1. INTERPRETATION

The following definitions, unless the context requires otherwise, and rules of interpretation in Condition 1 shall apply to these Conditions:

Account: the credit account (if any) provided to the Customer by the Company;

Additional Terms: any terms varying or adding to the Conditions that are included within the order acknowledgement or otherwise agreed in writing by the Company;

Company: JA Upholstery Ltd, which is a company registered in England and Wales (CRN: 3189681), whose registered office is at 66A Armley Road, Armley, Leeds LS12 2EJ;

Contract: any contract between the Company and the Customer for the purchase of Goods and/or Services in accordance with and subject to the Conditions and Additional Terms;

Customer: the person, company or other type of organisation that enters into a Contract;

Goods: goods the Company agrees in a Contract to supply to the Customer;

Price: is defined in Condition 7.1; and

Services: services the Company agrees in a Contract to supply to the Customer.

1.1 References to the masculine include the feminine and the neuter, and the singular include the plural and, in each case, vice versa. Reference to a statute or statutory instrument is a reference to it as it is in force for the time being and includes reference to any amendment, extension, application or re-enactment and includes any subordinate legislation made under it.

1.2 Headings do not affect the interpretation of the Conditions.

2. APPLICATION OF TERMS

2.1 Subject to Condition 2.2, the Conditions apply to all Contracts to the exclusion of all other terms and conditions. No terms or conditions of the Customer (whether endorsed on, delivered with, or contained in the Customer’s purchase order or other documents) shall form part of any Contract and any attempt by the Customer to exclude, vary or limit any Conditions shall be void.

2.2 Any variation to the Conditions, and any representations about the Goods and/or Services, shall have no effect and shall not form part of the Contract unless expressly agreed in writing by the Company.

2.3 The Company may provide the Customer with an oral or written quotation. A quotation so provided is an invitation to treat by the Company to supply the Goods and/or Services, subject to the Conditions, to the Customer. A quotation is valid for 30 days from its date, provided that the Company has not previously withdrawn it.

2.4 An acceptance of a quotation or the placing of an order by the Customer shall be deemed to be an offer, subject to the Conditions, to purchase the Goods and/or Services stated therein from the Company.

2.5 No quotation accepted or order placed by the Customer shall be deemed to be accepted by the Company until the Company confirms acceptance in writing or, if earlier, delivers the Goods and/or commences performance of the Services.

2.6 No binding Contract will come into existence until an order acknowledgement is given by the Company in accordance with Condition 2.5 or, if earlier, by the Company delivering the Goods or commencing performance of the Services (whichever is the earlier).

3. DESCRIPTION

3.1 The quantity and description of the Goods and/or Services is set out in the Company’s quotation and/or order acknowledgement and the Contract.

3.2 All descriptions, drawings, specifications, technical data and illustrations and any advertising or other materials issued by the Company, or contained in the Company’s brochures or website, are approximations and for information purposes only, should not be relied on by the Customer as precise or construed literally and shall not form part of the Contract.

3.3 The Company reserves the right to change any descriptions, drawings, specifications, technical data, illustrations, brochures, advertising materials, its website and any other materials provided at any time without notice.

3.4 The Customer acknowledges that, whilst every effort will be made by the Company to match all colours and finishes, Goods are supplied on the understanding that there may be slight dye and shade variations and that the finish of Goods containing natural products or materials (such as wood) or leather products may vary from sample to sample and product to product, may not be uniform in colour or texture, or in the case of wood may contain grain variations, and may include natural marks and scars. Any such natural variations shall not be a defect for the purposes of Condition 10.2.

4. DELIVERY

4.1 Unless otherwise agreed in writing, delivery of the Goods and/or Services shall take place at the Company’s premises (“Delivery Point”).

4.2 The Company will endeavour to deliver the Goods and perform the Services by the date specified by the Company or, if none is specified, within a reasonable period of time. However, any such specified date is an estimate only and it is hereby expressly agreed that time for delivery shall not be, and shall not be made by notice, of the essence.

4.3 The Company’s record of the delivery date and description of the Goods and/or Services delivered to the Customer shall be conclusive evidence of such, unless the Customer can provide conclusive contrary evidence.

4.4 The Company may deliver the Goods by separate instalments, which shall be invoiced and paid for separately and in accordance with the provisions of the Contract. Each separate instalment shall be a separate Contract. No cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

4.5 If the quantity of Goods delivered to the Customer is up to 10% more or less than the quantity ordered the Customer must promptly notify the Company, is not entitled to reject all or any of the Goods for this reason and shall pay for any surplus or shall be issued with a credit note for any shortfall at the pro rata Contract rate.

