1. DEFINITIONS
1.1 In these Conditions, the following expressions shall have the following meanings:-
1.2 “Chase Erwin”: means Chase Erwin Limited a company registered in England and Wales under company number 2094350 of 17 Mandeville Court Yard, 142 Battersea Park Road, London SW11 4NB or the Chase Erwin Group Company named in the Contract.
1.3 “Chase Erwin Premises”: means the place stated for delivery of the Goods in the Contract (and in default of any statement means Bentley Wood Way)
1.4 “Goods”: any goods agreed in the Contract to be supplied to the Buyer by Chase Erwin (including any instalment or part of them);
1.5 “the Buyer”: the person, firm or company with whom any Contract to sell Goods is made by Chase Erwin, whether directly or indirectly, through an agent or factor who is acting for or instructed by any such person, firm or company or whose actions are subsequently to the Contract ratified by the actual buyer; and
1.6 “Contract”: any contract between Chase Erwin and the Buyer for the sale and purchase of the Goods, incorporating these Conditions.
1.7 “Force Majeure Event” has the meaning in clause 22.1
2. GENERAL
2.1 These Conditions shall be deemed to be incorporated into all Contracts of Chase Erwin to sell Goods to the exclusion of any other terms that the Buyer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing. Any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a Director of the Company.
2.2 Each order for Goods by the Buyer from Chase Erwin shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract. If in any particular case any of these Conditions shall be held to be invalid or shall not apply to the Contract, the other conditions shall continue in full force and effect.
2.4 Any quotation for the Goods given by Chase Erwin shall not constitute an offer. A quotation shall only be valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.5 An Order shall only be deemed to be accepted when Chase Erwin issues a written acceptance of the Buyer’s order, at which point the Contract shall come into existence.
3. REPRESENTATIONS
3.1 Any sampler, drawing, illustration, statement, description, information, warranty, condition or recommendation contained in any catalogue, brochure, price list, advertisement or communication made verbally by any of the agents or employees of Chase Erwin is solely for the purpose of giving an approximate idea of the Goods described in or by them. They will not form part of the Contract.
4. PRICES
4.1 Subject to clause 5.2 the price payable for the Goods shall unless otherwise stated by Chase Erwin in writing and agreed on its behalf be the list price of Chase Erwin current at the date of Chase Erwin’s acceptance of the Buyer’s Order. All prices are exclusive of Value Added Tax and this will be charged at the appropriate rate.
5. ADDITIONAL COSTS
5.1 The Buyer agrees to pay for any loss or extra cost incurred by Chase Erwin through the Buyer’s instructions or lack of instructions or through failure or delay in taking delivery or through any act or default on the part of the Buyer, its servants, agents or employees.
5.2 Chase Erwin may by giving notice to the Buyer up to two days before the estimated date for delivery of the Goods increase the price of the Goods in contract with the Buyer to reflect any factor affecting the cost of those goods which is beyond Chase Erwin control including but not limited to:
5.2.1 the implementation or increase in import duties, taxes or tariffs after the date of the Contract on materials to be imported into the UK for incorporation into the Goods destined for the Buyer; and/or;
5.2.2 foreign exchange fluctuations of more than 7% occurring between the date of the Contract and the date of the notice.
6. INTELLECTUAL PROPERTY
6.1 The Buyer shall indemnify Chase Erwin against all liabilities, costs, claims and damages (including any direct, indirect or consequential losses, loss of profit and all legal and other professional costs and expenses) suffered incurred or arising out of any claims made against Chase Erwin for actual or alleged infringement of a third party’s patents, trade marks, registered designs or copyrights occasioned by the manufacture or sale of the Goods by Chase Erwin made to the specification or special requirements of the Buyer. The clause shall survive termination of the Contract.
7. TERMS OF PAYMENT
7.1 Chase Erwin may invoice the Buyer for the Goods on or at any time after delivery.
7.2 Unless otherwise agreed, invoices are payable in full by the last day of the month following the month in which the Goods were invoiced (“the due date”) unless any event in clause 17.1 occurs when payment of all amounts outstanding to Chase Erwin shall become immediately due and payable. Payments made after the due date are overdue.
