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TERMS AND CONDITIONS OF SALE – UNITED KINGDOM
TERMS AND CONDITIONS OF SALE - INTERNATIONAL
TERMS AND CONDITIONS OF SALE – DIRECT DELIVERY

BERGHAUS LIMITED (the “Company”) - TERMS AND CONDITIONS OF SALE – UNITED KINGDOM


These terms and conditions (“Terms”) shall govern all sales of Goods by the Company to the Customer. The Company reserves the right to amend these Terms from time to time, any such changes shall apply to any Orders placed after the date the updated Terms are placed on the Company’s website. The Customer should check these Terms regularly for any changes. In these Terms “Contract” means the contract for the supply of Goods, “Customer” means the person or company that purchases the Goods from the Company, “Goods” means any goods supplied or to be supplied by the Company to the Customer and “Order” means the Customer’s order for the Goods.


Contract
1.    These Terms apply to the Contract to the exclusion of any other terms, including any that the Customer seeks to impose or incorporate, or any which are implied by trade, custom, practice or course of dealings.
2.    The Order constitutes an offer by the Customer to purchase Goods in accordance with these Terms and shall only be deemed accepted when the Company issues a written acceptance, at which point the Contract shall come into existence. 
3.    The Company reserves the right to amend any accidental error or omission on price lists, quotations, order acknowledgements, invoices, credit notes or other Company documentation.
4.    Once accepted, the Customer may not cancel any Order or return Goods without the Company’s prior written consent.  Such consent may be subject to conditions (in the Company’s sole discretion) and any returns will be subject to the Company’s returns policy (including a 20% handling charge). 
Delivery
5.    Delivery times and dates stated by the Company are approximate only, time of delivery shall not be of the essence. The Company accepts no liability and the Customer shall not be entitled to cancel the Contract for any failure to comply with such times and dates. For the avoidance of doubt the Company shall not be liable for any penalties or charges the Customer attempts to impose in relation to late or non-delivery.
6.    Delivery of the Goods shall be made in accordance with the Incoterm (as defined in the latest published version of Incoterms), and to the delivery location, stated on the Order acknowledgement issued by the Company. Unless otherwise agreed in writing by the Company, the deemed delivery and responsibility for insurance, transit costs and compliance with any applicable customs formalities shall be determined by the Incoterm stated on the Order acknowledgement.       
7.    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.
8.    Any shortage, loss or non-delivery must be notified to the Company within 3 days of the delivery date on the advice note or invoice. The Customer shall not be entitled to reject the Goods if the Company delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice providing the Company receives notification within 3 days of delivery. 
9.    The Company shall be entitled to deliver the Goods by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. 
10.    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 cost.
Price and Payment
11.    Unless otherwise agreed in writing by the Company, the price of the Goods shall be that which is stipulated in the Company’s applicable price list (the “Price List”) in force at the date of the Company’s acceptance of the Order. The Price Lists are subject to alteration without notice.  In the case of an Order delivered by instalments, each instalment shall be invoiced at the price stipulated in the Price List in force at the date of despatch of the instalment. Unless otherwise agreed in writing by the Company, prices set out in any of the Company’s price lists, quotations and acknowledgement of Order are exclusive of the costs of delivery, packing, insurance or any value added, purchase or other taxes which shall be payable in addition to the price when the price is due.  
12.    The Company shall be entitled to charge the Customer a surcharge for Orders of less than £250 exc VAT or of such value or quantities as notified by the Company to the Customer from time to time.
13.    The Company shall invoice the Customer for 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. 
14.    The Customer shall make payment of sums due to the Company to the bank account nominated in writing by the Company in the currency stated on the invoice within 30 days from the date of the relevant invoice. Time for payment of the Goods (including, without limit, any costs or charges payable) shall be of the essence. Payment shall only be deemed received by the Company upon receipt of cleared funds. 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 charge interest on any outstanding amounts 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.
16.    The Company’s recommended retail prices shall not limit the Customer’s right to set its own resale prices.
Quality
17.    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 where it is necessary to comply with any applicable standards or legal requirements. 
18.    The Company warrants that on delivery the Goods shall be free from material defects in materials and workmanship. The Company will either replace or refund (at the Company’s option) 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 provided that:
         18.1.    the Customer inspects the Goods on delivery and notifies the Company within 3 days of delivery of any alleged defects or damage. Otherwise, the Goods shall be deemed to be in accordance with the Contract and free from any defect or damage which would be apparent upon a reasonable examination;
         18.2.    where a defect would not have been apparent on a reasonable examination under clause 18.1, the Customer notifies the Company as soon as reasonably possible when the defect becomes apparent or within 180 days of delivery whichever is earlier; 
          18.3.    the Customer provides the Company all information and assistance required to investigate any suspected defect and, if required, permits an inspection of the Goods concerned where they are located: and
          18.4.    the default complained of has not arisen as a result of any drawing, design or specification supplied by the Customer or from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing or whether relating without limit to the fabrication (e.g. the quality or performance of the fabrics), operation, use or maintenance of the Goods), or misuse or alteration or repair of the Goods without the Company’s prior written approval.
19.    Subject to clauses 20 and 21, clause 18 defines the Company’s full liability in respect of the Goods and all other conditions, warranties or undertakings whether express or implied by statute, common law, custom, usage or otherwise, are excluded to the fullest extent permissible by applicable law. 
Limitation of Liability
20.    Nothing in these Terms shall exclude or limit the liability of the Company for (i) death or personal injury resulting from its negligence, (ii) fraud or fraudulent misrepresentation, (iii) breach of terms as to title under Section 12 of the Sale of Goods Act 1979 or (iv) any other loss or damage the exclusion or limitation of which is prohibited by English law.
21.    Subject to clause 20; 
         21.1.    the Company shall in no circumstances be liable to the Customer in contract, tort (including negligence), breach of statutory duty, or otherwise, (i) for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings, or (ii) for damage to the Customer’s reputation or goodwill, or (iii) for any loss resulting from any claim made by any third party, or (iv) any indirect, special or consequential loss or damage of any nature whatsoever; and
