TERMS AND CONDITIONS OF TRADING
1.1 In these Conditions:-
“Seller” means Fiesta Studios Limited, Simon Brothers Limited, Hatch Mews Limited, Fiesta Holdings Limited, Red Hot Lemon Limited;
“Conditions” means the standard terms and conditions of trading set out in this document and includes any special terms or conditions agreed in writing by the Seller; “Contract” means any contract for the sale of goods by the Seller to a Customer;
“Customer” means the person or company placing an order accepted by the Seller;
“Price” means the price of the goods;
“Goods” means the goods to be supplied under a Contract.
2. Conditions Applicable
2.1 These Conditions will apply to all Contracts to the exclusion of all other terms and conditions, including any terms or conditions out forward by the Customer. No conduct by the Seller will be deemed to constitute the acceptance of any terms or conditions other than these Conditions.
2.2 A quotation given by the Seller does not constitute an offer. No contract will come into existence until the Customer’s order is accepted by the earliest of the Seller’s written acceptance or delivery of the Goods.
2.3 For the avoidance of doubt the Seller may in its sole discretion and without giving any reason refuse to accept any order placed by the Customer. The acceptance of an order does not constitute an obligation or promise to provide goods to the Customer pursuant to any further or subsequent order placed by the Buyer. 2.4 No variation to these Conditions will bind the Seller unless it is in writing and signed by the Seller.
3. Specifications All Goods supplied by the Seller will be in accordance with:-
3.1 Current editions of the Fiesta Studios Ltd or Simon Brothers Ltd brochures as published from time to time by the Seller (copies of which are available from the Seller on request); and
3.2 No other specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature will form part of or be incorporated by reference into the Contract.
4.1 The Price will be the Seller’s quoted price or, where no price has been quoted, the Price stipulated in the Seller’s published price list current at the date of acceptance of the order.
4.2 Except as otherwise stated in any quotation or price list of the Seller, or as otherwise agreed in writing, all Prices exclude delivery to the address specified in the order.
4.3 Orders whose total invoice value is less than £350.00 are subject to a minimum order surcharge which will be quoted on request or on the Seller’s order acknowledgment.
4.4 All Prices are valid for 30 days only after the date of quotation or until earlier acceptance by the Customer, after which time they may be altered by the Seller without giving notice to the Customer.
4.5 The Price is exclusive of VAT.
5.1 Subject to any special terms agreed in writing, the Seller may invoice the Customer on or at any time after delivery of the Goods.
5.2 Payment of the Price is due in cleared funds within 30 days of the date of the invoice.
5.3 If the Customer fails to pay the Price by the due date the Customer will not be allowed any discount granted by the Seller and will pay interest on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgment) on a daily basis at a rate of 7.5% p.a. over the base rate from time to time of HSBC Bank plc, and will reimburse to the Seller all costs and expenses (including legal costs) incurred in the collection of any overdue amount.
6.1 All orders must state the place of delivery of the Goods. Delivery takes place when the Goods are unloaded at the place of delivery.
6.2 Any dates quoted for the delivery of the Goods are approximate only.
6.3 The Seller may deliver Goods by separate instalments. Each separate instalment is to be invoiced and paid for in accordance with these Conditions.
6.4 The failure of the Seller to deliver any one or more instalments of the Goods will not entitle the Customer to treat the whole Contract as repudiated.
6.5 If the Customer fails to take delivery of the Goods, the Customer is to be liable for all storage and other costs incurred by the Seller as a result of such failure, payable on demand.
7.1 The purchaser will be deemed to have accepted all the Goods 3 days after delivery to the Customer.
7.2 If the Goods are sold as a batch then without affecting any rights which the Customer may have to reject all of the batch, the Customer may not accept some and reject part only of the Goods.
8. Display Stands
8.1 Display stands will be supplied by the Seller to the Customer for the display of Goods and will remain the property of the Seller.
8.2 Display stands supplied by the Seller will be used by the Customer only to display Goods supplied by the Seller.
8.3 The Customer will return the display stands to the Seller at the Customer’s cost as soon as they are no longer required by the Customer.
8.4 The Customer will insure the display stands and undertakes to notify its insurer of the Seller’s interest accordingly.
9. Risk and Property
9.1 Risk passes on delivery of the Goods or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
9.2 The Goods to which the Contract relates are to remain the Seller’s property until:-
9.2.1 the Customer has paid for them in full; and
9.2.2 the Customer has paid in full for any other goods or services that the Seller has supplied to the Customer in respect of which payment has become due. 9.3 So long as the Goods remain the Seller’s property the Customer will:-
9.3.1 hold them as the Seller’s bailee;
9.3.2 store them separately and readily identifiable as the property of the Seller, and insured;
9.3.3 allow the authorised representatives of the Seller to enter any premises where the Goods are stored in order to repossess them or inspect them.
10. Claims Procedures
10.1 Any claim for non-delivery of the full consignment of Goods must be notified by the Customer to the Seller within 24 hours of the date of the Seller’s despatch note.
10.2 Any alleged defects must be notified by the Customer to the Seller within 24 hours of the delivery of the Goods.
10.3 Any claim under this condition must be in writing and must contain full details of the claim.
10.4 The Seller must have a reasonable opportunity to investigate any claims made under this Condition. The Customer, if so requested in writing by the Seller, must promptly return the Goods which are subject to claim and the packing material, securely packed and carriage paid, to the Seller for examination.
