Conditions of Sale
In these conditions of Sale “the Seller” means SWD Premier Clothing Exports Ltd, “Order Acknowledgement” means the Seller’s Proforma Invoice, “the Buyer” means the person, firm or company named as “the Buyer” in the Proforma Invoice and “the goods” means the goods which are the subject of the Order Acknowledgement. The agreement warranties condition representations and other terms set out in the Proforma Invoice and in these Conditions are together referred to in these Conditions as “the Agreement for Sale”.
2. The Agreement
These conditions shall be deemed to be incorporated in all agreements, from time to time, entered into between the Seller and the Buyer which provide for the sale of any goods by the Seller to the Buyer. These conditions shall apply in place of and prevail over any terms or conditions contained or referred to in the Buyer’s order or in correspondence or elsewhere or implied by trade custom, practice or course of dealing unless specifically agreed to in writing by the Seller and any purported provisions to the contrary are hereby excluded. The agreement for sale represents the complete agreement between the Seller and the Buyer with regard to the goods and contains all agreements, warranties, conditions, representations and other terms agreed, made, or replied upon by the either party in connection with the goods. No amended or addition to the agreement for sale shall be binding on the Seller unless agreed in writing (by and authorised representative of the Seller). All buyers who place their order over the telephone, email, personal discussion or by any other means and who have not placed formal purchase order and/or have failed to place a purchase order due to whatsoever reason, in this case, Seller’s proforma invoice, will be treated as purchase order and purchase confirmation.
3. Offers and Supply of Information
3.1 The Seller’s price lists and quotation do not constitute offers made by the Seller (unless they are expressed to be fixed quotations remaining open for a specified period) and the Seller reserves the right to withdraw or revise the same at any time prior to the Proforma Invoice/Order Acknowledgement.
3.2 No offer, obligation or agreement relating to the sale of the goods is binding on the Seller unless set out in the Agreement for Sale or in an amendment or addition thereto duly agreed in writing to the Seller.
4.1 The prices for the goods shall be as set out in the Proforma Invoice, subject as hereafter provided.
4.2 The Seller reserves the right, by written notice, given to the Buyer before delivery of the goods to vary the price of the goods to take into account increases in costs including (without limitation) the costs of any material, carriage, labour or overheads, the increase or imposition of any tax, duty or other levy and any variation in exchange rates.
5. Custom Duties and Taxes
All customs and excise duties, import or export duties and all other taxes, tariffs and surcharges of any nature whatsoever now or here after levied or imports in any country or territory, either directly or indirectly in respect of the sale, supply, delivery or use of the goods or payment for them or upon freight or other charges will be borne by the buyer and except stated in the order acknowledgement are additional to the prices there in stated.
6. Payment Terms
6.1 Except as otherwise specified in the Proforma Invoice or in this condition payment for the goods shall be due in full prior to delivery.
6.2 Incase of any export sale payment of the price of the goods shall be effected in advance into our bank account.
6.3 Incase agreed by the Seller to load goods with partial agreed deposit, the Seller will charge 5% additional finance charges onto the full invoice. This will include 30 days credit. After 30 days, interest will be charged at the rate of 24% and or 2% per month.
6.4 In the event of any payment (exports or local) becoming overdue (and without prejudice to any other right the Seller may have) the Seller shall be entitled to charge interest at the rate of 24% per annum (2% per month).
6.5 The Seller reserves the right to suspend delivery or cancel any allowance or further credit or require full or partial payment of the price of the goods prior to delivery or the provision of security for payment by the Buyer in a form acceptable to the Seller. If the Seller, at his discretion at any time, considers the financial circumstance of the Buyer to have ceased to justified the terms allowed or if the Buyer or any associate company there off is in default of any contract with the Seller.
7.1 Unless and otherwise expressly provided in the order acknowledgement, all sales are ex works (Inco terms 1990) and delivered the goods to the carrier shall constitute delivery to the Buyer and from the point in time immediately proceeding loading goods, shall be at the Buyers risks.
7.2 Where the Proforma Invoice provides that the goods are sold on CIF or FOB or on the basis of any other international trade items, listed by international chamber of commerce in Inco terms, 1990, the meaning of such terms shall be as set out in Inco terms 1990 as revised from time to time save where inconsistent with the provisions contained in these conditions. Section 32(3) of the sale of goods act 1979 shall not apply to the agreement of sale.