         21.2.    the total liability of the Company to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not in any circumstances exceed the invoice value of the Goods.
22.    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 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.
Customer Obligations
23.    The Customer must adhere to the Company’s retail guidelines and online guidelines as notified by the Company from time to time.  In the event that the Customer re-sells the Goods to a wholesale or retail customer, such Goods may only be resold to accounts which meet the Company’s retail guidelines and online guidelines.
24.    Customers within the EEA shall not: 
         24.1.    sell any Goods outside the EEA and/or Switzerland or sell any Goods within the EEA where, to its knowledge, such Goods are intended for re-sale or distribution outside the EEA and/or Switzerland; or
         24.2.    actively approach or solicit customers, nor make active sales of the Goods, to any wholesale or retail account in any EEA country and Switzerland where sales of Goods are either exclusively reserved to the Company or to a third party. 
25.    In the event that a Customer within the EEA re-sells Goods to a wholesale or retail account, the Customer shall include in their conditions of sale a provision that:
         25.1.    Goods may not be sold outside of the EEA and Goods shall not be sold within the EEA where such Goods are intended for re-sale or distribution outside of the EEA; and
         25.2.    Goods may only be re-sold to accounts which meet the Company’s retail guidelines and online guidelines.            
Title and Risk in the Goods 
26.    Goods shall be at the Customer's risk as soon as they are delivered to the Customer and without limitation to the foregoing the Customer shall be solely responsible for their custody and maintenance;
27.    The legal and beneficial title to the Goods shall remain the Company’s property until the Company has received unconditional payment in full for:
         27.1.    the Goods; and 
         27.2.    all payments to be made by the Customer under the Contract and any other agreement between the Company and the Customer and on any other account whatsoever.
28.    Until the legal and beneficial title to the Goods passes to the Customer in accordance with these Terms, the Customer shall:
         28.1.    be entitled to re-sell the Goods only in accordance with clause 31;
         28.2.    hold the Goods on a fiduciary basis as bailee for the Company;
         28.3.    keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession; 
         28.4.    not remove, deface or obscure any identifying mark or packaging on or in relation to the Goods;
         28.5.    give the Company such information relating to the Goods as the Company may from time to time request;
         28.6.    immediately notify the Company if it becomes subject to any of the events listed in clause 32.4;
         28.7.    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.
29.    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 32.4, or if the Company reasonably believes any such event is about to happen, then:
         29.1.    the Customer’s right to possession of the Goods shall immediately cease;
         29.2.    the Customer’s right to resell the Goods to its clients pursuant to clause 31 shall immediately cease; and
         29.3.    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; and
30.    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:
         30.1.    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
         30.2.    the Company and its servants and agents may enter upon any premises or land occupied or owned by the Customer to remove the Goods;
31.    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, and
         31.1.    may only re-sell the Goods to the Customer’s clients in the ordinary course of the Customer’s trading business as a fiduciary and trustee for the Company; and
         31.2.    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.
Termination
32.    Without prejudice to any of its other rights, the Company or any related companies shall have the right to cancel all or any contracts with the Customer and withhold delivery of any Goods if the Customer:-
         32.1.    commits a material breach of any term of the Contract or any contract with the Company or any related company; 
         32.2.    fails to pay any amount due to the Company or any related companies by the due date for payment;
         32.3.    commits a breach of clause 23 or 24 and fails to remedy that breach within 20 days of receipt of notice from the Company specifying the breach; 
         32.4.    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 proposes terms for a company voluntary arrangement or enters into  a company voluntary arrangement or enters into any other scheme of arrangement, whether formal or informal or is placed into any other formal insolvency process or suffers any similar or analogous act; or
         32.5.    goes through a change of control (as defined in s.1124 of the Corporation Tax Act 2010). 
33.    On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Customer’s outstanding unpaid invoices and interest.  Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
Intellectual Property, Confidentiality and General
34.    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.
35.    Trade marks and/or logos applied to any of the Goods may be used only for the purpose of advertising the Customer’s sale of the Goods provided that the Company’s prior written consent is obtained. 
36.    No rights are granted to the Customer by virtue of its use of the Company’s trade marks or logos.
37.    The Customer shall keep confidential and not use, without the prior written consent of the Company, any information of a confidential nature supplied or disclosed by the Company to the Customer, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Customer, or disclosure of the same is required by law or by a governmental or regulatory body. 
38.    The Customer may not assign or sub-contract any of its rights or obligations under the Contract without the Company’s prior written consent.  The Company may assign, licence or sub-contract all or any of its rights or obligations under the Contract.
39.    A person who is not a party to the Contract shall not have any rights to enforce its terms.
40.    The Customer shall 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 policies in this regard in all dealings with or on behalf of the Company and the Goods.
41.    Any part of these Terms or the Contract which is or becomes invalid, illegal or unenforceable shall be deemed modified to the extent necessary to make it valid, legal and enforceable and shall not affect any other part of these Terms or the Contract.
42.    No waiver or delay 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. 
43.    No variation of these Terms or the Contract shall be effective unless in writing and signed by the Company.
44.    Each Contract contains the whole agreement between the parties and supersedes all prior agreements, undertakings and arrangements whether oral or in writing.  All other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law.
45.    The construction, validity and performance of all Contracts (including any associated non-contractual claims and disputes) between the parties shall be governed by the laws of England & Wales 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 jurisdiction the Company deems appropriate. 

