TERMS AND CONDITIONS OF SALE
1.1 In these conditions (these “Conditions”) the following definitions and rules of interpretation shall apply:
- “Buyer” means the person submitting the Order;
- “Contract” means these Conditions, the Order and the Order Confirmation;
- “Order” means an order for products submitted by the Buyer, whether via a website, email, other communications facilities (such as telephone or fax) or in paper format;
- “Order Confirmation” means the Seller’s acceptance of an Order which shall be submitted in the form of an order confirmation or a proforma invoice, and which may be submitted in electronic (for example email) or paper format, or via fax;
- “Price” means the price for the Products specified in the Order Confirmation;
- “Products” means the products described in the Order Confirmation;
- “Seller” means Morton Young & Borland Limited incorporated and registered in Scotland with company number SC084953 whose registered office is at Henderson Loggie Sinclair Wood, 90 Mitchell Street, Glasgow, G1 3NQ.
1.2 Nothing in these conditions shall restrict any rights of the Buyer which cannot be avoided under law. For more information upon these rights the Buyer should contact a lawyer experienced in agreements of this nature or their local Citizen’s Advice Bureau.
1.3 In the event of a conflict between the parts of the Contract the following order of precedence shall apply: the Order Confirmation, these Conditions, the Order.
1.4 The Contract contains the entire agreement between the Seller and the Buyer. All other warranties, representations, guarantees, undertakings or other terms, except to the extent they are expressly incorporated into the Contract, are excluded from the Contract. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate (whether referenced in the Order, contained in any correspondence between the parties, or otherwise), or which are implied by trade, custom, practice or course of dealing.
1.5 No modification of the Contract shall be binding unless expressly agreed in writing by the Seller.
1.6 No waiver of any right or remedy under or relating to the Contract shall be binding upon the Seller unless given expressly in writing, and shall not prevent any further exercise of that right or remedy.
1.7 If any part of the Contract shall be deemed unenforceable, that part shall be severed from the Contract, however the remaining parts of the Contract shall remain in full force and effect.
9.1 The Seller may at any time assign, novate, transfer, charge, subcontract or otherwise deal in any other manner with all or any of its rights or obligations under the Contract without a requirement of prior notice to the Buyer. The Buyer may not assign, novate, transfer, charge, subcontract or otherwise deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Seller.
1.8 A person who is not a party to the Contract shall not have any rights under or in connection with it.
1.9 Any photographs, illustrations or publicity material produced by the Seller is intended to give a general idea of the products portrayed. It shall not constitute a description of the products nor shall it be taken to be form part of the Contract. The Seller reserves the right to alter the products portrayed in any publicity material by it at such times as it sees fit. The Seller shall be bound to supply products only when a contract has been concluded in accordance with these Conditions for their supply.
1.10 The Order shall be deemed to be an offer by the Seller to purchase Products on these Conditions. No agreement shall come into being between the Seller and Buyer until the Seller has issued an Order Confirmation.
1.11 The Buyer will ensure that the terms of the Order are complete and accurate at the time of submission and that the Order Acceptance is complete and accurate when received.
2 Supply of Products
2.2 In consideration of the payment of the Price by the dates for payment set out in the Order Confirmation the Seller shall supply to the Buyer the Products. Payment of the Price by the dates for payment set out in the Order Confirmation shall be of the essence of the Contract.
2.3 Minimum lengths for Products in the form of Lace and Madras shall be 1 metre, and Products in the form of Velvets 3 metres. Products shall be cut to the nearest +/- 1 centimetre.
2.4 The Seller warrants that the Products shall conform in all material respects to any specification given in the Contract and be fit for any purpose to which they may be applied as held out by the Seller. The Seller does not make any warranty, representation or guarantee that the Products will be fit for any other purpose. This warranty does not apply to Products which are stated in the Contract to be seconds, remainder stock, samples or sold as substandard (“Substandard Products”). No warranties are given in respect of Substandard Products.
2.5 In the event that the Products become unavailable prior to delivery the Seller shall offer to the Buyer substitute products of a similar price and quality. The Buyer shall also have the right to cancel the Contract in which case the Seller shall refund any part of the Price paid to the Buyer within a reasonable period.
3 Care of Products
Instructions relating to handling or use of the Products (where given by the Seller) should be followed carefully. The Seller shall not be liable for any damage to the Products arising from any failure to follow such instructions. Subject to any contrary instructions having been given by the Seller, dry cleaning or a cool wash where the fabric is then reshaped when damp is recommended for the cleaning of Products.
