Business to business – Terms and conditions for sale of goods
The Buyer’s attention is particularly drawn to Clause 11
Buyer: The person or firm who buys or agrees to buy the Goods from the Seller.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business
Conditions: These terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the Seller.
Contract: the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Force Majeure Event: has the meaning set out in clause 10.
Goods: the items which the Buyer agrees to buy from the Seller as set out in the Order.
Order: an order for the Goods submitted by the Buyer to the Seller.
Price: The price for the Goods, excluding VAT and any carriage, packaging and insurance costs.
Seller: Atlas Flowers Retail, 21 The Drive, West Wickham, Kent, BR4 0EP.
Specification: any specification for the Goods that is agreed by the Buyer and the Seller.
1.2.1 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
1.2.2 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
1.2.3 A reference to writing or written includes email
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. .
2.2 All Orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods from the Seller pursuant to these Conditions.
2.3 The Buyer is responsible for ensuring that Orders and any applicable Specification are complete and accurate. The Buyer shall give the Seller all necessary information that the Seller reasonably requires in order to fulfil each Order
2.4 The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order by email, at which point the Contract shall come into existence. For sales via the Seller’s website, the Buyer will receive an email from the Seller acknowledging that the Seller has received the Order, but this does not mean that the Buyer’s order has been accepted.
2.5 Any samples, drawings or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’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.
2.6 A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 28 days from its date of issue.
2.7 These Conditions may not be varied except by the written agreement of a Director of the Seller.
3.1 The Buyer shall pay for the Goods in accordance with this clause 3.
3.2 The Price shall be the price quoted on the Seller’s written confirmation of the Order or (for sales via the Seller’s website) the Price of the Goods will be as quoted on the Seller’s website at the time the Buyer submits the Order..
3.3 The Seller may, by giving notice to the Buyer 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:
3.3.1 any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
3.3.2 any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
3.3.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
3.4 For direct sales via the Seller’s website: –
3.4.1 the Buyer can only pay for the Goods using a debit card or credit card. The Seller accepts the following cards: Visa, Mastercard and American Express;
3.4.2 payment for the Goods and all applicable delivery charges must be made in advance at the time the Buyer submits the Order to the Seller. The Seller will not charge the Buyer’s debit card or credit card until it has dispatched the Goods.
3.5 For all other sales,
3.5.1 (subject to clause 3.5.2) the Seller may invoice the Buyer for the Price of Goods plus VAT at the prevailing rate (if applicable) on or at any time after the Goods have been dispatched and the Buyer shall pay the invoice in full with cleared funds within 30 days of the date of the Seller’s invoice The Seller shall ensure that the invoice includes the date of the Order, the invoice number, the Buyer’s Order number (if requested), the Sellers VAT registration number, and any supporting documentation that the Buyer may reasonably require;
3.5.2 if the Buyer has not bought goods from the Seller previously, the Seller reserves the right to charge a 20% non-refundable deposit with the balance of the Price payable prior to the date of dispatch.
3.6 Payment of the Seller’s invoice can either be made by cheque made payable to Atlas Flowers Limited or by BACS using the following details: –
Account Name: ATLAS FLOWERS LIMITED
Bank Name: Barclays
Sort Code: 20-12-26
Account Number: 90733660
3.7 The Seller, at its discretion, may provide the Buyer with a credit account if the Buyer has previously placed and paid in full for orders with the Seller totalling £[2,500 (excluding VAT). Any credit account provided to the Buyer will be subject to approval and acceptance by the Seller of trade references in respect of the Buyer. For the avoidance of doubt, the Seller is under no obligation to provide a credit account to the Buyer.
4. Late Payment and InterestIf the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, then, without limiting the Seller’s remedies under clause 13:
4.1.1 the Buyer shall pay interest on the overdue amount at the rate of 8% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
4.1.2 the Seller may suspend all further deliveries of Goods until payment has been made in full
4.2 The Buyer shall pay all amounts due under the agreement in full without set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Seller to the Buyer.
5.1 Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues, brochures or websites 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 The Seller reserves the right to amend or change the Specification if required by any applicable statutory or regulatory requirements.
6. Quality and Fitness for Purpose
In this clause, the “Warranty Period” shall mean: –
(a) in relation to Goods which consist of dried or preserved flowers and foliages , 7 days from completion of delivery; and
(b) in relation to Goods which consist of artificial products, 30 days from completion of delivery.
6.1 The Seller warrants that for the Warranty Period the Goods shall: –
6.1.1 conform with their description;
6.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
6.1.3 be fit for any purpose held out by the Seller.
6.2 Subject to clause 6.3, if:
6.2.1 the Buyer gives notice in writing to the Seller, within 1 Business Day of discovery that some or all of the Goods do not comply with the warranties set out in clause 6.1; and
6.2.2 the Seller is given a reasonable opportunity of examining such Goods; and
6.2.3 the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Seller’s cost, the Seller shall, at its option, replace any Goods that are found to be defective, or refund the price of such defective Goods in full.
