The customer's attention is drawn in particular to the provisions of clause 11.
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Carrier Delivery Location: has the meaning given in clause 5.2.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier (as set out in the Order).
Customer Delivery Location: has the meaning given in clause 5.2.
Force Majeure Event: has the meaning given in clause 12.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights subsisting now or in the future in any part of the world.
Minimum Order Value: £300 net after the following deductions: (a) any applicable discount(s) and (b) value added tax.
Order: the Customer's order for the Goods to which these terms are attached.
Order Confirmation: the Supplier’s written acceptance of an Order.
Specification: any specification for the Goods produced by the Supplier or, where the Supplier does not manufacture the Goods, the manufacturer of the Goods.
Supplier: Rosewood Pet Products Limited (registered in England and Wales with company number 00662785)
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer 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 Customer to purchase the Goods in accordance with these Conditions. The Customer 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 the Supplier issues an Order Confirmation to the Customer or dispatches the Goods to the Customer (whichever is the earlier), at which point the Contract shall come into existence.
2.4 If the Supplier is unable to supply the Customer with the Goods for any reason, the Supplier will inform the Customer of this by email and the Supplier will not process the Order. If the Customer has already paid for the Goods, the Supplier will refund the Customer the full amount including any delivery costs charged as soon as possible.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any illustrations contained in the Supplier's 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.
2.7 A quotation for the Goods given by the Supplier shall not constitute an offer.
3. GOODS
3.1 The Goods are described in the Supplier's catalogue as modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier 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 the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 All Goods purchased from the Supplier for resale must be sold by the Customer in the condition as sold or prescribed by the Supplier and in particular all labels, wiring, and packaging must remain intact and not be tampered with, altered or obliterated in any way.
3.4 The Supplier reserves the right to amend the Specification at any time without prior notice (but does not assume the obligation) including to make any change in any Specification which is required to conform with any applicable legislation.
4. MINIMUM ORDER VALUE
In the event that an Order is for less than the Minimum Order Value that Order will be delivered with an additional delivery charge of £10 payable by the Customer.
5. DELIVERY
5.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
5.2 The Supplier shall deliver the Goods to its authorised carrier's delivery location (Carrier Delivery Location) and the authorised carrier shall deliver the Goods to the Customer's location set out in the Order or such other location as the parties may agree (CustomerDelivery Location) at any time after the Supplier notifies the Customer that the Goods are ready to be delivered.
5.3 Delivery of the Goods shall be complete once the Goods have been unloaded at the Carrier Delivery Location.
5.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.7 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage, insurance and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.8 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5% more or less than the quantity of Goods as set out on the Order, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
5.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6. WARRANTY
6.1 Where the Supplier is not the manufacturer of the Goods, the Supplier shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier.
6.2 The Supplier warrants that on delivery the Goods shall conform with their description and any applicable Specification.
6.3 Subject to clause 6.4, if:
(a) the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.2;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.4 The Supplier shall not be liable for breach of the warranty set out in clause 6.1 if any of the following events occur:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.3;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.5 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.2.
6.6 Except as set out in these Conditions, the Supplier does not give any representations, warranties or undertakings in relation to the Goods and all representations, warranties, conditions and other terms implied or incorporated by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. In particular, the Supplier will not be responsible for ensuring the Goods are suitable for the Customer's purposes.
6.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods, including all applicable delivery charges, and any other goods or services that the Supplier has supplied to the Customer 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; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.4.
7.3 Until title to the Goods has passed to the Customer in accordance with clause 7.2, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.2; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.4 Subject to clause 7.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer in accordance with clause 7.2 the Customer becomes subject to any of the relevant events listed in clause 10.2, or the Supplier reasonably believes that any such relevant event is about to happen and notifies the Customer accordingly, then without limiting any other right or remedy the Supplier may have:
(a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) provided that the Goods have not been resold, or irrevocably incorporated into another product, the Supplier may at any time:
(i) require the Customer to deliver up the Goods; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7.6 On termination of the Contract for any reason the Supplier’s rights in this clause 7 shall remain in full effect.
8. PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the first date of delivery or attempted delivery.
8.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
8.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery in accordance with clause 5.3 or where relevant deemed completion of delivery in accordance with clause 5.6.
8.6 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice (the Due Date) to a bank account nominated in writing by the Supplier. Time of payment is of the essence.
8.7 If the Customer fails to make any payment due to the Supplier under the Contract by the Due Date then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc's base rate from time to time but at 4% a year for any period when that base rate is below 0%. Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the all amounts due under the Contract.
8.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding (other than any deduction or withholding of tax as required by law) and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
9. INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges that all Intellectual Property Rights used or subsisting in the Goods are and shall remain the sole property of the Supplier or the third party rights owner (as the case may be).
10. CUSTOMER'S INSOLVENCY OR INCAPACITY
10.1 Without limiting its other rights or remedies, if the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, or if the Customer fails to pay any amount under this Contract on the Due Date, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
10.2 For the purposes of clause 10.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(a) clause 10.2(h)(inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.3 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.
10.4 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
11. LIMITATION OF LIABILITY
11.1 The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) breach of section 2 of the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
11.3 Subject to clause 11.1:
a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
(i) loss of profit; or
(ii) loss of goodwill; or
(iii) loss of business; or
(iv) loss of business opportunity; or
(v) loss of anticipated saving; or
(vi)any special, indirect or consequential loss suffered by the Customer arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer 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.
12. FORCE MAJEURE
Neither party shall be liable for any failure to perform or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by any act or 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 ( Force Majeure Event).
13. GENERAL
13.1 Assignment and subcontracting.
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
13.2 Notices.
(a) When we refer to "in writing" in these Conditions, this includes email.
(b) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered by hand, sent by pre-paid first class post or other next working day delivery services, or email.
(c) A notice or other communication shall be deemed to have been received: if delivered by hand, when left at the address referred to in clause 13.2(b); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if sent by email at 9.00am the next working day after transmission.
(d) In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
(e) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.3 Severance.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.4 Waiver.
A waiver of any right or remedy under the Contract 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5 Third party rights.
The Contract is between the Supplier and the Customer. A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.6 Variation.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier (or any authorised representative of the Supplier).
13.7 Governing law and jurisdiction. 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales in the case of all disputes arising out of or in connection with the Contract.
