Standard terms and conditions of sale
Unless otherwise specifically agreed to in writing by seller, these terms and conditions of sale (these “terms”) shall apply to any and all orders placed by buyer for any of seller’s products or services (the “product(s)”), whether or not such order is subject to a signed purchase order or other agreement between buyer and seller. “buyer” means the individual or entity identified on buyer’s purchase order, or if different, on seller’s quote. “seller” means 6093299 canada inc., (d/b/a gabriel scott) or the subsidiary, division or affiliated entity of 6093299 canada inc., (d/b/a gabriel scott) identified on seller’s quote or order confirmation. These terms supersede and control the seller’s condensed, abridged terms and conditions (the “abridged t&c”), which may be provided to the buyer for reference purposes only and shall, always and in all manners, be subject to these terms.
1. Acceptance
Any purchase order, which includes email order requests, submitted by buyer to seller shall be deemed to be an irrevocable offer by buyer to purchase the products described in such purchase order. All purchase orders received from buyer are subject to acceptance by seller and seller reserves the right, in its sole and absolute discretion, not to accept any purchase order, including any purchase order issued in connection with a quote previously provided by seller. Acceptance of any purchase order by seller is subject to the availability of products and the ability of seller to deliver such products. Seller’s acceptance of a purchase order shall be evidenced by (i) delivery of a purchase order confirmation to buyer; or (ii) seller’s commencement of the work necessary to provide the products to buyer in fulfillment of the purchase order.
It is buyer’s responsibility to carefully review the purchase order confirmation received from seller and the attached drawings (if applicable) for errors, omissions and/or discrepancies, and to advise seller in writing of any such errors in the purchase order confirmation within five (5) days of buyer’s receipt thereof, and failure to timely notify seller of any errors, omissions and/or discrepancies within this five (5) day period of time shall constitute buyer’s irrevocable approval of the purchase order confirmation. Buyer’s approval of the purchase order confirmation indicates buyer’s assumption of full responsibility for any errors, omissions, discrepancies and legal compliance in the purchase order confirmation. seller accepts no liability for any errors, omissions or discrepancies overlooked once the purchase order confirmation has been approved. any changes to a purchase order requested by buyer after buyer’s approval of the purchase order confirmation are subject to additional charges, including but not limited to, any additional costs incurred by seller (including its own labour and materials costs and any such third party costs the seller may have incurred or committed to). buyer must provide written instructions to seller of any changes to the purchase order via email at london@gabriel-scott.com.
unless seller expressly agrees in writing, these terms shall govern all purchase orders and quotes for products, and seller’s acceptance of any purchase order submitted by buyer is conditional on buyer’s acceptance of these terms. seller specifically rejects, and buyer specifically disclaims, all pre-printed provisions in buyer’s purchase order and any other buyer forms or documents to the extent inconsistent with these terms. Seller’s failure to object to any term or condition in any communication from buyer shall not be construed as seller’s agreement to such term or condition, nor shall it be deemed a waiver of these terms. If seller’s purchase order confirmation, invoice or other document or electronic transmittal is found to be an acceptance of an offer from buyer, then such acceptance is expressly made conditional upon buyer’s assent solely to these terms, and buyer’s approval of any purchase order confirmation or acceptance of any products delivered or provided by seller shall be deemed to constitute such assent by buyer. If seller’s purchase order confirmation, invoice or other document or electronic transmittal constitutes an offer, then buyer’s acceptance of such offer is subject to these terms. These terms apply to the contract between the parties to the exclusion of any other terms that the buyer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2. Prices
All prices listed on seller’s price schedule or website are subject to change without notice, even after a purchase order has been accepted and confirmed. Unless otherwise announced in writing by seller, or upon notice from seller to buyer, prices for products specified by seller in a formal quote shall remain in effect for a period of thirty (30) days from the date such prices are quoted by seller in writing. After the aforementioned thirty (30) day period has expired, all prices for products are subject to change without notice. the seller may increase the price of the products due to: (i) any request by the buyer to make changes to the products or the purchase order confirmation; or (ii) any request by the buyer to make changes to the delivery date or location of the products. Seller reserves the right to invoice buyer at the prices in effect on the date of shipment, regardless of any prior quote and regardless of whether notice of such price change was received by buyer. All prices and other terms are subject to correction for typographical and clerical errors. prices do not include applicable customs duties, packaging, transport, crating, freight, insurance or installation charges for which the buyer shall be additionally liable in accordance with products being transported in accordance with the fob (free on board) rules (incoterms 2010). Seller reserves the right to refuse to make quotations, accept orders or direct shipments to destinations outside the seller’s regular selling area.
