In these terms and conditions the following words shall have the following meanings:
1.1 “the Buyer” means the person who accepts the Sellers written quotation for the sale of the Goods or whose written or verbal order for the Goods is accepted by the Seller;
1.2 “the Seller” means Daval Furniture Limited (Company No 1830046);
1.3 “the Contract” means any agreement between the Buyer and Seller for the purchase of Goods;
1.4 “the Goods” means the Goods including any instalments of the Goods or any parts for them which the Seller is to supply in accordance with these Terms;
1.5 “Carrier” means any person or company who the Seller engages for the purposes of delivering the Goods to the Buyer;
1.6 “Delivery Date” means the date specified by the Seller when the Goods are to be delivered;
1.7 “Terms” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller.
1.8 ”Acknowledgement of Order” means a document sent to the Buyer confirming receipt of their order and setting out the Goods requested.
2. Formation of Contract
2.1 No Contract shall be formed until the Seller has sent its Acknowledgement of Order to the Buyer.
2.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the Acknowledgement of order. In the event that the Seller does not receive notice from the Buyer of any errors in the Acknowledgement of Order prior to or on the amendment date as shown on Acknowledgment, the Buyer will be deemed to have confirmed the accuracy of such Acknowledgement of Order and the Seller shall be entitled to rely on its accuracy.
2.3 These Terms shall apply to all Contracts between the Buyer and the Seller to the exclusion of all other terms and conditions including any terms/ or conditions of the Buyer. Any variation of these Terms (including any special terms and conditions agreed between the Buyer and Seller) shall not apply unless agreed in writing.
2.4 No particulars contained in any advertising material, catalogues or other publications supplied by the Seller, nor any verbal representation by an employee of the Seller shall form part of the Contract nor shall they be treated as forming any representation on the part of the Seller.
2.5 Save in respect of the rectification of errors in accordance with clause 2.2, The Seller cannot accept changes or cancellation of order after the Acknowledgement of Order has been issued by the Seller unless agreed in writing by the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
3. Price and Payment
3.1 The price of the Goods shall be the Sellers quoted price or where no price has been quoted the Seller’s current trade price at the acceptance of the order and shall include where applicable the order discount as set out on the order confirmation.
3.2 If no price has been quoted ( or a quoted price is no longer available), the price listed in the Sellers published price list current at the date of acceptance of the order by the Seller shall apply.
3.3 All prices are exclusive of VAT.
3.4 Payment for the Goods shall be made within 30 days from the date of the invoice. The Seller shall be entitled to recover the price of the Goods; not withstanding that delivery of all the Goods under the Contract may not have taken place and the property in the Goods has not passed to the Buyer.
3.5 The time of payment of the price shall be of the essence.
3.6 If payment of any invoice is received by the Seller within 7 days of the date of the invoice, an early settlement discount may apply to the price; such discount is at the Seller’s absolute discretion.
3.7 Interest on any overdue invoices shall be calculated from the date on when payment became due until payment is received at the rate of 4% above the Bank of England’s base rate from time to time in force.
3.8 If the Buyer fails to make payment when due then without prejudice to any of the Sellers other rights the Seller may suspend or cancel delivery of any Goods due to the Buyer and/or appropriate any payment by the Buyer to such of the Goods ( or Goods supplied under any Contract) as the Seller may in its absolute discretion think fit.
4.1 Delivery shall take place at the Buyer’s premises as indicated in the Buyer’s order or at such other location as agreed in writing between the parties.
4.2 Any days quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the contract unless previously agreed by the Seller in writing.
4.3 The Goods may be delivered by the Seller in advance of the quoted Delivery Date on giving reasonable notice to the Buyer.
4.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Seller to deliver one or more of the instalments in accordance with these Terms or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
4.5 If the Seller fails to deliver the Goods or any instalment for any reason other than any cause beyond the Sellers reasonable control or the Buyers fault the Seller shall not be liable for any direct or indirect loss, damage or expense (including loss of profits and liability to third parties) suffered or incurred by the Buyer as a consequence of any delay in delivery.
4.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery ( otherwise than by reason of any cause beyond the Buyer’s reasonable control or by the reason of the Sellers fault) then, without limiting any other right or remedy available to the Seller the Seller may:-
4.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
4.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price of the Contract.
5.1 Where Goods are to be supplied to the Buyer in accordance with the Buyers specifications, the Buyer shall provide such specifications to the Seller within the time specified by the Seller to enable the Seller to deliver the Goods at the Delivery Date. All such orders shall be subject to individual quotations by the Seller. The Seller shall have no liability for any defect in the Goods where such defect is the result of inaccurate, inadequate or defection instructions from the Buyer or where no such specifications are provided.
5.2 The Seller reserves the right to make any changes in the specification of the Goods, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or fitness for purpose.
6. Property and Risk
6.1 Risk of damage to or loss of Goods shall pass to the Buyer:
6.1.1 in the case of Goods to be delivered at the Buyer’s premises, at the time the Goods are delivered.
6.1.2 in the case of Goods that are delivered otherwise than at the Buyer’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
6.2 Notwithstanding delivery and the passing ofrisk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full for the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
6.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer may resell or use the Goods in the ordinary course of its business.
6.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
6.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) immediately become due and payable.
