SLEEPBOX LTD – TERMS AND CONDITIONS
The customer’s attention is drawn in particular to the provisions of clause 10.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London
are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time
in accordance with clause 12.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Products in accordance with these Conditions.
Customer: the person or firm who purchases the Products from the Supplier.
Deposit: 60% of the total value of the Order.
Final Payment: the remaining balance of 40% of the total value of the Order.
Force Majeure Event: has the meaning given in clause 11.
Installation: means where the Supplier carries out the service of installing the Products on behalf of the Customer.
Intellectual Property Rights: means all know-how, copyright, moral rights, rights in design, trade marks, trade names, service marks, patents, and all or any other intellectual or industrial property rights subsisting anywhere in the world together with all or any goodwill relating thereto.
Order: the Customer’s order for the Products, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation, as the case may be.
Products: the products (or any part of them) set out in the Order.
Specification: any specification for the Products, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: Sleepbox Ltd (registered in England and Wales with company number 07869888) whose registered office is at 29 Waterloo Place, Warwick Street, Leamington Spa, Warwickshire, United Kingdom, CV32 5LA.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 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
1.2.4 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.
1.2.5 A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 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.
2.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Supplier shall be under no obligation to accept any Order and may request for Customers to either:
2.4.1 provide full payment in respect of the total value of the Order; or
2.4.2 make payment by irrevocable letter of credit opened by the Customer in favour of the Supplier and confirmed by a bank acceptable to the Supplier; prior to accepting the Order and commencing the manufacture of the Products.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force.
2.7 A quotation for the Products given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 90 calendar days from its date of issue.
3.1 The Products are described in the Specification.
3.2 To the extent that the Products are to be manufactured incorporating designs, logos or additional features supplied by the Customer (“Additional Features”), the Customer shall indemnify the Supplier 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 reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Additional Features. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements and to make changes to improve the performance and/or durability of the Products. The Supplier will not make any significant changes to the Specification without first providing notice in writing to the Customer.
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Products is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Products 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 Supplier’s expense.
4.2 Subject to clause 7.6, the Supplier shall deliver the Products CPT Incoterms 2010 to the location set out in the Order or such other location as the parties may agree (“Delivery Location”).
4.3 Delivery of the Products shall be completed on the Products’ arrival at the Delivery Location.
4.4 Any dates quoted for delivery 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 Products 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 Products.
4.5 If the Supplier fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement products of similar description and quality in the cheapest market available, less the price of the Products. The Supplier shall have no liability for any failure to deliver the Products to the extent that such failure 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 Products.
4.6 The Customer shall notify the Supplier if it requires the Supplier to perform the Installation in the Order. In addition the Customer will stipulate in the Order the date it wishes for the Supplier to carry out the Installation (“Installation Date”) and the location where the Products are to be installed.
4.7 The Supplier will confirm that it is able to carry out the Installation on the Installation Date in its written acceptance of the Order. The Supplier reserves the right to amend the Installation Date at any time up to six weeks before the Installation Date. The Supplier shall not be liable for any failure or delay in performing its obligations under this clause 4.7 to the extent that such failure or delay is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate instructions relevant to perform the Installation. Time of the Installation is not of the essence.
4.8 The Customer shall not be entitled to reject the Products if the Supplier delivers up to and including 5% more or less than the quantity of Products ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Products were delivered.
4.9 The Supplier may deliver the Products 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.
5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (the “Warranty Period”), the Products shall:
5.1.1 conform in all material respects with their description and any applicable 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 by the Supplier.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier during the Warranty Period promptly once discovered that some or all of the Products do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Products; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Products to the Supplier’s place of business at the Supplier’s cost, the Supplier shall, at its option, repair or replace the defective Products, offer credit to the price of the defective Products reasonably reflecting the reduction in value caused by the defect, or demand the return of the Products and refund the price of the defective Products in full.
5.3 The Supplier shall not be liable for Products’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Products after giving notice in accordance with clause 5.2;
5.3.2 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 Products or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
5.3.4 the Customer alters or repairs, or a third party alters or repairs, such Products (including the insertion of components which have not been supplied directly by the Supplier) without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Products supplied by the Supplier.
