TERMS AND CONDITIONS OF SALE
DEFINITIONS AND INTERPRETATION
1.1 In these Conditions, the following words have the following meanings:
has the meaning given to it in clause 4.1;
a day (other than a Saturday, Sunday or public holiday) in England when banks in London are open for business;
the person or firm who purchases the Goods from Prestigious;
the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6;
the contract between Prestigious and the Buyer for the sale and purchase of the Goods in accordance with these Conditions;
Force Majeure Event
has the meaning given in clause 10;
the goods (or any part of them) as set out in the Order;
Intellectual Property Rights
any patents, right in designs, copyright and related rights, trade marks, goodwill and the rights to sue for passing off, business and trade names, domain names, rights in get-up, rights in confidential information (including know-how technical and commercial trade secrets) and all other intellectual property rights and rights of a corresponding nature in any part of the world, in each case whether registered or not;
the Buyer's order for the Goods, as set out in the Buyer's purchase order form or overleaf, as the case may be;
Prestigious Textiles Limited (registered in England and Wales with company number 02219358);
a fee equal to 20% of the price of the Goods in question;
any and all specifications, designs, artwork, images, text or other written, printed or graphic material (whether received in hardcopy or electronic form) supplied or made available to the Buyer by Prestigious whether or not depicted on the Goods.
1.2 In these Conditions:
1.2.1 the singular includes the plural and vice versa, and references to any gender includes the other genders;
1.2.2 a person includes an individual person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.3 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.4 references to any legislation include any modification or re-enactment of that legislation and any subordinate legislation made (before or after the Contract) under that legislation;
1.2.5 any words following the terms “including”, “include”, “for example” or any similar expression are by way of illustration and emphasis only and shall not limit the generality or extent of any other words or expressions; and
1.2.6 a reference to writing or written includes faxes and e-mails.
BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Prestigious issues a written acceptance of the Order or (if earlier) Prestigious despatches the Goods, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Prestigious which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by Prestigious and any descriptions or illustrations contained in Prestigious' catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
3.1 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the address for delivery specified by the Buyer in the Order or, where the Buyer has requested either delivery of the Goods using the Buyer’s chosen carrier or to collect the Goods, delivery of the Goods shall be completed on the completion of loading of the Goods at Prestigious’ premises.
3.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Prestigious shall not be liable for any delay in delivery of, or failure to deliver, the Goods that is caused by a Force Majeure Event or the Buyer's failure to provide Prestigious with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.3 Subject to clause 3.2, if Prestigious fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
3.4 If the Buyer fails to accept delivery of the Goods when Prestigious offers to deliver them or, where the Buyer has requested either delivery of the Goods using the Buyer’s chosen carrier or to collect the Goods, the Buyer fails to take delivery of the Goods within four Business Days of Prestigious notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Prestigious' failure to comply with its obligations under the Contract:
3.4.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the Business Day after Prestigious offered them for delivery or at 9.00 am on the fourth Business Day after the day on which Prestigious notified the Buyer that the Goods were ready (as the case may be); and
3.4.2 Prestigious shall store the Goods until delivery takes place, and charge the Buyer for the original delivery costs and any redelivery costs and expenses.
3.5 If 10 Business Days after the day on which Prestigious offered the Goods for delivery or notified the Buyer that the Goods were ready for delivery the Buyer has not taken delivery of them, Prestigious may resell or otherwise dispose of part or all of the Goods and, subject to clause 3.9, Prestigious may charge a Restocking Charge or, if the Buyer has paid for such Goods, Prestigious may issue a credit note for the amount paid less the Restocking Charge.
3.6 The Buyer agrees and acknowledges that Prestigious sells its fabrics in piece lengths and the approximate length of pieces in respect of each fabric and design are set out in Prestigious’ brochures, published price lists and/or are available upon request from Prestigious. The Buyer agrees to accept a variation of up to 20% in the length of individual pieces.
3.7 The Buyer understands and acknowledges that carriers of goods require claims to be made within the period specified in their conditions of carriage and agrees that if on receipt any Goods are found to be damaged or part missing, the Buyer shall endorse the receipt to the carrier describing its condition or loss and shall notify the carrier and Prestigious within such period as such carrier’s conditions of carriage may stipulate.
3.8 If, at the request of the Buyer, Prestigious agrees to accept the return of any Goods where the Buyer has no claim in respect of the quality or otherwise of such Goods, subject to clause 3.9, the Buyer will pay the Restocking Charge or, if the Buyer has already paid for such Goods, Prestigious will issue a credit note for the amount paid less the Restocking Charge.
