TERMS AND CONDITIONS OF CONTRACT


1. DEFINTION
1.1 In these conditions
“Buyer” means the person who accepts a quotation of the Seller for the sale of the goods or whose order for the goods is accepted by the Seller.
“Conditions” means the standard Terms and Conditions of Sale set out in this document and (unless the context otherwise requires) includes any special Terms and Conditions agreed in writing between the Buyer and the Seller.
“Contract” means the Contract for the purchase and sale of the goods.
“Consumer” is as defined in the Consumer Protection (Distance Selling) Regulations 2000.
“Deposit” means a payment in advance made to the Seller by the Buyer of an amount agreed between the Seller and the Buyer at the time of ordering.
“Goods” means the goods (including any installment of the goods or any part of them) which the Seller is to supply in accordance with these Conditions.
“Internet Order” means a request by the Buyer as a Consumer to have Goods supplied by the Seller, such request made via the Seller’s Website and subsequently confirmed in Writing by the Seller
“Telephone Order” means a request by the Buyer as a Consumer to have Goods supplied by the Seller, such request made during a telephone call with an employee of the Seller and subsequently confirmed in Writing by the Seller.
“Seller” means Elite Bedding Company Limited, a Company registered in Scotland, its Registered Office at 121 Moffat Street, Glasgow or any Subsidiary or Associated Company thereof.
“Seller’s Website” means www.simplyelite.co.uk or any other website that Elite Bedding Company Limited may use. “Writing” includes E-Mail, Telex, Facsimile transmission and any comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, reenacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience of reference only and shall not affect their interpretation.
1.4 Unless the context otherwise requires, the singular shall include the plural and vice versa, the masculine shall include the feminine.
2. BASIS OF SALE
2.1 The Seller shall sell and the Buyer shall purchase the goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which will govern the Contract to the exclusion of any other Terms and Conditions subject to which any such quotation is accepted or purported to be accepted or any such order is made or purported to be made by the Buyer.
2.2 Any quotation made by the Seller to the Buyer shall be valid only for a period of thirty days from the date when it is made unless specified otherwise therein. Thereafter, it will not be possible for the Buyer to accept that quotation and any subsequent Contract made will be on the basis of a new quotation issued by the Seller to the Buyer.
2.3 No variation to these conditions shall be binding unless agreed in writing between the Buyer and the Seller, or their authorized representative.
2.4 The Seller’s employees or agents are not authorized to make any representations concerning the goods unless confirmed by the Seller in writing.
2.5 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage application or use of the good which is not confirmed in writing by the Seller, is followed or acted upon at the Buyer’s own risk, and, accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller
3. ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller or his authorized representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 If the goods are to be manufactured or any process is to be applied to the goods by the Seller in accordance with the specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent copyright , design, trademark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the goods which are required to conform with any applicable safety or statutory requirements, or where the goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 With the exception of Internet Orders and Telephone Orders, no order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and where such cancellation is on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), cost, (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of the cancellation. For the avoidance of doubt, the Seller reserves the right to retain the Buyer’s Deposit on cancellation. For Internet Order and Telephone Order cancellation rights, refer to section 9.
4. PRICE OF THE GOODS
4.1 The price of the goods shall be the Seller’s quoted price or, where no price has been quoted (or any quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only unless specified otherwise on the Sellers quotation or until earlier acceptance by the Buyer, after which time they may unless specified otherwise on the Seller’s quotation be altered by the Seller without giving any notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the goods to reflect any increase in the cost to the Seller which is due to a factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other cost of manufacture) any change in delivery dates, quantities or specifications for the goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instruction.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on the ex-works basis, and where the Seller agrees to deliver the goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable Value Added Tax which the Buyer shall be additionally liable to pay to the Seller except where the price is quoted on the Seller’s Website where it will always include any applicable Value Added Tax
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the goods on or at any time after delivery of the goods, unless the goods are to be collected by the Buyer, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the goods are ready for collection. If the Buyer fails to take delivery of the goods, after a period of 21 days from the date when the goods were to be collected or delivered by the Seller to the Buyer, the Seller will be entitled to invoice the Buyer for the full price of the goods.
5.2 [The Buyer shall pay the price of the goods or any part of installment of the goods at the time of ordering in the case of Telephone Orders and Internet Orders. Otherwise, ]the Buyer shall pay the price of the goods or any part of installment of the goods within 21 days of the date of the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request except where payment of Telephone Orders or Internet Orders is made, in which case a receipt will always be issued.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2 ascribe any payment made by the Buyer to such of the goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (not withstanding any purported ascription by the Buyer) and;
5.3.3 charge the Buyer interest (on the amount unpaid) at the rate of four per centum per annum above the Bank of Scotland Base Lending Rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest)
6. DELIVERY
6.1 Delivery of the goods shall be made by the Buyer collecting the goods at the Seller’s premises at any time after the Seller has notified the Buyer that the goods are ready for collection or (if some other place for delivery is agreed by the Seller), by the Seller delivering the goods to that place.
6.2 Any dates quoted for delivery of the goods are approximate only and the Seller shall not be liable for any delay in delivery of the goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the goods have to be delivered in installments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole repudiated.
6.4 If the Seller fails to deliver the goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the buyer (in the cheapest available market) with similar goods to replace those not delivered over the price of the goods.