4 Colour Matching
The Seller shall use reasonable endeavours to ensure that Products match the patterns and colours given in the Seller’s pattern book or other Product samples supplied to the Buyer, however due to the manufacturing processes involved in the creation of Products an absolute match cannot be guaranteed.
5.1 The Seller will use reasonable but commercially prudent endeavours to meet any delivery date(s) specified in the Contract, however the Seller offers no guarantees in this respect. Time shall not be of the essence of the Contract. Any failure to meet a stated delivery date given shall not entitle the Buyer to terminate the Contract. This does not affect the Buyer’s rights under law where the Buyer is a consumer. For more information upon these rights the Buyer should contact a lawyer experienced in agreements of this nature or their local Citizens Advice Bureau.
5.2 Delivery of Products shall be completed on their arrival at the delivery location stated in the Order Confirmation. If the Buyer fails to take possession of the Products on their arrival at the delivery location the Products shall be deemed delivered and the Seller shall store the Products until the Buyer takes delivery of the Products. In such an event the Buyer shall be liable to the Seller for all costs and expenses incurred by the Seller in relation to the storage of the Products, and in seeking to make any subsequent delivery of the Products. In the event that the Buyer fails to take delivery within four (4) weeks of the date upon which delivery was first attempted the Seller shall be entitled to dispose of the Products as the Seller sees fit (including by way of resale to another person), and the Buyer shall be liable to the Seller for any loss, cost or expense incurred in relation thereto (including the Price of the Products if the Seller does not resell the Products to another person).
5.3 All Products shall be delivered using the Buyer’s appointed carriers, unless expressly agreed by the Seller in writing otherwise. In the event that the Products are despatched to the Buyer using the Buyer’s appointed carrier, the Products shall be deemed delivered to the Buyer on their passing into the care of the Buyer’s appointed carrier, the Seller shall not be liable to the Buyer in any manner for any loss of or damage to the Products arising during transit from the Seller to the Buyer, and the Buyer shall remain fully liable to pay the Price for the Products in the event that they are lost or damaged during transit.
5.4 The Seller shall use reasonable endeavours to ensure the number of any Products delivered shall correspond to the number stated in the Order Confirmation. If the Seller delivers less Products than the amount stated in the Order Confirmation then the Price shall be pro rated according to the amount of Products actually delivered as against the amount stated in the Order Confirmation, and the Seller shall refund any amount due to the Buyer as a result within a reasonable period.
5.5 Notwithstanding the terms of clause , the Seller may by notice to the Buyer deliver the Products described in the Order Confirmation in instalments. In the event that the Seller delivers Products in instalments then each instalment shall constitute a separate contract made on the basis of these Conditions, the Order and the Order Confirmation which shall be deemed to be amended accordingly as to amount of Products and Price. Any right of the Buyer to cancel any one such contract shall not give rise of a right to the Buyer to cancel any other such contract.
5.6 The Buyer shall inspect the Products within thirty (30) days of delivery. If the Buyer does not notify the Seller of any defects in the Products within this thirty (30) day period, then the Buyer shall be deemed to have accepted the Products. This does not affect the Buyer’s rights under law where the Buyer is a consumer. For more information upon these rights the Buyer should contact a lawyer experienced in agreements of this nature or their local Citizens Advice Bureau.
5.7 In the event that the Buyer notifies the Seller of the presence of defects in the Products in accordance with clause the Buyer shall (at the Seller’s option) either return the Products to the Seller for inspection or afford the right to the Seller to inspect the Products at the location where they are held. This does not affect the Buyer’s rights under law where the Buyer is a consumer. For more information upon these rights the Buyer should contact a lawyer experienced in agreements of this nature or their local Citizens Advice Bureau.
5.8 Where Products are defective the Seller shall be entitled to (at its option) either replace the defective Products or refund the Price paid for the defective Products to the Buyer. Any replacement or refund shall be made by the Seller within a reasonable period. This does not affect the Buyer’s rights under law where the Buyer is a consumer. For more information upon these rights the Buyer should contact a lawyer experienced in agreements of this nature or their local Citizens Advice Bureau.
6 Force Majeure
The Seller shall be under no liability whatsoever for any delay or failure in performing its obligations hereunder resulting from any cause outwith the Seller’s reasonable control.
