1.1. In these Conditions the following definitions apply:
“Business Day” means any day (other than a Saturday or Sunday) on which banks are generally open in London for non-automated normal business;
“Company” means BSP Partners Ltd trading as Wongs Jewellers;
“Catalogues” means any sales and marketing material produced by the Company under the names of Wongs Jewellers;
“Conditions” means the terms and conditions set out in this document;
“Confidential Information” means any and all confidential information (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one Party to the other or otherwise obtained by one Party relating to the other’s business, finance or technology, know-how, intellectual property rights, assets, strategy, products and customers, including information relating to manufacturing or other processes, management, financial, marketing, technical and other arrangements or operations of any associate, person, firm, or organisation associated with that Party;
“Contract” means the contract for the sale of Goods between the Company and the Customer;
“Customer” means the person, firm or company with whom the Contract is made;
“Data” means personal information about an individual
“Data Controller” means the company and nominated role to control management of personal data
“Data Processor” means the organisation who processes but not owns the personal data
“Design” means the creation of a plan or convention for the production of the Goods;
“Fastener” means the type of clasp used on the Goods;
“Force Majeure” means an event or sequence of events beyond a Party's reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract; strike, lockout or boycott or other industrial action except strikes or other industrial disputes involving the Company’s or its suppliers workforce;
“Goods” means any Jewellery agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them);
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:
(i) whether registered or not
(ii) including any applications to protect or register such rights
(iii) including all renewals and extensions of such rights or applications
(iv) whether vested, contingent or future
(v) to which the Company is or may be entitled, and
(vi) in whichever part of the world existing;
“Jewellery” means the Goods that are typically made from or contain jewels and precious metal;
“Mould” means a working sample or model of the Goods;
“Pearl Strings” means the threading that holds pearls together to form a piece of jewellery;
“Purchase Order” means the Customer's order for the Goods from the Company as set out in the Customer's Purchase Order form or on the Till Receipt;
“Quotation” means a statement setting out the cost for the Goods. If more than one such statement has been issued, then the most recent version shall prevail over all previous versions;
“Returns” means any Goods that are not defective in any way, but are returned to the store by the Customer for whatever reason;
“Remodelling” means taking an original piece of Jewellery or pieces of Jewellery and making it into something new, using a Customers’ own material;
“Special Orders” means special one off pieces of Jewellery that are commissioned by the Customer;
“Till Receipt” means a document released by the Company by way of a cash register at the moment of purchase of the Goods;
“Wongs Silver” means silver Jewellery either bought from a supplier or made in-house by the Company;
1.2. Unless the context otherwise requires:
1.2.1. each gender includes the others;
1.2.2. the singular includes the plural and vice versa;
1.2.3. references to the Contract include the Conditions, the Quotation and its schedule (the Schedule, if any);
1.2.4. references to persons include individuals, unincorporated bodies, government entities, corporations and other entities;
1.2.5. clause headings do not affect their interpretation;
1.2.6. general words are not limited by example; and
1.2.7. references to any legislation will be construed as a reference to that provision as amended, reenacted or extended at the relevant time.
2. Acceptance and Variation of Conditions
2.1. Subject to any variation under condition 2.2 the Contract entered into by the Company is subject to these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2. No alteration, variation, amendment of or addition to these conditions shall be valid unless made in writing and signed by an authorised representative of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.3. Each order or acceptance of a Quotation for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to buy Goods subject to these conditions.
2.4. Any Quotation by the Company for the provision of Goods will be deemed to be:
2.4.1. an invitation to treat (and shall not be an offer) by the Company to produce Goods; and
2.4.2. will be valid for 30 days only from the date of issue.
2.5. A Contract will be formed upon the earlier to occur of:
2.5.1. written acceptance by the Company of the Customer's Purchase Order or;
2.5.2. the issuing of a Till Receipt by the Company to the Customer.
3.1. The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
3.2. All weights and sizes quoted in Catalogues, on our website, in quotations or acknowledgements are approximate and should be used as a guide only.
3.3. All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s Catalogues or website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract.
4.1. Precious metal prices are based on the prevailing metal markets at the date of invoice.
4.2. Prices quoted prior to invoice are estimates only due to the fluctuation of metal prices and variations in the exact weight of the component.
