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SALESMARK LIMITED TERMS AND CONDITIONS OF SALE 1st April 2010
1.DEFINITIONS
‘The Company’ means Salesmark Ltd. ‘The Customer’ means the person, firm, partnership or company who has contracted with the company for the purchase of goods. ‘The Goods’ means the goods subject of the Contract or Contracts
to which these conditions apply. Each and every invoice is deemed to be a separate contract.
2.GENERAL
1.1 Quotations are valid for 30 days from the date of issue.
2.2 No officer, employee or agent of the company has authority to contract on any conditions other than these conditions, nor to amend, vary or waive these conditions or to make any binding representation or warranty.
1.3 The company’s quotations and price lists do not constitute an offer. Orders placed with the company shall not be binding on the company or deemed binding by it unless and until the company accepts the order either orally or in
writing it’s implied acceptance on the part of the company by its fulfilment of the order.
3.DESCRIPTION OF GOODS
Except as otherwise agreed in these conditions, all drawings, descriptive matter, samples, specifications, catalogues and advertising matter are published or issued for the sole purpose of giving an approximate idea of the goods
described therein and no information contained in any of them or in any other document whatever shall form part of the contractual description of the goods nor shall they form part of any contract. The company reserves the right to
make without notice such reasonable modifications in specifications, descriptions, designs, materials or finishes as it deems necessary or desirable. ‘The customer shall not be entitled to object or reject the goods or any of them by
reason of such reasonable modifications.
4.PRICE LISTS AND PRICES.
1.4 All price lists are issued by the company are intended only for the trade (and not consumers). All prices issued by the company are subject to alteration by the company at any time without notice.
1.5 Goods will be charged at the price ruling at the date of dispatch except from bona fide contract orders accepted at a fixed price when they are placed.
1.6 The price given in all quotations are based on the full quantities shown therein and the company reserves the right to revise prices in the event of quantities or the nature of the order being altered.
5.VALUE ADDED TAX
Prices quoted do not include VAT or equivalent in overseas markets.
6.CUT LENGHTS OF CARPETING AND OTHER ROLL GOODS
Cut length prices will be charged on all lengths of carpeting or other roll goods less than a full roll. Cut lengths will not be bound unless specially requested.
7.CARRIAGE
Orders for less than the minimum value specified in the relevant price lists of forwarded under special dispatch arrangements made at the customers request will be subject to a carriage charge. Goods will not be delivered to domestic
premises unless special arrangements are made. The company reserves the right to set appropriate minimum order values for overseas markets.
8.DESPATCH AND DELIVERY
8.1Whilst the company will use all reasonable endeavours to keep any stated dispatch or delivery date, it accepts no liability whatsoever for any loss or damage resulting from delay howsoever the same shall have been caused.
8.2 Where contracts do not specify a delivery date, the company shall deliver the goods as soon as they are available.
8.3 Failure to accept delivery to and/or pay for any instalment shall entitle the company at its option to treat the contract as repudiated or alternatively to store the goods in accordance with paragraph 8.5 below.
8.4 Save as regards the provisions as regards payment in condition 12 below. Each delivery shall constitute a separate contract and failure or defect in one delivery shall not affect in any way the contract in each remaining delivery.
8.5 In the circumstances set out in paragraph 8.3 above. If the company decides either at the customers request or on its own initiative to store the goods until such time as the customer is ready to take delivery thereof, then the
customer shall be liable to pay the company its reasonable storage charge together with the costs of re-delivery and of all extra loading and unloading costs caused by the customers failure to take delivery on the due date. Such goods
will be held in stock at the customers own risk.
8.6 When the customer must do something so as to enable the company to manufacture, finish and deliver the goods, such act must be done by the date stipulated by the company or if no date is so stipulated must be done in such time
as will enable the company to meet the estimated time stated for completion or delivery of the goods. The company will not be liable for any delays in delivery caused by any failure or delay on the part of the customer in performing
such acts.
