Terms & Conditions for Business
These are the terms on which BDP Imports Limited (registered in England and Wales with company number 04031966) t/a Bramblecrest (‘Company’) do business. They are designed to set out clearly the Company’s responsibilities and your rights.
1.1. In these terms and conditions (hereinafter collectively referred to as ‘Conditions’) the following definitions apply:
‘Business Days’ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
‘Buyer’ means you, the corporate entity or individual purchasing Products in the course of a trade, business, profession or craft from the Company.
‘Contract’ means any contract made between the Company and the Buyer for the sale and purchase of Products which shall include (but shall not be limited to) contracts entered into between the Parties arising from an Order in accordance with these Conditions.
‘Damage’ means Damage as defined in Clause 5.1 below.
‘Force Majeure Event’ has the meaning set out in Clause 14.
‘Products’ mean any product, article or item which the Company sells to the Buyer (including part or parts of it).
‘Order’ means any order for Products made by the Buyer to the Company in accordance with Clause 2.4 below.
‘Parties’ means collectively the Company and the Buyer.
‘Specification’ any specification for the Products, including any related plans and designs, that are agreed in writing by the Company and the Buyer.
1.2. In these Conditions, the following rules apply:
1.2.1. references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced;
1.2.2. references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires;
1.2.3. headings will not affect the construction of these Conditions; and
1.2.4. a reference to writing or written includes faxes and emails.
2. Terms of Acceptance
2.1. The Buyer agrees that 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 unless such other terms are otherwise specifically agreed in writing by a director of the Company. The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.2. These Conditions shall not create any agency or partnership between the Parties or any third party.
2.3. Any quotations and/or estimates given by the Company shall be deemed as an ‘invitation to treat’ and not an offer. A quotation and/or estimate shall only be valid for a period of twenty (20) Business Days from its date of issue.
2.4. An Order may be made through:
2.4.1. our trade website (subject to approval by your Sales Manager);
2.4.2. by Electronic Data Interchange (EDI); or
2.4.3. by email to firstname.lastname@example.org;
2.5. An Order made by the Buyer shall clearly state the following:
2.5.1. the type of Products to be ordered;
2.5.2. the quantity of Products to be ordered; and
2.5.3. the address where the Products are to be delivered or collected (as the case may be).
2.6. Where an Order is placed orally or in the event of any dispute as to the terms of an Order, the Company’s version of the Order shall be deemed to be the authoritative Order and the Buyer shall not dispute the correctness of the same. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate.
2.7. The Order constitutes an offer by the Buyer to purchase the Products in accordance with these Conditions.
2.8. A Contract is formed between the Buyer and the Company when (and not before) the Company issues a written acceptance of the Order.
2.9. The Parties agree that the Contracts (Rights of Third Parties) Act 1999 shall not apply to any Contract.
2.10. The Contract constitutes the entire agreement between the Parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract.
2.11. Any samples, drawings, descriptive matter, or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract nor have any contractual force.
2.12. To the extent that the Products (including, but not limited to, bespoke Products) are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Company’s use of the Specification.
3. Delivery and Installation of Products
3.1. If the Buyer is to collect the Products, the Company will notify the Buyer as soon as practicable when the Products are ready for collection and the Buyer shall collect the Products from the address specified in the Order (or such alternative location as the Parties have agreed in writing). The Buyer shall collect the Products within three (3) Business Days of the Company notifying the Buyer that the Products are ready for collection.
3.2. Where the Company agrees in writing to deliver the Products to the Buyer, the Products will be delivered to the address which the Buyer has specified in the Order or such alternative location as the Parties have agreed in writing (Delivery Location). The Company shall use its reasonable endeavours to meet any delivery dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the delivery of the Products.
3.3. For the avoidance of doubt, if delivery is to be made by the Company to the Buyer in accordance with Clause 3.2 the Company shall not be liable for any delay in delivery of the Products that is caused by the following:
3.3.1. a failure of a third party supplier;
3.3.2. a Force Majeure Event; or
3.3.3. the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
3.4. Delivery is completed when the Company unloads the Products at the Buyer’s disposal for collection at the address specified in the Order (or such alternative location as the Parties have agreed in writing) or when the Products arrive at the Delivery Location.
3.5. If the Company fails to deliver the Products, its liability shall be limited to return of the purchase price of the Products.
