IF YOU’RE BUYING A PRODUCT FROM THE COMFORT FACTORY, PLEASE PAY PARTICULAR ATTENTION TO THE CONTENT OF CONDITION 20.
1. INTERPRETATION »
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer » the person, firm or company that purchases the Goods from the Company.
Company » James Spencer & Co. Limited registered in England and Wales with company number 00470429 whose registered office is at Prospect Mill, Main Street, Wilsden, Bradford, West Yorkshire, BD15 0JR.
Contract » any contract between the Company and the Buyer for the sale and purchase of Goods, incorporating these conditions.
Delivery Point » the place where delivery of the Goods is to take place under condition 6.
Goods » any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
Guarantee » any guarantee provided by the Company to the Buyer from time to time.
Sales Department » the sales department of the Company.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS »
2.1 Subject to any variation under condition 2.3 the Contract shall be on these terms to the exclusion of all the other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification (or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by the chairman of the Company. The Buyer 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 the conditions shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 The Company reserves the right without prior notice to change the Company’s terms and conditions of sale for additional buyers’ guides, catalogues, price lists, brochures and literature produced by the Company.
3. ORDERING »
3.1 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
3.2 No order placed by the Buyer shall be deemed to be accepted by the Company until written acknowledgement of the order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer. In this condition written acknowledgment includes but is not limited to confirmation by letter, receipt, fax or email. All orders placed online will be acknowledged by email only.
3.3 The Company accepts orders by phone, fax, e mail, web-site, in writing or in person. The Buyer must state the quantity, product name, specification, delivery and invoice, together with a contact name, method of contact and appropriate details, and where to send the order acknowledgment.
3.4 Excluding Government financed establishments, for orders with a value in excess of £1,000 the Buyer must complete and return a credit application form available from the Company prior to the order being fully processed. Goods will not be despatched to the Buyer from the Company unless this has been received.
3.5 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
3.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
3.7 Any quotation is given on the basis that no Contract shall come into existence until the Company has despatched an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.8 Government financed establishments must submit an official order number when placing their order. NHS hospitals should contact the Company directly for details of applicable exceptions to this requirement.
3.9 The Buyer should be aware that when ordering ‘natural beech’ wood Goods, that dark grain markings are a natural characteristic of this timber and may appear visible to a greater or lesser extent.
3.10 Unless the Buyer is a consumer, the Buyer may not cancel a Contract unless consent to such cancellation is provided in writing by the Company.
4. PRICING »
4.1 The current prices of the Goods will be shown on the order acknowledgement or written quotation.
4.2 All prices shown for the Goods are inclusive of VAT.
4.3 The Company reserves the right to change without prior notice, the net order value for free delivery and/or the carriage charge.
4.4 All invoices are due for payment within 30 days of invoice date. Any credit limit may be withdrawn and a pro-forma system introduced should this term be breached.
4.5 Private individuals are requested to pay on receipt of a pro-forma invoice.
4.6 All orders placed via the Company’s website shall be paid for at the time the order is placed. Payment shall not be taken for the Goods until the Company has confirmed that the order can be fulfilled. In the event that the order cannot be fulfilled, the Company will contact the Buyer directly.
5. CARRIAGE »
5.1 Carriage is free on all orders to all areas of England, Wales, Scotland and Northern Ireland.
5.2 Carriage is charged on all orders to Northern Ireland, Offshore British Isles and for export.
5.3 The Company reserves the right to amend prices and implement a fuel surcharge at anytime.
6. DELIVERY »
6.1 Unless otherwise agreed in writing by the Company, the Company’s carriers will only deliver the Goods to the delivery address shown on the acknowledgment of order.
6.2 The Buyer shall take delivery within 5 working days of the Company giving notice to the Buyer that the Goods are ready for delivery. In the event that the Buyer is unable to accept delivery of the Goods during this time, an additional holding charge will be incurred by the Buyer, which shall be a reasonable sum based on the circumstances and shall be notified to the Buyer at the time.
6.3 Any dates specified delivery by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are specified, delivery shall be within a reasonable time.
6.4 Deliveries shall take place during normal office hours to the door on the ground floor of the premises stated on the order form. Any departure from this Contract will lead to an additional charge being levied. The Buyer shall provide at the delivery address and at – its own expense, adequate and appropriate equipment and manual labour for the unloading of the Goods. Delivery of the Goods is to an easily accessible point, not to their final location.
6.5 The Company reserves the right to make additional charges for any special arrangements made for the delivery of Goods after the Buyer’s order has been processed.
6.6 The Buyer shall upon receipt check the number of cartons against the consignment note and sign for the Goods ’unexamined’.