3.9 Where Goods are supplied to meet a Bespoke Specification, a Restocking Charge will not be payable under clause 3.5 and 3.8.
4.1 Where the Buyer requires specific Goods which are made-to-measure, the Buyer shall provide Prestigious with a specification which includes all the necessary information in relation to the Goods required, including:
4.1.1 size, measurements and dimensions of the Goods; and
4.1.2 materials, fabric, colours, patterns, design and texture of the Goods;
(a “Bespoke Specification”) to the extent that the Goods are made-to-measure in accordance with a Bespoke Specification supplied by the Buyer, the Buyer shall indemnify Prestigious 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 Prestigious in connection with any claim made against Prestigious for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Prestigious’ use of the Specification to manufacture the Goods.
4.2 Subject to clause 4.3, Prestigious warrants that on delivery the Goods shall conform in all material respects with their description and any applicable specification (including any Bespoke Specification under clause 4.1) and be free from material defects in design, material and workmanship.
4.3 The Buyer acknowledges and accepts that:
4.3.1 Prestigious reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements;
4.3.2 colour variations occur between batches of the Goods and Prestigious cannot guarantee an exact colour match to a sample;
4.3.3 all fabrics eventually fade, Prestigious recommends that curtains made from the Goods are lined to reduce the effects of direct sunlight on the Goods and Prestigious accepts no liability in respect of Goods which fade after delivery;
4.3.4 the appearance of the Goods may alter if they are subjected to any treatments, such as flameproofing, either by spraying or processing of any kind;
4.3.5 it is usual for fabrics to have up to 5% residual shrinkage;
4.3.6 there may be residual and atmospheric shrinkage of fabrics due to temperature and humidity changes and allowances must be made for this when sewing hems and linings and no claims will be allowed which arise as a result of clauses 4.3.1 or 4.3.2 above or for changes in the Goods arising under the circumstances set out in clauses 4.3.3 to 4.3.6 above.
4.4 Subject to clause 4.4, if:
4.4.1 the Buyer gives notice in writing to Prestigious within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.2;
4.4.2 Prestigious is given a reasonable opportunity of examining such Goods; and
4.4.3 the Buyer (if asked to do so by Prestigious) returns such Goods to Prestigious' place of business at the Buyer's cost, Prestigious shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
4.5 Prestigious shall not be liable for Goods' failure to comply with the warranty set out in clause 4.2 in any of the following events:
4.5.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 4.4;
4.5.2 the defect arises because the Buyer failed to follow Prestigious' oral or written instructions as to the storage, or use of the Goods or (if there are none) good trade practice regarding the same;
4.5.3 the Buyer has, processed, treated, cut up, resold or otherwise dealt with the Goods; or
4.5.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage.
4.6 Except as provided in this clause 4, Prestigious shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 4.2.
4.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
4.8 These Conditions shall apply to any replacement Goods supplied by Prestigious.
TITLE AND RISK
5.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
5.2 Subject to clause 5.4 title to the Goods shall not pass to the Buyer until Prestigious receives payment in full (in cash or cleared funds) for the Goods and any other goods that Prestigious has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
5.3 Until title to the Goods has passed to the Buyer, the Buyer shall maintain the Goods in satisfactory condition, keep the Goods insured against all risks for their full price from the date of delivery and notify Prestigious immediately if it becomes subject to any of the events listed in clauses 8.1.2 to 8.1.5.
5.4 Subject to clause 5.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise), including mixing, incorporating or using the Goods with other goods to produce new goods (“New Articles”) before Prestigious receives payment for the Goods. However, if the Buyer resells the Goods or the New Articles before that time it does so as principal and not as Prestigious’ agent and title to the Goods shall pass from Prestigious to the Buyer immediately before the time at which resale by the Buyer occurs.
5.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clauses 8.1.2 to 8.1.6, then, without limiting any other right or remedy Prestigious may have:
5.5.1 the Buyer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
5.5.2 Prestigious may at any time require the Buyer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
PRICE AND PAYMENT
6.1 The price of the Goods shall be the price set out in Prestigious' published price list in force as at the date of delivery or such other price confirmed in writing by Prestigious.
6.2 The price of the Goods is exclusive of the costs and charges of insurance and transport of the Goods, which shall be invoiced to the Buyer.
6.3 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Buyer shall, on receipt of a valid VAT invoice from Prestigious, pay to Prestigious such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
6.4 Prestigious may invoice the Buyer for the Goods on or at any time after despatch of the Goods from Prestigious’ premises.
6.5 The Buyer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice unless otherwise agreed by Prestigious in writing. Time of payment is of the essence.
