1.1 Luke Irwin Rugs Limited (registered company number 07344940) whose registered office is at c/o Blick Rothenburg, 1st Floor, 7 – 10 Chandos Street, London, W1G 9DQ. (“Supplier“) contracts with each customer (the “Customer“) subject to and upon these Terms and Conditions of Supply (the “Conditions“), which shall govern the sale of all goods (the “Goods“) and the supply of all services in connection with the Goods (the “Services“, and together the “Products“), exclusively, notwithstanding any terms, special conditions whether oral or written, or purported variations, contained in any Customer order, correspondence, or documentation, unless specifically agreed to in writing by a duly authorised representative of the Supplier.
1.2 These Conditions shall govern and be incorporated in each contract for the supply of Goods and\or supply of Services made by the Supplier and the Customer (the “Contract”).
1.3 Save as provided in Clause 1.1, no employee or agent of the Supplier shall have authority to vary, add to, or depart from, these Conditions, or to make any representations in relation to the Products or the Contract.
1.4 Whenever there is a conflict or inconsistency between the provisions of these Conditions and any other terms and conditions agreed between the Supplier and the Customer, as provided in Clause 1.1, then, these Conditions shall apply to the extent of such conflict or inconsistency, save where and to the extent that any of the provisions of these Conditions are specifically excluded or varied, as provided in Clause 1.1.
2.1 Unless otherwise agreed by the parties, the Customer will place written orders (Order) with the Supplier at any time at its sole discretion.
2.2 Upon receipt of any Order, the Supplier will provide written confirmation of its acceptance of the Order in the form of a pro forma invoice (the “Invoice”) to the Customer.
2.3 The Supplier’s acceptance of any oral or written Order from the Customer shall be effective as soon as payment has been received.
3.1 The Supplier shall use its reasonable commercial endeavours to keep to any stated despatch, delivery, fitting, or completion date, but shall not be liable for any delay in achieving or meeting any such date, however caused, whether such delay shall be caused by circumstances over which the Supplier has control, or otherwise. In addition, time for delivery shall not be of the essence of a Contract and shall not be made so by Customer service of any notice.
3.2 The Products may be delivered by the Supplier in advance of the quoted delivery date, on reasonable prior notice to the Customer. Unless expressly agreed otherwise by the parties, the Supplier may deliver the Products in one or more instalments.
3.3 Delivery shall be at point of delivery or collection agreed between the Customer and the Supplier (and which may be collection of the Goods ex-works (EXW according to Incoterms 2000)).
4.1 All prices quoted are valid for the earlier of, thirty (30) days or until acceptance by the Customer, after which time they may be altered by the Supplier without notice to the Customer. All prices are quoted exclusive of VAT, customs duties, costs of any licences or consents, and other taxes and duties. The Goods are sold and Services are supplied subject to the prices and conditions ruling at date of issue of Invoice.
4.2 Unless the Goods are to be fitted by the Supplier, prices quoted are ex-works (EXW according to Incoterms 2000) and exclusive of packaging and transportation, save where set out in the Contract, or otherwise specifically agreed in writing by the Supplier.
5 TERMS OF PAYMENT
5.1 The price of Products shall be payable by the Customer to the Supplier from the date of the relevant issued Invoice, together with VAT and other applicable taxes or duties at the appropriate rate.
5.2 Without prejudice to the Supplier’s other rights and remedies, in the event that any payment is not made by the due date, then, the Supplier may, upon not less than [five (5)] business days prior written notice, charge interest at the rate of [four percent (4%) above the, then prevailing, Bank of England base rate, compounded monthly, from the due date for payment, until payment in full has been made.
5.3 The Supplier requires 100% payments prior to ordering of the Products in order to allow the Supplier to place orders for manufacture. No order for manufacture will be placed by the Supplier until such amount has been paid.
5.4 Without prejudice to the Supplier’s other rights and remedies, the Supplier may withhold the sale and supply of Products, whether in whole or in part, in the event that the Customer is overdue with payment of any invoiced sum, or is in material breach of a Contract, upon not less than two (2) days prior written notice, until such time as the payment is made or the breach remedied, as appropriate.
6. RISK AND RETENTION OF TITLE
6.1 The Customer is responsible for the Products after delivery in accordance with clause 3.
6.2 The Products shall remain the property of the Supplier until full and final payment is made by the Customer in accordance with clause 5.
6.3 The Supplier retains all intellectual property rights existing in the Products, including, without limitation, copyright in the designs.
7.1 No condition is made or to be implied nor is any warranty given or to be implied as to the life or wear of the Goods supplied or that they will be suitable for any particular purpose or for use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to the Supplier.
