Contract Terms

CONDITIONS FOR THE SUPPLY OF GOODS (“Conditions”)

PARTIES

Supplier:

DUKE BROTHERS LIMITED trading as Yark Beds

Supplier's address:

Duke Brothers Ltd, Windsor House,
262 Windsor Street, Birmingham B7 4DX



1. Interpretation

1.1 Definitions

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Customer: the company, partnership or other corporate entity who purchases the Goods from the Supplier and whose details are set out in the quotation and Order Confirmation issued by the Supplier.

Delivery Date: the date specified for delivery of an Order as set out in the Order Confirmation issued by the Supplier.

Delivery Location: the address for delivery of the Goods, as set out in the Order Confirmation issued by the Supplier .

Force Majeure Event: events, circumstances or causes beyond a party's reasonable control.

Goods: some or all of the following items: beds, bedding, mattresses or mattress protectors, as specifically set out in the Order Confirmation issued by the Supplier.

Order: the Customer’s order for the Goods as set out in the Order Confirmation.

Order Confirmation: has the meaning given in clause 2.1.

Price: the price for the Goods, as set out in the Order Confirmation issued by the Supplier.

Specification: any specification for the Goods issued by the Supplier.

VAT: value added tax or any equivalent tax chargeable in the UK.

2. Orders

2.1 The parties shall agree orders via email. Any quotation by the Supplier shall not constitute an offer for sale or representation that the Goods are for sale. A request by the Customer to purchase the Goods on the terms of the quotation shall be deemed to be an offer by the Customer to purchase the Goods on the terms of these Conditions. The offer shall only be deemed to be accepted when the Supplier issues a written acceptance of the offer in the form of an invoice at which point the offer shall become an Order Confirmation and a contract shall come into effect on the terms of these Conditions.

2.2 The Customer is responsible for ensuring that any request for a quotation and any subsequent Order Confirmation are complete and accurate. The request by the Customer to purchase the Goods shall give the Supplier all necessary information that the Supplier reasonably requires to fulfil each Order.

3. The Goods

3.1 Without prejudice to clause 3.2, samples may be provided for the sole purpose of enabling the Customer to consider the typical size and construction of the Goods. The Customer acknowledges and accepts that the fabric, colour, softness and/or comfort of the Goods may vary as between orders and/or may not correspond to any sample provided.

3.2 Any samples, drawings or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are indicative only and not intended to be determinative of any of the nature of the Goods. They shall not form part of the contract between the Supplier and the Customer or have any contractual force. For the avoidance of doubt this clause 3.2 excludes the terms implied by section 15 of the Sale of Goods Act 1979.

4. Delivery

4.1 The Supplier shall ensure that:

4.1.1 each delivery of Goods is accompanied by a delivery note (which, for the avoidance of doubt, may be sent by email) that shows the Order number, the type and quantity of Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the relevant Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

4.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Customer’s expense.

4.2 The Supplier shall endeavour to deliver Goods to the Delivery Location in the number of instalments and on the relevant Delivery Date(s) agreed with the Customer. Where Orders are delivered in instalments the Supplier may invoice, and be entitled to payment for, each delivery separately. The Customer may not cancel an instalment because of any delay in delivery or defect in another instalment.

4.3 If the Customer wishes to delay the delivery of an Order it shall submit a request to the Supplier in writing no less than 12 weeks prior to the Delivery Date. The Supplier shall respond to the Customer to acknowledge whether such request can be fulfilled. If the Customer requests a delay to the Delivery Date less than 12 weeks before the Delivery Date the Supplier shall use reasonable endeavours to fulfil such request however the Customer acknowledges that:

4.3.1 it may not be possible to delay delivery; or

4.3.2 in extending the Delivery Date the Supplier may incur additional storage, insurance and transport costs which it may charge to the Customer.

4.4 Delivery is completed upon the arrival of the Goods at the Delivery Location. The Customer shall be responsible for unloading of the Goods at the Delivery Location.

4.5 Following arrival at the Delivery Location the Customer shall have 90 minutes to unload the Goods. If unloading of the Goods exceeds this time, and as a result of this the Supplier incurs charges or costs for waiting at the Delivery Location, the Supplier may recover these charges or costs from the Customer.

4.6 Delivery Dates are approximate only, and the time of delivery is not of the essence. The Supplier 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 the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.7 The Supplier shall have no liability for any failure or delay in delivering an Order where such failure or delay is caused by the Customer’s failure to pay the Price (or any part of it) in accordance with clause 8. For the avoidance of doubt, where full payment of the Price is due before delivery, the Supplier shall be entitled to withhold or delay delivery of any Order until payment of the Price is received in full.

5. Quality and fitness for purpose

5.1 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are to the fullest extent possible permitted by law. In place of the obligations and remedies implied by sections 13 to 15 of the Sale of Goods Act 1979 the Supplier warrants that, as at the Delivery Date, the Goods shall:

5.1.1 conform in all material respects with their description and (if applicable) the Specification;

5.1.2 be free from material defects in design, material and workmanship;

5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

5.1.4 be fit for any purpose held out in writing by the Supplier.

