注意事項Cookieがブロックされているか、もしくはお使いのブラウザではクッキーがサポートされていません。
注意事項
You are currently using Internet Explorer 8 which is not supported by our new website. We recommend you update to the latest version of Internet Explorer or alternatively use a different web browser.

Berghaus Customer Service

検索

T&Cs

  •  

    Website Terms of Use

    Welcome to berghaus.com (the “Website”). There are a few rules that our visitors must follow when using our Website, so we ask all our visitors to read our Terms and Conditions carefully.

    This Website is brought to you by Berghaus Limited (“Berghaus”, or “we” or “us”) and all rights, including copyright, in the content of the Website is owned or controlled by Berghaus.

    Berghaus and its affiliates provide access to the Website and sells its products to you subject to the Terms and Conditions set out on this page.

    If you have any comments or queries relating to this Website, please use our Contact Us pages.

    1. What do I agree to by entering the Website?
    You are invited to use the Website on the basis of the Terms and Conditions of use set out below.

    By entering the Website and using its Features (as defined below) you are deemed to have read and accepted these Terms and Conditions. If you do not accept these Terms and Conditions or any part of them, you should not enter or use the Website.
    Berghaus may modify or update these Terms and Conditions from time to time. If you continue to use this Website after any changes, this means you agree to be bound by the modified Terms and Conditions.
    If we do make a change to the Terms and Conditions we will post it at the top of this page, together with the date of the change, so you can easily find it.

    2. The Features
    The Website may offer the following features to you: purchase of products, competitions, prize draws, video clips, downloading of screensavers, desktops and sound files (the “Features”).

    3. Conditions of Using Features on the Website
    You agree to use the Features in this Website in good faith and in the spirit in which they are made available to you. In particular you agree:
    a) not to send or resend any content which is obscene or vulgar, offensive, abusive, harmful, threatening, libelous, defamatory, invasive of another’s privacy, racially or ethically or religiously insulting or otherwise unlawful;
    b) not to use Features on the Website for any purpose that is illegal or which is or may be damaging to the rights or interests of any User or other party;
    c) if you or any other party has any issues or concerns with the content of any communications generated via the Website, you should contact the website moderator as soon as possible; and
    d) that all Features will be used entirely at your own risk and Berghaus accepts no responsibility for any losses or consequences suffered by you as a result of your use of the Website.

    If Berghaus is informed or has any reason to believe that any of the Features on our Website are being used by a user other than in accordance with these Terms and Conditions, Berghaus reserves the right to suspend or permanently prevent access by the user to the Features and shall have no liability to the user whatsoever in such event.

    4. Sending Us Information
    We are happy to receive from you any ideas, suggestions, graphics, mixes, pictures or anything else, but do please remember that, by sending us your submission (the “Material”) you will be deemed to have granted Berghaus (and any of its subsidiaries or associated companies) a perpetual, royalty-free, non-exclusive right and licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, play, and exercise all copyright and publicity rights with respect to any such work worldwide and/or to incorporate it in other works in any media now known or later developed for the full term of any rights that may exist in the Material. By submitting your Material to this site, you also warrant that:
    a) you have the right to make it available to Berghaus;
    b) the Material is not defamatory; and
    c) the Material does not infringe any law.

    You agree to indemnify Berghaus against all legal fees, damages and other expenses that may be incurred by Berghaus as a result of your breach of the above warranty. You also agree to waive any moral rights in the Material for the purposes of its submission to and publication on the Website and the other purposes specified above. You may not violate, plagiarise, or infringe on the rights of third parties including copyright, trade mark, trade secret, privacy, personal, publicity, or proprietary rights.

    This means that all stories, mixes, comments, suggestions, ideas, graphics or other information sent to us can be used by us as we see fit. This includes using it for promotional, marketing or any other commercial purpose, whether in advertising, or in developing, manufacturing or marketing products. Under no circumstances are you entitled to any payment if we do use your Material for any purpose. So remember don’t send us your Material if you don’t want us to use it or the world to know it.

    5. Privacy Policy
    Please ensure that you read our Privacy Policy to learn about what personal information we collect at this site, how we handle it and for what purposes we use it.