6.3 The Seller shall not be liable for the Goods’ failing to comply with the warranties set out in clause 6.1 if:
6.3.1 the Buyer makes any further use of such Goods after giving notice of defects in accordance with clause 6.2;
6.3.2 the defect arises because the Buyer failed to follow the Seller’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;
6.3.3 the defect arises as a result of the Seller following any drawing, design supplied by the Buyer;
6.3.4 the Buyer alters or repairs such Goods without the written consent of the Seller;
6.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 The Seller’s only liability to the Buyer if the Goods fail to comply with the warranties set out in clause 6.1 is as set out in this clause 6.
6.5 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.
6.6 The Conditions of the Contract shall apply to any repaired or replacement Goods supplied by the Seller.
7. Delivery of the Goods
7.1 Delivery of the Goods shall be made to the Buyer’s address as stated in the Order or such other address as may be agreed between the Seller and the Buyer (Delivery Location).
7.2 The Buyer shall make all arrangements necessary to take delivery of the Goods on the day notified by the Seller for delivery (Delivery Date). The Buyer or someone on the Buyer’s behalf must sign for delivery of the Goods.
7.3 The Seller shall endeavour to dispatch the Goods on the Delivery Date, but does not guarantee to do so.
7.4 Delivery Dates are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of any Goods that is caused by:
7.4.1 a Force Majeure Event; or
7.4.2 the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods
7.5 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
7.6 The Seller shall not be liable to the Buyer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the Goods. If short delivery does take place, the Buyer may not reject the Goods but shall accept the Goods delivered as part performance of the Contract, and a pro-rata adjustment to the Price shall be made. Any short delivery must be notified to the Seller within 1 Business Day of delivery.
7.7 If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.8 If the Buyer fails to take delivery of the Goods on the Delivery Date, the Seller shall be entitled to store and insure the Goods and to charge the Buyer the reasonable costs of so doing.
7.9 If 10 Business Days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken or accepted delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods, or charge the Buyer for any shortfall below the price of the Goods.
7.10 We have a 30-day, no-questions-asked return policy for all of our items. We ask that you arrange for any item being returned to be in its original packaging and in the same condition as when we sent it. Small items can be sent by Royal Mail or any courier service of your choice but please ensure that you have a proof of postage.
We can arrange for items to be collected from an address of your choice. The cost of the return is a one off fee of £15 and will be deducted from your refund amount. Please note it may take up to 14 days for collection of returned goods. Please email us at email@example.com to arrange this option.
8. Title and risk
8.1 Risk in the Goods shall pass to the Buyer on completion of delivery.
8.2 Title to the Goods shall not pass to the Buyer until the earlier of:
8.2.1 the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
8.2.2 the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 9.4.
8.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
8.3.1 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
8.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
8.3.4 notify the Seller immediately if it becomes subject to any of the events listed in clause 13.1; and
8.3.5 give the Seller such information relating to the Goods as the Seller may require from time to time.
8.4 Subject to clause 9.6, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time:
8.4.1 it does so as principal and not as the Seller’s agent; and
8.4.2 title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
8.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 13.1, then, without limiting any other right or remedy the Seller may have:
8.5.1 the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
8.5.2 the Seller may at any time:
(a) require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
9.0 Carriage of Goods
9.1 For Orders where the Price is over £200, carriage will be free of charge. For all other Orders, carriage will be chargeable. This will be at the rate quoted by the Seller.
9.2 Deliveries to the Channel Islands, Scottish Islands and Ireland may incur an extra cost.
10. Force Majeure
10.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Seller including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Seller or any other party), failure of a utility service or transport network, act of God, war, terrorism, riot, civil commotion, interference by civil of military authorities, national or international calamity, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake, epidemic or similar events, or default of suppliers or subcontractors.
10.2 The Seller shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
10.3 If the Force Majeure Event prevents the Seller from providing any of the Goods for more than four weeks, the Seller shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Buyer.
11. Limitation of Liability
11.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
11.1.4 defective products under the Consumer Protection Act 1987.
11.2 Subject to clause 12.1:
11.2.1 the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
11.2.2 the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Price.
11.3 This clause 11 shall survive termination of the Contract.
12.1.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
12.1.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address of the Seller (21 The Drive, West Wickham, Kent BR4 0EP); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
12.1.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.2 Waiver. A waiver of any right under the Contractor law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.
12.3 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.4 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.5 This Contract contains the entire agreement and understanding of the parties relating to the subject matter of this Contract and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral.
12.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Seller.
12.7 Governing law. 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 governed by and construed in accordance with the law of England and Wales.
12.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
13.1 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if:
13.1.1 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of the Buyer being notified in writing to do so;
13.1.2 the Buyer 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), 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;
13.1.3 the Buyer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
13.1.4 the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.2 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
13.3 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect
14. Data Protection
14.1 The Seller will use any personal information the Buyer provides to it to:
(a) provide the Goods:
(b) process the Buyer’s payment for the Goods; and
(c) inform the Buyer about similar products that the Seller provides, but the Buyer may stop receiving these at any time by contacting the Seller.