7.3 Any period or date for delivery stated in the agreement for sale is intended as an estimate only and is not an contractual commitment. The Seller should not be liable for any damages, losses arising out of delay.
7.4 If the Buyer refuses or fails to take delivery of the goods tendered in accordance with the agreement for sale or fails to take any action necessary on its part of delivery or shipment of the goods, the Seller shall be entitled to terminate the agreement of sale with immediate effect to dispose of the goods as the Seller may determined and to recover from the Buyer any loss or additional cost as incurred as a result of such refusal or failure and in any event to retain any payment made prior to such refusal or failure.
7.5 If the Buyer requests postponement of delivery beyond the estimated delivery date and the Seller agrees to such postponement, the Seller, at its options excisable by notice to the Buyer, treats the risk as having passed to the Buyer and store the goods at the Buyers expense (but without any liability).
7.6 At the request of the Buyer, the Seller shall as an agent for the Buyer, arrange for carriage and transport insurance to the destination specified in the Buyers order on such terms as to carriage and insurance as a Seller considers appropriate, unless the Buyers specifies otherwise, and the Seller shall invoice the Buyer all carriage and insurance costs incurred, section 32(2) of The Sale of Goods Act 1979 shall not apply to the agreement of sale.
8. Instalment and/or Partial Deliveries
The Seller may deliver the goods in one or more instalments. Where delivery is affected by instalment or in part, each instalment or partial deliveries shall be treated as a separate contract. Failure by the Seller to make any delivery or part delivery in accordance with the agreement for sale or any claim by the Buyer in respect of such delivery or part delivery shall not entitle the Buyer to reject the balance of the goods agreed to be purchased by the Buyer.
All goods sold by the Seller shall be subject to reasonable commercial variations other than where specifically agreed to the contrary by the Seller in writing and the Seller shall have the right to bill for the quantity of goods actually dispatched.
10. Passing of Property
10.1 The goods shall remain the property of the Seller as legal and equitable owner and no property in or title to the goods shall pass to the Buyer until their full prices have been duly paid to the Seller together with the full price of any goods the subject of any other contract with the Seller. Until payment is received in full, the Buyer shall store the goods in such a way as to enable them to be identified as a property of the Seller and shall not sell or encumber the goods in any way.
Failure to pay the price for the goods and that of such other goods referred to the above when due shall, without prejudice to any other remedies the Seller may entitle the Seller to repossess the goods or so much there of as the Seller may determine from any premises where they may be. For the purpose of repossessing the goods or any part there off the Buyer hereby grants an irrevocable license to the Seller, its employees or agents to enter upon such premises and the buyer shall pay the seller the cost of removal and transport of the goods or any part there off.
10.2 The Buyer may process or incorporate the goods in or with any other product provided that any new product manufactured or containing the goods shall become the sole and exclusive property of the Seller and shall be separately stored and marked so as to be identifiable as being manufactured or as containing the goods which are the property of the Seller.
10.3 Notwithstanding the provision of this condition 10, the Seller shall be entitled to bring any action against the Buyer for the price of the goods in the event of non-payment by the Buyer, by the due date, as if the property in the goods had already passed to the Buyer or shall have the right by notice in writing to the Buyer at any time after the agreed delivery date to pass the property in the goods to the Buyer as from the date of such notice.
11. Statutory Liability
Nothing in the conditions shall be interpreted as excluding or restricting any legal liability of the Seller for death or personal injury resulting from the negligence of the Seller, its employees, agents or subcontractor or restricting any of the seller’s legal obligations arising under section 12 of The Sale of Goods Act 1979 or under The Consumer Protection Act 1987.
12. Right of Inspections and Quality of Goods
The originals and/or raw materials we use are of UK origin.
At any given time with prior appointment, the Buyer can visit us while their sorting is in process to inspect the goods prior to delivery.
Under any circumstances, we shall not be liable, responsible nor any compensation will be given or credit note will be issued.
