Terms and Conditions
YARN BOX: TERMS AND CONDITIONS OF SALE
1.1 In these Conditions the following words have the following meanings:
Buyer: the person(s), firm or company who purchases Goods from the Company;
Company: Y63 Caldecott Road, Abingdon, Oxfordshire OX14 5EZ
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
Delivery Point: the place where delivery of the Goods is to take place under Condition 4;
Goods: and goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
Law: English Law
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and references to the singular include the plural and vice versa as the context admits or requires.
1.4 In these Conditions headings will not affect the construction of these Conditions.
2. APPLICATION OF TERMS
2.1 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of 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 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by the managing director of the Company. 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 will exclude or limit the Company’s liability for fraudulent misrepresentation.
2.3 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 Goods subject to these Conditions.
2.4 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement if order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.5 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.6 Any quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid of a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quality and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, photographs, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract and this is not a sale by sample.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place when Goods are dispatched.
4.2 The Buyer will take delivery of the Goods when the Goods are ready for delivery.
4.3 If no dates are specified by the Company for delivery of the Goods, delivery will be within a reasonable time. Time for deliver shall not be made of the essence by notice.
4.4 If for any reason the Buyer will not 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, licences or authorisations:
4.4.1 risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.4.2 the Goods will be deemed to have been delivered; and
4.4.3 the Company may store the Goods until physical delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.5 The Buyer will be able to provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for loading the Goods.
4.6 The Company may deliver the Goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with the provisions of the Contract.
4.7 Each instalment will be a separate Contract and no cancellation or termination of any one Contract relation to an instalment will entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.8 On delivery the risks of loss, breakage, all damage and all other risks shall pass to the Buyer.
4.9 If the Buyer cannot accept delivery, the Company may at its option:
4.9.1 store and insure the goods at the Buyer’s expense and risk; or
4.9.2 sell the goods at the best price reasonably obtainable and (after deducting reasonable storage insurance and selling costs) pay to the Buyer any excess over the sale price or charge the Buyer for any shortfall; or
4.9.3 re-arrange delivery provided that the Company may charge the Buyer for the additional delivery costs incurred.
4.10 The Buyer may request a Proof of Delivery, provided that this request is made in writing within 3 months of the date of delivery and the Company shall use reasonable endeavours to provide such proof. Thereafter, delivery shall be deemed to have been successfully completed.
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within three working days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time of issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. PROPERTY AND RISK
6.1 Ownership of the Goods remains with the Company and will not pass to the Buyer until one of the following events occur:
6.1.1 the Buyer pays the Company for all of the Goods and owes no other amounts to the Company in respect of other goods supplied by the Company;
6.1.2 the Buyer sells the Goods in accordance with the Contract in which case ownership of the Goods will pass to the Buyer immediately before the Goods are delivered to the Buyer’s customer.
6.2 Where the Goods are attached to or incorporated in other goods or are altered by the Buyer, ownership of the Goods shall not pass to the Buyer by virtue of the attachment, incorporation or alteration if the Goods remain identifiable and, where attached to or incorporated in other goods, can be detached or removed from them.
6.3 The Buyer must store the Goods separately from any other goods until:
6.3.1 they become the Buyer’s property; or
6.3.2 they are attached to or incorporated in other goods; or
6.3.3 they are delivered to a purchaser from the Buyer.
6.4 If the Buyer is overdue in paying for the Goods or any other goods supplied by the Company, the Company may, if still owner of the Goods, recover and resell them. The Company may enter the Buyer’s premises for this purpose and may, if necessary, detach or remove the Goods from any other goods. This does not affect any other rights of the Company.
6.5 Until the Buyer has paid the Company for the Goods and all other goods which the Company has supplied to the Buyer:
6.5.1 if the Buyer sells the Goods, the Buyer shall hold the proceeds of sale on trust for the Company in a separate bank account;
6.5.2 if the Company may trace the proceeds of sale that the Buyer receives into any bank or other account which the Buyer maintains;
6.5.3 if the Buyer sells the Goods, the Company may, by written demand, require the Buyer to assign to the Company the Buyer’s rights to recover the price from its purchaser; and
6.5.4 the Buyer must not assign to any other person any rights arising from a sale of the Goods without the Company’s written consent.
6.6 Risk in the Goods passes to the Buyer on delivery in accordance with Condition 4.
6.7 The Buyer must insure the Goods against all insurable risks for the price due to the Company for the Goods.
6.8 If the Goods are destroyed by an insured risk before the Buyer has paid for them, the Buyer shall hold the insurance proceeds as the Company’s trustee.
7.1 Unless otherwise agreed by the Company in writing the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packing, loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
8.1 Subject to Condition 8.4, payment of the price for the Goods is due in pounds sterling on delivery or the date the Goods are deemed to be delivered. The Company may bring an action against the Buyer for the price of the Goods if the Buyer does not pay that price as required by the Contract.
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 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
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 but the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment.
If the Buyer:
9.1 being a company,
9.1.1 has a petition presented for its winding up; or
9.1.2 passes a resolution for voluntary winding-up (other than for the purpose of a bona fide amalgamation or reconstruction); or
9.1.3 enters into a voluntary arrangement with its creditors; or
9.1.4 becomes subject to an administration order; or
9.1.5 has a receiver appointed of all or any of its assets; or
9.2 being an individual or firm,
9.2.1 becomes bankrupt or insolvent; or
9.2.2 enters into a voluntary arrangement with creditors,
then the Company shall be entitles to treat the Contract as being at an end or suspend any further deliveries under the Contract. If the Goods have been delivered but not paid for, the price shall become due immediately regardless of any previous agreement to the contrary.
10.1 The Company warranties that (subject to the other provisions of these Conditions) upon delivery the Goods will:
10.1.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
10.1.2 be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer has made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
10.2 The Company shall not be liable for a breach of any of the warranties in Condition 10.1 if:
10.2.1 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
10.2.2 the Buyer alters or repairs such Goods without the written consent of the Company.
10.3 Subject to Condition 10.2, if any of the Goods do not conform with any of the warranties in Condition 10.1 the Company shall at its option repair or replace such Goods 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.
10.4 If the Company complies with Condition 10.3 it shall have no further liability for a breach of any of the warranties in Condition 10.1 in respect of such Goods.
11. LIMITATION OF LIABILITY
11.1 Subject to Condition 10, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
11.1.1 any breach of the Contract; and
11.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 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.
11.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
11.4 Subject to Conditions 11.2 and 11.3:
11.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of the Goods; and
11.4.2 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.
12.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12.2 The Company may assign the Contract or any part of it to any person, firm or company.
13. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, act of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
14.1 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.
14.2 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.
14.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
14.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
15.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post:
15.1.1 (in case of communications to the Company) to 14 Stalham Way, Chigwell, Ilford IG6 2GE or such changed address as shall be notified to the Buyer by the Company; or
15.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
15.2 Communications shall be deemed to have been received:
15.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
15.2.2 if delivered by hand, on the day of delivery;
15.2.3 if sent by facsimile transmission on a working day prior to 5.00pm, at the time of transmission and otherwise on the next working day.
15.3 Communications addressed to the Company shall be marked for the attention of the Managing Director.
15.4 When the Buyer visit www.yarnbox.co.uk or send e-mails to the Company, the Buyer are communicating with the Company electronically. The Company will communicate with the Buyer by e-mail or by posting notices on the website. For contractual purposes, the Buyer consent to receive communications from the Company electronically and the Buyer agrees that all agreements, notices, disclosures and other communications that the Company provide to the Buyer electronically satisfy and legal requirement that such communications be in writing. This condition does not affect the Buyer’s statutory rights.