Terms
1. INTERPRETATION
In these Terms and Conditions unless the context otherwise requires the following words have the following meanings:-
“Acceptance” means the confirmation in writing by the Company of the Purchaser’s order and the Design
"the Company" means Lesmar Limited and/or Lesmar Online Limited
Trading address: 10 Spencer Street St Albans Herts AL3 5EG UK
Registered address: Koten & Co Station Road Upminster
Essex RM14 2SJ UK
"Contract" means the agreement between the Company and the Purchaser for the purchase of the Goods and incorporating these terms and conditions and any special conditions agreed in writing by the parties
“Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Company
"Design" means any design logo drawing specification printed matter instructions or information (as appropriate) provided by the Purchaser to the Company in relation to the Goods
"Goods" means the goods to be supplied or procured by the Company and purchased by the Purchaser on the terms of the Contract as detailed in the Acceptance
"the Purchaser" means the person firm company or other organisation who buys or agrees to buy the Goods from the Company
“Price” means the price for the Goods excluding delivery costs packing insurance and VAT
"Website" " means any website operated by the Company from time to time
"Writing" or cognate expressions include a reference to any communication effected by telex cable facsimile email or any comparable means.
Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended extended or re-enacted.
2. BASIS OF THE CONTRACT
2.1 These Conditions shall be incorporated into all Contracts for the sale of Goods by the Company to the Purchaser howsoever the Purchaser placed an order to the exclusion of all other terms conditions or representations including any terms and conditions which the Purchaser may purport to apply under any purchase order confirmation of order or similar document.
2.2 No statement description information warranty condition or recommendation contained in any catalogue price list advertisement or communication or made verbally by any of the agents representatives or employees of the Company shall be construed to vary in any way the Conditions unless agreed in accordance with Clause 18.
2.3 All illustrations contained in the Company's brochures catalogues advertisements or price lists are approximate only and are intended merely to give a general idea of the goods described therein and shall not form part of the Contract.
2.4 Any written quotation estimate and/or advertised price for the Goods shall be an invitation to treat. All orders for Goods shall be deemed to be an offer by the Purchaser to purchase Goods pursuant to these Conditions. No binding contract shall be created until the Company has sent to the Purchaser an Acceptance.
3. DESIGN AND ARTWORK
3.1 The Purchaser warrants that the Design is accurate and free from error. The Company shall not be liable for any losses claims damages costs or expenses suffered by the Purchaser resulting from any error or inaccuracy in the Design.
3.2 Where the Company has provided artwork such artwork shall be approved by the Purchaser and no change to the artwork will be accepted after the said artwork has been used in production of any Goods to be supplied to the Purchaser unless the Purchaser accepts a variation to the Price as a result of such change. The Purchaser must confirm his acceptance to the variation of the Price in writing.
4. DELIVERY
4.1 The Purchaser shall make all arrangements to take delivery of the Goods whenever they are tendered for delivery. Any time or date given for delivery of the Goods by the Company is an estimate and shall not be binding upon the Company. Time of delivery is not of the essence and the Company will not be liable for any loss or damage due to any failure or delay in delivery.
4.2 The Purchaser shall notify the Company of any non-delivery of a whole consignment within 14 days of the date of dispatch (as stated on the invoice). Notwithstanding the receipt by the Company of any such notice a signature on a carrier’s delivery advice sheet shall be deemed to signify receipt of the quantity indicated on the advice sheet.
4.3 The Company may deliver the Goods by separate instalments. Each instalment shall be treated entirely separately for the purposes of the Conditions. Delay or non-delivery of a particular instalment or any defects in workmanship or materials affecting any particular instalment shall not entitle the Purchaser to repudiate the Contract with regard to any other instalment or to refuse or withhold payment for any Goods delivered.
4.4 If the Purchaser is unable to accept delivery the Company may at its own absolute discretion store the Goods at the Purchaser's risk and expense until delivery. The Company will make additional charges for such storage and for any extra handling and transportation. This clause shall not affect any rights the Company may have against the Purchaser for failing to accept delivery.