4.6 If for any reason the Customer fails to collect the Goods from the Delivery Point within 24 hours of notification by the Company that the Goods are ready for delivery, or the Customer fails to take delivery of the Goods when the Goods are delivered by the Company or its nominated carrier directly to the Customer at the delivery address notified by the Customer to the Company, or the Customer wishes to delay delivery or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate access, instructions, documents, licences or authorisations:

(a) the Goods will be deemed to have been delivered; and

(b) the Company may store the Goods until actual delivery, whereupon the Customer shall be liable to pay the Company on demand all related reasonable costs and expenses (including, without limitation, storage and insurance costs).

4.7 If the Customer has not taken or accepted delivery of the Goods within 7 days of the notification by the Company that the Goods are ready for delivery or of attempted delivery of the Goods by the Company or its nominated carrier, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage, insurance and selling costs and any other related costs, account to the Customer for any excess over or charge the Customer for any shortfall in the Price.

4.8 Subject to the other Conditions and unless agreed otherwise by the Company, the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and any similar loss) costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods or performance of the Services (even if caused by the Company’s negligence) nor shall any such delay entitle the Customer to repudiate or terminate the Contract unless it exceeds 30 days and only in such a case where the delay is wholly and completely the fault of the Company.

5. CUSTOMER’S OBLIGATIONS AND WARRANTIES

5.1 The Customer shall pay the Price and any other amounts due under the Contract and these Conditions in accordance with Condition 8.

5.2 The Customer agrees and warrants to co-operate fully with the Company and provide any assistance required by the Company to supply the Goods and/or Services, in particular, but without limitation, the Customer agrees to do the following at its own expense:

(a) provide adequate and appropriate equipment and suitably trained and competent personnel at the Delivery Point to unload/load the Goods;

(b) inspect and check the Goods on delivery to ensure that they conform to the Contract and the Customer’s requirements;

(c) ensure an authorised representative of the Customer signs the delivery note (or the equivalent carrier’s documentation) on delivery to confirm that the Goods are as ordered and undamaged;

(d) ensure any material provided to the Company by the Customer for incorporation in to the Goods is fit for purpose;

(e) notify the Company of any particular purpose and/or specification required for the Goods and provide the Company with any and all other information, co-operation and support reasonably required to enable the Company to perform the Services and/or deliver the Goods in accordance with the Contract; and

(f) ensure that the Customer and all relevant users of the Goods (including, without limitation, employees, customers and/or agents of the Customer) are (to the extent reasonably required) fully familiar with the applicable instructions of installation, care, use and/or maintenance for the Goods, and that the Goods are used in accordance with such instructions and only for the particular purpose of the Goods or such other reasonable purposes.

5.3 If Goods are supplied under a Contract for use in conjunction with the Customer’s existing equipment and/or structures the Customer shall be entirely responsible for ensuring that such equipment and/or structures are in all respects suitable and adequate for the purpose and properly installed.

6. RISK/TITLE

6.1 The risk in the Goods shall pass to the Customer on delivery. Title in the Goods shall not pass to the Customer until the Company has received (in cash or cleared funds) from the Customer:

(a) the full Price for the Goods; and

(b) all other sums which are due to the Company from the Customer.

6.2 Until title in the Goods passes (as set out in Condition 6.1) the Customer shall:

(a) hold the Goods on a fiduciary basis as the Company’s bailee;

(b) store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;

(c) not remove, destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;

(d) maintain the Goods in satisfactory condition, keep them insured on the Company’s behalf for their full Price against all risks from the date of delivery and provide the Company with a copy of the insurance policy on request;

(e) notify the Company immediately if any of the events listed in Condition 6.4 occur; and

(f) deliver up the Goods to the Company on demand.

6.3 The Customer may only resell the Goods before title has passed if such sale is a sale of the Company’s property on the Customer’s own behalf as principal, made in the Customer’s ordinary course of business and at the full market value.

6.4 The Customer’s right to possess the Goods shall end immediately if it:

(a) has a bankruptcy order made against it or makes an arrangement or composition with its 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 a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager or 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 Customer or notice of intention to appoint an administrator is given by the Customer 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 Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer, or the Customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

(b) the Customer suspends, ceases or threatens to cease to carry on all or substantially the whole of its business or the Customer suffers or allows any execution, sequestration or such other process to be levied on its property or obtained against it or encumbers or in any way charges any of the Goods; or

(c) any event occurs or proceeding is taken, with respect to the Customer, in any jurisdiction to which it is subject that has a similar or equivalent effect to any of the events listed in Condition 6.4 (a) and (b).

6.5 The Company shall be entitled to recover payment for the Goods notwithstanding the fact that title in any of the Goods has not passed from the Company to the Customer.

