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Terms & Conditions Goods

  1. Interpretation

    1. Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in England, 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 11.4.

 

Contract: the contract between Dening & Co and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

 

Customer: the person or firm who purchases the Goods from Dening & Co.

 

Dening & Co: Thomas Dening and Samantha Nutt of [Shutteroaks Cottage, Hinton Road, Crewkerne, TA18 7TQ.] trading as Dening & Co.

 

Delivery Fee: the fee payable by the Customer to Dening & Co for delivery of the Goods to the Location.

 

Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.

 

Goods: the goods (or any part of them) set out in the Order.

 

Location: the Customer’s premises, Dening & Co’s premises or such other location for Delivery as outlined in the Order.

 

Order: the Customer's order for the Goods, as set out overleaf.

  1. Interpretation:

    1. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

    2. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

    3. A reference to writing or written includes fax and email.

  1. Basis of contract

    1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

    2. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.

    3. The Order shall only be deemed to be accepted when Dening & Co issues a written acceptance of the Order, at which point the Contract shall come into existence.

    4. Any samples, drawings, descriptive matter or advertising produced by Dening & Co and any descriptions or illustrations contained in Dening & Co's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

    5. A quotation for the Goods given by Dening & Co shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.

  2. Goods

    1. The Goods are described in Dening & Co's catalogue.

    2. Dening & Co reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirement, and Dening & Co shall notify the Customer in any such event.

  3. Delivery

    1. Dening & Co shall ensure that:

    2. confirmation is provided as to the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered before or at the point of delivery; and

    3. if Dening & Co requires the Customer to return any packaging materials to Dening & Co, that fact is clearly stated on the invoice. The Customer shall make any such packaging materials available for collection at such times as Dening & Co shall reasonably request. Returns of packaging materials shall be at Dening & Co's expense.

  4. Subject to payment by the Customer of the Delivery Fee, Dening & Co shall deliver the Goods to the Location. If the Customer does not pay the Delivery Fee, the Customer shall collect the Goods from the Location within three Business Days of Dening & Co notifying the Customer the Goods are ready.

  5. Where Dening & Co are delivering the Goods, delivery is completed on the completion of unloading the Goods at the Location. Where the Customer is collecting the Goods delivery is completed on the completion of loading the Goods at the Location.

  6. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Dening & Co shall not be liable for any delay in delivery or any failure to deliver the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Dening & Co with adequate access to the Location to facilitate delivery, adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

  7. If Dening & Co 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.

  8. If the Customer fails to take delivery of the Goods within three Business Days of Dening & Co notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Dening & Co's failure to comply with its obligations under the Contract in respect of the Goods:

    1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Dening & Co notified the Customer that the Goods were ready; and

    2. Dening & Co shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

  9. If ten Business Days after the day on which Dening & Co notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, Dening & Co may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.

  10. If Dening & Co delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, Dening & Co shall make a pro rata adjustment to the invoice for the Goods.

  11. Dening & Co 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.

  12. Quality

    1. Subject to clause 5.2, Dening & Co warrants that on delivery, the Goods shall:

      1. conform with their description;

      2. be free from material defects in design, material and workmanship;

      3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

      4. be fit for any purpose held out by Dening & Co.

    2.  The Goods:

      1. are second hand;

      2. have been refurbished, so are subject to fair wear and tear;

      3. have not been tested to ensure they do not leak,  therefore no warranty or guarantee is provided that the Goods will not leak; and

      4. are sold as seen.