8.7 If the company delivers to the customer 10% more or less than the quantity stated on the company acceptance of order, the customer shall not be entitled to object or reject goods or any of them by reason of such surplus or
shortfall and shall pay for the goods pro rata at the contract rate.
9. DAMAGE OR LOSS IN TRANSIT.
9.1The company will not be liable for damage for claims or loss in connection with non-delivery or damage to or shortage in goods unless in the case of non-delivery it is advised within 7 days from the date of invoice and in the case
of damage or of shortage, it is advised to the carrier and the company in writing within 3 days of delivery and the carriers note endorsed accordingly.
9.2 For any damage in transit or non-deliveries, the company will only be liable to replace the goods within a reasonable time and in case of damage subject to the goods being returned to the company forthwith.
10.RETURNS
10.1 the company will not accept any return of any goods or complaint, which arises from improper installation, the fitting of incorrect goods, or any claim for labour or other charge in connection with installation or removal. It is the
customer’s sole responsibility to ensure that the correct goods are installed. Salesmark do not accept any liability arising from the delivery of wrong goods other than to uplift and replace with the correct goods.
10.2 The company will not accept the return of any goods unless such return has received the prior approval of the company.
10.3 If a return is agreed then:
The company will provide
10.31Return documentation or labels once a return has been agreed upon.
10.32 Goods returned for credit. Due to the customers error will be credited only at 85% of the original price, if in perfect condition or scrap value if not in perfect condition. This includes returns arising from duplication of orders
due to failure of customers to mark confirmation orders as such. All returns must be complete with unopened packaging and in a full re-saleable condition.
11. COMPLAINTS
1.1 The goods should be inspected before they are cut, laid or used. The company cannot accept complaints/returns for manufacturing faults after the goods have been cut, laid or fitted.
11.2 No liability will be accepted for claims regarding fitness for purpose, suitability, physical defect quality standard or failure to comply with previously specified performance requirements in the following circumstances.
11.2.1 Where the goods are used in a location other than that recommended in the appropriate quality standard or
11.2.2 Where the goods have been used in a situation or for a purpose other than that specified in the order, or
11.2.3 Where the floor or surface preparation prior to fitting has not been prepared to a standard deemed satisfactory by the company or by the flooring trade generally or
11.2.4 Where the material or methods used in cutting, seaming or fixing including underlays where applicable are not of the type recommended by the company
12. TERMS OF PAYMENT
12.1 Unless otherwise agreed payment is due on the 30th of the month following the month of invoice (“The Due Date”) A 2.5% cash discount on the net value of the goods excluding VAT is allowed if paid by the 20th of the month
following the month of invoice. A discount of 3.75% on the net value of the goods excluding VAT is deductible if payment is made within 7 days of invoice receipt. Settlement discounts will not be allowed if payment is not made by
the due dates. Payment of invoices by credit card is subject to a 2% surcharge.
12.2 If the customer fails to make payment in full accordance with paragraph 12.1 above, then (without prejudice to any other rights of the company)
12.2.1 The company shall be entitled to suspend all or any deliveries to be made under that or any other contract with the customer but the customer shall not in any respect be released from its obligations to the company under that or
any such other contract.
12.2.2 Instead of suspension in accordance with paragraph 12.2.1 above, the company shall be entitled to terminate the relevant contract or any other contract with the customer in accordance with condition 2.3 below and to claim
damages from the customer for breach.
12.3 Interest will be charged at the rate of 2% per month on all amounts, which remain unpaid after the due date.
12.4 A customer shall not be entitled to withhold payment of any amount payable under a contract with the company because of a disputed claim of any nature against another contract with the company. The customer is entitled to
withhold only the disputed amount of a contract and not the entire value of the contract. Disputed invoices must be brought to the attention of the company in writing within 7 days of invoice date.
