The definitions and rules of interpretation in this condition apply in these conditions.
Company: FURNOTEL LIMITED
Company’s Equipment: any equipment, systems or facilities provided by the Company or its subcontractors and used directly or indirectly in the Supply of any Goods and/or Services.
Conditions: these Terms and Conditions of Supply.
Confidential Information: any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential or the information could reasonably be supposed to be confidential.
Contract: any contract between the Company and the Customer for the Supply of any Goods and/or Services, incorporating these conditions.
Customer’s Equipment: any equipment, systems or facilities provided by the Customer and used directly or indirectly in the Supply of any Goods and/or Services.
Delivery Point: the place where delivery of any Goods is to take place under Condition 4.
Document: any document in writing, and any map, plan, graph, drawing or photograph and any film, negative tape or other device embodying visual images and any disc, tape or other device embodying any other data.
Goods: any goods agreed in the Contract to be supplied by the Company to the Customer (including any part or parts of them), including, but not limited to, any goods agreed to be supplied with, or in relation to, any Services.
Input Material: any Documents or other materials, and any data or other information provided to the Company by the Customer relating to the Goods and/or Services.
Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered.
Output Material: any Documents or other materials, and any data or other information provided by the Company to the Customer relating to the Goods and/or Services.
Services: any services agreed in the Contract to be performed by the Company for the Customer (including any part or parts of them) including, but not limited to, any Services to be performed in relation to any Goods.
Supply: the sale of any Goods and/or the provision of any Services by the Company to the Customer. For the avoidance of doubt, any Goods so sold, and/or Services so provided, (or to be so sold or provided, as applicable), are Supplied.
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
Words in the singular include the plural and in the plural include the singular.
A reference to one gender includes a reference to the other gender.
Condition headings do not affect the interpretation of these Conditions.
Subject to any variation under condition 2.2 the Contract shall be on 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).
These Conditions apply to the Supply of any and all Goods and Services by the Company and any variation to these Conditions and any representations about any Goods and/or Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory 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. Nothing in this Condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
Each order or acceptance of a quotation for Goods and/or Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Conditions. No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued and executed by the Company. Any quotation is given on the basis that no Contract shall come into existence until the Company despatches a written acknowledgment of order to the Customer. Any quotation is valid for a period of 90 days only from its date, provided that the Company has not previously withdrawn it.
The Customer shall ensure that the terms of its order and any Input Material and/or any applicable specification are complete and accurate and are submitted to the Company within a sufficient time period such as will enable the Company to fulfil the Company’s obligations under the Contract.
The Customer may cancel any order for Goods and/or Services, subject to Condition 2.6 below, provided that the Customer’s notification of cancellation is received by the Company within 3 working days of receipt by the Company of the Customer’s order for the corresponding Goods and/or Services and provided that the Customer fully reimburses the Company for any costs, charges and expenses that the Company may incur in connection with the Customer’s order.
Without limitation, the Customer may not cancel any order for Goods and/or Services for which a written acknowledgment of order has been issued by the Company pursuant to Condition 2.3 and if the Customer cancels, or purports to cancel any such order (or the Contract or any part thereof), then the Company may, by notice in writing to the Customer, elect to treat the Contract as repudiated.
The quantity and description of any Goods and/or Services shall be as set out in the Company’s quotation or acknowledgement of order.
All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract and this is not a sale by sample.
If any Goods are to be manufactured, designed, built or configured and/or any process is to be applied to any Goods by the Company and/or any Services are to be performed by the Company in accordance with any Input Material and/or any specification submitted by the Customer, the Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by, the Company, in settlement of any claim for infringement of any patent, copyright, design, trade mark or any other intellectual property right of any other person resulting from the Company’s use of any Input Material and/or any specification so submitted.
Subject to the provisions of Condition 9.2 (b), the Customer shall be solely responsible for ensuring the suitability of any Goods for any specific purpose.
Without prejudice to Condition 3.1, the Company reserves the right to make modifications to any specification of Goods without prior notice to the Customer, provided that any such modification does not materially affect the quality or performance of the Goods.
4. DELIVERY AND PERFORMANCE
Unless otherwise agreed in writing by the Company, delivery of any Goods and/or the performance of any Services shall take place at the Customer’s place of business. All carriage charges in relation to the delivery of any Goods, including, without limitation, all costs in relation to transport, insurance and unloading the Goods at the Delivery Point, shall be borne by the Customer.
