1 INTERPRETATION
1.1 In these Conditions the following words have the following meanings:-
“Brassware” means taps and showerkit (terminal fittings).
“the Buyer” means the person(s), firm or company who purchases the Goods from the Company.
“the Company” means Utopia Furniture Limited.
“Contract” means any contract between the Company 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 Clause 4.
“Goods” means any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
“Sanitaryware” means ceramic ware including but not limited to toilets and basins.
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 References in these Conditions to Clauses are to the relative numbered clauses of these Conditions.
1.5 In these Conditions headings will not affect the construction of these Conditions.
2 APPLICATION OF TERMS
2.1 Subject to any variation under Clause 2.3, the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 The Conditions apply to all the Company’s sales and any variation to these Conditions and any other representations about the Goods shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of the Company.
2.4 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.5 Any quotation is available for acceptance for a maximum period of 30 days only from its date (unless otherwise stated on the quotation), and provided the Company has not previously withdrawn it.
3 DESCRIPTION
3.1 The description of the Goods shall be as set out in the Company’s quotation (if any).
3.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
4 DELIVERY
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Buyer’s place of business.
4.2 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
4.3 Any dates specified by the Company for delivery of the Goods 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 will be within a reasonable time.
4.3a The buyer is to ensure that access is suitable and that sufficient labour/equipment are provided at the buyer’s cost for unloading the goods.
4.4 Subject to the other provisions of these Conditions the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence) nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days or unless agreed otherwise in writing by the Company.
4.5 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations: –
4.5.1 Risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.5.2 The Goods will be deemed to have been delivered;
4.5.3 The Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
4.5.4 Changes to your specified agreed delivery date including any product specification changes cannot be made within less than 10 working days prior to the scheduled delivery date. Where upon refer to clause 4.5.3.
4.6 The Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for unloading the Goods.
4.7 The Company may deliver the Goods by separate instalments. Each separate instalment may be moved separately and, if so shall be paid for in pro rata values in accordance with the Contract.
4.8 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalment shall not entitle the Buyer to treat the Contract as whole or as repudiated.
4.9 Without prejudice to any right or remedy of the Company if the Buyer is in breach of any of the terms of this Contract the Company may without notice and at its sole discretion terminate or fulfil any contract with the Buyer so far as any Goods remain to be delivered or may suspend performance of its obligations until the Buyer’s default is made good.
4.10 Any delivery refused at the point of delivery due to lack of information, or instruction by the buyer will result in a charge of up to and including £500.
5 NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’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.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 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.
5.4 The Buyer shall have no claim for loss apparent on visual inspection unless a written complaint specifying the loss is made to the Company within 4 days of delivery.
6 RISK/TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:-
6.2.1 The Goods; and
6.2.2 All other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:-
6.3.1 Hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 Store the Goods in accordance with the Company’s storage instructions (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 Not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 Maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance of the Company; and
6.3.5 Hold the proceeds of the insurance referred to in Clause 6.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:-
6.4.1 Any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
6.4.2 Any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:-
6.5.1 The Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act 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 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; or
6.5.2 The Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/ its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.5.3 The Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer 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 in order to inspect them and, where the Buyer’s right to possession has terminated, to recover the Goods and to resell them.
7 PRICE
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s quotation or if no quotation has been given the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods where applicable.
8 PAYMENT
8.1 Payment of the price for the Goods is due on the last working day of the month following the month in which the Goods are invoiced to the Buyer.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.3.1 Payment must be made by BACS into the bank account notified by the Company. Cheque payments are not acceptable, and any such payments will incur an administration fee of £250 per cheque.
8.4 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
8.4.1 Any order amendments or cancellations must be received within two working days of receipt of this confirmation, the Company cannot accept responsibility if the order is incorrect or not required once manufacturing has begun. The Company reserve the right to charge for any order in full after this period has lapsed.
8.5 The Buyer shall make all payments due under the Contract 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 Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer may be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8% above the official lending rate of the Bank of England prevailing at the end of the due date for payment on a daily basis until payment is made, whether before or after any judgment.
8.7 Credit notes issued by the company must be utilised against outstanding sales invoices within 180 days of the date of issue of the credit note. Credit notes not utilised within 180 days will no longer be valid and their value will be reduced to £nil.
