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Online Home Retail LTD. TERMS & CONDITIONS OF PURCHASE
Version 1.2. Applicable to all orders placed on or after 5th October 2005
Version 1.1 .can be found here
Version 1.0 can be found here
1. DEFINITIONS AND INTERPRETATION
In these Conditions the following words shall have the following meanings:
1.1 ‘the Company’ ; Online Home Retail Ltd. or any subsidiary or associate company as defined by the Companies Act 1985 as amended.
1.2 ‘the Contract’ ; the Order and the Seller’s acceptance of the Order.
1.3 ‘the Goods’ ; any goods or services agreed in the Contract to be purchased by the Company from the Seller (including any part or parts of them).
1.4 ‘Order’ ; the Company’s written instruction to supply the Goods, incorporating these Conditions.
1.5 ‘the Seller’ ; the person, firm, or company who accepts the Company’s Order.
1.6 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.7 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.8 In these Conditions the headings will not affect the construction of these Conditions.
2.1 These Conditions are the only conditions upon which the Company is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions (Excluding any terms implied into such an agreement by common law, European law. statute or other applicable source of law). These Conditions constitute the entire understanding between the Company and the Seller with respect to the Contract and supersede all previous agreements and understanding between the parties.
2.2 Each Order for Goods by the Company from the Seller shall be deemed to be an offer by the Company to purchase Goods subject to these Conditions and no Order shall be accepted until the Seller either expressly by giving written notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accepts the offer. Dispatch or delivery of the Goods to the Company shall be deemed conclusive evidence of the Sellers acceptance of these Conditions.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Seller’s quotation, acknowledgement or acceptance of order, specification or similar document will form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.
2.4 The Seller shall keep the Company indemnified in full against all direct, indirect or consequential liabilities including legal and other professional fees and expenses awarded against or incurred or paid by the Company as a result of or in connection with any attempt to legally enforce contract terms other than those contained within this document or implied into the contract by common law, European law,statute or other applicable source of law.
2.5 These Conditions apply to all the Company’s purchases and any variation to these Conditions shall have no effect unless expressly agreed in writing and signed by a Director of the Company.
3.1 The Goods shall be of the best available design, of the best quality, material and workmanship, be without fault and conform in all respects with the Order and specification and/or patterns supplied or advised by the Company to the Seller.
3.2 The Company’s rights under these Conditions are in addition to the statutory conditions implied in favour of the Company by the Sale of Goods Act 1979.
3.3. The Company will not inspect the goods on delivery for defects or damage and the signing of any delivery note does not mean that the goods have been accepted as free from defects. (Irrespective of any wording on the delivery note). The company shall have the right to avail itself of any one or more remedies listed in Condition 12 in respect of such goods irrespective of the time taken to identify the defects or damage.
3.4 If the Company is of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications and/or patterns supplied or advised by the Company to the Seller, the Company shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection.
3.5 Where a product reveals a defect within 12 months after it has been sold by the Company, the Company shall raise a debit note (to the value paid to the seller for the product) on the account of the seller and notify the seller of the defect by email. (It is the sole responsibility of the seller to ensure that the company is given a suitable email address to send such notifications to and that any changes to the email address are duly notified to the Company.) The seller shall have 14 days from the date of this email to collect and inspect the goods and dispute any defect. After the 14 day period the seller is deemed to accept the existence of the defect and will supply the Company with a credit note equal in value to the debit note raised. The company will dispose of the defective product as it sees fit if it is not collected at the expiry of the 14 day period and will not be liable to the seller in respect of any scrap or other value received for such products.
3.6 If any of the Goods fail to comply with the provisions set out in Condition 3 the company shall be entitled to avail itself of any one or more remedies listed in Condition 12.
The Seller shall keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
4.1 defective workmanship, quality or materials;
4.2 an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Goods;
4.3 any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Seller.
5.1 The Goods shall be delivered, carriage paid by the Seller, to the Company’s place of business or to such other place of delivery as is agreed by the Company in writing prior to delivery of the Goods. The Seller shall off-load the Goods as directed by the Company.
5.2 The date for delivery shall be specified in the Order, or if no such date is specified then delivery shall take place within 28 days of the Order.
5.3 The Seller shall invoice the Company upon, but separately from, despatch of the Goods to the Company.
5.4 The Seller shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the order number, date of order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered and a date of delivery for that balance. The sigining of a delivery note does not indicate that all items on the delivery were received unless all items are individually dentified on the delivery note and each line item is ticked. In the event that a shortage is noted after delivery, the companies notification of such a shortage will be taken as conclusive evidence that such a shortage existed at the time of delivery, provided it is notified to the seller within 48 hours of the delivery.
