TERMS AND CONDITIONS OF SALE
OUT OF PERU EXCLUSIVE IMPORTS LIMITED (CHAVIN JEWELLERY)
1.1 In these Conditions the following words have the following meanings:
(a) “Business Day” means any day other than a Saturday, Sunday, or bank or other public holiday in England and Wales.
(b) “Buyer” means the buyer of the Goods.
(c) “Conditions” means these terms and conditions of sale.
(d) “Contract” means a legally binding contract between the Seller and the Buyer for the sale and purchase of Goods ordered under a Purchase Order which is accepted by the Seller in accordance with these Conditions.
(e) “Delivery Address” means the delivery address agreed between the Buyer and Seller.
(f) “Force Majeure Event” means any event affecting the performance of any provision of the Contract arising from acts, events, omissions or accidents which are beyond the reasonable control of a party including, but without limitation, any abnormally inclement weather, flood, lightning, storm, fire, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, failure or shortage of power supplies, traffic, road accident, delay of a third party carrier, breakdown of plant and/or machinery, military operations, riot, crowd disorder, strike, terrorist action, civil commotion and any legislation, regulation, ruling or omissions (including failure to grant any necessary permissions) of any relevant government, court or authority.
(g) “Goods” means the goods as detailed in a Purchase Order accepted by the Seller in accordance with these Conditions.
(h) “Intellectual Property Rights” means any patents, trade marks, service marks, registered designs, database rights, applications for any of the foregoing, copyright, unregistered design rights, know how and any other similar protected rights in the UK or any other country.
(i) “Price” means the price for the Goods as set out in the price list published by the Seller in force at the time a Purchase Order is accepted by the Seller in accordance with these Conditions.
(j) “Purchase Order” means a written order for Goods provided by the Buyer.
(k) “Seller” means Out Of Peru Exclusive Imports Limited (Company Number: 6973210 ) whose registered office is at 65 Aspect Court, Imperial Wharf, London SW6 2TN.
(l) “Site” means the Seller’s website with the URL www.chavinjewellery.com.
1.2 Any reference in these Conditions to: a statute or statutory provision shall be construed as a reference to that statute or provision as amended, re-enacted or extended from time to time; a clause is to a clause in these Conditions; a person includes an individual, a company, firm or any other legal personality; the singular includes the plural and vice versa and any reference to a gender includes all other genders.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 BASIS OF SALE
2.1 Each Purchase Order constitutes a separate offer by the Buyer to purchase the Goods from the Seller subject to these Conditions.
2.2 Each Purchase Order must detail: the Goods and quantity ordered; the requested Delivery Address; and the date on which the Buyer would like the Goods to be delivered (such date not being binding on the Seller and subject to clause 5.1) and must be sent to the Seller by email or fax.
2.3 A Purchase Order shall be deemed to be accepted on the occurrence of the earlier of:
(a) the issue by the Seller of an acceptance of the Purchase Order; or
(b) delivery of the Goods.
2.4 Acceptance of an order is not a guarantee by the Seller of the availability of the Goods. All acceptances are conditional upon the availability of the Goods ordered.
2.5 These Conditions shall apply to the Contract to the exclusion of all other terms and conditions (except those which the Seller cannot lawfully exclude) including, but without limitation, any endorsed on a Purchase Order provided by the Buyer.
2.6 Any Purchase Order accepted by the Seller pursuant to clause 2.3 may (subject to clause 3.3) only be cancelled, postponed or varied by the Buyer with the prior written consent of the Seller and on the condition that the Buyer will indemnify the Seller in full against all costs and expenses incurred (directly or indirectly) by the Seller as a result of such cancellation, postponement or variation.
3 INTERNET AND DISTANCE SALES
3.1 The Goods displayed on the Site and any information about those Goods are an invitation to the Buyer to place an order and not an offer by the Seller to sell.
3.2 In the case of internet sales, a Purchase Order shall be deemed to be placed by the Buyer when the “PURCHASE” button is clicked. The placing of such order will constitute an offer by the Buyer to purchase the Goods subject to these Conditions and to acceptance by the Seller in accordance with clause 2.3.
3.3 If the Buyer has placed an order as a consumer (as defined by the Distance Selling Regulations 2000) without meeting the Seller face to face then the Buyer may cancel that order at any time within seven days of receiving the Goods without liability to the Seller except any direct cost incurred by the Seller in relation to the Goods being returned and the Seller will refund to the Buyer any part of the Price that the Seller has received,
provided that the Goods are returned undamaged and in their original packaging. This right to cancel shall not apply where the Goods in question are perishable. For your information, the vast majority of goods sold by the Seller are perishable (including, but not limited to, all feed products, supplements and complimentary feedingstuffs).
