The customer's attention is drawn in particular to the provisions of clause 10.
1. Interpretation
1.1 Definitions:
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 12.3
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Delivery Point: such Vietnamese Port as the Supplier and Customer agree for the delivery of Goods from time to time.
Force Majeure Event: an event or circumstance beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as set in the Customer's written acceptance of the Supplier's quotation.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: Interfurn Limited (registered in Hong Kong with company number 1674382).
1.2 Interpretation:
(a) 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 re-enacted.
(b) 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.
(c) a reference to writing or written includes faxes and emails.
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 Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification 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 by way of the Supplier’s sales order confirmation form, at which point the Contract shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 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 Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of [20] Business Days from its date of issue.
3. Goods
3.1 The Goods are described in the Supplier's catalogue as modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, 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 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 Specification. 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. If such amendments will materially change the nature or quality of the Goods, the Supplier shall notify the Customer who may then cancel the order
4. Specification of the Goods
4.1 The Supplier warrants that all Goods sold by the Supplier to the Customer pursuant to this agreement will conform in all material respects to the Specification (Warranty). All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) other than those expressly set out in this Contract are excluded from this Contract to the fullest extent permitted by law.
4.2 Subject to the remaining provisions of this clause 4, the Customer shall be entitled to reject any quantity of the Goods which do not comply with the Warranty, provided that any purported rejection is made no later than thirty days from the date of delivery in accordance with clause 5.4. The customer will accept and make no claim for any breach of Warranty if 97% or more of the goods ordered (by invoice cost) conform in all material respects to the Specification.
5. Delivery of the Goods
5.1 Delivery of the Goods shall take place at the Delivery Point. Unless specified otherwise in writing that will be Free on Board (FOB) a Vietnamese Port. Acceptance of any change to the Delivery Point requested by the Customer shall be at the Supplier's sole discretion and the Customer shall be liable for any additional expenses incurred by the Supplier as a result of such change. The Customer shall pay any port demurrage charges or other charges/costs incurred by the Customer as a result of any late payment due from the Customer to the Supplier.
5.2 In accordance with F.O.B., The Supplier shall;-
(i) bear the costs of carriage to the port of shipment;
(ii) deliver the goods on board the ship nominated by the Customer at the named port of shipment;
(iii) bear all the costs, risk of loss of and damage to the goods until they are delivered by being placed on board the ship. Risk passes when the goods are loaded on board the ship, and the Customer bears all the risks from that moment.
(iv) bear the port handling costs at the port of shipment (other than additional demurrage expenses and other expenses incurred due to the goods not being released due to late payment of sums to be paid by the Customer);
(v) be responsible for export clearance.
5.2.1 The Customer shall;
(i) be responsible for the contract of carriage from the port of shipment and for the costs of carriage from the port of shipment and to arrange carriage to the ultimate destination;
(ii) be responsible for import clearance;
(iii) be responsible for adequately insuring the goods from the point of delivery on board.
5.3 The normal lead time to shipment at the Delivery Point is 60 days from receipt by the Supplier of the payment of the deposit referred to in clause 8.3 below. Delivery or performance dates in relation to the supply by the Supplier of Goods are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery of the Goods.
5.4 The Supplier may effect delivery in one or more instalments.
5.5 The Customer shall, within thirty days of the arrival of each delivery of the Goods at the Delivery Point, give written notice of rejection to the Supplier on account of any defect by reason of which the Customer alleges that the Goods delivered do not comply with the Warranty and which was apparent on reasonable inspection.
5.6 If the Customer fails to give notice as specified in clause 5.5 then, except in respect of any defect which is not one which would be apparent on reasonable inspection, the Goods shall conclusively be presumed to comply with the Warranty and, accordingly, the Customer shall be deemed to have accepted the delivery of the Goods in question and the Supplier shall have no liability to the Customer with respect to that delivery (except in relation to liability for any latent defects).
5.7 If the Customer alleges that any Goods are defective, it shall, if so requested by the Supplier, make the goods available unaltered and unrepaired) to the Supplier or its agent for inspection as soon as possible and at its own risk and expense.