6. TITLE AND RISK
6.1 The risk in the Products shall pass to the Customer on completion of delivery.
6.2 Title to the Products shall not pass to the Customer until the Supplier has received the Final Payment.
6.3 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then:
6.3.1 the Supplier reserves the right to terminate the Contract; and
6.3.2 in the event the Supplier has commenced the manufacturing of the Products, the Supplier may retain any Deposit paid, or a reasonable proportion thereof, to cover the Supplier’s costs incurred in the manufacture of the Products until such date of termination under this
7. PRICE AND PAYMENT
7.1 The price of the Products shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
7.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Products is exclusive of the costs and charges of packaging, insurance, transport and installation of the Products, which shall be invoiced to the Customer.
7.4 The price of the Products is exclusive of amounts in respect of value added tax or other applicable sales tax or duty (“Sales Tax”). The Customer shall, on receipt of an invoice from the Supplier, pay to the Supplier such additional amounts in respect of Sales Tax as are chargeable on the supply of the Products.
7.5 The Supplier will invoice the Customer for the Deposit upon receipt of the Order. Once the Supplier has received the Deposit in cleared funds, it will commence manufacturing of the Products.
7.6 Once the Products have been manufactured, the Supplier will notify the Customer in writing enclosing an invoice for the Final Payment. Unless agreed with the Supplier otherwise in writing, the Final Payment shall be due within 14 calendar days of the date of the invoice for the same. The Supplier retains the right to withhold delivery of the Products until the Final Payment has been received by the Supplier in cleared funds. Time of payment is of the
7.7 If the Customer fails to make any payment due to the Supplier 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 4% per annum above Barclays Bank’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 and the Supplier shall retain the Deposit.
7.8 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 the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier 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 the Supplier to the Customer.
8. INTELLECTUAL PROPERTY
Except in relation to the right to use the Products in the Customer’s ordinary course of business the Customer shall have no rights in respect of any Intellectual Property Rights of the Supplier however used by the Supplier in relation to the Products and the Customer hereby acknowledges that it shall not acquire any rights in respect thereof.
9. CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1 If the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier 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 the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Products delivered to the Customer shall become immediately due.
9.2 For the purposes of clause 9.1, the relevant events are:
9.2.1 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;
9.2.2 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;
9.2.3 (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;
9.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order;
9.2.5 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;
9.2.6 (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;
9.2.7 (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
9.2.8 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
9.2.9 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 9.2.1 to clause 9.2.8 (inclusive);
9.2.10 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;
9.2.11 the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
9.2.12 (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.
9.3 The Supplier may terminate the Contract immediately by giving written notice to that effect to the Customer if the Customer commits a material breach of these Conditions.
9.4 The Supplier shall be entitled to suspend any deliveries otherwise due to occur termination of a Contract in accordance with clause 9.3.
9.5 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.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence
of its employees, agents or subcontractors (as applicable);
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
10.1.4 defective products under the Consumer Protection Act 1987; or
10.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1:
10.2.1 the Supplier 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 and/or loss of revenue whether direct or indirect, or any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2 the Supplier’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
11. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event outside the reasonable control of either party affecting its ability to perform any of its obligations under these Conditions including an Act of God, fire, flood, lightning, war, revolution, riot or civil commotion.
12.1 Assignment and subcontracting.
12.1.1 The Supplier 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.
12.1.2 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 the prior written consent of the Supplier.
12.2.1 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 in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail to email@example.com.
12.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2.1; 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 by fax or e-mail, one Business Day after transmission.
12.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3.1 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.
12.3.2 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.
12.4 Waiver. 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
12.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.6 Variation. 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 the Supplier.
12.7 Governing law and jurisdiction. The parties agree, for the sole benefit of the Supplier, subject to as provided below, the courts of England and Wales shall have the exclusive jurisdiction over any dispute or claim arising out of or in connection with these Conditions or its subject matter or formation (including non-contractual claims). Nothing in this clause 12.7 shall limit the Supplier’s right to take proceedings against the Supplier in any other court of
competent jurisdiction, nor shall the taking proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
13.1 It is important to the Supplier that the Customer is completely happy with the Supplier’s Products and services. In the unlikely event that the Customer wishes to raise a complaint please contact the Supplier by telephone on +44 (0) 1564 711023 or via email at firstname.lastname@example.org stating the Customer’s name, order reference and the nature of the complaint. The Supplier will use its reasonable endeavours to ensure that all complaints will receive a response within two Business Days of receipt. It is always the Seller’s intention to resolve any problems quickly and amicably to the Customer’s satisfaction.
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