DEFINITIONS AND INTERPRETATION
1.1 In these Terms, the following definitions apply;
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Contract: the contract between EFG and the Customer for the sale and purchase of the Goods incorporating the Proposal and these Terms.
Customer: the person or firm to whom EFG wishes to provide the Goods as detailed in the Proposal.
EFG: EFG European Furniture Group Limited, a company registered in England and Wales with company number 00257489 and whose registered office is at Unit N2, Haydock Cross, Kilbuck Lane, Haydock, St Helens, Merseyside, WA11 9UZ.
Force Majeure Event: means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.
Goods: the goods (or any part of them) forming the subject of the Contract.
Intellectual Property Rights: means patents, copyrights and neighbouring and related rights, trade marks rights in designs, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses: charges, costs, damages, expenses, fees, liabilities, losses and proceedings.
Order: the Customer’s written purchase order for the Goods.
Promotional Materials: EFG’s catalogues, brochures, websites or such other applicable sales or
Proposal: EFG’s written proposal to provide the Goods to the Customer incorporating these Terms.
Specification: any specification for the Goods, including any related plans, images and other drawings.
Terms: the terms and conditions set out in this document.
1.2 In these Terms, the following rules of interpretation apply:
(a) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) A reference to writing or written includes emails.
1.3 In the event of any conflict between the provisions of the Proposal and these Terms, the provisions of the Proposal shall, save to the extent of any obvious error, take precedence to the extent of any conflict.
BASIS OF THE CONTRACT
2.1 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Save that EFG may revise the Proposal at any stage, the Proposal shall remain valid for a period of 30 days from the date specified on it. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Terms. The Customer is responsible for ensuring that the terms of the Proposal and the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 EFG may reject the Order at its absolute discretion and the Order shall only be deemed to be accepted at the earlier of when EFG commences any actions in furtherance of the supply of the Goods or issues a written acceptance of the Order. Once the Contract has been formed EFG shall not accept any cancellations.
2.4 Any samples, drawings, descriptive matter, or advertising produced by EFG and any descriptions, colours or illustrations contained in EFG’s promotional materials are produced for the sole purpose of giving an approximate idea of the Goods described in them and shall not form part of the Contract.
SUPPLY OF GOODS
3.1 The Goods are as described as modified or supplemented by any applicable Specification and may be subject to variations in colour, grain and texture where they are natural or have a natural appearing finish (including veneers). Thicknesses of the Goods may vary.
3.2 EFG reserves the right to amend the specification of the Goods and, where applicable, the Specification if required by any law or where it no materially adverse effect on the Goods.
DELIVERY AND INSTALLATION
4.1 Unless otherwise agreed, delivery of the Goods shall be:
(a) EXW (EFG’s address as first set out above) (Ex Works – Incoterms 2010) where the final destination for the Goods is on mainland Britain; or
(b) FCA (EFG’s address as first set out above) (Free-Carrier- Incoterms 2010) where the final destination of the Goods is outside mainland Britain; or
(c) deemed to have taken place on arrival of the Goods at the Site, where installation of the Goods at the Site (Installation) is required.
4.2 Without prejudice to clause 4.1, EFG (or, where appropriate, the instructed carrier) shall physically deliver the Goods to the location set out in the Proposal or such other location as the parties may agree (Site).
4.3 Standard delivery charges are based on mainland Britain and any dates quoted are approximate only and time for delivery is not of the essence. Any special requests for delivery may incur additional charges.
4.4 If the Customer fails to take delivery of the Goods where attempted to be made by EFG:
(a) EFG shall charge a fee of 9% of the corresponding price of the Goods comprising that delivery;
(b) delivery of the Goods shall be deemed to have been completed at 9.00 am on the next Business Day thereafter; and
(c) EFG shall store the Goods until delivery takes place, and charge the Customer at a rate of £20 per pallet (or part pallet) per week.
4.5 If the Customer has not taken delivery five Business Days after that on which EFG notified the Customer that the Goods were ready for delivery, EFG may resell or otherwise dispose of part or all of the Goods.
4.6 EFG may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. In Installing the Goods, the Customer agrees that it shall provide EFG with safe, free and unencumbered access to, movement around and egress from the Site and the relevant parts thereof where the Goods are to be Installed, stored and packed, for such periods as is required by EFG. Additional charges may be levied where it fails to comply with any of these requirements.
4.7 The Customer agrees and acknowledges that during the course of Installation and following its completion, EFG shall not be responsible for the cleaning of the Site, any damages resulting to the Goods or the Site, or damage to the Goods following delivery in accordance with clause 4.2(c).
