Terms & Conditions
The Customer’s attention is in particular drawn to the provisions of condition 11.4
The definitions and rules of interpretation in this condition apply in these Conditions.
Customer: the person, firm or company who purchases the Goods from the Company.
Conditions: these terms and conditions as amended from time to time in accordance with Condition 2.3.
Company: Tamarisk Designs Limited, a Company limited by shares with company registration number 02215808 whose registered office is at Hackling House, Bourton Industrial Park, Bourton on the Water, Cheltenham, Gloucestershire GL54 2HQ.
Contract: any contract between the Company and the Customer for the sale and purchase of the Goods, incorporating these Conditions.
Delivery Point: the place were delivery of the Goods is to take place under condition 4.
Goods: any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them).
Intellectual Property: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
2. Application of terms
2.1 Subject to any variation under condition 2.3 the Contract shall be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation or order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation or order, specification or 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 apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to buy Goods subject to these Conditions.
2.5 By placing an order the Customer warrants and represents that it is not acting as a consumer for the purposes of the Consumer Credit Act 2006.
2.6 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order or pro-forma invoice is issued by the Company or (if earlier) the Company delivers the Goods to the Customer.
2.7 The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.8 Any quotation provided by the Customer shall not constitute an offer and is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order or pro-forma invoice to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation, acknowledgment of order or pro-forma invoice.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’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.
3.3 The Customer acknowledges that the Goods are built to order (Bespoke and Customised within Consumer rights act 2015) and as such will not be identical to previous goods seen by the Customer. Accordingly the Customer may not refuse acceptance of any Goods as a result of minor differences between the delivered Goods and the example goods seen prior to an order being placed.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Customer’s place of business.
4.2 Where the Customer requests and the Company agrees in accordance with condition 4.1 that the Goods shall be delivered to any other address than the Customer’s place of business, the Customer will ensure that:
4.2.1 its representative or nominated person will be available to accept delivery of the Goods in accordance with this condition 4 and such person will be deemed to accept delivery of the Goods on behalf of the Customer;
4.2.2 there is clear, unhindered and safe access for the Company’s delivery crew;
4.2.3 the dimensions of the Goods have been checked by the Customer and the delivery route allows good access for the Goods to be delivered;
4.2.4 that there is no requirement for the Company’s delivery crew to move furniture or other any objects which may prevent or hinder access to the property,
and the Customer agrees that if on delivery any of the Conditions in clause 4.2 are not satisfied, the Company may in its sole discretion cancel the home delivery and the delivery charge will still be payable in full by the Customer.
4.3 The Customer agrees that the Company will not be liable and the Customer will reimburse it in full in respect of any loss it suffers (including as a result of damage to property caused
by the Company’s negligence) as a result of any reasonable action it takes to deliver the Goods following a breach of Conditions 4.2.2 and 4.2.4 or at the request of the Customer.
4.4 All contracts for the supply of Goods in excess of £1000.00 (excluding VAT) shall be delivered as far as the ground floor entry point of any commercial premises of the Customer in mainland England, Scotland and Wales free of charge. Any deliveries in respect of orders below £1000.00 (exclusive of VAT) shall be subject to a minimum handling charge of £35 plus VAT.
4.5 The Customer shall take delivery of the Goods within seven days of the Company giving it notice that the Goods are ready for delivery.
4.6 The Company shall use its reasonable endeavours to comply with Customers’ instructions concerning dates of delivery but any delivery date given by the Company is an estimate only offered in good faith. Time for delivery shall not be made of the essence by notice and the Company does not guarantee or warrant that any estimated delivery date shall be met. If no dates are so specified, delivery shall be within a reasonable time.
4.7 Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure 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 (even if caused by the Company’s negligence), nor shall any delay entitled the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.8 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
4.8.1 risk in the Goods shall pass to the Customer (including for loss or damage cause the Company’s negligence);
4.8.2 the Goods shall be deemed to have been delivered; and
4.8.3 the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.9 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.10 Each instalment shall be a separate Contract and no cancellation or termination of any once Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if cause by the Company’s negligence) unless the Customer gives written notice to the Company of the non-delivery within seven days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Customer from the time of delivery.
6.2 All goods sold by the Company to the Customer shall remain the property of the Company until payment in full has been received by the Company for the goods and all other sums which are or which become due to the Company from the Customer on any account.
