TERMS & CONDITIONS
This document provides information about who we are and the legal terms and conditions that apply to any product you order from us.
If you order from Jesu Sebastian Ltd via our website, email or telephone you will be deemed to have read, understood and agreed to our General Terms & Conditions for Sale of Goods.
INFORMATION ABOUT JESU SEBASTIAN LTD.
This website is owned and operated by JESU SEBASTIAN LTD, whose primary place of business is at 8b Accommodation Road, London NW11 8ED. Registered office: 8b Accommodation Road, London NW11 8ED. Company Reg No. 10456234.
In this document the following words shall have the following meanings:
· “Buyer” means the organisation or person who buys Goods from the Seller;
· “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
· “Delivery date” means the date specified by the Seller when the Goods are to be delivered;
· “Goods” means the articles to be supplied to the Buyer by the Seller;
· “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
· “Price” means the price set out in the list of prices of the Goods maintained by the Seller as amended from time to time or such other price as the parties may agree in writing plus such carriage, packing, insurance or other charges or interest on such as may be quoted by the Seller or as may apply in accordance with these conditions;
· “Seller” means JESU SEBASTIAN LTD.
· These conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may seek to apply under any purchase order, order confirmation or similar document.
· All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
· Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
· Any variation to these Conditions (including any special terms and conditions agreed between the parties including without limitation as to discounts) shall be inapplicable unless agreed in writing by the Seller.
· Any advice, recommendation or representation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods or otherwise which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly, the Seller shall not be liable for any such advice, recommendation or representation which is not so confirmed.
· Nothing in these Conditions shall affect the statutory rights of any Buyer dealing as a consumer.
PRICE AND PAYMENT
· Payment of the Price is due immediately upon order unless a credit account has been established with the Seller in which event payment of the Price is due 30 days following the date of invoice.
· The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due, interest to accrue from day to day until the date of payment at a rate of 4% per annum above the base rate of the Bank of England from time to time.
· The Seller reserves the right to grant, refuse, restrict, cancel or alter credit terms at its sole discretion at any time.
· If payment of the Price or any part thereof is not made by the due date, the Seller shall be entitled to:
o require payment in advance of delivery in relation to any Goods not previously delivered;
o refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatsoever to the Buyer for non-delivery or any delay in delivery;
o appropriates any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract) as the Seller may think fit;
o terminates the contract.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so far as to constitute a sale by sample.
· Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Buyer on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
· The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract and while every reasonable effort will be made to comply with such date’s compliance is not guaranteed and the Buyer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery date stated.
· If the Seller is unable to deliver the Goods for reasons beyond its control, then the Seller shall be entitled to place the Goods in storage until such time as delivery may be affected and the Buyer shall be liable for any expense associated with such storage.
· If the Buyer fails to accept delivery of Goods on the delivery date or within 3 days of notification that they are ready for dispatch whether prior to or after the delivery date the Seller reserves the right to invoice the Goods to the Buyer and charge him therefore. In addition, the Buyer shall then pay reasonable storage charges or demurrage as appropriate in the circumstances until the Goods are either dispatched to the Buyer or disposed of elsewhere.
· The Seller shall be entitled to deliver the Goods by instalments and where the Goods are so delivered, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat any other related contract as repudiated.
· The Seller is a distributor of goods and the Buyer is exclusively responsible for detailing the specification of the Goods, for ascertaining the use to which they will be put and for determining their ability to function for that purpose.
· The Buyer is required to test Goods upon delivery and shall be deemed to have accepted the Goods 7 working days after delivery to the Buyer. Accordingly, no claim for defect, damage or quality will be entertained (without prejudice to the Seller’s other rights pursuant to these Conditions) unless written notice together with all supporting evidence is received by the Seller within 7 working days of delivery. After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
· The Buyer shall not remove or otherwise interfere with the marks or numbers on the Goods.
· The Buyer shall accept delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that any such discrepancy shall not exceed 5%, the Price to be adjusted pro-rata to the discrepancy.
PASSING OF PROPERTY
Goods once delivered shall be at risk of the Buyer but shall remain the sole and absolute property of the Seller until payment in full is received by the Seller for the goods and there are no other amounts being outstanding from the Buyer to the Seller in respect of any other goods supplied by the Seller. If payment is overdue in whole or in part the Seller may (without prejudice to any of its other rights) recover or re-sell the goods or any part of them and may enter the premises where the goods are stored to reclaim possession.
· Subject to these terms and conditions, the Buyer is permitted by the Seller to use or agree to sell the goods delivered but until such time as the Buyer becomes the owner of the goods, they shall be stored in such a way as to be clearly identifiable as belonging to the Seller.
· If the goods are sold at such a time when the title to them remains vested in the Seller, the Buyer will hold the sale proceeds upon trust for the Company to the extent of and for the purpose of discharging the sums due to the Seller and upon receiving the sale proceeds will forthwith set aside sufficient of the sale proceeds to pay the Seller for all sums due in respect of the goods holding these funds on the joint and several surety of the principals partners or directors of the Seller.
· The Buyers power of use or sale of the goods shall automatically cease if such conditions as permit the Seller to terminate the contract arise.
