Business Terms of Sale and Purchase

Business Terms of Purchase

1. These conditions together with any other terms or conditions agreed in writing by the Company or implied by law (“Conditions”) shall apply to all contracts for the purchase of goods by the Company (“Goods”) to the exclusion of all other terms and conditions including, without limitation, any terms and conditions which the seller may purport to apply. In these conditions, "Contract" means the contract for the purchase of Goods formed by the Seller's acceptance of the Company's order.

2. The first of a) commencement of manufacture of the Goods; or b) despatch or delivery of the Goods by the seller following the seller's receipt of the Company's order shall be deemed conclusive evidence of the seller’s acceptance of these Conditions.

3. No variation of these Conditions shall be applicable unless agreed in writing by the Company.

4. The price for the Goods shall be the price set out on the purchase order (“the Price”). The Price shall be exclusive of VAT (if applicable) and any applicable duties and taxes but inclusive of packaging, carriage and delivery to the Company’s specified delivery address. The seller shall obtain all necessary export licences, clearances and other consents necessary for the sale of the Goods.

5. Unless, otherwise agreed between the parties in writing, the seller shall not invoice the Goods until delivery of all the Goods under a Contract has been made. However, where the parties have agreed different delivery dates for different parts of the order, the seller may invoice for the Goods agreed to be delivered on a particular date once all those Goods have been delivered Payment of the Price and any applicable VAT shall be made in sterling or such other currency as is agreed between the parties and is due 30 working days after the end of the month in which the appropriate invoice is received. The payment of an invoice shall not imply acceptance of the Goods or waiver of any right to claim for any breach of Contract.

6. The Company may set off against the Price and any VAT, any amount due from the seller on any account whatsoever.

7. The quantity and specification of the Goods shall be as specified by the Company. The seller shall quote all Company references, purchase order numbers, and stock identification codes on all invoices, delivery notes and all other paperwork supplied by the seller.

8. The seller shall ensure that all Goods shall be manufactured, stored, tested and packed in accordance with all applicable legal requirements, British Standards Institution (BSI) and International Organization for Standardization (ISO) standards and any other applicable requirements relating to the Goods in the territories specified by the Company or in which the Goods are known to be intended for sale; and that all the Goods are of merchantable and satisfactory quality and fit for the purpose for which the Company intends such goods to be used.

9. The seller shall ensure that the Goods comply fully with specifications, drawings, samples or other descriptions and meet all performance criteria provided by the seller or the Company or agreed with the Company and shall permit the Company to inspect and test the Goods during their manufacture and processing. If the Company is not reasonably satisfied that the Goods comply in all material respects with the Company’s requirements, the seller shall take all necessary steps at its own cost to ensure due compliance.

10. The Goods shall be marked and packed in accordance with the Company’s instructions and all legal requirements. The Goods shall be properly packed and secured for delivery to the Company in good, undamaged condition.

11. Where any specifications, drawings, patterns, samples, designs, screen prints, tools or moulds relating to any of the Goods have been provided by the Company to the seller, the copyright, registered design, design right, patent, trade names, trade marks (registered or unregistered) and other intellectual property rights in such items shall remain the property of the Company. Such items shall be kept in good condition; used only for the supply of Goods to the Company; shall not be disclosed to any third party; and shall be returned to the Company on request.

12. Delivery of the Goods shall be made to the address specified on the Company’s purchase order on the agreed delivery date. If the Company cannot take delivery at the specified time and/or place, the seller and the Company shall agree an alternative time and/or address. Time of delivery shall be of the essence. The Company reserves the right to reject any Goods which are delivered without an order number, Company stock identification number or any other information which may have been specified by the Company.

13. The seller shall be deemed to have accepted the delivery date specified on a purchase order unless the Company receives a written request for alteration from the seller within 5 working days from the date the purchase order is sent.

14. If the seller fails to deliver the correct quantity of goods in full compliance with a Contract, the Company may, without limiting its other rights, take any of the following steps; (a) terminate the Contract in whole or in part and recover damages for the seller’s breach; (b) where short delivery has been tendered, accept the Goods which correspond to the Contract and claim damages for the seller’s breach of Contract; (c) where delivery of non-complying Goods has been tendered, accept the Goods subject to a reasonable price reduction and/or claim damages for the seller’s breach of Contract; (d) require the seller without delay to deliver sufficient Goods to fully comply with the Contract and recover damages for the delayed delivery

15. The Company shall not be deemed to have accepted any part of the Goods until after the Company has actually inspected the Goods and ascertained that they are in accordance with the Contract. Without prejudice to its other rights, the Company may reject Goods which are not in accordance with a Contract within a reasonable time after such inspection.

16. The Company may return any of the Goods which are not in accordance with a Contract at any time up to 12 months after delivery notwithstanding that the Goods may already have been accepted by the Company and the seller shall, without prejudice to the Company's rights, replace or refund the Price of the returned Goods at the Company’s option.

