Jem + Bea Terms and Conditions of Sale for Wholesale Accounts
In these conditions the following expressions shall have the following meanings
“Seller” JEM + BEA Ltd
“Buyer” The person, firm or company named in the Invoice
“Goods” The Goods described in the Seller’s written Order or Invoice
“Territory” the UK, EEA or such other territory agreed in writing by the Seller
“Intellectual Property Rights” all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, social media handles, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
- Variation of Terms
Unless otherwise agreed in writing signed by an officer of the Seller goods are supplied by the Seller only on these conditions and no variation of or addition thereto (whether contained in any document emanating from the Buyer or made orally by any person acting or purporting to act on behalf of the Seller) shall have effect. Should any of these conditions conflict with any conditions stated in the Buyer’s order these conditions shall prevail. The giving by the Buyer of any delivery instructions for the goods or any part thereof, or the acceptance by the Buyer of delivery of the goods or any part thereof or any conduct by the Buyer in confirmation of the transaction set out on the basis hereof after receipt by the Buyer of this document shall constitute unqualified acceptance by the buyer of these conditions.
All Sales Orders for delivery outside the United Kingdom shall be quoted confirmed and invoiced in pounds sterling and all payments made in pounds sterling unless otherwise agreed in writing.
All prices quoted are exclusive of Value Added Tax which shall be added where applicable at the current rate as at the time of the invoice.
All prices quoted are “Ex warehouse” and are exclusive of import and export duties carriage insurance and any other handling charge or duty. Carriage and packing will be charged extra at cost. All packing cases or materials are non-returnable.
- Price Variation
The Seller may at any time before delivery increase the price of the goods or any of them by notice to the Buyer. In such an event the Buyer may within seven days of receipt of such notice cancel the order or the part of thereof relating to the goods specified in said notice, but if delivery of the said goods is to be made by instalments the Buyer shall be entitled to cancel only the undelivered portion of the order relating thereto. No other remedy shall be available to the Buyer in respect to such variation of price. If the Buyer shall not make any such cancellation as aforesaid the increased price shall apply to the goods specified in the said notice except as regards those of the said goods delivered before the date on which the increase becomes effective.
- 7. Cancelation
The Buyer has the right to cancel the order, only within 24 hours of the order being submitted. Cancellation after this period will result in 50% of order value being payable where cancellation is 7-30 days after order submitted, 100% of order value after 30 days. Notice of cancellation must be sent by email to Jem + Bea.
- Delivery by Instalments
If any order for goods is to be delivered by several instalments to the Buyer, each such instalment shall be treated as a separate and identifiable contract and the rights of either party thereunder shall be construed accordingly save only that the Seller may suspend delivery thereof whilst payment is overdue in respect of any previous instalment, such failure or defective delivery shall not effect the obligations of the parties under the contract of which these conditions form part in respect of the other instalments.
- Delivery Date
Any time or date of delivery named by the Seller is an estimate only and the Seller shall not be liable for any loss damage or expense suffered by the Buyer by reason (whether directly or indirectly) of the Seller’s failure to meet any delivery date estimated nor shall the Buyer be released from any contract unless such delay is for more than 90 days and then only subject to the provisions of all the other conditions hereof
- Delivery & Risk
The said goods shall be delivered by the Seller to the Buyer at wherever stated in the Buyers order form provided that the risk in the goods shall pass to the buyer upon despatch thereof from the Seller’s premises.
The Buyer must notify the Seller of any alleged defect in or damage to the goods within 10 days of actual receipt and thereafter shall be deemed to have accepted the goods in all respects. Any such notice must specify the particular defect and must afford the Seller the reasonable opportunity to inspect the goods in question. If the goods are agreed by the Seller to be defective or faulty the Seller will (at its option) either rectify the defect or fault or replace any such goods or credit the invoice value of the goods and such rectification or replacement or credit will be in full satisfaction of any claim by the Buyer. Any damage to the goods shall be deemed to have occurred after delivery unless the Buyer proves to the contrary. No claim respecting the goods may be made by the Buyer which have been subjected to any manufacturing process by or on behalf of the Buyer and any such goods shall be conclusively deemed to comply with the contract. If the goods are received damaged or short delivered the carriers’ note should be endorsed accordingly and both carriers and the Seller notified in writing within 10 days.
- No Sale by Sample
Any samples supplied to the Buyer shall be accepted by the Buyer as supplied solely for information and as in no way imputing any express or implied conditions or warranties as to quality description colour fitness or merchantable quality of goods subsequently delivered and the Buyer shall be deemed to have satisfied himself as to such matter prior to ordering the goods. Notwithstanding that any sample may have been supplied by the Seller all sales shall be sales by description only and not by samples.