7.3 The Buyer shall not be entitled to exercise any set off, lien or other similar right of claim or make any deduction from payments due under the Contract.
7.4 The time of payment shall be of the essence of the Contract.
7.5 When an account is not paid on the due date Chase Erwin is entitled without prejudice to any other rights it may have to charge the Buyer:-
7.5.1 interest at 2% per calendar month on the total value of the overdue amount. The charge will be made from the due date until the date the payment for the overdue balance is credited to Chase Erwin’s bank account;
7.5.2 an administrative fee of £50; and
7.5.3 any further costs incurred by Chase Erwin in the collection of the overdue balance all of which shall be paid together with the overdue amounts.
7.6 If the Goods are delivered in instalments, Chase Erwin shall be entitled to invoice each instalment as and when delivery thereof has been made notwithstanding non-delivery of other instalments or other default on the part of Chase Erwin.
8. QUANTITY
8.1 Chase Erwin warrants to supply the exact quantity ordered by the Buyer on standard products only (any product which is marketed in a Chase Erwin branded pattern book or card presentation).
8.2 On non-standard products (any product which is not marketed in a Chase Erwin branded pattern book or card presentation) Chase Erwin reserves the right to supply the Buyer’s the order quantity subject to a 5% tolerance either way on the said Buyer’s order quantity in satisfaction of the Buyer’s order.
9. DELIVERY
9.1 Unless otherwise agreed in writing by Chase Erwin, delivery of the Goods or any instalment sent separately shall take place on the loading of the Goods at Chase Erwin’s Premises.
9.2 All dates given for delivery of the Goods are approximate only and intended to be estimates given in good faith but without any responsibility on the part of Chase Erwin. If no dates are specified, delivery will be within a reasonable time. Time of delivery shall not be of the essence of any contract
9.3 Subject to the other provisions of these Conditions, Chase Erwin will not be liable for any direct, indirect or consequential loss (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, damages, charges and expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days after any estimated delivery date.
9.4 Where the Goods are handed to a carrier for carriage to the Buyer or to a United Kingdom port for export, any such carrier shall be deemed to be an agent of Chase Erwin and not of the Buyer for all purposes.
9.5 Chase Erwin shall not be liable for any non-delivery, partial loss or damage to the Goods occurring prior to delivery or for any claim that the Goods are not in accordance with the Contract (even if caused by Chase Erwin’s negligence) unless claims to that effect are notified in writing by the Buyer to Chase Erwin:-
9.5.1 within 7 days of delivery for partial loss, damage or non-compliance with the Contract; or
9.5.2 within 14 days of the date of the invoice for non-delivery.
9.6 In the event of a valid claim for non-delivery, partial loss, damage or non-compliance with the Contract, Chase Erwin undertakes at its option either to reprocess or replace the Goods at its expense but shall not be under any further or other liability to any person in connection with such non-delivery, partial loss, damage or non-compliance. Chase Erwin 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 Buyer’s failure to give adequate delivery instructions.
9.7 If for any reason the Buyer fails to take or accept delivery of the Goods at the time when the Buyer is notified that the Goods are due and ready for delivery, the delivery shall be deemed to have been completed at 5.00 pm on the date so notified Chase Erwin may at its sole discretion without prejudice to its other rights, and entirely at the cost of the Buyer store the Goods at the risk of the Buyer and take all reasonable steps to safeguard and insure them, provided that the Buyer shall be immediately informed thereof.
9.8 Chase Erwin shall have the right to make delivery of the Goods by instalments of such quantities and at such intervals as it may decide. Any express provisions as to instalments in the Contract shall be in addition to and not in derogation of this right.
10. RETURNS
10.1 Goods supplied in accordance with the Contract cannot be returned without the prior written permission of Chase Erwin.
10.2 Duly authorised returns shall be sent to Chase Erwin’s Premises. The Buyer shall bear all returns charges and a 20% handling charge based upon the original invoice value of the Goods.
11. CARRIAGE
11.1 Unless otherwise stated in the Contract, the cost of delivery of the Goods from Chase Erwin Premises shall be borne by the Buyer.