17. Title and risk, unless otherwise agreed, shall pass on delivery of the Goods.

18. The seller shall indemnify the Company against all actions, suits, claims, demands, costs, charges, damages, losses and expenses suffered or incurred by the Company and/or for which the Company may be liable to any third party due to, arising, whether directly or indirectly, from or in connection with: (a) the negligent or wilful acts or omissions of the seller, his servants, agents or contractors in manufacturing, supplying or delivering the Goods; (b) the breach of any provision of these Conditions or otherwise of any Contract between the Seller and the Company. (c) any defect in the workmanship, materials or design of the Goods or their packaging; (d) any infringement or alleged infringement of any patent, copyright, registered design, design right, trade mark, trade name or other intellectual property right for or relating to the Goods unless such infringement has occurred directly as a result of any specification supplied by the Company; (e) any liability in respect of the Goods under the Consumer Protection Act 1987 (as amended from time to time) or any equivalent legislation in the territories specified by the Company or in which the Goods are known to be intended for sale .

19. No Contract may be assigned, charged, sub-contracted or delegated in whole or in part without the prior written consent of the Company.

20. The construction, validity and performance of all Contracts between the Company and the seller shall be governed by English Law and the seller shall submit to the jurisdiction of the English Courts although this shall not limit the right of the Company to commence proceedings in any jurisdiction the Company deems appropriate.

21. Any part of these Conditions which is shown to be void or unenforceable shall be deemed severable and shall not affect any other part of these Conditions.

22. No waiver or forbearance by the Company (express or implied) in enforcing any of its rights under a Contract shall prejudice its rights to do so in the future.

23. Neither party shall be liable in any way for loss, damage or expense arising directly or indirectly from any failure or delay in performing any obligation under any Contract caused by any circumstances beyond its reasonable control, which shall, without limiting the generality of the foregoing, be deemed to include war or any other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, break-down or damage to machinery or equipment, fire, flood, legislative or administrative interference, acts of God, strike, lock-out or other industrial disputes (whether or not involving employees of the Company). On the occurrence of any such event, the Company may at its discretion, suspend performance of or terminate the Contract.

24. The parties agree that Section 2(1) of the Contracts (Rights of Third Parties) Act 1999 shall not apply and the parties may rescind or vary any Contract by agreement without the consent of any third party.

BERGHAUS INFORMATION
Head Office 12 Colima Avenue, Sunderland Enterprise Park, Sunderland, Tyne and Wear SR5 3XB
Telephone: +44 (0)191 5165600 Fax: +44 (0)191 5165601
Main Warehouse c/o Pentland Distribution Services, 1 Spire Road, Glover Industrial Estate, District 11, Washington, Tyne and Wear NE37 3ES
Telephone: +44 (0)191 4154037
Registered Office 8 Manchester Square London W1U 3PH
Registered in England and Wales No 871405
VAT Registration no GB 231 045 121

Business Terms of Sale (Direct Delivery)

Direct Delivery from Factory

All business is carried on subject to the following terms and conditions (“Terms”), except as varied by specific written agreement of the Company. By placing any order with the Company the customer shall be deemed to have agreed to and accepted these Terms. In these Terms "Contract" means the contract for the supply of Goods formed by the Company's acceptance of the customer's order.

1.No order will be binding upon the Company unless and until accepted by the Company in writing or by delivery of any goods the subject of the order (“Goods”).

2.Orders are accepted only on the basis that these Terms (or varied as aforesaid) apply to the order. Accordingly any terms endorsed on or referred to in any customer's order or confirmation or otherwise communicated to the Company which are inconsistent with these Terms and are not specifically agreed to in writing by the Company, shall be deemed to be superseded and nullified by these Terms.

3.The Company reserves the right to amend any accidental error or omission on quotations, order acknowledgements, invoices or credit notes.

4.Although all delivery dates stated by the Company are given in good faith and all reasonable efforts will be made to adhere to them, the Company accepts no liability for any failure to comply with such dates by reason of any cause beyond the Company’s reasonable control. Time of delivery shall not be of the essence.

5.The Company shall be entitled to make partial deliveries and failure to deliver part only of any order shall not entitle the customer to reject the Goods.

6.If the customer fails to take delivery of the Goods on the date of delivery, the Company shall, without prejudice to its other rights, be entitled to store the Goods at the customer's risk and the customer shall pay all storage and additional carriage costs incurred.

7.Whilst every effort will be made to supply Goods in accordance with samples and/or agreed specifications the Company reserves the right to modify specifications, designs and materials where such modifications do not materially affect the quality or fitness for purpose of the Goods or to comply with any applicable standards or legal requirements.

8.The Company will identify on its official order forms, specific surcharges that may be applied on orders placed. Such surcharges will be detailed and confirmed in the official Order Confirmation.

9.Unless otherwise notified to the customer, Goods will be invoiced at the price stipulated in the Company’s published price list current at the date of the acceptance of the order. Such prices are exclusive of VAT. Payment of all sums shall be made in US Dollars by Confirmed, Irrevocable Letter Of Credit payable at Sight, unless otherwise agreed in writing by the Company.

10.Unless otherwise agreed, the Company shall invoice the Goods on or after despatch of the Goods.

11.In the case of an order confirmed for delivery by instalments, each instalment shall be invoiced at the price stipulated in the Company's published price list at the date of despatch of such instalment. Such prices are exclusive of VAT. The Company shall be entitled to invoice each instalment as and when each instalment is despatched.

