TERMS AND CONDITIONS OF SALE OF ALAN LITMAN LIMITED of Unit 7, Orchard Park Industrial Estate, Sandiacre, Nottingham, England, NG10 5BP (Company Number 06266961) (“the Conditions”).
Alan Litman may change these Conditions at any time, and any changes will take effect on the date they are amended. Those changes will not affect any orders the Customer has submitted before the change. These Conditions supersede all previous terms and shall replace any terms previously notified to the Customer.
1.2 Exclusion of Customer’s terms of purchase
These Conditions apply to the exclusion of any other terms and conditions. Orders placed by the Customer leading to a Contract which is not expressed to be subject to these Conditions shall still be subject to them.
In these Conditions: Affiliate: means in relation to any entity, that entity and any entity Controlling, Controlled by, or under common Control with, the relevant entity; Alan Litman: means Alan Litman Limited or any of its Affiliates whom supply the Goods in accordance with the Contract Documents; the Contract; means any contract between the Customer and Alan Litman for the sale of Goods which incorporates these Conditions; the Contract Documents are these Conditions, the descriptions and specifications of the Goods , and the Sales Order Confirmation issued to the Customer by Alan Litman; Control: shall mean direct or indirect ownership or control of more than 50% of the voting interests of the subject entity; the Customer: means the person, firm or company that purchases the Goods from Alan Litman; the Delivery Charges means the delivery charges for a Customer order stated in the Sales Order Confirmation Alan Litman sends to the Customer; the Delivery Address means the delivery address the Customer provides to Alan Litman in the Customer’s account or as stated when ordering ; the Goods mean any goods ordered from Alan Litman by the Customer or to be supplied by Alan Litman to the Customer; the Price means the price of the Goods as stated in any Sales Order Confirmation invoice Alan Litman sends to the Customer and Business Day means any day Monday to Friday inclusive, except bank or other statutory holidays in England; Liability means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs (including legal costs) and any other losses and/or liabilities; Insolvency Event means any of the following (a) any distress, execution or other process levied upon any of the Customer’s assets; (b) the Customer suspends, or threatens to suspend payment of its debts or the Customer is or is deemed unable to pay its debts as they fall due or the Customer becomes insolvent; (c) the Customer commence negotiations with one or more of its creditors with a view to rescheduling any indebtedness or the Customer take steps to enter into a scheme of arrangement, have a moratorium declared in respect of any indebtedness, cease or threaten to cease to carry on its business, the Customer applies for an interim moratorium pursuant to Schedule B1 of the Insolvency Act 1986 as amended or has a statutory demand or winding up petition presented against it, or the Customer takes any step or has any steps taken against it to dissolve it or strike it off the Register of Companies, or the Customer takes any step to convene a meeting of creditors (whether formal or informal), or enter into liquidation (whether voluntary or compulsory) other than a solvent liquidation for the purposes of re-organisation or amalgamation, or the Customer has appointed or take steps to appoint in respect of itself or any of its assets, a liquidator, a provisional liquidator, a judicial custodian, supervisor, compulsory manager, a receiver or manager, administrator or administrative receiver or documents are filed with the court for the appointment of any such officer, or a resolution is passed or a petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or (d) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction in which the Customer is incorporated, resides or carries on business that has an effect equivalent or similar to any of the events mentioned in (a) to (c) above.
HOW THE CONTRACT IS MADE
3.1 Customer order
Quotations by Alan Litman are not binding or capable of acceptance and are estimates only. The Customer’s order to Alan Litman is an offer to purchase the Goods on these Conditions, subject to acceptance.
3.2 Acceptance of an order
An order is accepted, and the Contract is made, when Alan Litman send the Customer a Sales Order Confirmation confirming receipt of the order, or if Alan Litman does not send such documents to the Customer, when Alan Litman dispatches the Goods or the first instalment of the Goods to the Customer. The Customer shall be responsible for the accuracy of all orders for Goods and all Sales Order Confirmations issued by Alan Litman to the Customer and for giving Alan Litman all the information necessary for Alan Litman to perform the Contract.
3.3 Declining an order
Alan Litman has the right to refuse to accept any Orders placed for Goods. Alan Litman will not normally accept any order until it has received pre-payment in full of the Price, Delivery Charges, VAT and other amounts payable in respect of the order, unless the Customer has a credit account with Alan Litman and have not yet reached any credit limit.