6.6 The Customer grants the Company, its agents and employees an irrevocable licence to enter any premises where the Goods are or may be stored at any time to inspect or (where the Customer’s right to possession has ended) recover them.

6.7 If before title to the Goods passes to the Customer any of the events listed in Condition 6.4 occur or the Company reasonably believes any such event is about to occur and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy of the Company, the Company may at any time require the Customer to deliver up the Goods or use its rights in Condition 6.6.

6.8 If the Company repossesses any Goods or the Customer delivers up any Goods, in accordance with Condition 6, the Contract for those Goods shall be rescinded.

7. PRICE

7.1 Unless otherwise agreed by the Company in writing and subject to Conditions 7.2 and 7.3, the price for the Goods and/or Services shall be the price stated in the quotation or order acknowledgement provided by the Company to the Customer in accordance with Conditions 2.3 and 2.5, together with any VAT and delivery costs (“Price”).

7.2 The Price is based on the costs of materials, labour, sub-contracts, transport, taxes and duties and all other relevant costs at the date of the quotation and/or order acknowledgement and on the work being done in normal working hours.

7.3 The Company reserves the right to vary the Price, by giving notice to the Customer prior to delivery, to take account of any variation (howsoever arising) in the costs referred to in Condition 7.2 and/or the imposition of any new taxes or duties between the quotation or order acknowledgement date and the delivery date.

8. PAYMENT

8.1 Unless otherwise agreed in writing, for Customers with an Account that has not reached its credit limit each invoice submitted by the Company shall be paid by the Customer by the 20^th day of the month after delivery. For Customers without an Account, or with an Account that has reached its credit limit, the Price shall be paid for at the time of the order or on delivery as directed by the Company. Time for payment shall be of the essence.

8.2 The Company reserves the right to exercise its absolute discretion and cancel the Account by notice.

8.3 The Company reserves the right to suspend the Account if it decides, for whatever reason, that it requires further security from the Customer, other than that already provided (if any), for the performance and discharge of the Customer’s obligations under any Contract or for any other reason it considers reasonable. The Customer agrees to use its best endeavours to ensure that any additional security required by the Company (including, but not limited to, a third party providing a guarantee) is provided. The Company may decide to reinstate the Account if the Customer provides the additional security required or meets any other conditions required to be satisfied by the Company.

8.4 If the Company exercises its right to cancel or suspend the Account, in accordance with Conditions 8.2 and 8.3 respectively, all sums owed to the Company by the Customer at the date of cancellation or suspension shall be payable on demand and the Company may continue trading with the Customer on the basis set out in Condition 8 for Customers without an Account.

8.5 No payment shall be deemed to have been received until the Company has received cash or cleared funds and all sums payable to the Company under a Contract shall become due immediately on its termination, howsoever arising.

8.6 The Customer 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 Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.

8.7 Without prejudice to any of its other remedies, if any amount due from the Customer is not paid in accordance with the Conditions the Company may do all or any of the following:

(a) treat any or all Contracts as repudiated by the Customer;

(b) without notice suspend or cancel delivery of the Goods and/or performance of the Services under the Contract, and any other Contract, until the Customer pays the outstanding amount(s) in full;

(c) appropriate any payment made by the Customer under any other Contract with the Company to pay for any outstanding amounts as the Company may, in its sole discretion, think fit;

(d) charge interest at the annual rate of 4% above the base rate of HSBC Plc;

(e) claim interest under Late Payment of Commercial Debts (Interest) Act 1998.

8.8 On termination of the Contract, howsoever caused, the rights of the Company in this Condition 8 shall remain in effect.

9. CANCELLATION

9.1 If the Customer cancels the Contract before delivery of the Goods and/or performance of the Services then the Customer shall pay the Company such amount as the Company considers reasonable in the circumstances.

9.2 Any amounts payable by the Customer under Condition 9.1 shall be invoiced by the Company and shall be payable by the Customer within 7 days of the invoice date or as otherwise directed by the Company.

10. THE COMPANY’S WARRANTIES

10.1 Unless otherwise agreed in writing, the Company warrants that the Services will be provided with reasonable skill and care.

10.2 Subject to Conditions 10.3 to 10.8, and unless otherwise agreed in writing by the Company, the Company warrants that the Goods will conform in all material respects with their description and applicable specification at the time of delivery and will be free from defects in design, materials and workmanship for 12 months after delivery.

10.3 Subject to Conditions 10.4 to 10.8, if the relevant Goods do not conform with the warranty in Condition 10.2 the Company shall, at its option, repair or replace such Goods (or the defective part) or issue a credit note at the pro rata Contract rate to the Customer provided that the Customer:

(a) gives written notice of any breach of the warranty to the Company within 7 days of the time when the Customer discovers or ought to have discovered such; and

(b) gives the Company a reasonable opportunity, after receiving the notice, to examine the relevant Goods and the Customer (if asked by the Company) returns the relevant Goods (or the relevant part) to the Company’s premises at the Customer’s expense.