12.If any payment is not made in full by the due date then, without affecting any other right which it may have, the Company may deduct any outstanding amounts from any monies owed to the customer on any account whatsoever.

13.Interest on any outstanding amounts may be charged, which shall accrue from the due payment date until the date of payment at a rate of three percent (%) above the National Westminster Bank plc’s base lending rate from time to time in force. No payment shall be deemed to have been made until the Company's account is credited with the relevant cleared funds.

14.The customer may not withhold or make any deduction from or set off against any payment due to the Company for any reason.

15.The Company may sue for any monies outstanding, even if property in any of the relevant Goods has not passed to the customer.

16.Orders confirmed shall be subject to FOB terms (as defined in the latest published version of Incoterms from time to time). It is the customer's responsibility to obtain all necessary import licences, clearances and other consents necessary for the purchase and the subsequent import of the Goods and to ensure that the Goods comply with all local legislative or other legal requirements.

17.The Company will (at the Company's option) either replace or refund the price of any Goods which are shown to the Company's reasonable satisfaction to be defective in materials or workmanship at the time of delivery, or to be a shortfall in quantity delivered, provided that:
17.1 The customer inspects the Goods on delivery and notifies the Company within three (3) days of delivery of any alleged defects, shortage in quantity or damage. If the customer fails to comply with these provisions, the Goods shall be deemed conclusively to be in accordance with the Contract and free from any shortage or defect which would be apparent on a reasonable examination of them;
17.2 When signing for deliveries the customer must state clearly on the delivery note any damage or shortages;~
17.3 Loss or non-delivery must be notified in writing to the Company and to the carrier within fourteen days of the despatch date on the advice note or invoice;
17.4 Where a defect would not have been apparent on a reasonable examination under clause 17.1, the customer notifies the Company as soon as reasonably possible when the defect becomes apparent or within 90 days of delivery whichever is earlier; and
17.5 The customer provides all information and assistance required by the Company to investigate any suspected defect and, if required, permits the Company to inspect the Goods concerned at any premises where the same are located.
17.6 In the case of defective goods agreed and instructed in writing by the Company to be destroyed on site, the Company will require the customer to supply a Destruction Certificate as proof of destruction.

18.Clause 17 defines the Company’s full liability in respect of the Goods. All other conditions, warranties or other undertakings concerned with the Goods whether express or implied by statute, common law, custom, usage or otherwise, are excluded except that nothing in these Terms shall exclude any liability of the Company for death or injury resulting from negligence or for breach of terms as to title under Section 12 of the Sale of Goods Act 1979.

19. Without prejudice to the provisions of clauses 17 and 18, the Company shall not be liable for any costs, claims, damages, losses or expenses arising out of any tortious act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals.

20. Save where the law prohibits such limitation of liability and without prejudice to clauses 17, 18 and 19, the liability of the Company shall not in any circumstances exceed the invoice value of the Goods.

21.No order may be cancelled and no Goods may be returned without the Company's prior written agreement. Any returned Goods which the Company agrees in advance and in writing to accept, must be forwarded carriage prepaid to the Company and the customer shall also comply with any other provisions of the Company's Returned Goods Policy from time to time in place. In the case of Returned Goods that require repackaging or re-boxing, an appropriate charge will be made.

22.Goods which the Company has agreed to sell to the customer shall be at the customer's risk as soon as they are delivered to the customer's forwarder or agreed destination. These Goods shall remain the property of the Company until such time as the customer shall have paid the Company the agreed price, together with the full price of any other goods sold to the customer payment for which is outstanding. The passing of title and risk in the Goods supplied by the Company shall be as follows:
(a). from the time of delivery, the Goods shall be at the customer's risk who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the Company's property until all payments to be made by the customer under this Agreement and any other agreement between the Company and the customer and on any other account whatsoever have been made in full and unconditionally. Whilst the Company's ownership continues the customer shall keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession as bailee for the Company;
(b). the customer's right to possession of the Goods shall immediately cease if the customer does anything or fails to do anything which would entitle an administrator or administrative receiver to take possession of any of the customer’s assets or entitle any person to present against the customer a petition for winding up;
(c). the customer may only re-sell the Goods to the customer's clients in the ordinary course of the customer's business as a fiduciary and trustee for the Company. In the event of any resale by the customer of the Goods the Company's beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefor shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the customer and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Company's moneys;
(d). without prejudice to the equitable rules as to tracing, in the event of failure to pay any and all the payments for the Goods in accordance with these Conditions the Company shall have power to re-sell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the customer to remove the Goods; and
(e). pending payment of any and all payments due hereunder for the Goods the customer shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the customer in an amount at least equal to the balance of the payments due hereunder for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Company's interest.

23.The Company operates a selective distribution system and as such Goods may only be sold to those who meet its selective distribution criteria. All customers may only sell on or provide Goods to members of the system, being those approved by the Company as meeting its criteria.