7 Delivery Instructions
The Buyer shall provide in the Order all information and instructions necessary to enable the Seller to deliver the Products to the Buyer. If the Buyer fails to provide such information and instructions in full the Buyer shall be liable to meet any additional costs and expenses incurred by the Seller arising directly or indirectly from that failure.
8 Right of Return
8.1 Where the Buyer is a consumer, the Buyer has the right to cancel the Contract for any reason provided the Buyer notifies the Seller within fourteen (14) days of the date of the Order Confirmation. In such an event the Seller shall refund to the Buyer in full the amount of the Price paid. In such an event, if the Products have been delivered to the Buyer, the Buyer shall return the Products using such means as are made available by the Seller for the return of the Products or (at the Seller’s option make the Products available for collection by the Seller). The rights of cancellation provided for under this clause do not apply to any Products which are made to the consumer's specifications or clearly personalised.
8.2 The Buyer has the right to cancel the Contract for any reason provided the Buyer notifies the Seller within fourteen (14) days of the date of the Order Confirmation. In such an event the Seller shall refund to the Buyer in full the amount of the Price paid. In such an event, if the Products have been delivered to the Buyer, the Buyer shall return the Products at its own cost and expense, properly packed, to the Seller. The rights of cancellation provided for under this clause apply only where the Products can be returned in their original packaging, with any documentation provided by the Seller to the Buyer in connection with the Products (including all invoice documentation), and in the same condition as they were delivered to the Buyer, and do not apply to any Products which are made to the Buyer's specifications or clearly personalised. If Products are returned pursuant to this clause they must be returned to such address as is notified by the Seller to the Buyer.
9.2 All correspondence to be made to the Seller in connection with the Contract (including all correspondence relating to returns) should be made via email to email@example.com, via telephone to 01560 321 210, or in writing to Morton Young & Borland Limited, 14 Stoneygate Road, Newmilns, Ayrshire, United Kingdom, KA16 9AL.
9.3 All correspondence to be made to the Buyer shall be properly made for the purposes of the Contract if made using the contact details of the Buyer set out in the Order.
10 The Price and Payment
10.1 The Seller shall use reasonable endeavours to ensure that any prices for products that it states upon its website or in any promotional literature shall be correct at the time they are made available. However, the Seller does not warrant or guarantee that any such prices shall be correct.
10.2 The Price for the Products shall be as stated in the Order Confirmation.
10.3 Except where the Seller specifies otherwise (for example within the Order Confirmation or upon the Seller’s website) the Price is stated exclusive of all value added tax, sales tax or any similar tax or duty the Seller is required to charge under law (“VAT”), and all delivery charges (“Delivery Charges”). The Buyer shall be liable to pay all VAT and Delivery Changes at the same time as it is liable to pay the Price.
10.4 The Price shall be payable on the date(s) set out in the Order Confirmation.
10.5 All amounts owing to the Seller by the Buyer beyond their due date shall become a debt immediately due and payable to the Seller, irrespective of whether title to Products supplied has passed to the Buyer. The Seller shall be entitled to charge interest on any amounts owing to the Seller beyond their due date for payment (whether before or after judgement) at a rate of five per cent (5%) above the Bank of England Bank Rate from time to time. Such interest shall accrue on a daily basis and shall become immediately due and payable by the Buyer. The right of the Seller to charge interest under this clause shall be in addition to its rights under the Late Payment of Commercial Debts (Interest) Act 1998.
10.6 The Buyer shall have no right to set off any amounts due from the Seller to the Buyer against any amounts due to the Seller from the Buyer, whether under the Contract or any other agreement.
11 General Warranties
The Seller warrants that the Products are sold with good title. By submitting the Order the Buyer warrants that they are entitled to order the Products on behalf of the person in whose name the Order is submitted, and that they are entitled (and permitted under law) to purchase the Products from the location in which they are resident or for delivery to the delivery location specified in the Order.
12 Limitation of Liability
12.1 The Seller will not be liable in any manner to the Buyer for any loss, cost, expense or damage which could not have been expected to arise at the date the Order Confirmation is issued, for any indirect, secondary or consequential loss, cost, expense or damage, or for any loss of goodwill, loss of business, loss of profits or revenue, loss of use, or additional operating expenses.
12.2 The Seller’s total liability in connection with the Contract is limited to an amount equal to the Price paid by the Buyer to the Seller.
