OW HOSPITALITY LTD
International Sales Order Terms
These are the Sales Order Terms of OW Hospitality Ltd (the Seller).
1.1††††††† The definitions and rules of interpretation in this condition shall apply in these Terms.
††††††††††† Buyer: the person, firm or company who buys Goods from the Seller subject to these ††††††† Terms.
††††††††††† Goods:† any Goods agreed in the Contract to be sold by the Seller to the Buyer.
††††††††††† Intellectual Property Rights (IPR):† All copyright, database rights, design rights, trade marks, trade names, utility models, patents, domain names and other intellectual property rights of a similar nature subsisting anywhere in the world or associated with the Goods.
††††††††††† Order: the Buyerís written instruction to buy the Goods from the Seller.
††††††††††† Order Confirmation: the Sellerís written acceptance of the Buyerís Order in accordance with clause 3.1.
††††††††††† Warranty: the Sellerís guarantee of conformity of the Goods set out in clause 8.
1.2††††††† Headings do not affect the interpretation of these Terms.
2.†††††††† Application of Terms
2.1†††††† These Terms shall govern and be incorporated into every Contract by the Seller with any Buyer to the exclusion of all other terms and warranties and representing the only terms upon which the Seller trades.
2.2†††††† Acceptance by a Buyer of delivery of Goods shall constitute unqualified acceptance of these Terms and subsequent sales of Goods shall be deemed to be subject to these Terms.
2.3†††††† Any waiver or variation of these Terms may only be made in writing signed by a director of the Seller.
3.†††††††† Basis of the
3.1 ††††† Any estimate, quotation or the Seller price lists shall constitute an invitation to treat. Any Order placed by a Buyer shall constitute an offer, which the Seller may accept or decline.† The Seller will send Order Confirmation which shall constitute legal acceptance of the Buyerís Order at the time of sending.
3.2†††††† The Seller reserves the right to withdraw or amend a quotation at any time before receipt of an unqualified order from the Buyer and each quotation shall be deemed withdrawn unless accepted within the period for acceptance stated on the quotation, or if not such period is stated, 90 days from the date of the quotation.
3.3†††††† The Sellerís employees or agents are not authorised to make any representation or recommendation concerning the Goods unless confirmed by the Seller in writing.† In entering into the contract the Buyer acknowledges that it does not rely on such representations or recommendations.
3.4†††††† Any error or omission in sales literature, quotation or other document issued by the Seller shall be subject to correction without liability on the part of the Seller.
4.†††††††† Order and Specifications
4.1†††††† The Buyer shall be responsible for ensuring the accuracy of its Order and for giving all relevant information concerning the Goods to the Seller.
4.2†††††† Goods supplied shall conform to sample(s) sent by the Seller to the Buyer† as described in the Sellerís quotation subject only to such amendments by the Buyer as are accepted in writing by the Seller.
4.3†††††† The Seller reserves the right to make any changes in the specification of Goods which are required to ensure conformity with any legal requirement and which do not materially affect their quality or performance.††
4.4†††††† The Seller may specify a minimum order quantity.
4.5†††††† No Order which has been accepted by the Seller may be cancelled by the Buyer unless the Buyer indemnifies the Seller against all losses incurred as a result of such cancellation.† Where an Order is for bespoke goods indemnity will involve payment to the Seller of the entire sale price of the Goods.
4.6†††††† No Order will be accepted on the basis of sale in accordance with a sample unless specifically requested by the Buyer.† In such case the Buyer must acknowledge its approval of the sample in writing to the Seller in accordance with the Sellerís reasonable requirements prior to placing an Order.
5.1†††††† Save for valid quotations supplied under clause 3, all prices will be those ruling at the date of delivery and will be quoted Free Carrier (FCA) at Alexandria or Cairo (or other agreed place in Egypt) but subject to the provisions of clause 5.2.† On delivery the Seller shall provide the Buyer with such export documents as are necessary together with the delivery note.
5.2†††††† All prices are exclusive of sales tax and any other similar taxes and duties which shall be paid by the Buyer in addition (if applicable).
5.3†††††† The Seller reserves the right by giving written notice to the Buyer that any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller or to reflect any change in delivery dates, quantities or specifications for the Goods requested by the Buyer or by the failure of the Buyer to give the Seller adequate information.
6.1†††††† The Sellerís normal payment terms are:
∑ an advance payment with order.† For first orders this can be full payment against pro forma invoice
∑ any remaining balance of the price payable by letter of credit.
but† payment terms will be agreed by negotiation prior to placement of any order.