24. The Company or any related companies shall have the right to cancel all or any contracts with the customer or withhold delivery of any Goods if:-
24.1 the customer fails to pay any monies owing to the Company or any related companies by the due date;
24.2 the customer commits any breach of any contract with the Company or any related companies;
24.3 the customer compounds with or executes an assignment for the benefit of its creditors or commits any act of bankruptcy or goes into liquidation or has a receiver, administrative receiver or administrator appointed over all or part of its assets or has a third party levy distress on their property, or suffers any similar or analogous act.

In the event of delivery being withheld the Company shall be entitled as a condition of resuming delivery to require pre-payment of or such security as it may require for the payment of the price of any further delivery.

25. The construction, validity and performance of all Contracts between the parties shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts although this shall not limit the right of the Company to commence proceedings in any other jurisdiction the Company deems appropriate.

26. Any suggested retail prices quoted in the Company's price lists or catalogues shall not limit the customer’s right to set its own retail prices.

27. The Company shall not be liable in any way for loss, damage or expense arising directly or indirectly from any failure or delay in performing any obligation under any contract caused by any circumstances beyond its reasonable control, which shall, without limiting the generality of the foregoing, be deemed to include war or any other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, break-down or damage to machinery or equipment, fire flood, legislative or administrative interference, acts of God, strike, lock-out or other industrial disputes (whether or not involving employees of the Company) or shortage of materials or the Company's inability to procure materials or supplies. On the occurrence of any such event, the Company may at its discretion, perform, suspend performance of or terminate the contract.

28. The Customer shall ensure that no trade mark or logo used on or in connection with any of the Goods or their packaging is added to, obscured, removed, defaced, altered or otherwise interfered with in any way.

29. Trade marks and/or logos applied to any of the Goods may be used in advertising material intended for use in retail outlets or in catalogues for the purpose only of promoting the retail sale of the Goods concerned and provided always that the Company's prior written consent and approval under the Company’s Marketing Materials Approval Process has been obtained.

30. Except as permitted by clause 28 above the customer shall not make any use of any logo or trade mark owned or used by the Company (whether in connection with the goods or otherwise) or any part thereof for any purpose whatsoever.

31. Any part of these Terms which is void or unenforceable shall be deemed severable and shall not affect any other part of these Terms.

32. No waiver or forbearance by the Company (express or implied) in enforcing any of its rights under a Contract shall prejudice its right to do so in the future.

BERGHAUS INFORMATION
Head Office 12 Colima Avenue, Sunderland Enterprise Park, Sunderland, Tyne and Wear SR5 3XB
Telephone: +44 (0)191 5165600 Fax: +44 (0)191 5165601
Main Warehouse c/o Pentland Distribution Services, 1 Spire Road, Glover Industrial Estate, District 11, Washington, Tyne and Wear NE37 3ES
Telephone: +44 (0)191 4154037
Registered Office 8 Manchester Square London W1U 3PH
Registered in England and Wales No 871405
VAT Registration no GB 231 045 121

Business Terms of Sale United Kingdom

All business is carried on subject to the following terms and conditions (“Terms”), except as varied by specific written agreement of the Company. By placing any order with the Company the customer shall be deemed to have agreed to and accepted these Terms. In these Terms "Contract" means the contract for the supply of Goods formed by the Company's acceptance of the customer's order

1. No order will be binding upon the Company unless and until accepted by the Company in writing or by delivery of any goods the subject of the order (“Goods”).

2. Orders are accepted only on the basis that these Terms (or varied as aforesaid) apply to the order. Accordingly any terms endorsed on or contained or referred to in any customer's order or confirmation or otherwise communicated to the Company which are inconsistent with these Terms and are not specifically agreed to in writing by the Company, shall be deemed to be superseded and nullified by these Terms.

3. The Company reserves the right to amend any accidental error or omission on quotations, price lists, order forms, order acknowledgements, invoices, credit notes or other related documentation.

4. Although all delivery dates stated by the Company are given in good faith and all reasonable efforts will be made to adhere to them, the Company accepts no liability for any failure to comply with such dates by reason of any cause beyond the Company’s reasonable control. Time of delivery shall not be of the essence.

5. The Company shall be entitled to make partial deliveries and failure to deliver part only of any order shall not entitle the customer to reject the Goods.

6. If the customer fails to take delivery of the Goods on the date of delivery, the Company shall, without prejudice to its other rights, be entitled to store the Goods at the customer's risk and the customer shall pay all storage and additional carriage costs incurred.

7. Whilst every effort will be made to supply Goods in accordance with samples and/or agreed specifications the Company reserves the right to modify specifications, designs and materials where such modifications do not materially affect the quality or fitness for purpose of the Goods or to comply with any applicable standards or legal requirements.

8. Unless otherwise notified to the customer, Goods will be invoiced at the price stipulated in the Company’s published price list current at the date of the acceptance of the order. In the case of an order for delivery by instalments each instalment shall be invoiced at the price stipulated in the Company's published price list at the date of despatch of such instalment. Such prices are exclusive of VAT.

9. Prices include delivery to the customer's single UK address, except that carriage will be charged extra on all orders of invoice value less than £250 (excluding VAT). The extra charge on orders less than £250 is £10. A rush order surcharge of £10 or currency equivalent may also apply.

