The customer’s attention is drawn in particular to the provisions of clause 10.
Borderline: Borderline Carpet Planning Services Limited trading as Sylka Carpets (registered in England and Wales with company number 02616658).
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.3.
Contract: the contract between Borderline and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Borderline.
Force Majeure Event: an event or circumstance beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of Borderline’s quotation, or overleaf, as the case may be.
Service Media: all media including but not limited to the supply or removal of heat, electricity, gas, water, sewage, air conditioning energy, telecommunications, data and all other services and utilities and all structures, machinery and equipment ancillary to those media.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Borderline.
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes emails.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Borderline issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter or advertising produced by Borderline and any descriptions or illustrations contained in Borderline’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 A quotation for the Goods given by Borderline shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
2.6 As the Goods are bespoke products made to Specification, the Customer acknowledges that they do not have a right to cancel an Order once a deposit has been paid by the Customer to Borderline for an Order (in accordance with paragraph 8.2 below).
3.1 The Goods are described in Borderline’s catalogue as modified by any applicable Specification.
3.2 The Customer acknowledges that as the Goods are bespoke products, all sizes and widths of the Goods have a tolerance level of approximately more or less than 1.25%, and agrees not to reject the Goods on this basis.
3.3 The Customer shall indemnify Borderline against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Borderline in connection with any claim made against Borderline for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Borderline’s use of the Specification. This clause 3.3 shall survive termination of the Contract.
3.4 Borderline reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. Delivery & Collection
4.1 Borderline shall ensure that each delivery or collection of the Goods is accompanied by a delivery or collection note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered or collected by instalments, the outstanding balance of Goods remaining to be delivered or collected.
4.2 Borderline shall:
(a) deliver the Goods to the location set out in the Order or such other location as the parties may agree; or
(b) make the Goods available for collection by the Customer from Borderline’s premises or such other location as the parties may agree, (Delivery Location) at any time after Borderline notifies the Customer that the Goods are ready.
4.3 Delivery is completed on the completion of loading of the Goods at the Delivery Location (or if a carrier is being used to deliver the Goods, on delivery of the Goods to the carrier).
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Borderline shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Borderline with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Borderline fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Borderline shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Borderline with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to take or accept delivery of the Goods within twenty-one (21) days of Borderline notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Borderline’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Borderline notified the Customer that the Goods were ready; and
(b) Borderline shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which Borderline notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, Borderline may resell or otherwise dispose of part or all of the Goods.
4.8 If Borderline delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
4.9 Borderline may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. Installation services
5.1 An Order may include a request by the Customer for Borderline to install the Goods at the Customer’s premises (or such other location as the parties may agree) (Installation Services).
5.2 Before an Order is accepted by Borderline, Borderline may supply and agree plans (or such other mark-up material) in advance with the Customer for the Installation Services. However if no such plans are agreed between the Customer and Borderline before an Order is accepted by Borderline, Borderline shall in its sole discretion decide the method(s) and / or plan(s) to be used for the Installation Services.
5.3 If an Order includes Installation Services, Borderline will contact the Customer to arrange a date and time to deliver the Installation Services (Appointment). If the Customer wishes to change or cancel an Appointment, they must notify Borderline at least two (2) Business Days before the Appointment in writing. If the Customer fails to provide written notice to Borderline at least two (2) Business Days before the Appointment, Borderline shall be entitled to charge the Customer for all the agreed installation and labour costs in connection with the Appointment.
5.4 In providing the Installation Services, and unless otherwise agreed in advance in writing with Borderline, the Customer agrees that:
(a) Borderline shall plan all making-up and installation of the Goods in a manner and method that in Borderline’s sole discretion considers appropriate and correct to carry out the installation of the Goods;
(b) all seam directions, runs and pile lay are to be left at Borderline’s sole discretion;
(c) all cutting carried out by Borderline (or its representatives) will be deemed acceptable and satisfactory;
(d) the Installation Services will only be carried out by Borderline (or its representatives) between 08:30 hours and 17:00 hours;
(e) the Customer’s premises (or such other location as the parties may agree) shall be vacated on the date(s) for installation of the Goods and will be in good condition to accept floor coverings prior to any installation of the Goods;
(f) additional charges will be payable to Borderline for any furniture that is required to be moved as part of the Installation Services;
(g) it will notify Borderline (or its representatives) of the location of all pipes, cables, alarm wires or any other similar types of Service Media before the Installation Services are carried out, and if the Customer fails to notify Borderline of the location of all pipes, cables, alarm wires or any other similar types of Service Media, it shall not hold Borderline liable whatsoever for any damage or consequential loss caused;
(h) Borderline are permitted to remove (and leave on site without reapplication) any doors required for the Installation Services (as approximately 20mm clearance is required to install the Goods correctly);
(i) Borderline are permitted to leave any existing materials on the Customer’s premises (or such other location as the parties may agree) when carrying out the installation of the Goods;
(j) additional charges will be payable by the Customer to Borderline for Borderline’s removal of any materials from the Customer’s premises (or such other location as the parties may agree);
(k) additional charges will be payable by the Customer to Borderline for the failure to provide two (2) Business Days’ written notice of a change or cancellation of an Appointment in accordance with paragraph 5.3 above; and
(l) additional charges will be payable by the Customer to Borderline for any delay caused by the Customer to prepare the Customer’s premises (or such other location as the parties may agree) for the installation of the Goods which has led to Borderline incurring costs and expenses (including but not limited to travel and subsistence for Borderline’s employees or representatives).
