1. General Interpretation and Definitions
1.1 In these conditions unless the context otherwise admits:
'Contract' means the contract between Curtis and the Customer consisting of any quotation, these conditions and any other documents specified in any quotation.
'Curtis' means Curtis Office Furniture Limited.
'Customer' means the person, firm, body, company or association whose order for the sale or supply of Goods is accepted by Curtis.
'Goods' means the goods (and any parts for or replacement of them) which Curtis is to supply as described in any Curtis quotation or acceptance of an order from the Customer.
1.2 The clause headings in these conditions are for the purposes of reference only and shall not affect the interpretation thereof of these conditions.
1.3 Unless the context otherwise requires words denoting the singular shall include the plural and vice versa and words denoting any one gender shall include all genders and words denoting persons shall include bodies corporate, unincorporated associations and partnerships.
1.4 Any reference to any statute or statutory provisions includes a reference to that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated whether before or after the date of this agreement and all statutory instruments or orders made pursuant to it.
1.5 Unless the context otherwise requires reference to any clause, sub-clause or schedule is to a clause, sub clause or schedule of or to these conditions.
2. Basis of the Sale
2.1 All Contracts shall be governed by the laws of England and Wales and all disputes arising shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
2.2 No Contract shall arise unless and until Curtis shall have accepted an offer by the Customer or Curtis shall have accepted an order in writing from the Customer (made in the absence of a prior quotation of Curtis) and any contract arising between the parties shall in all cases be subject to these conditions and where relevant any quotation and any documents specified in any such quotation all of which shall govern the Contract to the exclusion of any other terms and conditions including any terms and conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar document.
2.3 The Contract shall constitute the entire and only agreement between Curtis and the Customer and supersede any prior written or oral agreement arrangements or understandings made between the parties and the Customer acknowledges that it does not rely on any oral representations or recommendations which are not expressly incorporated herein or otherwise confirmed in writing by Curtis.
2.4 Any typographical, clerical or other error or omission in any document or information issued by Curtis shall be subject to correction without any liability on the part of Curtis.
2.5 Any variation to these conditions (including any special terms and conditions agreed between Curtis and the Customer) shall be inapplicable unless agreed and accepted in writing by Curtis. No representative, employee or agent of Curtis has any authority whatsoever to add to, modify or vary these conditions, nor can they make any representation concerning the sale and supply of Goods.
2.6 All descriptions, measurements, specifications, illustrations, weights or colours in respect of the Goods specified in any sales literature or brochures are shown as a general guide or description only and Curtis does not contract or represent that the Goods will comply with any particular detail contained in such literature.
2.7 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Customer's acceptance of these conditions.
3. Conditions of Payment
3.1 The price of the Goods payable shall be the price stipulated in any published price list/catalogue current at the date of delivery of the Goods, or the quoted price given (in writing), unless otherwise agreed in writing. Curtis may at any time increase the price to reflect any increase in cost to Curtis which is due to factors occurring after the date of making of the Contract which are beyond the reasonable control of Curtis (including without limitation foreign exchange fluctuations, taxes and duties and the cost of labour, materials and other manufacturing costs) and due to any changes which are necessary to comply with any applicable safety or other statutory requirement.
3.2 The price payable is exclusive of any applicable VAT, which shall be due from the Customer at the rate ruling at the date of the invoice. Unless otherwise agreed packaging, carriage and insurance charges are also excluded and shall be charged to the Customer at cost to Curtis.
3.3 Unless otherwise agreed and confirmed in writing (in which case such agreement shall supersede these terms), payment of the price, VAT and any other monies payable by the Customer (including carriage and shipping costs) shall be due within 30 days of the date of invoice for those Customers with approved and registered credit accounts. Otherwise, payment is due immediately upon the placing of an order by a Customer or upon delivery of the Goods, as shall be notified by Curtis. Time for payment in all cases being of the essence.
3.4 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2.5 % above Royal Bank of Scotland's base rate or such comparable indicator from time to time in force and shall accrue at such a rate after as well as before any judgment.
3.5 Curtis reserves the right to charge the Customer for all costs, expenses, losses and fees incurred in recovering any late payments including any reasonable legal fees or other recovery costs.
3.6 The Customer may not withhold any payment of any invoice or other amount due to Curtis by reason of any right of set-off or counterclaim which the Customer may have or allege to have or for any reason whatever.