7.1 Subject to the following provisions and the requirements for bringing claims for defects at the time of delivery in clauses 81 and 8.2, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 60 months from the Delivery Date. If the Seller rectifies any defects in any Goods or replaces any Goods under this warranty, the repaired Goods or replacement Goods will only be guaranteed for the unexpired term of this warranty
7.2 If the defect in the Goods cannot be rectified the Seller will replace the defective Goods with goods of a similar nature. The Seller cannot guarantee that the replacement goods will be in all respects identical to the defective Goods.
7.3 The above warranty is given by the Seller subject to the following conditions:-
7.3.1 The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
7.3.2 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
7.3.3 The Seller shall be under no liability under the above warranty where the Buyer has failed to notify the Seller of any error or omission contained within the Acknowledgement of Order;
7.3.4 The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
7.4 Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contracts Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.5 The Seller will not be liable for any variation in the colour of the Goods or for any change of colour in the Goods after the Delivery Date and no warranty is given that any Goods supplied pursuant to any contract will match each other.
8. Claims for Defects, Damage, Loss or Non-Delivery
8.1 A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification at the time of delivery or damage in transit or shortage of delivery or loss of Goods during delivery shall not be grounds for repudiation of the contract or where the delivery is by way of instalments, from cancelling the remaining instalments.
8.2 Any defect in the quality of conditions of the Goods or their failure to correspond with the specification at the time of delivery, damage, loss or non-delivery shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 48 hours from the Delivery Date or (where the defect or failure was not apparent on reasonable inspection) within 14 days after discovery of the defect or failure provided that no claim for any defect or failure under this clause 8.2 shall be admitted after a period of 1 month from the Delivery Date. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and
8.3 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may replace the Goods ( or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), provided that the Buyer permits the Seller full inspection of any alleged defects in the Goods and that all materials used in both the external structure and the internal footments of Goods are supplied by the Seller.
8.4 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may replace the Goods ( or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), provided that the Buyer permits the Seller full inspection of any alleged defects in the Goods and that all materials used in both the external structure and the internal footments of Goods are supplied by the Seller.
8.5 Except in respect of death or personal injury caused by the Seller’s negligence (or liability for defective products under the Consumer Protection Act 1987), the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.
9. Force Majeure
9.1 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:-
9.1.1 Act of God, explosion, flood, tempest, fire or accident;
9.1.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.1.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
9.1.4 Import or export regulations or embargoes;
9.1.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
9.1.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.1.7 Power failure or breakdown in machinery.
10. Intellectual Property
10.1 Photographs, illustrations, specifications and publicity material are intended to give a general idea of the goods portrayed. They do not constitute a description of the goods nor shall they be taken to be representations made by the Seller. Recommendations as to maintenance of fabrics and materials are given in good faith but the Seller shall not be liable for any damages resulting from their observance.
10.2 The photograph, illustrations, publicity material, specifications and designs of the Goods (including copyright, design right and other intellectual property in them) shall as between the parties be the property of the Seller. Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for manufacture, process, assembling or supply of the Goods shall not infringe the rights of any third party and the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Sellers use of the Buyers specification.
11. Insolvency or Default of the Buyer
11.1 If the Buyer makes default in or commits a breach of the Contract or of any other of his obligations under the Contract or if any distress or execution shall be levied upon the Buyer’s property or assets or if the Buyer shall make or offer to make a composition with his creditor or commit any act of bankruptcy or if any petition in bankruptcy shall be presented against the Buyer or if the Buyer is a limited company and becomes subject to an administration order or goes into liquidation ( otherwise than for the purpose of amalgamation or reconstruction) and any resolution or petition to wind up such company’s business shall be passed or presented or if a receiver, administrator, administrative receiver or manager shall be appointed over the whole or part of the Buyer’s undertaking assets or property the Seller shall have the right forthwith without limiting any other right or remedy available to the Seller, to cancel the Contract or suspend any further delivery under the Contract, and if the Goods have been delivered but not paid for the price shall become immediately due notwithstanding any previous agreement or arrangement to the contrary. Where the Goods have been delivered but not paid for, the Seller has the right to enter the Buyers premises or his successors or representatives premises and remove any Goods belonging to the Seller.
11.2 All sums outstanding in respect of the Goods shall become immediately payable if:-
11.2.1 The Buyer fails to make payment for the Goods in accordance with these Terms;
11.2.2 The Buyer commits any other breach of these Terms.
12. Law and Jurisdiction
12.1 This contract is subject to the law of England and Wales and is subject to the exclusive jurisdiction of England and Wales.
13. Set-off and Counterclaim
13.1 The Buyer shall not be entitled to withhold payment of any invoice by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever.
14.1 Any provisions of the Terms which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision hereof.
15.1 Any notice required to be served pursuant to these Terms shall be served on the Seller at Daval House, Spa Fields Industrial Estate, New Street, Slaithwaite, Huddersfield HD7 5BB or such other address as the Seller may from time to time notify to the Buyer and on the Buyer at the address notified to the Seller by first class registered post or by facsimile. Any such notice shall be deemed to have been served two days after the date of despatch and in the case of despatch by facsimile when the addressee’s fax machine acknowledges receipt.
16.1 No waiver or forbearance by the Seller, whether express or implied, in enforcing any of its rights hereunder shall prejudice its right to do so in the future.
17.1 The Buyer may not assign, subcontract or in any way dispose of its rights or obligations under the Contract without the prior written consent of the Seller.