6.5 If the Buyer fails to take delivery of the goods or to collect same or fails to give the Seller adequate delivery instructions then (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) without prejudice to any other right or remedy available to the Seller, the Seller may;
6.5.1 store the goods until actual delivery or collection and charge the Buyer for the reasonable cost (including insurance) of storage or
6.5.2 sell the goods at the best price readily obtainable and (after deducting any reasonable storage and selling expenses) chare the buyer for any shortfall below the price under the Contract,
6.5.3 this section 6.5 shall not apply to Telephone Orders or Internet Orders
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the goods shall pass to the Buyer:
7.1.1 In the case of the goods to be delivered at the Seller’s premises, at the time when the Seller notifies the buyer that the goods are available for collection or;
7.1.2 in the case of goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer refuses or fails to take delivery of the goods, the time when the Seller has tendered delivery of the goods.
7.2 Notwithstanding delivery and the passing of risk in the goods, or any other provision of these conditions, the property of the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full for the price of the goods for which payment is then due.
7.3 The Buyer shall, however, be entitled to sell the goods in the ordinary course of business on the basis that he sell the goods in the ordinary course of business on the basis that he sell such goods as the Seller’s agent and that the proceeds of the sale thereof shall be the Seller’s property and the Buyer agrees to account to the Seller on demand in respect of such proceeds and if required by the Seller the Buyer shall execute a formal Assignment of all claims that the Buyer shall have against any Buyer from him of such goods.
7.4 The Seller reserves the right at any time to terminate the Buyer’s power of sale of such goods by notice to the Buyer in writing.
7.5 The Buyer’s power of sale of such goods shall automatically terminate if the Buyer becomes a subject of Liquidation, Bankruptcy or other insolvency proceedings or a Receiver or Administrator is appointed over any of the assets of the undertaking of the Buyer or if the Buyer makes any arrangement or composition with the Creditors.
7.6 If the Buyer’s power of sale of goods is terminated the Buyer shall immediately make the goods available for the collection by the Seller and the Buyer hereby authorises the Seller to enter into any premises belonging to the Buyer for the purpose of recovering the goods. If necessary by opening and closing lockfast premises in the course of any such entry.
7.7 Without prejudice to the foregoing sub-Clauses of this Clause 7, the Seller shall be entitled to and the Buyer hereby authorises the Seller at their sole discretion to ascribe and apply to any debt or liability owed by the Buyer to the Seller any sums received from the Buyer by Seller notwithstanding any advice or notification from the Buyer of any debt or liability to which any particular sum paid to the Seller by the Buyer bears to be related or to have been paid or tendered.
8. LIABILITES
8.1 This section 8 does not apply to Telephone Orders or Internet Orders.
8.2 Any claim by the Buyer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified in writing to the Seller within 3 days from the date of delivery or (where the defect or failure was not apparent on a reasonable inspection) within 7 days from the date of delivery after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the goods and the Seller shall have no liability for such defect or failure, and the goods had been delivered in accordance with this Contract.
8.3 Where any valid claim in respect of any of the goods which was based on any defect in the quality or condition of the goods or their failure to meet specification is notified to the Seller in accordance with these conditions, the Seller shall be entitled to replace the goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the goods (or a proportion as part of the price) but the Seller shall have no further liability to the Buyer.
8.4 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at Common Law, or under any expressed Terms of the Contract, for any consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the goods or their use or resale by the Buyer, except as expressly provided in these conditions.
8.5 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason in any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as cause beyond the Seller’s reasonable control:
85.1 act of God, explosion, flood, tempest, fire or accident;
8.5.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.5.3 acts, restrictions, regulations, by laws, prohibitions or measures of any kind on the part of any Governmental, Parliamentary or Local Authority;
8.5.4 import or export regulations or embargo;
8.5.5 strikes, walk outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.5.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery.
8.5.7 power failure or break down in machinery.
9. TELEPHONE ORDER AND INTERNET ORDER CANCELLATIONS
9.1 The Buyer may cancel any Telephone Order or Internet Order for a period of up to 7 days commencing on the day following the date they received the Goods. The Buyer will be entitled to a full refund of the cost of the Goods including any delivery costs;
9.2 Notice of cancellation must be given by the Buyer to the Seller in Writing
9.3 The Buyer has a duty to take reasonable care of the Goods until he returns them to the Seller.
9.4 The Buyer will be liable for any costs incurred in returning the Goods to the Seller. The Buyer may instead request that the Seller collect the Goods in which case a fee of £15 will be payable by the Buyer to the Seller
9.5 If for any reason the Seller is unable to supply the Goods to the Buyer, the Seller reserves the right to provide substitute Goods of equivalent quality and price in satisfaction of the order.
9.6 This section 9 does not apply to Goods which have been manufactured to the Buyer’s specification.
10. INSOLVENCY OF THE BUYER
10.1 This Clause applies if:
10.1.1 the Buyer makes any involuntary arrangement with its creditors or becomes subject to an administration order or (being a individual or firm) or (being a Company) goes into Liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, of or an Administrator or receiver is appointed to, any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehend that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this Clause applies, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract of suspend any further deliveries under the Contract without any liability to the Buyer, and if the goods have been delivered but not paid for the price shall become immediately due and payable not withstanding any previous agreement or arrangement to the contrary.
11. GENERAL
11.1 The Seller is a member of the group of companies whose holding company is Elite Bedding Company Limited, and accordingly the Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any member of its group, providing that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.
11.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its residential address, Registered Office, principal place of business or such other address as may at the relevant time have been notified pursuant to the party giving notice.
11.3 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.5 The Buyer and Seller agree that the terms and Conditions contained in this Contract are fair and reasonable in all respects.
12. PROPER LAW
12.1 The construction, validity and performance of this contract shall be governed by and construed in accordance with the Law of Scotland and the Seller and the Buyer hereby agree to submit to the exclusive jurisdiction of the Courts of Scotland except in matters of injunction, interdict or the equivalent.