TERMS & CONDITIONS WHOLESALE & EXPORT
1. Interpretation
1.1 In these Conditions:
“Buyer” means the person or company who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
“Goods” means the goods (including any instalment of the goods) which the Seller is to supply in accordance with these Conditions and any goods supplied in substitution for or in replacement of or in addition to such goods.
“Seller” means KURE LTD (registered in England under number 11595451).
“Conditions” means the standard terms and conditions of sale as set out and includes any special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means the contract for the purchase and sale of the Goods.
“Writing” includes letter, cable, facsimile transmission, email and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations that are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or claim of infringement from use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller
3. Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of any order (including any labelling specification) and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation or written order of the Buyer (if accepted by the Seller).
3.4 The Buyer shall indemnify the Seller against all loss damages, costs and expenses awarded against or incurred by the Seller in connection with but not limited to; paid or agreed by the Seller in settlement of any claim of infringement of any patent, copyright, design, manufacture, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Goods.
3.5 The Seller reserves the right to make any changes in the specification of the Goods.
3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller, and the Buyer shall indemnify the Seller in full against all loss, including loss of profit, including the cost of all labour and materials used, damages, charges and expenses incurred by the Seller as a result of any cancellation.
However, from the date of the order, a five (5) day cooling off period will be allowed during which cancellations or reducing the order will be accepted by the Seller without penalty. Without prejudice to the generality of the foregoing, should the Buyer purport without the agreement in Writing of the Seller to cancel any order which has been accepted by the Seller or refuse to accept collection of any of the Goods such action shall constitute a breach of the agreement and, at the option of the Seller, the Seller shall be entitled to liquidated damages in an amount equivalent to 50% of the invoice value of the order so purported to be cancelled. In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without deduction) and within seven (7) days of receiving from the Seller written notification of the amount required to be paid.
The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such breach of agreement on the part of the Buyer. For the avoidance of doubt, in the event that the Seller opts to require the Buyer to pay liquidated damages as set out above, and the Buyer duly pays such liquidated damages, neither party shall have any further liability to the other in relation to the Goods in respect of which such liquidated damages are paid.
4. Price of the Goods
4.1 The price of the Goods shall be the Seller’s quoted price. All prices quoted are valid for 30 days only or such lesser period as shall be stated by the Seller on the face of the relevant quotation.
4.2 The Seller reserves the right by giving notice to the Buyer at any time before collection to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture) or to any change in collection dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller are exclusive of carriage.
4.4 The price is exclusive of any applicable value added tax that the Buyer may be additionally liable to pay to the Seller.
5. Terms of Payment
5.1 The Seller shall be entitled to invoice the Buyer for the price of the Goods at any time before collection.
5.2 All Invoices are payable in advance of collection and the Buyer shall pay all invoices without any other deductions notwithstanding that collection may not have taken place and the property in the Goods has not been passed to the Buyer. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to.
5.3.1 cancel the contract or suspend any further collections by the Buyer and
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may see appropriate and
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above Barclays Bank Plc base rate until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.4 In the event that the Seller shall cancel the contract under the provisions of Clause 5.3.1 above, the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation. Without prejudice to the generality of the foregoing, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 50% of the invoice value of the contract so cancelled. In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within seven 7 days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of cancellation.
6. Collection of Goods
6.1 Collection of Goods shall be made by the Buyer at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection.
6.2 Any dates quoted for collection of the Goods are approximate only and the Seller shall not be liable for any delay in collection of the Goods howsoever caused.
The Seller shall be entitled to make part delivery of the Goods at any time.
6.3 Where the Goods are collected on instalment, each collection shall constitute a separate contract and failure by the Seller to make available any one or more of the instalments of Goods in accordance with these Conditions shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to make available the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer of collection only.
6.5 If the Buyer fails to collect the Goods or fails to give adequate collection instructions at the time stated for collection otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery occurs and charge the Buyers account for the reasonable costs (including insurance) of storage; or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. Risk and Property
7.1 The Buyer is responsible for all the charges and risks involved in the shipment of the Goods from the moment it leaves the Seller's warehouse until it reaches its destination place.
All Goods are sold on an EXW PL158PX U.K Loaded ICC 2020 basis.