    6. Website Content – Accuracy and Permitted Use.
    Berghaus makes every effort to ensure that the content of the Website is accurate and up-to-date, but Berghaus does not offer any warranties (whether express, implied or otherwise) as to the reliability, accuracy or completeness of the information appearing on the Website.

    Berghaus may remove material or Features, from the Website at its own discretion and without any notice.
    You are permitted to use the material that is displayed on the Website from time to time only as expressly authorised by Berghaus.
    This Website is intended to provide amongst other things, information relating to Berghaus products and is designed for personal, non-commercial use only.
    You may not use this Website, or any of the material appearing on the Website from time to time to further any commercial purpose, including (but not limited to) selling on of any products purchased from the Website to eBay or any other auction site advertising or to promote or encourage traffic to any other website.

    7. Copyright, legal statement and database rights
    All content and compilation of such content together with all software included on the Website, such as text, graphics, logos, button icons, images and software, is the property of Berghaus or its subsidiaries, its affiliates or its content suppliers and is protected by UK, European and International laws.
    You may not extract and/or re-utilise parts of the contents of the Website without Berghaus’s express written consent. In particular, you may not utilise any data mining, robots, or similar data gathering and extraction tools to extract (either once or many times) for re-utilisation of any substantial parts of this Website. You also may not create and/or publish your own database which features substantial (e.g. our prices and product listings) parts of this Website.
    Please also refer to our Legal Statement below.

    8. Legal Statement
    Trade marks
    BERGHAUS, [COLOURED BLOCKS device], AIRFOIL, AQUAFOIL, ARGENTIUM, BIOFLEX, EVABREATHE, FREEFLOW, MTNHAUS, MULE, OPTI-STUD and PHOBIC are registered trade marks of Berghaus Limited.

    AQ, AQ2, AF, EXTREM, EXOWRAP, THINKING ON YOUR FEET, EHS, BUILT WITH NATURE, 365LIFE, LIVE FOR ADVENTURE, LIMPET and YETI are trade marks of Berghaus Limited.

    GORE-TEX, GORE, GTX,
    GORE-TEX PACLITE SHELL, XCR are registered trade marks of W.L. Gore and Associates. GUARANTEED TO KEEP YOU DRY is a trade mark of W.L. Gore and Associates. LORICA is a registered trademark of Coria Sud. S.r.l. KEVLAR is a registered trade mark of E.I. du Pont de Nemours and Company or its affiliated. POLARTEC, POWDERDRY and THERMAL PRO is a registered trade mark of Polartec, LLC. PERTEX, PERTEX ENDURANCE and PERTEX QUANTUM are registered trade marks of Mitsui & Co. Ltd. CORDURA, LYCRA, and THERMOLITE are registered trade marks of Invista for durable fabrics. PRIMALOFT is a registered trade mark of Albany International Corp. DRI-RELEASE and FRESH GUARD are registered trade marks of Optimer Performance Fibers Inc. RECCO is a registered trade mark of Recco AB. SCHOELLER, 3XDRY, COLDBLACK, SCHOELLER ORIGINAL SOFT SHELL and NANOSPHERE are registered trade marks of Schoeller Technologies Switzerland. SKYWALK is a registered trade mark of Skywalk SPA. THERMACOOL is a trade mark of Advansa. VIBRAM is a registered trade mark of Vibram S.p.A. YKK, YKK AQUAGUARD and VISCON are registered trade marks of Yoshida Kogyo K.K.

    www.Berghaus.com is a registered domain name of Berghaus Limited.
    VAT Registration Number: GB 231 0451 21.
    Registered Office: 8 Manchester Square, London, W1U 3PH, England.
    Berghaus Limited is a registered data controller, registration no. Z6423514

    9. Intellectual Property Rights
    You acknowledge and agree that all copyright, rights in data, databases, trade marks, names, images, logos and other intellectual property rights in the Website content, software and all HTML and other code involved in this Website (“Intellectual Property Rights”) shall remain at all times vested in Berghaus and that these are protected by copyright and other laws and international treaty provisions.
    Users may not, other than in accordance with these Terms and Conditions, modify, copy, distribute, transmit, display, redistribute, transfer, or sell in whole or in part, the Website or any of the Intellectual Property Rights relating thereto, without first obtaining written permission from Berghaus to do so.
    All trade marks appearing on the Website are Berghaus Limited trade marks and nothing contained in this Website shall be construed as conferring by implication or otherwise any licence or right to use any of the Intellectual Property Rights displayed or subsisting on or in this Website other than in accordance with these Terms and Conditions.