6.6 If the Buyer fails to make any payment due to Prestigious under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
6.7 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Prestigious may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by Prestigious to the Buyer.
7.1 All Intellectual Property Rights in any and all Works and/or Goods shall remain, at all times, the property of Prestigious and/or Prestigious’ suppliers or sub-contractors.
7.2 The Buyer shall not, and shall procure that the Buyers employees, agents and sub-contractors shall not use, any Intellectual Property Rights in or relating to the Works, without obtaining the express written consent of Prestigious.
7.3 The Buyer shall not register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which Prestigious claims rights in anywhere in the world.
7.4 All Intellectual Property Rights depicted on the Goods are the property of Prestigious and may not be copied or otherwise reproduced without the express written permission of Prestigious.
7.5 All Intellectual Property Rights belonging to Prestigious and depicted on any website operated by Prestigious may not be copied or otherwise reproduced without the express written permission of Prestigious.
7.6 The Buyer shall immediately notify Prestigious in writing of any actual, suspected or threatened infringement of any of the Intellectual Property Rights in or relating to the Works and/or Goods. The Buyer agrees (at Prestigious’ request and expense) to do all such things as may be reasonably required to assist Prestigious in taking or resisting any proceedings in relation to any infringement.
7.7 Due to the nature of the Goods, the Buyer and Prestigious agree that the Buyer shall maintain adequate facilities suitable for displaying the Goods to its customers and shall not do, or omit to do, or permit to be done, any act that will or may weaken, damage or be detrimental to the Intellectual Property Rights in or relating to the Works and/or Goods.
7.8 The Buyer agrees that if it resells the Goods it will comply with Prestigious’ Quality Distributors Policy (as amended from time to time) a copy of which is available from Prestigious upon request.
7.9 Notwithstanding clause 7.1:
7.9.1 all Intellectual Property Rights arising out of or in connection with made-to-measure Goods which are produced in accordance with a Bespoke Specification supplied by the Buyer will be and remain be vested in the Buyer or its third-party licensors (as applicable);
7.9.2 to the extent the Buyer provides any Bespoke Specification, data, materials and other equipment to Prestigious for the supply of the Goods, it is acknowledged that these are and shall remain the exclusive property of the Buyer;
7.9.3 the Buyer warrants and represents it has the necessary rights
and permissions to provide the Bespoke Specification and
materials under 7.9.2 to Prestigious.
TERMINATION AND SUSPENSION
8.1 Prestigious may terminate the Contract or cancel or suspend all further deliveries under the Contract or under any other contract between the Buyer and Prestigious with immediate effect without incurring any liability to the Buyer, and all outstanding sums in respect of Goods delivered to the Buyer shall become immediately due if the Buyer:
8.1.1 commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within a period of 10 (ten) Business days after receipt of notice in writing requiring it to do so; or
8.1.2 summons a meeting of its creditors, makes a proposal for a voluntary arrangement, becomes subject to any voluntary arrangement, is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, has a receiver, manager or administrative receiver appointed over any of its assets, undertakings or income, has passed a resolution for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation previously approved in writing by the party serving notice), is subject to a petition presented to any Court for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation previously approved in writing by the party serving notice), has a provisional liquidator appointed, has a proposal made for a scheme of arrangement under Part 26 (arrangements and reconstructions) Companies Act 2006, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of intention to appoint an administrator given by any person or is the subject of a notice to strike off the register at Companies House; or
8.1.3 becomes bankrupt, insolvent, makes any composition with his creditors, has a receiver appointed under the Mental Health Act 1983 or dies; or
8.1.4 has the equivalent of any of the above occur with respect to it in any jurisdiction to which it is subject; or
8.1.5 suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business; or
8.1.6 Prestigious reasonably believes that one of the above circumstances is about to occur.
8.2 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude Prestigious' liability for death or personal injury resulting from its negligence, or the negligence of its employees, agents or subcontractors (as applicable), fraud or fraudulent misrepresentation or any liability that is not permitted to be limited or excluded by law.
9.2 Subject to clause 9.1 Prestigious shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract and Prestigious' total liability to the Buyer 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, shall in no circumstances exceed the price of the Goods.
10.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.
11.1 Assignment and other dealings. Prestigious 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 Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Prestigious.
11.2 Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and may be delivered by hand, first class post, Special Delivery post, fax or email, addressed to that party at its registered office, principal place of business or such other address, fax number or email address as that party may have specified to the other party in writing.
11.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall 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 shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall 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 shall prevent or restrict the further exercise of that or any other right or remedy.
11.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Prestigious.
11.7 Governing law. 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), shall be governed by, and construed in accordance with the law of England and Wales.
11.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall 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).