6.3 The Company grants the Customer a licence to sell the goods to its customer by way of a bona fide sale at full market value and any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
6.4 Until payment in full has been received by the Company, the Customer shall hold the goods as fiduciary agent and bailee and shall keep them separate from goods of the Customer and third party property. The goods shall be properly stored, protected and insured against all risk whatsoever and clearly identified as the Company’s property. On request the Customer shall produce the policy of insurance to the Company.
6.5 The Customer’s right to possession of the Goods shall terminate immediately if:
6.5.1 the customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receive 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 Customer or notice of intention to appoint an administrator is given by the Customer 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 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
6.5.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
6.5.3 the Customer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Customer grants the Company, 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 Customer’s rights to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
6.9 On termination of the Contract, howsoever caused, the Company’s rights contained in this condition 6 shall remain in effect.
Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the quotation, acknowledgement of order, pro-forma invoice or if not contained therein in the Company’s price list as published from time to time.
8.1 Subject to condition 8.4, payment of the price for the Goods is due in pounds sterling and must be made by the Customer to the Company in cleared funds within 30 days of delivery of the Goods or the date of invoice, whichever is the earlier.
8.2 Time for payment shall be of the essence.
8.3 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.4 The Customer 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 Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
8.5 Should payment of any sum due to the Company not be made by the Customer in full in accordance with the Contract then the Buyer shall be liable to pay interest to the Company on any and all outstanding sums from the due date for payment, at the rate of 8% per annum above the base lending rate from time to time of the Bank of England, such interest accruing from day to day and being compounded on the last day of each calendar month until payment is made, whether before or after any judgment.
9.1 The Company does not accept responsibility for the performance of any fabric if supplied by the Customer. The Customer must satisfy himself that the fabrics it supplies to the Company are fit for the purpose and are of a satisfactory quality having regard to the Company’s intended use of the fabric in question. The use by the Company of such material supplied by the Customer does not imply acceptance on the part of the Company of its suitability, fitness for purpose or satisfactory quality.
9.2 Notwithstanding condition 9.1 the Company warrants that on delivery in accordance with condition 4 and for a period of twelve months from the date of delivery, the Goods shall:-
9.2.1 conform in all material respects with their description in the quotation, acknowledgement of order or pro-forma invoice; and
9.2.2 subject to condition 3.3 and due to the Goods being bespoke, be free from material defects in design, material and workmanship.
9.3 The Company shall not be liable for any claim by the Customer in respect of shortage, damage or finish to the Goods unless:
9.3.1 the Customer gives written notice of either the damage or defect to the finish of the Goods to the Company within four weeks of the date of delivery or the
shortage of the Goods within seven days of the date of delivery, and provides details of the Goods subject to the problem including:
220.127.116.11 model number, name and details of the original sale of the Goods; and
18.104.22.168 digital photographs and a written description of the defect(s);
to the satisfaction of the Company;
9.3.2 the Company is given a reasonable opportunity after receiving the notice in accordance with condition 9.3.1 of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there;
9.3.3 the Company is given reasonable access to examine and repair the Goods where applicable;
9.3.4 the Buyer provides any further assistance to the Company as is reasonably requested, for example by providing digital photographs of the Goods; and
9.3.5 all such claims are accompanied by the relevant delivery note signed by an authorised representative of the Customer.
9.4 The Company shall not be liable for any claim by the Customer if:
9.4.1 the Customer makes any further use of such Goods after giving such notice; or
9.4.2 the defect arises because the Customer failed to follow the Company’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
9.4.3 the Customer alters or repairs such Goods without the written consent of the Company.
9.5 In the event that the Company accepts liability for any claims made by the Customer then such liability is limited to the repair or replacement of such goods and the Company may elect in its absolute discretion to repair or replace the Goods.
9.6 The Customer shall have no right to reject the Goods except in the instance of material defect after the Customer has complied with the procedure set out at condition 9.3 and it has been confirmed in writing by the Company that the defect is a material defect.
9.7 Except as provided in this condition 9 the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty at condition 9.2.
9.8 If the Company complies with condition 9.4 it shall have no further liability for a breach in respect of such Goods.
9.9 These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
10. Licence to Display Goods
10.1 In consideration of the obligations of the Customer provided under these Conditions the Company may, upon its instruction, grant a non-exclusive licence to the Customer to display the Goods within the Customer’s place of business in accordance with these Conditions.