SALE AND PURCHASE
On acceptance of the Customer’s order, Alan Litman agree to sell to the Customer and the Customer agree to purchase from Alan Litman the Goods specified in the Contract Documents.
Our Supply Chain
5.1 If Alan Litman disclose details of or concerning its supply chain, which shall include, but is not limited to, its suppliers, wholesalers, consultants or other intermediary contractors (“Disclosed Suppliers”), at the Customer’s request or as a term of any Contract Documents, the Customer undertakes that, other than with Alan Litman’s express prior written approval, the Customer shall not directly or indirectly:
5.1.1 approach, induce, solicit or otherwise encourage any Disclosed Suppliers to supply or assist in the supply of any Goods or products similar to the Goods other than to Alan Litman or its Affiliates;
5.1.2 contract or otherwise deal with any Disclosed Suppliers for the supply of any Goods or products similar to the Goods other than to Alan Litman or its Affiliates; or
5.1.3 seek, encourage or otherwise respond to any approach by any Disclosed Supplier for the supply of any Goods or products similar to the Goods other than to Alan Litman or its Affiliates except where the Customer demonstrate previous dealings in relation to such Goods or similar products with the Disclosed Supplier prior to entering into any Contract Documents with Alan Litman or its Affiliates; or
5.1.4 disclose any details of or concerning the Disclosed Suppliers to any third party, other than as required in the Contract Documents.
5.2 The Customer shall procure that its Affiliates, officers, employees, agents, advisors and other representatives shall comply with clause 5.1of these Conditions as if they were parties to the Contract Documents.
5.3 The obligations and undertakings provided in this clause 5 shall continue in full force and effect for two years from and including the date of the Contract Documents or for two years from and including the date of the most recent purchase of Goods from Alan Litman or its Affiliates (whichever is greater).
5.4 The Customer acknowledge that the obligations and undertakings provided in this clause 5 are reasonably required by Alan Litman and its Affiliates to protect their business interests where the Customer or its Affiliates have received details of or concerning the Disclosed Suppliers.
The Goods will be the pattern and colour specified in the Sales Order Confirmation. Alan Litman will not be Liable for minor variations in specification, colour or other design features, and no such minor variation shall entitle the Customer to rescind the contract, reject the Goods or be the subject of any claim against Alan Litman. If the Customer approves any sample provided then the Customer shall have no claim in respect of nor any right to reject any Goods provided they are of the same description, specification, quality and fitness for purpose as the sample. It is the Customer’s duty to approve the Goods and to satisfy itself including by testing that the Goods are reasonably fit for the purpose for which such Goods are generally required, are of satisfactory quality and do not infringe the rights, including any intellectual property rights, of any third party. It is the Customer’s responsibility to check that any specification of the Goods is accurate and adequate for the Goods and does not infringe the rights of any third party including any intellectual property rights. The Customer shall indemnify Alan Litman and keep Alan Litman indemnified against all Liability on a full indemnity basis for any costs, claims, proceedings, losses or liabilities arising out of its use of any designs, specifications, details or drawings supplied by the Customer.
CHARGES AND VAT
The Customer agree to pay the Price, Delivery Charges in accordance with the Contract. The Price, Delivery Charges and all other amounts payable under the Contract are exclusive of value added tax which Alan Litman may charge in addition at the rate applicable from time to time and which shall be payable by the Customer at the same time as the amount on which it is charged.
8.1 Payment With Order
Unless credit terms have been agreed, payment of the Price, Delivery Charges, and all other fees and amounts must be made with the Customer’s order or in advance and time for payment is of the essence. If credit terms have not been agreed, Alan Litman accept payment by cash, cheque, and bank transfer. If the Customer sends payment by post, then the Customer take the risk of the post. If payment cannot be authorised or cleared for any reason Alan Litman will inform the Customer
8.2 Credit Account
If the Customer has a credit account with Alan Litman, then the Price, Delivery Charges, and any other fees and amounts must be paid in cash or cleared funds within 60 days (or such other period Alan Litman may have agreed in writing with the Customer) of the order.
8.3 No Set-off
The Customer must make all payments in full without set-off, deduction, counter-claim, or withholding.
