Oneseat Limited t/a Frovi - Terms and Conditions January 2019
The following conditions of sale (“Conditions”) apply to the sale or loan of Goods supplied by Oneseat Ltd t/as Frövi, hereinafter called “The Company”. These Conditions supersede any previous conditions of sale issued by the Company to you, (“the Buyer”). No alteration, addition or variation to these Conditions (whether in part or the whole) shall be applicable unless agreed in writing by a director of the Company. The word “Goods” shall include any product or service supplied by the Company. “Contract” shall mean the contract between the Company and the Buyer for the sale and purchase of Goods in accordance with these Conditions and the Contract constitutes the entire agreement between the Company and the Buyer 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.
2. BUYER’S ORDER
a) An “Order” shall mean the Buyer’s order for the Goods, whether oral or in writing as set out in the Buyer's purchase order form or in the Buyer's written acceptance of the Company's quotation or “Specification” shall mean any specification for the Goods, including any related plans and drawings, that is agreed by the Buyer and the Company.
b) These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
c) The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate and must notify the Company immediately of any discrepancies in the Company’s written acceptance of the Order.
d) The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
e) Any samples, drawings or advertising produced by the Company and any descriptions or illustrations contained in the Company'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.
f) The Company will not accept the cancellation of any Order except at its sole Where cancellations are accepted the Buyer will be charged for any materials purchased specifically to complete the order and for any work carried out on the order and for any supplementary work and/or materials necessary to convert the order into Goods acceptable to an alternative customer. For the avoidance of doubt, where the Goods to be supplied are products which are bespoke or made to order, the Company will not accept the cancellation of the Order or the return of any Goods.
g) Defects in quality and/or discrepancy of dimensions in any delivery shall not be grounds for cancellation of the remainder of the Order or Contract, which are of satisfactory quality and fit for the purpose
h) The Company may at its sole discretion accept the return of Goods within 10 days of delivery provided that all returned Goods are in perfect, re- saleable condition and are returned in their original packaging. All returned Goods are subject to a 20% restocking charge of the Nett value of the Goods. Original carriage charges are non-refundable. On the Company’s receipt and acceptance of Goods, the Company will arrange a credit to be sent to the Buyer. If the Buyer requires the returned Goods to be collected, these will be subject to a separate collection charge (by quotation).
3. LOANED GOODS
a) The Company may at its sole discretion provide a temporary loan of furniture prior to the delivery of the Goods which the Buyer has ordered pursuant to a Contract (“Loaned Goods”). The Loaned Goods shall at all times remain the property of the Company and the Buyer shall have no right, title or interest in or to the Loaned Goods (save the right to possession and use of the Loaned Goods subject to these Conditions).
b) The risk of loss, theft, damage or destruction of the Loaned Goods shall pass to the Buyer on delivery and the Loaned Goods shall remain at the Buyer’s risk until the Loaned Goods have been collected by or redelivered to the Company. The Buyer shall inform the Company immediately in the event of any loss, accident or damage to the Loaned Goods. The Buyer shall indemnify the Company for any loss, damage or destruction of the Loaned Goods howsoever caused while the Loaned Goods are at the Buyer’s risk.
c) The Buyer shall take good care of the Loaned Goods and shall not do or permit to be done any act of thing which will or may jeopardise the right, title and/or interest of the Company in the Loaned Goods.
d) The Company may terminate the loan to the Buyer of the Loaned Goods on notice. Upon termination of the loan of the Loaned Goods, the Company may immediately retake possession of the Loaned Goods and for this purpose may enter the premises at which the Loaned Goods are located.
Goods may be installed, unwrapped and laid out to the Buyer’s specification within the Buyer’s premises. An extra charge is levied for this service and quotations are supplied by the Company on request
a) QUOTATIONS. Prices quoted will be valid for 1 calendar month from the date of the quotation unless otherwise specified. Goods dispatched and/or services rendered thereafter may be subject to alteration in the price on the quotation.
b) Charges for Goods supplied shall be paid in full before delivery and charges for services rendered shall be paid in full on completion, unless otherwise agreed by the Company in writing.
c) The price of the Goods:
(i) excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(ii) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
d) CREDIT ACCOUNTS. We reserve the right to carry out all necessary credit checks into the credit worthiness of the Buyer prior to opening a credit account. Where the Buyer has an account with the Company, payment for Goods and/or services supplied by the Company shall be made not later than 30 days following the date of invoice unless otherwise agreed in writing. If payment is not received by the above date, the Company shall be entitled to charge interest on the sum outstanding at the rate of 3% per month or part thereof and suspend any further orders or performance of services to the Buyer. The Company may close the Buyer’s account and cease to provide credit at any time at its own discretion without giving a reason for doing so.
e) The Company will automatically close a credit account if it remains dormant for a period of more than 12 months.
a) The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after the Company notifies the Buyer that the Goods are ready. Any Delivery Location outside the UK must be agreed with the Company prior to placing an Order.
b) Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
c) Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by force majeure or the Buyer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
d) If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available,less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by force majeure or the Buyer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
e) If the Buyer fails to accept delivery of the Goods within three business days of the Company notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by force majeure or the Company's failure to comply with its obligations under the Contract:
(i) 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 the Company notified the Buyer that the Goods were ready; and
(ii) the Company shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
f) If ten business days after the day on which the Company notified the Buyer that the Goods were ready for delivery the Buyer has not accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods.
g) If the Company delivers up to and including 5% more or less than the quantity of Goods ordered the Buyer may not reject them.
h) Claims for damage in transit or storage of an order must be specifically noted on the delivery receipt at the time of delivery. If any damage/loss or suspicion of damage/loss is noticed it must be noted as this will then become the prima facie evidence that the Goods were damaged in transit. Following this, notification must be made in writing within 1 working day of receipt of Goods, to both the carrier and the Company, followed by a complete claim in writing to the carrier and to the Company within 3 working days of receipt of the Goods.
i) The Buyer is responsible for unloading the delivery vehicle.
6. LEGAL OWNERSHIP & RISK OF GOODS
a) The property rights vested in the Goods shall only pass to the Buyer, notwithstanding physical delivery, when payment for them is made in full by the Buyer as provided in clause 4 above. Until such time as payment in full is made to the Company in accordance with these Conditions and title to the Goods has passed to the Buyer, the Buyer shall hold the Goods as trustee, but not as agent, for the Company and shall ensure that the Goods shall be stored separately from any other property of the Buyer or from any property belonging to a third party and held by the Buyer and shall be clearly identifiable as the property of the Company.
At any time prior to title to the Goods passing from the Company in accordance with these Conditions, the Company shall be entitled on demand to recover possession of the Goods or any of them (without prejudice to any other rights or remedies of the Company) and, for this purpose, shall be entitled to enter upon the Buyer’s premises (or any other premises where the Goods are stored) during normal business hours for the purpose of removing such Goods and to remove such Goods from the premises.
These Conditions constitute an authority for any third party authorised by the Company to exercise the Company’s rights and remedies hereunder. The Buyer shall only be at liberty to re-sell the Goods purchased from the Company prior to the passing of title on the understanding that if it does re- sell the Goods then it will hold on trust for the Company monies to the value necessary to discharge payment in full to the Company.
b) Notwithstanding the retention of title described in clause 6(a) all risk passes to the Buyer at time of delivery.
7. SPECIFICATION OF GOODS
a) The Company reserves the right without notice and without affecting the validity of these Conditions to make such changes in fabric, dimensions and design as it thinks reasonable and desirable.
b) Illustrations, descriptions and weights are to be taken as a general guide only and are not binding in detail.
c) It is the responsibility of the Buyer to examine the Goods for defects in materials and/or workmanship which would indicate the likelihood of the Goods causing danger or damage.
The Company reserves the right to subcontract the fulfilment of the order, or any of its other obligations under these Conditions, including any installation or any part thereof.
9. INFORMATION, ADVICE AND OPINION
The Buyer is responsible to ascertain the suitability of the Goods for the use intended and any advice given to the Buyer on the suitability of the Goods sold is based on the information provided by the Buyer prior to or at the time the Company accepts the Buyer’s Order.
a) All FRÖVI products carry a five-year structural warranty. The Company warrants that for a period of 5 years from the date of delivery, the Goods shall:
(i) conform in all material respects with their description and any applicable
(ii) be free from material defects in design, material and workmanship (subject to any defects in materials specified by the Buyer such as fabrics, laminates, and veneers which are not manufactured by the Company being subject to the original manufacturer’s warranty conditions); and
(iii) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
b) Subject to clause 10(c) below, if:
(i) the Buyer gives notice in writing to the Company 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 clause 10(a) above;
(ii) the Company is given a reasonable opportunity of examining such Goods; and
(iii) the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company’s cost or makes the Goods available for collection within England, Wales or Scotland, the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. The Company shall, in its sole discretion, have the option to charge for any delivery costs incurred following any repair or replacement of the Goods.
c) The Company shall not be liable for the Goods' failure to comply with the warranty set out in clause 10(a) in any of the following events:
(i) the Buyer makes any further use of such Goods after giving notice in accordance with clause 10(b);
(ii) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, use and maintenance of the Goods or (if there are none) good practice regarding the same;
(iii) the defect arises as a result of the Company following any drawing, design or Specification supplied by the Buyer;
(iv) the Buyer alters or repairs such Goods without the written consent of the Company;
(v) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(vi) 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.
d) Except as provided in this clause 10, the Company shall have no liability
to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 10(a).
e) For the avoidance of doubt, the warranty granted by the Company in this clause 10 shall be enforceable by a third party who has purchased the Goods from someone other than the Company as if they were the Buyer.
a) All upholstery foams used by the Company are ‘CMHR’ (Combustion Modified High Resilient). All fabrics recommended by the Company conform to BS EN 1021:1 & 2. They also conform to CRIB 5 Medium Hazard, BS 7176, unless otherwise specified. All furniture frames are tested by the Company to ensure that they withstand the heavy demands of the contract furniture market.
b) The Company cannot be held liable in whatsoever manner if the Buyer independently specifies a fabric of its choice which does not comply with clause 11(a) above. It is not the duty of the Company to automatically bring this lack of compliance to the Buyer’s notice.