3. Vat and similar taxes
Prices do not include value added tax or any other applicable sales, use, excise or similar taxes. Consequently, in addition to the price specified herein, the amount of any present or future value added tax or any other applicable sales, use, excise or other similar tax applicable to the sale or use of the products hereunder shall be paid by the buyer.
4. Payment terms
Seller requires a deposit of 50% of the total purchase price for all purchase orders upon buyer’s placement of the order. After 48 hours of seller’s receipt of the deposit, the deposit will be non-refundable. Purchase orders received without a deposit are generally held from production pending the receipt of the payment. Unless different payment terms have been extended to buyer in writing, payment of the balance is due upon completion of the order, prior to shipping. Seller will send a notification to buyer that the order is complete, together with an invoice noting balance of the purchase price due upon receipt, and, buyer shall promptly remit payment of the purchase price balance to seller. The payment remittance address and payee will be listed on the invoice. For all orders completed and not paid-in-full within two weeks of estimated completion date, item will be restocked and buyers delivery date will be reset to the full current lead time. For all orders completed and not approved for release within two weeks of estimated completion date, a strict £250-£500 per week storage-fee will apply. All past due amounts shall be payable on demand. If the buyer fails to make any payment due to the seller under these terms by the due date for payment, then the buyer shall pay interest on the overdue amount at the rate of 4% per annum above lloyds bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The buyer shall pay the interest together with the overdue amount. If any amount due seller is collected by or through a collection agency or attorney, seller shall be entitled to recover all costs of collection, including, without limitation, attorney’s fees equal to 15% of the total principal and interest owed. In the case of an apparent discrepancy in a line item charge, buyer is obligated to advise seller’s customer service team in writing of the nature of the claimed discrepancy within five (5) days of buyer’s receipt of the invoice. This includes all requests for proof of delivery. A claim of discrepancy shall not serve to relieve buyer of its absolute obligation to pay the remaining balance of the invoice in accordance with the standard terms of payment. seller, after review of any alleged discrepancy by buyer, shall have the sole and absolute discretion to resolve the discrepancy; and buyer expressly agrees to abide by seller’s decision.
5. Customers own materials (com/col)
Production will not begin on any products requiring any type of material, leather, fabric, trim or cords supplied by the buyer (“customers’ own materials”) until all the materials for the product ordered have arrived, been identified and inspected. Buyer is responsible for ensuring that all materials are identifiable and labelled clearly and correctly when received. Seller shall make commercially reasonable efforts to identify and use the most suitable and quality portions of the customers’ own materials, in its sole and absolute discretion, for production of any product. such materials may include, without limitation, leather or other natural fiber materials, marble, glass, blown glass, or plated finishes. Seller shall not be responsible for any markings on, or distortions of, any materials that may be visible on upholstered goods or other products. Buyer assumes complete responsibility for the suitability, general wear, wear-ability, safety, or fire code validity of the materials supplied by the buyer. seller takes no responsibility for the selection of the customers’ own materials chosen by buyer. Seller’s warranties do not extend to the customers’ own materials supplied by the buyer. no excess or off-cut fabrics will be returned to the buyer. If, if seller’s opinion, customers’ own materials are not acceptable for use by seller as part of the product order, seller shall have the right to not accept a purchase order or where a purchase order has been accepted, to terminate it.
6. Delivery and risk of loss
Unless otherwise agreed to in writing by seller, products shall be shipped fob (incoterms 2010) seller’s manufacturing facility or distribution center, such that risk of loss and title of products shall pass to buyer upon delivery to the designated carrier. Other than as expressly set forth herein, freight shall be prepaid and allowed on all shipments of products. actual freight costs are subject to change.
Seller reserves the right to select the carrier, routing and method of transportation. buyer shall be responsible for all charges for transportation specified utilizing a more expensive means of transportation. Acceptance of a specified routing does not constitute a guarantee of ship date, transit time or arrival date.
Seller reserves the right to ship all prepaid orders in one complete shipment. partial shipments may be made at seller’s discretion. seller shall not be responsible for any cartage or storage charges at destination. buyer shall pay any detention, storage, handling or auxiliary charges assessed by carriers or warehousemen resulting from buyer’s requirements for special service or buyer’s failure to accept delivery in a timely manner. seller’s responsibility for delivery ceases when the transportation company receives shipment in good condition. Claims for loss or damage must be reported directly to the courier/driver and carrier. seller’s willingness to assist the buyer with such claims does not indicate liability on the part of the seller for the claim or replacement of the products. All other charges and services provided by the carrier at a consignee’s request including but not limited to redelivery or re-consignment are the responsibility of the buyer.