If the Customer fails to pay any amount on time, then Alan Litman shall be entitled to withhold any delivery of Goods and/or cancel any orders from the Customer and/or Alan Litman shall have the rights set out in the Late Payment of Commercial Debts (Interest) Act 1998 (as amended or replaced). If that act does not apply, then without prejudice to any other remedies Alan Litman may have, Alan Litman may charge the Customer, and the Customer shall pay on demand, daily interest on the overdue amount such interest to run from the date when the Customer should have paid it until the date the Customer actually pays it (both before and after Alan Litman obtain any court judgment) at the per-annum rate of 8% over the Bank of England base rate from time to time compounded with monthly rests.
9.1 Delivery Address
Delivery will be to the Delivery Address.
9.2 Delivery Days
Alan Litman only deliver on Business Days, within the normal working hours (or if not specified, between 8am and 5pm English time). Any statements as to delivery within a number of days should be read as Business Days, and if a bank or other statutory holiday falls within any delivery period then the Customer should allow an extra two Business Days for delivery. If the Customer orders after 10.00 a.m., an additional Business Day should be added to the delivery estimate.
9.3 Delivery Timescales
Alan Litman will use reasonable efforts to deliver the Goods by the delivery dates quoted. However, delays are occasionally inevitable and therefore delivery times are estimates only and are not guaranteed. Time is not of the essence in relation to such dates
Alan Litman may make delivery of the Goods by instalments. Where Goods are ordered to be delivered by instalments each delivery shall constitute a separate and distinct Contract and failure by Alan Litman to deliver, or any claim by the Customer in relation to, any instalment shall not entitle the Customer to repudiate or terminate the order as a whole. Alan Litman shall not be required to fulfill orders for Goods in the sequence in which they are placed. The Customer shall be responsible at its own cost for all arrangements to unload the Goods when delivered to the Delivery Address.
9.5 Failure to Receive the Goods
The Customer shall ensure that during normal working hours on Business Days Alan Litman have free rights of access to the Delivery Address for the purpose of delivery of the Goods. If delivery is attempted within our stated delivery hours and the Customer is not present to collect the Goods or the Customer unreasonably refuses to take delivery of the Goods, then Alan Litman shall be entitled to withhold delivery of any other Goods and treat the Contract as repudiated by the Customer. Alan Litman may also charge the Customer its reasonable costs of returning the Goods back to stock, costs of storage, and charge for re-delivering the Goods at another time. Alan Litman will give the Customer the option of collecting the Goods or requesting further delivery attempts (at reasonable charge). Alan Litman may store the Goods for a maximum of 1 week, after which Alan Litman may sell the Goods and account to the Customer for the proceeds less administration and storage costs.
9.6 Delivery Note
All deliveries must be signed for before the carrier will release the Goods to the Customer. The Customer should keep the packing list enclosed with the Good in case of returns.
9.7 Inspection on delivery
When the Customer receives the Goods the Customer should immediately inspect them, and inform Alan Litman by end of the Business Day following the day of delivery if the Customer has not received the Goods the Customer ordered, and within 7 Business Days of receipt of the Goods if the Customer considers that the Goods are faulty or damaged, otherwise the Goods will be considered to have been correctly delivered, free from damage or faults and in good condition and order.
Risk in the Goods shall pass to the Customer on delivery at the Delivery Address prior to unloading.
9.9 Retention of Title
Title to the Goods passes to the Customer on delivery, unless the price or any other amount payable by the Customer is unpaid at the time of delivery, in which case title is retained by Alan Litman until the Customer has paid in full the Price and all other amounts payable under the Contract. The Customer agrees that Alan Litman may still sue for the Price, notwithstanding that title has not passed. The Customer also agrees that its right to possession and use of the Goods shall cease if any amount payable by the Customer under the Contract becomes overdue, or the Customer suffers an Insolvency Event, and that Alan Litman shall be entitled to enter any premises where the Goods are kept for the purposes of repossessing them. Until payment in full of the Price of Goods delivered to the Customer has been received, the Goods shall be stored separately from any other products and must be clearly marked and identified as Alan Litman’s property.
10.1 The Customer may cancel the Contract only with Alan Litman’s prior written consent and the Customer may not cancel any Contract or delivery of Goods (and the Customer will be Liable for any loss Alan Litman suffers as a result of the cancellation) if:
(a) the Goods were either made to specification, dyed to colour specification, made specifically for the Customer or are personalised for the Customer;
(b) the Goods cannot be returned by reason of the treatment of them since delivery to the Customer or their nature or condition (for instance the Customer having cut or used any rolls/pieces);
(c) the Goods are damaged or marked in any way or have unreasonable wear or are otherwise not in a condition consistent with having reasonable care taken of them; or
(d) the Goods are in a condition such that they cannot reasonably be re-sold; or
(e) the Customer is not able to return the Goods with all packaging, contents, documents, and other items supplied with or as part of the Goods; or
(f) the Customer sells, transfers, hires or lends the Goods or gives ownership of the Goods to any other person; or
(g) the Customer cancels or purports to cancel an order without Alan Litman’s prior written consent.