6.7 In the event that the Buyer identifies any damage to the Goods, the consignment note should be marked ‘damages’. Shortages and/or damage must be reported to the Company in writing within 5 working days of delivery. Such notification will be acknowledged by the Company in writing. In the event that damage has occurred the Buyer shall retain all packaging. The Company’s carriers will refuse to uplift unpacked goods.
6.8 The Buyer may arrange for the Goods to be collected from the Company. This must be stated at the time the order is made, together with the name and telephone number and email address (if applicable) of the person who will be collecting them. This person will be contacted once the Goods are ready for collection.
6.9 No delay in delivery of the Goods shall entitle the Buyer to terminate or rescind the Contract.
6.10 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
6.10.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
6.10.2 the Goods shall be deemed to have been delivered; and
6.10.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including storage and insurance), to a maximum of 5% net value of the Goods held over.
6.11 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
6.12 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any Contract or instalment.
7. NON DELIVERY »
7.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer unless the Buyer can provide conclusive evidence proving the contrary.
7.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 5 working days of the date when the Goods would in the ordinary course of events have been received.
7.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro-rata Contract rate against any invoice raised for such Goods.
8. QUALITY »
8.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
8.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery the Goods shall be of a satisfactory quality with the meaning of Sale of Goods Act 1979 and shall be reasonably fit for purpose.
8.3 The Company shall not be liable for any breach of warranty in condition 8.2 unless:
8.3.1 the Buyer gives written notice of the defect to the Company and if the defect is a result of damage in transit to the carrier in accordance with condition 6.7;
8.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.
8.4 The Company shall not be liable for a breach of the warranties in 8.2 if:
8.4.1 the Buyer makes any further use of such Goods after giving such notice; or
8.4.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice: or
8.4.3 the Buyer alters or repairs such Goods without the written consent of the Company.
8.5 Subject to conditions 8.3 and 8.4, if any of the Goods do not conform with any of the warranties in condition 8.2, the Company shall at its option repair or replace the Goods (or the defective part) or refund the price of such Goods at the pro-rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
8.6 If the Company complies with condition 8.5 it shall have no further liability for a breach of any of the warranties in condition 8.2 in respect of such Goods.
8.7 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the period.
8.8 The Company offers the Guarantee for the benefit of the Buyer.
8.9 The Company will accept no liability under the Guarantee:
8.9.1 where the Buyer has not paid the price of the Goods by the due date; or
8.9.2 where damage to or deterioration of the Goods in question is caused by fair ware and tear, wilful damage, common neglect, misuse of the Goods, failure to follow the Company’s oral or written instructions in respect of the Goods, or alteration to, or repair of the Goods, without the prior written approval of the Company.
8.10 If the Buyer is a consumer, nothing in this condition 8 shall affect the Buyer’s statutory rights.
9. HEALTH & SAFETY FOR RETURNED GOODS »
9.1 All returned Goods must be clean and free from contamination in accordance with health & safety regulations pertaining to risk of infection to employees.
9.2 Any items contaminated with blood, faeces, urine and other body fluids pose a serious risk to health. The Company will not accept contaminated items and the Buyer will be advised by telephone that the Goods will be returned in the same condition as received. A carriage and handling charge will be made for the return of such Goods to the Buyer.
9.3 In the event that any contaminated Goods are accepted by the Company they will be disposed of by the Company. The costs of disposal will be at the Buyer’s expense.
10. SALE OR RETURN »
10.1 Under certain circumstances Goods may be despatched on a sale or return basis depending on size and location. The Buyer should contact the Sales Department to discuss this.
10.2 Once the Goods are delivered to the Buyer they become the responsibility of the Buyer. Should the Goods become lost/damaged or neglected whilst with the Buyer, the Company reserves the right to charge the Buyer for the whole item(s) and the cost of carriage or for restoring the Goods to a re-saleable condition.
10.3 Should the Goods be received damaged, the Buyer should keep the original packaging materials and repack the Goods. The Company’s carriers will not collect unpacked Goods as further damage may be incurred on the return journey to the Company, which will be the responsibility of the Buyer.
11. VAT EXEMPTION / ZERO RATING »
11.1 VAT exemption can be claimed on items marked * in the catalogue by individually registered disabled people purchasing with their own money for their own use. VAT. exemption can be claimed on items marked * or + in the catalogue purchased with money provided by a charity or with funds collected by the public, provided the equipment is donated to an individual registered as a disabled person, or a non profit making organisation caring for the chronically sick or registered disabled.
11.2 The Buyer must ensure that any Orders to which the exemptions in 11.1 are available are clearly marked “VAT. EXEMPTION APPLIED FOR”. VAT. exemption form(s) will be forwarded with the invoice. The forms must be completed and returned to us as soon as possible.