4.3. The price for the Goods will be as set out in the Quotation or in default of such provision will be calculated in accordance with the Company's standard scale of charges in force on the date of formation of the Contract.
4.4. All charges are subject to amendment without prior notice.
4.5. The Customer shall pay postage, packaging, carriage, insurance and for the Goods where applicable.
4.6. VAT will be charged at the prevailing rate in the UK.
4.7. The Company reserves the right to request that the Customer pay a deposit of a minimum of 50% of the price for producing the Goods.
5.1. The Customer may cancel the Contract in respect of all or any part of the Goods at any time upon giving written notice to the Company and upon paying to the Company the following sums as agreed liquidated cancellation charges, where relevant:
5.1.1. a sum equal to the full cost of producing the Designs and/or Moulds of the cancelled Goods if cancellation takes place after such Designs and/or Moulds have been produced.
5.1.2. a sum equal to the full cost of producing the Goods produced and delivered prior to cancellation.
5.1.3. a sum equal to the price of purchasing all remaining stock of the Goods, produced but not yet delivered to the Customer at the time of the cancellation.
5.1.4. a sum equal to 10% of any cancellation charges due for administration of the cancellation.
5.2. The Customer's notice of cancellation shall be of no effect until the Company has received the cancellation charges due under this Condition 5.
6. Set Up Charges
6.1. There is a set up charge for each new product of which the design is provided by the Customer, or produced on the Customer’s behalf by the Company.
6.2. A further fee is charged for additional or replacement Moulds.
6.3. All Moulds remain the property of the Company and will be retained by the Company if it so wishes.
7. Terms of payment
7.1. Unless the Customer has an approved credit account, all orders for Goods must be paid for at the time of making the order either by:
7.1.2. Credit Card (MasterCard or Visa) and Paypal, in which case the Company reserves the right to charge a handling fee;
7.1.3. Debit Card;
7.1.4. Bank Transfer;
7.1.5. Payment via an Interest Free Credit third party financial partner.
7.2. For Customers with an approved credit account, payment is due in full on the last business day of the month following the month in which the Goods are invoiced (“the Due Date”). The time for payment shall be of the essence. In the event of overdue payments the Company reserves the right to claim interest and an administration charge under The Late Payment of Commercial Debts (Interest) Act 1998.
7.3. No payment shall be deemed to have been received until the Company has received cleared funds.
7.4. In addition, if payment is not made in full on the Due Date, the Company reserves the right to do any of the following:
7.4.1. Withdraw the Customer’s credit account
7.4.2. Reduce the Customer’s credit limit
7.4.3. Suspend or cancel future deliveries
7.4.4. Reduce or remove the Customer’s discount
7.5. Without prejudice to any other remedies the Company may have in respect of unpaid debts, the Company shall have a general lien on all such Customer’s goods or property in the Company’s possession (whether worked on or not) and the Company shall be entitled, after the giving of 21 days’ notice in writing from the Due Date, to dispose of such goods or property as it thinks fit and to apply any proceeds received towards such debts.
7.6. The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement, or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
7.7. All payments payable under the Contract shall become due immediately on its termination despite any other provision.
8. Retention of Title
8.1. All Goods supplied shall be at the Customer’s risk from delivery but all Goods supplied shall remain the property of the Company, unless and until:
8.1.1. Payment shall have been made to the Company of all monies due to it under this Contract, and
8.1.2. Payment shall have been made to the Company under any other contract between the Customer and the Company on any account whatsoever.
8.2. Until ownership of the Goods has passed to the Customer, the Customer shall hold the Goods on a fiduciary basis as the Company’s Bailee.
8.3. The Customer shall store the Goods separately from all other goods and products or in such a way that they can be readily identifiable as being the property of the Company.
8.4. The Customer shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods and shall maintain the Goods in a satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.
8.5. Notwithstanding that the Goods (or any of them) remain the property of the Company, the Customer may sell or use the Goods in the ordinary course of the Customer’s business at full market value for the account of the Company. Any such sale of Goods shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale. Until property and the Goods passes from the Company, the entire proceeds of sale or otherwise of the Goods shall be held in trust for the company and shall not be mixed with other money or paid into any overdrawn bank account, and shall be at all material times identified as the Company’s money. The Company shall be entitled to recover the price (as aforesaid) notwithstanding that property and any of the Goods has not passed from the company.
