CONDITIONS OF SALE (“CONDITIONS”)

1 INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply.

1.2 Buyer – means the person, firm or seller who purchases the Goods from the Seller and detailed on the Order;

1.3 Seller – means Fleming International Limited trading as Shilou;

1.4 Confirmation of Order – means the Seller’s acceptance of the Order;

1.5 Contract – means any contract between the Seller and the Buyer for the sale of the Goods, incorporating these Conditions;

1.6 Delivery Address – means the address stated in the Confirmation of Order;

1.7 Goods – means the goods (including any instalment of the goods or any part of them and any replacement parts supplied as part of the services) described in the Confirmation of Order or Invoice;

1.8 Order – means the Buyer’s verbal or written purchase order;

1.9 Price – means the price stated in the Confirmation of Order or Invoice;

1.10 Any reference in these Conditions to a statute or a provision of statute will be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.

1.11 Words in the singular include the plural and in the plural include the singular.

1.12 Headings do not affect the interpretation of these Conditions.

2 APPLICATION OF CONDITIONS

2.1 All Goods are offered and all contracts are entered into subject to these Conditions. All other Conditions, conditions or warranties whatsoever are excluded from the Contract or any variation thereof unless accepted by the Seller in writing.

2.2 No Conditions or conditions endorsed on, delivered with or contained in any other document shall form part of the Contract simply as a result of such document being referred to in the Contract.

2.3 These Conditions will be incorporated into any Contract between the Seller and the Buyer to the exclusion of any Conditions or conditions stipulated or referred to by the Buyer. Any dealings with the Seller following receipt by the Buyer of notice of these Conditions will automatically be deemed acceptance thereof and the basis for all future contracts unless expressly otherwise stated in writing.

2.4 The Confirmation of Order constitutes an offer to purchase the Goods from the Seller subject to the Conditions. No Order placed by the Buyer shall be deemed to be accepted by the Seller until a Confirmation of Order or Invoice is issued by the Seller.

2.5 The Order cannot be cancelled or varied after being accepted by the Seller except with its written consent and the agreement of the Buyer to pay all the costs incurred by the Seller with the cancellation or variation.

2.6 The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in these Conditions shall exclude or limit the Seller’s liability for fraudulent misrepresentation.

3 DESCRIPTION

3.1 The quantity and description of the Goods shall be as set out in the Confirmation of Order or Invoice.

3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

4 DELIVERY

4.1 Unless otherwise agreed in writing by the Seller, delivery of the Goods shall take place at the Delivery Address.

4.2 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.

4.3 The Seller may postpone or cancel any delivery either in whole or in part pending payment of any sum not paid in accordance with these Conditions and due from the Buyer to the Seller but without prejudice to any other rights or remedies which the Seller may have against the Buyer.

4.4 The Seller may deliver the Goods by separate instalments. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.

4.5 The Buyer is responsible for providing suitable facilities for unloading the Goods and will be responsible for all loss of or damage to the Goods during the course of such unloading as a result of unsuitable facilities.

4.6 Subject to the other provisions of these Conditions the Seller shall not be liable for any indirect or consequential loss or direct loss including economic loss, loss of profits, loss of business, depletion of goodwill and similar loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods, nor shall any delay entitle the Buyer to terminate or rescind the Contract.

4.7 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:

4.7.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller’s negligence);

4.7.2 the Goods shall be deemed to have been delivered; and

4.7.3 the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

4.8 Failure by the Buyer to take delivery of or to make payment by the due date in respect of Goods will entitle the Seller to treat the Contract as repudiated by the Buyer.

5 LATE AND NON-DELIVERY

5.1 Any liability of the Seller for non-delivery or late delivery of the Goods shall be limited to replacing the Goods within a reasonable time.

6 RISK AND TITLE IN THE GOODS

6.1 The Goods are at the risk of the Buyer from the time of delivery.

6.2 Title in the Goods shall not pass to the Buyer until the Seller has received payment in full (in cash or cleared funds) for all sums due to it in respect of:

6.2.1 the Goods; and

6.2.2 all other sums which are or which become due to the Seller from the Buyer on any account.

6.3 Until title in the Goods has passed to the Buyer, the Buyer shall:

6.3.1 hold the Goods on a fiduciary basis as the Seller’s bailee;

6.3.2 store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property;

6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.

6.4 The Buyer’s right to possession of the Goods shall terminate immediately if the Buyer:

6.4.1 has a bankruptcy order made against him/her; or makes an arrangement or composition with his creditors, or other takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors; or

6.4.2 otherwise being a body corporate convenes a meeting of creditors (whether formal or informal); enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation; or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof; or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed; or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or

6.4.3 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/her/its property or obtained against him/her/it, or

6.4.4 the Buyer fails to observe or perform any of his/her/its obligations under the Contract or any other contract between the Seller and the Buyer, or

6.4.5 the Buyer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

6.4.6 the Buyer ceases to trade; or

6.4.7 the Buyer encumbers or in any way charges any of the Goods.