QUALITY, INSPECTION AND ASSURANCE
5.1 The Customer shall be required to inspect the Goods immediately upon receipt. In the event that there are any damages or defects in the Goods or otherwise do not comply with clause 5.2, or an incorrect quantity of the Goods has been received, or anything other than the Goods are received, the Customer shall be required to sign for the Goods as such and notify EFG within three Business Days of receipt. Where no such notification is made by the Customer the Goods shall be deemed to have been accepted.
5.2 Save where EFG reasonably deems that the Customer has been at fault, if:
(a) the Customer gives notice in writing to EFG in accordance with clause 5.1;
(b) EFG is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by EFG) returns such Goods to EFG’s place of business at the Customer’s cost,
EFG shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full in addition to any reasonable return costs in accordance with clause 5.3(c).
5.3 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.
TITLE AND RISK
6.1 Title to the Goods shall not pass to the Customer EFG receiving payment in full for the Goods.
6.2 If before title to the Goods passes to the Customer and the Customer becomes subject to any of the events listed in clause 8.2 or fails to make any payment due to EFG in accordance with clause 7, then, without limiting any other right or remedy EFG may have EFG may at any time:
(a) require the Customer to deliver up all Goods; and
(b) 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.
PRICE AND PAYMENT
7.1 Unless otherwise agreed between the parties, the price of the Goods is exclusive of VAT and the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.2 Where the Customer has:
(a) placed an Order for the first time, has an expired credit account or is in breach of any of these Terms, EFG shall require pro forma payment for the Goods; or
(b) a credit account, the Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice,
to the bank account nominated in writing by EFG or (where acceptable to EFG) by cheque payable to EFG European Furniture Group Ltd. Time of payment is of the essence.
7.3 Where the Customer wishes to attain a credit account it shall be required to carry out a credit account application and agrees and acknowledges that EFG may carry out credit checks with third parties. EFG reserves the right to reject an application for a credit account at its absolute discretion and may grant such an account subject to any such terms as it sees fit.
7.4 If the Customer fails to make any payment due to EFG 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 Co-operative Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date.
7.5 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).
TERMINATION
8.1 If the Customer breaches any of the Terms or becomes subject to any of the events listed in clause 8.2, EFG may terminate the Contract with immediate effect by giving written notice to the Customer.
8.2 For the purposes of clause 8.1, the relevant events are:
(a) 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;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors, being wound up, having a receiver appointed to any of its assets or ceasing to carry on business, or any other analogous procedure in another relevant jurisdiction;
(c) the Customer takes any step or action in connection with the Customer being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business, or any other analogous procedure in another relevant jurisdiction;
(d) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(e) the Customer’s financial position deteriorates to such an extent that in EFG’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(f) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs.
8.3 On termination of the Contract for any reason the Customer shall immediately pay to EFG all of EFG’s outstanding unpaid invoices and interest.
8.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
LIMITATION OF LIABILITY
9.1 Nothing in these Terms shall limit or exclude EFG’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors, fraud or fraudulent misrepresentation or any other matter in respect of which it would be unlawful to exclude or restrict liability.
9.2 Subject to clause 9.1 and whether in contract, tort (including negligence), breach of statutory duty, or
otherwise, EFG shall under no circumstances whatever be liable to the Customer:
(a) for any loss of profit, loss of goodwill, loss of business, loss of anticipated saving, loss or corruption of data or information, or any indirect or consequential Loss that arises under or in connection with the Contract; and
(b) in respect of all other Losses that arises under or in connection with the Contract in excess of the total net price of the Goods paid by the Customer to EFG under the Contract.
NOTICES
12.1 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.
12.2 A notice or other communication shall be deemed to have been received:
(a) if delivered personally, when left at the address referred to in clause 12.1;
(b) 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; or
(c) 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, one Business Day after transmission.
12.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
GENERAL
11.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from a Force Majeure Event. If a Force Majeure Event prevents, hinders or delays the Customer’s performance of its obligation for a continuous period of more than thirty days, EFG may terminate the Contract immediately by giving written notice to the Customer.
11.2 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business and its products which the receiving party may obtain. The receiving party may only disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
11.3 EFG may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with (Transfer) all or any of its rights or obligations under the Contract. The Customer may not Transfer all or any of its rights or obligations under the Contract without prior written consent of EFG.
11.4 The Contract constitutes the entire agreement between the parties. The Supplier acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of EFG including, for the avoidance of doubt, the information included in the Literature which is not set out in the Contract.
11.5 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.6 A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.
11.7 None of EFG’s rights or remedies under these Terms is exclusive of any other right or remedy by these Terms or law.
11.8 A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.9 Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by EFG.
11.10 The Contract, and any dispute or claim arising out of or in connection with it shall be governed by, and construed in accordance with the law of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract.