THE FOAM COMPANY LIMITED
TERMS & CONDITIONS
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSE 11.
In these terms and conditions (from now on referred to as “Terms”) the following expressions shall have the following meanings and the rules of interpretation shall apply:
“Contract” the Customer’s order and the Company’s acceptance of it in accordance with Clause 2 incorporating these Terms;
“Account Application Form” the Company’s account application form incorporating these Terms;
“Customer” the retailer who purchases the Products from the Company;
“Company” means The Foam Company Limited (Company Number: 02067653) whose Registered Office is at Broadway, Didcot, Oxfordshire, OX11 8ES;
“End-Customer” means the person, firm or company who purchases the Products from the Customer;
“Force Majeure” circumstances beyond the reasonable control of the Company which prevents the Company from performing its obligations under the Contract including strikes, lock-outs, labour disputes, act of God, including but not limited to, fire, flood, or storm, war, riot, civil commotion, malicious damage, or the order of any government or public or local authority;
“Intellectual Property Rights” any patents, rights to inventions, copyright and related rights, trade marks (including the Trade Mark), trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Order” an order for the Products from the Customer to the Company;
“Products” any products agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them);
“Specification” any written specification given by the Company to the Customer for the Products supplied under the Contract.
“Trade Mark” the registered trade mark “SLEEPSHAPER” owned by the Company together with any further trade marks owned or licensed by the Company.
Each Order for Products from the Customer to the Company shall be an offer by the Customer to purchase the Products and these Terms will apply. The Contract between the Customer and the Company will be on these Terms only (unless varied by Clause 2.3). No other terms and conditions will apply including any terms or conditions contained in or referred to in the Customer’s purchase order, confirmation of order, specification or other document or implied by law, trade custom, practice or course of dealing or simply as a result of such document being referred to in the Contract.
No Order placed by the Customer shall be considered to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company provides the Products to the Customer.
These Terms apply to all the Company’s sales and any variation to these Terms and any statements made by the Company or its employees about the Products shall not be binding on the Company unless expressly agreed in writing and signed by authorised representative of the Company.
The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Clause shall exclude or limit the Company’s liability for fraudulent misrepresentation.
The quantity and description of the Products shall be as set out in the Company’s acknowledgement of order or delivery note (as the case may be)
All samples, drawings, descriptive matter, specifications and advertising issued by the Company, and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
In the event that the Customer advertises or resells the Products on the internet then the Customer shall:
ensure that each End-Customers’ financial data is encrypted;
ensure that it discloses all warranty limitations relating to the Products;
ensure that any representation, images or photographs of the Product which the Customer intends to use shall first be submitted to the Company for approval;
ensure that the layout and image of the website and the positioning of the Products:
conform to any brand guidelines issued by the Company; and
are suitable to protect and promote the Company’s brand-recognition and reputation;
not photograph the Products themselves and use such images in the advertising or sale of the Products;
observe all directions and instructions given to it by the Company for promotion and advertisement of the Products on the Customer’s website or otherwise including the restriction in Clause 3.4;
not make any written statement as to the quality or manufacture of the Products without the prior written approval of the Company.
The Customer shall not use the Trade Mark or any mark that resembles the Trade Mark in any advertising (including on the internet), promotion or otherwise without the prior written consent of the Company.
Any typographical, clerical or other error or omission in any sales literature, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
Any advice or recommendation given by the Company or its employees, contractors or agents to the Customer or its employees, contractors or agents about the storage, application or use of the Products which is not confirmed in writing by an authorised officer of the Company is followed or acted on entirely at the Customer’s own risk.
The Company reserves the right to discontinue any Products or to alter the design or construction of any Product. The Company shall give the Customer at least 1 month’s written notice of its intention to discontinue or to alter a Product.
Unless otherwise agreed by the Company in writing, the price for the Products shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
Unless otherwise specified the price for the Products shall be exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties all of which amounts the Customer will pay in addition when it is due to pay for the Products.