5.5 Time for delivery shall be of the essence.
5.6 Unless otherwise stipulated by the Company in the Order, deliveries shall only be accepted by the Company in its normal business hours. Deliveries on Fridays will not be accepted after 11.00am.
5.7 If the Goods are not delivered on the due date then, without prejudice to any other rights which it may have, the Company reserves the right to :
5.7.1 cancel the Contract in whole or in part;
5.7.2 refuse to accept any subsequent delivery of the Goods which the Seller attempts to make;
5.7.3 recover from the Seller any expenditure reasonably incurred by the Company in obtaining the Goods in substitution from another supplier; and
5.7.4 claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Seller’s failure to deliver the Goods on the due date.
5.8 If the Seller requires the Company to return any packaging material to the Seller that fact must be clearly stated on any delivery note delivered to the Company and any such packaging material will only be returned to the Seller at the cost of the Seller.
5.9 Where the Company agrees in writing to accept delivery by instalments the Contract will be construed as a single contract in respect of each instalment. Nevertheless failure by the Seller to deliver any one instalment shall entitle the Company at its option to treat the whole Contract as repudiated.
5.10 If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess will be and will remain at the Seller’s risk and will be returnable at the Seller’s expense.
5.11 If incorrect Goods are delivered to the Company either goods different to those ordered or goods packaged in a way different from that ordered Company shall not be bound to pay for these goods and they will remain at the Seller’s risk. The company will notify the Seller and the seller shall have 3 working days to collect the incorrect delivery. After 3 days the Company will arrange the return of the goods using it's own carriers. The Seller will be charged the cost of the return and an administration charge of £25. In the event that this return is not accepted by the seller and they are returned to the Company then they will be deemed as a free gift to the company and disposed of by the company as it sees fit without any payment to the seller and without any liability to the seller.
6.1 The Goods shall remain at the risk of the Seller until delivery to the Company is complete (including off-loading and stacking).
6.2 Ownership of the Goods shall pass to the Company when delivery is complete
7.1 The price of the Goods shall be stated in the Order and unless otherwise agreed in writing by the Company shall be exclusive of value added tax but inclusive of all other charges.
7.2 No increase in the price nor extra charges will be accepted by the Company.
8.1 The Company shall pay for the Goods within 60 days from the end of the month of delivery of the Goods to the Company (or earlier if the Company so determines), but time for payment shall not be of the essence of the Contract.
8.2 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Seller to the Company against any amount payable by the Company to the Seller under the Contract.
The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Company or its agents and any other confidential information concerning the Company’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to the Company under the Contract and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.
Materials, equipment, tools, dies, jigs, moulds, copyright, design rights or any other form of intellectual property rights in all drawings, specifications and data supplied by the Company to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of the Company but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Company and shall not be disposed of other than in accordance with the Company’s written instructions, nor shall such items be used otherwise than as authorised by the Company in writing.
11. TERMINATION & RIGHT OF ONGOING SUPPLY
11.1 The Company shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued and the Company shall pay the Seller fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
11.2 The Company shall have the right at any time by giving notice in writing to the Seller to terminate the Contract forthwith if:
11.2.1 the Seller commits a breach of any of the terms and conditions of the Contract;
11.2.2 any distress, execution or other process is levied upon any of the assets of the Seller;
11.2.3 the Seller has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a corporate body) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Seller or for the granting of an administration order in respect of the Seller, or any proceedings are commenced relating to the insolvency or possible insolvency of the Seller;
11.2.4 the Seller ceases or threatens to cease to carry on its business; or
11.2.5 the financial position of the Seller deteriorates to such an extent that in the opinion of the Company the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy; or
11.2.6 there is a change in the majority shareholding and/or ownership of the seller.
11.3 The termination of the Contract, however arising, will be without prejudice to the rights and duties of the Company accrued prior to termination. The Conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
11.4 Once goods are supplied by the seller to the company the seller shall not subsequently refuse to supply such goods to the seller on the same price and terms unless:
12.1 Without prejudice to any other right or remedy which the Company may have, if any Goods are not supplied in accordance with, or if the Seller fails to comply with, any of the terms of this Contract the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Company:
12.1.1 to rescind the Order;
12.1.2 to reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;
12.1.3 at the Company’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled within a timescale defined by the Company;
12.1.4 to refuse to accept any further deliveries of the Goods but without any liability to the Seller;
12.1.5 to carry out at the Seller’s expense any work necessary to make the Goods comply with the Contract; and
12.1.6 to claim such damages as may have been sustained in consequence of the Seller’s breach or breaches of the Contract.
13.1 The Seller shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
13.2 The Company may assign the Contract or any part of it to any person, firm or company.
The Company reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered if it is prevented or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delay in obtaining supplies of adequate or suitable materials.
15.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
15.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
15.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Seller will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract or the rights of the Company under these Conditions.
15.5 The Company and the Seller do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
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