Sales Orders

THE WYEDEAN WEAVING COMPANY LIMITED TERMS AND CONDITIONS FOR SALE OF GOODS

1. INTERPRETATION

1.1

Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Completion of Order: the point when the Goods are ready for dispatch or collection and Wyedean notifies the Customer of the same.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.

Confirmation of Order: Wyedean’s written acceptance of the Order.

Consignment Advice: Wyedean’s delivery note which accompanies the Goods.

Contract: the contract between Wyedean and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from Wyedean.

Force Majeure Event: has the meaning given in clause 10.

Goods: the goods (or any part of them) set out in the Order.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, 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, 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.

Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of Wyedean’s quotation, as the case may be.

Specification: any specification for the Goods, including any related specifications, plans and drawings, that is agreed in writing by the Customer and Wyedean.

Wyedean: The Wyedean Weaving Company Limited registered in England and Wales with company number 00814363 whose registered office is at Bridgehouse Mill, Haworth, BD22 8PA.

1.2 Construction. In these Conditions, the following rules apply:

1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.

1.2.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.2.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

1.2.5 A reference to writing or written includes e-mails and faxes.

2. BASIS OF CONTRACT

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.

2.3 The Order shall only be deemed to be accepted when Wyedean issues a Confirmation of Order, at which point the Contract shall come into existence.

2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Wyedean which is not set out in the Contract.

2.5 Any samples, drawings, descriptive matter, or advertising produced by Wyedean and any descriptions or illustrations contained in Wyedean’s catalogues or brochures or on Wyedean’s website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

2.6 A quotation for the Goods given by Wyedean shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.

3. GOODS BY SPECIFICATION

3.1 The Goods may be described in a Specification.

3.2 The Customer shall indemnify Wyedean against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Wyedean in connection with any claim made against Wyedean for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Wyedean’s use of the Specification. This clause 3.2 shall survive termination of the Contract.

3.3 Wyedean reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

4. DELIVERY

4.1 Wyedean shall ensure that each delivery of the Goods is accompanied by a Consignment Advice which all relevant Customer and Wyedean reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any).

4.2 The Customer’s Order shall specify whether:

4.2.1 Wyedean will deliver the Goods to the agreed location (Delivery Location) at the cost set out in Wyedean’s Confirmation of Order at any time after the Completion of Order; or

4.2.2 the Customer will collect the Goods from Wyedean’s premises at Bridgehouse Mill, Haworth, BD22 8PA or such other location as may be advised by Wyedean prior to delivery (Delivery Location) within 7 Business Days of the Completion of Order.

4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Wyedean shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Wyedean with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 If Wyedean fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Wyedean shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Wyedean with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If the Customer fails to accept delivery of the Goods or collect the Goods (as applicable) within seven Business Days of the Completion of Order, then, except where such failure or delay is caused by a Force Majeure Event or Wyedean’s failure to comply with its obligations under the Contract:

4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the seventh Business Day after the day on which Wyedean notified the Customer that the Goods were ready; and

4.6.2 Wyedean shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7 If 30 Business Days after the Completion of Order the Customer has not accepted delivery of the Goods or collected them (as applicable), Wyedean may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

4.8 Wyedean reserves the right to deliver up to and including 5% more or less than the quantity of Goods ordered. Should this occur, the Customer shall not be entitled to reject the Goods and the delivery shall be deemed to have been completed.

4.9 Wyedean may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. QUALITY

5.1 Wyedean warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:

5.1.1 conform with the Specification;

5.1.2 be free from material defects in design, material and workmanship; and

5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

5.1.4 be fit for any purpose held out by Wyedean.

5.2 Subject to clause 5.3, if:

5.2.1 the Customer gives notice in writing to Wyedean [during the warranty period] within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

5.2.2 Wyedean is given a reasonable opportunity of examining such Goods; and

5.2.3 the Customer (if asked to do so by Wyedean) returns such Goods to Wyedean’s place of business at the Customer’s cost,

Wyedean shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3 Wyedean shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:

5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

5.3.2 the defect arises because the Customer failed to follow Wyedean’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

5.3.3 the defect arises as a result of Wyedean following any drawing, design or Specification supplied by the Customer;

5.3.4 the Customer alters or repairs such Goods without the written consent of Wyedean;

5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

5.3.6 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.4 Except as provided in this clause 5, Wyedean shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Wyedean.

