Terms and Conditions
In these Conditions:
The "Company" means Braitrim Group Limited or any of its subsidiaries or related companies from time to time.
"The Contract" means the relevant agreement between the Company and the Customer for the supply of the Goods in accordance with Clause 2.
The "Goods" means any goods (including any or part of them) and/or services which the Company supplies to the Customer under this Contract.
The "Customer" means the person/entity purchasing the Goods hereunder.
"writing" includes without limitation telex, cable, facsimile transmission, electronic, email and comparable means of communication.
"Conditions" means these terms and conditions of sale set out in this document.
2. FORMATION OF CONTRACT
2.1 A Contract will be formed upon acceptance by the Company of the Customer's order or the Customer’s acceptance of the Company's written quotation. These Conditions shall govern the Contract to the exclusion of any other terms and conditions and Customer is deemed to accept these Conditions when ordering Goods from the Company. The Company may refuse any order.
2.2 Representations made by the Company's employees are only valid upon receipt of manual confirmation from the Company to the Customer and the Customer acknowledges that it does not rely on and waives any claim for breach of any representations not so confirmed.
2.3 Any variation of the Contract shall be effective only if agreed in writing between the Customer and an authorized representative of the Company. The Company accepts no liability for any typographical or other error or omission in any sales literature, quotation, price list, invoice, or other document or information issued by the Company and may correct the same at any time. The quantity, quality and description of and any specification for the Goods shall be as set out in the quotation or the order (whichever is accepted).
2.4 Failure by the Customer to provide the Company with all information necessary to enable it to perform the Contract could delay full performance of Contract by the Company, and the Company shall not be liable for such delay.
3. PRICES AND PAYMENT
Except as may be otherwise specifically agreed on contract accounts, the Price for the Goods will be prices set out in the Order Form current at the date of acceptance of order and are inclusive of cost of packaging but excluding carriage, VAT and/or other applicable taxes.
All prices quoted remain valid for thirty (30) days unless the Company notifies otherwise or otherwise agreed. The Customer shall make payment in full in the currency applicable at the location where orders are placed or such currency as may be agreed by the Company according to the Company’s current rate of exchange, at the Company's office clear of any banking charges and without deduction set off or counterclaim on or before the due date for payment which is the 30th day from the date of invoice or as otherwise notified by the Company. The Company may, at its absolute discretion require partial/full payment to be made before provision of the Goods to the Customer. Time of payment shall be of essence to the Contract and without prejudice to the Company’s other rights under the Contract, the Company may charge interest at the rate of 2% per month on all amounts overdue from due date until payment is made in full (both days inclusive). The Customer will indemnify the Company in respect of all costs incurred in the collection of overdue amounts. If the Customer fails to make any payment on the due date then the Company (without prejudice to its other remedies) may at its option (and as applicable to the circumstances):
(a) cancel the Contract and/or any other contracts with the Customer;
(b) suspend current or future deliveries to the Customer;
(c) appropriate any payment made by the Customer to such of the Goods or those supplied under any other contract between them as the Company thinks fit;
(d) store the relevant Goods until actual payment and charge the Customer for the reasonable costs of storage (including insurance); and/or
(e) dispose of the relevant Goods at the best price readily obtainable and charge the Customer any shortfall (taking account of all storage and selling expenses) under the Price under the contract.
The quantity and description of the Goods and/or services will be as set out in the order form/specification. All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or services represented by or described in them. They will not form part of the Contract and this is not a sale by sample. The Customer shall purchase the Goods at his own risk as to their corresponding with the sample.
5.1 Unless otherwise agreed delivery shall be effected by the Company making the Goods available for collection at the Company’s premises. Where the Customer requires delivery to the Customer’s premises, all costs of delivery will be charged to the Customer in addition to the Price. Depending on location, it could take three (3) to four (4) working days to arrange dispatch of goods subject to receipt of clear instruction on delivery address, contact and delivery methods. For Customers without credit or under credit hold, any quoted lead time will not commence until the Company has received full payment for the Goods. The Company shall not be liable to make good any damage or loss whatsoever arising directly or indirectly out of delay / failure to effect accurate or complete or any delivery whether or not such delay / failure in delivery is caused by the fault of the Company. The Customer’s acceptance of a Purchase Invoice / Order submitted by the Company to the Customer shall bind Customer and render Customer liable for payment thereupon, save and except as provided under Clause 9.1.