The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Products as has not been delivered to reflect any:
increase in the cost to the Company which is due to any factor beyond the control of the Company (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture);
change in delivery dates, quantities or specifications for the Products which is requested by the Customer; or
delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
The Customer may at any time before any agreed delivery date amend or cancel an Order by providing the Company with written notice. If the Customer amends or cancels an Order, the Company shall be entitled to charge the Customer all costs the Company incurs in fulfilling the Order until it receives the Customer’s amendment or cancellation.
In the event that the Company incurs additional costs and/or charges in supplying the Products to the Customer due to unforeseen circumstances not specified or known by either party on the date the Customer’s Order the Customer will pay such additional costs when it is due to pay for the Products.
Where credit terms have been agreed with the Company payment of the price for the Products is due in full without any deductions (whether by way of set-off, counterclaim, discount, abatement or otherwise) at the end of the month following the invoice date, or as otherwise agreed in writing.
No payment shall be deemed to have been received until the Company has received cleared funds.
If the Customer fails to pay the Company any sum due pursuant to the Contract the Customer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England.
The Company may suspend or cancel the provision of the Products or may at its discretion request security for payment from the Customer in the event of late payment or if the Company in its absolute discretion considers that the Customer’s financial circumstances or standards of operation cease to justify the previous arrangements.
Time for payment of the price shall be of the essence of the Contract.
All sums payable to the Company under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This Clause 0 is without prejudice to any right to claim for interest under the law, or any right under the Contract.
Unless otherwise agreed in writing by the Company, delivery of the Products shall take place at the Customer’s place of business.
The Company shall use its reasonable endeavours to advise the Customer of a delivery date for the Products. Any dates specified by the Company for delivery of the Products are an estimate only.
If no dates are so specified, delivery shall be within a reasonable time of acceptance of the Order. Time is not of the essence as to the delivery of the Products. This means that if the Company fails to deliver the Products in the time specified, the Customer is not entitled to terminate the Contract and the Company is not liable for any delay in delivery, however caused.
Delivery shall be made by the Company or a courier nominated by the Company during normal business hours (excluding bank or public holidays). The Company may levy additional charges for any deliveries made at the Customer’s request outside such hours.
If for any reason the Customer will not accept delivery of any of the Products when they are ready for delivery:
risk in the Products will pass to the Customer;
the Products will be deemed to have been delivered; and
the Company may store the Products until delivery whereupon the Customer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location for the delivery of the Products and will provide at its expense adequate and appropriate equipment and manual labour for loading the Products, all necessary access and facilities reasonably required to deliver the Products. If the Company is prevented from carrying out delivery on the specified date because no such preparation has been carried out, the Company may levy additional charges to recover its loss arising from this event.
The Company reserves the right to make partial deliveries. The Customer shall not be entitled to object to or reject the Products or any of them by reason of the surplus or shortfall and shall pay for such Products at the pro rata Contract rate.
The Customer must give notice within 7 days of delivery of the Products to the Company of any damage to the Products or if any covers or mattresses are soiled or dirty failing which the Company is discharged from any liability in respect of such damage.
The Company shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to the Company (or its carrier, if applicable) within three days of delivery or the proposed delivery date of the Products and that the Products has been handled in accordance with the Company’s stipulations. Any remedy under this Clause 6.9 shall be limited, at the option of the Company, to the replacement or repair of any Products which is proven to the Company’s satisfaction to have been lost or damaged in transit.
The quantity of any consignment of Products as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
The Company shall not be liable for any non-delivery of Products (even if caused by the Company’s negligence) unless the Customer notifies the Company in writing of the failure to deliver within 7 days after the scheduled delivery date.
Any liability of the Company for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata agreement rate against any invoice raised for such Products.
The Products are at the risk of the Customer from the time of delivery. The Company shall off-load the Products at the Customer’s risk.
Ownership of the Products shall pass to the Customer on the later of completion of delivery (including off-loading), or when the Company has received in full in cleared funds all sums due to it in respect of:
the Products; and
all other sums which are or which become due to the Company from the Customer on any account.