10. Unless otherwise agreed, the Company shall invoice the Goods on or after despatch of the Goods. The Company shall be entitled to invoice each instalment as and when each instalment is despatched. Payment of all sums shall be made in sterling and is due 30 days from the date of the relevant invoice. The Company may sue for any monies outstanding beyond this date even if property in any relevant Goods has not passed to the customer.

11. If any payment is not made in full by the due date then, without affecting any other right which it may have, the Company may deduct any outstanding amounts from any monies owed to the customer on any account whatsoever.

12. Interest on any outstanding amounts may be charged which shall accrue from the due payment date until the date of payment at a rate of 2%; above National Westminster Bank plc’s base lending rate from time to time in force. No payment shall be deemed to have been made until the Company's account is credited with the relevant cleared funds.

13. The customer may not withhold or make any deduction from or set off against any payment due to the Company for any reason.

14. Export sales shall be subject to the current Terms and Conditions of Sale (International). It is the customer's responsibility to obtain all necessary import licences, clearances and other consents necessary for the purchase of the Goods and to ensure that the Goods comply with all local legislative or other legal requirements.

15. The Company will (at the Company's option) either replace or refund the price of any Goods which are shown to the Company's reasonable satisfaction to be defective in materials or workmanship at the time of delivery or to be a shortfall in quantity delivered provided that:
15.1 The customer inspects the Goods on delivery and notifies the Company within three days of delivery of any alleged defects, shortage in quantity or damage. If the customer fails to comply with these provisions, the Goods shall be deemed conclusively to be in accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination of them;
15.2 When signing for deliveries the customer must state clearly on the consignment note/delivery note any damage or shortages;
15.3 Loss or non-delivery must be notified in writing to the Company and to the carrier within fourteen days of the despatch date on the advice note or invoice;
15.4 Where a defect would not have been apparent on a reasonable examination under clause 15.1, the customer notifies the Company as soon as reasonably possible when the defect becomes apparent or within 180 days of delivery whichever is earlier; and
15.5 The customer provides all information and assistance required by the Company to investigate any suspected defect and, if required, permits the Company to inspect the Goods concerned at any premises where the same are located.

16. Clause 15 defines the Company’s full liability in respect of the Goods. All other conditions, warranties or other undertakings concerned with the Goods whether express or implied by statute, common law, custom, usage or otherwise, are excluded except that nothing in these Terms shall exclude any liability of the Company for death or injury resulting from negligence or for breach of terms as to title under Section 12 of the Sale of Goods Act 1979.

17. Without prejudice to the provisions of clauses 15 and 16, the Company shall not be liable for any costs, claims, damages, losses or expenses arising out of any tortious act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals.

18. Save where the law prohibits such limitation of liability and without prejudice to clauses 15, 16 and 17, the liability of the Company shall not in any circumstances exceed the invoice value of the Goods.

19. No order may be cancelled and no Goods may be returned without the Company's prior written agreement.
19.1 Requests for amendments to orders must be received 4 weeks prior to the despatch date;
19.2 Any returns which the Company agrees to accept are subject to a 20%; handling charge (excluding VAT) and carriage charges incurred as a result of the return. All requests to return goods for reasons other than claims under the Consumer Guarantee or defective delivered goods, should be made direct to the Customer Services Department quoting the number on the Delivery Note against which the goods were despatched and the reasons for the requested return. Returned goods must be accompanied by suitable documentation and that cartons/packages are clearly labelled with the sender’s name. On returns that require repackaging or re-boxing, an appropriate charge will be made;
19.3 Claims under Consumer Guarantees – The customer shall comply with the provisions of the Company's returns policy from time to time in place.

20. Goods which the Company has agreed to sell to the customer shall be at the customer's risk as soon as they are delivered to the customer's UK premises or other agreed destination. These Goods shall remain the property of the Company until such time as the customer shall have paid the Company the agreed price, together with the full price of any other goods sold to the customer payment for which is outstanding. The passing of title and risk in the Goods supplied by the Company shall be as follows:
20.1 From the time of delivery, the Goods shall be at the customer's risk who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the Company's property until all payments to be made by the customer under this Agreement and any other agreement between the Company and the customer and on any other account whatsoever have been made in full and unconditionally. Whilst the Company's ownership continues the customer shall keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession as bailee for the Company;
20.2 The customer's right to possession of the Goods shall immediately cease if the customer does anything or fails to do anything which would entitle an administrator or administrative receiver to take possession of any of the customer’s assets or entitle any person to present against the customer a petition for winding up;
20.3 The customer may only re-sell the Goods to the customer's clients in the ordinary course of the customer's business as a fiduciary and trustee for the Company. In the event of any resale by the customer of the Goods the Company's beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the customer and such proceeds shall not be mingled with other monies or paid into any overdrawn bank account and shall at all times be identifiable as the Company's monies;
20.4 Without prejudice to the equitable rules as to tracing, in the event of failure to pay any and all the payments for the Goods in accordance with these Conditions the Company shall have power to re-sell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the customer to remove the Goods; and
20.5 Pending payment of any and all payments due hereunder for the Goods the customer shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the customer in an amount at least equal to the balance of the payments due hereunder for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Company's interest.

