FURNDECO LIMITED (Trading as Eclipse Furniture)
TERMS AND CONDITIONS OF PURCHASE
1.1 In these terms and conditions (Conditions), the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England and Wales when banks in London are open for business.
Contract: the agreement between the Supplier and the Customer for the supply of Goods and/or Services incorporating these Conditions and the Order.
Customer: Furndeco Limited trading as Eclipse Furniture of Eastbrook Road, Gloucester, GL4 3DB.
Goods: the goods to be supplied by the Supplier to the Customer, as set out in the Order.
Intellectual Property Rights: means copyright, patents, know-how, trade secrets, trade marks, 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: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; (e) to which the Supplier is or may be entitled; and (f) in whichever part of the world existing.
Order: the Customer's order for the supply of Goods and/or Services.
Services: the services to be supplied by the Supplier to the Customer, as set out in the Order.
Specification: means the description, samples, drawings, formulas or specification of the Goods and/or Services supplied by the Customer and set out or referred to in the Order.
Supplier: the person or firm supplying the Goods and/or Services to the Customer.
1.2 In these Conditions, the following rules apply:
(a) a reference to a party includes its successors or permitted assigns;
(b) a reference to a statute or statutory provision is a reference to such statute or statutory 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; and
(c) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of (a) the Supplier issuing written acceptance of the Order; or (b) any act by the Supplier consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence.
2.3 An Order may be withdrawn or amended by the Customer at any time before acceptance by the Supplier. If the Supplier is unable to accept an Order, it shall promptly notify the Customer.
2.4 These Conditions apply to the Contract to the exclusion of any terms which are implied by trade, custom, practice or course of dealing.
2.5 These Conditions supersede any previously issued terms and conditions of purchase or supply. No terms or conditions endorsed on, delivered with, or contained in the Supplier’s quotation, sales conditions, confirmation of order, specification or other document will form part of the Contract except to the extent that the Customer otherwise agrees in writing.
3.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and any applicable Specification published or provided by the Supplier;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication, and in this respect the Customer relies on the Supplier's skill and judgment;
(c) be free from defects in design, materials and workmanship and remain so for 24 months after delivery; and
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
3.3 The Customer shall have the right to inspect and test the Goods at any time before delivery.
3.4 If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such action as is necessary to ensure compliance.
3.5 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract, and the Customer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
3.6 The Supplier shall ensure that the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition.
3.7 The Supplier shall deliver the Goods:
(a) on the date specified in the Order or, if no such date is specified, then within a reasonable period;
(b) to the Customer's premises or such other location as is set out in the Order or as instructed by the Customer before delivery, during the Customer's normal hours of business or as otherwise instructed by the Customer
3.8 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the delivery location.
3.9 Time of delivery is of the essence. Should the Supplier anticipate a delay in delivery of the Goods, it shall notify the Customer in writing of the expected delay and the cause thereof.
3.10 The Supplier shall not deliver the Goods in instalments without the Customer's prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately.
3.11 Title and risk in the Goods shall pass to the Customer on completion of delivery. The passing of title will not prejudice any other of the Customer’s rights and remedies, including the right to reject the Goods.
3.12 The Supplier undertakes that it (a) has at the time the Contract is made full, clear and unencumbered title to the Goods and the full, clear and unencumbered right to sell and deliver them to the Customer; and (b) will hold such title and right to enable it to ensure that the Customer will acquire a valid, unqualified title to the Goods and will enjoy quiet possession of them.
4. SUPPLY OF SERVICES
4.1 The Supplier shall provide the Services to the Customer in accordance with the terms of the Contract.
4.2 The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by the Customer.
4.3 In providing the Services, the Supplier shall:
(a) co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with this Contract;
(d) ensure that the Services will conform with all descriptions and specifications published or provided by the Supplier;
(e) provide all equipment, vehicles and such other items as are required to provide the Services;
(f) use the best quality goods, materials, standards and techniques, and ensure that all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
(g) obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations; and
(h) observe all health and safety rules and regulations and any other security requirements that apply.
