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Bedwell Bedding Limited – Terms and Conditions of Sale

The Customer’s attention is drawn in particular to the provisions of paragraph 4.

1. INTERPRETATION

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.

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.

Force Majeure Event: has the meaning given in paragraph 8.

Goods: the goods (or any part of them) set out in the Order.

Order: the Customer’s order for the Goods, as contained in the Customer’s purchase order or in the Customer’s acceptance of the Supplier’s quotation.

Specification: The description of the Goods contained in the Supplier’s current catalogue or current website.

Supplier: Bedwell Bedding Limited (registered in England and Wales with company number 7513963) whose registered office is at Sandholme Farm, Skipton-on-Swale, North Yorkshire, Y07 4SB.

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 Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.

2.3 An Order should ordinarily be in writing (although the Supplier may, at its discretion accept a verbal Order) and shall only be deemed to be accepted when the Supplier:

(a) issues a written acceptance of the Order; or

(b) despatches the Goods,

at which point the Contract shall come into existence.

2.4 The Contract constitutes the entire agreement between the parties.

2.5 A quotation for the Goods given by the Supplier shall not constitute an offer.

3. DELIVERY

3.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location).

3.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

3.3 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 Goods 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 Goods.

3.4 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.

3.5 If the Customer fails to accept delivery of the Goods 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) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance);

(b) If 10 Business Days after the day on which the Supplier made the Goods available for delivery 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, charge the Customer for any shortfall below the price of the Goods.

3.6 If Goods are to be delivered by instalments, 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.

3.7 If Goods are delivered on pallets the pallet shall remain the property of the Supplier and be returned to the Supplier. In the event of non return the Supplier reserves the right to invoice the Customer for the cost of replacement pallet(s).

4. QUALITY, FITNESS FOR USE AND LIMITATION OF LIABILITY

4.1 The Goods are supplied for use as bedding material only and should not be used for any other purpose (either immediately or subsequent to their use as a bedding material).

4.2 The Supplier warrants that on delivery the Goods shall conform in all material respects with the Specification;

4.3 Save as warranted at paragraph 4.2 above, the Supplier provides no warranty, express or implied, that the Goods conform to any other specification, or are suitable for any specific purpose, unless written confirmation is given by the Supplier to the Customer of such conformity or of such suitability for use. The Customer is responsible for ascertaining and familiarising itself with the suitability of the Goods for the use to which they are to be put and with the potential risks associated with such intended use.

4.4 Any recommendation given by the Supplier to the Customer that the Goods are suitable for a specific purpose shall be constitute an opinion only and shall not be construed as an express or implied warranty of suitability of the Goods for such purpose unless written confirmation of a warranty to that effect is provided by the Supplier to the Customer.

4.5 The Customer acknowledges that, save for;

(a) the Specification; and

(b) any written confirmation of warranty given pursuant to paragraph 4.4, it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier.

4.6 The Supplier expressly notifies the Customer that the Goods have not been evaluated for their safety by the Company, any government department or any other agency and the Company accordingly accepts no responsibility for evaluating the safety of the Goods or the risks associated with their use.

4.7 The Customer shall ensure that all sub-purchasers of the Goods from it are made aware of the provisions of this paragraph 4 before purchasing the Goods.

4.8 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, or any indirect or consequential loss arising under or in connection with the Contract.

4.9 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 Goods.

4.10 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) breach of the terms implied by section 12 of the Sale of Goods Act 1979;

(d) defective products under the Consumer Protection Act 1987; or

(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

5. TITLE AND RISK

5.1 The risk in the Goods shall pass to the Customer on completion of delivery.

5.2 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; and

(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in paragraph 5.3.

5.3 Subject to paragraph 5.4, 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 in which event title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in paragraph 7.2, 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 which 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.

6. PRICE AND PAYMENT

6.1 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.

6.2 Unless agreed to the contrary the price of the Goods is exclusive of the cost of delivery of the Goods, which shall be invoiced to the Customer.

6.3 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

6.4 The Supplier may invoice the Customer for the Goods on or at any time after acceptance of the Order.

6.5 The Customer shall pay the invoice in full and in cleared funds within 28 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

6.6 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 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.

6.7 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.

7. TERMINATION AND SUSPENSION

7.1 If the Customer becomes subject to any of the events listed in paragraph 7.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.

7.2 For the purposes of paragraph 7.1, the relevant events are:

(a) the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or

(c) the Customer ceases, or threatens to cease, to carry on business; or (d) the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

7.3 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 7.2, 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.

7.4 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.

7.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.

7.6 Provisions which expressly or by implication survive termination of the Contract shall continue in full force and effect.

8. 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 beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.

9. ASSIGNMENT AND OTHER DEALINGS.

9.1 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.

9.2 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.

9.3 The trading name and goodwill of Bedwell Bedding Limited and “Equinola” belong exclusively to the Supplier and shall not be used by another without the express written consent of the Supplier. The Supplier reserves the right to bring a claim for damages in the event any misrepresentation or other wrongful use of Bedwell Bedding Limited or Equinola is carried on.

10. NOTICES.

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 paragraph, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax [or e-mail].

(a) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in paragraph 8.2(a); 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 delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.

(b) The provisions of this paragraph 10 shall not apply to the service of any proceedings or other documents in any legal action.

11. 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 paragraph shall not affect the validity and enforceability of the rest of the Contract.

12. WAIVER. A waiver of any right or remedy under the Contract or law 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 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.

13. THIRD PARTY RIGHTS. A person who is not a party to the Contract shall not have any rights to enforce its terms.

14. VARIATION. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.

15. GOVERNING LAW. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.

16. JURISDICTION. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).