1.Definitions & Interpretation
1.1 In these conditions, the following words and expressions shall have the following meanings:
Buyer means the person, firm or company who purchases the Goods from the Seller;
Contract means any legally binding contract between the Seller and the Buyer for the sale and purchase of the Goods, incorporating these conditions;
Delivery Point means the place where delivery of the Goods is to take place under condition 4.1 as agreed by the Seller
Goods means any goods agreed in the Contract to be supplied to the Buyer by the Seller (including any part or parts of them);
Price means the price of the Goods as agreed between the Seller and the Buyer;
Product Code means the product code/name denoting the Specification of the Goods;
Purchase Order means the Buyer's written or oral purchase order;
Seller means Sublime Furnishings Ltd whose address is 36-40 Adelaide Street, Bradford, BD5 0EA.
Specification means the specification of the Goods agreed by the parties.
1.2 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.
1.3 Where the context requires, words in the singular include the plural and vice versa and any gender includes the other gender.
1.4 Headings are for convenience only and do not affect the interpretation of these conditions.
2 Basis of Sale
2.1 Any quotation (whether written or oral) is given on the basis that no Contract shall come into existence until the occurrence of one of the events set out in condition 2.6.
2.2 Unless otherwise agreed in writing, any quotation is valid for a period of 30 days only from its date of issue, provided that the Seller has not previously withdrawn it and shall be subject to the availability of the Goods.
2.3 Each Purchase Order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.4 Each Purchase Order shall detail:
(a) the quantity and description of Goods required;
(b) the Product Code of the Goods required; and
(c) the Delivery Point.
2.5 The Buyer shall ensure that the terms of its Purchase Order are complete and accurate.
2.6 A Purchase Order shall be deemed to be accepted on the occurrence of the earlier of:
(a) the issue by the Seller of an acknowledgement of the Purchase Order;
(b) notification by the Seller that the Goods are ready for delivery; or
(c) delivery of the Goods (or any part of them).
2.7 These conditions shall apply to the Contract to the exclusion of all other terms and conditions (including, but without limitation, any terms or conditions which the Buyer purports to apply under any Purchase Order, confirmation of order, specification or other document).
2.8 No terms or conditions endorsed on, delivered with or contained in the Buyer's Purchase Order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.9 Any Purchase Order which has been accepted by the Seller under condition 2.6 may only be cancelled, postponed or varied by the Buyer with the prior written consent of the Seller and on terms that the Buyer will indemnify the Seller in full from and against all costs and expenses incurred (directly or indirectly) by the Seller as a result of such cancellation, postponement or variation.
2.10 In the event of any queries, inaccuracies, typographical, clerical or other error or omission in any sales literature, quotation, price list or acknowledgement of Purchase Order, the Seller shall contact the Buyer and such document shall be subject to correction without any liability on the part of the Seller.
2.11 The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller's liability for fraudulent misrepresentation.
3.1 All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures 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 and this is not a sale by sample.
3.2 The Seller reserves the right to make any changes in the Specification of the Goods which are required to conform with any applicable statutory or EU specification.
4.1 Unless otherwise agreed in writing by the Seller, delivery of the Goods shall take place at the place of delivery stated on the Buyer's Purchase Order.
4.2 Any dates specified or agreed by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be of the essence in the Contract. If no dates are so specified, delivery shall be within a reasonable time.
4.3 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller's negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.4 If requested by the Seller prior to the delivery date, the Buyer shall provide at the Delivery Point and at its risk and expense adequate and appropriate equipment and manual labour for unloading the Goods.
4.5 The Buyer shall, within 3 days of the delivery of the Goods, notify the Seller of any defect by reason of which the Buyer alleges that the Goods delivered are not in accordance with the Specification and which should be apparent on reasonable inspection.
4.6 If the Buyer fails to give notice under condition 4.5 then, except in respect of any defect that is not one which should be apparent on reasonable inspection, the Goods shall be deemed conclusively to be in all respects compliant with the Specification and accepted by the Buyer.