Until ownership of the Products has passed to the Customer under Clause 8.2, the Customer must:
hold the Products on a fiduciary basis as the Company’s bailee;
store the Products (at no cost to the Company) in satisfactory conditions and separately from all other products of the Customer or any third party so that they remain readily identifiable as the Company’s property;
not destroy, deface or obscure any identifying mark or packaging on or relating to the Products;
keep the Products insured on the Company’s behalf for its full price against all risks to the reasonable satisfaction of the Company, and hold the proceeds of such insurance on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account. On request the Customer shall produce the policy of insurance to the Company.
The Customer may resell the Products before ownership has passed to it solely on the following conditions:
any sale shall be effected in the ordinary course of the Customer’s business at full market value; and
any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them. All costs incurred by the Company in repossessing the Products shall be borne by the Customer.
Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
the Customer commits a material breach of any of the terms of the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after being notified in writing to do so; or
the Customer ceases trading or is unable to pay its debts as they fall due or a petition is presented or meeting convened for the purpose of winding the Customer up or the Customer enters into liquidation, whether compulsorily or voluntarily, or compounds with its creditors generally or has a receiver appointed of all or any part of its assets.
On termination of the Contract for any reason:
the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
the accrued rights and liabilities of the parties as at termination shall not be affected.
Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Company may have under these Terms or in law.
The following Clauses shall survive termination of these Terms Clauses 5, 8, 10, 11, 12, 15, 17, 20 and 21 inclusive.
- Warranty AND RETURNS
The Company warrants that the Products will provide the functions as set out in the Specification.
The Company warrants for a period of 5 years from the date of manufacture as set out on the guarantee card (the “Standard Warranty Period”) that the Products are free from defects of workmanship and materials (the “Standard Warranty”). The Company undertakes (subject to Clause 10.5), at its option, to repair or replace Products (other than consumable items) which are found to be defective as a result of faulty materials or workmanship during the Standard Warranty Period.
After the expiry of the Standard Warranty, the Company may offer a further 5 year warranty (the “Extended Warranty”). The Company undertakes (subject to Clause 10.5), at its option, to repair or replace Products (other than consumable items) which are found to be defective as a result of faulty materials or workmanship during the Extended Warranty. The costs of the Extended Warranty shall be calculated in accordance with the Company’s standard scale of charges as applicable (based on the age of the Products).
The Standard Warranty and Extended Warranty are conditional on the Customer or End-Customer providing (at the time of any potential warranty claim) a receipt or other proof of purchase approved by the Company and (in the case of an End-Customer) the End-Customer having:
returned the guarantee card provided by the Company; or
completed the Company’s on-line guarantee form.
Upon receipt of any potential warranty claim by an End-User, the Customer shall investigate such claim directly with the End-User and will not direct the End-User to the Company. If the Customer believes that the End-User has a valid warranty claim then:
the Customer shall give written notice of the defect to the Company within seven days of determining the warranty claim;
the Company shall be given a reasonable opportunity of examining such Products and the Customer (if asked to do so by the Company) shall return such Products to the Company’s place of business at the Customer’s cost for the examination to take place there;
if the Product is returned to the Company, the Company shall return the Product to the manufacturer of the foam for testing. The result of the manufacturer’s test will determine whether there is a fault with the mattress of whether it is misuse. The manufacturer’s decision shall be final in all cases;
In the event that during the Warranty Period a Product develops more than a permanent two (2) cm indentation in the memory foam, the Company will replace the Product free of charge.
If replacement Products are required, the Company will invoice the Customer for the full amount of the replacement until the test results are received from the manufacturer.
The Company shall not be liable for a breach of the warranty in Clauses 10.1, 10.2 or 10.3 if:
the Customer fails to give the written notice required under Clause 10.4.1 or the Customer or End-User makes any use of Products in respect of which it has given written notice under Clause 10.4.1; or
the defect arises because the Customer or End-User failed to follow the Company’s oral or written instructions as to the storage, use or maintenance of the Products or (if there are none) good trade practice; Where products are vacuum packed and/or boxed, this is for transport and storage convenience on a short term basis. If it is likely that such products will be stored for periods longer than 2 months, then these products should be unpacked before this time. The Company will not accept responsibility for defects arising as a result of vacuum packing, after 2 months from date of delivery;or
the defect is caused by improper use of the Products by the Customer or End-User or use outside its normal application;
the defect arises due to normal wear and tear; or
the Customer or End-User alters or repairs the relevant Products without the written consent of the Company.