5.2 Notwithstanding Clause 5.1, if the Company fails to deliver the Goods for any reason other than a cause beyond the Company’s reasonable control or the Customer’s fault and the Company is accordingly liable to the Customer, the Company's liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
5.3 The Company may deliver the Goods by instalments and each such instalment shall be deemed to be sold under a separate contract and no failure of or delay in delivery of any instalment or any defect in the contract thereof shall entitle the Customer to treat the Contract as repudiated with regard to any other instalments.
5.4 If for any reason the Customer fails to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Company may (without prejudice to any other claim which it may have) store the Goods until actual delivery and charge to the Customer’s account for the reasonable costs of storage (including insurance) or dispose of the Goods at the best price readily obtainable and charge the Customer any shortfall (taking account of all storage and selling expenses) under the price under the Contract. Such Storage and/or shortfall charge shall vary in accordance with the jurisdiction and shall at the minimum be £2.00 per day per box for storage. The applicable storage charge per day per box (example UK £2.00 per day per box or such other amount applicable in a particular jurisdiction) will be added to the Customer current invoice or carried over on the Customer’s account.
5.5 Unless otherwise specifically agreed, the Company shall be deemed to have performed the Contract by delivery of a quantity of Goods within 5% above or below the quantity ordered and the Customer shall pay at the price per unit quoted for the quantity of Goods actually delivered.
5.6 The Customer shall notify the Company of incomplete/faulty delivery or non-delivery, within five (5) working days of the date of the incomplete delivery or relevant invoice. The Company will investigate upon receipt of such notifications and address the faulty / shortfall or non-delivery expeditiously.
5.7 If the Customer disputes delivery or the quantity delivered, a proof of delivery may be provided in this instance, however, proof of deliveries will not be provided under normal circumstances and the Customer must make payment for all deliveries on time.
6. PROPERTY AND RISK
6.1 Risk in the Goods shall pass to the Customer upon the sooner of (i) the Company delivering the Goods to the Customer’s premises; (ii) informing the Customer or the appointed carrier that the Goods are ready for collection; or (iii) upon shipment of the Goods from the Company’s premises.
6.2 Notwithstanding delivery and the passing of risk in the Goods, title to the property in the Goods (i.e. legal ownership of the Goods) shall not pass to the Customer until the price in full (cash or cleared funds) of the Goods is received by the Company and until such time, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee. However the Customer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Company for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
6.3 Until the property in the Goods passes to the Customer and provided the Goods are still in existence and have not been resold, the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods and the Customer hereby grants the Company an irrevocable licence to this effect which shall survive the termination of the Contract.
6.4 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Customer does so all moneys owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
6.5 The Customer shall ascertain and comply with applicable laws relating to the Goods, their operation, use and disposal, including compliance with customs declarations and formalities and shall ensure that the Goods are used only for the purposes and in the manner for which they were designed and supplied.
6.6 The Customer shall indemnify the Company in respect of liability in relation to any breach of the Customer's obligations under this Clause 6 or claim by any third party arising from use or operation of the Goods.
7. INTELLECTUAL PROPERTY
7.1 All intellectual property rights in the Goods [including these created, developed or discovered by the Company (whether alone or with or by any other person including the Customer) belong to the Company or its licensors absolutely (including without limitation drawings, artwork, specifications, mouldings, etc] and shall vest in the Company absolutely and the Customer agrees to assign the same to the Company.
7.2 The Customer’s purchase of the Goods does not confer on the Customer any licence or right under any copyright, patent, design or trade mark or any other industrial or intellectual property right which is the property of the Company. All industrial and intellectual property rights in relation to the Goods remain the property of the Company.
7.3 The Customer shall indemnify the Company against all actions, damages, losses, penalties, costs (including legal costs on an indemnity basis) and expenses for which the Company may be liable as a result of work done in accordance with the Customer’s specifications or instructions which involves any actual or alleged infringement of any patent, copyright, trade mark, registered design or other industrial or intellectual property right (whether or not registerable) of a third party or which results in a claim for the tort of passing off. The Company may make an additional charge for art work, design and origination work including proofs, samples and models and accepts no responsibility in respect of any errors, omissions or defects in or arising from the same if they have been approved by the Customer.