11.2 Even where delivery is stated in the Contract to take place other than at Chase Erwin Premises in the UK, the Buyer shall be responsible for any trade tariff, duty, tax or levy and for all export documentation including certificates of origin imposed on the export of the Goods outside of the UK.
11.3 The Buyer is responsible in the case of all deliveries to any destination outside the UK for obtaining at its own cost such export licences , approvals and other consents in relation to the Goods as are required from time to time and, if delivery is agreed to be effected by Chase Erwin outside the UK the Buyer shall make such licences and consents available to Chase Erwin prior to shipment or pay as an addition to the price of the Goods for Chase Erwin to produce such documentation or for Chase Erwin to secure such approvals, licences certificates or other consents.
12. PASSING OF TITLE AND RISK
12.1 The ownership of and property in the Goods shall remain with Chase Erwin until Chase Erwin has received payment in full (in cash or cleared funds) in respect of
12.1.1 all the Goods; and
12.1.2 all other sums which are or which has become due to Chase Erwin from the Buyer on any account or the Buyer resells the Goods in which case title to the Goods shall pass to the Buyer at the time specified in clause 12.4.
12.2 If all or any part of such payment is overdue or if the Buyer is or becomes insolvent or a receiver is appointed, Chase Erwin may without prejudice to any other rights, recover and/or repossess the Goods or any of them so long as they are identifiable and for the purpose of such recovery or possession, Chase Erwin may enter upon any premises where the Goods are to effect recovery or possession.
12.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:- 12.3.1 store the Goods in a way readily identifiable as Chase Erwin’s property;
12.3.2 not remove or obscure properly any identifying marks or packing on or relating to the Goods;
12.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full purchase price from the date of delivery; and
12.3.4 notify Chase Erwin immediately if any of the events in clause 17.1 occurs. 12.3.5 hold the Goods on a fiduciary basis as Chase Erwin’s bailee.
12.4 The Buyer may resell or take into use the Goods before ownership has passed to it solely on the condition that any sale shall be effected in the ordinary course of the Buyer’s business at full market value. Title in the Goods shall pass at the time such resale or use occurs. The Buyer’s right to possession and sale of the Goods shall terminate immediately if any of the events set out in clause 17 shall occur.
12.5 Chase Erwin shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods may not have passed from Chase Erwin.
12.6 The Buyer grants to Chase Erwin, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated to recover them.
12.7 The Goods are at the risk of the Buyer from the time of delivery
13. CONDITIONS AND WARRANTIES
13.1 Every description or specification of the Goods is given in good faith based on average results of standard tests and the use of any such description or specification shall not constitute a sale by description. Chase Erwin reserves the right to amend the specification of any Goods as necessary.
13.2 Chase Erwin warrants that on delivery (subject to the other provisions of these Conditions), the Goods will:-
13.2.1 comply in all material respects with their description in the Contract and any specification; and
13.2.2 be fit for the purpose and conditions of use for which Goods of that description are generally sold by Chase Erwin as long as they are used in accordance with the care and use instructions given by Chase Erwin.
13.3 Where specifications submitted by the Buyer differ from those of Chase Erwin, then unless otherwise agreed in writing and signed by one of Chase Erwin’s Directors, Chase Erwin’s specification shall prevail.
13.4 Notwithstanding that a sample of the Goods may have been exhibited to and inspected by the Buyer or results of standard tests upon a sample furnished to the Buyer, it is hereby declared that such sample was so exhibited and inspected or tested solely to enable the Buyer to judge for itself the quality of the bulk and not so as to constitute a sale by sample. The Buyer shall take Goods at its own risk as to their corresponding with the sample or as to their quality, condition or sufficiency for any purpose.
13.5 Except where any purpose or condition is guaranteed as above, the Company shall be under no obligation to test Goods prior to delivery.
13.6 All warranties, conditions and other terms (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) other than those expressly set out in the Contract or these Conditions are excluded from the Contract to the fullest extent permitted by law.
