The text and expressions that follows will have the following meaning unless the context requires otherwise:
“Additional Charges” means the costs of shipping goods; any extra packaging, any taxes, duties or other charges levied by any authority or governmental in respect of, or by the reason of sale, delivery, export or import of the Goods; shipping and messenger costs, in addition to the Price or Full Price;
“Contract” means the agreement of sale and purchase of the Goods which is entered into between the Company and the Customer after the Effective Date; “the Company” means Gem Imports Limited (Registered No 7329987) whose registered office is at Unit A, Capitol Way, Dodworth, Barnsley, S75 3FG , trading as Gem Imports Ltd. “the Customer” means the individual, registered firm or company that has accepted these Terms and holds a business account with the Company;
“Effective Date” means the date which an order is placed with the company in person, on the website (www.gem-imports.co.uk), by email or by fax;
“Force Majeure” means circumstances that are beyond the control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, food, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials;
“Price” means the cost for the Goods as specified in the Price List, on the Company’s website or within a written quotation from the Company;
“Goods” mean the products ordered by the Customer to be supplied by the Company pursuant to these Terms;
“Order” the individual order for Goods placed by the Customer and fulfilled by the Company subject to these Terms.
“Price List” means Company’s current price list for the Goods;
“Restricted Information” means any information which is disclosed to each party by the other party pursuant to or in connection with the Contract (whether orally or in writing, and which is expressly stated to be confidential or marked as such);
“Terms” means these terms and conditions.
2.1 These Terms shall apply to the sale by the Company of all Goods purchased by the Customer and these Terms shall govern each Contract to the exclusion of any other terms and conditions introduced or submitted by the Customer.
2.2 No variation of these Terms can be given by any of the Company’s employees unless authorised in writing by an signatory of the Company.
2.3 Any tenders or quotations may not constitute any offer and each Contract shall be made when the Company acknowledges the order placed by the Customer and not before.
2.4 Unless confirmed by the Company in writing, the Company’s employees or agents are not authorised to make any representations concerning the Goods. In entering into each Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed save that nothing in this Clause excludes the Company’s liability for fraudulent misrepresentation.
3.1 The price for Goods ordered by the Customer shall be the Price relevant to the ordered Goods as stated in the Price List, on the website or within a written quotation, and will be current as at the date of order.
3.2 If any increase howsoever arising in the Price including but without being limited to any increase in the costs of manufacturing, raw materials, labour or transportation occurs after such date, the Company shall be entitled (subject to any statute or regulation) to make such addition to the Price as shall be reasonable in the circumstances.
3.3 All Prices displayed are exclusive of VAT which will be charged at the rate in force at the time of dispatch.
3.4 A minimum order value of £500.00 net applies to each UK mainland order, this is before VAT and delivery. Carriage is free on orders over £500 for UK mainland and free on Orders over £1000 for rest of UK. The cost of carriage for Orders to other countries is based on the delivery location and the Order size.
4.1 The Company shall be entitled to invoice the Customer for the Goods ordered on or at any time after dispatch of the Goods or any instalment thereof.
4.2 The Customer shall make payment for the Price and any Additional Charges in sterling.
4.3 Any payment received by the Company in any other currency will not be deemed to be payment for the goods in question
4.4 Payment of the invoice shall be due and payable without any set-off or other deduction within the specified number of days, as stated in the Customer’s Credit Agreement and on the Invoice issued at time of dispatch.
4.5 In the event that the Customer fails to pay any invoice from the Company by the due date then, without prejudice to any other right or remedy available to the Company, all invoices issued to the Customer by the Company in respect of any Goods sold or supplied pursuant to these Terms shall immediately fall due for payment and any credit offered or extended by the Company to the Customer in respect of the same shall be cancelled forthwith.
4.6 If the Customer fails to pay any invoice on or before the due date then, without prejudice to any other right or remedy available to the Company:
(i) the Company shall be entitled to withhold delivery of any outstanding orders for Goods or any instalment thereof (being the subject of the Contract or any other contract) until the Price and any Additional Charges are paid in full; and
(ii) the Company shall be entitled to terminate the credit account of the Customer upon notice to the Customer in writing.
5.1 Any samples, drawings, descriptive matter, or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues, on the website or in 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.