5. RISK
Risk in the Goods shall pass to the Purchaser from the time of despatch to the Purchaser or its agent and the Purchaser shall insure the Goods against loss and damage by fire or other insurable risk from that time until the price thereof has been paid in full and cleared funds. The Purchaser shall hold on trust for the Company any insurance monies received as a result of such loss or damage.
6. NON-DELIVERY SHORTAGE OR DAMAGED GOODS
6.1 The Purchaser shall inspect the Goods on delivery and shall within 4 days of delivery notify the Company of any alleged defect shortage in quantity damage or failure to comply with description or sample. The Purchaser shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. If the Purchaser shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the contract and free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Purchaser shall be deemed to have accepted the Goods.
6.2 Acceptance of some of the Goods by the Purchaser whether conforming to the Contract or not shall deprive the Purchaser of the right to reject the rest of the Goods whether they conform to the Contract or not. For these purposes acceptance shall be deemed to include using the Goods for any purpose whatsoever.
6.3 If the Goods are not in accordance with the contract for any reason the Purchaser’s sole remedy shall be limited to the Company making good any shortage by replacing such Goods or if the Company shall elect by refunding a proportionate part of the Price.
6.4 The Company’s liability to the Purchaser whether for any breach of contract or otherwise shall not in any event exceed the Price and the Company shall be under no liability for any direct loss and/or expense or indirect loss and/or expense suffered by the Purchaser or liability to third parties incurred by the Purchaser.
6.5 All warranties and conditions whether implied by statute or otherwise are excluded from this contract provided that nothing in this contract shall restrict or exclude liability for death or personal injury caused by the negligence of the Company or affect the statutory rights of a purchaser dealing as a consumer.
6.6 Goods damaged in transit should not be accepted from the carrier and no refund or replacement will be made in respect of such Goods accepted from the carrier.
7. GOODS AND PASSING OF TITLE
7.1 For the purposes of this clause “normal trade tolerances” means a variation in shade colour or appearance of material which is expected in the trade particularly in respect of although not limited to natural materials such as leather and wood. In respect of clothing it means a variation in size by up to 5%.
7.2 The Goods may vary in accordance with normal trade tolerances from any proof or sample or the specifications stated in the Acceptance and the Company shall have no liability in respect of such variation.
7.3 The Purchaser shall take delivery of the Goods notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased by up to ten per cent (10%) provided that the price is adjusted accordingly.
7.4 Title shall pass on delivery of the Goods.
8. PRICE
8.1 Subject to Clause 7.3 above the Price shall be that in the Acceptance. The Price is exclusive of VAT which shall be due at the rate in force at the date of the Company’s invoice.
8.2 The Purchaser is responsible for the payment of all costs relating to the delivery packaging taxes import duties charges for customs clearance and levies in relation to the Goods.
9. PAYMENT
9.1 The Company will invoice on or following the date of despatch of the Goods or the date on which the Goods were ready for despatch to the Purchaser whether or not the Purchaser is able to take delivery. Each consignment or instalment of Goods may be invoiced separately. The Company's invoices shall be paid by the Purchaser in full in cleared funds within 30 days of the date of the invoice
9.2 If the Purchaser fails to make any payments when due the Company may at its option and without prejudice to any other rights or remedies which it may have under the contract:-
9.2.1 suspend or cancel any further deliveries until payment is made; or
9.2.2 repudiate the Contract;
9.3 Interest shall accrue (both before and after judgment) on the outstanding balance of all overdue accounts from the date when payment becomes due until the date of payment calculated on a daily basis at a rate of 4% above the base rate from time to time of Barclays Bank plc.
9.4 Time for payment is of the essence for the purposes of the Contract.
9.5 The Purchaser shall not be entitled to withhold payment of any amount payable under the Contract (or any other contract between the parties) because of a disputed claim of the Purchaser in respect of faulty Goods or any other breach of contract nor shall the Purchaser be entitled to set-off against any amount payable under the Contract (or any other contract between the parties) to the Company any monies which are or are purported to be payable by the Company.