    3. Subject to clause 5.2, if:

      1. the Customer gives notice in writing to Dening & Co within two Business Days of delivery that some or all of the Goods do not comply with the warranty set out in 5.1;

      2. Dening & Co is given a reasonable opportunity of examining such Goods; and

      3. the Customer (if asked to do so by Dening & Co) returns such Goods to Dening & Co's place of business at the Customer's cost,

Dening & Co shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

  1. Dening & Co shall not be liable for the Goods' failure to comply with the warranty set out in 5.1 if:

    1. the Customer makes any further use of such Goods after giving notice in accordance with 5.3(a);

    2. the defect arises because the Customer failed to follow Dening & Co's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

    3. the Customer alters or repairs such Goods without the written consent of Dening & Co;

    4. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

    5. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

  2. Except as provided in this 5, Dening & Co shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in 5.1.

  3. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

  4. These Conditions shall apply to any repaired or replacement Goods supplied by Dening & Co.

  1. Title and risk

The risk and title in the Goods shall pass to the Customer on completion of delivery.

  1. Price and payment

    1. The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Dening & Co's published price list in force as at the date of delivery.

    2. Dening & Co may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

      1. any factor beyond Dening & Co's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

      2. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the specification; or

      3. any delay caused by any instructions of the Customer or failure of the Customer to give Dening & Co adequate or accurate information or instructions.

    3. The price of the Goods:

      1. excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Dening & Co at the prevailing rate, subject to the receipt of a valid VAT invoice; and

      2. excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

    4. Dening & Co may invoice the Customer for the Goods at any time prior to delivery. Dening & Co is under no obligation to perform its obligation under the Contract until payment for the Goods is received by it in full and cleared funds.

    5.  The Customer shall pay each invoice submitted by Dening & Co:

      1. within 7 days of the date of the invoice; and

      2. in full and in cleared funds to a bank account nominated in writing by Dening & Co, and time for payment shall be of the essence of the Contract.

    6. If the Customer fails to make a payment due to Dening & Co under the Contract by the due date, then, without limiting Dening & Co's remedies under 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this 7.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

    7. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

  2. Limitation of liability

    1. The restrictions on liability in this 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

    2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

      1. death or personal injury caused by negligence;

      2. fraud or fraudulent misrepresentation;

      3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

      4. defective products under the Consumer Protection Act 1987.

    3. Subject to 8.2, Dening & Co's total liability to the Customer shall not exceed the total charges paid for the Goods under the Contract to which the claim relates.

    4. Subject to 8.2, the following types of loss are wholly excluded:

      1. loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts;(d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of or damage to goodwill; and (g) indirect or consequential loss.

    5. This 8 shall survive termination of the Contract.

  3. Termination

    1. Without limiting its other rights or remedies, Dening & Co may terminate the Contract with immediate effect by giving written notice to the Customer if:

      1. the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

    2. if the Customer fails to pay any amount due under the Contract within 7 days of the due date for payment;

      1. the Customer 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), obtaining a moratorium, 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;

      2. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

      3. the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

    3. Without limiting its other rights or remedies, Dening & Co may suspend provision of the Goods under the Contract or any other contract between the Customer and Dening & Co if the Customer becomes subject to any of the events listed in 9.1(b) to 9.1(d), or Dening & Co reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.

    4. On termination of the Contract for any reason the Customer shall immediately pay to Dening & Co all of Dening & Co's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Dening & Co shall submit an invoice, which shall be payable by the Customer immediately on receipt.

    5. Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

    6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

  4. Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 30 days, the party not affected may terminate the Contract by giving 14 days' written notice to the affected party.

  1. General

    1. Assignment and other dealings.

      1. Dening & Co may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

      2. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 Dening & Co.

    2. Confidentiality.

      1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by 11.2(b).

      2. Each party may disclose the other party's confidential information:

        1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this 11.2; and

        2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

      3. Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

    3. Entire agreement.

      1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

      2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

    4. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

    5. Waiver. 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.

    6. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

    7. Notices.

      1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

        1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

        2. sent by email to the address specified in the Order.

      2. Any notice shall be deemed to have been received:

        1. if delivered by hand, at the time the notice is left at the proper address;

        2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

        3. if sent by email, the first Business Day after transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this 11.7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

      3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

    8. Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

    9. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

    10. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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