Buyer’s requests for deferment on shipping must be approved by seller in writing and any such orders may be subject to revised pricing.
7. Performance
Seller will use reasonable efforts to meet shipment or delivery dates specified by seller or buyer, but buyer acknowledges and agrees that such dates are estimates only and are not a firm commitment. Time is not of the essence with respect to the transactions covered by these terms, except with respect to buyer’s obligation to timely make all related payments. Delivery dates and lead times are estimates only, are based on current production schedules at the time of the purchase order, and are subject to change without prior notice. standard lead time is generally estimated at 12 to 14 weeks from the date seller obtains all of the following: (1) buyer’s approval of the purchase order confirmation; (2) the required deposit; (3) all customers’ own materials necessary to manufacture the product; and (4) all required information to manufacture the product, such as, approved drawings and specifications with respect to the dimensions, color, finish, voltage or other details related to the products. Estimated lead time may be longer for certain products. seller shall not be responsible for any delays in production. seller shall not be liable for any costs related to late deliveries. If the seller fails to deliver the products, its liability shall be limited to the costs and expenses incurred by the buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the products. seller shall not be liable for any delay in shipping or performance or non-delivery caused directly or indirectly by a force majeure event (as defined in section 15). Buyer agrees that any delay in delivery or failure to deliver or perform any part of these terms shall not be grounds for buyer to terminate or refuse to comply with any provisions hereof and no claim or penalty shall be effective against seller for such delay. Seller shall not be responsible for any delay caused by buyer’s failure to timely provide pertinent information or materials required for seller to complete its obligations under an order. In addition, all performance dates, timetables and project milestones may, at seller’s discretion, automatically be extended, day for day, for each day of delay in the completion of any milestone, inspection or approval resulting from any act, omission or delay (including, without limitation, any delay in submitting any required information) of buyer or any of buyer’s other contractors, subcontractors, customers or suppliers, or resulting from any other delay not caused by seller.
8. Limited warranty
Products are sold with a limited warranty against manufacturer defects in materials and workmanship for a period of one year from the delivery date. Seller reserves the right to repair or replace defective products at its sole discretion. Except as provided for in this clause 8 the seller shall have no liability to the buyer in respect of the products’ failure to comply with the warranty above. This limited warranty does not extend to other materials supplied by the buyer (including the customer’s own materials) or damage caused by shipping, accident, abuse, misuse, negligence, cleaning, or normal wear and tear. This warranty applies to the original buyer only and is not transferrable. All other warranties express or implied are excluded. seller reserves the right to modify its limited warranty at any time in its sole discretion. Except for the express warranties set forth above, seller provides the products as-is and makes no other representations or warranties, and hereby specifically disclaims any and all other representations and warranties, express or implied, relating directly or indirectly to the products, whether oral, written or arising by course of dealing or usage of trade, including, without limitation, any implied warranties of merchantability, quality or fitness for a particular purpose or sale by description or sale by sample (including but not limited to those implied by sections 13 to 15 of the sale of goods act 1979). No oral or written information or advice given by seller or any employee, agent, distributor or other supplier of seller’s products shall create a warranty or in any way increase the scope of the express warranty set forth above. No employee, agent, distributor or other supplier of seller’s products has the authority to modify or amend the express warranties set forth above without express written authorization from seller.
9. Limitation of liability
(a) subject to sub-clause 9(c) below, in no event shall seller be liable for any: (i) indirect; (ii) special; (iii) incidental; (iv) consequential; (v) exemplary; (vi) multiple or punitive damages; even if informed of the possibility of such damages, whether as the result of breach of contract, warranty, tort (including negligence), breach of statutory duty, strict liability or any other theory, including without limitation: labor or equipment required to remove and/or reinstall original or replacement parts, loss of time, profits or revenues, lack or loss of productivity, loss of use of the products or any associated equipment, interest charges or cost of capital, cost of substitute equipment, facilities, systems, services or downtime costs, damage to or loss of property or equipment, any inconvenience, cost or damage arising out of any delay in performing, failure to perform or other breach of the warranty set forth in section 8 or obligations under such warranty, or claims of third parties against buyer, arising out of or in connection with the sale, installation, use of, inability to use, or the repair or replacement of the products sold pursuant to these terms.