3.6. If the Buyer fails to take delivery of the Products or fails to collect the Products within three (3) Business Days of the Company notifying the Buyer that the Products are ready for collection, then, except where such failure or delay is caused by the Company’s deliberate failure to comply with its obligations under the Contract:
3.6.1. delivery of the Products shall be deemed to have been completed on the date of the first attempted delivery by the Company in accordance with clause 3.2 or the third Business Day following the day on which the Company notified the Buyer that the Products were ready for collection in accordance with Clause 3.1; and
3.6.2. the Company shall store the Products until delivery or collection takes place and charge the Buyer for all related costs and expenses (including insurance).
3.7. If ten (10) Business Days after the day on which the Company notified the Buyer that the Products were ready for delivery the Buyer has not taken delivery of them, the Company may resell or otherwise dispose of part or all of the Products.
3.8. If the Company is unable to effect delivery due to any fault of the Buyer, the Buyer may incur additional delivery charges.
3.9. The Company may deliver the Products by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
3.10. If the Buyer has pre-arranged credit in place for any Order at the time a Contract is made and subsequently has such credit withdrawn (for any reason) before the Products are delivered to the Delivery Location in accordance with clause 3.2, without limiting its other rights or remedies, the Company reserves the right to amend any payment terms in the Order and/or Contract.
3.11. If such pre-arranged credit is withdrawn pursuant to clause 3.10, the Company may still deliver the Products, however the Buyer shall be required to pay for such Products upfront and in full.
3.12. If the Buyer fails to make payment in accordance with clause 3.11, the Company reserves the right to keep any deposit or part-payment paid by the Buyer in relation to the Products and/or the Order.
3.13. The Company also reserves the right to suspend the provision of the Products under the Contract, pending further credit approvals for the Buyer.
3.14. Both Parties agree that clauses 3.10, 3.11, 3.12 and 3.13 are just and necessary in order to protect the legitimate business interests of the Company.
3.15. If the Company delivers up to and including 10% more or less than the quantity of Products ordered, the Buyer may not reject them, but on receipt of notice from the Buyer that the incorrect quantity of Products was delivered, a pro rata adjustment shall be made to the Order invoice.
4. Title and Risk
4.2. Title to the Products shall not pass to the Buyer until the earlier of:
4.2.1. the Company receives payment in full (in cleared funds by bank transfer) for the Products and all other sums that are or that become due to the Company from the Buyer for sales of Products or on any account, (in which case title to the Products shall pass at the time of payment of all such sums); and
4.2.2. the Buyer resells the Products, in which case title to the Products shall pass to the Buyer at the time specified in clause 4.4.
4.3. Until title to the Products has passed to the Buyer, the Buyer shall:
4.3.1. store the Products separately from all other goods held by the Buyer so that they remain readily identifiable as the Company's property;
4.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
4.3.3. maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery or collection;
4.3.4. notify the Company immediately if it becomes subject to any of the events listed in clause 10.1.4 -10.1.15; and
4.3.5. give the Company such information relating to the Products as the Company may reasonably require from time to time.
4.4. Subject to clause 4.5, the Buyer may resell or use the Products in the ordinary course of its business (but not otherwise) before the Company receives payment for the Products. However, if the Buyer resells the Products before that time:
4.4.1. it does so as principal and not as the Company’s agent; and
4.4.2. title to the Products shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs.
4.5. If before title to the Products passes to the Buyer the Buyer becomes subject to any of the events listed in clauses 10.1.4-10.1.5, then, without limiting any other right or remedy the Company may have:
4.5.1. the Buyer's right to resell the Products or use them in the ordinary course of its business ceases immediately; and
4.5.2. the Company may at any time:
188.8.131.52. require the Buyer to deliver up all Products in its possession which have not been resold, or irrevocably incorporated into another product; and
184.108.40.206. if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Products are stored in order to recover them.
5.2. The Company will use its reasonable endeavours to pass on any manufacturer’s warranty to the Buyer (where applicable).