21. The Company shall have the right to cancel all or any contracts with the customer or withhold delivery of any Goods if:-
21.1 The customer fails to pay any monies owing to the Company by the due date;
21.2 The customer commits any breach of any contract with the Company;
21.3 The customer compounds with or executes an assignment for the benefit of its creditors or commits any act of bankruptcy or goes into liquidation or has a receiver, administrative receiver or administrator appointed over all or part of its assets or has a third party levy distress on their property, or suffers any similar or analogous act.

In the event of delivery being withheld the Company shall be entitled as a condition of resuming delivery to require pre-payment of or such security as it may require for the payment of the price of any further delivery.

22. The construction, validity and performance of all Contracts between the parties shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts although this shall not limit the right of the Company to commence proceedings in any other jurisdiction the Company deems appropriate.

23. Any suggested retail prices quoted in the Company's price lists or catalogues shall not limit the customer’s right to set its own retail prices.

24. The Company shall not be liable in any way for loss, damage or expense arising directly or indirectly from any failure or delay in performing any obligation under any contract caused by any circumstances beyond its reasonable control, which shall, without limiting the generality of the foregoing, be deemed to include war or any other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, break-down or damage to machinery or equipment, fire, flood, legislative or administrative interference, acts of God, strike, lock-out or other industrial disputes (whether or not involving employees of the Company) or shortage of materials or the Company's inability to procure materials or supplies. On the occurrence of any such event, the Company may at its discretion, perform, suspend performance of or terminate the contract.

25. The Customer shall ensure that no trade mark or logo used on or in connection with any of the Goods or their packaging is added to, obscured, removed, defaced, altered or otherwise interfered with in any way.

26 Trade marks and/or logos applied to any of the Goods may be used in advertising material intended for use in retail outlets or in catalogues for the purpose only of promoting the retail sale of the Goods concerned and provided that the Company's prior written consent is obtained.

27. Except as permitted by clause 26 above the customer shall not make any use of any logo or trade mark owned or used by the Company (whether in connection with the goods or otherwise) or any part thereof for any purpose whatsoever.

28. Any part of these Terms which is void or unenforceable shall be deemed severable and shall not affect any other part of these Terms.

29. No waiver or forbearance by the Company (express or implied) in enforcing any of its rights under a Contract shall prejudice its right to do so in the future.

30. All orders are accepted subject to the Company’s selective distribution policy.


BERGHAUS INFORMATION
Head Office 12 Colima Avenue, Sunderland Enterprise Park, Sunderland, Tyne and Wear SR5 3XB
Telephone: +44 (0)191 5165600 Fax: +44 (0)191 5165601
Main Warehouse c/o Pentland Distribution Services, 1 Spire Road, Glover Industrial Estate, District 11, Washington, Tyne and Wear NE37 3ES
Registered Office 8 Manchester Square London W1U 3PH
Registered in England and Wales No 871405 VAT Registration no GB 231 045 121

Business Terms of Sale International

BERGHAUS LIMITED (THE “COMPANY”)

All business is carried on subject to the following terms and conditions (“Terms”), except as varied by specific written agreement of the Company. By placing any order with the Company the customer shall be deemed to have agreed to and accepted these Terms. In these Terms "Contract" means the contract for the supply of Goods formed by the Company's acceptance of the customer's order.

1. No order will be binding upon the Company unless and until accepted by the Company in writing or by delivery of any Goods the subject of the order (“Goods”).

2. Orders are accepted only on the basis that these Terms (or varied as aforesaid) apply to the order. Accordingly any terms endorsed on or contained or referred to in any customer's order or confirmation or otherwise communicated to the Company which are inconsistent with these Terms and are not specifically agreed to in writing by the Company, shall be deemed to be superseded and nullified by these Terms.

3. The Company reserves the right to amend any accidental error or omission in quotations, price lists, order forms, order acknowledgements, invoices, credit notes or other related documentation.

4. Although all delivery dates stated by the Company are given in good faith and all failure to comply with such dates by reason of any cause beyond the Company’s reasonable control. Time of delivery shall not be of the essence.

5. The Company shall be entitled to make partial deliveries and failure to deliver part only of any order shall not entitle the customer to reject the Goods.

6. If the customer fails to take delivery of the Goods on the date of delivery, the Company shall, without prejudice to its other rights, be entitled to store the Goods at the customer's risk and the customer shall pay all storage and additional carriage costs incurred.

7. Whilst every effort will be made to supply Goods in accordance with samples and/or agreed specifications the Company reserves the right to modify specifications, designs and materials where such modifications do not materially affect the quality or fitness for purpose of the Goods or to comply with any applicable standards or legal requirements.

8. Unless otherwise notified to the customer, Goods will be invoiced at the price stipulated in the Company’s published price list current at the date of the acceptance of the order. In the case of an order for delivery by instalments each instalment shall be invoiced at the price stipulated in the Company's published price list at the date of despatch of such instalment. Such prices are exclusive of VAT.