3.7 The Customer agrees that Curtis may conduct credit checks on it and on any individual or officer of the Customer and agrees that credit accounts are subject to satisfactory references as may be reasonably required by Curtis. If in the opinion of Curtis the financial condition of the Customer based on the credit check does not justify the commencement or continuance of delivery of Goods then Curtis may make a written demand to the Customer for full or partial payment in advance and may suspend it's performance of the Contract until such payment is made or may cancel the Customer's order.
3.8 If credit previously has been extended by Curtis to the Customer and Curtis elects to make further sales to the Customer, Curtis reserves the right to require payments on a cash on delivery or cash in advance basis.
4. Terms of Delivery/Installation
4.1 Completion of the Customer's order is subject to such materials and services (including supplies from third parties) specifications, information and other materials being available or being made available as will enable Curtis to proceed and to continue with the provision of the Goods without interruption.
4.2 The Customer shall provide Curtis promptly with any information and materials which Curtis may reasonably require to enable Curtis to proceed with the performance of the Contract without undue delay or impediment. The Customer shall no later than 14 days prior to delivery of the Goods notify Curtis of the Customer's preferred layout plan, and details of the exact rooms the Goods are to be delivered to, provided that where the Goods are to be delivered within 14 days of an order being placed such information must be given to Curtis prior to delivery. The Customer shall also inform Curtis upon placing an order of the address of the premises where the Goods are to be delivered.
4.3 The Goods shall be deemed to have been delivered to the Customer immediately upon despatch from Curtis's address or Curtis's supplier's address. Unless otherwise specified and agreed in writing the risk in the goods shall pass to the Customer as from despatch. For the avoidance of doubt, Curtis shall not be liable for loss or damage to the Goods caused whilst in transit.
4.4 Curtis shall arrange for carriage/shipping of the Goods to the Customer's address as has been notified to Curtis. The costs of carriage and any insurance and packaging which the Customer reasonably directs Curtis to incur shall be reimbursed by the Customer to Curtis at Curtis's discretion (without any set off or other withholding whatever) save that standard delivery and installation to a previously agreed UK mainland address is included within the price of the Goods. Standard delivery is defined as delivery on a pre-arranged date to a previously agreed address at ground floor level during standard working hours (Mon-Thur 8.30 - 4.30 Fri 8.30 - 3.30).
4.5 Curtis may deliver the Goods by separate instalments and tender separate invoices for such deliveries. Each separate instalment shall be invoiced and paid for in accordance with these terms and conditions. The failure by Curtis to deliver or the failure by the Customer to pay for any one or more of the said instalments of the Goods on the due dates shall not entitle the Customer to treat this Contract as repudiated.
4.6 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery and shall ensure that qualified personnel are in attendance to accept delivery and check for any damages or defects and shall ensure that adequate access and space for vehicles and workmen is made available. It shall be the Customer's responsibility to ensure that all floors and walls at the point of delivery/installation can bear the weight/load of the Goods. Curtis shall not be liable in any way for any damage or loss caused to the Customer due to the load bearing capacity of such floors or walls proving inadequate.
4.7 The Customer shall ensure Curtis is given the opportunity for a site survey (if required) in conjunction with the necessary personnel and will ensure that any other work going on that may interfere with delivery/installation is not carried out at such time. All work areas where the Goods are to be installed/delivered to are to be clear of personal effects and work equipment. In the event that Curtis or its staff are required to clear work areas, Curtis will not be held responsible for any loss or damage whatsoever. It is the responsibility of the Customer to reload furniture following delivery.
4.8 Although delivery periods and dates are given in good faith, Curtis shall not be liable for any loss or damage whatever due to its failure to deliver the Goods (or any of them) promptly or at all. Time for delivery will not be the essence of the Contract.
4.9 Notwithstanding that Curtis may have delayed or failed to deliver the Goods (or any of them) promptly the Customer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 3 months of the delivery date given.
4.10 If for any reason a delivery is turned away or Curtis is unable to effect delivery/installation the Customer (at the discretion of Curtis) becomes liable for the total cost of the delivery and or storage (where necessary) and/or redelivery.
4.11 In the event that the Customer has not informed Curtis in writing prior to delivery of the fact that installation is above ground floor level, Curtis reserve the right to delay installation.
4.12 Delivery or provision of the Goods may be suspended or delayed by Curtis in the event of any strike, trade dispute, fire, tempest, breakdown, accident, riot, crime, civil disturbance, epidemic, storm, frost, flood, drought, war, shortage of materials, scarcity of labour, fuel or power failure or shortage, government action or other occurrence ("Event of Force Majeure") preventing Curtis from performing its obligations. Curtis shall not be liable for any delay, default, loss or damage of whatsoever nature if the same shall have arisen by reason of an Event of Force Majeure or any other cause beyond the reasonable control of Curtis.
