Terms and Conditions
Basis of Sale
Any order placed with Toshie Mackintosh Limited (‘The Seller’) for the purchase of printed textiles or other products shall be made subject to the following terms and conditions. These terms and conditions will form part of any sale/purchase contract between the Seller and any buyer will be binding on both parties. In the event of any conflict between these terms and conditions of contract and any terms and conditions provided by the buyer, these terms and conditions shall take precedence over any others.
Orders and Specifications
o Any order placed with the Seller will not be binding on the Seller until they have accepted it, either orally, in writing, from the website, by email or by their conduct. Until an order has been accepted in this way there will be no contract of sale/purchase between the parties.
o It is the buyer’s responsibility to ensure that the details of the order submitted by them are accurate in every respect. The Seller must comply fully and accurately with each order they accept (subject to normal trade tolerances). Any inaccuracies in any order placed by the buyer will be the responsibility of the buyer alone. The Seller will have total discretion as to whether or not they will agree to a change in the terms of the order once it has been submitted to them by the buyer.
o The specifications and colour of the goods supplied by the Seller will be as shown in the sample books provided by them (subject to normal trade tolerances) or as detailed on the website. Samples can be pre ordered from the website to check specification and/or colour.
o The Seller reserves the right to make any changes required by law to be made to the specification of the goods they supply.
o The buyer cannot cancel an order once it has been accepted by the Seller unless the Seller agrees to its cancellation. If the order is cancelled the buyer must pay the Seller all losses (including loss of profit), expenses, costs and charges incurred by the Seller as a result of the cancellation.
Price of The Goods
The price or prices quoted in the seller’s order acceptance will be final in relation to all orders accepted for a delivery date within two months from the date of order. Prices for delivery beyond this two month limit may at the option of the Seller be subject to review to reflect increases in the cost of textile, fibre, base cloth and fabric or other items or materials required for the manufacture of the goods. The quoted prices shall be adjusted by an amount which fairly represents the increase in the costs of the seller. The buyer accepts that any order is subject to the availability of any material which may be required to fulfil it.
You are required to provide debit/credit card details when placing an order as the Seller is entitled to payment for the Goods before commencing delivery of the Goods. If you fail to make payment for the Goods the Seller will be entitled to cancel the contract or suspend delivery of the Goods to you until payment is made in full.
For Trade customers, if previously agreed with the Seller, the Buyer may be invoiced for the goods and must pay for the goods in full within 28 days of the date of the Seller’s invoice or as otherwise agreed between the Seller and the Buyer in writing. The buyer shall not be entitled to make any retention or set-off in relation to any payment due. The Seller will be entitled to payment of the price within that period even where the goods have yet to be delivered to the buyer and are not yet the property of the buyer. The buyer will only be issued with a receipt for the price of the goods if one is requested.
The Sellers’ quoted process do not include any duty or tax (including VAT)payable on the price either in the United Kingdom or other country of destination of the goods. Any such tax payable must be paid in addition to the Seller’s quoted prices.
Where payment for the goods is not made within the 28 day period referred to above, the seller shall have the right to do any or all of the following things:
o Cancel the contract or suspend any further deliveries to the buyer
o Sue the buyer for payment of the purchase price, even if the goods have not yet been delivered to the buyer: and
o Charge interest at a rate of 2% above the Bank of England’s base lending rate on any part of the purchase price which has not yet been paid at the end of the 28 day period. The interest will be charged from the date of the invoice.
o Delivery of the Goods. The point of delivery shall be at the earliest of the following events:
o Delivery of the goods to the buyer at the buyer’s home, business premises or any other place agreed between the parties by the seller or their carriers, agents, employees or other representative.
o Collection of the goods from the Seller at their business premises or any other place agreed between the parties by the buyer or its carrier or representative.
o Delivery dates are approximate only. The Seller accepts no responsibility for late delivery of the goods regardless of the reason for the delay unless agreed otherwise in advance with the buyer in writing. Late delivery of the goods will not amount to a breach of the purchase/sale contract unless the Seller and buyer have agreed otherwise in advance in writing.
o Where delivery of an order is made in instalments, the delivery of each instalment will be treated as a separate contract. The failure to deliver one or more of the instalments in line with these conditions of sale shall not have any effect on the contracts to deliver the other instalments. The buyer shall still; be bound to complete the contracts in respect of the other instalments.
o The Seller only accepts responsibility for failure to deliver the goods (or an instalment of the goods) where the failure is within the Seller’s reasonable control and is no fault of the buyer. The Seller’s liability will be limited to the extra cost to the buyer of replacement goods (in the cheapest available market) over and above the price agreed for the order between the seller and the buyer.
o If the buyer fails to take delivery of the goods or fails to give the seller adequate delivery instructions prior to the stated delivery date, the seller will be entitled to do the following things (in addition to any general rights afforded to the seller by law):-
Store the goods until delivery and charge the buyer the reasonable cost (including insurance) of storage.