12.5 Time for payment shall be of the essence.
13. DEBT COLLECTION
Should the company need to employ a professional collection agency or solicitor to collect any monies due under the contract the whole cost of such collection including the professional fees and Court costs shall be borne by the
customer.
14.PASSING PROPERTY
Property in the goods shall not pass to the customer until the price of the goods and every other sum whatsoever which is due from the customer whether under this contract or otherwise howsoever have been paid in full.
14.2 This clause shall apply not withstanding that the goods have been affixed to or incorporated in real or other property.
14.3 Until the property in the goods delivered shall have passed to the customer in accordance with paragraph 14.1 the customer shall keep the goods in a fiduciary capacity as bailee and shall store them in such a way that they are
identifiable as the property of the company and are separate from all other goods in the possession of the customer.
14.4 Notwithstanding paragraphs 14.1 and 14.2 the customer shall be entitled to use or sell the goods in the normal course of the customers business but only on the following conditions.
14.4.1 If the goods at the time of sale by the customer remain identifiable and unincorporated and unmixed with other goods then the customer shall sell the goods on behalf of the company as owner thereof and the proceeds of sale
shall be held in trust for the company in a separate identified account.
14.4.2 If the goods are, prior to sale by the customer made up incorporated in or mixed with other goods, then if they remain separately identifiable the company shall retain title there to and if they do not remain separately identifiable.
The company shall become a joint owner of the goods in or with which the goods are incorporated or mixed such proportion as the value of the goods bears to the value of the goods in which they are so incorporated or mixed.
14.4.3 If the customer sells the goods or goods in or with which the goods have been incorporated or mixed, the sale shall be on behalf of the company as joint owner therefore as the case may be and the proceeds of any such sale (or
the company share therefore identified in the sale is of joint owned property) shall be held trust for the company and in a separate identified account.
14.5 At any time before property in the goods shall have passed to the customer in accordance herewith the company may in writing to the customer determine the customers right to use or sell the goods and the customer shall there
upon at his own cost return the goods to the company and shall cease to be in possession of the goods with the consent of the company. At any time after giving of such a notice, the company may enter upon any premises where the
goods are or are reasonably believed to be and may remove the goods.
14.6 Notwithstanding the foregoing
14,6.1 The goods are the entire risk of the customer from the time of delivery.
14.6.2 The customer shall not be entitled to return the goods or any of them unless the company shall have given notice pursuant to paragraph 14.5 above relating (whether exclusively or not) to such goods
14.7 Nothing in this condition shall in any way limit or modify the customer’s obligation to pay for the goods in accordance with these conditions.
15. SIZES
All carpets/mats/flooring sold and supplied by the company are subject to a length and width tolerance of + or – 1.25% as specified in BS.3655 clause 3.
16. INTELLECTUAL PROPERTY
The customer shall not use nor permit or allow to be used the goods or any specifications or drawings for the purpose of designing or manufacturing identical goods without the company’s prior written consent. All patent
design copyright and other intellectual property rights in or connection with the goods, which the company may have, shall remain the property of the company.
17. CUSTOMERS REQUIRMENTS
Where any design or construction is produced and supplied to customer specifications, the customer will at all times effectively indemnify against all actions and proceedings, costs, claims, damages and expenses and demands
as a result of any claim or proceedings of whatsoever nature made or brought by a third party arising there from and in particular and without prejudice to the for going shall keep the company effectually indemnified
the infringement of any letters, patent trademarks, copyright or registered design or other right of any third party.
17.2 If the customer should require any alterations in design specifications, construction or quantities as specified in a contract and the company agrees to such alterations, then the company shall be at liberty to revise the
price to include any increased costs occasioned by such alteration.
17.3 Any wastage incurred during matching of goods to the customer’s request will be charged to the customer.
17.4 The company may delivery an excess of up to the quantity of a special length of goods ordered on full rolls. The goods invoiced will be the goods actually delivered.