12. INTELLECTUAL PROPERTY
FRÖVI and Oneseat are registered trademarks. In this clause, “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
a) The Goods are supplied to the Buyer on condition that the Buyer will not copy, cause, permit, allow or assist any copying (whether in part or whole) of the Goods supplied without the express permission in writing from the Company. The Company will not hesitate to take all necessary action to protect its Intellectual Property Rights in respect of the Goods and no licence is granted to the Buyer directly or indirectly under the Intellectual Property Rights held, made, obtained or licensable by the Company now or in the future.
b) The Buyer shall indemnify the Company against all damages, costs, penalties and expenses to which the Company shall become liable as a result of work done in accordance with the Buyer’s specification which involves the infringement of any third party’s Intellectual Property Rights.
13. TAXES AND LEVIES
All orders are subject to payment by the Buyer for any taxes or levies imposed by any Government or Authority applicable at the time and place of delivery. Such charges shall be paid in addition to the Nett amount of the Company’s invoice and the Company reserves the right to hold delivery until such charges are paid. This provision includes VAT applicable in the UK.
14. LIMITATION OF LIABILITY
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 14.
a) The Company does not exclude its liability:
(i) for death or personal injury caused by its negligence, or
(ii) for breach of the terms implied by s 12 of the Sale of Goods Act 1979 and by s 2 of the Supply of Goods and Services Act 1982,
(iii) for fraud or fraudulent misrepresentation.
b) Subject to clause 14(a), the Company shall under no circumstances whatsoever be liable to the Buyer, 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.
c) Subject to clause 14(a), the Company's total liability to the Buyer 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 100% of the price of the Goods.
a) Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Buyer if:
(i) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of the Buyer being notified in writing to do so;
(ii) the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(iii) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(iv) the Buyer's financial position deteriorates to such an extent that in the Company's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
b) Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in clause 15(a) (i) to (iv), or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
c) Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
d) On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest.
e) 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.
f) 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.
16. FORCE MAJEURE
The Company shall not be liable or responsible for any failure to perform in whole or in part or for any delay in performing any of its obligations under these Conditions caused by act of God, war, insurrection, government regulations, embargoes, strikes or walk-outs, illness, flood, fire, explosion, cyber-attack, terrorism or equipment breakdown or any other cause beyond the control of the Company and any reference to “force majeure” in these Conditions shall mean the circumstances listed in this clause. Should any such event occur, the Company shall notify the Buyer and use reasonable endeavours to rearrange delivery and/or partially perform its obligations under these Conditions so far as it can reasonably do so.
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.
If the Company’s performance of its obligations under these Conditions shall become impossible or otherwise frustrated the Company shall be entitled to reasonable remuneration for work done until the date of such frustration.
The Buyer hereby waives any and all existing or future claims for compensation or set-off against any payments due by the Buyer to the Company under these Conditions and the Buyer shall pay to the Company the amounts payable to the Company under these Conditions and any order confirmation on the due date or dates for payment thereof regardless of any compensation, set-off or counter claim on the part of the Buyer against the Company.
a) No right, power or remedy conferred upon or reserved to the Company in these Conditions is exclusive of any other right, power or remedy in these Conditions or by law provided, permitted or conferred to or upon the Company but each such right, power or remedy shall be cumulative of every other right, power or remedy permitted or conferred to or upon the Company.
b) Any neglect, delay or forfeiture on the part of the Company in enforcing or implementing, or in seeking to enforce or implement, these Conditions shall not be deemed to be or act as, a waiver, surrender or release of any of these Conditions.
a) ASSIGNMENT AND OTHER DEALINGS. The Company 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.
b) The Buyer 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 Company.
c) CONFIDENTIALITY. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 21d. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
d) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives 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 this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with clause 21c; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
e) 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 this agreement.
f) THIRD PARTY RIGHTS. Save as provided for in clause 10(e), no one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
a) 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 clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax.
b) A notice or other communication shall be deemed to have been received:
if delivered personally, when left at the address referred to in clause 22(a); 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 fax, one Business Day after transmission.
c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
23. GOVERNING LAW AND JURISDICTION
These Conditions and any contract between the Buyer and the Company shall be construed in accordance with English law and the Company and the Buyer submit to the exclusive jurisdiction of the English Courts (save that the Company shall not be limited in its right to raise or commence proceedings in any other jurisdiction which the Company may consider appropriate).