10.4 Condition 10.3 shall not apply if the defect arises as a result of normal wear and tear or the Customer’s negligence, failure to comply with the Conditions, failure to follow the Company’s oral or written instructions as to the storage, installation, care, use and/or maintenance of the Goods (including, without limitation, any and all applicable information about the Goods sent to the Customer and/or available on the Company’s website) or (if there are no such applicable instructions) good trade practice, or the Customer making any further use of the Goods after giving notice to the Company in accordance with Condition 10.3 or altering, modifying, mishandling or repairing the Goods.

10.5 If the Company complies with Condition 10.3 it shall have no further liability for a breach of the warranty in Condition 10.2 in respect of such Goods.

10.6 Any Goods that are returned by the Customer pursuant to Condition 10.3 shall belong to the Company unless the Company repairs such Goods in accordance with Condition 10.3. These Conditions shall apply to any repaired or replacement Goods supplied by the Company.

10.7 The warranty contained in Condition 10.2 shall not apply to any materials provided by the Customer to the Company for incorporation in to the Goods.

10.8 The Company’s reasonable opinion as to the cause of the defect shall be final and binding unless the Customer can provide conclusive evidence to the contrary.

11. LIMITATION OF LIABILITY

11.1 Subject to Condition 10, Condition 11 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and/or sub-contractors) to the Customer in respect of any breach of the Contract and any representation, statement, tortious act or omission, including negligence, arising under or in connection with the Contract.

11.2 Subject to Conditions 11.3 and 11.4:

(a) the Company shall not be liable to the Customer 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; and

(b) the Company’s total liability in contract, tort (including breach of statutory duty or negligence), misrepresentation, restitution or otherwise arising out of or in connection with the performance or contemplated performance of the Contract shall be limited to £10,000. If the Price is greater than £10,000, the Company’s liability shall be limited to the Price.

11.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

11.4 Nothing in the Conditions excludes or limits the Company’s liability for death or personal injury caused by the Company’s negligence or for fraud or fraudulent misrepresentation.

12. FORCE MAJEURE

12.1 The Company reserves the right to defer the date of delivery of the Goods and/or performance of the Services or cancel the Contract (in each case without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, labour disputes (other than in relation to the Company’s own workforce), or restraints or delays affecting suppliers or carriers, or inability or delay in obtaining supplies of adequate or suitable goods and materials, provided that, if the event in question continues for a continuous period in excess of 60 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.

13. INDEMNITY

13.1 The Customer shall be liable to pay the Company (on written demand) for, and indemnify the Company against, all reasonable costs, expenses, charges and losses sustained or incurred by the Company (including, but not limited to, any direct, indirect or consequential losses, loss of profit, loss of reputation, damage to property, loss of opportunity to deploy resources elsewhere, legal costs on an indemnity basis) arising directly or indirectly from the Customer’s fraud, negligence or failure to comply, or unreasonable delay in complying, with any of the Conditions.

14. GENERAL

14.1 If there are any differences between the information within the quotation and the order acknowledgement in respect of any Contract the latter shall prevail.

14.2 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.

14.3 All intellectual property rights, including, but without limitation, copyright and trademarks, and all other rights in any documentation or materials provided by the Company to the Customer under the Contract shall belong to the Company.

14.4 Except as permitted by law, the Customer shall not disclose any confidential information or commercial know-how provided by or relating to the Company.

14.5 If any Condition is found by any court to be wholly or partially illegal, invalid, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, unenforceability or unreasonableness be deemed severable and the remaining Conditions, and the remainder of such Condition, shall continue in full force and effect. In the event that such court decides that such Condition is not severable, the parties agree to substitute such Condition with a legal, valid, enforceable and reasonable Condition which achieves, to the greatest extent possible, the same commercial effect as the original Condition.

14.6 Failure or delay by the Company to enforce, or partially enforce, any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall be in writing and shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other provisions of the Contract.

14.7 No provisions of the Contract are enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Contract.

14.8 The formation, construction, performance, validity and all aspects of the Contract shall be governed by the law of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.

14.9 All communications between the parties about the Contract, including any notices to be sent or received under the Contract, must be in writing. All communications and notices sent, and invoices issued, shall be sent to the other party’s registered address, or such other address as is notified in writing by the other party, either by hand, first class post, email or facsimile and shall be deemed served on delivery if delivered by hand, 48 hours after posting if sent by post, and on completion of transmission if sent by email or facsimile.