4 WARRANTIES AND REPRESENTATIONS
4.1 Any representation concerning any use of the Goods or the results provided by using them made by the Seller in any sales or marketing literature or in any response to a specific enquiry is given in good faith, but it is entirely for the Buyer (and its customers) to satisfy themselves as to the suitability of the Goods for any particular purpose. No suggestion or representation relating to possible use or results shall form part of the Contract.
4.2 If within 7 days of the date of delivery any of the delivered Goods are proved to the reasonable satisfaction of the Seller not to comply with the relevant Purchase Order then the Seller at its option will:
(a) replace, free of charge, such Goods;
(b) refund the price paid by the Buyer for such Goods; or
(c) agree a reduced price with the Buyer for such Goods.
If however, the Buyer has placed an order as a consumer (as defined by the Distance Selling Regulations 2000) then the Buyer shall be entitled to elect which of the above remedies it wishes the Seller to perform.
4.3 The rights of the Buyer pursuant to clause 4.2 shall be the sole and exclusive remedy of the Buyer with respect to any failure of Goods to comply with the relevant Purchase Order.
4.4 Except as otherwise provided in these Conditions, all warranties, conditions and other terms implied by statute or common law (except for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 Sale and Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
5.1 The Seller will use reasonable endeavours to deliver the Goods by any agreed delivery date or, if no delivery date is agreed with the Buyer, then within 21 Business Days of the Seller accepting a Purchase Order received from the Buyer. Time of delivery of the Goods will not however, be of the essence of the Contract.
5.2 The Buyer may cancel an order if the Seller fails to deliver the Goods in question within 7 days of the date of delivery referred to in clause 5.1. Notice of cancellation must be provided by the Buyer to the Seller in writing. In the event of such cancellation the relevant Purchase Order shall be deemed cancelled and the Seller will refund any sums paid by the Buyer in respect of the cancelled Purchase Order.
5.3 The rights of the Buyer pursuant to clause 5.2 shall be the sole and exclusive remedy of the Buyer with respect to any delay or failure in the delivery of any Goods.
5.4 The Buyer shall ensure that the Seller (or its agents) will be able to deliver the Goods to the Delivery Address on the date referred to in clause 5.1.
5.5 If the Buyer refuses or fails to take delivery (including as a result of the Buyer’s failure pursuant to clause 5.4) of any of the Goods at the time stated for delivery (otherwise than by reason of any Force Majeure Event or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller will be entitled to:
(a) store the Goods until actual delivery and charge the Buyer for the cost of storage, transport any related insurance and a handling fee; and/or
(b) sell the Goods at the best prices obtainable in all the circumstances, after deducting all storage, insurance, transport and selling expenses and invoice the Buyer for the difference between the sum obtained by the Seller and the Price and the Buyer shall pay such sum immediately.
5.6 The Seller reserves the right to deliver the Goods in instalments and in such event, each instalment shall be treated as a separate Contract. Further instalments may be withheld until the Goods comprised in earlier instalments have been paid for in full by the Buyer.
5.7 The Buyer shall take delivery of the Goods notwithstanding that the quantity delivered may be greater or less than the quantity detailed in the relevant Purchase Order provided that such discrepancy in quantity shall not exceed 10% and the Price shall be subject to a pro-rata adjustment to reflect such discrepancy.
6 LIMITATION OF LIABILITY
6.1 The Seller does not attempt to exclude any liability:
(a) for breach of the Seller’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;
(b) for personal injury or death resulting from the Seller’s negligence;
(c) under section 2(3) Consumer Protection Act 1987; or
(d) any matter for which it would be illegal for the Seller to exclude or to attempt to exclude its liability.
6.2 The Seller shall not be liable to the Buyer for any loss of profit, loss of anticipated profit, loss of business, loss of contract, economic loss, overhead recovery, anticipated savings, loss of data, loss of production, depletion of goodwill, product recall, nor for any special, indirect or consequential loss or damage, or otherwise for any costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) and, subject to clause 6.1, the Seller’s total aggregate liability under the Contract shall be limited to the Price the Seller has received under the Contract.
7 PRICES AND PAYMENT
7.1 The Price is exclusive of all taxes and duties including, but without limitation, value added tax which shall be payable by the Buyer in addition (if applicable). Save in respect of export orders or unless agreed otherwise, the Price is inclusive of the cost of delivery to addresses in the mainland Great Britain.