9 QUALITY
9.1 Where the Company is not the manufacturer of the Goods, the Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 If the Company is the manufacturer, the Company warrants that (subject to the other provisions of these Conditions) upon delivery the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1979 as may be amended from time to time;
9.3 The Company shall not be liable for a breach of the warranty in Clause 9.2 unless:-
9.3.1 The Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 4 days of the time when the Buyer discovers or ought
to have discovered the defect;
9.3.2 The Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost for the examination to take place there.
9.4 The Company shall not be liable for a breach of the warranty in Clause 9.2 if:-
9.4.1 The Buyer or any third party makes any further use of such Goods after giving such notice; or
9.4.2 The defect arises because the Buyer or any third party failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
9.4.3 The Buyer or any third party alters or repairs such Goods without the written consent of the Company.
9.5 Subject to Clauses 9.3 and 9.4, if any of the Goods do not conform with the warranty in Clause 9.2 the Company shall repair or replace such Goods (or the defective part) at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Buyer’s expenses, return the Goods or the part of such Goods which is defective to the Company.
9.6 If the Company complies with Clause 9.5 it shall have no further liability for a breach of the warranty in Clause 9.2 in respect of such Goods.
9.7 In the case of any Goods not manufactured by the Company the Company shall have no obligation under Clause 9.1 unless the Buyer gives written notice to the Company at least 3 working days prior to the expiry of the guarantee or warranty period specified by the manufacture of such Goods.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 10.
10 LIMITATION OF LIABILITY
10.1 The following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1 Any breach of its contractual obligations arising under these Conditions; and
10.1.2 Any representation statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 Any act or omission on the part of the Company or its employees agents or sub-contractors falling within Clause 10.1 above shall for the purposes of this Clause 10 be known as an “Event of Default”.
10.3 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) are, to the fullest extent permitted by law, excluded from the Contract 10.4 Nothing in these Conditions excludes or limits the liability of the Company for:
10.4.1 Death or personal injury resulting from its own or that of its employees’ agents’ or subcontractors’ negligence;
10.4.2 Damage suffered by the Buyer as a result of a breach of the implied statutory undertakings as to title quiet possession and freedom from encumbrances;
10.4.3 Fraudulent misrepresentation.
10.5 If the Company delivers to the Buyer goods which do not conform to the description of the Goods (or any part thereof) the Company’s entire liability to the Buyer shall be limited to supplying the Goods (or any part thereof) in replacement for the goods which do not so conform. Whenever reasonably possible and if so requested by the Company the Buyer shall at the Company’s cost return the goods that do not conform to the Company.
10.6 Subject to the provision of Clauses 10.4, 10.5 and 10.12 the Company’s entire liability to the Buyer in respect of any Event of Default shall be limited to damages of an amount equal to the purchase price of the Goods the subject matter of the Event Default.
10.7 Subject to Clause 10.4 above the Company shall not be liable to the Buyer in respect of any Event of Default for any loss or damage which may be suffered by the Buyer, whether the same is suffered directly or indirectly or is immediate or consequential, which falls within any of the following categories:
10.7.1 Special damage even though the Company aware of the circumstances in which such special damage could arise; or
10.7.2 Loss of:
10.7.2.1 Profits;
10.7.2.2 Anticipated savings;
10.7.2.3 Business opportunity; or
10.7.2.4 Goodwill; or
10.7.3 Cost of removal of defective Goods, installation of replacement or repaired Goods and any rectification work required in connection with such removal or installation; or
10.7.4 Cost of removal of goods supplied in error and any rectification work required in connection with such removal or installation; or
10.7.5 Cost of any wasted expenditure; or
10.7.6 Cost of mitigation; or
10.7.7 Claims against the Buyer resulting from the failure of the Buyer, its employees, contractors or agents to comply with any statutory provisions (including but not limited to any European
Community Regulations) relating to the installation of the Goods.
10.8 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under the Contract.
10.9 The Buyer hereby agrees to afford the Company not less than 30 days in which to remedy any Event of Default hereunder.
10.10 Subject to Clause 10.4 above the Company shall have no liability to the Buyer in respect of any Event of Default unless the Buyer shall have served notice of the same upon the Company
within 2 years of the date it became aware of the circumstances giving rise to such Event of Default or the date when it ought reasonably to have become so aware.
10.11 Nothing in this Clause 10 shall confer any right or remedy upon the Buyer to which it would not otherwise be legally entitled.