6.2††††††† All payments must be made by the Buyer in the currency specified in the Sellerís invoice.† All payments must be made by bank transfer to the bank account of the Seller specified in the Sellerís invoice.† The Buyer is responsible for bank charges in making payment to the Seller and must ensure payment of the Sellerís invoice in full.
6.3†††††† Time of payment is of
the essence.† The Seller reserves the
right to claim interest from the date any invoice becomes overdue at a rate
which is 4% above the current London Interbank Operating rate (LIBOR)
applicable in the
6.4†††††† Non-payment by the due date will entitle the Seller to suspend further deliveries without notice.
6.5†††††† If the Buyer fails to take delivery of goods which the Seller has notified the Buyer are ready for despatch, the† Seller shall be entitled to invoice the Buyer at any time after the Seller has notified the Buyer that the Goods are ready for collection or delivery.
7.†††††††† Delivery and Risk
7.1†††††† Times quoted for delivery are treated as estimates only.†† The Seller will make all reasonable endeavours to deliver on time but will not be responsible for any loss or damage caused to the Buyer by late delivery.
7.2†††††† Goods will be delivered to the Buyer at the address agreed in accordance with clause 5.1.† The risk in the Goods shall pass to the Buyer upon such delivery taking place.
7.3†††††† Where Goods are delivered by instalments, each delivery shall constitute a separate contract. †Failure by the Seller to deliver one or more instalments shall not entitle the Buyer to treat the contract for other instalments as repudiated.
7.4†††††† If the Buyer fails to take delivery of the Goods without good reason then the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs of storage, transport, re-delivery and other incidental costs including insurance.
7.5†††††† The Buyer must inspect the Goods promptly upon their arrival particularly as to length and conformance to sample.† The Buyer must send written notice of any shortages or defects in the goods† which are apparent on reasonable inspection to the Seller within 7 days of arrival of the Goods.
7.6†††††† If the Buyer fails to give notice as specified in clause 7.5 then, except in respect of any defect which is not one which would be apparent on reasonable inspection, the Goods shall be conclusively presumed to comply with the Warranty and the Buyer shall be deemed to have accepted the delivery of the Goods in question and the Seller shall have no liability to the Buyer with respect to that delivery (except in relation to liability for any latent defects).
7.7†††††† If the Buyer alleges that the Goods are defective it shall make them available for inspection by the Seller. †The Seller may arrange for inspection of the Goods by its agent or by a local independent carpet designer or fitter as appropriate.† If the parties agree to be bound by the decision of a local expert then they will share the cost of his services.
8.1††††††† The Seller warrants that the Goods will conform to sample† and be as described in the Sellerís quotation at the time of delivery (Warranty).
8.2††††††† The Warranty in 8.1 is subject to the following conditions:
8.2.1†††† The Seller shall not be liable for any defect arising from failure to follow the Sellerís instructions or misuse of the Goods;
8.2.2†††† The Carpet Specific Terms set out in the Schedule impose limitations on the Warranty.
8.2.3†††† The Seller shall not be under Warranty liability if the total price for the Goods has not been paid by the due date for payment.
8.2.4†††† Otherwise (except where the Goods are sold to a Consumer), all warranties, conditions and other terms implied by statute or law are excluded.
8.2.5†††† ďConsumerĒ for the purposes of this clause 8 is defined as a natural person who does not make the contract in the course of a business and where the Goods supplied are of a type ordinarily supplied for private use or consumption.
8.3††††††† The Buyer must notify the Seller of any Warranty claim as set out in clause 7.† If the Buyer does not so notify the Seller in writing in accordance with clause 7, the Buyer shall not be entitled to reject the Goods.
9.1††††††† The Buyer is responsible for obtaining at its own cost such import licences and other consents in relation to the Goods as are required.† If required by the Seller the Buyer shall make those licences and consents available to the Seller prior to shipment of the Goods.
10.†††††† Property and Title
10.1††††† Until full payment has been received by the Seller for all Goods supplied to the Buyer, the Goods shall remain the property of the Seller.
10.2††††† Where property in the Goods remains that of the Seller, the following terms shall apply:-
10.2.1†† The Buyer shall hold the Goods on a fiduciary basis as the Supplierís bailee.The Buyer shall store the Goods carefully and ensure that they are clearly identified as belonging to the Seller.
10.2.2†† The Goods shall not be mixed with other products or altered in any way.