7.2 Unless agreed otherwise, the Price payable under the Contract shall be paid by the Buyer prior to or on despatch of Goods to the Buyer.
7.3 In the event that the Seller agrees to grant the Buyer credit terms (which may be revoked at any time by the Seller) the Seller may invoice the Buyer for the Price at any time after despatch of the Goods and all such invoices shall be paid by the Buyer in accordance with the agreed credit terms. If any delivery is postponed at the request of, or by the default of, the Buyer then the Seller may submit its invoice at any time after the Goods were ready for delivery, but were not actually delivered at the request or due to the default of the Buyer.
7.4 If any sum payable is overdue then without prejudice to the Seller’s other rights, that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at 8% per annum over HSBC Bank Plc base rate from time to time and the Seller will be entitled to suspend all future deliveries of the Goods until the outstanding amount has been received.
7.5 No payment will be deemed to have been received until the Seller has received the Price in full in cleared funds.
7.6 Time for payment will be of the essence under the Contract and the Buyer will indemnify the Seller against all expenses and legal costs incurred by the Seller in recovering overdue amounts.
7.7 Notwithstanding any other provision of these Conditions, all sums outstanding under the Contract will become due immediately on termination of the Contract in question.
7.8 The Buyer will make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
7.9 The Seller shall be entitled to set off and retain any and all sums due to the Buyer against any contingent or actual liabilities of the Buyer to the Seller.
7.10 The Seller reserves the right to increase the Price if any extra cost is incurred by the Seller after quoting the Price as a result of the inaccuracy or incompleteness of any instructions issued by the Buyer, or as a result of any failure by the Buyer to supply any information, drawings or specification required to enable the Seller to proceed with the Contract.
8 RISK AND PROPERTY
8.1 Save in respect of export orders or unless agreed otherwise, risk of damage to or loss of the Goods shall pass to the Buyer when the Goods are delivered to the Delivery Address (or on the date that the Goods would have been delivered if the Buyer is responsible for the Seller’s inability to deliver the Goods on that date). Export orders are supplied on an “ex mill” basis and accordingly, risk in such orders shall pass to the Buyer at the time the Goods leave their place of manufacture.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, ownership of the Goods shall not pass to the Buyer until the Seller has received in cleared funds payment in full of the Price.
8.3 Until ownership of the Goods has passed to the Buyer pursuant to clause 8.2, the Buyer will:
(a) not destroy, deface or obscure any identifying mark on the Goods or their packaging; and
(b) maintain the Goods in a satisfactory condition.
8.4 Notwithstanding the provisions of clause 8.3, the Buyer may resell, use or otherwise dispose of the Goods before ownership has passed to it only if any such sale, use or disposition will be effected in the ordinary course of the Buyer’s business and will be a sale, use or disposition of the Seller’s property on the Buyer’s own behalf and the Buyer will deal as principal. The Seller shall, by reason of the relationship between the Buyer (as trustee) and of the Seller (as beneficiary) be and remain legally entitled to the proceeds of sale. Upon receipt of the proceeds of sale, the Buyer shall discharge its debt to the Seller and shall not use or deal with the proceeds of sale in any way whatsoever until such debt has been discharged.
8.5 Until ownership in the Goods has passed pursuant to clause 8.2, the Seller may recover the Goods at any time, and the Buyer grants to the Seller, its agents, employees and sub-contractors an irrecoverable licence at any time to enter any premises where the Goods are or may be stored. In the case of the Goods being stored on premises owned by a third party the Buyer shall procure such a right for the Seller.
8.6 The Buyer’s right to possession of the Goods shall cease on the occurrence of any of the events set out in clause 10.1(b). In such circumstances, the Seller may upon notice enter any premises occupied by the Buyer where the Goods are stored and repossess the Goods and the Buyer shall procure a right for the Seller to enter any premises not occupied or owned by the Buyer.
9 FORCE MAJEURE
9.1 If either party is prevented or delayed in the performance of any of its obligations by a Force Majeure Event then the party prevented or delayed will be excused from the performance of its obligations from the date of the occurrence of such Force Majeure Event for so long as such Force Majeure Event continues and shall not be deemed to be in breach of these Conditions or the Contract or otherwise liable to the other party in any manner whatsoever.