5.3. Subject to clause 5.4, if:
5.3.1. the Buyer gives notice in writing to the Company within a reasonable time of discovery that some or all of the Products have Damage in accordance with Clause 5.1;
5.3.2. the Supplier is given a reasonable opportunity of examining such Products; and
5.3.3. the Buyer (if asked to do so by the Company) returns such Products to the Company’s place of business (or such alternative location as the Parties have agreed in writing) at the Buyer's sole cost,
the Company shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
5.4. The Company shall not be liable for any Damage in respect of the Products if:
5.4.1. the Buyer makes any further use of the Products after giving notice in accordance with clause 5.3.1; or
5.4.2. such Damage arose as a result of the Products being improperly assembled, stored used and/or not used in accordance with the manufacturer’s manual or in accordance with the Company’s oral or written instructions as to the storage, commissioning, installation or use of the Products or (if there are none) good trade practice regarding the same; or
5.4.3. the Damage arises as a result of the Company following any drawing, design, Specification or other instructions supplied by the Buyer in relation to Products (including, but not limited to, bespoke Products);
5.4.4. such Damage was the result of unauthorised modification of the Products without the written consent of the Company; or
5.4.5. such Damage arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage.
5.5. The Company’s only liability to the Buyer if the Products have Damage, is as set out in this Clause 5. All warranties, conditions and other terms implied by statute or common law (including sections 13 to 15 of the Sale of Goods Act 1979) are to the fullest extent permitted by law, excluded from these Conditions and/or Contracts.
5.6. The above terms shall apply to any repaired or replacement Products supplied by the Company.
6. Price and Payment
6.2. The Company may, by giving notice to the Buyer at any time up to three (3) Business Days before delivery or collection, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
6.2.1. any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
6.2.2. any request by the Buyer to change the delivery or collection date(s), quantities or types of Products ordered; or
6.2.3. any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate or accurate information or instructions.
6.3. The price of the Products is exclusive of the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Buyer.
6.4. The price of the Products is exclusive of amounts in respect of value added tax ("VAT"). The Buyer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Products.
6.5. The Company may invoice the Buyer for the Products on or at any time after the completion of delivery or collection of the Products.
6.6. Subject to clause 3.10, the Buyer shall make payment to the Company in respect of the Products within thirty (30) days of the date of the Company’s invoice (or if applicable pursuant to such alternative instructions as set out in the aforementioned invoices or the Company’s acceptance of order form (as the case may be by way of bank). Time for payment is of the essence.
6.7. No payment for the Products shall be deemed to have been received until the Company has received cleared funds for the whole sum specified in such invoice.
6.8. If the Buyer fails to make any payment due to the Company under the Contract by the due date for payment, the Company shall be entitled (without prejudice to any other right or remedy it may have) to charge the Buyer interest on the sum at the rate of 5% per cent per annum above Handelsbanken plc base rate in force from time to time from the date the payment became due until actual payment is made (irrespective of whether the date of payment is before or after any judgment or award in respect of the same).
6.9. Where the Buyer has paid a deposit or upfront payment as part-payment towards the full price of an Order, the Company shall deduct this amount from the total price of the Order, leaving the Buyer to pay the balance.
7.2. Without prejudice to Clause 5.3, if Products have been delivered or collected, the Products may not be returned unless agreed in writing in advance by a director of the Company. Any return which has been agreed shall be subject to the following conditions:
7.2.1. the Products are in brand new and unused condition;
7.2.2. the packaging of the Products remains intact and unbroken and in reasonable condition;
7.2.3. the Products are returned at the sole cost of the Buyer; and
7.2.4. the returned Products are received within fourteen (14) days from the date that a director of the Company agreed to accept the returned Products.
7.3. Where Products are cancelled or returned pursuant to this Clause 7, the Company reserves the right to charge a reasonable administration cost.
7.4. The Buyer cannot cancel any Contract whilst the Company is in bona fide discussions with the Buyer due to a Force Majeure Event and the Buyer shall remain liable to pay all sums due under that Contract.
8. Disputes and Set Off
8.2. The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
9. Limitation of Liability
9.1.1. death or personal injury caused by the Company’s negligence or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2. fraud or fraudulent misrepresentation;
9.1.3. breach of terms implied by section 12 of the Sale of Goods Act 1979; and
9.1.4. defective products under the Consumer Protection Act 1987.
9.2. Subject to Clause 9.1, the Company’s total liability in respect of all claims arising out in connection with the Contract (whether in negligence, contract, tort, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Conditions) will be limited to the higher of:
9.2.1. the cost of the Products; or
9.2.2. the costs and expenses incurred in obtaining replacement products of
similar description and quality to the Products in the cheapest market available, less the price of the Products.
9.3. Subject to Clause 9.1 the Company shall not be liable to the Buyer whether in contract, tort (including negligence, breach of statutory duty or otherwise) for any indirect or consequential loss or damage (whether for loss of profit, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever which arise out of or in connection with these Conditions or Contract.