Any dates specified by the Company for delivery of the Goods and/or performance of the Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery and/or performance, as applicable, shall be within a reasonable time. Should expedited delivery of any Goods be agreed, the Company reserves the right to levy an extra delivery charge.
The Services supplied under the Contract shall be provided by the Company to the Customer from the date of acceptance by the Company of the Customer’s offer in accordance with condition 2.3, unless otherwise specified by the Company.
Subject to condition 14, the Services shall be provided for such fixed period as the Company shall determine in advance.
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 and/or performance of the Services (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.
The Company may deliver the Goods by separate instalments and perform the Services in separate tranches. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
With respect to any Services which the Company is to perform for the Customer, whether or not any such Services are to be performed at the Customer’s place of business or at any other place (in each case, ‘the Site’ ) the Customer shall:
(a) co-operate with the Company in all matters relating to the provision of the Services;
(b) provide the Company, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with such access to the Site together with anything therein or thereon and any data or other facilities as may be required by the Company;
(c) inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at the Site; and
(d) unless otherwise agreed in writing with the Company, be solely responsible for obtaining and maintaining all necessary licences and consents and for complying with all relevant legislation in relation to the provision of the Services, the use of the Site, the installation of the Company’s Equipment, the use of any Input Material and the use of the Customer’s Equipment in relation to the Company’s Equipment, in all cases before the date on which the provision of the Services is to commence.
Without prejudice to Condition 4.7, any additional costs caused by any delay in the performance of the Services, or any suspension of performance, at the Site (for reasons beyond the control of the Company for which the Company shall not be liable) e g industrial action, shall be treated as a variation to the Customer’s original order and the Customer shall be liable for any such additional costs.
The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
The Company shall not be liable for any non-delivery of the Goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
Risk of damage to, or loss of, the Goods shall pass to the Customer at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, at the time when the Company has tendered delivery of the Goods.
Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Customer on any account.
Until ownership of the Goods has passed to the Customer, the Customer shall: (a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in 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.
The Customer’s right to possession of the Goods shall terminate immediately if the Customer encumbers or in any way charges any of the Goods, or if the Customer becomes, or is declared insolvent (or being an individual, is declared bankrupt) or convenes a meeting of, or proposes any arrangement or composition with, its creditors, or is subject to an order or resolution for winding up (except for the purposes of a solvent reconstruction or amalgamation) and all monies owing by the Customer to the Company (without prejudice to any other right or remedy of the Company) shall forthwith become due and payable.
The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored or otherwise located, but in any event, and without limitation, hereby undertakes to secure access at any time to any such premises for the Company, its agents and employees in order to inspect the Goods, or, where the Customer’s right to possession has terminated, to recover them.
The provisions of this Condition 6 shall apply to all Goods notwithstanding the conversion of any Goods by virtue of the admixture of the Goods with any other materials.
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.
Unless otherwise agreed by the Company in writing, the price for any Goods and/or Services shall be the price set out in the Company’s written quotation.
The Customer shall pay to the Company any additional sums which, in the Company’s sole discretion, are required as a result of the Customer’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Customer directly or indirectly, including, without limitation, any failure by the Customer to fulfil any obligation set forth in Condition 4.7.
The price for the Goods and/or Services shall be exclusive of any value added tax which will be charged at the current rate on date of invoice.
The price shall be paid by the Customer to the Company as follows:
For any Goods:
(a) 30% of the Contract price shall be paid on the date that the Customer receives the Company’s written acknowledgment of order; and (b)The 70% balance of the Contract price shall be paid upon the date on which the Goods are delivered to the Customer, or if the Customer wrongfully refuses to take delivery of the Goods, on the date upon which the Company tenders delivery of the Goods.
For any Services:
(a) 30% of the Contract price shall be paid on the date that the Customer receives the Company’s written acknowledgment of order; and
(b) The 70% balance of the Contract price shall thereafter be paid in the form of monthly progress payments upon completion of pre-agreed phases.
Time for payment shall be of the essence.
No payment shall be deemed to have been received until the Company has received cleared funds. In the event that the Customer tenders payment by cheque and said cheque is returned unpaid to the Company, the Customer shall reimburse the Company for any bank charges incurred by the Company.