Sell the goods at the best available price; after deducting the reasonable expenses of storing and re-selling the goods. The Seller will then be entitled to recover from the buyer any shortfall between the residue of the re-sale price and the price originally agreed with the buyer – any surplus over the price originally agreed will be returned to the buyer.
o The delivery date, terms of delivery, colour, design or any other particulars necessary for the manufacture and delivery of the goods must be specified by the buyer in reasonable time to allow the Seller to fulfil his obligations under the purchase/sale contract on time.
o Where no specific delivery dates are stated in a contract sufficient particulars necessary for the manufacture and delivery of goods must be provided by the buyer to enable the goods to be delivered to the buyer within three months of the order date. If the buyer does not provide the necessary particulars the Seller shall be entitled to treat the contract as cancelled and claim damages from the buyer. The Seller will not be required to give the buyer written notice of its intention to treat the contract in this way.
o If no date of delivery is specified in the order the goods will be despatched as and when available. In the event of the buyer requesting a delay in delivery the goods will not be held in stock longer than one month from the date of such a request, after which they will be despatched to the buyer. The buyer will be bound to pay charges for the cost of storage of the goods in addition to the purchase price.
o Disclaimer of Liability
The Seller will make all reasonable efforts to carry out the terms of the purchase/sale contract but no liability will be accepted in respect of deliveries delayed or suspended as a result of any act of God, War, Flood, Strike, Lock-out, Breakdown, Accident, Government Control or Restriction of Supplies for industry or any other Industrial Action or any other circumstance beyond the direct or indirect control of the Seller which prevents or delays the performance of the Seller’s obligations under the purchase/sale contract. In the event of the above contingencies arising, the Seller shall be entitled to suspend deliveries under the purchase/sale contract.
7. Risk and Property
7.1 The legal title to any goods supplied to the buyer shall remain with the Seller until full payment is received In cash or cleared funds for the goods and all other goods agreed to be sold by the Seller to the buyer for which payment is then due.
7.2 Notwithstanding that the legal title to the goods may not have passed to the buyer, the risk in the goods shall pass to the buyer on delivery (as defined in clause 5.1 above).
7.3 Until the legal title to the goods has passed to the buyer, the goods must be kept separate from the buyer’s other goods and marked as the property of the Seller.
7.4 The buyer shall be bound to insure goods supplied by the Seller in the joint names of the buyer and Seller from the date of delivery of the goods (as defined in clause 5.1) until the date of payment in full for the goods by the buyer to the Seller. The insurance proceeds will be credited to the Seller in the event of goods being damaged or destroyed while in the custody of the buyer prior to full payment being received by the Seller for the goods.
7.5 The Seller retains the right to sue the buyer for the unpaid price of the goods for which payment in full has not been made if the goods are damaged or destroyed while in the custody of the buyer. The Seller will have this right even though the ownership of the goods has not yet passed to the buyer.
7.6 The Seller can enter the buyer’s premises and repossess the goods from the buyer at any time until the ownership of the goods passes to the buyer, provided the goods still exist and have not yet been resold by the buyer in the ordinary course of the buyer’s business.
8. Warranties and Liability
8.1The Seller warrants that the goods shall comply with the specifications referred to in the order by the buyer and/or samples supplied by the Seller and approved by the buyer. All other expressed and implied conditions or warranties (statutory or otherwise) as to the quality or fitness for any purpose of goods or as to any ancillary service provided by the Seller are hereby excluded to the full extent permitted by Law except in the following circumstances:-
– where these conditions expressly provide to the contrary;
-where the goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977.)
8.2 Where the goods are sold under a consumer transaction (as defined by the Consumer Transaction(Restrictions on Statements) Order 1976) the statutory rights of the buyer are not affected by these conditions.
8.3 Where goods supplied by the Seller comply with the Seller’s standard specification for such goods and/or samples supplied by the seller and/or the specification requested by the buyer, the buyer shall indemnify the Seller fully from and against all costs expenses and loss or damage arising out of claims made against the Seller arising out of part 1 of the consumer Protection Act 1987 and any amendment thereto or re-enactment thereof in relation to the goods or other goods in which the goods are processed mixed or incorporated.
8.4 The Seller will be liable to the buyer in respect of fraudulent representations only. The seller will have no liability under any implied warranty, term, common law duty or obligation under the purchase/sale contract for any indirect, special or consequential loss (including loss of profit) or damage, costs, expenses, claims or compensation whatsoever arising from the supply of goods or their use or resale by the buyer. The Seller’s liability in connection with the purchase/sale contract will be limited to the price of the goods supplied to the buyer, except where the contract specifically provides otherwise. In particular and without prejudice to the foregoing the Seller shall not be liable for any losses arising from the buyer’s plant or machinery standing idle due to late delivery of the goods.
8.5 Claims arising out of damage, delay or partial loss of goods in transit must be made in writing to the Seller and to the carrier to reach them within three days of delivery. Claims for non-delivery must be made in writing to the Seller and to the carrier to reach them within twenty eight days of the buyer being notified of the despatch of the goods. It is the responsibility of the buyer to examine the goods on receipt. It is not sufficient to state “conditions unknown”, “not examined” etc.