The Seller shall not be liable to the Buyer for damage, shortage or discrepancy that would be apparent on careful inspection of the goods by the Buyer unless such claim is notified within 24 hours of delivery (except in special circumstances justifying delay) and in any event in writing within 7working days (time to be of the essence hereof) of the date of the delivery detailing the alleged damage shortage or discrepancy and providing a reasonable opportunity to the Seller to inspect the goods before they are put to any use.
· The liability of the Seller in respect of any claim whatsoever, whether founded upon an allegation of negligence (except where the claim relates to personal injury of death) or otherwise and whether or not in respect of any damage shortage or discrepancy that would be apparent on a careful inspection by the Buyer, shall be limited to the free replacement of defective goods.
· Claims for loss of profits, increased cost of working or any other consequential losses are expressly excluded.
INSOLVENCY OF BUYER
· If the Buyer fails to make payment for the Goods in accordance with the contract of sale or commits any other breach of this contract of sale or if any distress or execution shall be levied upon any of the Buyer’s property or the Goods or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented of if a receiver, administrator administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law or if any such matter as provided for in this clause is reasonably apprehended by the Seller all sums outstanding in respect of the Goods shall become payable immediately.
· The Seller may in the circumstances set out in clause 9.1 above also in its absolute discretion, and without prejudice to any other rights which it may have, exercise any of its rights pursuant to clause 8 above.
· The Seller warrants only that the Goods on delivery shall conform in all material respects with the Specification/Data sheets published by the Seller from time to time. All other warranties, conditions or undertakings as to quality or description (howsoever made or implied) shall be excluded to the fullest extent permitted by law. The Seller is not liable for a breach of warranty or a defect in the Goods unless it is notified to the Seller within 7 working days after the date of delivery or, if the defect would not be apparent on reasonable inspection, within one month after the date of delivery. In respect of any nonconforming or defective Goods, the Seller shall, at its election, repair the Goods or supply replacement Goods (in which event the Seller shall be deemed not to be in breach of the Contract or have any liability to the Buyer for the non-conforming or defective Goods); provided in each case that the Buyer, upon request, returns the relevant Goods (unaltered) to the Seller for inspection as soon as possible and at its own risk and expense, or where not possible, allows a representative of the Seller to visit the site where the goods have been installed and inspect the relevant Goods and installation.
· The Seller will not accept liability for products that are defective as a result of misuse, incorrect installation or design fault.
We ask that before any of our products are specified for any given project that all literature and advice notes on the website are observed and taken into consideration.
· The Seller reserves the right to charge the buyer for expenses for a site visit (not exceeding £300) if there is evidence that the defect is attributable to misuse, incorrect installation or design fault.
· Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer and the Buyer shall have no other remedy against the Seller.
· The Seller shall be entitled in its absolute discretion to refund the Price of the defective Goods in the event that the Price has already been paid. The remedies contained in this Clause are without prejudice and subject to the other Conditions herein, including, but without limitation, to conditions below.
· No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to: –
o the correspondence of the Goods with any description or sample;
o the quality of the Goods; or
o the fitness of the Goods for any purpose whatsoever.
· No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to:
o the correspondence of the Goods with any description;
o the quality of the Goods; or
o the fitness of the Goods for any purpose whatsoever.
· Except where the Buyer deals as a consumer all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or
otherwise are hereby excluded from the contract to the fullest extent permitted by law.
· For the avoidance of doubt the Seller will not accept any claim for consequential or financial loss of any kind however caused.
LIMITATION OF LIABILITY
· Where any court or arbitrator determines that any part of these General Terms & Conditions of Sale of Goods above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer but in an amount not exceeding the Price.
· Nothing contained in these Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence or that of its employees or agents.
INTELLECTUAL PROPERTY RIGHTS
· Where any Goods supplied by us embody, include or contain computer program(s) and/or related documentation the copyright in which is owned by a third party, all rights and liabilities associated with the use and/or reproduction thereof will be subject to the terms of the applicable end user licence, to the exclusion of all liabilities and obligations on our part.
· The Buyer will indemnify us against all liabilities for infringement of third-party intellectual property rights arising from our compliance with the Buyer’s specific requirements regarding design or specification for the Goods or arising from the use of the Goods in combination with other products.
· In the event that all the Goods or the use thereof (subject as aforesaid) are held to constitute an infringement of any intellectual property rights and the use is thereby prevented, the will at its own expense and option either procure for the Buyer the right to continue using the Goods or replace the same with a non-infringing product, or modify the Goods so that they become non-infringing, or may elect to retake possession of the Goods and refund the Price. Subject to the foregoing, the Seller shall be under no liability to the Buyer for any loss, damage or enquiry, whether direct or indirect, resulting from any intellectual property right infringement of the Goods.
· All Intellectual Property Rights produced from or arising as a result of the performance of any contract shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may without liability on its part, terminate the contract or any part of it.
RELATIONSHIP OF PARTIES
Nothing contained in these Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Conditions shall be deemed to construe either of the parties as the agent of the other.
ASSIGNMENT AND SUB-CONTRACTING
The contract between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.
The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Conditions of this Agreement.
If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
NO SET OFF
The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever.
These Conditions and any documents incorporating them or incorporated by them constitute the entire agreement and understanding between the parties.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit
to the exclusion jurisdiction of the English courts.