 

 

BERGHAUS LIMITED (the “Company”) - TERMS AND CONDITIONS OF SALE - INTERNATIONAL


These terms and conditions (“Terms”) shall govern all sales of Goods by the Company to the Customer. The Company reserves the right to amend these Terms from time to time, any such changes shall apply to any Orders placed after the date the updated Terms are placed on the Company’s website. The Customer should check these Terms regularly for any changes. In these Terms “Contract” means the contract for the supply of Goods, “Customer” means the person or company that purchases the Goods from the Company, “Goods” means any goods supplied or to be supplied by the Company to the Customer and “Order” means the Customer’s order for the


Contract
1.    These Terms apply to the Contract to the exclusion of any other terms, including any that the Customer seeks to impose or incorporate, or any which are implied by trade, custom, practice or course of dealings.
2.    The Order constitutes an offer by the Customer to purchase Goods in accordance with these Terms and shall only be deemed accepted when the Company issues a written acceptance, at which point the Contract shall come into existence. 
3.    The Company reserves the right to amend any accidental error or omission on price lists, quotations, order acknowledgements, invoices, credit notes or other Company documentation.
4.    Once accepted, the Customer may not cancel any Order or return Goods without the Company’s prior written consent.  Such consent may be subject to conditions (in the Company’s sole discretion) and any returns will be subject to the Company’s returns policy (including a 20% handling charge). 
Delivery
5.    Delivery times and/or dates stated by the Company are approximate only, time of delivery shall not be of the essence. The Company accepts no liability for any failure to comply with such times and dates. The Customer shall have no right to cancel the Contract in the event of such a failure. For the avoidance of doubt the Company shall not be liable for any penalties or charges that the Customer attempts to impose in relation to late delivery or non-delivery.
6.    Delivery of the Goods shall be made in accordance with the Incoterm (as defined in the latest published version of Incoterms), and to the delivery location, stated on the Order acknowledgement issued by the Company. Unless otherwise agreed in writing by the Company, the deemed delivery and responsibility for insurance, transit costs and compliance with any applicable customs formalities shall be determined by the Incoterm stated on the Order acknowledgement.       
7.    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.
8.    Any shortage, loss or non-delivery must be notified to the Company within 10 days of the delivery date on the advice note or invoice. The Customer shall not be entitled to reject the Goods if the Company delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice providing the Company receives notification within 10 days of delivery. 
9.    The Company shall be entitled to deliver the Goods by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. 
10.    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 cost.
Price and Payment
11.    Unless otherwise agreed in writing by the Company, the price of the Goods shall be that which is stipulated in the Company’s applicable price list (the “Price List”) in force at the date of the Company’s acceptance of the Order. The Price Lists are subject to alteration without notice.  In the case of an Order delivered by instalments, each instalment shall be invoiced at the price stipulated in the Price List in force at the date of despatch of the instalment. Unless otherwise agreed in writing by the Company, prices set out in any of the Company’s price lists, quotations and acknowledgement of Order are exclusive of the costs of delivery, packing, insurance or any value added, purchase or other taxes which shall be payable in addition to the price when the price is due.  
12.    The Company shall be entitled to charge the Customer a surcharge for Orders of less than £250 or €300 excluding VAT or of such value or quantities as notified by the Company to the Customer from time to time.
13.    The Company shall invoice the Customer for 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. 
14.    The Customer shall make payment of sums due to the Company to the bank account nominated in writing by the Company in the currency stated on the invoice within 30 days from the date of the relevant invoice. Time for payment of the Goods (including, without limit, any costs or charges payable) shall be of the essence. Payment shall only be deemed received by the Company upon receipt of cleared funds. 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 charge interest on any outstanding amounts 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.
16.    The Company’s recommended retail prices shall not limit the Customer’s right to set its own resale prices.
Quality
17.    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 where it is necessary to comply with any applicable standards or legal requirements. 
18.    The Company warrants that on delivery the Goods shall be free from material defects in materials and workmanship. The Company will either replace or refund (at the Company’s option) 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 provided that:
         18.1.    the Customer inspects the Goods on delivery and notifies the Company within 10 days of delivery of any alleged defects or damage. Otherwise, the Goods shall be deemed to be in accordance with the Contract and free from any defect or damage which would be apparent upon a reasonable examination;
         18.2.    where a defect would not have been apparent on a reasonable examination under clause 18.1, the Customer notifies the Company as soon as reasonably possible when the defect becomes apparent or within 180 days of delivery whichever is earlier; 
         18.3.    the Customer provides the Company all information and assistance required to investigate any suspected defect and, if required, permits an inspection of the Goods concerned where they are located: and
         18.4.    the default complained of has not arisen as a result of any drawing, design or specification supplied by the Customer or from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing or whether relating without limit to the fabrication (e.g. the quality or performance of the fabrics), operation, use or maintenance of the Goods), or misuse or alteration or repair of the Goods without the Company’s prior written approval.
19.    Subject to clauses 20 and 21, clause 18 defines the Company’s full liability in respect of the Goods and all other conditions, warranties or undertakings whether express or implied by statute, common law, custom, usage or otherwise, are excluded to the fullest extent permissible by applicable law. 
Limitation of Liability
20.    Nothing in these Terms shall exclude or limit the liability of the Company for (i) death or personal injury resulting from its negligence, (ii) fraud or fraudulent misrepresentation, (iii) breach of terms as to title under Section 12 of the Sale of Goods Act 1979 or (iv) any other loss or damage the exclusion or limitation of which is prohibited by English law.
21.    Subject to clause 20; 
         21.1.    the Company shall in no circumstances be liable to the Customer in contract, tort (including negligence), breach of statutory duty, or otherwise, (i) for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings, or (ii) for damage to the Customer’s reputation or goodwill, or (iii) for any loss resulting from any claim made by any third party, or (iv) any indirect, special or consequential loss or damage of any nature whatsoever; and
         21.2.    the total liability of the Company to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not in any circumstances exceed the invoice value of the Goods.
22.    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 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.
Customer Obligations
23.    The Customer must adhere to the Company’s retail guidelines and online guidelines as notified by the Company from time to time.  In the event that the Customer re-sells the Goods to a wholesale or retail customer, such Goods may only be resold to accounts which meet the Company’s retail guidelines and online guidelines.
24.    Customers within the EEA shall not: 
         24.1.    sell any Goods outside the EEA and/or Switzerland or sell any Goods within the EEA where, to its knowledge, such Goods are intended for re-sale or distribution outside the EEA and/or Switzerland; or
         24.2.    actively approach or solicit customers, nor make active sales of the Goods, to any wholesale or retail account in any EEA country and Switzerland where sales of Goods are either exclusively reserved to the Company or to a third party. 
25.    In the event that a Customer within the EEA re-sells Goods to a wholesale or retail account, the Customer shall include in their conditions of sale a provision that:
         25.1.    Goods may not be sold outside of the EEA and Goods shall not be sold within the EEA where such Goods are intended for re-sale or distribution outside of the EEA; and
         25.2.    Goods may only be re-sold to accounts which meet the Company’s retail guidelines and online guidelines.
26.    Customers outside of the EEA shall not: 
         26.1.    sell any Goods outside of the territory agreed between the Company and the Customer from time to time;
         26.2.    sell any Goods within the territory agreed between the Company and the Customer from time to time where such Goods are intended for re-sale or distribution outside of that territory.    
27.    In the event that the Customer re-sells Goods to a wholesale or retail account, the Customer shall include in their conditions of sale, a provision that:
         27.1.    Goods may not be sold outside of the territory agreed between the Company and the Customer;
         27.2.    Goods shall not be sold in the Customer’s territory where such Goods are intended for resale or distribution outside of the Customer’s territory; and
         27.3.    Goods may only be re-sold to accounts which meet the Company’s retail guidelines and online guidelines.            
Title and Risk in the Goods 
28.    Goods shall be at the Customer's risk as soon as they are delivered to the Customer and without limitation to the foregoing the Customer shall be solely responsible for their custody and maintenance;
29.    The legal and beneficial title to the Goods shall remain the Company’s property until the Company has received unconditional payment in full for:
         29.1.    the Goods; and 
         29.2.    all payments to be made by the Customer under the Contract and any other agreement between the Company and the Customer and on any other account whatsoever.