5.2 The Supplier offers the following remedies in the event of the Goods fail to meet the warranty set out in clause 5.1 for the period set out below:

Goods

Remedy Period

Defect

Remedy

Bedding, mattress protectors, mattresses or bed frames

12 months

Manufacturing

Subject to clauses 5.3 and 5.4, the Supplier may offer a repair or a replacement.



5.3 Subject to clause 5.4, if:

5.3.1 the Customer gives notice in writing to the Supplier during the period referred to above, within 30 Business Days of discovery that some or all of the Goods do not comply with the warranties set out in clause 5.1;

5.3.2 the Supplier is given a reasonable opportunity of examining such Goods, or the Customer provides such photographic or video evidence of the defect as the Supplier requests; and

5.3.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost, the Supplier shall, at its option, repair or replace any Goods that are found to be defective.

5.4 The Supplier shall not be liable for the Goods' failure to comply with the warranties set out in clause 5.1 if:

5.4.1 the Customer makes any further use of such Goods after giving notice of defects in accordance with clause 5.3;

5.4.2 the defect arises because the Customer failed to follow the Supplier'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;

5.4.3 the defect arises as a result of the Supplier following any drawing or design supplied by the Customer;

5.4.4 the Customer alters or repairs such Goods without the written consent of the Supplier;

5.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions. For the avoidance of doubt, mould, dirt and unpleasant smells shall be evidence of negligence;

5.4.6 the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;

5.4.7 where the Goods are mattresses, the defect arises through failure to adhere to the National Bed Federation’s recommendation of a maximum of 75mm between slats; or

5.4.8 where the issue is one of preference and not of quality.

5.5 The Supplier's only liability to the Customer if the Goods fail to comply with the warranties set out in clause 5.1 is as set out in this clause 5.

5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6. Title and risk

6.1 Risk in Goods shall pass to the Customer on arrival of the Goods at the Delivery Location.

6.2 Title to Goods shall pass to the Customer:

6.2.1 where the Price is payable as set out in clause 8.2, on arrival of the Goods at the Delivery Location; or

6.2.2 where the Price is payable as set out in clause 8.3, when the Seller has received payment for the Price in full and cleared funds.

6.3 If title to the Goods does not pass to the Customer on delivery, then until title to the Goods passes to the Customer, the Customer shall:

6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;

6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and

6.3.4 give the Supplier such information as the Supplier may reasonably require from time to time relating to:

6.3.4.1 the Goods; and

6.3.4.2 the ongoing financial position of the Customer.

6.4 The Supplier may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 6.1, and to recover any Goods in which property has not passed to the Customer.

6.5 The Supplier may at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer shall immediately pay the Price to the Seller.

7. Product recall

7.1 If the Supplier is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it shall immediately notify the Customer in writing enclosing a copy of the Recall Notice.

7.2 Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of the Supplier and only then in strict compliance with the Supplier's instructions as to the process of implementing the withdrawal.

8. Price and payment

8.1 The Customer shall pay for Goods in accordance with this clause 8.

8.2 The Price shall be payable in the following instalments:

8.2.1 50% of the Price shall become payable following the Supplier issuing an Order Confirmation. Subject to clause 8.9, this payment shall be a non-refundable deposit;

8.2.2 25% of the Price shall become payable following notification in writing to the Customer by the Supplier that the Order has entered into production; and

8.2.3 25% of thretion, permie Price shall be payable prior to the Delivery Date. Where an Order is to be delivered in instalments this sum shall become payable prior to delivery of the first instalment. Subject to clause 8.10, following payment each instalment shall be non-refundable.

8.3 The Supplier may, at its disct the Customer to pay for all, or part, of the Price following delivery of the Goods. Where this is the case the payment terms for the Price shall be set put in the Order Confirmation. For the avoidance of doubt, if nothing is specified in the Order Confirmation regarding payment of the Price, the payment terms shall be as set out in clause 8.2.

8.4 The Price includes the costs of packaging, insurance and transport of the Goods.

8.5 The Price excludes amounts in respect of VAT, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.

8.6 The Supplier may invoice the Customer for each instalment of the Price plus VAT at the prevailing rate (if applicable):

8.6.1 on or at any time after it confirms it has reached the relevant stage as set out in clause 8.2; or

8.6.2 as set out in the Order Confirmation.
The Supplier shall ensure that the invoice includes the Customer's purchase order number, the Supplier's VAT registration number, and any supporting documentation that the Customer may reasonably require.

8.7 The Customer shall pay invoices in full in cleared funds within 20 Business Days of the invoice date, or in accordance with clause 8.2, whichever is sooner. Payment shall be made to the bank account nominated in writing by the Supplier.

8.8 The Customer acknowledges and agrees that where the Price is paid as set out in clause 8.2, it shall include a 50% deposit which the Supplier requires to secure the Goods from its supply chain and which, subject to clause 8.11, the Customer accepts is non-refundable. No Order shall be processed by the Supplier until the deposit (if any) has been paid.