10.5 The Seller will have no liability for any claim in respect of which the Customer has not complied with the claims procedures in these Conditions.
11. Limitations of Liability
11.1 Except as stated in these Conditions, all representations, warranties, conditions or terms relating to fitness for purpose, condition or quality of the Goods, whether express or implied by statute or common law, are excluded to the fullest extent permitted by law and the Seller will have liability to the Customer for the consequence of any negligence or breach of statutory or other duty or failure to perform the Contract.
11.2 Nothing in the Contract will restrict or exclude liability for death or personal injury caused by the negligence of the Seller.
11.3 The Seller’s liability to the Customer, whether for any breach of Contract, negligence, or otherwise, will not in any event exceed the Price.
11.4 In no event will the Seller be under any liability whatever to the Customer for loss of profit, business, contracts, revenues or anticipated savings, or for any indirect or consequential loss and/or expense (whatever the cause, including negligence) suffered by the Customer.
12. Events Outside Seller’s Control
12.1 The Seller is not to be liable for any default due to any Act of God, war, strike, lock-out, industrial action, fire, flood, drought, storm or other event or circumstance beyond the reasonable control of the Seller.
13. Insolvency or other Default of Customer
13.1.1 the Customer fails to make payment when due or Commits any other breach of the Contract; or
13.1.2 the Customer makes any arrangements with its creditor or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a Seller) goes into liquidation; or
13.1.3 an encumbrancer takes possession of , or a receiver is appointed over, any of the property or assets of the Customer; or
13.1.4 the Customer ceases, or threatens to cease, to carry on business; or
13.1.5 the Seller reasonably believes that any of the events listed in this condition is about to occur in relation to the Customer and notifies the Customer accordingly then the Seller may suspend all further deliveries of the Goods or supplies of services, and/or terminate the Contract, without any liability on its part and if the Goods have been delivered but not paid for, the Price will become immediately due and payable.
14. Intellectual Property
14.1 All Goods sold in retail packaging may be re-sold by the Customer only in the packaging supplied by the Seller and in no case may any trade mark other than those applied by the Seller be marked on, or applied in relation to, the Goods.
14.2 No right or licence is granted under the Contract to the Customer in relation to any intellectual property rights, except the right to use or resell the Goods. 14.3 The Customer must not, without the Seller’s written consent :-
14.3.1 alter the Goods; or
14.3.2 copy or allow others to copy the Goods or part of them; or
14.3.3 reproduce or disclose the Seller’s designs or drawings.
15.1 The Customer warrants and represents that it is a commercial (as opposed to consumer) entity.
15.2 The Customer shall, whether selling the Goods from its business premises or online through its website or (subject to clause 15.3) a third party website, ensure that the Goods are marked in a manner which, in the Seller’s reasonable opinion, maintains the high quality public image and reputation of the Goods and the Sellers name and brand and shall operate high standards of shop fitting, display and website design in respect of the Goods. The Seller has the right at any time on reasonable notice to carry out spot checks on relevant websites and to attend the Customer’s business premises to inspect the premises with a view to ascertaining compliance with this clause.
15.3 If the Customer wishes to sell the Goods through a third party website it shall request prior permission in writing from the Seller and provide such information to the Seller as the Seller shall reasonably require for the purpose of the Seller ascertaining the likelihood of compliance with this clause15. Sales of the Goods through third party websites shall be made only with the Seller’s prior written permission and in accordance with this clause 15.
15.4 When selling via a third party website (subject to clause 15.3), the Customer shall ensure that the Goods are marketed in a manner which, in the Seller’s reasonable opinion, maintains the high quality public image and reputation of the Goods and the Seller’s name and brand and shall ensure that such third party website operates high standards of website design in respect of the Goods. The Seller has the right at any time on reasonable notice to carry out spot checks on relevant websites with a view to ascertaining compliance with this clause.
15.5 The Customer shall, when selling online through its own website or (subject to clause 15.3) a third party website, ensure that the website clearly displays the same trading name and contact details as that used at the business premises maintained by the Customer.
15.6 All catalogues, literature, advertisements and any other promotional copy used by the Customer in its resale of the Goods whether such resale is via the business premises or online which incorporates reference to the Seller, its corporate name or its trade marks must be submitted to the Seller for written approval prior to printing, use or publication by or on behalf of the Customer.
15.7 Any discounts or special offers or similar which are advertised or promoted online must be a clear and accurate reflection of the discount or special offer available and must not be in any way misleading as to the extent of the discount or special offer or the range of Goods which are included in the discount or special offer.
16. Indemnity by Customer
16.1 The Customer agrees to indemnify the Seller against any damages, losses, costs, claims or expenses incurred by the Seller in connection with any claim made against it by any third party for any loss, injury or damage wholly or partly caused by the Goods or their use. This Condition will not, however, require the Customer to indemnify the Seller against any liability for the Seller’s own negligence.
17. Product Safety
17.1 The Customer must promptly communicate to the Seller all information held by or reasonably available to it regarding safety risks directly or indirectly connected with the Goods or their use.
18.1 No waiver or forbearance by the Seller (whether express or implied) in enforcing any of its rights under the Contract is to prejudice its rights to do so in the future.
19.1 If any provision of these Conditions proves to be illegal or unenforceable the remainder of these Conditions is to continue in full force and effect.
20. Applicable Law and Jurisdiction
20.1 The Contract is subject to the law of England and Wales.
20.2 All disputes arising out of the Contract are to be subject to the exclusive jurisdiction of the courts of England and Wales.
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