4.7 If the Seller delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by the Seller, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.8 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with the Contract, or any claim by the Buyer relating to an instalment, shall not entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.10 The quantity of any consignment of Goods as recorded by the Seller on despatch from the Seller's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
4.11 The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller's negligence) unless the Buyer gives written notice to the Seller of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
4.12 Any liability of the Seller 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.
5 Risk and title
5.1 The Goods are at the risk of the Buyer from the time of delivery.
5.2 Ownership of the Goods shall not pass to the Buyer until the Seller 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 Seller from the Buyer on any account.
5.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Seller's bailee;
(b) store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller'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 Seller's behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.
5.4 The Buyer may use or resell the Goods before ownership has passed to it solely on the following conditions:
(a) any use or sale shall be effected in the ordinary course of the Buyer's business and (in the case of a sale) at full market value; and
(b) any such sale shall be a sale of the Seller's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
5.5 The Buyer's right to possession of the Goods shall terminate immediately:
(a) on the occurrence of any of the events set out at conditions 10.1(c) and 10.1(d); or
(b) if the Buyer encumbers or in any way charges any of the Goods.
5.6 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
5.7 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
5.8 Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
5.9 On termination of the Contract, howsoever caused, the Seller's (but not the Buyer's) rights contained in this condition 5 shall remain in effect.
6 Price and Payment
6.1 Unless otherwise specified by the Seller, the Price shall be exclusive of all taxes and duties including, without limitation, value added tax, which (if applicable) shall be payable by the Buyer together with any additional storage and delivery costs as detailed in any quotation issued by the Seller to the Buyer.
6.2 The Seller will invoice the Buyer for the Price before despatch of the Goods and delivery will only be made on receipt of full payment and cleared funds.
6.3 Subject to condition 6.6, the Buyer shall pay to the Seller the Price in pounds sterling upon receipt of invoice to confirm booking for delivery.
6.4 Time for payment shall be of the essence.
6.5 No payment shall be deemed to have been received until the Seller has received the Price in full in cleared funds.
6.6 All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.
6.7 The Buyer 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 Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
6.8 If the Buyer fails to pay the Seller any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Seller on such sum from the due date for payment at the annual rate of 3% 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.
6.9 The Seller reserves the right to increase the Price if any extra cost is incurred by the Seller as a result of the inaccuracy or incompleteness of any instructions issued by the Buyer, or as a result of any failure to supply any information, drawings or specification required to enable the Seller to proceed with the Contract.
7 Quality and Warranty
7.1 The Seller warrants that the Goods sold to the Buyer shall comply with the Specification (unless otherwise agreed by the parties in writing).
7.2 If within a period of 7 days from the date of delivery of the Goods any of the delivered Goods are proved to the reasonable satisfaction of the Seller not to comply with the Specification due to defects in materials, workmanship or composition, the seller at its option will:
(a) replace, free of charge, such Goods;
(b) refund the price of such Goods (subject to the price having been paid by the date of the complaint by the Buyer); or
(c) agree a reduced fee for such Goods.
7.3 The Seller's obligation under condition 7.2 will not apply where:
(a) the Goods have been improperly altered or subject to misuse;
(b) the Goods have been mixed with other products;
(c) any instructions for storage of the Goods have not been complied with in all respects.
7.4 If the Seller complies with condition 7.2 it shall have no further liability for breach of the warranty in condition 7.1 in respect of such Goods.
7.5 Any Goods that have been replaced will belong to the Seller.
7.6 Except as otherwise provided in these conditions, all warranties, conditions and other terms implied by statute or common law (except for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
8 Intellectual Property
8.1 The Buyer shall not use the Seller's name, logo or any other identification marks for the purpose of advertising or publicity without the prior written consent of the Seller.
9 Limitation of Liability
9.1 The Seller does not attempt to exclude any liability:
(a) for breach of the Seller's obligations arising under section 12 of the Sale of Goods Act 1979;
(b) for personal injury or death resulting from the Seller's negligence;
(c) under section 2(3) of the Consumer Protection Act 1987; or
(d) in respect of any matter for which it would be illegal for the Seller to exclude or to attempt to exclude its liability.