10. CANCELLATION OF ORDERS
10.1 The Purchaser may not cancel the Contract for Goods made or to be made to the Purchaser's specific requirements.
10.2 Subject to Clause 12.6 below the Purchaser may cancel the Contract for Goods kept in stock by the Company with the prior consent of the Company in writing within 7 days of the order being placed by the Purchaser. In the event of such cancellation the Purchaser will be obliged to pay a re-stocking and handling charge and any administration costs involved.
11. WEBSITE
11.1 The Purchaser is responsible for maintaining the confidentiality of the account and password and for restricting access to the Purchaser’s computer to prevent unauthorised access to the account. The Purchaser is responsible for all activities that occur in respect of the account or password. The Purchaser should inform the Company immediately if the Purchaser suspects that the password has become known to anyone else or if the password is being or is likely to be used in an unauthorised manner.
11.2 The Purchaser must inform the Company immediately of any changes to the information provided when registering.
11.3 The Company reserves the right without notice to refuse access to the website terminate accounts remove or edit content or refuse orders at the Company’s absolute discretion
11.4 The Company reserves the right to communicate with the Purchaser including serving notices on the Purchaser by posting such communication on the Company’s website
11.5 The Purchaser will be informed of the delivery charge for the Goods through the website before placing an order but this charge excludes import duties taxes and charges for customs clearance. The Purchaser is solely responsible for these and for ascertaining the amount of them. The Purchaser will be bound by the terms of the Contract whether or not the Purchaser pays the duties taxes and charges even if in consequence of non payment the Goods are not released to the Purchaser.
11.6.1 This sub-clause applies only if the Purchaser is deemed to be a consumer within the meaning of the Consumer Protection (Distance Selling) Regulations 2000.
11.6.2 The Purchaser may cancel the Contract provided that the Goods are not custom made to the Purchaser’s specific requirements at any time up to the end of the seventh working day from the date on which the Purchaser received the Goods. Cancellation must be notified to the Company in writing. If the Purchaser cancels the Contract after delivery of the Goods the purchaser must send the Goods to the Company forthwith at the Purchaser’s own cost and risk. Any sum received by the Company from the Purchaser toward the Price will be refunded to the Purchaser within 30 days of the date on which the Goods are received back by the Company or if the Goods had not been delivered to the Purchaser then within 30 days of the date of service of the notice of cancellation PROVIDED THAT the Goods received back by the Company are in the condition that they were in when they were delivered to the Purchaser and the costs of return to the Company have been paid by the Purchaser.
11.7 The Company will not be liable for damage to or viruses that may affect any computer equipment software data or other property as a result of access to use of or browsing of the Website or the downloading of any material data text or images.
11.8 The Company will not be liable for any damage loss costs or expenses suffered by the Purchaser as a result of any period during which the Website is unavailable for use by the Purchaser for any reason whatsoever
11.9 By continuing to use the Website the Purchaser is deemed to accept the Conditions.
12. INTELLECTUAL PROPERTY
12.1 The Purchaser warrants that the use of the Design for the manufacture processing assembly or supply of the Goods shall not infringe the rights of any third party. The Purchaser shall indemnify and keep indemnified the Company against any and all claims actions costs expenses (including legal expenses and disbursements) made or brought against the Company (whether in the UK or elsewhere) in respect of any infringement of any third party rights as a result of the use of the Design.
12.2 The specification and design of the Goods (including the copyright design right or other intellectual property in them) shall as between the parties be the property of the Company with the exception of the Design in respect of which copyright design right or other intellectual property shall remain the property of the Purchaser
12.3 All trademarks used in the Company's catalogue brochure price list or Website belong to the Company or the registered proprietor of such trademarks.
12.4 All rights relating to copyright trademarks know-how and any other intellectual property in materials or information on the Website are the property of the Company.
13. THIRD PARTIES
13.1 The Purchaser shall be liable for and shall indemnify the Company against any and all expenses loss liability or proceedings suffered by a third party arising as a result of or in connection with any act omission negligence and/or breach of the terms of the Contract or otherwise through the default of the Purchaser
13.2 The Company makes no representation or warranty as to whether or not the use of the Goods infringes the rights of any third party and the Company accepts no liability in this respect.