10.2 Whilst the Customer is provided with a licence in accordance with these Conditions it will:
10.2.1 only display the Goods in strict accordance with any instructions from the Company and will not alter the Goods or display the Goods in any way that renders the Goods obscene, defamatory or in any other way that may breach the licence provided under this condition 10;
10.2.2 ensure that its sales staff are familiar with the construction, materials and quality of the Goods displayed and it shall use its best endeavours to sell the Goods on the maximum possible scale and shall bring the Goods to the attention of as may potential purchases as possible;
10.2.3 not, display the Goods in such a way to suggest that they are designed by any other person;
10.2.4 not offer for sale any goods manufactured by the Company unless such goods have been purchased by the Customer and are displayed at the Customer’s place of business subject to the Licence granted in accordance with this condition 10;
10.2.5 will not charge excessive prices which might bring the Company into disrepute nor will enter into any agreement, arrangement or concerted practice with any other customer of the Company or any other person whatsoever in relation to the prices at which it will sell the Goods; and
10.2.6 not sell any of the Goods via any auction websites such as e-bay. The restriction contained in this condition shall not prevent the Customer from selling the Products from its own website at such prices as it shall determine.
10.3 The Company may determine the licence provided under this condition 10 if the Goods are no longer manufactured by it or for any reason on written notice to the Customer and the Customer will remove such Goods from its display immediately in accordance with such notice.
10.4 The Customer indemnifies the Company against all actions, proceedings, costs, claims, damages or compensation, whatsoever incurred by or awarded against the Company for any breach or non-performance of this condition 10.
11. Limitation of Liability
11.1 The following conditions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
11.1.1 any breach of these Conditions;
11.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the goods; and
11.1.3 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions excludes or limits the liability of the Company:
11.3.1 for death or personal injury caused by the Company’s negligence; or
11.3.2 under section 7, Consumer Protection Act 1987; or
11.3.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
11.3.4 for fraud or fraudulent misrepresentation.
11.4 Subject to condition 11.2 and condition 11.3:
11.4.1 the Company’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 of the Good in question; and
11.4.2 the Company shall not be liable to the Customer for:
22.214.171.124 loss of profit;
126.96.36.199 loss of business; or
188.8.131.52 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.
12.1 The Company may assign the Contract or any part of it to any person, firm or Company.
12.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed).
13. Force Majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, act of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
14.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.2 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.3 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.
14.4 All prices quoted by the Company are exclusive of VAT and any other applicable tax, levy or duty and shall be charged at the rate prevailing at the time of placing the order.
14.5 The Company reserves the right to make minor amendments to the specification of the Goods ordered by the Customer in the event that the exact specification of the Goods ordered by the Customer are not at that time easily available to the Company. Any amendment to the specification made by the Company will not affect the performance of the Goods in question nor shall they materially depart from the overall design and/or use or enjoyment of the goods in question.
14.6 No forbearance, failure, delay or indulgence by the Company in enforcing or failing to enforce any of the terms of the Contract or in the exercise of any power granted to it shall prejudice or affect in anyway the right of the Company hereunder.
14.7 Each of the terms of the Contract set out herein shall be regarded as several and distinct and the invalidity or unenforceability of any particular provision or provisions shall not affect the validity or enforceability of the remaining provisions.
14.8 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or information (including non-contractual disputes or claims), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English Courts.
15.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or email:
15.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or
15.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.
15.2 Communications shall be deemed to have been received:
15.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
15.2.2 if delivered by hand, on the day of delivery; or
15.2.3 if sent by email on a working day prior to 4.00pm, at the time of transmission and otherwise on the next working day and on receipt of a read receipt.
16. Intellectual Property Rights
Any and all Intellectual Property Rights in the Goods supplied by the Company remain vested in the Company notwithstanding the sale of any such Goods to the Customer or the display of such Goods by the Customer in accordance with condition 10.
17. Cancellation of Order
17.1 All Goods are made to the Customer’s order and the Company cannot accept any cancellations after 7 days of receipt of order. All cancelled orders will be charged in full.
17.2 The Customer shall be liable to reimburse the Company for the full price of the Goods plus any applicable tax and any delivery and return charge (where Goods have been delivered or returned) where such Goods have been ordered by the Customer and for whatever reason are subsequently not required by the Customer.