CONDITIONS OF SALE OF GOODS CARPET FIBRE EQUESTRIAN SURFACES
Carpet Gallop and the Customer have agreed that Carpet Gallop shall provide the Goods (as defined below) in accordance with these terms and conditions.
Whereby it is agreed as follows:-
In these Conditions, the following definitions apply:
Carpet Gallop : means Carpet Gallop Ltd (company number 10340480)
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.5.
Contract: any contract between Carpet Gallop and the Customer for the supply of Goods made in accordance with these Conditions including any sale made on EBay.
Customer: the individual, firm, company or other party from whom an Order is received by Carpet Gallop.
Force Majeure Event: has the meaning given in clause 11.
Goods: means the carpet fibre equestrian surface or any other goods (or any part of them) set out in the Order acknowledgment issued by Carpet Gallop or failing an
acknowledgement being sent as otherwise agreed as being the Goods by the parties.
Order: the Customers order for the Goods.
Proof: a visual image (if any) provided by Carpet Gallop to the Customer in the course of the process by which the Customer places an Order.
Sample: any sample of the goods shown or otherwise provided to the Customer.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract (and to any sales of Goods from Carpet Gallop to the Customer) to the exclusion of any other conflicting terms and/or standard
terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Carpet Gallop issues an acknowledgment of the Order at which point the Contract shall come into existence.
2.4 The Customer is deemed to acknowledge that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Carpet Gallop.
2.5 Any descriptive matter (other than a Proof), or advertising produced by Carpet Gallop and any descriptions or illustrations contained in Carpet Gallop catalogues or brochures 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 Any quotation given by Carpet Gallop shall not constitute an offer. A quotation shall only be valid for a period of 7 Business Days from its date of issue.
3.1 If the quoted price includes carriage, point of delivery will be deemed to take place at the point of entry to the Customer’s works or site specified in the Contract. Unless
otherwise stated, Carpet Gallop will not be responsible for offloading. The method of carriage shall be selected by Carpet Gallop at its discretion.
3.2 If the quoted price for the Goods does not include carriage, point of delivery will take place when the goods are loaded onto the Customers selected transport.
3.3 All returnable containers, pallets and frames will be invoiced and must be paid for by the Customer at the time of payment for the Goods or otherwise as agreed in
writing between Carpet Gallop and the Customer. When returned, carriage paid, in good condition to Carpet Gallops works, full credit for these charged and returnable
containers, pallets and frames will be made. This shall not apply to deliveries to overseas destinations.
3.4 Notwithstanding that property in the Goods shall not pass until payment, all Goods shall be at the risk of the Customer from the point of delivery.
3.5 Where the quoted price includes carriage, Carpet Gallop shall not be liable for loss or damage in transit unless the notice of such loss or damage is given to the carriers and to Carpet Gallop verbally within 24 hours and in writing within 5 days of point of delivery.
3.6 Carpet Gallop is prepared to arrange specific types of carriage at the request and cost of the Customer as agent of the Customer only and without liability or obligation on the part of Carpet Gallop.
3.7 If through instructions or lack of instructions from the Customer, Carpet Gallop is unable to despatch the Goods within seven days after the date of notification that they are ready for despatch, the Goods will be deemed to have been delivered and Carpet gallop shall be entitled to arrange insurance and storage within its own works or elsewhere on behalf of the Customer and the Customer will pay Carpet Gallop reasonable charges incurred for such insurance or storage. The goods shall be invoiced and the customer must pay within the normal agreed terms of payment.
3.8 Carpet Gallop is not responsible for export demurrage charges and/or customs charges or additional costs resulting from delay in unloading.
4. WARRANTY OF GOODS MANUFACTURED BY CARPET GALLOP
4.1 Carpet Gallop warrants that on the point of delivery, the Goods shall conform in all material respects with their description and any applicable Sample. Notwithstanding the foregoing the Customer acknowledges that any sample provided is intended to be indicative only and that the Goods supplied to the Customer may vary in colour,
texture and consistency.
4.2 Subject to clause 0 , if:
(a) the Customer gives notice in writing to Carpet Gallop that some or all of the Goods do not comply with the warranty set out in clause 4.1; and
(b) Carpet Gallop is given a reasonable opportunity of examining such Goods;
Carpet Gallop shall, at its option, replace the defective Goods, or refund the price of the defective Goods.
