Terms and Conditions of Sale
- Definitions and Interpretation
- In the Contract, unless the context otherwise requires, the following words and expressions shall have the following meanings:
||a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
||these terms and conditions or any of them as amended from time to time in accordance with condition 14.4;
||the contract between Furmanac and the Customer for the sale and purchase of the Goods comprising the Order and these Conditions;
||the person who purchases the Goods from Furmanac and whose details are set out in the Customer Information Sheet;
|Customer Information Sheet:
||Furmanac’s standard customer information sheet attached to these Conditions and previously completed and signed, or to be completed or signed, by or on behalf of the Customer;
|Custom Made Goods:
||any goods produced in accordance with the relevant Specification;
||the date the Goods are delivered in accordance with Conditions 4.2;
|Force Majeure Event:
||an event or circumstance beyond a party’s reasonable control;
||Furmanac Limited (registered in England and Wales with company number 01059575);
||the goods (or any part of them) set out or referred to in the Order, including Custom Made Goods;
||the Customer’s order for the Goods, as set out in the Customer’s purchase order form or the Customer’s written acceptance of Furmanac’s quotation, or overleaf, as the case may be;
||a specification detailing the optional upgrades or extras which the Customer wishes to be incorporated into goods, as set out in Furmanac’s price list from time to time, to produce Custom Made Goods.
- A reference to;
- a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- the singular includes the plural and vice-versa and the masculine include the feminine and vice-versa;
- a natural person, company, LLP, corporate firm, partnership, joint venture, association, trusts, unincorporated bodies and associations and reference to any party or person shall include their personal representatives, successors and assigns;
- include, includes, in particular or anything similar are illustrative only and shall not limit the sense of the words preceding them and each of them shall be deemed to incorporate the expression without limitation;
- a reference to writing or written includes faxes and emails.
- Basis of contract
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by any trade, custom, practice or course of dealing.
- The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
- The Order shall only be deemed to be accepted when Furmanac issues a written acceptance of the Order, at which point the Contract shall come into existence.
- The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
- Any samples, drawings, descriptive matter or advertising produced by Furmanac and any descriptions or illustrations contained in Furmanac’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
- A quotation for the Goods given by Furmanac shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
- The Goods are described in Furmanac’s price list, as modified by any applicable Specification, from time to time.
- The Customer shall indemnify Furmanac against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Furmanac in connection with any claim made against Furmanac for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Furmanac’s use of the Specification. This condition 2 shall survive termination of the Contract.
- Furmanac reserves the right to amend the specification of the Goods or the Specification if required by any applicable statutory or regulatory requirements.
- Furmanac shall ensure that:
- each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the contract number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
- if Furmanac requires the Customer to return any packaging materials to Furmanac, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Furmanac shall reasonably request. Any returns of packaging materials shall be at Furmanac’s expense.
- Subject to condition 4.7, Furmanac agrees to deliver the Goods to the location set out in the Customer Information Sheet (Delivery Location) at any time after Furmanac notifies the Customer that the Goods are ready. The Delivery Location may be varied with Furmanac’s consent, which shall be at their absolute discretion, and any such variation may be subject to a delivery charge, or an increased delivery charge, which shall be payable by the Customer. Delivery of the Goods shall be completed at the time such Goods are provided to the Customer or its representative at the Delivery Location.
- Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Furmanac shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Furmanac with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- If Furmanac fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Furmanac shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Furmanac with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- If the Customer fails to take delivery of the Goods within 3 Business Days of Furmanac notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Furmanac’s failure to comply with its obligations under the Contract:
- delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Furmanac notified the Customer that the Goods were ready; and
- Furmanac will, subject to Condition 6 store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
- If 10 Business Days after the day on which Furmanac notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, Furmanac may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
- Furmanac may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
- Furmanac warrants that on delivery, and, for a period of 2 years in respect of any electrical goods, or a period of 5 years in respect of all other Goods, from the Delivery Date (Warranty Period), the Goods shall:
- conform in all material respects with their description and any applicable Specification;
- be free from material defects in design, material and workmanship;
- be fit for any purpose held out by Furmanac.
- Subject to condition 3, if:
- the Customer gives notice in writing to Furmanac during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in condition 1;
- Furmanac is given a reasonable opportunity of examining such Goods; and
- the Customer (if asked to do so by Furmanac) returns such Goods to Furmanac’s place of business at the Customer’s cost;
Furmanac shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
- Furmanac shall not be liable for the Goods’ failure to comply with the warranty set out in condition 1 in any of the following circumstances:
- the Customer makes any further use of such Goods after giving notice in accordance with condition 2;
- the defect arises because the Customer has failed to follow Furmanac’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
- the defect arises as a result of Furmanac following any drawing, design or Specification supplied by the Customer;
- the defect or flaw relates to fabric or cloth.
- the Customer alters or repairs the Goods without the written consent of Furmanac;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- the Goods differ from their description or the Specification (as appropriate) as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
- Except as provided in this condition 5, Furmanac shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in condition 1.
- The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
- These Conditions shall apply to any repaired or replacement Goods supplied by Furmanac.