(b) subject to sub-clause 9(c) below, in no event shall seller’s total liability in respect of any and all claims of any kind whether in contract, warranty, tort (including negligence), strict liability or otherwise arising out of or in connection with, or resulting from seller’s sale, delivery, resale, repair, replacement or furnishing of any products, including performance or breach of the warranty set forth in section 8 of these terms, exceed the purchase price allocable to the good(s) that gives rise to the claim. buyer is wholly responsible for obtaining a qualified installation professional to install the products. seller expressly disclaims any obligation and/or liability arising from, relating to or in connection with the installation of products.
(c) for the avoidance of doubt, nothing in these terms shall limit or exclude the seller’s liability for: (i) death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; (iii) breach of the terms implied by s.12 of the sale of goods act 1979 (implied terms about title); or (iv) any matter in respect of which it would be unlawful for the seller to exclude or restrict liability.
10. Cancellations
Buyer must provide seller with a written request for any cancellation. seller will attempt to accommodate requests for cancellations but cannot guarantee stoppage of shipment for stocked product. all deposits are non–refundable after 48 hours of payment of deposit. If work has been performed, any costs incurred by seller will be charged to the buyer, which may include a cancellation charge up to the price of the product. cancellation of in-stock products will require a restocking fee equal to 35% of the purchase price as well as any incurred freight expense. Upon cancellation, customers’ own materials will be disposed of by the seller at seller’s discretion.
11. Claims and returns
All claims for workmanship defects, shortages and errors must be made in writing via email to london@gabriel-scott.com, accompanied by photographs of such defects, within two (2) days after buyer’s receipt of the products. payments will not be made for unauthorized repairs. Failure to make a claim within this period of time constitutes acceptance of the products and a waiver of claims. All products are inspected before shipping. all products are signed for by the freight company, stating that the products have been picked up in good condition. buyer and third party shippers have sole responsibility for any damage, loss or shortages incurred during transit. Buyers or their receiving warehouses must inspect the products upon arrival and make claims for any damage, loss or shortages directly to the carrier. seller is not responsible for any freight related claims, but may assist the buyer in this process at seller’s sole discretion.
Seller does not accept any product returns. no products can be returned to seller without its written consent. Returns will be returned to the location of origin freight collect or held without a refund for ten (10) days for the buyer to arrange for alternate shipping, after which time the product shall be deemed abandoned by buyer and the seller may resell or otherwise dispose of part or all of the products as it sees fit.
12. Changes in product design or manufacture
Seller shall have the right, without notice, to change, discontinue or modify the design, production, dimensions and other materials of any of its products and to substitute material equal to or superior to that originally specified. seller’s products are handcrafted and, as such, can have minor variations from other models, showroom models and photos of models. All dimensions can have slight variations. Materials and finishes can vary from samples and exact matching is not guaranteed.
13. Confidentiality
All pricing, drawings, plans, disclosures, specifications, patterns, product or material samples or technical or business information furnished at any time to buyer by seller shall remain the sole property of seller. Buyer shall hold all such information in strict confidence, shall not use or divulge to any third person or entity any such confidential information, and any and all copies of such confidential information shall be returned to seller promptly upon seller’s request.
14. Intellectual property rights
Intellectual property rights (whether arising under patent, trademark, copyright laws or otherwise) to all improvements embodied in designs, tools, patterns, drawings, information and products supplied by seller under these terms, and exclusive rights for the use and reproduction thereof, and all intellectual property rights arising out of the performance under these terms shall accrue and be assigned to, and be owned by, seller, and buyer shall execute and deliver such instruments as may be necessary to effect or confirm such ownership. Buyer agrees to indemnify, defend and hold seller harmless from any and all damages, losses (including any direct, indirect or consequential losses, loss of profit and loss of reputation), liabilities, claims, interest, penalties, costs and expenses (including reasonable attorney’s fees) related to any claim arising from or related to (a) the design, distribution, manufacture, marketing, sale, or use of the products or (b) a claim that such materials, goods or products furnished to buyer by seller, or the use thereof, infringes any claim of any patent, foreign or domestic, in each case to the extent that such claim arises from or is related to (i) products which are made in accordance with drawings, samples or manufacturing specifications designated by buyer, (ii) any modifications by buyer to the products or any part(s) thereof, (iii) the combination of the products or any part(s) thereof with any other parts, equipment, products or goods, or (iv) the inclusion of any customer’s own materials in the products. buyer agrees at its own expense to undertake the defense of any suit against seller brought upon such claim or claims. Alternatively, seller, at its sole and absolute discretion, may select its own counsel and buyer shall reimburse seller for the costs of such representation.