4.13 Curtis reserves and has the right at any time prior to delivery of the Goods to make any changes in the design or specification of the Goods or to substitute alternative Goods for any Goods to be supplied which are required to conform with any applicable safety or other statutory requirement (in which event Curtis shall be entitled to increase the price to be paid by the Customer for the Goods); or which Curtis deems to be desirable provided that:
(i) such changes or substituted Goods do not materially affect the performance or quality of fitness for purpose of the Goods; and
(ii) delivery of the Goods is not unreasonably delayed by such changes; and
(iii) no price variation under the Contract is made as a result of such changes unless the Customer shall have agreed in writing to a variation in the contract price.
4.14 Customers must notify Curtis in writing within 24 hours of Curtis's acknowledgement of its order, of any furniture to be disposed of by Curtis. Customers are responsible for any statutory land fill tax, charge, levy or tipping charges incurred in connection with the disposal of their existing furniture which is charged to Curtis and are to pay to Curtis such costs upon demand. At its discretion Curtis may charge the Customer a fee for disposing of the Customer's existing furniture which shall be due from the Customer in accordance with these conditions.
4.15 The Customer shall be responsible for all Health and Safety matters arising from the Contract and shall be solely responsible for the induction of Curtis's staff in accordance with all Health and Safety legislation and in accordance with Curtis's Arrangements and Procedures for Peripatetic Workers Policy (available on request), in particular in informing such staff of the location of all fire exits, first aid equipment, sanitary facilities, etc. The Customer is responsible for advising Curtis of any specialist equipment required or hazards which may be encountered.
5. Warranty/Liability
5.1 Subject to the limitations upon its liability set out in this clause 5 below Curtis warrants that all Goods supplied will be manufactured and supplied in accordance with the description contained in any specification and will be free from defects in materials and workmanship for a period of 6 months. This warranty shall not extend to parts, materials, equipment or goods not manufactured by Curtis and in such cases, Curtis to the extent possible will pass on to the Customer the benefit of any warranties or guarantees given by such third party manufacturer or the Customer may be entitled to such warranty or guarantee which is capable of being and has been so assigned by Curtis to the Customer.
5.2 In the event of a breach of this warranty the Customer's sole remedy shall be limited to Curtis, at its option repairing or replacing (with goods of similar quality) any defective Goods which in the reasonable opinion of Curtis arise solely from any faulty workmanship on its part/suppliers part or, where the item is no longer available offering a substitute to the same value, or, making a refund to the value of the Goods in question. If the Customer shall fail to inform Curtis in writing of any breach of this warranty within 6 months of delivery and following such notice afford Curtis an opportunity to inspect the Goods within a reasonable time thereafter, then the Goods shall be conclusively presumed to be in accordance with this Contract and free from any defect or damage.
5.3 The Customer shall inspect the Goods on delivery and shall at the point of delivery notify Curtis of any alleged defect, shortage in quantity or damage and shall thereafter afford Curtis an opportunity to inspect the Goods within a reasonable time and before the Goods are put to use. If the Customer shall fail to comply with these provisions then the Goods shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Customer shall be deemed to have accepted the Goods.
5.4 Curtis shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer. Nor shall Curtis be under any liability if any defect or failure in the Goods in the reasonable opinion of Curtis arises from wilful damage or misuse, negligence by the Customer or any third party, failure to follow instructions for use, or if the Goods have been altered or repaired by persons other than Curtis.
5.5 Wood veneers can vary in grain and colour and although care is taken to match veneers, Curtis will not be liable whatsoever for any variation and shall be under no obligation to accept return of Goods where a variation occurs.
5.6 Curtis unless herein provided shall be under no liability whatever to the Customer for any indirect loss and/or expense and incidental or consequential damages (including without limitation loss of profit business or goodwill) suffered by the Customer arising out of a breach by Curtis of the Contract.
5.7 To the extent permitted by law, in the event of any breach of the Contract by Curtis the remedies of the Customer shall be limited to damages and under no circumstances shall the liability of Curtis exceed the price of the Goods.
5.8 Notwithstanding the aforementioned warranty Curtis shall be under no liability if the price in respect of the Goods has not been paid before or on the due date for payment.
