Except where specifically otherwise agreed in writing between both parties, there shall be no binding contract between Lesmar Limited trading as Prominate (“the Company”) and the Buyer until the Buyer’s order has been accepted in writing by the Company. These conditions shall apply to the exclusion of all other terms of Buyer, except as agreed in writing by Seller. Written acceptance by the Buyer of the pre-production proof (typically in PDF format) shall be deemed to indicate the Buyer’s agreement to these conditions and if no pre-production proof is undertaken acceptance of the goods shall be deemed to indicate the Buyer’s agreement to these conditions.
The quantity of goods delivered to the Buyer may vary by up to +/-5% of the quantity ordered. Invoice to reflect quantity of goods delivered.
3. PRICE, SAMPLES AND PROOFS
Prices quoted by the Company are valid only for the stated quantities, time period and payment terms. Unless otherwise stated prices quoted are exclusive of the cost of delivery and are exclusive of Value Added Tax (VAT).
Samples will be charged at cost including delivery and VAT if not returned in good condition within 14 days of shipment to Buyer.
Garment sizes may vary by up to +/-5% of the approved proof samples supplied unless specifically agreed in writing before manufacture.
Payment shall be made by the Buyer no later than 30 days from the date of the invoice for established accounts or as otherwise required by the Company. The Seller reserves the right to charge interest of 2.5% monthly on accounts that are not settled within our terms of trading.
If the Buyer shall be in breach of any of its obligations hereunder or under any other contract with the Company or if at any time the Buyer’s financial condition does not in the Company’s unfettered judgement justify continuance of any contract on the terms of payment agreed, the Company may, without prejudice to any other rights and without any liability whatsoever to the Buyer, cancel any outstanding part of the contract or suspend any deliveries until such time as the Buyer shall provide security satisfactory to the Company for the performance of all obligations of the Buyer to the Company.
5. DELIVERY AND RISK
Any times quoted for delivery are estimates only and shall not be the essence of any contract. The Company is not responsible for the actions of or delays caused by courier companies, couriers or transport companies or actions of or delays caused by Customs in relation to imported goods. Delivery of the goods to the stipulated place of delivery or to a carrier nominated by the Buyer whichever is sooner, shall constitute delivery to the Buyer. All risks in the goods shall pass to the Buyer on such delivery.
Goods damaged in transit should not be accepted from the carrier and no credit will be given for or replacements made of goods accepted from the carrier in a damaged condition. Any discrepancies, shortages and damage must be notified to the Company in writing within seven (7) days after delivery.
6. TRANSFER OF PROPERTY
Property in the goods shall remain in the Company until the Company has received payment in full of the price and any additional sums due under contract. The buyer shall store the goods in such a way that they can be identified as the Company’s property. If the Buyer shall sell or otherwise dispose of or shall make any insurance claim in respect of the goods prior to making payment in full for them, the Buyer shall do so as principal and not as agent for the Company and shall not give any warranties or incur any liability of behalf of the Company. The proceeds of any such sale or other disposition (or claim thereto) as well as the proceeds of any insurance claim made by the Buyer in respect of the goods shall belong to the Company to the extent of all sums due to the Company in respect of the goods.
Failure by the Buyer to make all payments when due shall give the Company the right without prejudice to any other remedy of the Company, to repossess the goods without prior notice and to enter any premises for the purpose of such a repossession. Nothing in this condition shall give the Buyer any right to return goods sold hereunder. The Company may sue the Buyer for the price when due notwithstanding that property in the goods may not have passed to the Buyer.
7. GUARANTEE AND LIMITATION OF LIABILITY
The Company guarantees that the goods will be free from defects caused by faulty materials or poor workmanship upon delivery. Under this guarantee the Company will at its option either repair, replace or give credit to the Buyer for any goods found to be so defective provided that:
a) The Company is notified in writing within 7 days of receipt of the goods of any defect.
b) The defective goods are returned to the Company carriage prepaid by the Buyer.
c) Examination of the goods by the Company reveals to its satisfaction that such defects exist and have not been caused by misuse, neglect, accident, improper storage or handling or by repair or alteration not effected by the Company.
No responsibility whatsoever for such shortages or damages will be accepted by The Seller in the event of failure by the Buyer to notify the Seller of the above points within the said period.
Save as expressly set out above the Company’s responsibility shall be limited to the supply of goods and/or services as contracted and excludes all responsibility for any loss or damage however caused consequential upon or resulting from the supply of such goods and/or services.
8. CANCELLATION BEFORE DISPATCH
In the event that the Buyer needs to cancel an order before written acceptance by the Buyer of the pre-production proof (typically in PDF format) there will be a cancellation fee of 50% of the value of the order excluding VAT. In the event that the Buyer needs to cancel an order after written acceptance by the Buyer of the pre-production proof, or where the Company has immediately gone into production after acceptance of the Buyer’s order at the Company’s entire discretion, there will be a cancellation fee of 95% of the value of the order excluding VAT if the goods have not been dispatched to the Buyer and 100% if the goods have already been dispatched to the Buyer.
9. FORCE MAJEURE AND LAW
Without prejudice to any other of these conditions, the Company shall be under no liability for delay or non-performance of any obligations hereunder due to any circumstance whatsoever beyond the control of the Company.
This contract shall be governed by and construed in accordance with English law and the courts of England shall have jurisdiction to hear all disputes arising in connection with it.