Any repaired or replacement Products shall be under warranty for the unexpired portion of the Warranty Period.
The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
any breach of the Contract; and
any representation, statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.
Nothing in these Terms excludes or limits the liability of the Company:
for death or personal injury caused by the Company’s negligence; or
for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
for fraud or fraudulent misrepresentation.
All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
Subject to Clauses 11.2:
the Company shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
loss of profits; or
loss of business; or
depletion of goodwill or similar losses; or
loss of anticipated savings; or
loss of goods; or
loss of contract; or
loss of use; or
loss or corruption of data or information; or
any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
The Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to 1.5 times the price paid for the Products by the Customer during the 12 months preceding the date acknowledged by the Company as being the date of the event giving rise to any liability.
The Customer acknowledges that all Intellectual Property Rights created, subsisting or used in or in connection with the Products shall remain the sole property of the Company or (as the case may be) third party rights, owner. For the avoidance of doubt, the Customer shall not during or at any time after the completion, expiry or termination of the Contract in any way question or dispute such ownership thereof by the Company or third party.
The Customer shall not use the Trade Mark without the express permission of the Company (as set out in Clause 3.4). In the event that the Company grants to the Customer the right to use the Trade Mark the Customer acknowledges that the Company makes no representation or warranty as to the validity or enforceability of the Trade Mark nor as to whether the same infringes on any intellectual property rights of any third party.
In the event that new inventions, designs or processes evolve or are generated in the performance of or as a result of the Contract the Customer acknowledges that the same shall be the property of the Company as the case may be.
The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.
Notwithstanding any other provision of the Contract;
the Company reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Products ordered;
neither party shall be deemed to be in breach of the Contract, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under the Contract,
if it is prevented from or delayed in carrying on its business by Force Majeure of which it has notified the other party, and the time for performance of such obligations shall be extended accordingly.
If an event of Force Majeure continues in existence for an aggregate period of three months within any period of twelve consecutive calendar months then the parties shall meet to agree suitable means of alleviating the effects of the Force Majeure. If the parties cannot reach such agreement within one month of the date of the first such meeting and such Force Majeure continues, then either party shall be entitled to terminate the Contract by immediate written notice to the other.
The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Company or its agents, and any other confidential information concerning the Company’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to the Company, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
All materials, equipment and tools, drawings, specifications and data supplied by the Company to the Customer shall at all times be and remain the exclusive property of the Company, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Company, and shall not be disposed of or used other than in accordance with the Company’s written instructions or authorisation.
Any notice required to be given pursuant to the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address of the party as set out in the Contract, or such other address as may be notified by one party to the other. A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
Notice may also be given by e-mail address. In proving the service of any notice by e-mail, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.
- Entire AGREEMENT
It is acknowledged and agreed that the Contract (including the documents and instruments referred to herein) (“the Documents”) shall supersede all prior representations arrangements understandings and agreements between the parties relating to the subject matter hereof and shall constitute the entire complete and exclusive agreement and understanding between the parties hereto;
The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation arrangement understanding or agreement not contained in the Documents or for any breach of any representation not contained in the Documents (unless such misrepresentation or representation was made fraudulently);
It is further acknowledged and agreed that no representations arrangements understandings or agreements (whether written or oral) made by or on behalf of any of the other parties have been relied upon other than those expressly set out or referred to in the Documents.
Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
If any provisions of these Terms (or part of a provision) are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- THIRD PARTY RIGHTS
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
- Governing Law and Jurisdiction
This Contract shall be governed by and construed in accordance with English law and each party hereby irrevocably submits to the exclusive jurisdiction of the English Courts.