5.9 The Customer agrees to indemnify Curtis against any claims by any third party's caused by the Goods proving not to be fit and suitable for such third party's purpose, or otherwise against any third party's claims.
5.10 Curtis's liability hereunder shall be in lieu of all other warranties or conditions expressed or implied by law and save as herein provided all terms, conditions and warranties (whether implied by statute or otherwise or made expressly) whether by Curtis or its servant or agents or otherwise other than those express warranties set out in writing are excluded from the Contract, and Curtis shall not be under any liability whatsoever, whether in contract, tort or otherwise in respect of defective workmanship or otherwise for any injury, damage or loss (whether direct, indirect or consequential) howsoever arising therefrom or in connection therewith PROVIDED that nothing in the Contract shall restrict or exclude liability for death or personal injury caused by the negligence of Curtis or affect the statutory rights of the Customer dealing as a consumer.
6. Risk and Title to the Goods
6.1 Risk of or loss or damage to the Goods shall pass to the Customer from the time of delivery which shall be upon despatch from Curtis's or its supplier's address.
6.2 Notwithstanding delivery having been made and the passing of risk in the Goods the property in the Goods shall remain with Curtis and shall not pass to the Customer until:
(i) Curtis has received in cash or clear funds payment in full of the price of the Goods plus if applicable Value Added Tax and any other sums invoiced or due; and
(ii) no other sums whatever and whether or not under a separate contract shall be due from the Customer to Curtis.
6.3 Until property in the Goods passes to the Customer in accordance with the above the Customer shall hold the Goods and each of them on a fiduciary basis as bailee for Curtis. The Customer (where applicable) shall store the Goods (at no cost to Curtis) separately from all other Goods in its possession and marked in such a way that they are clearly identified as the property of Curtis.
6.4 Notwithstanding that the Goods (or any of them) remain the property of Curtis the Customer may use the Goods in the ordinary course of the Customer's business.
6.5 Curtis shall be entitled to maintain an action and recover the price (plus vat and other monies due) notwithstanding that property in any of the Goods has not passed from Curtis.
6.6 Until such time as property in the Goods passes to the Customer, the Customer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to Curtis. If the Customer fails to do so Curtis may enter upon any premises owned occupied or controlled by the Customer where the Goods are situated and repossess them. On the making of such request the rights of the Customer under this clause shall cease.
6.7 The Customer shall not pledge or in any way charge by way of security for any indebtedness of any of the Goods which are the property of Curtis. Without prejudice to the other rights or remedies of Curtis, if the Customer does so all sums whatever owing by the Customer to Curtis shall forthwith become due and payable.
6.8 The Customer shall insure and keep insured the Goods to the full price against "all risks" to the reasonable satisfaction of Curtis up to the date that property in the Goods passes to the Customer and shall whenever requested by Curtis produce a copy of the policy of insurance. Without prejudice to the other rights of Curtis, if the Customer fails to do so or where Goods are lost destroyed or damaged after delivery, all sums whatever owing by the Customer to Curtis shall forthwith become due and payable.
7. Assignment
7.1 Curtis may licence assign or sub-contract all or any parts of its rights and obligations under the Contract without the Customer's consent.
7.2 The Customer shall not be entitled to assign, or otherwise transfer any of the provisions of the Contract whether in whole or part without the prior written consent of Curtis.
8. Insolvency
8.1 If the Customer fails to make payment for the Goods in accordance with the Contract or under any other separate contract or commits any other breach of contract or if any distress or execution shall be levied upon any of the Customer's goods or if the Customer offers to make any arrangement with its creditors or if any petition of bankruptcy is presented against the Customer or the Customer is unable to pay its debts as they fall due or if being a Limited Company any resolution or petition to wind up the Customer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a Receiver, Administrative Receiver or Manager shall be appointed over the whole or any part of the Customer's business or assets or if any petition for the appointment of an Administrator is presented against the Customer or if the Customer shall suffer any analogous proceedings under foreign law, or if in the opinion of Curtis the Customer's credit and/or its financial standing becomes or will become impaired, then all sums outstanding in respect of the Goods shall become payable immediately. Curtis shall be entitled in its absolute discretion and without prejudice to any other rights it may have to:
(i) Suspend all work and performance of its obligations under the Contract and all future deliveries of Goods to the Customer; and/or
(ii) Terminate the Contract without liability upon its part and cancel any accepted orders or delay shipments of any order; and/or
(iii) Charge for any work carried out whether completed or not and for Goods or materials purchased at the Customer's request; and/or
(iv) Exercise any of its rights pursuant to clause 6 and in particular where the property in the Goods has not passed, immediately after notice of its intention has been given, Curtis shall be entitled to enter upon any premises owned occupied or controlled by the Customer with such transport as is necessary and repossess any Goods to which it has title. No liquidator, receiver, administrator, administrative receiver or other shall have authority to sell Goods to which Curtis has title.
