount of the defective products.
(c) Where products are reported to be so defective they must in all instances be returned to the Company carriage paid by the buyer for examination by the Company unless the examination by the Company demonstrates that the products were defective in which case the Company shall reimburse the buyer for the costs of carriage.
(ct) Save as hereinbefore provided the Company shall be under no liability to the buyer in respect of any defects in the products.
(a) The buyer shall give the Company instructions for delivery of the product not less than seven days before delivery is required and in all cases such notice must be reasonable.
(b) If the buyer does not take delivery of the product at the appointed place and time the Company shall be entitled to store the product on the buyer's behalf and all charges for storage, insurance and demurrage thereby arising shall be payable by the buyer.
(c) The Company shall be entitled to invoice products in accordance with condition 'Payment of Accounts' hereof when the buyer has not taken delivery of them at the appointed place and time.
14 EXCLUSIONS AND LIMITATION OF DAMAGE
14.1 Nothing in these conditions shall exclude or limit in any way the Company's liability for fraudulent misrepresentation or death or personal injury caused by its negligence.
14.2 The Company shall be liable to the buyer for direct losses caused by the Company's breach of this contract such liabilities not to exceed the value of the contract, unless the Company's breach is attributable to any act or omission of the buyer in which event the Company shall have no liability to the buyer.
14.3 The Company shall under no circumstances be liable for any indirect or consequential loss (including loss of profit) suffered by the buyer arising from any act or default of the Company pursuant to tlhis contract or otherwise.
The buyer shall indemnify the Company in respect of all damage or injury occurring to any person or property or any loss consequential thereon
and against all actions, suits, claims, demands, charges or expenses in connection therewith for which the Company may become liable in respect of the products the subject matter of this contract save in the event that such damage or injury shall have been occasioned by the negligence of the Company its servant or agents.
It is the responsibility of the claimant/recipient to notify the Inland Revenue where appropriate.
17 ENGLISH LAW
These conditions and any contract made in accordance therewith shall be construed and take effect in accordance with English Law and the parties hereby submit to the exclusive jurisdiction of the English courts.
(a) The Company's rights shall not be prejudiced by any indulgence or forbearance extended to the buyer and no waiver by the Company of any specific breach of the buyer shall operate as a waiver of any other breach.
(b) In the event that it shall be determined that any of these conditions shall be invalid or unenforceable for any reason whatsoever it is hereby declared and confirmed that such determination shall not affect any other provisions of these conditions all of which shall remain in full force and effect.
19 PILE PRESSURE
All pile carpets, especially plain grounds, are liable to shading that is to show light and dark patches arising from unequal crushing of the surface. Light and delicate carpets are liable to become soiled in wear, and so apparently to loose colour. No care on the part of the manufacturers can obviate these tendencies which are inherent in all pile fabrics, nor can we accept any responsibility in connection with same.