6.1 Borderline warrants that on delivery, and for a period of 12 months from the date of delivery (12 months’ warranty period), the Goods shall:
(a) conform with their description and any applicable Specification; and
(b) be free from material defects in design, material and workmanship. (12 Months’ Warranty)
6.2 Subject to clause 6.5, if:
(a) the Customer gives notice in writing to Borderline during the 12 months’ warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the 12 Months’ Warranty; and
(b) Borderline is given a reasonable opportunity of examining such Goods, Borderline shall, at its option, repair or replace the defective Goods, at no further charge to the Customer (excluding any installation or labour costs).
6.3 Borderline also warrants that on delivery, and for a period of 36 months from the date of delivery (36 months’ warranty period), the Goods shall retain at least ninety per cent (90%) of its surface pile (36 Months’ Warranty).
6.4 Subject to clause 6.5, if:
(a) the Customer gives notice in writing to Borderline during the 36 months’ warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the 36 Months’ Warranty; and
(b) Borderline is given a reasonable opportunity of examining such Goods; and
(c) following an examination of the Goods, Borderline in its sole discretion determines that the Goods have lost more than ten per cent. (10%) of its surface pile, Borderline shall, at its option, repair or replace the defective Goods, at no further charge to the Customer (excluding any installation or labour costs).
6.5 Borderline shall not be liable for the Goods’ failure to comply with either the 12 Months’ Warranty or the 36 Months’ Warranty in any of the following events:
(a) the defect arises because the Customer failed to follow Borderline’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(b) the defect arises as a result of Borderline following any drawing, design or Specification supplied by the Customer;
(c) the Customer alters or repairs such Goods without the written consent of Borderline;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.6 Except as provided in this clause 6, Borderline shall have no liability to the Customer in respect of the Goods’ failure to comply with either the 12 Months’ Warranty or the 36 Months’ Warranty.
6.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.8 These Conditions shall apply to any repaired or replacement Goods supplied by Borderline.
7. Title and risk
7.1 The risk in the Goods shall pass to the Customer on completion of delivery or where the Goods are to be collected by the Customer, on notification by Borderline to the Customer that the Goods are ready for collection at Borderline’s premises (or such other location as the parties may agree).
7.2 Title to the Goods shall not pass to the Customer until Borderline receives payment in full (in cash or cleared funds) for the Goods and any other goods that Borderline has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Borderline’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Borderline immediately if it becomes subject to any of the events listed in clause 9.1; and
(e) give Borderline such information relating to the Goods as Borderline may require from time to time.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1, then, without limiting any other right or remedy Borderline may have, Borderline may at any time:
(a) require the Customer to deliver up all Goods in its possession that have not been irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. Price and payment
8.1 The price of the Goods shall be the price set out in the Order.
8.2 Borderline reserves the right to request a deposit is paid by the Customer for an Order. In such circumstances, Borderline are under no obligation to process a Customer’s Order until such deposit has been received in full and in cleared funds by Borderline.
8.3 If the Customer is based outside of the UK, the Customer agrees to pay 50% of the price of the Goods as a deposit, with the remaining 50% of the price of the Goods to be paid once the Goods are made ready for collection and notified in writing by Borderline to the Customer.
8.4 Borderline may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond Borderline’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Borderline adequate or accurate information or instructions.
8.5 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Borderline at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of special packaging for shipping abroad (including but not limited to any additional shipping costs caused by shipping delays), insurance and transport of the Goods, which shall be invoiced to the Customer.
8.6 Borderline may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.7 The Customer shall pay the invoice in full and in cleared funds by the date indicated on the invoice. Payment shall be made to the bank account nominated in writing by Borderline. Time of payment is of the essence.
8.8 If the Customer fails to make any payment due to Borderline under the Contract within 14 days from the due date for payment (as specified on the invoice), then the Customer shall pay interest on the overdue amount at the rate of 2.5%. Such interest shall accrue on a monthly basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.9 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Borderline may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Borderline to the Customer.
9.1 Without limiting its other rights or remedies, Borderline may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates to such an extent that in Borderline’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, Borderline may suspend provision of the Goods under the Contract or any other contract between the Customer and Borderline if the Customer becomes subject to any of the events listed in clause 9.1(a) to clause 9.1(d), or Borderline reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, Borderline may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to Borderline all of Borderline’s outstanding unpaid invoices and interest.
9.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
10. Limitation of liability
10.1 Nothing in these Conditions shall limit or exclude Borderline’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for Borderline to exclude or restrict liability.
10.2 Subject to clause 10.1:
(a) Borderline shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of goodwill, profit, revenue, anticipated savings or any indirect or consequential loss arising under or in connection with the Contract or the Installation Services;
(b) Borderline’s total liability for damage to property caused by the negligence of its employees in connection with the Installation Services shall be limited to £500,000 for any one event or series of connected events; and
(c) Borderline’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
11. Force majeure
Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this Contract by giving 14 days’ written notice to the affected party.
12.1 Assignment and other dealings.
(a) Borderline may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Borderline.
12.2 Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; nor
(b) prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.7 Third party rights.
No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
12.8 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.