10.12 In so far as the Company has valid insurance cover in respect of any liability to the Buyer, the liability of the Company to the Buyer shall be limited to the greater of the amount specified in these terms and conditions in respect of that liability and the sum recoverable by the Company, as at the date of settlement of the claim or the date of judgement in respect thereof, from its insurers in respect of the said liability.
11 RESTOCKING POLICY
11.1 The Company does not operate a restocking policy of any products with the exception of sanitaryware, brassware, lights, tiles (a minimum of 2 full boxes of the same range and colour batch), shower screens and baths to the Company provided that the Goods satisfy the following Conditions:
11.1.1 The Goods are unused and in good condition and packaged in the original packaging in which they were supplied to the Buyer and any such packaging is undamaged, and (where applicable) all parts are included.
11.1.2 The request by the Buyer to return the Goods is made no later than the date which is 28 days from the date when the Goods were delivered or deemed to be delivered under Clause 4
whichever is the earlier.
11.2 The Company shall (at the Company’s expense) collect any Goods to be returned in accordance with the provisions of Clause 11 from the Buyer’s premises at a time to be agreed between the Buyer and the Company.
11.3 The Company shall determine whether the Goods to be returned satisfy the provisions of Clause 11.1.2.
11.4 Provided that Goods are returned to the Company in accordance with the provisions of this Clause 11 the Company shall refund to the Buyer by way of a credit to the Buyer’s account with the Company:
11.4.1 In respect of that part of the Goods returned to the Company which is Brassware, Sanitaryware, lights, tiles (a minimum of 2 full boxes of the same range and colour batch), shower screens and baths an amount equal to 80% of the price (excluding VAT, packaging, insurance and delivery costs) payable to the Company in respect of any such Goods.
12 ASSIGNMENT
12.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12.2 The Company may assign the Contract or any part of it to any person, firm or company.
13 BREXIT
Notwithstanding anything to the contrary elsewhere in the contract if, due to Brexit, there is a change in law, and/or an imposition of (without limitation) any new or increased tariffs; any new or additional border checks, controls or other trade barriers; any restrictions on the free movement of goods and or services between the United Kingdom and any other country; any material changes to import or similar duties between the United kingdom and any other country; loss or invalidity of any necessary licence or consent; and/or any other material change in the business and economic environment in which we operate, that in each case (1) affects or relates to our scope of works and or services (including our supply chain) and (2) arises out of or in connection with the United kingdom ceasing to be a full member of the European Union, then we shall be entitled to such extension of the time for performance of our obligations, and to the payment of such additional costs and expenses, as would place us in a no better and no worse a position that if the same had not occurred or arisen. Similarly where it is necessary for our scope of works/and or services to be altered or modified to comply with or reflect any of the foregoing matters such alteration or modification shall be treated as a variation to our scope that entitles us to an appropriate extension of time and to payment of our additional costs and expenses. Without prejudice to the foregoing, if any of the foregoing matters have a material adverse effect on our ability to perform the contract in accordance with its terms and/or the law, both parties shall enter into good faith negotiations to amend the contract to address the same; and if we are unable to reach agreement within a reasonable period (and in any event within one month of each party notifying the other party that it wishes to enter into such negotiations ), then either party shall be entitled to terminate the contract, in which event we shall be entitled to be paid such amount as would place us in a no better and no worse position than if the contract had not been terminated.
14 FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or to 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 Company, including, without limitation, acts of God, governmental actions, war or national emergency, 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 Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
15 GENERAL
15.1 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.
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 Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
15.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
15.5 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
15.6 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.
16 NOTICES
16.1 All communications between the parties with respect to this agreement shall be delivered by hand or sent by first-class post to (in the case of a company) its registered office for the time being or (in the case of an individual) such address as that party may from time to time be notified for the purpose of this clause by email transmission.
16.2 Communications shall be deemed to have been received:-
16.2.1 If sent by first-class post, 48 hours after posting;
16.2.2 If delivered by hand, on the day of delivery;
16.2.3 If sent by email transmission upon production of the receipt of email
16.3 In proving service:-
16.3.1 By delivery by hand, it shall be necessary only to produce a sworn affidavit from the person delivering the communication by hand that the communication was delivered to the correct address;
16.3.2 By post, it shall be necessary only to prove that the communication was contained in an envelope which was duly addressed and posted in accordance with Clause 15.1;
16.3.3 By email transmission it shall be necessary only to produce the receipt of email.