    10. Limitation of Liability
    The Internet is by its nature an unreliable medium. Consequently, you accept that this Website is offered on an “as is” and “as available” basis.
    While Berghaus takes all reasonable steps to ensure that the Website is properly functioning at all times, Berghaus does not warrant that this Website will be uninterrupted, timely, secure or error-free, that defects will be corrected, or that this Website or the server that makes it available are free of software viruses or bugs or other defects.
    Berghaus has no control over, and disclaims all responsibility for, any content you encounter, or events which may occur as a result of your use of the Features and Berghaus shall not be liable for any damages or other losses of any type whatsoever incurred by you as a result of your use of the Website or the Features.
    Except in relation to liability for death or personal injury, Berghaus shall not be liable to you for any loss or damage you suffer as a result of visiting this Website or making use of the Features or information available on the Website. You must take your own precautions (including, but not limited to, installing adequate protective measures to guard against software viruses and ensuring that you retain up-to-date copies of all data) to protect yourself against loss or damage.

    11. Governing Law
    Your use of the Website, any purchase by you on the Website of any products and these Terms and Conditions will be governed by and construed in accordance with the laws of England and Wales and will be deemed to have occurred in England.
    By accepting these Terms and Conditions and using the Website, you accept that any dispute under these Terms and Conditions or arising out of use of this Website shall be subject to the exclusive jurisdiction of the English courts and by using this Website you hereby submit to the jurisdiction of such courts for such purposes and waive any and all objections to jurisdiction or venue in such courts.
    By registering you agree to receive emails from Berghaus.com, and you can unsubscribe by using the links in the emails that we send.

  •  

    Berghaus.com Accessibility Statement

    New media technologies are always changing, but we are committed to making our websites accessible to people with visual, hearing or motor impairments.
    We endeavour to be in line with the Equality Act 2010 requirement, which is WCAG 1 AA compliance.

    Guidelines
    The accessibility guidelines we follow include:

    • Allowing users to control text sizes.
    • Using an easy to read font type.
    • Ensuring suitable foreground and background colour contrast.
    • Identify the primary natural language of a document, and using clear and simple grammar.
    • Providing meaningful text equivalents for pictures.
    • Providing simple, consistent site navigation.
    • Ensuring the target of each link is clearly defined.
    • Providing a sitemap.
    • Providing navigational shortcuts for users of text only browsers and page readers. Included are Skip Links (RNIB tested) and WAI ARIA Landmark Roles (supported by JAWS 10, NVDA 2010.1 and Voice Over in iOS 4)
    • Using appropriate structural mark-up to maximise browser support.
    • Using a logical tab order through links, form controls, and objects.
    • Ensuring all content and functionality is available to users without content style sheet (CSS), image and script support.
    • Including default, place-holding characters in edit boxes and text areas.


    Keyboard Navigation

    Pressing the ‘Tab’ key on your keyboard will sequentially move focus through the elements on the web page you are viewing.
    After a page loads pressing the ‘Tab’ key twice will bring focus to the keyboard navigation short cuts or “Skip Links”. Press the ‘Enter’ key to move the focus to one of the optional locations on the page.
    Pressing 'Shift' and 'Tab' will move focus through the Tab Index in the reverse order.
    Press 'Enter' to use the link or button you are focused on.
    If you are focused in a text field , you will see the cursor inside it and you will immediately be able to start typing.
    If you are focused on a select box (drop-down or list) use the up and down arrow keys to select an option then press the ‘Tab’ again to move out of the select box.
    If you are focused on a radio button press ‘Spacebar’ to select it. You can also use the keyboard left and right arrows to move between the options in a set of radio buttons.
    If you are focused on a checkbox press ‘Spacebar’ to select it.

