1. In these Conditions, the following definitions apply:
"Business Day" means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
"Conditions" means the terms and conditions set out in this document as amended from time to time in accordance with clause 57;
"Contract" means the contract between HOF and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
"Customer" means the person or firm who purchases the Goods from HOF;
"HOF" means Harlequin Office Furniture Limited a company incorporated in England and Wales with company number 2665163;
"Force Majeure Event" means has the meaning given in clause 47;
"Goods" means the goods (or any part of them) set out in the Order;
"Order" means the Customer's order for the Goods, as set out in the Customer's purchase order form;
"Specials" means any bespoke products manufactured or otherwise supplied by HOF to the Customer's Specification; and
"Specification" means any specification for the Goods agreed between the parties in accordance with clause 9.
2. In these Conditions:
2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
2.3 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 reenacted;
2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
2.5 a reference to writing or written includes e-mails.
BASIS OF THE CONTRACT
3. 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 trade, custom, practice or course of dealing. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.
4. The Order shall only be deemed to be accepted when HOF issues a written acceptance of the Order, at which point the Contract shall come into existence. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate. The Customer must communicate any errors to HOF's Sales Team within 24 hours (and confirmed in writing within 48 hours) and accepts that failure to do will render them liable for potential abortive costs.
5. 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 misrepresentation or negligent misstatement based on any statement in this agreement.
6. Any samples, drawings, descriptive matter, or advertising produced by HOF and any descriptions or illustrations contained in HOF's catalogues, brochures and website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
7. A quotation for the Goods given by HOF shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
8. The Goods are, subject to clause 6, as described in HOF's catalogue as modified by any applicable Specification.
9. Requests for Special good(s) must be submitted on the official 'HOF Specials Request Form' which is available on request from HOF's Sales Department. When submitted the document will be processed by HOF and a decision will be made either to accept or reject the request based on its validity and feasibility. It is HOF's aim to return completed forms within 7 – 10 Business Days.
10. To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify HOF 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 HOF in connection with any claim made against HOF for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with HOF's use of the Specification. This clause 10 shall survive termination of the Contract.
11. HOF reserves the right to discontinue the manufacture or supply of the Goods or amend the specification of the Goods without notice:
11.1 if required by any applicable statutory or regulatory requirements; or
11.2 in accordance with its policy of continuous product development.
CANCELLATIONS AND VARIATIONS
12. It is in HOF's sole discretion, having regard to any agreed delivery dates, when to commence manufacture of the Goods. Cancellations must be communicated to HOF in writing.
Cancellations received by HOF:
12.1 prior to allocation at HOF of goods and delivery, in HOF's sole discretion, be subject to a 25% administration cost (such cost being a genuine pre- estimate of the cost of, amongst other things, the rescheduling of delivery runs);
12.2 following commencement of manufacture of the Special goods clause 9 will be charged in full;
12.3 in respect of outsourced Goods (i.e. not stocked by HOF) shall be subject to a 25% administration cost (such cost being a genuine pre-estimate of HOF cancelling its order with any third-party supplier), please note that whilst HOF may, but shall be under no obligation so to do, have regard to the stage of production reached when
receiving the Customer's notice of cancellation when determining cancellation costs, it reserves the right to charge for cancellations in full. Specials shall always be charged in full.
13. If the Customer wishes to change anything in the Contract, the request must be made in writing. HOF will inform the Customer whether it is willing to agree to the change and, if so, what will be the impact on the price and delivery date. The Customer must notify HOF in writing within 2 days of receiving HOF's response whether these changes are accepted and if so, the Contract will be deemed to have been varied accordingly. HOF will not proceed with the change until this notice is received. A request to reduce the quantity of Goods ordered will not result in a price reduction unless otherwise agreed in writing by HOF.
14. HOF shall ensure that:
14.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and HOF reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by installments, the outstanding balance of Goods remaining to be delivered; and
14.2 if HOF requires the Customer to return any packaging materials to HOF, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as HOF shall reasonably request. Returns of packaging materials shall be at HOF's expense.
HOF reserves the right to refuse to deliver the Goods in the event that a site survey has identified that there is no parking at the Delivery Location or if there is inadequate Health & Safety evidence at the Delivery Location
15. Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location. All deliveries must be signed for and appropriately dated. Items cannot be signed unchecked, it is the Customer's responsibility to visually check items delivered and investigate items that are visibly damaged. Notification of shortages and/or damages must be made in writing to HOF within 48 hours of delivery.
16. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. HOF shall not be liable for any delay in delivery of the Goods that is caused by instructions or any other instructions that are relevant to the supply of the Goods. HOF deliver on multi-drop vehicles and no guarantee can be made to set timescales. However, if the volume permits a dedicated delivery can be made (which may subject to additional costs) and an estimated time of delivery can be requested. In such cases HOF will not be liable for financial penalties resulting in late delivery of the Goods.
17. HOF 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 HOF with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
18. If the Customer fails to take delivery of the Goods within the agreed allocated delivery schedule, then, except where such failure or delay is caused by a Force Majeure Event or HOF's failure to comply with its obligations under the Contract:
18.1 non delivery of the Goods shall be deemed to be an “aborted” delivery of which charges shall apply. HOF have sole discretion and Customer could be subject to a 25% aborted delivery charge;
18.2 HOF shall restock the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance, storage and redelivery).
19. HOF may restock the Goods and at HOF discretion, charges to the Customer will apply for storage, until either; delivery is complete or upon receipt of official cancellation of the actual order.