5. CUSTOMER REMEDIES
5.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, the Customer shall, without limiting its other rights or remedies, have one or more of the following rights:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
(d) where the Customer has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier; and
(e) to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier's failure to meet such dates.
5.2 If the Goods are not delivered by the applicable date, the Customer may, at its option, claim or deduct 2 per cent of the price of the Goods for each week's delay in delivery by way of liquidated damages, up to a maximum of 20 per cent of the total price of the Goods. If the Customer exercises its rights under this clause 5.2 it shall not be entitled to any of the remedies set out in clause 5.1 in respect of the Goods' late delivery.
5.3 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting its other rights or remedies, the Customer shall have one or more of the following rights, whether or not it has accepted the Goods:
(a) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense;
(b) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier's failure to supply Goods in accordance with clause 3.1.
5.4 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
5.5 The Customer's rights under this Contract are in addition to its rights and remedies implied by statute and common law.
6. CHARGES AND PAYMENT
6.1 The price for the Goods:
(a) shall be the price set out in the Order, or if no price is given, the price set out in the Supplier's published price list in force at as at the date of the Order; and
(b) shall be inclusive of the costs of packaging, insurance and carriage of the Goods, unless otherwise agreed in writing by the Customer. No extra charges shall be effective unless agreed in writing and signed by the Customer.
6.2 The charges for the Services shall be set out in the Order, or otherwise agreed in writing between the parties, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
6.3 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services.
6.4 In consideration of the supply of Goods and/or Services by the Supplier, the Customer shall pay the invoiced amounts within 30 days of the end of the month following receipt of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
6.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
6.6 Time of payment is not of the essence. If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 2% per annum above Barclays Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments that the defaulting party disputes in good faith.
6.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.
6.8 The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
7.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
7.2 This clause 7 shall survive termination of the Contract.
8. INDEMNITY AND INSURANCE
8.1 The Supplier shall keep the Customer indemnified against all liabilities, costs (including without limitation refitting costs, if applicable), expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered incurred by the Customer as a result of or in connection with:
(a) any claim made against the Customer for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services;
(b) any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(c) any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods or the Services; and/or
(d) the Supplier’s breach of any of its obligations under the Contract.
8.2 During the term of the Contract and for a period of six years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract.
8.3 On request, the Supplier will supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms as applicable from time to time.
8.4 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing to do so; or
(b) the other party ceases trading or suffers an insolvency or bankruptcy event (including if a company, entering into liquidation, making an arrangement with its creditors, having a receiver or manager appointed over all or any part of its assets or generally becoming unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or if an individual, being declared bankrupt or making any arrangement with or for the benefit of its creditors or having a county court administration order made against you under the County Court Act 1984).
9.2 On termination of the Contract for any reason: (a) the accrued rights and remedies of the parties as at termination shall not be affected; and (b) any clauses which expressly or by implication have effect after termination shall continue in full force and effect.
10.1 The Supplier undertakes, warrants and represents that:
10.1.1 neither the Supplier nor any of its officers, employees, agents or subcontractors has (i) committed an offence under the Modern Slavery Act 2015 (a MSA Offence); (ii) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or (iii) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
10.1.2 it shall comply with the Modern Slavery Act 2015 and the Customer’s Modern Slavery Policy as supplied by the Customer to the Supplier from time to time;
10.1.3 it shall notify the Customer immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Supplier’s obligations under this clause 10. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Supplier’s obligations.
11.1 Assignment and other dealings. The Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party. The Supplier shall not, without the prior written consent of the Customer, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
11.2 Notices. Any notice or other communication given to a party under or in connection with this 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 or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to above; 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 fax or e-mail, one Business Day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3 Severance. 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.
11.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy.
11.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
11.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.7 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the Supplier.
11.8 Governing law. This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
11.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).