9. The Company will contract on usual terms at its own expense for the carriage of the Goods to the agreed point at the named place of destination by a usual route and in a customary manner and prices shall include delivery to such place of destination on the Incoterm as advised by the Company from time to time. If a point is not agreed or is not determined by practice, the Company may select the point at the named place of destination which best suits its purpose.

10. The customer shall:

10.1 Pay all costs relating to the Goods from the time they have been delivered to the named place of destination, including the costs of unloading the Goods;

10.2 Pay all costs and charges relating to the Goods whilst in transit until their arrival at the agreed place of destination, as well as unloading costs. An additional carriage charge may apply if the order value is less than an agreed amount;

10.3 Pay all duties, taxes and other official charges as well as the costs of carrying out customs formalities payable upon importation of the Goods and, where necessary, for their transit through another country.

11. Unless otherwise agreed, the Company shall invoice the Goods on or after despatch of the Goods. The Company shall be entitled to invoice each instalment as and when each instalment is despatched. Payment of all sums shall be made in the invoiced currency and is due 30 days from the date of the relevant invoice unless otherwise agreed by the Company in writing. The Company may sue for any monies outstanding beyond this date even if property in any relevant Goods has not passed to the customer.

12. If any payment is not made in full by the due date then, without affecting any other right which it may have, the Company may deduct any outstanding amounts from any monies owed to the customer on any account whatsoever.

13. Interest on any outstanding amounts may be charged which shall accrue from the due payment date until the date of payment at a rate of 2% above National Westminster Bank plc’s base lending rate from time to time in force. No payment shall be deemed to have been made until the Company's account is credited with the relevant cleared funds.

14. The customer may not withhold or make any deduction from or set off against any payment due to the Company for any reason.

15. All deliveries shall be stipulated on the relevant purchase order. For direct deliveries the customer shall obtain at its own risk and expense any export licence or other official authorisation and carry out all customs formalities necessary for the exportation of Goods at the named place of destination on the Incoterm as advised by the Company from time to time.

16. The customer must obtain at his own risk and expense an import licence or other official authorisation and carry out all customs formalities for the importation of the Goods and, where necessary for their transit through another country. It is the customer's responsibility to obtain all necessary import licences, clearances and other consents necessary for the purchase of the Goods and to ensure that the Goods comply with all local legislative or other legal requirements.

17. The Company will (at the Company's option) either replace or refund the price of any Goods which are shown to the Company's reasonable satisfaction to be defective in materials or workmanship at the time of delivery or to be a shortfall in quantity delivered provided that:

17.1 The customer inspects the Goods on delivery, conducts a carton count and notifies the Company within seven calendar days of delivery of any alleged defects, shortage in quantity or damage. If the customer fails to comply with these provisions, the Goods shall be deemed conclusively to be in accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination of them;

17.2 When signing for deliveries the customer must state clearly on the delivery note any damage or shortages;

17.3 Loss or non-delivery must be notified in writing to the Company and to the carrier within ten days of the despatch date on the advice note or invoice;

17.4 Where a defect would not have been apparent on a reasonable examination under clause 17.1, the customer notifies the Company as soon as reasonably possible when the defect becomes apparent or within 180 days of delivery whichever is earlier; and

17.5 The customer provides all information and assistance required by the Company to investigate any suspected defect and, if required, permits the Company to inspect the Goods concerned at any premises where the same are located.

18. Clause 17 defines the Company’s full liability in respect of the Goods. All other conditions, warranties or other undertakings concerned with the Goods whether express or implied by statute, common law, custom, usage or otherwise, are excluded except that nothing in these Terms shall exclude any liability of the Company for death or injury resulting from negligence or for breach of terms as to title under Section 12 of the Sale of Goods Act 1979.

19. Without prejudice to the provisions of clauses 17 and 18, the Company shall not be liable for any costs, claims, damages, losses or expenses arising out of any tortious act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals.

20. Save where the law prohibits such limitation of liability and without prejudice to clauses 17, 18 and 19, the liability of the Company shall not in any circumstances exceed the invoice value of the Goods.

21. No order may be cancelled and no Goods may be returned without the Company's prior written agreement. Any returns which the Company agrees to accept and relate to non-faulty Goods, are subject to a 20% handling charge (excluding VAT) and carriage charges incurred as a result of the return. Returned Goods must be accompanied by suitable documentation and cartons/packages must be clearly labelled with the sender’s name. On returns that require repackaging or re-boxing, an appropriate charge will be made. The customer shall comply with the provisions of the Company's returns policy from time to time in place.

22. The Company operates a selective distribution system and as such Goods may only be sold to those who meet its selective distribution criteria. All customers may only sell on or provide Goods to members of the system, being those approved by the Company as meeting its criteria.

23. The passing of title and risk in the Goods supplied by the Company shall be as follows:

23.1 Goods shall be at the customer's risk as soon as they are delivered to the customer's UK premises or other agreed destination and without limitation to the foregoing the customer shall be solely responsible for their custody and maintenance;

23.2 The legal and beneficial title to the Goods shall remain the Company’s property until the Company has received unconditional payment in full (in cash or cleared funds) for:

23.2.2 the Goods; and

23.2.3 all payments to be made by the customer under this Agreement and any other agreement between the Company and the customer and on any other account whatsoever.