30.    Until the legal and beneficial title to the Goods passes to the Customer in accordance with these Terms, the Customer shall:
         30.1.    be entitled to re-sell the Goods only in accordance with clause 33;
         30.2.    hold the Goods on a fiduciary basis as bailee for the Company;
         30.3.    keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession; 
         30.4.    not remove, deface or obscure any identifying mark or packaging on or in relation to the Goods;
         30.5.    give the Company such information relating to the Goods as the Company may from time to time request;
         30.6.    immediately notify the Company if it becomes subject to any of the events listed in clause 34.4;
         30.7.    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.
31.    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 34.4, or if the Company reasonably believes any such event is about to happen, then:
         31.1.    the Customer’s right to possession of the Goods shall immediately cease;
         31.2.    the Customer’s right to resell the Goods to its clients pursuant to clause 33 shall immediately cease; and
         31.3.    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; and
32.    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:
         32.1.    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
         32.2.    the Company and its servants and agents may enter upon any premises or land occupied or owned by the Customer to remove the Goods;
33.    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, and
         33.1.    may only re-sell the Goods to the Customer’s clients in the ordinary course of the Customer’s trading business as a fiduciary and trustee for the Company; and
         33.2.    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.
Termination
34.    Without prejudice to any of its other rights, the Company or any related companies shall have the right to cancel all or any contracts with the Customer and withhold delivery of any Goods if the Customer:-
         34.1.    commits a material breach of any term of the Contract or any contract with the Company or any related companies; 
         34.2.    fails to pay any amount due to the Company or any related companies by the due date for payment;
         34.3.    commits a breach of clause 23 - 27 and fails to remedy that breach within 20 days of receipt of notice from the Company specifying the breach; 
         34.4.    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 proposes terms for a company voluntary arrangement or enters into  a company voluntary arrangement or enters into any other scheme of arrangement, whether formal or informal or is placed into any other formal insolvency process or suffers any similar or analogous act; or
         34.5.    goes through a change of control (as defined in s.1124 of the Corporation Tax Act 2010). 
35.    On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Customer’s outstanding unpaid invoices and interest.  Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
Intellectual Property and Confidentiality
36.    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.
37.    Trade marks and/or logos applied to any of the Goods may be used only for the purpose of advertising the Customer’s sale of the Goods provided that the Company’s prior written consent is obtained. 
38.    No rights are granted to the Customer by virtue of its use of the Company’s trade marks or logos.
39.    The Customer shall keep confidential and not use, without the prior written consent of the Company, any information of a confidential nature supplied or disclosed by the Company to the Customer, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Customer, or disclosure of the same is required by law or by a governmental or regulatory body. 
General
40.    The Customer may not assign or sub-contract any of its rights or the obligations under the Contract without the prior written consent of the Company.  The Company may assign, licence or sub-contract all or any part of its rights or obligations under the Contract.
41.    A person who is not a party to the Contract shall not have any rights to enforce its terms.
42.    The Customer shall 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 policies in this regard in all dealings with or on behalf of the Company and the Goods.
43.    Any part of these Terms or the Contract which is or becomes invalid, illegal or unenforceable shall be deemed modified to the extent necessary to make it valid, legal and enforceable and shall not affect any other part of these Terms or the Contract.
44.    No waiver or delay 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. 
45.    No variation of these Terms or the Contract shall be effective unless in writing and signed by the Company.
46.    Each Contract contains the whole agreement between the parties and supersedes all prior agreements, undertakings and arrangements whether oral or in writing.  All other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law.
47.    The construction, validity and performance of all Contracts (including any associated non-contractual claims and disputes) between the parties shall be governed by the laws of England & Wales 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 jurisdiction the Company deems appropriate.