8.2 The customer shall immediately notify Curtis upon the happening of any insolvency event as described in clause 8.1.
9. Intellectual Property
9.1 The Customer acknowledges that any and all of the copyrights, patent rights, trademarks, registered designs or other intellectual property rights subsisting in or relating to the Goods and the specification are and remain the property of Curtis or where manufactured by a third party, such third party and the Customer undertakes that patent numbers, tradenames or other trademarks on Goods supplied shall not be obliterated, altered or defaced.
9.2 All goods sold in retail packaging may be resold by the Customer only in the packaging supplied by Curtis and in no case may any trademark or tradename other than those applied by Curtis or other manufacturer be marked on or applied in relation to the Goods. The Customer shall not remove any sticker or notice applied by Curtis to the goods.
9.3 No right or licence is granted to the Customer under any patent trademark, copyright, registered design or other intellectual property right except the right to use or resell the Goods.
9.4 Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of Curtis then the Customer warrants that the use of those designs or specifications for the manufacture processing assembly or supply of the Goods shall not infringe the rights of any third party.
10. Cancellation/Amendment to Orders
10.1 Curtis may terminate the Contract on the occurrence of any of the following events:
(i) failure by the Customer to pay any amount due under this contract in full within 7 working days of the due date and to remedy such failure within 3 working days of receipt of written notice to do so; or
(ii) failure by the Customer to comply with any other terms of these conditions and which (in the case of a breach capable of being remedied) shall not have been remedied within 10 days of a written request to remedy the same
10.2 Notwithstanding the above, Curtis may suspend further supply or delivery, stop any Goods in transit or cancel the Contract at any time by giving written notice. On giving such notice Curtis shall promptly repay to the Customer any sums paid. Curtis shall not be liable for any loss or damage whatsoever arising from such cancellation.
10.3 Any termination for whatever reason of the Contract shall be without prejudice to any other remedies or rights Curtis may be entitled to hereunder or at law and shall not affect any of its accrued rights or liabilities.
10.4 The Customer may not cancel any order or the Contract which has been accepted by Curtis without the consent in writing of Curtis. In the event that Curtis accepts cancellation of an order the Customer undertakes to indemnify Curtis in full against all loss and expenses (including profit loss), and the costs of all labour and materials used, damages charged and expenses incurred as a result of cancellation.
10.5 Any amendments/alterations to orders placed must be notified to Curtis in writing either prior to or at the point of receipt by the Customer of Curtis's acknowledgement of order. The Customer shall indemnify Curtis against any costs incurred by manufacturers or other third parties for such amendments/alterations. If no notification has been received within 24 hours of Curtis's acknowledgement of order it will be assumed that the Goods specified are correct.
10.6 Any changes to fabric colours in relation to upholstery work made following the placing of an order by a Customer will incur a charge for any work already carried out.
11. Waiver
No indulgence or failure by Curtis to enforce any of its rights or remedies shall constitute a waiver of such rights or remedies to preclude Curtis from thereafter exercising the same. Nor shall completion of the Contract constitute a waiver by Curtis in relation to any conditions which are to apply after completion.
12. Notices
Any notice to be given under the Contract shall be in writing and shall be sufficiently given to any party if sent in a letter by first class post addressed to that party and any notice so given shall be deemed unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
13. General
13.1 If any provision of these conditions is prohibited by law or judged by a court or other competent authority to be illegal, unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these conditions and rendered ineffective as far as possible without modifying the remaining provisions of these conditions and shall not in any way affect any other circumstances of or the validity or enforcement of these conditions.
13.2 No provision of these conditions shall apply to the extent that it affects the statutory rights of consumers. Nor are they intended to exclude Curtis's liability for fraudulent misrepresentation or for death or personal injury resulting from its negligence. Nor do any conditions attempting to exclude or restrict Curtis's liability apply where liability may not be so excluded or limited under any applicable laws.
13.3 The remedies provided in these conditions are in addition to, and are not exclusive of, any remedies provided by law.
13.4 The Contracts (Rights of Third Parties) Act 1999 shall not apply to these conditions.
