Terms of Business - Original Fabrics

1. DEFINITIONS AND GENERAL

1.1 In these conditions referred to as “these Conditions” all references to “the Company” are to Original Fabrics Limited Company Number 05017618 of Unit B, Knowsley Park Way, Knowsley Road Industrial Estate, Haslingden BB4 4RS and all references to the “Buyer” are to the person firm or company who buys or agrees to buy the goods from the Company whether directly or indirectly through an agent or factor who is acting for or instructed by or whose actions are ratified by such person, firm or company. All reference to “the Goods” are to the goods set out in the Buyer’s purchase order as accepted by the Company. Any reference to “the Goods” shall, where appropriate include a reference to part of them.

1.2 Unless otherwise agreed in writing in accordance with clause 1.3 these Conditions apply to the supply of all Goods by the Company to the exclusion of all terms that the Buyer seeks to impose or incorporate whether in the Buyer’s purchase order, negotiations or in any course of dealing between the Company and the Buyer or which are implied by law, trade customer and practice or course of dealing. The Buyer waives all rights which it might have to rely on any term endorsed upon, delivered with or contained in any document of the Buyer that is inconsistent with these Conditions.

1.3 Except for a director or a sales manager of the Company no employee, servant or agent of the Company has any authority whatsoever to amend, vary, modify or waiver any of the Conditions contained herein.

1.4 The Buyer’s purchase order constitutes an offer by the Buyer to purchase Goods from the Company upon and in accordance with these Conditions. The Buyer in placing any purchase order acknowledges that these Conditions apply to every purchase of Goods from the Company.

1.5 Except for a director or a sales manager, no employee, servant or agent of the Company has any authority whatsoever to make or give any representations or warranty in relation to the Goods which is not set out in these Conditions.

1.6 No purchase order is binding on the Company until accepted by the Company by confirmation of the delivery date when it becomes a binding contract on these Conditions which are also set out on the Company website www.originalfabrics.co.uk (“the Contract“).

2. PRICE

3. CONDITIONS AND WARRANTIES

3.1 Every description or specification of the Goods is given in good faith based on average results of standard tests and the use of any such description or specification shall not constitute a sale by description. The Company reserves the right to amend the specification of any Goods as necessary.

3.2 The Company warrants that (subject to the other provisions of these Conditions), the Goods will on delivery: –

3.2.1 be of satisfactory quality within the meaning of S14(2) the Sale of Goods Act 1979; and

3.2.2 conform in all material respects with their specification.

3.2.3 be fit for the purpose and conditions of use for which Goods of that description are generally sold by the Company if they are used in accordance with the care and use instructions given by the Company.

3.3 Where any specifications submitted by the Buyer differ from those of the Company, then unless otherwise agreed in writing and signed by one of the Company’s Directors, the Company’s specification shall prevail.

3.4 Notwithstanding that a sample of the Goods may have been exhibited to and inspected by the Buyer or results of standard tests upon a sample furnished to the Buyer, it is hereby declared that such sample was so exhibited and inspected or tested solely to enable the Buyer to judge for itself the quality of the bulk and not so as to constitute a sale by sample. The Buyer shall take Goods at its own risk as to their corresponding with the sample or as to their quality, condition or sufficiency for any purpose other than as set out in these Conditions. Except where any purpose or condition is guaranteed as above, the Company shall be under no obligation to test Goods prior to delivery.

3.5 Any images, drawings or advertising produced by or on behalf of the Company of the Goods and any illustrations and/or descriptions contained on the Company’s website or in catalogues or brochures (whether digital or otherwise) of the Goods 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.

3.6 The Company has given commitments as to compliance of the Goods in clause 3.2. In view of this commitment all warranties, conditions and other terms implied by statute or common law and whether involving negligence on the part of the Company its employees or agents; (save for the conditions implied by s12 of the Sale of Goods Act 1979) are to the fullest extent permitted by law excluded from the Contract.

3.7 This clause shall survive termination of the Contract.

4. DELIVERY AND CALL OFFS

4.1 Delivery of the Goods shall be made by the Company delivering them to the place of delivery agreed between the Company and the Buyer or if no such place is agreed to the Buyer’s place of business as set out on its purchase order

4.2 The Company shall invoice the Buyer when the Goods or where appropriate any call off is despatched to the Buyer and such invoice shall be notice to the Buyer that the Goods have been so despatched.

4.3 If

4.3.1 the Buyer fails to take delivery of the Goods in accordance with clause 4.1 or fails to give the Company adequate delivery instructions; or

4.3.2 the Goods are to be delivered in accordance with call offs made by the Buyer and the Buyer has not completed calling off Goods within 6 months of the date of the Company’s invoice issued for the first call-off of the Buyers original Order as mentioned in clause 4.2 then the Company may at its discretion:-

(a) terminate the Contract by not giving not less than 14 days’ notice in writing to the Buyer;

(b) store the Goods until actual delivery to the Buyer or until the Goods are disposed of under sub-clause

(c). The Buyer shall be liable for the costs of storage and insurance of the Goods under this clause; and (c) sell the Goods at the best price readily obtainable. The Buyer shall be liable to pay the costs of the sale. Further if the Goods are sold for less than the Price payable by the Buyer the Buyer shall be liable to pay the Company the difference in price.

This does not affect any other right or remedy the Company may have.

4.4 Any delivery date given to the Buyer is approximate only and the Company shall not be liable for any delay in delivery of the Goods however caused. Time of delivery shall not be of the essence of the Contract.

4.5 The Company reserves the right to make delivery by instalments and to issue a separate invoice in respect of each instalment. Each delivery shall constitute a separate Contract.