10.2 What must I do with the Goods?
The Customer is responsible for returning all Goods cancelled in accordance with these Conditions. If the Customer fails to return the Goods to Alan Litman, Alan Litman may charge the Customer its costs of collecting the Goods. Until the Customer returns the Goods to Alan Litman the Customer must keep hold of the Goods and take reasonable care of them, and if the Customers send the Goods back to Alan Litman it must ensure that they are received by Alan Litman and are not lost or damaged in transit, otherwise the Customer will be Liable for all such loss or damage. If the Customer is not able to return the Goods in a condition consistent with having taken reasonable care of them, or with all packaging and other items supplied with the Goods, Alan Litman may charge the Customer for any reduction in value of the Goods as a result.
10.3 When do I receive my refund?
If the Customer cancels a Contract in accordance with these Conditions, Alan Litman will refund the Price of the returned Goods within 10 Business Days of the date that Alan Litman receives the returned Goods, less any direct costs in recovering the Goods, and less any other amounts that Alan Litman are entitled to charge the Customer under these Conditions.
11.1 Our Warranty
Alan Litman warrants that upon delivery at the Delivery Address, the Goods will be of the description set out in the Sales Order Confirmation and will be free of defects in materials and/or workmanship except for commercially acceptable fault tolerance levels of at least 5% plus or minus in relation to meterage, fibre composition, width and weight per metre squared. Alan Litman’s Liability for breach of this warranty shall be one of the following (at Alan Litman’s sole option):-
(a) Alan Litman will replace the Goods with Goods which do conform to the description or are not defective; or
(b) Alan Litman will take the Goods back and refund the Price the Customer paid for such Goods.
Alan Litman shall have no Liability for any claims that Goods do not conform to the description or are defective, which are made later than 5 Business Days after the date of delivery of the Goods. If Alan Litman elects to replace the Goods but this proves not possible, or disproportionate, or Alan Litman fail to do so in a reasonable time, then Alan Litman may, at its sole discretion, take the Goods back and refund the Customer all amounts paid for such Goods and this shall be the sole remedy against Alan Litman in relation to such Goods.
11.2 Exclusion of Implied Terms
All warranties, terms or conditions implied by statute, common law, custom or otherwise as to the description, quality, fitness for purpose, or compliance with description or sample of the Goods are hereby excluded to the fullest extent permitted by law.
LIMITATION OF LIABILITY
12.1 Liability Not Limited
Nothing in this Contract shall limit or exclude Alan Litman’s Liability to the Customer for death or personal injury caused by Alan Litman’s negligence, or any Liability due to fraud or any other Liability which it is not permitted to exclude or limit as a matter of law.
12.2 Excluded Types of Loss
Subject to the Clause 12.1, Alan Litman shall have no Liability to the Customer for:
(a) consequential losses; and/or
(b) expenses; and/or
(c) loss of profits and/or damage to goodwill; and/or
(d) economic and/or other similar losses and/or
(e) special damages and/or
(f) indirect losses; and/or
(g) aggravated, punitive and/or exemplary damages; and/or
(h) liability to claims by third parties including claims for infringement of any third party’s intellectual property rights; and/or
(i) business interruption, loss of business, loss of contracts, loss of opportunity and/or loss of production.
12.3 Subject to clause 12.1 if the Customer’s place of business is outside the United Kingdom or where delivery of the Goods by Alan Litman is to take place outside the United Kingdom or where the Goods are to be supplied by the Customer outside the United Kingdom, Alan Litman shall have no Liability for any losses, costs, claims, proceedings or liabilities arising from any claim that the Goods infringe the intellectual property rights of any third party and the Customer shall indemnify Alan Litman and keep Alan Litman indemnified against all Liability on a full indemnity basis for any costs, claims, proceedings, losses or liabilities arising out of any such claim that the Goods infringe the intellectual property rights of any third party .