5.2 To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 5.2 shall survive termination of the Contract.
5.3 The Company reserves the right to amend the specification of the Goods or if required by any applicable statutory or regulatory requirements.
5.4 The Customer is responsible for ensuring that they provide the Company with full and accurate delivery details. The Company will not be liable for any mis-delivery arising out of incorrect information provided. Orders received by 12 noon and on a weekend will be dispatched the following working day.
5.5 Delivery times are not binding. Goods supplied will normally be delivered within the following number of working days from dispatch:
(a) mainland UK within 48 hours
(b) UK Highlands and offshore Islands within 3-5 working days
(c) Europe within 10-14 working days
5.6 Deliveries are made by a tail lift lorry, and the Customer must ensure that there is suitable access to be able to stop and unload safely. The Customer must be available to sign for and unload the delivery. Deliveries must be signed for by someone aged 18 or over.
5.7 In the event of a failure to accept any delivery by the Customer, otherwise than by reason of the Company’s fault or by reason of Force Majeure, the Price and any Additional Charges shall immediately become due for invoice in accordance with clause 4.1 and the Company shall be entitled to store the Goods until actual delivery and charge the Customer for the reasonable costs of storage (including insurance), the Goods being held at the Customer’s risk.
5.8 Collection is free of charge from the Company’s distribution centre and must be pre-arranged by contacting the Company and organising an appropriate time. Orders must be collected within 72 hours of the Effective Date.
5.9 The Company shall have the right to deliver Goods in instalments.
6.1 The Company does not accept returns of non-faulty items.
6.2 Any shortages must be reported to the company within five working days. All claims shall be deemed to be waived and absolutely barred if they fall outside these timescales.
6.3 Orders received are processed immediately on the Effective Date, therefore Customer’s cannot cancel or amend an order once placed.
7.1 Risk of damage to or loss of the Goods shall pass to the Customer at the time of delivery to the address provided by the Customer to the Company when the order is placed, or some other such address as may be agreed between the parties from time to time, save in the following situations:
(a) if the Customer wrongfully fails to take delivery risk shall pass to the Customer at the time when the Company has tendered delivery of the Goods;
(b) if the Company is not responsible for the delivery of the Goods risk shall pass at the point when the Customer or a representative of the Customer collects the Goods from the Company’s place of business as specified in the Order.
7.2 Title of the Goods shall not pass to the Customer until the Company has received in full in cleared funds all sums due to it in respect of the Goods and all other sums which are or which become due to the Company from the Customer on any account.
7.3 Until such time as the title in the Goods passes to the Customer if Goods are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for the Company.
7.4 The Customer shall be entitled to resell or use the Goods in the ordinary course of business before ownership has passed.
7.5 Until such time as the title in the Goods passes to the Customer, the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or said party where the Goods are stored and marked, identify and repossess the Goods.
8.1 This Contract with immediate effect will be terminated by giving notice to the other party if:
(i) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified to make such payment;
(ii) the other party commits a material breach of any other term of this agreement and fails to remedy that breach within a period of 14 days after being notified to do so;
(iii) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(iv) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(v) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company); or
(vi) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company).
8.2 The termination of this Contract howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued due prior to termination. The provisions in this Contract which expressly or implied have effect after termination shall continue to be enforceable.
9.1 The Company shall use reasonable endeavours to maintain complete and up to date records and documentation in connection with its obligations under this Contract. The Company shall allow the Customer to inspect such records and documentation at all reasonable times on request
9.2 If the Company is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it shall immediately notify the Customer in writing enclosing a copy of the Recall Notice. If required the Customer agrees to undertake a product recall or withdrawal in accordance with the Company's instructions as to the process of implementing the withdrawal.
10.1 To the extent possible the Company shall transfer any manufacturer’s warranty applicable to any Goods purchased under this Contract to the Customer.
10.2 If the Customer considers any Goods purchased under this Contract to be faulty or not fit for purpose, the Customer must notify the Company in writing within 48 hours of receipt of the Goods, the Customer must provide full details of the Order, the defect, the delivery date and all other relevant information.
