1 DEFINITIONS In this document the following words shall have the following meanings:
1.1 "Buyer" means the organisation or person who buys Goods from the Seller;
1.2 "Goods" means the articles to be supplied to the Buyer from the Seller;
1.3 "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 “List Price” means the list of prices of the Goods maintained by the Seller as amended from time to time. The ‘List Price’ for all goods is shown on the Sellers website at www.pensofmassdescription.co.uk.
1.5 "Seller" means Stripeyhouse.com t/a Pens of Mass Description, Benula, Main Street, Golspie, Sutherland, KW10 6RA, Scotland.
2.1 These Terms and Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing.
2.2 Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
3 PRICE AND PAYMENT
3.1 The price shall be that in the Seller’s current List Price, or such other price as the parties may agree in writing. The price is inclusive of VAT or any other applicable costs.
3.2 Payment of the price including VAT and any other applicable costs shall be due within 30 days of the end of the month following delivery of the goods. Payment terms other than these may be agreed between The Seller and Buyer and will be confirmed in writing by the Seller to the Buyer.
3.3 The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 2.00% per annum above the base rate of the Bank of England.
3.4 If payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:3.4.1 require payment in advance of delivery in relation to any Goods not previously delivered;
3.4.2 refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
3.4.3 terminate the contract.
3.5 Prices other than “List Price” may be agreed from time to time between Seller and Buyer and will be confirmed in writing by the Seller to the Buyer.
3.6 Any relevant taxes due in the country of the recipient. (In Europe VAT is charged at the time of purchase. In other countries, tax is charged by the local customs office, and may be collected by the courier before goods are delivered)
3.7 Payment for an order shall be made by credit, debit card, direct bank transfer or by a Personal or Company Cheque drawn upon a British based account and provided that it is agreed that a suitable time to allow for clearance of such funds is allowed prior to posting of the goods. It is a crime to use a false name or a known invalid credit or debit card to order. Anyone caught wilfully entering an erroneous or fictitious order will be reported to the relevant authorities and may result in prosecution. Each electronic entry carries the computer coding of the Internet provider through which the individual can be traced.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Buyer on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.2 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract.
6.3 Only for Goods supplied ‘carriage paid’ by the Seller, the Buyer shall be entitled to replacement Goods where the Goods have been damaged during transportation. The Buyer must notify the Seller of the damage within 24 hours of delivery.
Risk in the Goods shall pass to the Buyer at the moment the Goods are dispatched from the Seller`s premises. Where the Buyer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first.
8 RETENTION OF TITLE
The risk in the Goods shall pass from the Seller to the Buyer upon delivery of such goods to the Buyer. However, notwithstanding delivery and the passing of risk in the Goods, title and property in the Goods, including full legal and beneficial ownership, shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full for all goods delivered to the Buyer under this and all other contracts between the Seller and the Buyer for which the full price of the goods there under has not been paid. Payment of the full price of the goods shall include the amount of any interest or other sum payable under the terms of this and all other contracts between the Seller and the Buyer under which the Goods were delivered.
9.1 Where the Goods have been manufactured by the Seller and are found to be defective, the Seller shall repair, or in its sole discretion, replace defective Goods free of charge within 1 month from the date of delivery, subject to the following conditions:
9.1.1 the Buyer notifying the Seller in writing within 7 days of receipt of the Goods;
9.1.2 the defect being due to the faulty design, materials or workmanship of the Seller.
9.1.3 In the case of "hand made" items, the specification shall be deemed to be less exact and a greater degree of tolerance will be deemed to be within specification.
9.1.4 In the case of "made to order" items, no return or refund can be made unless the Products are defective in quality or condition or that they fail to meet the specification.
9.2 Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
9.3 Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer.
9.4 The Seller shall be entitled in its absolute discretion to refund the price of the defective Goods in the event that such price has already been paid.
9.5 The remedies contained in this Clause are without prejudice to the other Terms and Conditions herein, including, but without limitation, Clauses 10 and 11 below.
10.1 No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:
10.1.1 the correspondence of the Goods with any description;
10.1.2 the quality of the Goods; or
10.1.3 the fitness of the Goods for any purpose whatsoever.
10.2 No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to:
10.2.1 the correspondence of the Goods with any description;
10.2.2 the quality of the Goods; or
10.2.3 the fitness of the Goods for any purpose whatsoever.
10.3 All implied terms, conditions or warranties as to the correspondence of the Goods to any description or the satisfactory quality of the Goods or the fitness of the Goods for any purpose whatsoever (whether made known to the Seller or not) are hereby excluded from the contract.
11 LIMITATION OF LIABILITY
11.1 Where any court or arbitrator determines that any part of Clause 10 above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer but in an amount not exceeding the contract price.
11.2 Nothing contained in these Terms and Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence or that of its employees or agents.
12 INTELLECTUAL PROPERTY RIGHTS All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
13 FORCE MAJEURE The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
14 RELATIONSHIP OF PARTIES
Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
15 ASSIGNMENT AND SUB-CONTRACTING
The contract between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
18 GOVERNING LAW AND JURISDICTION
These Conditions shall be governed and construed in accordance with the laws of Scotland and the parties hereby submit to the non-exclusive jurisdiction of the Scottish courts.