- Title and risk
- The risk in the Goods shall pass to the Customer on completion of delivery.
- Title to the Goods shall not pass to the Customer until the earlier of:
- Furmanac receiving payment in full (in cash or cleared funds) for;
- the Goods; and
- any other goods that Furmanac has supplied to the Customer;
in which case title to the Goods shall pass at the time of payment of all such sums; or
- the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in condition 4.
- Until title to the Goods has passed to the Customer, the Customer shall:
- store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Furmanac’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- notify Furmanac immediately if it becomes subject to any of the events listed in condition 1; and
- give Furmanac such information relating to the Goods as the Furmanac may require from time to time.
- Subject to condition 5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Furmanac receives payment for the Goods. However, if the Customer resells the Goods before that time:
- it does so as principal and not as Furmanac’s agent; and
- title to the Goods shall pass from Furmanac to the Customer immediately before the time at which resale by the Customer occurs.
- If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in condition 1, then, without limiting any other right or remedy Furmanac may have:
- the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
- Furmanac may at any time:
- require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
- if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
- The Customer may cancel an Order, other than for Custom Made Goods, 5 Business Days after the date of the order in accordance with the provisions of condition 2. Any Goods cancelled after 5 Business Days of the date the Goods will be in manufacturing and will result in a charge to the Customer for a restocking fee equivalent to 40% of the total value of the Goods
- Price and payment
- The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Furmanac’s published price list in force as at the Delivery Date.
- Furmanac may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
- any factor beyond Furmanac’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
- any delay caused by any instructions of the Customer or failure of the Customer to give Furmanac adequate or accurate information or instructions.
- The price of the Goods:
- excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Furmanac at the prevailing rate, subject to the receipt of a valid VAT invoice; and
- excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
- Furmanac may invoice the Customer for the Goods and all other sums due under or in connection with the Contract on or at any time after Furmanac notifies the Customer that the Goods are ready for delivery.
- Unless alternative timescales for payment are agreed between the Customer and Furmanac in writing, the Customer shall pay Furmanac’s invoice in full and in cleared funds by the end of the month following the month the invoice was dated. Payment shall be made to the bank account nominated in writing by Furmanac. Time for payment is of the essence of the Contract.
- If the Customer fails to make any payment due to the Furmanac under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
- The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Furmanac may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Furmanac to the Customer.
- Without limiting its other rights or remedies, Furmanac may terminate the Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of being notified in writing by Furmanac to do so;
- the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
- the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer;
- an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Customer;
- the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer;
- a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days; or
- any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 9.1.2 to 9.1.8 (inclusive).
- Without limiting its other rights or remedies, Furmanac may suspend provision of the Goods under the Contract or any other contract between the Customer and Furmanac if the Customer becomes subject to any of the events listed in condition 1.1 to condition 9.1.9, or Furmanac reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
- Without limiting its other rights or remedies, Furmanac may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
- On termination of the Contract for any reason the Customer shall immediately pay to Furmanac all of Furmanac’s outstanding unpaid invoices and interest.
- Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
- Intellectual property licence
- Furmanac grants to the Customer a non-exclusive licence to display branding associated with the Goods at the Customer’s registered address or place of business. The licence shall commence on the Delivery Date and automatically terminate on the date that is 3 months following the Date.
- The Customer shall procure that all branding relating to the Goods be marked with a notice stating ‘© Copyright Furmanac Limited [YEAR]’.
- Nothing in the Contract shall constitute any representation or warranty that the exercise by the Customer of rights granted under this condition 10 will not infringe the intellectual property rights of any other person.
- The Customer shall indemnify Furmanac against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Furmanac arising out of or in connection with the Customer’s exercise of its rights granted under this condition 10.
- Furmanac may terminate the licence granted pursuant to condition 10.1 at any time by giving at least 7 days’ written notice to the Customer.
- Limitation of liability
Please read these provisions carefully
- Nothing in the Contract shall limit or exclude Furmanac’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
- any matter in respect of which it would be unlawful for the Furmanac to exclude or restrict liability.
- Subject to condition 1:
- Furmanac shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
- Furmanac’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 125% of the price paid for the Goods.
- Data Protection
- Force majeure
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 4 weeks the party not affected may terminate this Contract by giving 7 days written notice to the affected party.
- Assignment and other dealings.
- Furmanac may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Furmanac.
- The Customer undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers or clients of Furmanac, Goods or specifications except as permitted by condition 2.2.
- The Customer may disclose Furmanac’s confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Customer’s rights or carrying out its obligations under or in connection with the Contract. The Customer shall ensure that its employees, officers, representatives or advisers to whom it discloses Furmanac’s confidential information comply with this condition 2; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- The Customer shall not use Furmanac’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
- Entire agreement
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
- Variation No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their expressly authorised representatives).
- Waiver No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- 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 condition shall not affect the validity and enforceability of the rest of the Contract.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this condition, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
- A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in condition 7.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, on transmission.
- The provisions of this condition 14.7 shall not apply to the service of any proceedings or other documents in any legal action.
- Third party rights No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
- Governing law The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the English law.
- Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.