TERMS & CONDITIONS

The Customer’s attention is drawn in particular to Clause 9.

• INTERPRETATION
  • Definitions:
• “Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
• “Business Hours” means the period from 9.00 am to 5.00 pm on any Business Day.
• “Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with Clause 4.
• “Contract” means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
• “Customer” means the person or firm who purchases the Goods from the Supplier.
• “Delivery Location” has the meaning given in Clause 2.
• “Force Majeure Event” means an event, circumstance or cause beyond a party’s reasonable control.
• “Goods” means the goods (or any part of them) set out in the Order.
• “Losses” means all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
• “Order” means the Customer’s order for the Goods, as set out in the Customer’s purchase order form.
• “Specification” means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
• “Supplier” means Moulded Foams Limited, registered in Scotland with company number SC146277, and having its registered office at 1 Wardpark Road, Wardpark South, Cumbernauld, Glasgow, G67 3EX.
• “Warranty Period” has the meaning given in Clause 1.
  • Interpretation:
    • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
    • A reference to a party includes its successors and permitted assigns.
    • A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
    • Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
    • A reference to writing or written excludes fax but not email.
  • BASIS OF CONTRACT
    • 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 law, trade custom, practice or course of dealing.
    • The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer must ensure that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
    • The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point, and on which date, the Contract shall come into existence.
    • The Customer waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
    • Any samples, drawings, descriptive matter or advertising produced by or on behalf of the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures (whether digital or otherwise) are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
    • A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
  • GOODS
    • The Goods are described in the Supplier’s Specification.
    • To the extent that the Supplier manufactures (or appoints a third party to manufacture) the Goods in accordance with information supplied by the Customer (and which may be incorporated into the Specification), the Customer shall indemnify the Supplier against all Losses incurred by the Supplier as a result of any claim that the Supplier’s use of such information infringes the intellectual property rights of any third party. This Clause 2 shall survive termination of the Contract.
    • The Supplier reserves the right to amend the Specification if pursuant to Clause 2 it infringes a third party’s intellectual property rights, or as required by any applicable law or regulatory requirement, and shall notify the Customer in any such event.
  • SAMPLES, SPECIFICATION and tools
    • Any sample or Specification provided by the Supplier, and any intellectual property rights in the same, shall remain the property of the Supplier. Any sample or Specification is issued on the condition that it shall not be copied or reprinted, and its contents shall not be disclosed either wholly or in part to any third party without the Supplier’s written consent. The Customer shall indemnify the Supplier against all Losses incurred by the Supplier as a result of any such authorised use by the Customer.
    • Any tools, dyes and stereos supplied by the Supplier shall remain the property of the Supplier. Notwithstanding the foregoing, ownership of these items may be transferred to the Customer upon the Supplier’s written agreement and payment by the Customer to the Supplier of an agreed amount for such items.
    • The Supplier shall be entitled to charge the Customer for any tool modification that is required to supply the Goods.
  • DELIVERY
    • The Supplier shall ensure that:
      • each delivery of the Goods is accompanied by a delivery note that shows all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
      • it states on the delivery note if it requires the Customer to return any packaging materials, in which case the Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
    • The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (“Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready.
    • Delivery is completed on the completion of the Goods being available at the agreed Delivery Location.
    • 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.
    • If the Supplier fails to deliver the Goods, the Supplier shall be liable to pay compensation to the Customer for its proven loss up to but not exceeding the price payable for the undelivered Goods under the Contract. The Supplier shall not be liable for any failure to deliver 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.
    • If the Customer fails to take or accept delivery of the Goods within three Business Days of the Supplier notifying the Customer in writing that the Goods are ready for delivery, then, except where such failure is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
      • delivery of the Goods shall be deemed to have been completed at 9.00 am on the fourth Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
      • the Supplier shall store the Goods until actual delivery takes place, and shall, without limiting its rights, be entitled to charge the Customer for all related costs and expenses (including insurance).
    • If ten Business Days after the date on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, without limiting its rights and after deducting reasonable costs and expenses related to storage (including insurance) and selling, charge the Customer for any shortfall below the price of the Goods.
    • The Customer acknowledges that the Supplier cannot guarantee the exact quantity of the Goods ordered. As such, the Supplier reserves the right to over or under deliver by a quantity not exceeding 10%, and the Customer may not reject them. In such circumstances:
      • if there is an under delivery, the Customer shall notify the Supplier in writing, and the Supplier shall make a pro rata adjustment to the invoice for the Goods; and
      • if there is an over delivery, the Supplier shall be entitled to invoice for any over delivery of Goods regardless of whether the Customer has notified the Supplier of this.
    • The Supplier may deliver the Goods by instalments, which it shall invoice and which the Customer shall pay for separately. Each instalment shall constitute a separate contract. Any delay in delivery of or defect in an instalment shall not entitle the Customer to cancel any other instalment.
  • QUALITY
    • The Supplier warrants that on delivery, and for a period of 1 month from the date of delivery (“Warranty Period”), the Goods shall:
      • conform in all material respects with the Specification, however the Customer acknowledges that the Supplier shall accept no responsibility for small or inconsequential variations from the Specification;
      • be free from material defects in design, material and workmanship; and
      • be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
      • be fit for any purpose held out by the Supplier.
    • Subject to Clause 3, if:
      • during the Warranty Period, the Customer gives notice in writing to the Supplier within 7 days of discovery that some or all of the Goods do not comply with the warranty set out in Clause 1;
      • the Supplier is given a reasonable opportunity of examining such Goods; and
      • the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,

the Supplier shall, at its option and to the extent that it agrees that such Goods do not comply with the warranty set out in Clause 6.1, repair or replace the defective Goods, or refund the price of the defective Goods in full.