    Text Size
    The size of the text on the site can be adjusted through your browser's settings.
    Internet Explorer Text size: from the 'View' menu in the browser select the 'Text Size' submenu and choose the size that you would like to change to.
    Firefox Text size: from the 'View' menu in the browser select the 'Text Size' submenu and choose whether to increase or decrease the text size.
    Alternatively you can Zoom in or out with the following keys.
    'Ctrl' and '+' to Zoom In
    'Ctrl' and '-' to Zoom out
    'Ctrl' and '0' will reset the Zoom level to its default

    Code - Markup & Style
    We use the HTML5 Doctype and test our markup against the W3C validator, to ensure that the markup is well formed. 100% valid code is not a goal, but validation certainly helps to write more maintainable sites as well as debugging code. We do not guarantee code is 100% valid, but instead assure the cross-browser experience is fairly consistent.
    We use CSS2 and CSS3 where appropriate, linked from external styles sheets to maintain the separation of structure and from style.

    Browser Compatibility
    The site is tested on both PC and Mac and is fully functional in the following browsers:

    • Internet Explorer 9 and above
    • Firefox (latest version)
    • Safari 6
    • Chrome (latest version)

    The site will be functional in older browsers however it should be noted that presentational elements may not be fully rendered, and rendering may downgrade gracefully.

     

  •  

    Customer Complaints Procedure

    Here at Berghaus, we're proud of the products we manufacture and the services which we provide. If you have a complaint, we want to put things right as quickly as possible. Please speak to a member of our store team or customer service team who will be happy to assist. If you would like to make a formal complaint, please email customerservice@berghaus.com marking your email 'Complaint.' We acknowledge all complaints and aim to provide a response within fourteen (14) working days.

    Any contact directed to individuals or departments within Berghaus will be referred to our Customer Services team and will be resolved via our complaint handling process.

  •  

    Information about cookies

    Our website uses cookies to improve its content and ease of use. Cookies are small files of letters and numbers that we put on your computer if you agree.


    We use session cookies that allow you to be remembered within the website, so any page changes or item or data selection you do is recalled from page to page. This means that you don’t get asked the same information that you’ve already given to the site. These cookies are temporary and are erased when you close your browser at the end of your surfing session.


    We use tracking cookies. These help us to remember your information and settings when you visit our website in the future. This results in a faster and more convenient access and may enhance your experience of services or functions we offer. These cookies remain on your hard drive until you delete them or they expire (they have varying expiry dates, going up to two years).


    We also use web analytics cookies to help us understand what content is most useful to our visitors. They allow us to recognise and count the number of visitors and to see how visitors move around the site when they’re using it. This helps us to improve the way our website works, for example by making sure that users are finding what they need easily.


    Our cookies do not keep personally identifiable information. None of the data we get from cookies will contain information that will enable anyone to contact you via telephone, email, or any other means.


    You can block cookies by activating the setting on your browser which allows you to refuse the setting of all or some cookies. However, if you use your browser settings to block all cookies, you may not be able to access all, or parts of our site, and might not be able to shop on the website. Unless you have adjusted your browser setting so that it will refuse cookies, our system will issue cookies as soon you visit our site.


    Please visit www.aboutcookies.org to find out more about cookies.

  •  

    PRIVACY POLICY

    Berghaus ("We") are committed to protecting and respecting your privacy.

    This policy (together with our terms of use and any other documents referred to on it) sets out the basis on which any personal data we collect from you, or that you provide to us, will be processed by us. Please read the following carefully to understand our views and practices regarding your personal data and how we will treat it.

    For the purpose of the Data Protection Act 1998 (the Act), the data controller is Berghaus of 12 Colima Avenue, Sunderland Enterprise Park, Sunderland, SR5 3XB.

    INFORMATION WE MAY COLLECT FROM YOU
    We may collect and process the following data about you:

    • Information that you provide by filling in forms on the following sites: www.berghaus.com, and int.berghaus.com (our site). This includes information provided at the time of registering to use our site, subscribing to our service, posting material, creating or updating your personal profile, take part in a prize draw or competition, newsletters or exclusive offers via email or requesting further services. We may also ask you for information [when you enter a competition or promotion sponsored by Berghaus, and] when you report a problem with our site.
    • If you contact us, we may keep a record of that correspondence.
    • Berghaus OR We may also ask you to complete surveys that we use for research purposes, although you do not have to respond to them.
    • Details of transactions you carry out through our site and of the fulfillment of your orders.
    • Details of your visits to our site including, but not limited to, traffic data, location data, weblogs and other communication data, whether this is required for our own billing purposes or otherwise and the resources that you access.