8.9 The Customer recognises that due to the lead time between receipt of the Order Confirmation and the Delivery Date(s) and the fluctuating cost of raw materials, labour and other costs, the Supplier may, at any time up to four weeks before the Delivery Date(s), by giving written notice to the Customer, seek to pass on to the Customer via an increase to the Price any increase to the cost of sourcing, supplying and delivering the Order incurred by the Supplier subject to the following:

8.9.1 the Supplier shall only seek to increase the cost to the Customer where the cost to the Supplier in relation to any Order has increased by 10 (ten)% or more; and

8.9.2 the Supplier shall not seek to increase the cost to the Customer where such increase results from factors within the Supplier’s control; and

8.9.3 taxes, duties, increases in labour, materials, logistics, and warehousing or other manufacturing costs are all outside the Supplier’s control for the purposes of clause 8.9.2.

8.10 The Customer shall respond to the Supplier’s written notice given pursuant to clause 8.9 within 5 (five) Business Days of receipt, otherwise the proposed increase in costs shall be deemed to be accepted by the Customer.

8.11 If the parties are unable to agree a revised Price, either party may cancel the Order and the Supplier shall refund any sums already paid by the Customer in relation to such Order.

8.12 If the Customer fails to make any payment due to the Supplier under these Conditions by the due date for payment, then, without limiting the Supplier's remedies under clause 10:

8.12.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

8.12.2 the Supplier may suspend production and all further deliveries of any Goods until payment has been made in full.

8.13 All amounts due under these Conditions from the Customer to the Supplier shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Supplier to the Customer.

9. Limitation of liability

9.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:

9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

9.1.2 fraud or fraudulent misrepresentation; or

9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979.

9.2 Subject to clause 9.1:

9.2.1 the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any loss of profit, loss of business, loss of opportunity or any indirect or consequential loss arising under or in connection with these Conditions or any Order; and

9.2.2 the Supplier's total liability to the Customer for all other losses arising under or in connection with these Conditions or any Order, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the value of the Order, or where an Order was delivered in instalments, the value of the instalment.

10. Termination

10.1 Without limiting its other rights or remedies, either party may terminate these Conditions with immediate effect by giving written notice to the other party if:

10.1.1 the other party commits a material breach of any term of these Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

10.1.2 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

10.1.3 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to these Conditions is in jeopardy.

10.2 Without limiting its other rights or remedies, the Supplier may terminate these Conditions with immediate effect:

10.2.1 under clause 8.9; or

10.2.2 by giving written notice to the Customer if the Customer fails to pay any amount due under these Conditions the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.

10.3 Termination of these Conditions 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 these Conditions which existed at or before the date of termination.

10.4 Any provision of these Conditions 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.

11. Force Majeure

11.1 Neither party shall be in breach of these Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Conditions if such delay or failure result from a Force Majeure Event.

11.2 The Customer cannot claim relief if the Force Majeure Event is an event which would affect its ability to meet a payment obligation under these Conditions.

12. Confidentiality and Restrictions

12.1.1 Each party undertakes that it shall not at any time during the term of these Conditions, and for a period of two years after termination of these Conditions , disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party except as permitted by clause 12.1.2.

12.1.2 Each party may disclose the other party's confidential information:

12.1.2.1 to its employees, officers, representatives, contractors, sub-contractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with these Conditions. Each party shall ensure that its employees, officers, representatives, contractors, sub-contractors or advisers to whom it discloses the other party's confidential information comply with this clause 12; and

12.1.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.2 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Conditions.

12.3 The Customer shall not, during the term of these Conditions, or for a period of 12 months from the Delivery Date, place an order for products that are the same as, or similar to, the Goods with any supplier of the Supplier.

13. General

13.1 These Conditions and any Order Confirmation constitutes the entire agreement between the parties. No variation of these Conditions or any Order Confirmation shall be effective unless it is in writing and signed by the parties (or their authorised representatives). No additional or different terms stated in, endorsed upon, delivered with or contained in, any bid/tender or quotation, acknowledgment or acceptance of an invoice, specification, or other form utilised by Supplier (or as otherwise communicated by the Supplier) or Customer shall become part of this Contract or otherwise apply to its performance and this Contract shall take precedence over any and all of the same.

13.2 No failure or delay to exercise, or partial exercise of, any right or remedy provided under these Conditions or by law by either party 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.

13.3 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable and such modification shall not affect the validity and enforceability of the rest of these Conditions. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.

13.4 Any notice given to a party under or in connection with these Conditions shall be delivered by hand or pre-paid first class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case). Any notice shall be deemed to have been received i) if delivered by hand, at the time that the notice is left at the proper address; and ii) if sent by pre-paid first class post or other next Business Day delivery service, at 09:00am on the second Business Day after posting. This clause 13.4 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

13.5 No one other than the Supplier and the Customer shall have any right to enforce any of its terms.

13.6 These Conditions 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 law of England and Wales. 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 these Conditions or its subject matter or formation.