12.3 Nothing in the Contract shall limit or exclude the Seller’s liability for death or personal injury arising due to its negligence, or any liability which cannot be limited or excluded under law. Where the Buyer is a consumer, the Buyer should contact a lawyer experienced in agreements of this nature or their local Citizens Advice Bureau to ascertain those liabilities that the Seller cannot limit or exclude.
12.4 The Buyer’s sole remedy in respect of any breach of the Contract by the Buyer shall be in damages.
13 Termination and Suspension
13.1 The Buyer shall be entitled to terminate the Contract by written notice to the Seller in the event that the Seller has breached the Contract in a serious manner which is either not capable of remedy or which, if capable of remedy, remains unremedied on expiry of a period of thirty (30) days following receipt by the Seller of written notice from the Buyer requiring such breach to be remedied.
13.2 If the Buyer becomes subject to any of the events listed in clause , or the Seller reasonably believes that the Buyer is about to become subject to any of them and notifies the Buyer accordingly, then, without limiting any other right or remedy available to the Seller, the Seller may terminate, or suspend the performance of its obligations under the Contract, without incurring any liability to the Buyer.
13.3 For the purposes of clause , the relevant events are:
(a) breach by the Buyer of the Contract;
(b) the Buyer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due;
(c) the Buyer admits inability to pay its debts or is deemed unable to pay its debts or is deemed as having no reasonable prospect of so doing;
(d) the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into any compromise or arrangement with its creditors;
(e) the Buyer is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, diligence, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets;
(g) an application is made to court or an order is made for the appointment of a receiver, administrator or administrative receiver, or if a notice of intention to appoint a receiver, administrator or administrative receiver is given, or if a receiver, administrator or administrative receiver is appointed, over the Buyer or its assets, or any person has become entitled to appoint a receiver, administrator or administrative receiver over the Buyer or its assets;
(h) any event occurs or proceeding is taken with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause to clause (inclusive) above;
13.4 Termination of the Contract shall not prejudice any of the parties’ rights and remedies which have accrued as at termination. Any provision the Contract which is intended either expressly or by implication to enter into upon or continue in force following the termination of the Contract shall (as appropriate) enter into or continue in force accordingly.
13.5 In the event of termination of the Contract, if the Products have been delivered to the Buyer and / or the Price (or any part thereof) remains unpaid, the Buyer shall on demand return the Products (and any resulting products referred to under clause ) to the Seller failing which the Seller shall be entitled (and the Buyer grants to the seller the right) to enter into any premises where the same are held to reclaim the same. Thereafter the Seller shall be entitled to dispose of the same as the Seller sees fit (including by way of resale to another person), and the Seller shall apply the proceeds of disposal against in the first place its costs and expenses incurred in taking such action, then against any part of the Price then unpaid, and thereafter the Seller shall account to the Buyer for any remaining amount and pay such over to the Buyer within a reasonable period.
14 Risk and Title
14.1 Risk in Products shall pass to the Buyer on delivery.
14.2 Title to Products shall pass to the Buyer on receipt by the Seller of all sums due by the Buyer to the Seller whether under this Contract or any other agreement.
14.3 If any payment in respect of the Products shall be received or receivable by the Buyer prior to title to the Products passing to the Buyer, such payment or entitlement to payment shall be held by the Buyer in trust for the Seller to the extent that the Buyer has not paid the Price to the Seller.
14.4 In the event that the Buyer uses or processes the Products prior to title to the Products passing to the Buyer, such that the Products are altered in a material way and / or are irreversibly incorporated into, combined with or mixed with other products, the resulting products shall be the property of the Seller (and the Buyer assigns all rights therein to the Seller) and title to such resulting products shall not pass to the Buyer until title to the Products is deemed to pass to the Buyer hereunder.
14.5 Until title to the Products (or any resulting products referred to under clause ) passes to the Buyer, the Buyer shall insure the same against all usual risks to their full replacement value (and in any case to an amount not less than the Price) with the Seller’s interest therein noted on any relevant policies, shall hold the same in trust for the Seller, shall so far as reasonably practicable store the same separately from their other goods and identified as the property of the Seller, and shall sell, use or part with possession of the same only in the ordinary course of trading.
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with Scots law, and in respect of the determination of which the parties submit to the non-exclusive jurisdiction of the courts of Scotland. Notwithstanding the foregoing the Seller shall be entitled to seek enforcement of any judgement of the courts of Scotland in such jurisdiction(s) as they may in their sole discretion determine.