18.PILE PRESSURE AND SHADING
All pile carpets especially plain browns are liable to shading – that is to slow light and dark patches arising from unequal crushing of the surface. Light and delicate carpets are liable to become soiled in ware and so apparently
lose colour. No care on the part of the company can obviate these tendencies. The company cannot accept any responsibility for complaints by these effects.
19. MATCHING
For technical reasons it is not possible to obtain an exact colour match between different widths and/or batches. The company therefore recommends that plain and tonal carpets and/or carpet tiles are made up from one
width or batch, wherever possible and the company can therefore take no responsibility for miss-matching of carpets made up from different widths or batches or of carpet tiles from different batches.
20.MATERIALS
The company is constantly endeavouring to improve the quality of its products and therefore reserves the right to alter without prior notice the specification of any product if new and improved material and methods of
manufacture become available
21. CUSTOMERS MATERIALS
21.1 The customer shall its own expense deliver to the company at such times at such places and in such quantities as the company may require.
21.2 Such materials and substances shall while in the company possession remain at the sole risk to the customer and the company shall be under no liability whatsoever for any loss of or damage to such materials or
substances.
21.3 The customer shall identify the company against all loss, damage or injury of any kind whatsoever (consequential) caused to the company of its services or agents and against all claims made by third parties against the
company by reason of: -
21.3.1 Any defect in any container or material or substance supplied by the customer to the company for any reason whatsoever, and
21.3.2 Any failure on the part of the customer to disclose fully to the company any dangerous or hazardous property of any container or material or substance or specification or formula supplied by the customer for any
reason whatsoever.
21.4 The customer undertakes not to alter or interfere with the formula or design of any material or substance to be supplied by it without the company’s prior consent in writing.
21.5 If containers packing or labels carrying wording are supplied by the customer to the company or if any such wording is approved by the customer, the customer shall identify the company against all claims for loss,
damage or injury and any costs or expenses relating there to arising out of such wording or any representation or advice contained there in including but not limited to any claims made against the company arising out of the
infringement of any patent copyright or design right attributable to any goods labels, packages or design.
22.COMPANY LIEN
22.1 In addition to any other right or lien to which the company may by law or the other terms here have are entitled. The company shall be entitled to a general lien on all the goods and property of the customers in the company’s
possession whether paid for or not and a right of sale of such goods and property at the company shall be entitled to a general lien on all the goods and property of the customers in the company’s possession whether
paid for or not and a right of sale of such goods and property at the company sole direction for any unpaid money due under the terms of any contract between the customer or any associated company of the customer and
the company and any fellow subsidiary of a company.
22.2 For the purpose of this clause the term “subsidiary” shall have the meaning attribute there to by the companies’ act 1989.
22.3 For the purpose of this clause a company is to be treated as another’s “associated company`’. If one of the two has control of the other (whether directly or indirectly) or both are under the control of the same person or
persons (whether directly or indirectly) and for the purpose of this definition, the expression “control” shall have the meaning attributed there to by section 414 of the income and corporation taxes: act 1988.
22.4 The company shall have the right to put any goods or property over which it has a lien into a saleable state by any means whatsoever and (without prior notice to the customers) to sell such goods whether by private
treaty or otherwise on such terms as the company may agree at the company’s sole discretion. Out of the products of sale the company shall be entitled to retain a sum equivalent to all unpaid monies due to it form the
customer as aforesaid together with the cost of putting the goods into a saleable state as aforesaid ant the expense of sale be paid to the customer.
23. TERMINATION OF CONTRACT
23.1 If: -
23.1.1 The customer shall commit any breach of the terms (including without limitation terms concerning the time for payment of the purchase price) of any contract with the company and on its part to be observed or
performed and if such breach (if remedial) has not been remedied within 7 days after notice by the company to the customer, or
23.1.2 The customer compounds with or negotiates for any composition with its creditors generally or permits judgement against it to remain unsatisfied for 7 days or any distress execution or other legal process is levied
upon any of the customer assets: or
23.1.3 Being a individual shall die or have a receiving order made against him or commit any act of bankruptcy or
23.1.4 Being a company the customer shall call any meeting of its creditors or have a receiver and manager and manager or administrate receiver of all or any of its assets appointed or have a administrator appointed or enter
into any liquidation. The company shall be entitled to suspend all or any future deliveries and instalments of goods under this or contract and on written notice to cancel the undelivered portion of this or any contract between
the customer and the company and to sell the goods elsewhere.