10 BUYER’S DEFAULT AND TERMINATION OF THE CONTRACT
10.1 The Seller shall be entitled to terminate the Contract immediately upon the occurrence of any of the following:
(a) the Buyer being in material breach of any term of these Conditions and such breach not being capable of remedy or, in the case of a breach which is capable of remedy, which the Buyer fails to remedy within 28 days of receipt of written notice specifying the breach and requiring it to be remedied;
(b) the Buyer (being an individual or firm) becomes bankrupt or goes into sequestration, or (being a partnership) is wound up by the court or becomes bankrupt or goes into partnership administration or sequestration, or (being a body corporate) is wound up by the court or is voluntarily wound up by reason of its inability to pay its debts or an administrator or receiver is appointed of any part or all of its income or assets and in any case if the Buyer enters into any informal or voluntary arrangement (whether or not in accordance with the Insolvency Act 1986) with or for the benefit of the general body of creditors of the individual, the partnership or the body corporate; or
(c) the Buyer suffers the equivalent of any similar or analogous event in clause 10.1(c) in any jurisdiction.
10.2 Without prejudice to any of its other rights or remedies, the Seller shall have the right to terminate the Contract without any liability to the Buyer if, in the reasonable opinion of the Seller after an inspection into the Buyer’s financial or trade status or in light of any report considered by the Seller, the Seller at its absolute sole discretion deems that the Buyer may not be able to pay the Price.
11.1 The Buyer hereby undertakes not at any time to divulge any of the terms of the Contract or use any information in relation to the Seller’s business or any other information received from the Seller in relation to the Contract of a confidential or proprietary nature other than for the purposes expressly envisaged by these Conditions.
12 OWNERSHIP OF INTELLECTUAL PROPERTY
12.1 The ownership of and sole rights to obtain the ownership of all Intellectual Property Rights relating to the Goods (including those in the packaging of the Goods) shall at all times be vested in the Seller and the Seller shall be responsible for the registration and other protection of such Intellectual Property Rights in the Goods as the Seller deems fit. The Buyer warrants that it shall not infringe any such Intellectual Property Rights of the Seller.
12.2 The Buyer shall not use the Seller’s name, logo or any other identification marks for the purpose of advertising or publicity without the prior written consent of the Seller.
13.1 The parties are with respect to each other independent contractors and nothing in these Conditions or any other document referred to in them shall be construed as creating a partnership or other fiduciary relationship between the parties. Neither party shall have the authority to bind the other or impose any obligations on it for the benefit of any third party.
13.2 No variation or amendments to the Contract or these Conditions shall be binding unless agreed in writing by the Seller.
13.3 No delay or failure to exercise any right under the Contract or these Conditions shall operate as a waiver or release of that right. Any such waiver or release must be specifically granted in writing signed by the party granting it.
13.4 The Seller shall be entitled to carry out its obligations under the Contract through any agents or sub-contractors appointed by it.
13.5 Except as provided in clause 13.4, neither party may assign, sub-contract, sub-license or otherwise dispose of any of its rights arising from the Contract or these Conditions without the prior written consent of the other party.
13.6 If any term, clause, condition or part of these Conditions is found by any court or other authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision shall, to the extent required, be severed from these Conditions and shall be ineffective without, as far as is possible, modifying any other provision or part of these Conditions and this shall not affect any other provisions of the Contract which shall remain in full force and effect.
13.7 These Conditions and the Contract represent the entire agreement between the parties relating to the sale and purchase of Goods and supersede all previous agreements, arrangements and understandings between the parties relating to the sale and purchase of the Goods.
13.8 Each party acknowledges that in entering into the Contract it places no reliance on any representation, warranty or other statement relating to the subject matter of the Contract, other than as expressly set out in these Conditions and any acknowledgement of the applicable Purchase Order.
13.9 Neither party shall have any liability or remedy in respect of any representation, warranty or other statement being false, inaccurate and/or incomplete unless it was made fraudulently or is contained in these Conditions. Nothing in these Conditions shall exclude or limit the liability of either party for fraudulent misrepresentation.
13.10 Notices under these Conditions may be served by personal delivery or by first class post.
13.11 Notices shall be deemed to be served:
(a) on delivery when delivered personally; or
(b) two (2) days after positing if sent by mail, provided the postage is properly paid and the notice is correctly addressed to the respective party at its registered office, or such other address as shall have been notified to the other party in writing.
13.12 An entity which is not expressly a party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract and the provisions of the Contracts (Rights of Third Parties) Act 1999 shall be expressly excluded from the Contract.
13.13 These Conditions and the Contract shall be governed by English the parties hereby agree to submit to the exclusive jurisdiction of the English Courts.