6. TITLE AND RISK

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until Wyedean has received payment in full (in cash or cleared funds) for:

6.2.1 the Goods; and

6.2.2 any other goods or services that Wyedean has supplied to the Customer [in respect of which payment has become due.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

6.3.1 hold the Goods on a fiduciary basis as Wyedean’s bailee;

6.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Wyedean’s property;

6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

6.3.5 notify Wyedean immediately if it becomes subject to any of the events listed in clause 8.2; and

6.3.6 give Wyedean such information relating to the Goods as the Wyedean may require from time to time,

but the Customer may resell or use the Goods in the ordinary course of its business.

6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or Wyedean reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Wyedean may have, Wyedean may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. PRICE AND PAYMENT

7.1 The price of the Goods and the delivery charges (if applicable) shall be the price set out in Wyedean’s Confirmation of Order, or, if no price is quoted, the price set out in Wyedean’s published price list in force as at the date of the Completion of Order.

7.2 Wyedean may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

7.2.1 any factor beyond Wyedean’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give Wyedean adequate or accurate information or instructions.

7.3 Unless otherwise agreed in writing, the price of the Goods is exclusive of the costs and charges of insurance and transport of the Goods, which shall be invoiced to the Customer.

7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from Wyedean, pay to Wyedean such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

7.5 Wyedean may invoice the Customer for the Goods on or at any time after the Completion of Order.

7.6 Unless otherwise agreed in writing, the Customer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated. Payment shall be made by cash or other accepted payment method to the bank account nominated in writing by Wyedean. Time of payment is of the essence.

7.7 If the Customer fails to make any payment due to Wyedean under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Wyedean may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Wyedean to the Customer.

8. TERMINATION

8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or Wyedean reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Wyedean, Wyedean may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Wyedean without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

8.2 For the purposes of clause 8.1, the relevant events are:

8.2.1 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

8.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;

8.2.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

8.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order;

8.2.5 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

8.2.6 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

8.2.7 (being a company) the holder of a qualifying charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;

8.2.8 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;

8.2.9 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1to clause 8.2.8 (inclusive);

8.2.10 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;

8.2.11 the Customer’s financial position deteriorates to such an extent that in Wyedean’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

8.2.12 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

8.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

9. LIMITATION OF LIABILITY

9.1 Nothing in these Conditions shall limit or exclude Wyedean’s liability for:

9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

9.1.2 fraud or fraudulent misrepresentation;

9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;

9.1.4 defective products under the Consumer Protection Act 1987; or

9.1.5 any matter in respect of which it would be unlawful for Wyedean to exclude or restrict liability.

9.2 Subject to clause 9.1:

9.2.1 Wyedean shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

9.2.2 Wyedean’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.

10. FORCE MAJEURE

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

11. INTELLECTUAL PROPERTY

11.1 Wyedean accepts that all Intellectual Property Rights in the Specifications provided by the Customer to Wyedean shall be owned by the Customer, but the Customer grants Wyedean a licence to use such rights for the purpose of manufacturing the bespoke Goods for the Customer.

11.2 The Customer agrees that all documents, data, information and other Intellectual Property Rights provided, or created (including anything created from the Specification) by Wyedean in relation to the manufacture of the Goods or provided otherwise to the Customer in relation to the Contract shall at all times remain the sole property of Wyedean.

12. CONFIDENTIALITY

A party (Receiving Party) 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 Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 12 shall survive termination of the Contract.

13. PUBLICITY

Wyedean reserves the right to publicise any contractual relationship, whether direct or indirect, with the Customer.

14. GENERAL

14.1 Assignment and other dealings.

14.1.1 Wyedean may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

14.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Wyedean.

14.2 Notices.

14.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, e-mail or fax.

14.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail or fax, one Business Day after transmission.

14.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

14.3 Severance.

14.3.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

14.3.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

14.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.

14.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Wyedean.

14.7 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.

14.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

Updated: January 2014