10.2.3†† The Buyer will insure the Goods for their replacement value naming the Seller as the loss payee.
but the Buyer may resell or use the Goods in the Ordinary course of its business.
10.3††††† The Buyer grants to the Seller an irrevocable licence for the Seller, its agents and employees to enter any premises of the Buyer to ascertain whether any Goods are stored there and to inspect, count and recover such Goods.
11.1††††† In respect of any valid claim, the Seller shall be entitled to replace the Goods free of charge or at the Sellerís discretion refund to the Buyer the price of the Goods but the Seller shall have no further liability to the Buyer.
11.2††††† Notwithstanding clause 11.1 above, if the Seller is liable to the Buyer arising out of this Agreement such liability shall be limited to direct loss and damage only and shall not exceed 200% of the price of the Goods in question.
11.3††††† The Seller shall not be liable to the Buyer for any indirect special or consequential loss or damage, including loss of profit, loss of use, loss of business or business opportunity or anticipated savings.
11.4††††† Nothing in these terms shall limit the Sellerís liability for:
∑ Death or personal injury resulting from the Sellerís negligence; or
∑ Fraud or fraudulent misrepresentation made by the Seller.
11.5††††† The Buyerís attention is drawn to the Sellerís Carpet Specific Terms set out in the Schedule.†† The Seller will not accept liability for claims arising from the Buyerís failure to follow the Sellerís recommendations.† Where the Buyer resells the Goods it must pass on the Carpet Specific Terms to its own purchaser.
12.††††††† Intellectual Property Rights
12.1††††† The Buyer acknowledges that the Intellectual Property Rights in relation to the Goods belong to the Seller (except where designs are supplied by the Buyer under clause 12.2) and nothing in this Agreement shall confer any licence or grant any rights in favour of the Buyer in relation to the Sellerís IPR.
12.2††††† Where the Goods are bespoke involving designs supplied by the Buyer to the Seller, the Buyer warrants to the Seller that it is entitled to use such designs.† The Buyer will indemnify the Seller in respect of claims by third parties that the Buyerís designs as used by the Seller in relation to the Goods infringe any such third partyís IPR.
12.3††††† Where the Buyer supplies bespoke designs for the Goods under clause 12.2, the Seller will convert these designs to create a ďCarpet Design FileĒ to enable production of the Goods being machine made woven carpet.† IPR in the Carpet Design File vests in the Seller although the Seller will not use a Carpet Design File created for any Buyer for another customer without the Buyerís consent.
12.4††††† The Seller will indemnify the Buyer in respect of claims by third parties that any designs originated by the Seller in relation to the Goods supplied to the Buyer infringe any such third partyís IPR.
13.††††††† Force Majeure
13.1††††† The Seller shall have no liability or responsibility for the failure of any obligation under this Agreement so long as, and to the extent to which, the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.
13.2††††† Where the Seller claims the benefit of this provision it shall promptly after the occurrence of a Force Majeure Event:-
††††††††††††††††††††††††††† (a)††† ††Notify the Buyer of the nature and extent of such Force Majeure ††††††††††††††††††††††† †††Event; and
††††††††††††††††††††††††††† (b)††† †† Use all reasonable endeavours to remove such causes and resume ††††††††††††††††††† †††performance under this Agreement promptly.
13.3††††† For the purposes of this clause 13 a Force Majeure Event means an event beyond the control of the Seller which by its nature could not have been foreseen by the Seller or if it could have been foreseen was unavoidable, and includes acts of God, storms, floods, riots, fire, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war, armed hostilities or national or international calamity, acts of terrorism, failure of energy sources, sanctions, prohibitions on export, supervening illegality or any other cause beyond the control of the Seller.
14.1††††† This clause applies if:
14.1.1†† The Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or any legally similar circumstances occur in any jurisdiction; or
††††††††††† 14.1.2†† The Buyer ceases or threatens to cease to carry on business; or
††††††††††† 14.1.3†† The Buyer fails to pay its debts as and when they fall due; or
14.1.4†† The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
14.2††††† If this clause applies then the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer.† If any Goods have been delivered but not paid for the price shall become immediately due and payable.
15.††††††† Entire Agreement
15.1††††† These terms constitute the entire agreement between the parties in connection with the sale of the Goods and supersede any previous agreement, statement, representation or understanding given or made before the date of Order Confirmation in relation to the Goods.
15.2††††† Neither party relies upon any oral or written statement made by the other (whether made carelessly or not) that is not set out in these terms unless such statement was made or given fraudulently.
16.1††††† Any notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to that other party at its registered office or its trading address.