5.8 If the Customer rejects any delivery of the Goods which do not comply with the Warranty, the Supplier shall, within sixty days of the Supplier accepting that the Goods do not comply with the Warranty:
(a) supply replacement Goods which comply with the Warranty, in which event the Supplier shall be deemed not to be in breach of this agreement or have any liability to the Customer for the rejected Goods; or
(b) notify the Customer that it is unable to supply replacement Goods, in which case the Supplier shall grant to the Customer a reasonable credit in line with the severity of the breach of the warranty in respect of those Goods (over 3% of the total invoice cost of the Goods ordered) which the Supplier agrees do not comply with the Warranty.
5.9 The Supplier's reasonable decision as to whether the Goods comply with the Specification shall be final.
5.10 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier 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 the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.11 If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready for shipment, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
(a) 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 Supplier notified the Customer that the Goods were ready for shipment; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.12 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for shipment the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
6. Import and Export licences
6.1 The Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Supplier, the Customer shall make those licences and consents available to the Supplier prior to the relevant shipment.
7. Title and risk
7.1 The risk in the Goods shall pass to the Customer on completion of delivery (F.O.B.).
7.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.4.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.4 Subject to clause 7.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1, then, without limiting any other right or remedy the Supplier may have:
(a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably 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.
8. Price and payment
8.1 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 the Supplier's published price list in force as at the date of delivery.
8.2 The price of the Goods shall be interpreted as being amounts exclusive of value added tax, any similar sales tax or any tax that replaces such sales taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to the Supplier, the Customer shall increase the sum it pays to the Supplier by the amount necessary to leave the Supplier with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
8.3 The Supplier may invoice the Customer for the Goods on or at any time after the sales order confirmation. An initial deposit of 30% of the price of the goods is due on receipt by the Customer of the Suppliers sales order confirmation.
8.4 Goods are manufactured to order and manufacturing will not commence until after the deposit has been paid.
8.5 The Customer shall pay the invoice for the balance of the cost of the Goods in full and in cleared funds no later than 14 days after to the date of shipment as stated on the bill of lading. The Supplier will notify the Customer of the shipment date once the goods are shipped. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
8.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). 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.
9. Termination
9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so;
(b) the Customer 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;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) 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.
9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1(a) to clause 9.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Supplier 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.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
9.5 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.
9.6 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.
10. Limitation of liability
10.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) 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:
(a) the Supplier shall under no circumstances whatsoever 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
(b) 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 order price of the Goods.
11. Force majeure
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 4 months, the party not affected may terminate this Contract by giving 3 weeks written notice to the affected party.
12. General
12.1 Assignment and other dealings.
(a) The Supplier 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 Customer 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 Supplier.
12.2 Entire agreement.
(a) This 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.
(b) 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.
12.3 Variation.No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.4 Waiver. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Severance. 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.
12.6 Notices.
12.6.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by fax to its main fax number; or
(c) sent by email to the most recent email address specified in the sales order confirmation.
12.6.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt;
(b) 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 the addresses of the sender and recipient are both within the United Kingdom or at the time recorded by the delivery service;
(c) if sent by fax or e-mail, at 9.00 am on the next Business Day after transmission.
12.6.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.7 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
12.8 Governing law and Jurisdiction.
12.8.1 This 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 the laws of England and Wales. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to this agreement. The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with this Contract, this Contract shall prevail.
12.8.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
12.8.3 Nothing in this clause 12.8 shall limit the right of the Supplier to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the Supplier from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
12.9 Language
12.9.1 This Contract is drafted in the English language. If this Contract is translated into any other language, the English language version shall prevail.
12.9.2 Any notice given under or in connection with this Contract shall be in the English language. All other documents provided under or in connection with this agreement shall be in the English language, or accompanied by a certified English translation.
12.9.3 The English language version of this agreement and any notice or other document relating to this Contract shall prevail if there is a conflict except where the document is a constitutional, statutory or other official document.