23.3 Until the legal and beneficial title to the Goods passes to the customer in accordance with these Terms, the customer shall:

23.3.1 be entitled to re-sell the Goods only in accordance with clause 24;

23.3.2 hold the Goods on a fiduciary basis as bailee for the Company;

23.3.3 keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession;

23.3.4 not remove, deface or obscure and identifying mark or packaging on or in relation to the Goods;

23.3.5 give the Company such information relating to the Goods as the Company may from time to time request;

23.3.6 immediately notify the Company if it becomes subject to any of the events listed in clause 25.3;

23.3.7 keep the Goods in satisfactory condition and comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the customer in an amount at least equal to the balance of the payments due hereunder for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Company’s interest, and the customer shall promptly provide a copy of such endorsement at the Company’s request.

23.4 If the customer does anything or fails to do anything which could cause it to become subject to any of the events listed in clause 25.3 or if the Company reasonably believes any such event is about to happen, then:

23.4.1 the customer’s right to possession of the Goods shall immediately cease;

23.4.2 the customer’s right to resell the Goods to its clients pursuant to clause 24 shall immediately cease; and

23.4.3 in addition to any other right or remedy the Company may have, the Company may at any time require the customer to deliver up the Goods and, if the customer fails to do so promptly (or if the Company has any reason to believe the customer will not do so), enter any premises or land occupied or owned by the customer to remove the Goods.

23.5 If the customer fails to pay for any or all of the Goods in accordance with these Terms, then in addition to any other right or remedy the Company may have:

23.5.1 the Company shall have the power to resell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise; and

23.5.2 the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the customer to remove the Goods.

24. The customer expressly shall not be entitled to re-sell the Goods as part of a sale of all or part of the customer’s business without the prior written consent of the Company.

24.1 The customer may only re-sell the Goods to the customer’s clients in the ordinary course of the customer’s trading business and only in compliance with the Company's selective distribution criteria notified to the customer from time to time as a fiduciary and trustee for the Company.

24.2 Without prejudice to the equitable rules as to tracing, in the event of any resale by the customer of the Goods, the Company's beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the customer and such proceeds shall not be mingled with other monies or paid into any overdrawn bank account and shall at all times be identifiable as the Company’s monies.

25. The Company shall have the right to cancel all or any contracts with the customer or withhold delivery of any Goods if:

25.1 The customer fails to pay any monies owing to the Company by the due date;

25.2 The customer commits any breach of any contract with the Company;

25.3 The customer compounds with or executes an assignment for the benefit of its creditors or commits any act of bankruptcy or goes into liquidation or has a receiver, administrative receiver or administrator appointed over all or part of its assets or has a third party levy distress on their property, or suffers any similar or analogous act.

In the event of delivery being withheld the Company shall be entitled as a condition of resuming delivery to require pre-payment of or such security as it may require for the payment of the price of any further delivery.

26. The construction, validity and performance of all Contracts between the parties shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts although this shall not limit the right of the Company to commence proceedings in any other jurisdiction the Company deems appropriate.

27. Any suggested retail prices quoted in the Company's price lists or catalogues shall not limit the customer’s right to set its own retail prices.

28. The Company shall not be liable in any way for loss, damage or expense arising directly or indirectly from any failure or delay in performing any obligation under any contract caused by any circumstances beyond its reasonable control, which shall, without limiting the generality of the foregoing, be deemed to include war or any other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, break-down or damage to machinery or equipment, fire, flood, legislative or administrative interference, acts of God, strike, lock-out or other industrial disputes (whether or not involving employees of the Company) or shortage of materials or the Company's inability to procure materials or supplies. On the occurrence of any such event, the Company may at its discretion, perform, suspend performance of or terminate the contract.

29. The Customer shall ensure that no trade mark or logo used on or in connection with any of the Goods or their packaging is added to, obscured, removed, defaced, altered or otherwise interfered with in any way.

30. The customer shall also comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption and shall act in accordance with the Company’s policy in this regard in all dealings with or on behalf of the Company.

31. Trade marks and/or logos applied to any of the Goods may be used in advertising material intended for use in retail outlets or in catalogues for the purpose only of promoting the retail sale of the Goods concerned and provided that the Company's prior written consent is obtained.

32. Except as permitted by clause 30 above the customer shall not make any use of any logo or trade mark owned or used by the Company (whether in connection with the Goods or otherwise) or any part thereof for any purpose whatsoever.

33. Any part of these Terms which is void or unenforceable shall be deemed severable and shall not affect any other part of these Terms.

34. No waiver or forbearance by the Company (express or implied) in enforcing any of its rights under a Contract shall prejudice its right to do so in the future.

BERGHAUS INFORMATION

Head Office 12 Colima Avenue, Sunderland Enterprise Park, Sunderland, Tyne and Wear SR5 3XB

Telephone: +44 (0)191 5165600 Fax: +44 (0)191 5165601

Main Warehouse c/o Pentland Distribution Services, 1 Spire Road, Glover Industrial Estate, District 11, Washington, Tyne and Wear NE37 3ES

Telephone: +44 (0)191 4154037