The goods are therefore sold as seen with faults and imperfections and without prejudice the generality of the foregoing (irrespective of whether the buyer has exercised its right to inspect the goods) all conditions, warranties, terms, undertaking and obligations implied by statue, common law, customs, trade usage or otherwise (including without prejudice to the generality of the foregoing any implied condition, warranty or undertaking as to correspondence of the goods with any description given or sample supplied, merchantable quality or fitness any particular purpose) are hereby wholly excluded.
13. Limitation of Damages
13.1 The Seller shall be under no liability to the Buyer for any damages or losses, direct or indirect, resulting from defects in materials or from any act or default of the Seller, whether negligent or otherwise.
13.2 The Seller shall have no liability for any indirect or consequential losses or expenses suffered by the Buyer, however caused, including but not limited to loss of anticipated profits, goodwill, reputation, business receipts or contracts or losses or expenses resulting from third party claims.
13.3 Subject to Condition 11 the seller’s aggregate liability to the buyer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the cost of the goods which give rise to such liability in respect of any occurrence or series of occurrences.
The price of the goods is determined on the basis of the limits of liability set out in these conditions of sale. The Buyer may prior to the agreement for sale coming into being by written notice to the Seller, request the Seller to agree to a higher limit of liability (provided insurance cover can be obtained therefore in return for a higher price for the goods.
15. Force Majeure
15.1 The Seller shall have no liability in respect of any failure or delay in fulfilling any of the Seller’s obligations to the extent that fulfilment thereof is prevented, impeded and/or delayed or rendered uneconomic as a consequence of any circumstance or event beyond the Seller’s reasonable control including without prejudice to the generality of the foregoing :
15.1.1 Compliance with any order, regulation, request or control of any national or local authority, government department or other competent authority of any country whether or not legally enforceable, or
15.1.2 Any strikes, lock-outs or trade disputes whether involving the Seller’s employees or other, fire explosion, accident, breakdown of plant machinery, calamity or civil disturbance, action of the elements, national calamity, war, riot or act of God.
15.2 The Seller undertakes, however, to make every reasonable endeavour within its power to overcome difficulties arising in connection therewith but in the event of shortages of the events or circumstances referred to in condition 15.1, the Seller reserves the right to allocate as it may think fit the goods available and resources between customers with whom it has contractual obligations in respect thereof and shall not be obliged to purchase the goods from third parties to make good such shortages.
15.3 In the event of any deliveries by the Seller being delayed on account of any of the foregoing, the period for delivery shall be correspondingly extended provided that if deliveries are delayed for six months or more the Seller may, as its option, exercisable by notice in writing to the buyer, either terminate the agreement for sale or elect not to deliver any undelivered goods without liability in either case. Save that the Seller shall in such event refund an equitable proportion of the price/advance payment for the goods without interest.
The Buyer shall meet the cost of any special packaging requested by the Buyer or any packaging rendered necessary by delivery by any means other than the Seller’s normal means of delivery.
If any license of consent of any government or other authority shall be required for the acquisition, importation, carriage, storage or use of the goods by the Buyer, the Buyer shall obtain the same at its own expense and, if necessary, produce evidence of the same to the Seller on demand. Failure to do shall not entitle the buyer to withhold or delay payment of the price.
The Buyer shall not assign or otherwise transfer all or any of its rights, interest or obligations under the agreement for sale without prior written consent of the seller. Any, or all, of the Seller’s rights or obligations under agreement for sale contract may be assigned by the Seller and the Buyer shall not assert against an assignee any defence (other than actual payment) set off or counterclaim which the Buyer may have against the Seller.
The rights of the Seller shall not be prejudice or restricted by any indulgence or forbearance extended to the Buyer and no waiver of any breach shall operate as a waiver of any subsequent breach.
The heading of these conditions of sale do not form part of the conditions and shall not affect the interpretation thereof.
If any losses of these conditions of sale or any part is held to be invalid for any purpose it shall for that purpose be deemed to have been omitted but shall not prejudice the effectiveness of the rest of these conditions of sale.
Any notices hereunder shall be deemed to have been given if delivered by hand or sent by prepaid first class post or fax or email (confirmation by telephone and followed by notice by registered post) to the party concerned at its last known address and deemed to have been received on the date of despatch, if delivered by hand or sent by fax and on the third day after posting, if sent by post.