12.4 Subject to clause 12.1 if the Customer has its place of business within the United Kingdom or where the Goods are to be delivered by Alan Litman within the United Kingdom, Alan Litman shall have no liability in relation to any import, export, use, promotion, offer to supply or supply of the goods outside the United Kingdom or claim that outside the United Kingdom, they infringe the rights of any third party including intellectual property rights and the Customer shall indemnify Alan Litman and keep Alan Litman indemnified against all liability on a full indemnity basis for any costs, claims, proceedings, losses or liabilities arising out of any claim that the Goods, or that the import, export, use, promotion, offer to supply or supply of the Goods, outside the United Kingdom, infringe the intellectual property rights of any third party.
Subject to Clause 12.1 above, Alan Litman’s total Liability to the Customer in aggregate shall not exceed an amount equal to the Price, Delivery Charges and other amounts payable by the Customer under the Contract giving rise to Alan Litman’s Liability or £10,000 whichever is the lesser amount.
13.1 Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of:
(a) Liability for breach of contract;
(b) Liability in tort (including negligence);
(c) Liability for breach of statutory duty; and
(d) Liability for breach of Common Law.
except clause 12.5 above which shall apply once only in respect of all the said types of Liability
14.1 Alan Litman shall not be liable to the Customer for non-performance or late performance of the Contract due to any matter beyond its reasonable control, including (without limitation) war, threat of war, terrorism, riot, civil commotion, public demonstration, blockade, or sabotage, the act of any government, government authority or legislature, industrial action (including Alan Litman’s own employees), lightning, fire, explosion, storm, flood, earthquake, accumulation of snow or ice, or drought, shortages (including of fuel, utilities, and raw materials), vandalism, theft and other criminal action, interruption or failure of utilities, or anything of a similar nature affecting Alan Litman’s carriers, sub-contractors or suppliers. If any such events mean Alan Litman has insufficient stocks or supplies to meet all of our contracts with the Customer and other customers, Alan Litman may decide in its sole discretion which contracts to fulfil.
Alan Litman RIGHT TO CANCEL OR VARY
15.1 If Alan Litman are not able to supply any of the Goods for genuine reasons beyond its control, for instance, because Alan Litman did not have the Goods in stock, or sufficient Goods in stock to meet all its orders, and Alan Litman are not able to obtain the Goods from its suppliers at all or in time to meet the delivery timescales Alan Litman shall be entitled to cancel the Contract as a whole or in respect of those Goods which Alan Litman cannot supply, in which case Alan Litman will offer the Customer a full refund, and Alan Litman may also at the same time give the Customer an offer to continue with its order subject to variations, or give an alternative offer, in which case Alan Litman will identify any changes to the Goods, the Price and Delivery Charges, and delivery timescales, and Alan Litman will state how long that offer will remain open. These will be the Customer’s only remedies and claims against Alan Litman in such circumstances.
16.1 Entire Agreement
The Contract Documents constitute the entire agreement between the Customer and Alan Litman for the sale and purchase of the Goods. No other communications or representations between the Customer and Alan Litman, whether written or oral, shall bind Alan Litman, and the Customer acknowledges that the Customer has not relied on any representations from Alan Litman in entering into the contract which do not form part of the Contract Documents. Any variation or alteration to the Conditions shall only be binding upon Alan Litman if made in writing and signed by a director of Alan Litman. No employee, other than a company director, has authority to change the terms of the Contract or make any representations or warranties that bind Alan Litman.
16.2 Assignment by customer
The Customer may not assign, transfer, charge, or declare a trust over the benefit of the Contract or any rights under it to anyone else without Alan Litman’s prior written consent.
16.3 Assignment by Alan Litman
Alan Litman shall be entitled to assign the benefit of the Contract and any debts under the Contract.
16.4 Third Party Rights
The Contract shall not benefit or be enforceable by any third party.
Alan Litman may sub-contract its obligations under the Contract.
16.6 Invalid Terms
Each of the terms of the Contract is separate and severable, and if any term is held to be void or invalid, it shall be severed, and the remaining terms shall continue in full force.
Alan Litman may on occasion, at its sole and absolute discretion, decide not to exercise or wait before exercising any of its rights under the Contract. If Alan Litman do so, Alan Litman shall still be entitled to insist on the strict terms of the Contract later on.
16.8 Law and Jurisdiction
The Contract and all claims arising out of it including non-contractual claims shall be governed by the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction in relation to all disputes arising out of this Contract including non-contractual claims.