- Consequential loss
Without prejudice to the other provisions of these conditions the Seller’s liability hereunder shall be limited to the purchase price of the goods and in no event shall the Seller be liable for any loss of profit, or business or any consequential loss injury or damage arising out of or in connection with the goods even if the Seller has been advised of the possibility of such loss injury or damage.
- Force Majeure
14.1 The Seller shall not be liable for any failure to observe or breach of any of the terms hereof by reason of acts of god war riots civil commotion strikes lock outs trade disputes fires breakdowns interruptions of transport governmental action delay in delivery by the Seller’s suppliers or any other cause whatsoever beyond its control. In such circumstances except when goods are in transit either the Seller or the Buyer may terminate the unperformed part of any contract of which these conditions form part by notice in writing delivered to the other party hereto within 14 days of the Seller giving written notice to the Buyer of the occurrence of such action or circumstances as makes the Seller fail to observe or breach the terms hereof
14.2 If the manufacture or delivery of the full amount of the goods is delayed prevented or hindered by reason of any circumstances within clause 14.1 then (without prejudice to the provisions of clause 14.1) the Seller shall be entitled either to deliver a smaller quantity of the goods than that specified in the Seller’s ORDER or invoice which quantity shall constitute delivery in full or will withhold delivery until such time as the full quantity of the goods can be and is delivered hereunder.
The Seller shall have no responsibility whatsoever for any damage liability cost claim or expense suffered by the Buyer or any third party through following any written recommendation made by the Seller made in good faith and in the belief that they are correct
The Seller reserves the right to make such alterations to the specifications of the goods as it thinks reasonable or desirable without prior reference to the Buyer and the Buyer shall accept the goods as so changed in fulfilment of all the Buyer’s rights.
- Variation in Size
The Seller reserves the right to deliver against an excess or deficiency of up to 10% of numbers ordered. The goods invoiced will be the goods actually delivered
- Sub Standard Goods
Any goods sold as sub standard shall be accepted by the Buyer in their actual state or condition. All express or implied warranties or conditions whether as to quality or fitness for any purpose as such goods are hereby expressly excluded
- Intellectual Property Rights
The supply of goods by the Seller shall not confirm any right upon the Buyer to use any of the Seller’s Intellectual Property without prior written consent of the Seller. At all times such Intellectual Property shall remain the property of the Seller. Any goodwill or other rights that accrue through use by the Buyer of the Seller’s Intellectual Property shall belong to the Seller.
All Intellectual Property in any material supplied to the Buyer by the Seller are the property of the Seller. The Buyer may not use or reproduce any of the Seller’s Intellectual Property for any reason without written permission from the Seller. Any breach of this clause by the Buyer will entitle the Seller to terminate the contract immediately and the Buyer’s rights to use the Intellectual Property will cease.
The Buyer will not use, bid for, apply to register, buy or otherwise acquire any Intellectual Property which contains or is identical or similar to any of the Seller’s Intellectual Property.
In the event of the Seller accepting instructions to produce goods to a specification not forming part of its own range of specifications, then the Buyer warrants to the Seller that all intellectual property in such goods are the property of the Buyer or that he is licensed to use them. The Buyer shall indemnify and keep indemnified the Seller from and against all claims demands damages and expenses incurred by the Seller arising out of any infringement or alleged infringement of any such rights in respect of the goods produced to such specifications as aforesaid. In the event of the Buyer failing to take delivery of the whole or part of any order produced to such specification as aforesaid then the Seller shall be entitled to sell such goods on its own behalf and the Buyer will nevertheless indemnify the Seller as aforesaid.
The Buyer shall sell the Goods only by retail sale to the end consumer in the Territory/Territories agreed between the parties. Under no circumstances shall the Buyer sell the Goods wholesale either within or outside the Territory.
The Buyer shall not, without the Sellers prior written consent assign or transfer or purport to assign or transfer the contract to which these conditions relate or the benefit thereof to any other person whomsoever.