6.5 The Seller shall be entitled to recover payment for the Goods notwithstanding that title in any of the Goods has not passed from the Seller.

6.6 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.

6.7 On termination of the Contract, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this clause 6 shall remain in effect.

7 PRICE

7.1 Unless otherwise agreed by the Seller in writing, the Price for the Goods shall be the price stated in the Confirmation of Order or Invoice.

7.2 Unless otherwise stated, the Price for the Goods shall be exclusive of any value added tax and may be exclusive of delivery fees.

8 PAYMENT

8.1 Subject to clause 8.3 payment of the Goods is due in pounds sterling. Payment of a deposit for the Goods may be requested and shall be paid by the Purchaser to the Seller immediately upon making the order for the Goods when applicable. The amount of deposit to be payable shall be determined by the Seller.

8.2 Payment of invoices shall be paid by the Purchaser on delivery of the Goods or within 30 days of receipt of the Seller’s invoice, unless otherwise stated in writing.

8.3 All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.

8.4 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.

8.5 If the Buyer fails to pay the Seller any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Seller on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment.

8.6 Overdue invoices will be handed over to Daniels Silverman, a Commercial Debt Recovery Company for collection. All collection costs (15% of the invoice) and legal costs will be the responsibility of the Buyer and will be legally enforceable.

9 QUALITY

9.1 The Seller warrants that (subject to the other provisions of these Conditions) on delivery the Goods shall:

9.1.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

9.1.2 be reasonably fit for purpose

9.2 The Seller shall not be liable for a breach of any of the warranties in clause 9.1 unless:

9.2.1 the Buyer gives written notice of the defect to the Seller within 3 working days of delivery and notifies the Seller of the claim orally within such period; and

9.2.2 the Seller is given a reasonable opportunity to inspect the Goods and investigate any complaint before use of, or alteration to, or interference with the Goods.

9.3 The Seller shall not be liable for a breach of any of the warranties in clause 9.1 if:

9.3.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 9.3.1; or

9.3.2 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or

9.3.3 the Buyer alters or repairs such Goods without the written consent of the Seller; or

9.3.4 in respect of any defect arising by reason of fair wear and tear or damage due to accident, neglect or misuse

9.4 Subject to compliance by the Buyer with clauses 9.3 and 9.4, if any of the Goods do not conform with any of the warranties in clause 9.1 the Seller shall at its option be entitled to repair or replace within a reasonable time any Goods found to be defective or damaged on visual inspection. If the Seller does so repair or replace the Goods the Buyer will be bound to accept such repaired or replacement Goods and the Seller will be under no further liability in respect of any loss or damage whatsoever arising from the delivery, or lack of delivery, or from any delay before the defective Goods are repaired or the replacement Goods are delivered.

9.5 If the Seller complies with clause 9.4 it shall have no further liability for a breach of any of the warranties in clause 9.1 in respect of such Goods.

10 LIMITATION OF LIABILITY

10.1 Subject to clause 4, clause 5 and clause 9, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:

10.1.1 any breach of these Conditions;

10.1.2 any use made or resale by the Buyer of any of the Goods; and

10.1.3 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.

10.2 All warranties, conditions and other Conditions implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

10.3 Nothing in these Conditions excludes or limits the liability of the Seller:

10.3.1 for death or personal injury caused by the Seller’s negligence; or

10.3.2 under section 2(3), Consumer Protection Act 1987; or

10.3.3 for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or

10.3.4 for fraud or fraudulent misrepresentation.

10.4 Subject to clause 10.2 and clause 10.3:

10.4.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price; and

10.4.2 the Seller shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

11 ASSIGNMENT

11.1 The Seller may assign the Contract or any part of it to any person, firm or seller.

11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.

12 FORCE MAJEURE

12.1 The Seller reserves the right to cancel the Contract (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation,

12.1.1 acts of God, explosion, flood, tempest, fire or accident,

12.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;

12.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measure of any kind on the part of any governmental parliamentary or local authority;

12.1.4 import or export regulations or embargoes;

12.1.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees or either the Seller or the Buyer or for a third party);

12.1.6 or by any other cause beyond the Seller’s control the Seller may at its option suspend performance or terminate the Contract without liability for any damage or losses resulting from such suspension or termination without prejudice to the Seller’s rights to recover all sums owing to it in respect of Goods delivered and costs incurred to date.

13 GENERAL

13.1 A notice under these Conditions must be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified under this provision to the party giving notice.

13.2 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.

13.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

13.4 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

13.5 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other Conditions of the Contract.

13.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

13.7 The Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

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