• The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in Clause 1 if:
  • the Customer makes any further use of such Goods after giving notice in accordance with Clause 2;
  • the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
  • the defect arises as a result of the Supplier following any drawing, design or specification supplied by or on behalf of the Customer, or following the Customer’s approval of any drawing, design or sample provided by the Supplier;
  • the defect arises due to: (i) information or materials provided by the Customer; or (ii) the workmanship of subcontractors nominated by the Customer;
  • the Customer alters or repairs such Goods without the written consent of the Supplier;
  • the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
  • the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
• Except as provided in this Clause 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Clause 1.
• The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
• Any other warranty that is not detailed in these Conditions is, to the fullest extent permitted by law, hereby excluded from the Contract.
• These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

• TITLE AND RISK
  • The risk in the Goods shall pass to the Customer on completion of delivery.
  • Title to the Goods shall not pass to the Customer until the earlier of:
    • the Supplier receives payment in full (in cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; or
    • the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in Clause 4.
  • Until title to the Goods has passed to the Customer, the Customer shall:
    • store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
    • not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
    • maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
    • notify the Supplier immediately if it becomes subject to any of the events listed in Clause 1.2 to Clause 10.1.4; and
    • give the Supplier such information as the Supplier may reasonably require from time to time relating to:
      • the Goods; and
      • the Customer’s ongoing financial position.
    • Subject to Clause 5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
      • it does so as principal and not as the Supplier’s agent; and
      • title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
    • At any time before title to the Goods passes to the Customer, the Supplier may:
      • by notice in writing to the Customer, terminate the Customer’s right under Clause 4 to resell the Goods or use them in the ordinary course of its business; and
      • require the Customer to deliver up all Goods in its possession and control that have not been resold or irrevocably incorporated into another product, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored, to recover them. The Customer shall procure entry to any such third party’s premises if requested to do so by the Supplier.
    • PRICE AND PAYMENT
      • 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.
      • The Supplier may, by giving notice in writing to the Customer at any time up to 28 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
        • any factor beyond the Supplier’s control, including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs;
        • any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
        • any delay caused by any instructions of the Customer or failure of the Customer to give or delay by the Customer in giving the Supplier adequate or accurate information or instructions.
      • The price of the Goods:
        • excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
        • excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
      • The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery pursuant to Clause 3.
      • The Customer shall pay each invoice submitted by the Supplier:
        • in accordance with any credit terms agreed in writing by the Supplier; and
        • in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
      • If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then without limiting the Supplier’s remedies under Clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
      • All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
    • LIMITATION OF LIABILITY
      • The limits and exclusions in this Clause 9 reflect the insurance cover the Supplier has been able to arrange. The Customer and all other persons affected by the Contract or its performance are hereby given express notice of the following terms of limitations and exclusion of the Seller’s liabilities under the Contract, and the Customer agrees to make its own insurance arrangements for any excluded or excess liability.
      • References to liability in this Clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
      • Nothing in the Contract limits any liability for:
        • death or personal injury caused by negligence;
        • fraud or fraudulent misrepresentation;
        • any liability that cannot legally be limited; or
        • the Customer’s payment obligations under the Contract.
      • Subject to Clause 3, the Supplier’s total liability to the Customer shall not exceed exceeding the price paid or payable for the Goods under this Contract.
      • Subject to Clause 3, the following types of loss are wholly excluded:
        • loss of profits (including loss of anticipated savings);
        • loss of sales or business;
        • loss of agreements or contracts;
        • loss of use or corruption of software, data or information;
        • loss of or damage to goodwill; and
        • indirect or consequential loss.
      • This Clause 9 shall survive termination of the Contract.
    • TERMINATION
      • Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
        • the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of it being notified in writing to do so;
        • the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
        • the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
        • the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
      • Without limiting its other rights or remedies, the Supplier may suspend supply of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in Clause 1.2 to Clause 10.1.4, 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.
      • Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
      • On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which the Customer shall pay immediately on receipt.
      • Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
      • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
    • FORCE MAJEURE

Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 30 days, the party not affected may terminate the Contract by giving not less than 30 days’ written notice to the affected party.

• GENERAL
  • Assignment and other dealings.
    • The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract provided that it gives prior written notice of such dealing to the Customer.
    • The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
  • Confidentiality.
    • Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 2.1.
    • Each party may disclose the other party’s confidential information:
      • to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 2; and
      • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    • Neither party may use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
  • Entire agreement.
    • The Contract constitutes the entire agreement between the parties.
    • Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
  • No variation of the Contract shall be effective unless it is in writing and signed by the parties.
  • • Except as set out in Clause 4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
    • A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
  • If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this Clause 12.6, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
  • • Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
      • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or its principal place of business (in any other case); or
      • sent by email to the addresses detailed in the Order for each party (or such address as notified in writing by the parties from time to time).
    • Any notice shall be deemed to have been received:
      • if delivered by hand, at the time the notice is left at the proper address;
      • 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; or
      • if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
    • This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  • Third party rights.
    • The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
    • The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
  • Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
  • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.