14. DEFECTIVE GOODS
14.1 Subject to clauses 14.3 and 14.4, if any of the Goods do not conform with the warranties given in clause 13.2, then in substitution for all rights which the Buyer would or might have had in any jurisdiction but for these Conditions, Chase Erwin undertakes at its option to credit to the Buyer in full the price paid by the Buyer to Chase Erwin for the defective Goods or to repair or supply free of charge at the place of delivery specified by the Buyer for the original Goods a replacement of the Goods if manufactured by Chase Erwin. These Conditions shall apply to any repaired or replacement Goods supplied by Chase Erwin.
14.2 In the case of Goods not of Chase Erwin’s manufacture, Chase Erwin will pass on to the Buyer any benefits obtainable under any warranty given by Chase Erwin’s supplier provided that the Goods have been accepted and paid for by the Buyer.
14.3 In order to exercise its rights under this paragraph, the Buyer shall inform Chase Erwin in writing within 7 days of the date when such defect in the Goods appeared or ought reasonably to have been discoverable and in any event within 12 months of Delivery and shall return the defective Goods carriage paid to Chase Erwin’s premises.
14.4 Chase Erwin shall not be liable for a breach of any warranty in clause 13.2 unless Chase Erwin is given a reasonable opportunity of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to Chase Erwin’s Premises for inspection before they are cut or further processed.
14.5 For any subsequent Order, Chase Erwin cannot guarantee a delivery from the same batch and therefore exact colour matching.
14.6 Nothing herein shall impose any liability upon Chase Erwin in respect of any defect in the Goods arising out of the fair wear and tear, wilful damage, or the acts, omissions, negligence or default of the Buyer, its servants or agents or any third party including in particular but without prejudice to the generality of the foregoing, any failure by the Buyer to comply with any recommendations of Chase Erwin as to storage installation, maintenance and handling or use or care of the Goods or good trade practice relating to the same.
14.7 Where the Goods are for delivery by instalments, any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.
14.8 No liability is accepted for any Goods which have been altered or subjected to any further process or manufacture after they have left Chase Erwin’s Premises.
14.9 Chase Erwin shall not be bound in any way by any settlement between the Buyer and a subsequent owner of the Goods, nor by any survey or award as between the Buyer and a subsequent owner unless they have agreed in writing to be a party to such settlement, survey or award.
14.10 Nothing herein shall have the effect of excluding or restricting the liability of Chase Erwin for death or personal injury resulting from its negligence.
15. BUYER’S DRAWINGS
15.1 Chase Erwin shall not be liable for imperfect work caused by any inaccuracies in any design drawing, bills of quantities or specifications supplied or approved by the Buyer.
16. CONSEQUENTIAL LOSS
16.1 Chase Erwin shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profits, loss of business, depletion of goodwill or otherwise) for any costs, claims or damages or expenses arising out of any tortuous act or omission or out of any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis which arise out of or in connection with the Contract.
17. DEFAULT OR INSOLVENCY OF THE BUYER
17.1 If the Buyer shall fail to accept the Goods or any instalments or part instalment thereof or shall fail to pay any sum due to Chase Erwin on the due date or makes default in or commits any breach of any other obligation or if any distress or execution shall be levied on the Buyer’s property or assets or if the Buyer shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Buyer is a company) if any Resolution or Petition to wind up such company or the granting of an administration order shall be passed or presented or if a Receiver of the whole or any part of such company’s undertaking, property or assets shall be appointed then clause 17.2 shall apply.
17.2 If any of the events in clause 17.1 or any event analogous to those described in clause 17.1 occurs in relation to the Buyer in any jurisdiction in which the Buyer is incorporated, resident, or carries on business then Chase Erwin in its absolute discretion and without prejudice to any other right or claim may determine wholly or in part any and every Contract between Chase Erwin and the Buyer or may (without prejudice to Chase Erwin’s right subsequently to determine the Contract for the same cause should it so decide) suspend further deliveries of Goods to the Buyer until any defaults by the Buyer be remedied.
17.3 Upon any event occurring as set out in clause 17.1, all credit arrangements negotiated with Chase Erwin shall terminate and all amounts owing to Chase Erwin by the Buyer shall become immediately due.
