Standard Terms & Conditions of Balcony UK Limited
1. Terms & Conditions
1.1 In these Conditions:
("the Buyer") shall mean the person to whom the Company is to supply Goods pursuant to a Contract.
"Company" means Balcony Shop LTD registered in England and Wales (company registration number 06708726).
"Contract" means any contract between the Company and the Buyer for the sale and purchase of Goods, incorporating these Conditions.
"Goods" means any goods which the Company supplies pursuant to a Contract.
2. Application Of Terms
2.1 The Buyer 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 Condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.2 The Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.3 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions.
2.4 Any quotation is given on the basis that no Contract shall come into existence until the Company dispatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3. Quantity, Quality And Description
3.1 The quantity, quality and description of Goods and any specification for them shall be as set out in the Company's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Company).
3.2 If the Company delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity specified in the Company's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Company), the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
3.3 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 described in them. They shall not form part of the Contract and the Contract is not a sale by sample.
4.1 Unless otherwise agreed in writing by the Company, delivery of Goods shall take place at the Company's place of business.
4.2 The Buyer shall provide at its expense adequate and appropriate equipment and manual labour for loading the Goods at the point of delivery and unloading them at their point of destination.
4.3 The Company may deliver the Goods by separate installments. Each separate installment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.4 Each installment shall be a separate Contract and no cancellation or termination of any one Contract relating to an installment shall entitle the Buyer to repudiate or cancel any other Contract or installment.
4.5 Delivery or dispatch dates specified by the Company are approximate only and not of any contractual effect. The Company is not liable to the Buyer for failure to deliver on a particular date or dates. Time for delivery is not of the essence of the Contract and shall not be made so by the service of any notice.
4.6 Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of Goods (even if caused by the Company's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 60 days.
4.7 If for any reason the Buyer fails to accept delivery of any Goods within 3 days of it being notified they are ready for delivery, or the Company is unable to deliver Goods on time because the Buyer has not provided appropriate instructions, documents, licenses or authorizations: (a) risk in Goods shall pass to the Buyer (including for loss or damage caused by the Company's negligence); (b) Goods shall be deemed to have been delivered; and (c) the Company may store Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.8 If the Buyer fails to take delivery of Goods within 7 days of being notified that they are ready for delivery, then (without prejudice to its other rights) the Company may arrange for the Goods to be disposed of at the best price reasonably obtainable and the Buyer shall be liable to the Company for any amount by which the disposal proceeds are less than the price payable by the Buyer and for the Company's disposal costs.
5.1 Goods are at the risk of the Buyer from the time of delivery.
5.2 Property in Goods delivered shall not pass to the Buyer until the Buyer has paid all sums due to the Company (a) in respect of the Goods and (b) on any other account.
5.3 Until property in Goods passes to the Buyer in accordance with Condition 5.2, the Buyer shall hold them as bailee for the Company and shall store them separately from any similar goods of the Buyer or any other person in such a way that they remain identifiable as the Company's property.
5.4 The Buyer may resell Goods before the conditions in Condition 5.2 are satisfied on the following Conditions: (a) any sale shall be effected by the Buyer as agent for the Company, provided that the Buyer shall have no authority to create privacy of contract between the Company and any customer to whom Goods are sold; (b) the Buyer will hold the proceeds of any such sale as trustee for the Company, separate from its own monies in a separate, identifiable bank account.
5.5 The Buyer's right to possession of Goods supplied by the Company shall terminate if the Buyer is declared bankrupt or makes any proposal to his creditors for any composition or voluntary arrangement or, if the Buyer is a company, an administrator, administrative receiver or liquidator is appointed in respect of its business.
5.6 The Buyer hereby grants the Company, its agents and employees an irrevocable license at any time to enter any premises where Goods are stored in order to inspect them or, where the Buyer's right to possession is terminated, recover them.
5.7 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company's price list published on the date of delivery or deemed delivery.
6.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods unless otherwise agreed by the Company.
7.1 Payment of invoices shall, unless otherwise agreed in writing, be made in full by the end of the month following the month of delivery. Time for payment is of the essence of a Contract. The Company reserves the right to suspend the provision of Goods to the Buyer where any amounts are overdue under any Contract with the Buyer until all such amounts have been paid.
7.2 No payment shall be deemed to have been received until the Company has received cleared funds.
7.3 All amounts payable to the Company under the Contract shall become due immediately upon occurrence of any of the following events: (a) termination of the Contract despite any other provision; (b) (the Buyer being a company) a resolution is passed for the winding up of the Buyer or a receiver, administrator or administrative receiver is appointed over the whole or any part of the assets of the Buyer or the affairs, business and property of the Buyer are managed by a supervisor under any arrangement made with the Buyer's creditors; or (c) (the Buyer not being a company) a bankruptcy order is made against him or he makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors..
7.4 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
7.5 The Company reserves the right to claim interest for late payment under the Late Payment of Commercial Debts (Interest) Act 1998.
8.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavor to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
8.2 The Company warrants that (subject to the other provisions of these Conditions) upon delivery the Goods shall: (a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; (b) be reasonably fit for purpose; and (c) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgment of the Company in that regard; provided this Condition 8.2 shall not apply to Goods sold as “Non-Primes” or as “General Commercial Quality” only which Goods are sold without warranty other than as is stated in Condition 9.2.
8.3 The Company shall not be liable for a breach of any of the warranties in Condition 8.2 unless: (a) the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 3 days of the time when the Buyer discovers or ought to have discovered the defect; and (b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there.
8.4 The Company shall not be liable for a breach of any of the warranties in Condition 8.2 if: (a) the Buyer makes any further use of such Goods after giving such notice; or (b) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage of the Goods or (if there are none) good trade practice.
8.5 Subject to Condition 8.3 and Condition 8.4, if any of the Goods do not conform with any of the warranties in Condition 8.2 the Company shall at its option replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company.
8.6 If the Company complies with Condition 8.5 it shall have no further liability for a breach of any of the warranties in Condition 8.2 in respect of such Goods.
8.7 Any Goods replaced shall belong to the Company.
9. Limitation of Liability
9.1 Save as provided for in these Conditions the Company shall have no liability for: (a) any defect in the quality of Goods or their failure to correspond to any description or sample or to be fit for any purpose; or (b) any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any of the matters mentioned in Condition 9.1(a); and all other conditions, warranties, stipulations and undertakings, whether express or implied by statute or common law are excluded.
9.2 Nothing in these Conditions excludes or limits the liability of the Company: (a) for breach of the obligations arising from section 12 Sale of Goods Act 1979; (b) under section 2(3) Consumer Protection Act 1987 provided the Buyer shall indemnify and keep the Company indemnified against all claims, costs, actions and demands whatsoever and howsoever arising made against the Company by the Buyer's customers or its employees whether direct or indirect relating to the use of the Goods; or (c) for fraud or fraudulent misrepresentation.
9.3 Subject to Conditions 9.1 and 9.2, the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, and restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price.
10. Force Majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from 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 delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 60 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
11.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
11.2 The invalidity, illegality or unenforceability of the whole or part of a Condition does not affect or impair the continuation in force of the remainder of these Conditions.
11.3 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12. Governing Law And Jurisdiction
12.1 A Contract is governed by English law.
12.2 The courts of England have exclusive jurisdiction to settle any dispute arising from or connected with a Contract.