If the Buyer shall fail to make any payment when it becomes due or shall enter into any composition or arrangement with its creditors or it being an incorporated company shall have a receiver appointed over any of its assets or shall pass a resolution for winding up or if winding up proceedings are recommended or if not being an incorporated company shall have a receiving order made against it or if the Seller shall reasonably consider that any of the said events is about to occur or if there shall be any breach by the Buyer of any of the terms and conditions hereof the Seller may defer or cancel any further deliveries and treat any contract of which these conditions form part as determined but without prejudice to its rights to any unpaid purchase price of goods delivered and to damages for any loss suffered in consequences thereof
- Third Party Liability
In the event of any proceeding being instituted or threatened against the Buyer in respect of goods supplied by the Seller to any third party and it shall be alleged that the said goods are in any way defective then the Seller shall have the right to negotiate with such third party and providing any settlement concluded with the said party shall include a term that neither the Buyer or any person delivering the title under him shall be under liability to the said third party as any such settlement shall be binding upon the Buyer who shall have no further remedy against the Seller in respect of the said goods.
- Third Party Proceedings
In the event of any proceedings being instituted or threatened against the Buyer in respect of goods supplied by the Seller which the Buyer may allege were defective then unless the Buyer informs the Seller in writing forthwith of such threat or institution as aforesaid the Seller shall be under no liability to the Buyer in respect of any damages costs or expenses sustained by the Buyer in any way arising out of such proceedings. The Seller shall be entitled to assume the conduct of such proceedings on the behalf of the Buyer but at its own costs and in the event of the Seller so requiring the Buyer shall be deemed by these conditions to have appointed the Seller its attorney or such purpose
In the case of any dispute or difference arising between the Seller and the Buyer as to the construction of these terms and conditions or the rights duties or obligations to either party hereunder or of any matter arising out of or concerning the same every such dispute or matter of difference shall at the option of the Seller be referred to a single arbitrator agreed by the parties If they do not agree on the appointment, the then President of the Law Society may appoint the arbitrator at the request of any party. The expert shall act as an arbitrator for the purposes of the Arbitration Act 1996 and the parties shall bear his costs as he shall determine.
Payment shall be made by the Buyer in the way indicated on the Seller Confirmation of Order and indicated on any subsequent invoice referring to the aforesaid order or earlier if demanded by the Seller. The Seller shall reserve the right to charge interest on any monies not paid by the Buyer by the due date at 3% per annum over the Seller’s banker’s base lending rate applicable from time to time. If the Buyer chooses to pay by credit card the Seller reserves the right to charge an additional 3% to the purchase price to cover credit card charges. Failure to pay the balance could result in legal action being taken at the discretion of the Seller.
- Retention of Title
27.1 The buyer warrants that before agreeing to buy any goods or services from the Seller he is not insolvent and has not committed any act of bankruptcy or being a company with limited or unlimited liability none of its officers or employees know any circumstances which would entitle a debenture holder or secured creditor to appoint a receiver to petition for winding up the company or exercise any other rights over or against the companies assets
27.2 The goods shall remain the sole and absolute property of the Seller as legal owner until such time as the Buyer has paid to the Seller the agreed price for the goods
27.3 The Buyer acknowledges that he is in possession of the goods solely as bailee for the Seller until such time as the full price is paid to the Seller for the goods.
27.4 Until such time as the Buyer becomes the owner of the goods he will store them on his premises separately from his own goods or those of any other person and in a manner readily identifiable as the goods to the Seller
27.5 The Buyers right to possession of the goods shall cease if he commits an act of bankruptcy or if he being a company does anything or fails to do any thing which would entitle any person to present a petition for winding up or if the Buyer has a receiver appointed over any of its assets or if a meeting be convened for the purpose of considering a resolution for the winding up of the Buyer or if the Buyer ceases to carry on business or if the Seller reasonably considers that any of the said events is about to occur. The Seller may for the purpose for recovery of its goods enter upon the premises where they are stored or where they are reasonably thought to be stored and repossess them.
27.6 Subject to these terms the Buyer is licensed by the Seller to agree to sell the Seller goods subject to the expressed condition that such an agreement shall take place as bailee for the company and that such part of the proceeds as are equal to the amount remaining owing to the Seller are held in trust for the Seller and shall forthwith pay such sum to the Seller. If such payment is made such sum shall be held in a separately designated bank account PROVIDED THAT if in contravention of this provision such sum is mixed with other monies the Seller shall be entitled to take such proceeds.
- Applicable Law
These conditions and any contract subject thereto shall be constructed in all respects with the laws of England and the parties submit to the non-exclusive jurisdiction of the English Courts.
The above conditions shall apply (save in so far as they may be varied by written agreement) so far as they are held to be lawful and enforceable. If any conditions or any part of any condition shall be held to be unlawful or unenforceable then the above conditions shall be read and construed as if such conditions or part thereof as the case may be were omitted.