18. CANCELLATION
18.1 The Buyer shall have no right to cancel any Contract without cause once it has been accepted by Chase Erwin without Chase Erwin prior written consent.
18.2 Please note that Chase Erwin is not able to agree to the cancellation without cause of any Contract for bespoke Goods in any circumstances.
19. CONFIDENTIALITY
19.1 Each Party undertakes that it shall not for a period of two years from the date any quotation is submitted by Chase Erwin or the date when any Order is placed on Chase Erwin by the Buyer (whichever occurs first) disclose to any person any confidential information concerning the business affairs, customers, clients or suppliers of the other party except:-
19.1.1 as may be required by law or any regulatory authority; and
19.1.2 to its employees or advisers who need to know such information for the purposes of carrying out its obligations under any Contract.
20. DATA PROTECTION
20.1 Both Chase Erwin and the Buyer will comply with all applicable requirements of the Data Protection Legislation. This Clause 20 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. “Applicable Laws” means (for so long as and to the extent that they apply to Chase Erwin) the laws of the European Union, the laws of any member state of the European Union and/or Domestic UK Law; and “Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK.
20.2 Without prejudice to the generality of Clause 20.1, each Party shall, in relation to any personal data processed in connection with the performance of its obligations under any Contract
20.2.1 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
20.2.2 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
20.2.3 not transfer any personal data outside of the European Economic Area without the prior written consent of the data subject;
20.2.4 notify the other party without undue delay on becoming aware of a personal data breach; and
20.2.5 at the written direction of the provider, delete or return personal data and copies thereof to the provider on termination of the Contract unless required by Applicable Law to store the personal data.
21. LIMITATION OF LIABILITY
21.1 The entire financial liability of Chase Erwin to the Buyer for any loss or damage of whatsoever nature and howsoever caused (including any liability for the acts or omissions of its employees, agents and subcontractors) shall be limited to and in no circumstances shall exceed the invoiced value of the Goods supplied to the Buyer (excluding VAT).
22. FORCE MAJEURE
22.1 Chase Erwin shall be entitled to delay, suspend or cancel delivery or to reduce the amount delivered if it is prevented from or hindered in or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its control expressly including (but not limited to):
22.1.1 strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal source of supply; and/or
22.1.2 after the date of acceptance of the Buyer’s Order the imposition in any jurisdiction of or any increase in any trade tariff, duty, tax or levy imposed on imports into the UK of any materials used by Chase Erwin to manufacture the Goods and/or the loss of or change to or imposition of any licence required by Chase Erwin to complete delivery of such materials to manufacture the Goods in accordance with any Contract;
all of such events to be known as a (“Force Majeure Event”).
22.2 Chase Erwin shall have no responsibility for losses resulting directly or indirectly from any Force Majeure Event.
22.3 If any Force Majeure Event continues for more than three weeks the party not affected may terminate the relevant Contract by giving written notice to the affected party.
23. SUBCONTRACTING
23.1 Chase Erwin may assign any Contract with the Buyer or sub-contract the whole or any part thereof to any person, firm or company.
24. NOTICES
24.1 Any notice given to a party under these Conditions shall be in writing and delivered by pre-paid next working day delivery services at its registered office (if to Chase Erwin or to a Buyer who is a company) or at its place of business as set out in the Contract (in any other case).
25. PROPER LAW
25.1 All Contracts between Chase Erwin and the Buyer and these Conditions shall in all respects be governed by and construed in accordance with English law and shall be deemed to have been made in England. The Buyer and Chase Erwin agree to the Courts of England and Wales having exclusive jurisdiction to settle any dispute or claim arising out of or in connection with any Contract or its subject matter or its formation.
25.2 Each party irrevocably consents to any process in any legal action or proceedings under clause 25.1 above being served on it in accordance with the provisions of these Conditions relating to the service of notices. Nothing in the Contract or these Conditions shall affect the right to serve process in any manner permitted by law.
25.3 Nothing in this clause 25 shall limit the right of Chase Erwin to take proceedings against the Buyer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude Chase Erwin from taking proceedings in any other jurisdiction whether concurrently or not, to the extent permitted by the law of such other jurisdiction.