7.2 Notwithstanding collection and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received cleared funds payment in full of the price of the Goods and payment in full of all sums due from the Buyer to the Seller whether under the Contract or by virtue of any other liability of the Buyer to the Seller.
7.3 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) become due and payable.
7.4 For the avoidance of doubt, nothing contained in this Clause 7 shall entitle the Buyer to return any of the Goods to the Seller save as expressly provided in these terms and conditions or as expressly agreed in writing by the Seller.
8. Warranties and Liability
8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification subject to such tolerances as are reasonable and as are normally accepted in the trade.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from shipping, transportation or subsequent handling of the Goods by the Buyer.
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working or storage conditions or alternation of the Goods without the Seller’s approval.
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.2.4 the above warranty does not extend to Goods not manufactured by the Seller.
8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected by these Conditions.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall be notified to the Seller within 21 days from the date of collection. If the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure.
8.6 Any claim by the Buyer which is based on short collection shall be notified to the Seller in Writing within 21 days of collection. If the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject any Goods and the Seller shall have no liability.
8.7 Where any valid claim in respect of any of the Goods which is based on any defect in the quality of the Goods or their failure to meet specification and is proven by the Buyer and accepted by the Seller, the Seller shall be entitled to replace the Goods for collection but the Seller shall have no further liability to the Buyer.
8.8 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of Contract or any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.9 The Seller shall not be liable to the Buyer or be deemed to be in breach of Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.9.1 Act of God, pandemic, explosion, flood, tempest, fire or accident;
8.9.2 War or threat of war, sabotage, insurrection, civil disturbance, or requisition;
8.9.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.9.4 import or export regulations or embargoes;
8.9.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.9.6 difficulties in obtaining raw materials labour, fuel, parts or machinery;
8.9.7 power failure or breakdown in machinery.
9. Restocking Fee
9.1 Seller, at its sole discretion, may accept the return of standard Goods, after Seller has inspected the Goods for merchantable condition. On such acceptance, Seller reserves the right to charge a restocking fee of 20% of the invoice value price on Goods returned (or such fee as otherwise agreed by Seller), provided that the Goods returned are in merchantable condition according to Seller's standards.
9.2 Restocking Fees and Refunds are calculated in Pounds Sterling and the amount of your refund depends on the exchange rate on the day the refund is issued.
10. Insolvency of Buyer
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further collections under the Contract without any liability to the Buyer, and if Goods are available for collection but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11. Export Terms
11.1 In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and theses Conditions, the latter shall prevail.
11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall apply, notwithstanding any other provisions of these conditions.
11.3 The Buyer shall be responsible for complying with any legislation or regulations governing the export and importation of the Goods into the country of destination.
11.4 The Goods shall be collected EXW PL158PX U.K Loaded and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of the Goods Act 1979.
11.5 The Buyer shall be responsible for arranging for inspection of the Goods at the Seller’s premises (or place otherwise agreed) before collection. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of damage during transit.
11.6 Payment of all amounts due to the Seller shall be made in such manner as shall be agreed between the Seller and the Buyer in Writing.
12. Data Protection Act 1998
12.1 We may transfer information about you to our financiers, who:
12.2 may use, analyse and assess information about you, including the nature of your transactions, and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claim, underwriting and training purposes and in making payments and servicing their agreement with us;
12.3 from time to time, may make searches of your record at credit reference agencies where your record with such agencies may include searches made and information given by other businesses; details of their searches will be kept by such agencies but will not be seen by other organisations that may make searches;
12.4 may give information about you and your indebtedness to the following:
12.4.1 our or their insurers for underwriting and claims purposes;
12.4.2 any guarantor or indemnifier of your or our obligations to enable them to assess such obligations;
12.4.3 their bankers or any advisers acting on their behalf;
12.4.4 any business to which your indebtedness or our arrangements with our financiers may be transferred – to facilitate such transfer;
12.5 may monitor and/or record any phone calls you may have with them, for training and/ or security purposes;
12.6 in the event that they transfer all or any of their rights and obligations under their agreement with us to a third party, may transfer information about you to enable the third part to enforce their rights or comply with the obligations.
13. General
13.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party given the notice
13.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
13.4 The contract shall be governed exclusively by the laws of England & Wales.