4.3 Carpet Gallop shall not be liable for Goods & failure to comply with the warranty set out in clause 0 in any of the following events:
(a) the Customer, and/or end user makes any use of such defective Goods after giving notice in accordance with clause 0 or otherwise realising that there is a defect;
(b) the Customer, and/or end user and/or installer fails to follow Carpet Gallops oral or written instructions as to the storage, use and/or maintenance of the Goods and/or good practice regarding the same; and in particular but without limitation if the Customer fails to follow the guidance given on the labelling to the Goods ;
(c) the Customer and/or end user and/or installer alters or repairs the Goods;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal use, storage or working conditions;
(e) the Customer fails to properly prepare the site for the installation of the Goods including (without limitation) failing to remove any existing product (including wood chippings) from the surface of the ground onto which the Goods are to be placed.
4.4 For the avoidance of doubt Carpet Gallop shall not be responsible for the laying/installation of the Goods at the Customers works/delivery site.
4.5 Save as provided in these Conditions, Carpet Gallop shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 4.1
4.6 In respect of the supply of Goods, save for such terms as are implied by Section 12 of the Sale of Goods Act 1979 (as amended from time to time) all other implied terms are expressly excluded from the Contract.
5. TITLE AND RISK
5.1 The risk in the Goods shall pass to the Customer from the point of delivery.
5.2 Title to the Goods shall not pass to the Customer until:
(a) Carpet Gallop receives payment in full (in cash or cleared funds) for the Goods and any other goods that Carpet Gallop has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums, unless
(b) (in circumstances where the Customer is a mercantile agent and it resells the Goods in the normal course of trade); in which case title to the Goods shall pass to the Customer at the time specified in clause 0 .
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Carpet Gallop property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Carpet Gallop immediately if it becomes subject to any of the events listed in clause 0 ; and
(e) give Carpet Gallop such information relating to the Goods as Carpet Gallop may require from time to time.
5.4 Subject to clause 0:
the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Carpet Gallop receives payment for the
Goods (as principal and not as Carpet Gallop’s agent) in which event title to the Goods shall pass to the Customer immediately before the time of resale. However, if
the Customer resells the Goods before Carpet Gallop receives payment for them the Customer will hold on trust for Carpet Gallop so much of the proceeds of sale received by it,
under contracts which include any of the Goods hereby sold either in their original or altered state, as are necessary to discharge payment in full to Carpet Gallop
5.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 0 , then, without limiting any other right or
remedy Carpet Gallop may have:
(a) the Customers right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) Carpet Gallop may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) 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.
IMPORTANT DELIVERY INFORMATION - PLEASE READ CAREFULLY
6.1 The Customer shall cooperate fully with Carpet Gallop (or any driver employed or engaged by it to deliver the Goods) to enable delivery of the Goods and without limitation shall ensure reasonable access to the delivery site.
6.2 Any dates quoted for delivery of Goods are estimates and approximate only. No warranty is given for the specific time of delivery. Time of delivery is not of the essence
6.3 Carpet Gallop shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customers failure to provide Carpet Gallop with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods, or in any event any delay which is less than 4 months from the
original estimated time of delivery.
6.4 If Carpet Gallop 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.
6.5 If delivery is delayed or if Carpet Gallop fails to make delivery for any reason then for the avoidance of doubt in no circumstances shall Carpet Gallop be liable for any costs and expenses incurred by the Customer in respect of contractor, equipment or hauliers engaged or hired by the Customer to take delivery of the Goods.
6.6 The Customer shall not be entitled to reject the Goods if Carpet Gallop delivers up to and including 10% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered (or otherwise when the matter is discovered and verified.)
6.7 Carpet Gallop 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.
6.8 Unless otherwise agreed by Carpet Gallop in writing it shall be the Customers responsibility to unload the Goods from the carrier making delivery of the Goods.
6.9 Each delivery slot is subject to a maximum time limit of 2 hours. If delivery has not been completed within this time the Customer shall be liable for any extra costs and expenses incurred by Carpet Gallop as a result.
6.10 If the Customer fails to take delivery of the Goods or fails to provide proper access, instructions, personnel or equipment to enable delivery to take place then the Customer shall be liable for any additional costs and expenses incurred by Carpet Gallop as a result of such failure, including without limitation, any storage and
7. CUSTOMERS OBLIGATIONS
7.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) provide Carpet Gallop with such information as Carpet Gallop may reasonably require to supply the Goods, and ensure that such information is accurate in all material respects;
7.2 If Carpet Gallop performance of any of its obligations in respect of the Goods is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) Carpet Gallop shall without limiting its other rights or remedies have the right to suspend delivery of the Goods until the Customer remedies the Customer Default, and Carpet Gallop shall be relieved from the performance of any of its obligations to the extent the Customer Default prevents, delays or excuses Carpet Gallops performance of any of its obligations;
(b) Carpet Gallop shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Carpet Gallops failure or delay to perform any of its obligations caused directly or indirectly by a Customer Default; and
(c) the Customer shall reimburse Carpet Gallop on written demand for any costs or losses sustained or incurred by Carpet Gallop arising directly or indirectly from the Customer Default.