8. GOODS RETURN POLICY
8.1 After delivering the Goods as ordered by the Customer, the Company will not accept the return of those Goods unless they are agreed in writing by the Company to be faulty, in which event and in accordance with Sub Clause 5.6 above, Customer should notify the Company within five (5) days of receipt of the Goods.
8.2 Notwithstanding Clause 8.1 above, the Company may, from time to time, allow the Customer to return certain Goods provided they are found to be in a saleable condition and the packaging is undamaged and unopened. In these instances a minimum charge (being the lower of 25% of invoice value or £400) and in addition, a charge of £3.50 per carton returned (or such other amounts applicable to the particular jurisdiction) will be levied on the Customer. No Goods will be accepted by the Company without prior notice from the Customer along with a written approval by a Company nominated employee accepting the return. No credit will be issued if the Goods are found not to be in a saleable condition in the original unopened packaging. The cost of transporting any Goods that the Company has agreed to take back will be borne by the Customer. (Freight will not be credited on any returns.)
9. CANCELLATION POLICY
9.1 Subject to Sub Clause 9.2, orders received by the Company and confirmed by the Customer can only be cancelled up to five (5) days before the Customer Agreed Date. Any cancellations within five (5) days of the Customer Agreed Date will be charged to the Customer in full and delivered to the Customer. Such charges shall apply even if Customer fails / refuses to take such delivery.
9.2 Special Orders received by the Company and confirmed by the Customer for product made in a non standard material, colour, hook, or otherwise cannot be cancelled. Payment and delivery must be made in full for the full value of the Special Order Goods produced to date against that order.
9.3 Orders received by the Company for print and packaging or labels and ticket products can only be cancelled within 24hours of order receipt. After 24hours of order confirmation, payment must be made in full for the full value of the Goods ordered.
9.4 The Customer will indemnify the Company in respect of all costs and losses incurred in connection with any cancellation, including any cancellation permitted under Sub Clause 9.1.
10. STORAGE OF HANGERS
All cartons of hangers should be stored minimally stacked in a clean, dry and low humidity environment to minimise the potential for metal components to corrode or for boxes to crush. Storage of hangers outside, in basements and in poorly ventilated areas etc is deemed unsuitable and subject to the limitation set out at Clause 13 below, no claims will be accepted by the Company relating to quality problems encountered in these circumstances.
11.1 The Customer shall be deemed to have repudiated separately the Contract and every other contract with the Company if:
a) the Customer is in breach of its obligations under the Contract or any other agreement with the Company or makes any voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction) or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer or the Customer ceases or threatens to cease to carry on business or where the Customer is an individual or partnership, he or any partner dies or any steps are taken with a view to making a bankruptcy order against him or any partner or any similar arrangement or process under the laws or statutes of any applicable country or state; or
b) the Company reasonably apprehends that any of the events mentioned in Sub Clause 11.1(a) is about to occur in relation to the
c) direct or indirect control of the Customer passes from the present shareholders, owners or controllers to other persons whom the Company in its absolute discretion regards as unsuitable and the Customer shall forthwith notify the Company in writing of any event mentioned in Sub Clauses (a) to (c) inclusive above.
Failure to pay any sums due in accordance with Clause 3 is a material breach of the Conditions which is not capable of remedy.
11.2 In the event of repudiation under Sub Clause 11.1, the Company without prejudice to its other rights may (without incurring any liability to the Customer) accept the repudiation and treat any contracts with the Customer as terminated, require the Customer to deliver to the Company any such Goods or enter any premises to repossess them, resell any such Goods, and suspend and withhold further performance under any contract with the Customer until all sums owing by it have been paid and/or any moneys payable by it under any unfulfilled contract have been paid.
11.3 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liability of either the Customer or the Company accrued prior to termination. The Clauses herein which expressly or impliedly have effect after termination will continue to be in force notwithstanding termination.
12.1 Subject to the conditions below the Company warrants the Goods shall be free from defects in workmanship and materials at the time of delivery; if any Goods do not conform to this warranty, the Company will at its option replace the Goods or take such steps as the Company deems necessary to render the Goods free from such defects or take back the Goods and refund or issue a credit note for the appropriate part of the purchase price PROVIDED THAT the liability of the Company shall not exceed the purchase price of the Goods and performance of any one of the above options (as limited by this proviso) shall constitute an entire discharge of the Company's liability under this warranty.