All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
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.
If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 5 % above the base lending rate from time to time of HSBC Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall reimburse the Company for any and all costs incurred by the Company in recovering payment pursuant to this Condition 8.
Without prejudice to Condition 8.6, any failure by the Customer to pay the Company any sum by the due date for payment and/or the occurrence of any one or more of the events set forth in Condition 6.4 shall entitle the Company, at any time and without notice to the Customer and without limitation to any other remedy available to the Company under these Conditions, the Contract, or otherwise:
To suspend or cancel the further delivery of any Goods and/or the performance of any Services, including, without limitation, stopping the delivery of any Goods in transit;
To withdraw or reduce any agreed monthly credit limit; and
To treat the Contract as having been repudiated by the Customer.
The Company warrants that (subject to the other provisions of these Conditions):
(a) on delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
(b) if the Customer has made it expressly known to the Company in the Customer’s order that the Goods shall be suitable for a particular purpose and the Company has expressly stated in the acknowledgment of order that it will supply Goods suitable for that purpose, then the Goods shall, on delivery, be reasonably fit for the purpose so stated.
The Company shall not be liable for a breach of any of the warranties in Condition 9.1 unless the Customer gives written notice of the defect to the Company (and also to the carrier if the defect is a result of damage to any Goods in transit), within 3 days of the time when the Customer discovers or ought to have discovered the defect.
The Company shall not be liable for a breach of any of the warranties in Condition 9.1 if:
(a) the Customer makes any further use of any Goods which the Customer has alleged to be defective after giving notice of any such defect; or
(b) the defect arises because the Customer failed to follow any oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or
(c) the defect arises from any Input Material and/or specification supplied by the Customer or from fair wear and tear, wilful damage, negligence, abnormal working conditions or from any misuse of the Goods; or
(d) the full price for the Goods and/or Services has not been paid by the time for payment stipulated in Condition 8.1; or
(e) the defect is of a type specifically excluded by the Company by notice in writing.
Subject to Condition 9.2 and Condition 9.3, if any of the Goods and/or Services do not conform with any of the warranties in Condition 9.1 the Company shall at its option repair or replace any such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate.
If the Company complies with Condition 9.3(e) it shall have no further liability for a breach of any of the warranties in Condition 9.1 in respect of such Goods.
10. LIMITATION OF LIABILITY
All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982 ) are, to the fullest extent permitted by law, excluded from the Contract.
Nothing in these Conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
Subject to Condition 10.1 and Condition 10.2:
(a) 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 price paid by the Customer for the Goods and/or Services; and
(b) the Company shall not be liable to the Customer for any loss of profit, loss of business, depletion of goodwill, damage to reputation or otherwise or other economic loss (whether direct or indirect) or any special or indirect losses, costs, expenses or other claims for special compensation whatsoever and howsoever caused (whether by negligence or otherwise) which arise out of or in connection with the Contract.
The Customer shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of, or breach of, any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
The Customer shall hold the Company harmless and keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by any third party to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of, or breach of, any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
12. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
The Customer and the Company agree that in the course of the Company providing Goods and/or Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party.
The Customer acknowledges the Company’s ownership of any Intellectual Property Rights in the Output Material and in any Goods and/or Services provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. Without limitation, the Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant of rights therein.
13. DATA PROTECTION
The Customer acknowledges and agrees that any personal data contained in any of the Input Material may be processed by and on behalf of the Company in connection with the Supply of any Goods and/or Services. Telephone calls are monitored and recorded to aid quality and training purposes.
Without prejudice to any other available rights or remedies, the Contract may be terminated immediately upon notice by the Company to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the Customer commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within 14 days of receipt of written notice of the breach from the Company; or
(c) any of the events set forth in condition 6.4 occurs or seems, in the reasonable opinion of the Company, likely to occur; or
(d) the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
On termination of the Contract (however arising), conditions 9-14 shall survive and continue in full force and effect.
The Customer may not assign the Contract or any rights thereunder without the prior written consent of the Company. The Company may freely assign, transfer or subcontract the whole or any part of the Contract.
16. FORCE MAJEURE
The Company reserves the right to defer the date of delivery and/or performance, or to cancel the Contract or reduce the volume of the Goods and/or Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.