8.6 Any defect in the goods or difference from the specification of the order must be notified to the Seller within 7 days of the date of delivery. This applies regardless of whether the buyer refuses to take delivery of the goods. Where the defect or difference from the specification would not be apparent on reasonable inspection of the goods, the buyer must notify the Seller of the problem within a reasonable period after the buyer becomes aware of it. If the buyer accepts delivery of the goods and does not notify the Seller as above, the buyer will be bound to pay the price as if the goods had been delivered satisfactorily and the Seller will have no liability for the defect or lack of specification. Where the buyer does notify the Seller of the defect or lack of specification within the required time limit, the Seller can either replace the goods free of charge or refund the purchase price to the buyer. The Seller will have total discretion as to whether a replacement or refund is given in any individual case.
8.7 Where goods supplied to the buyer by the Seller have been treated or processed in any way or incorporated into other products or items, the Seller will have no liability either for any defect in the goods or in respect of any damage or loss incurred by the buyer in respect of the goods.
8.8 The Seller will have no liability for any alleged defect in the goods where the buyer fails to intimate the defect to the Seller within three days of discovering it or within two months of delivery of the goods (whichever is earlier). The Seller will also have no liability where the alleged defect is incapable of being discovered before the goods have entered any further process of manufacture.
8.9 All claims of alleged defects in the goods must be submitted in writing to the Seller with full details and adequate samples. Opportunity for inspection must be afforded to the Seller’s representatives.
8.10 The buyer must notify the Seller of any latent or hidden defects in the goods supplied within three days after receipt of goods or immediately after discovery of the latent or hidden defect (whichever is earlier). Treatment or processing of the goods must be stopped immediately after discovery of the alleged defects unless either the treatment or processing will prevent an extension of the alleged damage, or the Seller has expressly given its consent to continuation of the treatment or processing by the buyer.
8.11 All further claims for damages howsoever arising are hereby expressly excluded.
9.Health and Safety
9.1It is the buyer’s responsibility to ensure that applicable Health and Safety Regulations are observed and other appropriate steps are taken in relation to the storage, handling and use of the goods. Where the buyer is supplied with data sheets, fire certificates and/or leaflets containing information on potential hazards relating to the goods, the buyer must bring such information to the attention of its employees. The buyer hereby indemnifies the Seller fully for and against all costs, expenses, loss and damages arising out of claims made by employees, agents, sub-contractors, customers and all visitors of the buyer in relation to any hazards or other matters referred to in any data sheets, fire certificates or leaflets supplied.
9.2 Without prejudice to condition 9.1, it is the buyer’s responsibility to provide safe storage facilities for the goods. The buyer warrants that it will comply with the requirements of all competent authorities relating to the storage of goods. The buyer undertakes to observe any statutory provisions or government regulations applicable to the storage of the goods.
9.3 Insolvency of Buyer
In the event of the buyer becoming insolvent or bankrupt or signing a Trust Deed for Creditors or appointing a Receiver or Liquidator or ceasing or threatening to cease its business, the seller will have the following rights:-
The right to suspend all deliveries of goods to the buyer and cancel the purchase/sale contract and any other contract between the Seller and the Buyer without liability to the buyer.
If the goods have been delivered but not paid for, the price shall become immediately due and payable, regardless of the previous arrangements between the parties for payment.
These rights are completely without prejudice to any rights and claims the Seller may have against the buyer in respect of deliveries already made.
11.1 If a claim is made against the buyer to the effect that the goods or their use or their resale infringes any patent, trade mark, copyright or intellectual property of any person, then subject to the following provisons the Seller indemnifies the buyer against all loss, damages, costs and expenses incurred by the buyer in connection with the claim provided always that:-
The Seller is given full control of any proceedings or negotiations in connection with any such claim.
The buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations.
Except pursuant to a final award, the buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (whose consent shall not be unreasonable withheld)
The buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the buyer recovers any sums under any such policy or cover (which the buyer shall use its best endeavours to do).
11.2 The Seller shall be entitled to the benefit of, and the buyer shall accordingly account to the seller for, all damages and costs (if any) awarded in favour of the buyer which are payable by, or agreed with the consent of the buyer (which consent shall not be unreasonable withheld) to be paid by any other party in respect of any such claim.
11.3Without prejudice to any duty of the buyer at common law, the Seller shall be entitled to require the buyer to take such steps as the seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the buyer under this cause.
However the Seller will not be required to indemnify the buyer where the claim against the buyer arises from the use of any design, drawing or specification provided by the buyer to the seller.
12 Scottish Law to Apply
These conditions shall be interpreted in accordance with the Law of Scotland. The buyer agrees to submit to the jurisdiction of the Scottish courts.
Any dispute or difference which may arise between the Seller and the buyer on any matter relating to these conditions shall be referred to Arbitratio