    WHAT DO WE DO WITH THE INFORMATION?
    Berghaus will require you to provide particular personal information such as credit / debit card details and your billing address for the purposes of completing your order. We will only use this information for the purposes of managing your order or your usage of the Website.
    Providing additional personal information is up to you. We collect personal information to enter you into contests and notify you of results, to e-mail you with updates, news and special offers, to respond to your questions or comments, to register you for certain features on the Website.
    Berghaus (and those people or companies employed by Berghaus who help make this Website, its content and its services) will process and use your personal information in order to respond to your feedback – like responding to problems, improving our services and gearing what we do to suit our requirements further.
    Beyond this we will not share your information with any other company without your consent unless we are required to do so by law, if you have won a prize or if you have made a request for specific information. If you give us consent then we may share your information with our partners, subsidiaries or subsidiary companies in order that they can contact you with information, promotions, products, services, and offers that may be interesting to you.
    We will never sell your information to any other company.

    IP ADDRESSES
    We may collect information about your computer, including where available your IP address, operating system and browser type, for system administration and to report aggregate information to our advertisers. This is statistical data about our users' browsing actions and patterns, and does not identify any individual.

    INFORMATION ABOUT COOKIES
    Our website uses cookies to improve its content and ease of use. Cookies are small files of letters and numbers that we put on your computer if you agree.

    We use session cookies that allow you to be remembered within the website, so any page changes or item or data selection you do is recalled from page to page. This means that you don’t get asked the same information that you’ve already given to the site. These cookies are temporary and are erased when you close your browser at the end of your surfing session.

    We use tracking cookies. These help us to remember your information and settings when you visit our website in the future. This results in a faster and more convenient access and may enhance your experience of services or functions we offer. These cookies remain on your hard drive until you delete them or they expire (they have varying expiry dates, going up to two years).

    We also use web analytics cookies to help us understand what content is most useful to our visitors. They allow us to recognise and count the number of visitors and to see how visitors move around the site when they’re using it. This helps us to improve the way our website works, for example by making sure that users are finding what they need easily.

    Our cookies do not keep personally identifiable information. None of the data we get from cookies will contain information that will enable anyone to contact you via telephone, email, or any other means.

    You can block cookies by activating the setting on your browser which allows you to refuse the setting of all or some cookies. However, if you use your browser settings to block all cookies, you may not be able to access all, or parts of our site, and might not be able to shop on the website. Unless you have adjusted your browser setting so that it will refuse cookies, our system will issue cookies as soon you visit our site.

    Please visit www.aboutcookies.org to find out more about cookies.

    WHERE WE STORE YOUR PERSONAL DATA
    The data that we collect from you may be transferred to, and stored at, a destination outside the European Economic Area ("EEA"). It may also be processed by staff operating outside the EEA who work for us or for one of our suppliers. Such staff maybe engaged in, among other things, the fulfillment of your order, the processing of your payment details and the provision of support services. By submitting your personal data, you agree to this transfer, storing or processing. Berghaus will take all steps reasonably necessary to ensure that your data is treated securely and in accordance with this privacy policy.
    All information you provide to us is stored on our secure servers. Any payment transactions will be encrypted using SSL technology. Where we have given you (or where you have chosen) a password which enables you to access certain parts of our site, you are responsible for keeping this password confidential. We ask you not to share a password with anyone.
    Unfortunately, the transmission of information via the internet is not completely secure. Although we will do our best to protect your personal data, we cannot guarantee the security of your data transmitted to our site; any transmission is at your own risk. Once we have received your information, we will use strict procedures and security features to try to prevent unauthorised access.

    USES MADE OF THE INFORMATION
    We use information held about you in the following ways:

    • To ensure that content from our site is presented in the most effective manner for you and for your computer.
    • To provide you with information, products or services that you request from us or which we feel may interest you, where you have consented to be contacted for such purposes.
    • To carry out our obligations arising from any contracts entered into between you and us.
    • To allow you to participate in interactive features of our service, when you choose to do so.
    • To notify you about changes to our service.