23.2 In the event of any such cancellation by the company in accordance with paragraph 23.1 above or any cancellation and/or repudiation of the contract by the customer, the company shall be entitled to recover as damages
from the customer all loss and damage of whatever kind consequential or otherwise which the company shall sustain in connection with such cancellation.
23.3 The exercise of the rights conferred by its condition shall be without prejudice to any other right enjoyed by the company pursuant to these conditions or by law including particular the rights to recover the goods or the
proceeds there of from the customer pursuant to condition 14 here of.
24.GUARANTEES
Any guarantee, which may be given, shall apply only to regular priced goods sold under normal trading conditions.
25. LIABILTY
The liability of the company under this contract shall be limited to the replacement value of any goods agreed by the company to be defective and the company shall be under no liability for any consequential loss and
without prejudice to the forgoing the company shall not be liable for any costs, claims or damages or expenses arising out of any tortuous acts or omissions or any breach of contract or statutory duty calculated by reference
to profits, income production or accurate or loss of such profits, income production of accrual of such costs, claims, damages or expenses on a time basis. Goods agreed by the company as defective will be replaced free of
charge as originally ordered or at the company’s option appropriate. Credit will be given provided that notice of any such defect shall have been given in accordance with these conditions.
25.2 The foregoing is given in lieu of all conditions or warranties of every kind whether express or implied by law or otherwise all of which are here by expressly excluded and no liability is accepted for damage or loss of
any kind whether caused by negligence or otherwise and whether directly consequential.
25.3 The company shall be under no liability whatsoever in respect of any loss or damage to third parties caused directly or indirectly by the goods arising by reason of their use and the customer shall at all times indemnify
the company against such loss or damage.
25.4 Nothing here in contained shall be construed as an attempt to exclude or limit the liability of the company to negligence of a death or injury to any person.
26.FORCE MAJEURE
If events beyond the company’s reasonable control prevent or hinder the company from delivering the goods in accordance with the contract the date or dates for delivery shall be extended by the period of the delay caused
by such events and the price shall be increased to cover any increased costs caused by such delay.
26.2 If the period of delay extends beyond a reasonable period then the company shall in its absolute discretion be entitled to withhold suspend or cancel in whole or in part of a delivery of any of the goods and the customer
shall be liable to pay in respect of the goods already delivered and not paid for such amount as may determined by the company to be a rateable proportion of the total contract price. A written certificate from the company
showing that rateable proportion being conclusive evidence as to the amount of such proportion.
26.3 If the customer shall pursuant to clause 26.1 above tender to the customer less then the contractual quantity of goods or shall tender any goods late, the customer shall accept and pay for the goods so tendered.
27.NOTICE
27.1 Any notice required to be given or served here under shall be addressed in the case of a notice to be given to or served on the customer at the address of the customer shown on the contract or invoice or if none it’s
registered office for the time being in the case of company or in any other case of the company as it’s registered office for the time being and may be given or served either
27.1.2 Within 7 days of the date of posting otherwise
27.1.3 By fax/E-mail or post and a notice so given or served shall be deemed to have been given or served within 24 hours.
28. HEADINGS
The headings of these conditions are for convenience only and shall be discarded in construing the same.
29. ENGLISH LAW
English law shall govern these conditions and their construction and the customer and the company shall submit to jurisdiction of the English courts.
30. WAIVER
No waiver by the company (express or implied) of any these conditions in any contract made with the customer shall prevent the company from enforcing or relying on these conditions in full in any subsequent contract
made with the customer
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