16.2††††† No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
16.3††††† If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, that provision shall be severed from the contract and the validity of the other provisions of these Terms shall not be affected.
17.††††††† Disputes and Law
17.1††††† All disputes arising in relation to these terms shall be referred to senior officers of each party who shall meet and attempt to settle the dispute between themselves acting in good faith within 30 days.† If officers fail to resolve the dispute within 30 days then either party may refer the dispute to arbitration in accordance with the provisions of clause 17.2
17.2††††† Any dispute arising out
of or in connection with any contract entered into under these terms, including
any question regarding its existence, validity or termination, shall be
referred to and finally resolved by arbitration under the Rules of the London
Court of International Arbitration (LCIA), which Rules are deemed to be
incorporated by reference into this clause.†
The number of arbitrators shall be one and the seat or legal place of
arbitration shall be
17.3††††† The Contract shall be
governed by the laws of
Oriental Weavers International
Sales Order Terms
Carpet Specific Terms and Conditions
(referred to in clause 8.2.2 of the Terms)
This is the Schedule to the Sales
Order Terms of Oriental Weavers International (Seller) and sets out terms
specific to supply, care and use of carpet to any Buyer.† Standards used in this Schedule are
professional standards in the
A.†††††††† Design and Colour Matching
For technical reasons it is not always possible to obtain the exact colour match between different widths of carpet which have the same colour or repeat description, nor between carpets of the same width and colour description which are manufactured in different batches.† The Seller recommends that all carpets for a single installation or project should be of the same width and from the same batch.† The Seller will not otherwise accept responsibility for any mismatching of carpet with the same colour or repeat description.
B.†††††††† Pile Yarns and Materials
1.†††††††† Standard woven carpets have pile yarns containing 80% wool and 20% nylon.† Non standard carpet may have other pile yarns according to the specifications provided when tendering.† Non woven carpet will† have pile yarn as specified in the price list.† Yarn designations will comply with BS946 and BS947.
2.†††††††† The Seller reserves the right to substitute other materials without notice provided the Seller considers these are of the same quality, performance and general description.
C.†††††††† Pile Reversal (Shading)
Cut pile carpets may be subject to permanent pile reversal, also known as shading or watermarking.† The pile in certain areas of carpet may become distorted giving the appearance of areas of light and shade.† This effect is most noticeable in carpets with plain colours or open ground designs.† This is an industry norm for cut pile carpets.† No specific cause has been identified but it is not a manufacturing fault.
D.†††††††† Colour Fastness
The Company uses best quality dyestuffs with a view to achieving good results in relation to levelness, light fastness, colour accuracy, brilliance and colour penetration.† However, no dye is permanently fast to light; light shades have a lower fastness than dark shades manufactured from the same dyestuffs.† Performance of dyes vary with conditions of use for which the Seller accepts no responsibility.† Carpet supplied by the Seller will comply with the following BS standards for colourfastness:
††††††††††† Light†††††††††††††††††††††††††††† -†††††††††† BS EN ISO 105: BO2;
††††††††††† Water ††††††††††††††††††††††††† -†††††††††† BS EN ISO 105: E01;
††††††††††† Wet and Dry Rubbing†††† -†††††††††† BS EN ISO 105: X12
Where carpets are placed on stairs the most heavy wear is concentrated on the stair noses.† To prolong life and good appearance stair carpets should be moved six months after installation and at yearly intervals thereafter.† The Seller will not be liable for the consequences of failing to follow this recommendation.
All carpet supplied by the Seller is subject to a width tolerance of plus or minus 1.25% to comply with BS3655.†
G.†††††††† Berbers / Heathers / Stipple / Blended
Carpets made from berber, heather, stipple or blended yarns, involve the random use of natural colours and effects.† Different production batches will show greater variations of colour than carpet produced in plain dyed shades.† This is an inherent characteristic of these types of carpet.† Each batch is unique.† This is not a manufacturing fault.†
H.†††††††† Sample Approval
Where the Buyer requires complete colour accuracy, the Seller will only accept an Order if the Buyer has approved and signed a sample of the carpet prior to acceptance of Order (see clause 4).
Where the Buyer sub-sells the Goods, the Buyer must pass all the information in this Schedule to his purchaser.
The Seller will comply with the warranty contained in clause 8 of the Sales Order Terms.† However the Seller will not be liable for any loss or damage suffered by the Buyer or any third party as a result of failure to follow any of the Sellerís carpet specific recommendations contained in this Schedule.
Updated 17 January 2012