8.6. Until full payment has been made by the Customer, the Company may at any time recover the Goods, and may enter the Customer’s premises for this purpose, having given notice of intention to repossess.
8.7. The Company may at any time revoke the Customer’s power of sale referred to above by the notice of the Customer.
8.8. The Customer’s rights to possession of the Goods shall terminate immediately if:
8.8.1. the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
8.8.2. the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other Contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer cease to trade; or
8.8.3. the Customer encumbers or in any way charges any of the Goods.
8.9. On termination of the Contract howsoever caused, the Company’s (but not the Customer’s) rights contained in this condition 6 shall remain in effect.
9. Delivery and shortages
9.1. Any delivery times quoted in the Contract are estimates only and time for delivery shall not be made of the essence by notice.
9.2. If no delivery times are specified, delivery shall be within a reasonable time.
9.3. The Company reserves the right to deliver the Goods by separate instalments. Each instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
9.4. The Customer must inspect the Goods on delivery. If any Goods are damaged, the wrong weight or not delivered, the Customer must let the Company know in writing within 5 working days of delivery.
9.5. Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
10. Inspection, Acceptance and Rejection
10.1. The Customer may request tests to be performed or to be carried out on the Goods, at the Company's premises, unless otherwise agreed, subject to agreeing that the Company will apply additional charges, payable by the Customer, for such tests.
10.2. In the event of any delay on the part of the Customer in attending such tests after seven days’ notice that the Company is ready, the tests shall proceed in the Customer's absence and shall be deemed to have been made in the presence of the Customer.
10.3. Any inspection or testing of the Goods shall not be deemed to be acceptance of the Goods or a waiver of any of the Customer’s rights and remedies, including its right to reject.
10.4. If the Customer believes that the Goods are faulty, the Customer shall, within 5 Business Days of delivery of the Goods, notify the Company in writing in what respects the Goods are faulty.
10.5. If the Customer fails to provide the notice in Condition 10.4, then the Goods shall be conclusively presumed to be accepted and the Company will have no liability to rectify any perceived failure of the Goods, other than in accordance with the terms outlined in Condition 11.
10.6. If the Company is unable to remedy any failure of the Goods, properly notified to the Company, within a further period agreed by the Company and the Customer, then the Customer shall be entitled forthwith to reject the Goods without incurring any further liability to the Company.
11. Warranty and Guarantee
11.1. The Company warrants that the Goods shall:
11.1.1. be of satisfactory quality within the meaning of the Sale of Goods Act 1979 as amended; and
11.1.2. be reasonably fit for purpose;
11.2. The Company accepts no liability with regard to fitness for purpose for bespoke Goods manufactured to the Customer’s own designs and specifications.
11.3. The Company accepts no liability for product defects arising from the casting process in the event that a Customer’s own gold has been used.
11.4. Any Customer who claims that the Goods are defective in materials or workmanship must:
11.4.1. inform the Company in writing with full details as soon as possible
11.4.2. allow the Company to investigate.
11.5. The Company will, at its exclusive discretion, replace Goods or refund the price of Goods which are found to be defective in material or workmanship (following the Company’s investigations) provided:
11.5.1. they have not been tampered with or subjected to improper treatment; and
11.5.2. the Customer has not made any further use of such Goods after giving notice of a defect.
11.6. The Company offers the following specific guarantee on Goods:
11.6.1. Repairs: 12 months;
11.6.2. Remodels: 10 years (excluding Fasteners or Pearl Strings which are subject to 12 months);
11.6.3. Special Orders: lifetime (excluding Fasteners or Pearl Strings which are subject to 12 months);
11.6.4. Wongs Silver: 2 years (excluding Fasteners or Pearl Strings which are subject to 12 months);
11.6.5. Wongs all other: lifetime (excluding Fasteners or Pearl Strings which are subject to 12 months)
12. Limitation of Liability
12.1. Subject to conditions 9 and 11, the following provisions set out the entire financial liability of the Company (including any acts or omissions of its employees, agents or sub-contractors) to the Customer in respect of:
12.1.1. any breach of these conditions;
12.1.2. any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
12.1.3. an representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
12.2. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.3. Nothing in these conditions excludes or limits the liability of the Company:
12.3.1. for death or personal injury caused by the Company’s negligence; or
12.3.2. under section 2(3) of the Consumer Protection Act 1987; or
12.3.3. for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
12.3.4. for fraud or fraudulent misrepresentation.