    We may also use your data, or permit selected third parties to use your data, to provide you with information about goods and services which may be of interest to you and we or they may contact you about these by post or telephone.
    If you are an existing customer, we will only contact you by electronic means (email or SMS) with information about goods and services similar to those which were the subject of a previous sale to you.
    If you are a new customer, and where we permit selected third parties to use your data, we (or they) will contact you by electronic means only if you have consented to this.
    If you do not want us to use your data in this way, or to pass your details on to third parties for marketing purposes, please tick the relevant box situated on the form on which we collect your data (the order form OR registration form).
    We do not disclose information about identifiable individuals to our advertisers, but we may provide them with aggregate information about our users (for example, we may inform them that 500 men aged under 30 have clicked on their advertisement on any given day). We may also use such aggregate information to help advertisers reach the kind of audience they want to target (for example, women in SW1). We may make use of the personal data we have collected from you to enable us to comply with our advertisers' wishes by displaying their advertisement to that target audience.

    DISCLOSURE OF YOUR INFORMATION
    We may disclose your personal information to any member of our group, which means our subsidiaries, our ultimate holding company and its subsidiaries, as defined in section 1159 of the UK Companies Act 2006.
    We may disclose your personal information to third parties:

    • In the event that we sell or buy any business or assets, in which case we may disclose your personal data to the prospective seller or buyer of such business or assets.
    • If Berghaus or substantially all of its assets are acquired by a third party, in which case personal data held by it about its customers will be one of the transferred assets.
    • If we are under a duty to disclose or share your personal data in order to comply with any legal obligation, or in order to enforce or apply our terms of use or terms and conditions of supply and other agreements; or to protect the rights, property, or safety of Berghaus, our customers, or others. This includes exchanging information with other companies and organisations for the purposes of fraud protection and credit risk reduction.


    YOUR RIGHTS
    You have the right to ask us not to process your personal data for marketing purposes. We will usually inform you (before collecting your data) if we intend to use your data for such purposes or if we intend to disclose your information to any third party for such purposes. You can exercise your right to prevent such processing by checking certain boxes on the forms we use to collect your data. You can also exercise the right at any time by contacting us at Senior Service Manager, Berghaus, 12 Colima Avenue, Sunderland Enterprise park, Sunderland, SR5 3XB


    Our site may, from time to time, contain links to and from the websites of our partner networks, advertisers and affiliates. If you follow a link to any of these websites, please note that these websites have their own privacy policies and that we do not accept any responsibility or liability for these policies. Please check these policies before you submit any personal data to these websites.

    HOW TO UNSUBSCRIBE
    Our policy is to allow users to unsubscribe from our regular emails at any time. You can do this by clicking on the Unsubscribe link at the bottom of the email you’ve received. Should you experience any problems click here to contact our Customer Service Team who will assist you.

    If you have asked us to stop sending emails and this hasn’t happened it may be because the email address to which we are sending them is not the same as the address you sent your request from. Please check the address we are using and include this information in your request. The easiest way to do this is to return to us the whole of the unwanted email. The address we are sending to is included within the message.

    ACCESS TO INFORMATION
    The Act gives you the right to access information held about you. Your right of access can be exercised in accordance with the Act. Any access request may be subject to a fee of £10 to meet our costs in providing you with details of the information we hold about you.

    CHANGES TO OUR PRIVACY POLICY
    Any changes we may make to our privacy policy in the future will be posted on this page and, where appropriate, notified to you by e-mail.

    CONTACT
    Questions, comments and requests regarding this privacy policy are welcomed and should be addressed to Head of Digital Commerce Service, Berghaus Ltd, 12 Colima Avenue, Sunderland Enterprise Park, Sunderland, SR5 3XB.

  •  

    We take the privacy and security of your payment and personal details very seriously. Our site uses high-level SSL encryption technology from Digicert, one of the most advanced security solutions currently available for online payments.


    You can tell whether a page is secure as 'https' will replace the 'http' at the front of the www.berghaus.com in your browser address window. A small locked padlock will also appear in the bottom bar of your browser window.

  •  

    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