4.6 Failure to pay for any Goods on the due date or if credit insurance on the Buyer is withdrawn or suspended shall give the Company the right at its option to:

a) withdraw credit terms and request pro-forma payment terms for future orders;

b) to demand immediate payment or to withhold further deliveries under this and/ or any other Contract between the Company and the Buyer;

c) to cancel any unfulfilled Contract; and/or to

d) cancel all further instalments of Goods under any Contract or

e) implement clause 6.4

4.7 The Company reserves the right to supply the Contract quantity of the Goods subject to a 5% tolerance either way in satisfaction for the Contract.

5. PAYMENT

6. OWNERSHIP AND RISK

6.1 Title to the Goods shall not pass to the Buyer until the earlier of:

6.1.1 the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Buyer whether payment in respect of which has become due in which case title to the Goods shall pass at the time of payment of all such sums; and

6.1.2 the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in Clause 6.3.

6.2 Until title to the Goods has passed to the Buyer, the Buyer shall:

6.2.1 store the Goods separately from all other Goods held by the Buyer so that they remain readily identifiable as the Company’s property;

6.2.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.2.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full purchase price on the Company’s behalf from the date of delivery;

6.2.4 notify the Company immediately if it becomes subject to any of the events listed in Clause 8); and

6.2.5 give the Company such information as the Company may reasonably require from time to time relating to:

(a) the Goods and their location; and

(b) the ongoing financial position of the Buyer.

6.3 Subject to Clause 6.4, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods until such time as it becomes aware or ought reasonably to have become aware that an event specified in clause 8 has occurred or it likely to occur. However, if the Buyer resells the Goods before that time:

6.3.1 it does so as principal and not as the Company’s agent; and

6.3.2 title to the Goods shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs.

6.4 At any time before title to the Goods passes to the Buyer, the Company may:

6.4.1 by notice in writing, terminate the Buyer’s right under Clause 6.3 to resell the Goods or use them in the ordinary course of its business; and

6.4.2 require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored to recover them.

6.5 Nothing in this condition shall give the Buyer the right to return the Goods without the Company’s consent.

6.6 Risk in the Goods shall pass to the Buyer on delivery in accordance with clause 4.1 from which time the Buyer shall be solely responsible for their custody, maintenance and insurance.

7. LIABILITY

7.1 The Buyer shall carefully examine the Goods immediately on delivery of them and shall notify the Company in writing verbally on discovery followed by notice in writing of any short delivery or any other damage or defects reasonably discoverable on careful examination. This notification must be received by the Company within 7 days commencing with the day of delivery to the Buyer. No liability is accepted by the Company for any of these Goods which have been cut, taken into use or subjected to any further process or manufacture after delivery.

7.2 In the absence of such notification, the Company excludes all liability in respect of any short delivery or other such discoverable defects not in accordance with the Contract.

7.3 In respect of any Goods which the Buyer alleges do not comply with clause 3.2.

7.3.1 the Buyer shall notify the Company in writing as soon as practical after disclosure of the defect and where possible shall afford the Company an opportunity to inspect the Goods before they or any other goods into which they have been incorporated have been further processed, treated or otherwise dealt with.

7.3.2 on request the Buyer shall at the Buyer’s expense return the defective Goods to the Company.

7.4 In the event of a valid claim notified by the Buyer under this clause the Company undertakes at its discretion to replace the Good that are missing or defective in accordance with clause 7.1,to refund the price paid by the Buyer for those Goods which are defective, or to re-process or replace the defective Goods at its expense and deliver them without charge to the Buyer’s place of business.

7.5 Except in respect of death or personal injury caused by the Company’s negligence clauses 7.3 shall set out the company’s entire liability to the Buyer in contract or tort and the Company shall not be liable to the Buyer for any consequential or indirect loss suffered by the Buyer. Non-exhaustive illustrations of indirect loss would be loss of sales, loss of profit, loss of contracts, or loss or damage to goodwill.

7.6 The Buyer accepts that it is their responsibility to insure against these risks.

8. TERMINATION

8.1 The Company may in its discretion and without prejudice to any other right or claim terminate the Contract in whole or in part at any time by giving notice in writing to the Buyer if the Buyer:

8.1.1 shall be in material breach of any of its obligations under any Contract with the Company;

8.1.2 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

8.1.3 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Company reasonably believes that to be the case;

8.1.4 financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this or any other Contracts with the Company is in jeopardy;

8.1.5 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

8.1.6 becomes subject to a moratorium under Part Al of the Insolvency Act 1986;

8.1.7 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;

8.1.8 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;

8.1.9 enters into administration or has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

8.1.10 has a resolution passed for its winding up;

8.1.11 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

8.1.12 is subject to any procedure for taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;

8.1.13 has a freezing order made against it;

8.1.14 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;

8.1.15 subject to any events or circumstances analogous to those in clauses 8.1.2 to 8.1.14 in any jurisdiction; or

8.1.16 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 8.1.1 to 8.1.14 including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.

8.2 Without limiting its other rights or remedies, the Company may suspend supply of the Goods under the Contract or any other contract between the Company and the Buyer if the Buyer becomes subject to any of the events listed in clauses 8.1.1 to 8.1.4.

8.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.

8.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Company all the Company’s unpaid invoices and interest and in respect of Goods supplied but for which no invoice has been submitted the Company shall submit an invoice which the Buyer shall pay immediately on receipt.

8.5 If the Buyer becomes aware that any event has occurred or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 8, it shall immediately notify the Company in writing.

9. INDEMINITY

10. FORCE MAJEURE

11. ASSIGNMENT

12. NOTICE

13. JURISDICTION