10.3 At the Company’s request, the Customer will return the defective Goods to the Company, at the Company’s expense.
10.4 Unless expressly provided in these Terms, all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. The Company makes no warranty as to the fitness of the Goods for any particular purpose even if that purpose is stated in the Customer’s Order. The Customer must satisfy themselves as to the fitness of the Goods for the purpose for which they are intended.
10.5 In the event of any claim being made by the Customer, the Customer shall give the Company a reasonable opportunity to inspect the Goods and liability will not be accepted unless this procedure is followed.
10.6 Where any valid claim in respect of the Goods is made by the Customer the Company shall be entitled to replace or repair the Goods (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Customer the Price of the Goods (or a proportionate part of the Price), the Company shall have no further liability to the Customer.
10.7 Nothing in these Terms excludes or limits the liability of the Company for death or personal injury caused by the negligence of the Company or for fraud or fraudulent misrepresentation or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.8 Except as expressly provided in Clauses 10.6, 10.7 and 10.9 the Company’s liability in connection with the sale of Goods shall be as follows
(i) in respect of physical damage to or loss of the Customer’s tangible property to the extent that it results from the wilful default or negligence of the Company, its employees, agents or contractors, the Company’s liability shall be limited to an amount of £50,000 in respect of each incident or series of connected incidents; and
(ii) in respect of all other direct loss (either in contract, tort or otherwise) the Company’s total liability under these Terms shall not exceed the lower of the purchase price of the Goods or the cost of replacing the Goods with the same or nearest comparable product at the time of the claim; and
(iii) in respect of any loss or goodwill or for any type of consequential, special or indirect loss or damage, the Company’s liability shall be nil.
10.9 The Company shall not be liable to the Customer nor be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations, if the delay or failure was by reason of Force Majeure. The parties further agree that if the event of Force Majeure continues for a continuous period of 30 days, the Customer shall be entitled to give notice in writing to the Company to terminate the contract
10.10 Any claim by the Customer under this Clause 10 shall not entitle the Customer to withhold or delay payment in respect of any other Goods in respect of which no such claim has been made whether or not those Goods form part of the same consignment.
11.1 Except as provided elsewhere in these Terms each party shall at all times throughout the duration of the contract and after its termination:
(i) use its reasonable endeavours to keep all Restricted Information confidential and accordingly not to disclose any Restricted Information to any other person; and
(ii) not use any Restricted Information for any purpose other than the performance of the obligations under the contract.
11.2 Any Restricted Information may be disclosed by the parties to:
(i) any governmental or other authority or regulatory body; or
(ii) any employees of either party, to such extent only as is necessary for the purposes contemplated by the parties, or as is required by law and subject in each case to each party using its reasonable endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.
11.3 Any Restricted Information may be used by the parties for any purpose, or disclosed by the parties to any other person, to the extent only that it becomes, public knowledge through no fault of the parties (provided that in doing so the disclosing party shall not disclose any Restricted Information which is not public knowledge); or it can be shown by the disclosing party, to the reasonable satisfaction of the other party, to have been known to disclosing party prior to its being disclosed to it by the other party.
12.1 Cumulative Rights and Remedies
Except as expressly provided under this Agreement, the rights and remedies contained in this Agreement are cumulative and not exclusive of any other rights or remedies provided by law or otherwise.
12.2 Assignment and other dealings
(a) The Company may at any time assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Contract without the prior written consent of the Company.
(c) Any subcontracting shall not relieve the Company of its obligations under this Agreement and any act or omission of any subcontractor shall be deemed to be the act or omission of the Company.
Any notice given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office and shall be sent by a certified or registered mail delivery service. A notice shall be deemed to have been received at the time that the relevant delivery receipt is signed.
If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified or deleted to the minimum extent necessary to make it valid, legal and enforceable. 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 this Contract.
A waiver of any right or remedy under this 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 this Agreement or by law shall constitute a waiver 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
12.6 No partnership or agency Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose.
12.7 Third party rights
No one other than a party to this Contract shall have any right to enforce any of its terms.
12.8 Entire Agreement
This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements in relation to the Goods and the Services.
12.9 Governing Law & Jurisdiction
This 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 subject to the exclusive jurisdiction of the courts of England and Wales and shall be governed by, and construed in accordance with the law of England and Wales.
Gem Imports Ltd
Unit A, Capitol Way