7.2 While every effort is made into accurately reproducing the colours of each rug, the Supplier does not accept any responsibility should there be a misrepresentation of colour and the Goods cannot be construed as faulty should the colour vary from the colour displayed by the Customer’s computer screen. The Goods are also manufactured in material batches and whilst the procedures and processes remain constant there will always be variation between batches produced at different times. Carpets made using dyed yarns will normally show up to 15% variation due to the processes involved. Goods made from wool can and do fade in use and this is considered to be fair wear and tear.
7.3 Designs can vary depending on the size of the Goods. The design will be fundamentally the same as specified by the Customer on placing the Order, but different levels of detail are used depending on the size of the Goods. The designers may add extra detail or reduce detail where necessary to ensure the Goods looks their best in each different size. This variation is standard in carpet and rug design and does not constitute defective or faulty Goods.
7.4 Custom-made Goods made to the Customer’s own sizes and specifications are not returnable and the full price shall be paid on issue of the Invoice.
8. LIMITATION OF LIABILITY
8.1 The Supplier is not liable to the Customer
(a) for non-delivery unless the Customer notifies the Supplier within seven days from the date of Supplier’s Invoice;
(b) for incorrect quantities unless the Customer notifies the Supplier of a claim within 14 days of receipt of the Goods;
(c) for damages or loss of the Goods during carriage by the Supplier’s own transport or by a carrier on behalf of the Supplier unless the Customer notifies the Supplier of a claim within 14 days of receipt of the Goods or the scheduled date of delivery, whichever is the earlier;
(d) for any wastage or shortage of Goods that may occur during fitting which is due either to an overestimation or underestimation of Customer’s Goods requirements as set out in the Order or as a result of any negligence by the Customer or its fitters during fitting;
(e) for any colour and/or design variation as set out in conditions 7.5 and 7.6 above; and
(f) for defects in the Goods caused by fair wear and tear, abnormal or unsuitable conditions of storage or use or any act , neglect or default of the Customer.
8.2 If liability is accepted by the Supplier under condition 8.1 the Supplier’s only obligation is at its option
(a) to make good any shortage or non-delivery;
(b) to replace or repair any Goods found to be damaged or defective; or
(c) to refund to the Customer the amount paid by the Customer for the Goods which are the subject of a claim under condition 8.1.
8.3 The Supplier’s aggregate liability to the Customer, whether for negligence, breach of contract, misrepresentation or otherwise, shall in no circumstances exceed the purchase price of the Goods as determined by the net price invoiced to the Customer in respect of any occurrence or series of occurrences.
8.4 Subject to this condition 8
(a) all terms and conditions, warranties and representations expressed or implied by statute common law or otherwise in relation to the Goods are excluded; and
(b) the Supplier is not liable for any indirect or consequential loss or expenses suffered by the Customer, howsoever caused, and including, without limitation, loss of anticipated profits, goodwill reputation, business receipts or contracts, or losses or expenses resulting from third party claims.
9. FORCE MAJEURE
9.1 Neither party shall be liable to the other in any way for any loss or damage arising directly or indirectly through or in consequence of performance being prevented or delayed by happenings or occurrences due to or by reason of any matters or things beyond the control of the respective parties
10. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
10.1 The Customer acknowledges that all intellectual property rights in the Goods (including but not limited to copyright and design rights) shall remain the exclusive property of the Supplier or, where appropriate, a third party supplier.
10.2 The Customer and the Supplier shall each keep confidential and shall not, without the prior consent in writing of the other, disclose to any third party any technical or commercial information which it acquires from the other as a result of discussions, negotiations and other communications between them relating to the Goods and/or Services, save insofar as the confidential information may be: (a) necessary for the purposes of the Contract; (b) necessary for compliance with legal requirement and/or direction from a competent authority; (c) reasonably required by the insurers of the parties; (d) already in the public domain; and/or (e) already known to the relevant party or lawfully disclosed to the relevant party by any third party.
11.1The Customer may not assign, novate, or transfer any of its rights or obligations under a Contract, without having obtained the Supplier’s prior written consent.
11.2The Contracts (Rights of Third Parties) Act 1999 shall not apply to these Conditions nor any Contract made under them and no person other than the Customer and Supplier shall have rights hereunder.
11.3Any disputes, claims or proceedings arising out of or in any way relating to the Products, or a Contract, shall be governed by the laws of England. The English Courts shall have exclusive jurisdiction for the purpose of any proceedings arising out of or in any way relating to the Products, or a Contract, to which the parties hereby submit.