12.2 The foregoing warranty is conditional upon:
(a) the Customer giving written notice to the Company of the alleged defects in the Goods; such notice to be received by the Company within five (5) days of the time when the Customer discovers or ought to have discovered the defect and in any event within one month of receipt of the Goods;
(b) the Customer affording the Company a reasonable opportunity to inspect the Goods and if so requested by the Company returning (at the Customer's risk) the allegedly defective Goods to the Company's main office or such other address as it may specify suitably packaged and carriage pre paid within four (4) weeks from delivery of the Goods;
(c) the Customer making no further use of the Goods which are alleged to be defective after the time at which the Customer discovers that they are defective; and
(d) the Customer has performed its obligations hereunder including having paid the total price for the Goods on time.
13. LIMITATION OF LIABILITY
13.1 SAVE AS PROVIDED IN CLAUSE 12 ABOVE ALL CONDITIONS AND WARRANTIES EXPRESSED OR IMPLIED BY STATUTE OR COMMON LAW ARE HEREBY EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW AND, EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY RESULTING DIRECTLY FROM THE COMPANY'S GROSS NEGLIGENCE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS, THE COMPANY SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY LOSS OR DAMAGE (INCLUDING CONSEQUENTIAL LOSS, WHETHER FOR LOSS OF PROFIT OR OTHERWISE), COSTS, EXPENSES OR OTHER CLAIMS WHATSOEVER WHICH ARISE OUT OF OR IN CONNECTION WITH THE SUPPLY OF GOODS OR THEIR USE OR RESALE BY THE CUSTOMER OR OTHERWISE IN CONNECTION WITH THE CONTRACT, EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS.
13.2 Without prejudice to the generality of Sub Clause 13.1 above all advice and recommendations given by or on behalf of the Company to the Customer as to the method of storing, applying or using the Goods, the purpose to which the Goods may be applied and the suitability of using the Goods in any process or in conjunction with any other materials are given without liability on the part of the Company, its servants or agents.
13.3 In the event that, notwithstanding the provisions of Sub Clauses 13.1 and 13.2 hereof, the Company is found liable for any loss or damage under or in connection with the Contract or the Goods, that LIABILITY SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS.
14.1 The Customer shall not at any time disclose any confidential information relating to the Company including without limitation information concerning its business, products, know how, customers, plans or other affairs or use such information in any manner which might be detrimental to the Company.
14.2 The Company's rights and remedies shall not be prejudiced by any indulgence or forbearance extended to the Customer and no waiver by the Company of any breach by the Customer shall operate as a waiver of any subsequent breach of the same or any other provision.
14.3 The unenforceability or invalidity of the whole or part of any clause, sub clause or paragraph of these Conditions shall not affect the enforceability or validity of the remainder and if any of these Conditions or any part of them is rendered void, voidable or unenforceable for any reason it shall be void, voidable or unenforceable to that extent only and no further and the remainder of these Conditions and any Contract shall remain unaffected.
14.4 Any notice hereunder shall be in writing and given effectively if delivered or sent to the office or email address of the addressee last known to the sender.
14.5 The Company shall not be liable for any failure to perform properly under the Contract if the reason for such failure is a result of an Act of God, the act of government authorities or other incidents, circumstances or causes which are beyond its reasonable control and the Company may cancel or vary the Contract as a result.
14.6 The Customer shall be able to cancel the Contract only in accordance with Clause 9 or with the Company's written consent; any cancellation shall be on terms specified by the Company.
14.7 The Company may assign, transfer or otherwise deal with the Contract or any rights or obligations under the Contract without the prior written consent of the Customer. The Client may not assign, transfer or otherwise deal with the Contract or any rights or obligations under the Contract without the prior written consent of the Company.
14.8 The Contract contains all the terms which the Company and the Customer have agreed in relation to the Goods and/or services and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Goods and/or services. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Clause 14.8 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
14.9 For the avoidance of doubt should there be any conflict between the terms and conditions of sale set out in this document and any special terms attached to them, then the special terms shall prevail.
14.10 This Contract shall be governed by the laws of the United Kingdom and the Parties submit to the jurisdiction of the Courts of the United Kingdom.
14.11 All references to UK£ are applicable for UK based orders only. Different amounts / currencies will apply to different jurisdictions.
Onus is on Customer to check with the Company’s local account representative as to the applicable currency and amounts.