12.4. Subject to conditions 12.2 and 12.3:
12.4.1. the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
12.4.2. the Company shall not be liable to the Customer for loss of profit, loss of business or depletion of goodwill, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
13.1. No order for Goods manufactured especially to order may be cancelled.
14.1. It is unlawful to copy any of the Company’s styles or patterns without written permission from the Company. Copywriting or reproduction of any Goods shown in the Company Catalogues is unlawful without proper permission.
15.1. Each Party shall keep confidential all Confidential Information of the other Party and will only use the other’s Confidential Information as required to perform the Contract. The provisions of this clause will not apply to:
15.1.1. any information which was in the public domain at the date of this Contract;
15.1.2. any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
15.1.3. any information which is independently developed by the other Party without using information supplied by the first Party; or
15.1.4. any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
15.2. This Condition 15 will remain in force for a period of two Years after termination of the Contract.
16. Data Protection
16.1. The Customer owns the rights to its Data.
16.2. The Company acts as Data Controller for Data supplied by the Customer and processed and stored by the Company and the Company acts as Data Processor to process Data on behalf of third party providers who supply consented Customer Data for a given purpose.
16.3. All processing by the Company of the Data provided by the Customer shall be in accordance with the General Data Protection Regulations EU) 2016/679.
16.5. The Customer is obligated to ensure that their Data they provide for use in the Goods or Services is accurate at the time it is provided to the Company.
17. Force Majeure
17.1. A Party will not be liable if delayed in or prevented from performing its obligations under this Contract due to Force Majeure, provided that it promptly notifies the other of the Force Majeure event and its expected duration, and uses reasonable endeavours to minimise the effects of that event.
17.2. If, due to Force Majeure, a Party is unable to perform a material obligation, or is delayed in or prevented from performing its obligations for a continuous period of more than 90 days, the other Party may, within a further 10 days terminate this Contract on notice, otherwise this Contract shall continue in full force and effect. For the avoidance of doubt, ‘Days’ under this clause shall be any day including Saturday and Sunday.
18.1. Either Party may, without prejudice to its other rights and remedies, by notice in writing to the other Party immediately terminate the Contract if the other:
18.1.1. is in material or persistent breach of any of its obligations under the Contract and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach, or
18.1.2. is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
18.2. The Customer may without prejudice to its other rights and remedies by notice in writing to the Company immediately terminate the Contract if the Company ceases or threatens to cease carrying on business in the United Kingdom, or if the Company or any of its Associates undergo a change of Control that is in the Customer’s reasonable opinion likely to have a material adverse effect on the Customer.
18.3. In the event of termination of this Contract for any reason each Party shall within 30 days return or destroy (at the other Party’s option) all the other Party's Confidential Information (as defined in clause 15 above) in its possession or under its control and all copies of such information.
Unless stated otherwise, time is not of the essence of any date or period specified in these Conditions or in the Contract.
19.2. No set-off. All payments by the Purchaser will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a Party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
19.3. Relationship. The Parties are independent businesses and not principal and agent, partners, or employer and employee.
19.4. Severability. If any part of these Conditions is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Conditions and the remaining provisions of the Conditions will otherwise remain in full force.
19.5. Notices. Notices under the Contract will be in writing and sent to the persons and addresses set out in the Quotation (if for the Company) and the Purchase Order (if for the Customer). They may be given, and will be deemed received:
19.5.1. by first-class post: two Business Days after posting;
19.5.2. by airmail: seven Business Day after posting;
19.5.3. by hand: on delivery;
19.5.4. by facsimile: on receipt of a successful transmission report from the correct number, and
19.5.5. by e-mail: on receipt of a delivery or read receipt mail from the correct address.
19.6. Waiver. No delay, act or omission by either Party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
19.7. Rights of Third Parties. This Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
19.8. Priority. The terms of the Conditions prevail over those of the Purchase Order, Till Receipt or Schedule (if any).
19.9. Entire Agreement. The Contract constitutes the entire agreement between the Parties in relation to its subject matter. No other terms apply.
19.10. Succession. The Contract will bind and benefit each Party’s successors and personal representatives.
19.11. Governing Law & Jurisdiction. The Contract will be governed by the law and exclusive jurisdiction of England and Wales.