9.4. The provisions of this Clause 9 shall survive the termination of these Conditions and/or Contracts.
10. Termination and Suspension
10.1.1. the Buyer fails or refuses to collect or take delivery of any Products in accordance with these Conditions;
10.1.2. the Buyer commits any material breach of these Conditions;
10.1.3. the Buyer fails to pay any sums due to the Company by the due date for payment;
10.1.4. the Buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
10.1.5. the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Buyer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
10.1.6. (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
10.1.7. (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer;
10.1.8. (being a company) the holder of a qualifying floating charge over the Buyer's assets has become entitled to appoint or has appointed an administrative receiver;
10.1.9. a person becomes entitled to appoint a receiver over the Buyer's assets or a receiver is appointed over the Buyer's assets;
10.1.10. (being an individual) the Buyer is the subject of a bankruptcy petition or order;
10.1.11. a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days;
10.1.12. any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1.4 to clause 10.1.11 (inclusive);
10.1.13. the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
10.1.14. the Buyer's financial position deteriorates to such an extent that in the Company's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
10.1.15. (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.2. Without limiting its other rights or remedies, the Company may suspend provision of the Products under the Contract or any other Contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in clause 10.1.4 to 10.1.15, or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
10.3. On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices together with any interest.
10.4. Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
10.5. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
11. Intellectual Property
12. Data Protection
14. Force Majeure
14.1.1. acts of God, flood, drought, earthquake or other natural disaster;
14.1.2. epidemic or pandemic or other contagious or communicable disease including, but not limited to, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) which causes COVID-19, and in each case, any effects arising from or in connection with the same including, but not limited to, any actions, recommendations, announcements, lockdowns or restrictions, related to its subject matter (whether made by a government body, authority, public health organisation or other similar official body) which affects the Company’s performance of its obligations under the Contract;
14.1.3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations;
14.1.4. nuclear chemical or biological contamination, or sonic boom;
14.1.5. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition or failing to grant a necessary licence or consent;
14.1.6. collapse of buildings, fire, explosion or accident;
14.1.7. industrial disputes relating to the Company, the Company’s personnel or any other failure in the Company’s supply chain.
14.1.8. failure of third party suppliers including, but not limited to:
220.127.116.11. strikes, lockouts or other industrial actions or trade disputes;
18.104.22.168. bankruptcy of third party suppliers; or
22.214.171.124. closure of manufacturing premises or other factory or warehouse used by third party suppliers due to acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority.
14.2. Provided it has complied with clause 14.3 if (and to the extent that) the Company is prevented, hindered or delayed in or from performing all or a substantial part of its obligations under the Contract by a Force Majeure Event, the Company will not be in breach of the Contract or otherwise liable for any failure or delay in the performance of such obligations. The time for performance of its obligations will be deemed extended accordingly.
14.3. As soon as reasonably practicable after the start of the Force Majeure Event, the Company shall notify the Buyer of the Force Majeure Event, the estimated date on which it started and the likely effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract.
14.4. As soon as practicable following the Company’s notification in clause 14.3, the Parties shall consult with each other in good faith and use all reasonable endeavours to agree appropriate terms to mitigate the effects of the Force Majeure Event and to facilitate the continued performance of the Contract.
14.5. This clause 14 does not excuse a party from paying sums due under this Contract.
14.6. The Company shall notify the other party as soon as practicable after the Force Majeure Event no longer causes it to be unable to comply with its obligations under the Contract. Following such notification, the Contract shall continue to be performed on the terms existing immediately prior to the occurrence of the Force Majeure Event, unless agreed otherwise in writing by the Parties.
14.7. If a Force Majeure Event is prevailing or predicted at the date of a Contract the Company will be entitled to relief under clause 14.2 only if at the date of the Contract, it had good reason to believe that it would be able to perform its obligations notwithstanding the Force Majeure Event.
14.8. If the Force Majeure Event prevents the Company’s performance of its obligations for a continuous period of more than 12 weeks, the Buyer may terminate the Contract by giving 30 days’ written notice to the Company.
15. Assignment of Other Dealings
15.1. The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.2. The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company
16.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.1; 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 fax or e-mail, one Business Day after transmission.
16.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
17.2. If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
20. Law and Jurisdiction
20.2. Each Party irrevocably agrees that the courts of England 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).