 

 

 

BERGHAUS LIMITED (the “Company”) - TERMS AND CONDITIONS OF SALE – DIRECT DELIVERY

These terms and conditions (“Terms”) shall govern all sales of Goods by the Company to the Customer. The Company reserves the right to amend these Terms from time to time, any such changes shall apply to any Orders placed after the date the updated Terms are placed on the Company’s website. The Customer should check these Terms regularly for any changes. In these Terms “Contract” means the contract for the supply of Goods, “Customer” means the person or company that purchases the Goods from the Company, “Goods” means any goods supplied or to be supplied by the Company to the Customer and “Order” means the Customer’s order for the Goods.


Contract
1.    These Terms apply to the Contract to the exclusion of any other terms, including any that the Customer seeks to impose or incorporate, or any which are implied by trade, custom, practice or course of dealings.
2.    The Order constitutes an offer by the Customer to purchase Goods in accordance with these Terms and shall only be deemed accepted when the Company issues a written acceptance, at which point the Contract shall come into existence.
3.    The Company reserves the right to amend any accidental error or omission on price lists, quotations, order acknowledgements, invoices, credit notes or other Company documentation.
4.    Once accepted, the Customer may not cancel any Order or return Goods without the Company’s prior written consent.  Such consent may be subject to conditions (in the Company’s sole discretion) and any returns will be subject to the Company’s returns policy (including a 20% handling charge).
Delivery
5.    Delivery times and/or dates stated by the Company are approximate only, time of delivery shall not be of the essence. The Company accepts no liability for any failure to comply with such times and dates. The Customer shall have no right to cancel the Contract in the event of such a failure. For the avoidance of doubt the Company shall not be liable for any penalties or charges that the Customer attempts to impose in relation to late delivery or non-delivery.
6.    Delivery of the Goods shall be made in accordance with the Incoterm (as defined in the latest published version of Incoterms), and to the delivery location, stated on the Order acknowledgement issued by the Company. Unless otherwise agreed in writing by the Company, the deemed delivery and responsibility for insurance, transit costs and compliance with any applicable customs formalities shall be determined by the Incoterm stated on the Order acknowledgement.       
7.    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.
8.    Any shortage, loss or non-delivery must be notified to the Company within 10 days of the delivery date on the advice note or invoice. The Customer shall not be entitled to reject the Goods if the Company delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice providing the Company receives notification within 10 days of delivery.
9.    The Company shall be entitled to deliver the Goods by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
10.    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 cost.
Price and Payment
11.    Unless otherwise agreed in writing by the Company, the price of the Goods shall be that which is stipulated in the Company’s applicable price list (the “Price List”) in force at the date of the Company’s acceptance of the Order. The Price Lists are subject to alteration without notice.  In the case of an Order delivered by instalments, each instalment shall be invoiced at the price stipulated in the Price List in force at the date of despatch of the instalment. Unless otherwise stated by the Company, prices set out in any of the Company’s price lists, quotations and acknowledgement of Order are exclusive of the costs of delivery, packing, insurance or any value added, purchase or other taxes which shall be payable in addition to the price when the price is due.  
12.    The Company shall be entitled to charge the Customer a surcharge for Orders of less than £250 or €300 excluding VAT or of such value or quantities as notified by the Company to the Customer from time to time.
13.    The Company shall invoice the Customer for 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.
14.    The Customer shall make payment of sums due to the Company in US Dollars by Confirmed, Irrevocable Letter of Credit payable at Sight, unless otherwise agreed by the Company. Time for payment of the Goods (including, without limit, any costs or charges payable) shall be of the essence. Payment shall only be deemed received by the Company upon receipt of cleared funds. 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 charge interest on any outstanding amounts 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.
16.    The Company will identify on its order form any specific surcharges that may be applied on Orders.
17.    The Company’s recommended retail prices shall not limit the Customer’s right to set its own resale prices.
Quality
18.    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 where it is necessary to comply with any applicable standards or legal requirements.
19.    The Company warrants that on delivery the Goods shall be free from material defects in materials and workmanship. The Company will either replace or refund (at the Company’s option) 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 provided that:
      19.1.    the Customer inspects the Goods on delivery and notifies the Company within 10 days of delivery of any alleged defects or damage. Otherwise, the Goods shall be deemed to be in accordance with the Contract and free from any defect or damage which would be apparent upon a reasonable examination;
      19.2.    where a defect would not have been apparent on a reasonable examination under clause 18.1, the Customer notifies the Company as soon as reasonably possible when the defect becomes apparent or within 180 days of delivery whichever is earlier;
      19.3.    the Customer provides the Company all information and assistance required to investigate any suspected defect and, if required, permits an inspection of the Goods concerned where they are located: and
      19.4.    the default complained of has not arisen as a result of any drawing, design or specification supplied by the Customer or from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing or whether relating without limit to the fabrication (e.g. the quality or performance of the fabrics), operation, use or maintenance of the Goods), or misuse or alteration or repair of the Goods without the Company’s prior written approval.
20.    Subject to clauses 20 and 21, clause 18 defines the Company’s full liability in respect of the Goods and all other conditions, warranties or undertakings whether express or implied by statute, common law, custom, usage or otherwise, are excluded to the fullest extent permissible by applicable law.
Limitation of Liability
21.    Nothing in these Terms shall exclude or limit the liability of the Company for (i) death or personal injury resulting from its negligence, (ii) fraud or fraudulent misrepresentation, (iii) breach of terms as to title under Section 12 of the Sale of Goods Act 1979 or (iv) any other loss or damage the exclusion or limitation of which is prohibited by English law.
22.    Subject to clause 21;
     22.1.    the Company shall in no circumstances be liable to the Customer in contract, tort (including negligence), breach of statutory duty, or otherwise, (i) for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings, or (ii) for damage to the Customer’s reputation or goodwill, or (iii) for any loss resulting from any claim made by any third party, or (iv) any indirect, special or consequential loss or damage of any nature whatsoever; and
     22.2.    the total liability of the Company to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not in any circumstances exceed the invoice value of the Goods.
23.    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 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.
Customer Obligations
24.    The Customer must adhere to the Company’s retail guidelines and online guidelines as notified by the Company from time to time.  In the event that the Customer re-sells the Goods to a wholesale or retail customer, such Goods may only be resold to accounts which meet the Company’s retail guidelines and online guidelines.
25.    Customers within the EEA shall not:
     25.1.    sell any Goods outside the EEA and/or Switzerland or sell any Goods within the EEA where, to its knowledge, such Goods are intended for re-sale or distribution outside the EEA and/or Switzerland; or
     25.2.    actively approach or solicit customers, nor make active sales of the Goods, to any wholesale or retail account in any EEA country and Switzerland where sales of Goods are either exclusively reserved to the Company or to a third party.
26.    In the event that a Customer within the EEA re-sells Goods to a wholesale or retail account, the Customer shall include in their conditions of sale a provision that:
26.1.    Goods may not be sold outside of the EEA and Goods shall not be sold within the EEA where such Goods are intended for re-sale or distribution outside of the EEA; and
     26.2.    Goods may only be re-sold to accounts which meet the Company’s retail guidelines and online guidelines.
27.    Customers outside of the EEA shall not:
     27.1.    sell any Goods outside of the territory agreed between the Company and the Customer from time to time;
     27.2.    sell any Goods within the territory agreed between the Company and the Customer from time to time where such Goods are intended for re-sale or distribution outside of that territory.    
28.    In the event that the Customer re-sells Goods to a wholesale or retail account, the Customer shall include in their conditions of sale, a provision that:
     28.1.    Goods may not be sold outside of the territory agreed between the Company and the Customer;
     28.2.    Goods shall not be sold in the Customer’s territory where such Goods are intended for resale or distribution outside of the Customer’s territory; and
     28.3.    Goods may only be re-sold to accounts which meet the Company’s retail guidelines and online guidelines.            
Title and Risk in the Goods
29.    Goods shall be at the Customer's risk as soon as they are delivered to the Customer and without limitation to the foregoing the Customer shall be solely responsible for their custody and maintenance;
30.    The legal and beneficial title to the Goods shall remain the Company’s property until the Company has received unconditional payment in full for:
    30.1.    the Goods; and
    30.2.    all payments to be made by the Customer under the Contract and any other agreement between the Company and the Customer and on any other account whatsoever.