9.2 The Seller shall not be liable to the Buyer for any loss of profit, loss of anticipated profit, loss of business, loss of contract, economic loss, overhead recovery, anticipated savings, loss of data, loss of production, depletion of goodwill, product recall, nor for any special, indirect or consequential loss or damage, or otherwise for any costs, expenses or other claims for consequential, compensation whatsoever (howsoever caused, even if it results from the Seller's negligence or breach of statutory duty) including, but without limitation, any which arise out of or in connection with:
(a) any of the Goods;
(b) the manufacture, sale or supply, or failure or delay in supply, of the Goods by the Seller or on the part of the Seller's employees, agents or sub-contractors;
(c) any breach by the Seller of any of the express or implied terms of these conditions or the Contract;
(d) any use made or resale by the Buyer of any of the Goods, or of any products incorporating any of the Goods; or
(e) any statement made or not made, or advice given or not given, by or on behalf of the Seller,
and, subject to condition 9.1, the Seller's total aggregate liability under the Contract shall be limited to the Price the Seller has received under the Contract.
10 Buyer's Default and Termination of the Contract
10.1 The Seller shall be entitled to terminate the Contract immediately upon the occurrence of any of the following:
(a) the Buyer being in material breach of any term of these conditions and such breach not being capable of remedy;
(b) the Buyer being in material breach of any term of these conditions and failing to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied;
(c) the Buyer has a bankruptcy order made against it or makes an arrangement or composition with its 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 Buyer or notice of intention to appoint an administrator is given by the Buyer 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 Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer;
(d) the Buyer suffers the equivalent of any similar or analogous event in (c) (above) in any jurisdiction; or
(e) a separate entity acquires Control of the Buyer, or the Buyer is merged with a separate entity. "Control" for the purposes of these conditions and the Contract shall mean where an entity has 50% or more of the shares or stocks in the Buyer or is able to direct the Buyer's affairs and/or control the composition of the Buyer's board of directors or equivalent body.
10.2 Without prejudice to any of its other rights or remedies, the Seller shall have the right to terminate the Contract without any liability to the Buyer if, in the reasonable opinion of the Seller after an inspection into the Buyer's financial or trade status or in light of any report considered by the Seller, the Seller at its absolute sole discretion deems that the Buyer may not be able to pay the Price.
11.1 The Seller may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
12 Force Majeure
The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller 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 28 days, the Buyer shall be entitled to give notice in writing to the Seller to terminate the Contract.
13 Dispute Resolution
13.1 Any dispute arising out of these conditions or the Contract must first be referred to a senior executive of each party and they or their nominees shall meet in good faith in order to try to resolve the dispute.
13.2 If the dispute is not resolved by the meeting between senior executives detailed at condition 13.1, either party may (at such meeting or within 14 calendar days of its conclusion) refer the dispute to a mediator to be appointed by agreement between the parties. If the parties fail to make such appointment within 7 days of the referral to the senior executives, either party may ask CEDR to appoint a mediator.
13.3 If either party refuses at any time to participate in the mediation procedure set out at condition 13.1, and in any event, if the dispute is not resolved within 30 days of the appointment of the mediator, then either party may apply to the Courts for resolution of the relevant dispute in accordance with condition 15.8.
14.1 Notices under these conditions shall be in writing and served by personal delivery or by pre-paid recorded delivery to such address as is last notified in writing by the parties.
14.2 Notices shall be deemed to be served:
(a) on delivery where delivered personally; or
(b) two days after mailing if sent by pre-paid recorded delivery.
15.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
15.2 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.
15.3 Failure or delay by the Seller 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.
15.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
15.5 No variation or amendment to the Contract or these conditions shall be binding unless agreed in writing by the Seller.
15.6 Nothing in the Contract or these conditions shall be construed as creating a partnership between the parties.
15.7 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.
15.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and, subject to the provisions of condition 13, the parties submit to the exclusive jurisdiction of the English courts.