13.3 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
14. DEFAULT OR INSOLVENCY OF PURCHASER
14.1 In the event that:
14.1.1 the Purchaser shall be in breach of any of its obligations under the Contract; or
14.1.2 any distress or execution shall be levied on the Purchaser's property or assets; or
14.1.3 if the Purchaser (being an individual or partnership) shall make or offer to make any voluntary arrangement or composition with its creditors or become bankrupt or if any bankruptcy petition be presented against him; or
14.1.4 if the Purchaser (being a company) has an administrative receiver or administrator appointed or makes a voluntary arrangement with its creditors or a petition for its winding up is presented; or
14.1.5 otherwise if the Purchaser fails to pays its debts as and when they fall due; or
14.1.6 such equivalent event in Clauses 15.1.2 to Clause 15.1.4 occurs to the Purchaser in its local jurisdiction;
the Company at its discretion and without prejudice to any other right or claim may by notice in writing immediately terminate wholly or in part the Contract or may (without prejudice to the Company's rights subsequently to terminate the Contract for the same cause should it so decide) by notice in writing suspend further deliveries of Goods.
15. FORCE MAJEURE
15.1 The Company shall be entitled to delay or cancel delivery or to reduce the amount of the Goods delivered if it is prevented from hindered or delayed in supplying obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its reasonable control including but not limited to strikes lock-outs accidents war fire reduction in or unavailability of power at manufacturing plant breakdown of plant or machinery or shortage or unavailability of labour and raw materials from normal source of supply and the Company shall not be responsible to the Purchaser for any resulting loss or damage suffered by the Purchaser.
15.2 If the performance of the Contract by the Company shall be prevented by any circumstances of force majeure the Company shall have the right to be discharged from further performance of and liability under the Contract. If the Company exercises such right the Purchaser shall pay the Price less a reasonable allowance for such part of the Contract that has not been performed by the Company.
16. DISPUTES
If any dispute arises between the Company and the Purchaser regarding any omission matter act or thing of whatsoever nature arising out of the Contract then such dispute may at the option of the Company only be referred to such person as the parties may agree to as arbitrator or failing such agreement as may be appointed on the request of either party by the President for the time being of the Chartered Institute of Arbitrators. Such arbitration shall take place in London or such other place as the parties may agree.
17. HEADINGS
Headings in these Conditions shall not form part of the Conditions and are for ease of reference only.
18. VARIATION
All variations or modifications to the Contract will only be binding if recorded in writing by both parties.
19. WAIVER
No waiver or forbearance by the Company whether express or implied in enforcing any of its rights under this Contract shall prejudice its right to enforce those or any other rights in the future.
20. ASSIGNMENT
The Purchaser may not assign sub-contract or in any way transfer or dispose of any of its rights or obligations under the Contract without the prior written consent of the Company.
21. NOTICES
21.1 Any notice required to be served under the Contract shall be served on the Company at its registered offices in the UK or such other address as the Company may from time to time notify to the Purchaser in writing and on the Purchaser at the address in the Purchaser’s order or at such other address as may be subsequently notified by the Purchaser to the Company in writing by first class post registered air mail by email by facsimile or by displaying a notice on the Company’s website.
21.2 In the absence of evidence of earlier receipt any such notice shall be deemed to have been served
21.2.1 if posted to a destination in the UK two days after posting
21.2.2 if posted to a destination outside the UK seven days after the date of posting
21.2.3 if sent by email when the email is available to read in the recipient's inbox which will be presumed to be on the date of sending if the sender has not received notice of failure of delivery
21.2.4 if sent by facsimile when the addressee's machine acknowledges receipt thereof
21.2.5 if displayed on the Company’s website on the day that the notice is displayed
22. ENTIRE AGREEMENT AND SEVERABILITY
22.1 The Contract contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties. The Purchaser acknowledges that in entering into the Contract it does not do so on the basis of and does not rely on any representation warranty or other provision except as expressly provided in the Contract.
22.2 Any provision of this contract which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of this contract.
23. GOVERNING LAW AND JURISDICTION
These Conditions and the Contract shall be governed by and construed in accordance with laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