20. HOF may deliver the Goods by installments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.
21. HOF warrants that on delivery, and for a period of 10 years manufacturer’s warranty unless otherwise stated from the date of delivery ("Warranty Period"), the Goods shall:
21.1 conform in all material respects with their description and any applicable Specification;
21.2 be free from material defects in design, material and workmanship;
21.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
21.4 be fit for any purpose held out by HOF.
22. Subject to clause 23 if:
22.1 the Customer gives notice in writing to HOF 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 21;
22.2 HOF is given a reasonable opportunity of examining such Goods; and
22.3 if the goods are returned to HOF’s place of business HOF shall at their option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
23. HOF shall not be liable for the Goods' failure to comply with the warranty set out in clause 22 in any of the following events:
23.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 22;
23.2 the defect arises because the Customer failed to follow HOF'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;
23.3 the defect arises as a result of HOF following any drawing, design or Specification supplied by the Customer;
23.4 the Customer alters or repairs such Goods without HOF's prior written consent;
23.5 the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; or
23.6 the Goods differ from their description or, as the case may be, the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements, or in the event that the goods have not been supplied by HOF.
24. Except as provided in clauses 22 to 27 (inclusive), HOF shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 21.
25. Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
26. 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.
27. These Conditions shall apply to any repaired or replacement Goods supplied by HOF.
TITLE AND RISK
28. The risk in the Goods shall pass to the Customer on completion of delivery.
29. Title to the Goods shall not pass to the Customer until HOF has received payment in full (in cash or cleared funds) for:
29.1 the Goods; and
29.2 any other goods or services that HOF has supplied to the Customer;
29.3 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 31.
30. Until title to the Goods has passed to the Customer, the Customer shall:
30.1 hold the Goods on a fiduciary basis as HOF's Bailee;
30.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as HOF's property;
30.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
30.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
30.5 notify HOF immediately if it becomes subject to any of the events listed in clause 42; and
30.6 give HOF such information relating to the Goods as HOF may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its
31. Subject to clause 32, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before HOF receives payment for the Goods. However, if the Customer resells the Goods before that time:
31.1 it does so as principal and not as HOF's agent; and
31.2 title to the Goods shall pass from HOF to the Customer immediately before the time at which resale by the Customer occurs.
32. If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 42 then, without limiting any right or remedy HOF may have:
32.1 the Customer’s right to sell the Goods or use them in the ordinary course or its business ceases immediately and HOF may have:
(i) require the Customer to delivery up all Goods in its possession that have not be resold, or incorporated into another product; and
(ii) 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.
33. 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 HOF's published price list in force as at the date of delivery.
34. HOF 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:
34.1 any factor beyond HOF's reasonable control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other
34.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
34.3 any delay caused by any instructions of the Customer or failure of the Customer to give HOF adequate or accurate information or instructions.
35. The price of the Goods is exclusive of amounts in respect of value added tax ("VAT"). The Customer shall, on receipt of a valid VAT invoice from HOF, pay to HOF such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
36. HOF may require 2 bank references for new account applications and reserves the right to change its financial requirements as and when it deems it appropriate.
37. Unless specific payment terms have been agreed by HOF Senior Financial Controller, the Customer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated.
38. Time of payment is of the essence.
39. If the Customer fails to make any payment due to HOF under the Contract by the due date for payment ("due date"), then the Customer shall pay interest on the overdue amount at the rate of 2.5% per annum above RBS's base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. HOF reserves the right to charge interest on any overdue payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall be liable for all reasonable costs (including legal and court costs) associated with the collection of overdue accounts.
40. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against HOF in order to justify withholding payment of any such amount in whole or in part. HOF 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 HOF to the Customer.
CUSTOMER’S INSOLVENCY OR INCAPACITY
41. If the Customer becomes subject to any of the events listed in clause 42, or HOF reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to HOF, HOF may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and HOF without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
42. For the purposes of clause 41, the relevant events are:
42.1 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) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
42.2 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 its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
42.3 (being a company) 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, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
42.4 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 its assets and such attachment or process is not discharged within 14 days;
42.5 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
42.6 (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
42.7 a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
42.8 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 clause 42.1 to clause 42.8 (inclusive);
42.9 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
42.10 the Customer's financial position deteriorates to such an extent that in HOF's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
42.11 (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 or becomes a patient under any mental health legislation.
43. Without limiting its other rights or remedies, HOF 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.
44. Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies 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
45. Nothing in these Conditions shall limit or exclude HOF's liability for:
45.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
45.2 fraud or fraudulent misrepresentation;
45.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
45.4 defective products under the Consumer Protection Act 1987; or
45.5 any matter in respect of which it would be unlawful for the HOF to exclude or restrict liability.
46. Subject to clause 45:
46.1 HOF shall under no circumstances whatever 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
46.2 HOF'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 the price of the Goods.
47. Neither party shall be in breach of this Contract nor liable for the delay for performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from a Force Majeure Event. A Force Majeure Event means an event of circumstances beyond a party’s reasonable control. If the period of delay or non-performance continues for 3 months, the party not effected may terminate the Contract by giving 30 days written notice to the effected party.
48. HOF may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
49. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without HOF's prior written consent.
50. 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, recorded delivery, commercial courier or sent via e-mail.
51. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 48; if sent by pre-paid first-class post or recorded delivery, 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 via e-mail, one Business Day after transmission.
52. The provisions of clauses 50 and 51 shall not apply to the service of any proceedings or other documents in any legal action.
53. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
54. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
55. A waiver of any right or remedy under the Contract 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, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
56. A person who is not a party to the Contract shall not have any rights under or in connection with it.
57. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by HOF.
58. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.