31.    Until the legal and beneficial title to the Goods passes to the Customer in accordance with these Terms, the Customer shall:
    31.1.    be entitled to re-sell the Goods only in accordance with clause 34;
    31.2.    hold the Goods on a fiduciary basis as bailee for the Company;
    31.3.    keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession;
    31.4.    not remove, deface or obscure any identifying mark or packaging on or in relation to the Goods;
    31.5.    give the Company such information relating to the Goods as the Company may from time to time request;
    31.6.    immediately notify the Company if it becomes subject to any of the events listed in clause 35.4;
    31.7.    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.
32.    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 35.4, or if the Company reasonably believes any such event is about to happen, then:
    32.1.    the Customer’s right to possession of the Goods shall immediately cease;
    32.2.    the Customer’s right to resell the Goods to its clients pursuant to clause 34 shall immediately cease; and
    32.3.    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; and
33.    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:
    33.1.    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
    33.2.    the Company and its servants and agents may enter upon any premises or land occupied or owned by the Customer to remove the Goods;
34.    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, and
    34.1.    may only re-sell the Goods to the Customer’s clients in the ordinary course of the Customer’s trading business as a fiduciary and trustee for the Company; and
    34.2.    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.
Termination
35.    Without prejudice to any of its other rights, the Company or any related companies shall have the right to cancel all or any contracts with the Customer and withhold delivery of any Goods if the Customer:-
    35.1.    commits a material breach of any term of the Contract or any contract with the Company or any related companies;
    35.2.    fails to pay any amount due to the Company or any related companies by the due date for payment;
    35.3.    commits a breach of clause 24 - 28 and fails to remedy that breach within 20 days of receipt of notice from the Company specifying the breach;
    35.4.    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 proposes terms for a company voluntary arrangement or enters into  a company voluntary arrangement or enters into any other scheme of arrangement, whether formal or informal or is placed into any other formal insolvency process or suffers any similar or analogous act; or
    35.5.    goes through a change of control (as defined in s.1124 of the Corporation Tax Act 2010).
36.    On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Customer’s outstanding unpaid invoices and interest.  Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
Intellectual Property and Confidentiality
37.    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.
38.    Trade marks and/or logos applied to any of the Goods may be used only for the purpose of advertising the Customer’s sale of the Goods provided that the Company’s prior written consent is obtained.
39.    No rights are granted to the Customer by virtue of its use of the Company’s trade marks or logos.
40.    The Customer shall keep confidential and not use, without the prior written consent of the Company, any information of a confidential nature supplied or disclosed by the Company to the Customer, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Customer, or disclosure of the same is required by law or by a governmental or regulatory body.
General
41.    The Customer may not assign or sub-contract any of its rights or the obligations under the Contract without the prior written consent of the Company.  The Company may assign, licence or sub-contract all or any part of its rights or obligations under the Contract.
42.    A person who is not a party to the Contract shall not have any rights to enforce its terms.
43.    The Customer shall 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 policies in this regard in all dealings with or on behalf of the Company and the Goods.
44.    Any part of these Terms or the Contract which is or becomes invalid, illegal or unenforceable shall be deemed modified to the extent necessary to make it valid, legal and enforceable and shall not affect any other part of these Terms or the Contract.
45.    No waiver or delay 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.
46.    No variation of these Terms or the Contract shall be effective unless in writing and signed by the Company.
47.    Each Contract contains the whole agreement between the parties and supersedes all prior agreements, undertakings and arrangements whether oral or in writing.  All other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law.
48.    The construction, validity and performance of all Contracts (including any associated non-contractual claims and disputes) between the parties shall be governed by the laws of England & Wales 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 jurisdiction the Company deems appropriate.
 
 

 

Version: May 2016 © BERGHAUS LIMITED 2016

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