11.3 Any queries as to whether VAT should be charged on certain Goods should be directed to the HM Revenue & Customs National Advice Service, which can be contacted on 0845 010 9000.
12. RISK AND OWNERSHIP »
12.1 For mainland deliveries, the Goods are the risk of the Buyer from the time of delivery.
12.2 For all offshore and export orders the Goods are the risk of the Buyer from the time of despatch or collection from the Company.
12.3 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
12.3.1 the Goods; and
12.3.2 all other sums which are or which become due to the Company from the Buyer on any account.
12.4 The Buyer shall not sell the Goods prior to full payment being received by the Company.
12.5 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
12.5.1 hold the Goods on a fiduciary basis as the Company’s bailee;
12.5.2 store the Goods (at no cost to the Company) separately from all the other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
12.5.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
12.5.4 maintain the Goods in a satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
12.6 The Buyer’s right to possession of the Goods shall terminate immediately if:
12.6.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except where a solvent voluntary liquidation for the purpose only of restructure or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
12.6.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
12.6.3 the Buyer encumbers or in any way charges any of the Goods.
12.7 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
12.8 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
12.9 Where the Company is unable to determine whether any Goods are the Goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all Goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
12.10 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 12 shall remain in effect.
12.11 In the event of the events in conditions 12.6 occurring, the Company shall be entitled to cancel/suspend deliveries without liability to the Buyer or any other party.
12.12 Any outstanding amounts owing from the Buyer shall become due and payable immediately.
13. PAYMENT OF ACCOUNTS »
13.1 Payment of the price of the Goods is due in pounds sterling within 30 days of date of the invoice to the Buyer. The Company accepts payment by Switch/Maestro, Solo, MasterCard and Visa credit cards.
13.2 Time for payment shall be of the essence.
13.3 No payment shall be deemed to have been received until the Company has received cleared funds.
13.4 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
13.5 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall 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 Bank of Scotland bank, accruing on a daily basis until payment is made, whether before or after any judgement. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
14. LIMITATION OF LIABILITY »
14.1 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 Buyer in respect of:
14.1.1 any breach of these conditions;
14.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
14.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
14.2 Where the Buyer is not a consumer all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these conditions excludes or limits the liability of the Company:
14.3.1 or death or personal injury caused by the Company’s negligence; or
14.3.2 under section 2(3), Consumer Protection Act 1987; or
14.3.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
14.3.4 under the Consumer Contracts (information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134); or
14.3.5 for fraud or fraudulent misrepresentation.
14.4 Subject to condition 14.2 and condition 14.3:
14.4.1 the Company’s total 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 the Contract price; and
14.4.2 the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
15. ASSIGNMENT »
15.1 The Company may assign the Contract or any part of it to any person, firm or company,
15.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
16. FORCE MAJEURE »
16.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 60 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
17. GENERAL »
17.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
17.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
17.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
17.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties Act 1999) by any person that is not a party to it.
18. COMMUNICATIONS »
18.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
18.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
18.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
18.2 Communications shall be deemed to have been received:
18.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
18.2.2 if delivered by hand, on the day of delivery; or
18.2.3 if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day;
18.3 Communications pursuant to conditions 3, 4 and 6 may be made by email. All communications sent via email will, if sent on a working day before 4.00pm, be deemed to have been received at the time of transmission and otherwise on the next working day.
19. FORUM »
19.1 The laws of England govern this Contract.
19.2 The courts of England shall have exclusive jurisdiction to decide any dispute arising under any Contract entered into by the Buyer with the Company
20. CONSUMER CONTRACTS »
20.1 If the Buyer is contracting as a consumer, it may cancel a Contract at any time within fourteen days after the date the Buyer received the Goods. In this case, the Buyer will receive a full refund of the price paid for the Goods in accordance with condition 20.3.
20.2 To cancel a Contract, in accordance with condition 20.1 the Buyer must inform the Company in writing and return the Goods to the Company immediately, in the same condition in which they were received by the Buyer, and at the Buyer’s own cost and risk. The Buyer has a legal obligation to take reasonable care of the Goods while they are in its possession. If the Buyer fails to comply with this obligation, the Company may have a right to reduce the amount of the refund to the Buyer.
20.3 If the Buyer cancels the Contract in accordance with conditions 20.1 and 20.2 the Company shall refund the Buyer the purchase price of the Goods in full (including any applicable standard carriage charges) as soon as possible and in any event within fourteen days of receiving the returned Goods or proof that the Goods have been returned to the Company (whichever is earlier).
20.4 Nothing in this condition 20 affects the Buyer’s statutory rights.