15. force majeure
Seller shall not be responsible for any delay or failure in performance of any part of a quote, these terms or delivery of the products to the extent such delay or failure is caused by an event beyond the reasonable control of seller including, without limitation, governmental action, fire, explosion, acts of god, flood, war, terror attack, riot, accident, blockades, insurrections, riots, epidemics, earthquakes, hurricanes, tornadoes, floods, abnormal weather, snow or hail storms, labor trouble, shortages of labor or materials, nuclear fallout, power-outages, increases in material costs, transportation difficulty, acts of the public enemy, the existence of any circumstance making performance commercially impractical (each such event, a “force majeure event”).
16. Compliance with laws
Buyer shall comply with all laws and regulations applicable to the products, including, but not limited to, all applicable import and export laws and regulations. Buyer shall have the sole responsibility for obtaining any required import licenses. Buyer shall not take, and shall not solicit seller to take, any action which would violate any anti- boycott or any export or import statutes or regulations or other governmental authorities and shall indemnify, defend, hold harmless and reimburse seller for any loss (including any direct, indirect or consequential losses, loss of profit and loss of reputation), liability, claim, damage, cost and expense arising out of or related to such actions.
17. Remedies for breach
A “breach” of these terms shall occur if buyer (a) fails to pay any amount due on the due date, (b) files a petition in bankruptcy or seeks relief under any bankruptcy, reorganization, insolvency, dissolution, liquidation or similar law of any jurisdiction, (c) becomes unable to pay or suspends payment of its debts as they become due, or if a court issues an order appointing a receiver, custodian or administrator over all or part of buyer’s assets, or (d) or any of its affiliates breach any agreement with seller or any of its affiliates. in the event of a breach, seller may terminate any outstanding purchase order with buyer or any of its affiliates. In addition, without waiving any other available remedies, seller may: (i) declare immediately due and payable all sums due and to become due under any outstanding purchase order; (ii) stop the design, manufacture, fabrication or shipment of any products; and (iii) stop performance of any services or the design, manufacture, fabrication or shipment of any products under any other agreement between buyer or any of its affiliates and seller or any of its affiliates.
18. Legal fees
Buyer agrees to pay all reasonable lawyer fees and legal costs incurred or paid by seller in connection with any suit, action or proceeding to collect any amounts owed to seller under these terms or any quote, purchase order or acknowledgment, subject to these terms.
19. No waiver
Seller’s waiver of any breach of any provision contained in these terms shall not serve to waive any other breach by buyer. seller’s delay or failure to enforce any of its rights under these terms shall not be deemed a waiver of such rights.
20. Governing law
For transactions in relation with 6093299 Canada Inc:
These terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms or their subject matter or formation shall be governed by and construed in accordance with the law of the province of Quebec and the relevant federal laws of Canada applicable therein. Each party irrevocably agrees that the courts of the province of Quebec in the judicial district of Montreal shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms or their subject matter or formation.
For transactions in relation with Gabriel Scott Ltd:
These terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms or their subject matter or formation.
21. Assignment
These terms are binding upon, and shall inure to the benefit of buyer, seller and their successors and permitted assigns. buyer may not assign all or any portion of its rights or obligations hereunder without the prior written consent of seller. seller may assign, delegate or subcontract a purchase order or any of its obligations under these terms, in whole or in part, without buyer’s consent.
22. Entire agreement; amendments
The entire agreement of seller and buyer is expressed exclusively in the terms, covenants and conditions set forth in these terms, a seller quote and seller’s acceptance or confirmation of buyer’s purchase order. No agent, representative or employee of seller has authority to agree, represent or warrant otherwise, except seller’s officers, and then only in writing. These terms supersede all other written or oral agreements between the parties relating to the subject matter hereof, including the abridged t&c. seller may modify these terms without notice to the buyer. Seller and buyer may modify a purchase order, only by an express written agreement signed by both parties.
23. Relationship of the parties
The relationship between the parties is that of independent contractors. nothing contained in a quote, buyer’s purchase order, these terms or in any other document or agreement related to the provision of the products shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from a quote or these terms.
24. Severability
Any part of these terms held to be invalid, illegal or unenforceable by a court or tribunal of competent jurisdiction shall be deemed ineffective to the extent thereof without affecting the validity or enforceability of any other part of these terms.
25. Survival
Provisions of these terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these terms.
26. Third party rights
No one other than a party to these terms (and their successors and permitted assignees) shall have any right to enforce any of its provisions.