7.3 The Customer warrants to Carpet Gallop that it has all necessary consents and authority to have the Goods installed at its premises (whether or not this is the delivery site) and shall indemnify Carpet Gallop against all costs or losses sustained or incurred by Carpet Gallop rising directly or indirectly from the Customers failure to obtain any necessary permissions or consents.
7.4 It is the Customers responsibility to ensure that it orders a sufficient volume of the Goods. Carpet Gallop may provide guidance to the Customer on the quantities it may
require but it is for the Customer to satisfy itself that any amounts ordered are satisfactory for the Customers own requirements.
8. CHARGES AND PAYMENT
8.1 The price of the Goods shall be the price set out in the order acknowledgment or if none is stated the price as agreed between the parties or, if no price is agreed, the price set out in Carpet Gallop’s price list in force as at the date of delivery.
8.2 The price of the Goods is (unless otherwise stated) exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.3 Carpet Gallop reserves the right to:
(a) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to Carpet Gallop that is due to:
(i) any factor beyond the control of Carpet Gallop (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Carpet Gallop adequate or accurate information or instructions in respect of the Goods.
8.4 All Invoices shall be paid 7 days prior to delivery
8.5 The Customer shall pay each invoice submitted by Carpet Gallop on the date requested
8.6 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 Carpet Gallop, pay to Carpet Gallop such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
8.7 If the Customer fails to make any payment due to Carpet Gallop under the Contract by the due date for payment, then the Customer shall pay interest on the overdue
amount at the rate of 5% per annum above the Bank Of England’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.
8.8 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). Carpet Gallop 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 Carpet Gallop to the Customer.
8.9 If the customer pays their deposit towards a product from Carpet Gallop under no circumstances will a refund be offered. The deposit paid are not refundable and can be used towards a purchase up to 12 months
9. TERMINATION AND SUSPENSION
9.1 If the Customer becomes subject to any of the events listed in clause 0 , Carpet Gallop may terminate the Contract with immediate effect by giving written notice to the
9.2 For the purposes of clause 0 , the relevant events are:
(The Customer commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so; or
(b) the Customer becomes able to pay its debts as they fall due or takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business.
9.3 Without limiting its other rights or remedies, Carpet Gallop may suspend provision of the Goods under the Contract or any other contract between the Customer and Carpet Gallop if the Customer becomes subject to any of the events listed in clause 9.2 (b), or Carpet Gallop reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due to Carpet Gallop on the due date for payment. Carpet Gallop shall have no liability to the Customer for suspension properly exercised under this clause.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to Carpet Gallop all of Carpet Gallop’s outstanding unpaid invoices and interest.
9.5 Termination of the Contract, however arising, shall not affect either of the parties & rights, remedies, obligations and liabilities that have accrued as at termination.
9.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude Carpet Gallop liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Rights Act 2015; or
(e) any matter in respect of which it would be unlawful for Carpet Gallop to exclude or restrict liability.
10.2 Subject to clause 10.1 Carpet Gallop shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(a) any loss of profit; or
(b) loss of business, depletion of goodwill and/or similar losses; or
(c) loss of anticipated savings; or
(d) loss of goods; or
(e) loss of contract; or
(f) loss of use; or
(g) loss or corruption of data or information; or
(h) any loss of government grant or similar financial allocation; or
(i) any loss of trust status or similar; or
(j) any special loss;
(k) any indirect loss;
(l) any consequential loss; or
(m) any pure economic loss, costs, damages, charges or expenses.
10.3 Carpet Gallops’s total liability to the Customer in respect of all claims arising under or in connection with the Contract shall be limited to £10,000 or the price originally
agreed for the Goods the subject of any successful claim whichever is the lower.
11. 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 partys 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 & 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, a latent defect in a component or product not revealed by any testing prior to manufacture or delivery, 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 Carpet Gallop’s or subcontractors or Carpet Gallops.
12.1 Assignment and other dealings.
(a) Carpet Gallop 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.
(b) 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 Carpet Gallop.
(a) 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.
(b) If one party gives notice to the other of the possibility that 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.
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.
12.4 Third party rights
A person who is not a party to the Contract shall not have any rights to enforce its terms.
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 Carpet Gallop.
12.6 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.
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). Issued on [ 26/02/2020 ]