Terms & Conditions
Website Terms and Conditions of Use
Nrem Sleep System is a product owned by Foam Comforts (Europe) Ltd. The Nrem Sleep System website and related services are made available to you in accordance with the following Terms and Conditions of Use.
Foam Comforts (Europe) Ltd is a company incorporated in the United Kingdom, under the company number of 8876953
Our registered address is:
c/o Laytons Solicitors LLP,
22 St Johns Street,
Our Trading address is:
By accessing this website or placing an order, you are agreeing to be bound by these website Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this website are protected by applicable copyright and trademark law.
If you have any questions relating to these terms and conditions then please contact us before placing your order either by e-mail at firstname.lastname@example.org or phone +44 161 929 4482
“Conditions" means these terms and conditions and the Special Conditions; "Cookies" means small text files which our Website places on your computer's hard drive to store information about your shopping session and to identify your computer; "Special Conditions" means the terms and conditions in the Product Description; "United Kingdom" means England, Wales, Scotland, Northern Ireland and the Channel Islands; "Users" means the users of the Website collectively; "Personal Information" means the details provided by you on registration; "We/us/Foam Comforts means Foam Comforts (Europe) Limited; "Website" means the website located at www.nremsleepsystem.co.uk or any subsequent URL which may replace it; and "You" means a user of this Website.
USE OF THE WEBSITE
You are provided with access to this Website in accordance with these Conditions and any orders placed by you are strictly in accordance with these Conditions.
To use some of the services and features made available to you on this website you will need to register. You warrant that: The Personal Information which you are required to provide when you register as a customer is true, accurate, current and complete in all respects; and you will notify us immediately of any changes to the Personal Information by contacting our customer services team by e-mail email@example.com . Failure to do so and any resulting errors will be the onus of the user, and not of Foam Comforts.
You agree not to impersonate any other person or entity or to use a false name or a name that you are not authorised to use.
We reserve the right to change registration requirements from time to time.
The account password you provide should be unique and kept secure, and you must notify us immediately of any breach of security or unauthorised use of your account.
PURCHASE OF PRODUCTS
Eligibility to Purchase
In order to make purchases on the Website you will be required to provide your personal details. In particular, you must provide your real name, phone number, e-mail address and other requested information as indicated. Furthermore, you will be required to provide payment details that you represent and warrant are both valid and correct and you confirm that you are the person referred to in the billing information provided.
The Website is available only to individuals and others who meet our terms of eligibility, who have been issued a valid credit/debit card by a bank acceptable to FOAM COMFORTS, whose applications are acceptable to FOAM COMFORTS and who have authorised FOAM COMFORTS to process a charge or charges on their credit/debit card in the amount of the total purchase price for the merchandise which they purchase in full or on a payment plan. FOAM COMFORTS reserves the right to restrict multiple quantities of an item being shipped to any one customer or postal address.
Payment can be made by Visa, MasterCard, American Express, Visa Debit, Visa Delta Electron cards, PayPal, Go Cardless, Stripe and Paywhirl, and any other methods which may be clearly advertised on the Website from time to time. Payment will be debited and cleared from your account in accordance with the plan accepted by you at point of purchase. You confirm that the credit/debit card that is being used is yours or that you have been specifically authorised by the owner of the credit/debit card to use it. All credit/debit card holders are subject to validation checks and authorisation by the card issuer. All payment plan applications will be subject to a credit check and you will be required to authorise this at checkout by accepting our terms and conditions. If the issuer of your payment card refuses to authorise payment to FOAM COMFORTS, we will not be liable for any delay or non-delivery.
We take reasonable care to make our website secure. Furthermore, we take reasonable care, in so far as it is in our power to do so, to keep the details of your order and payment secure, but in the absence of negligence on our part we cannot be held liable for any loss you may suffer if a third party procures unauthorised access to any data you provide when accessing or ordering from the website.
By making an offer to purchase merchandise you expressly authorise us to perform credit checks and where FOAM COMFORTS feels necessary, to transmit or to obtain information (including any updated information) about you to or from third parties, including but not limited to your credit/debit card number or credit reports (including credit reports for your spouse if you reside in a community property jurisdiction), to authenticate your identity, to validate your credit/debit card, to obtain an initial credit/debit card authorisation and to authorise individual purchase transactions.
Furthermore, you agree that we may use Personal Information provided by you in order to conduct appropriate anti-fraud checks. Personal Information that you provide may be disclosed to a credit reference or fraud prevention agency, which may keep a record of that information.
All orders are subject to acceptance and availability, items in your cart are not reserved and may be purchased by other customers. Please refer to our Terms and Condition of Sale Hyperlink for further information.
We will take all reasonable care, in so far as it is in our power to do so, to keep the details of your order and payment secure, but in the absence of negligence on our part we cannot be held liable for any loss you may suffer if a third party procures unauthorised access to any data you provide when accessing or ordering from the Website.
Contract creation and electronic contracting: The technical steps required to create the contract between you and us are as follows:
You place the order for your products on the Website by pressing the checkout button on the cart page. You will be guided through the process of placing an order by a series of simple instructions on the Website;
We will send to you an “order acknowledgement” e-mail detailing the products you have ordered. This is not an order confirmation or order acceptance from FOAM COMFORTS, just a confirmation that we have received it; then within 15 working days we will schedule your product for delivery via text confirmation messaging or email confirmation. Unless you cancel your order; or we have notified you that we do not accept your order, the acceptance by us of your order and completion of the contract between you and us, FOAM COMFORTS, will be completed when we book your order for delivery or we email you to confirm the products have been despatched. The sale contract is therefore concluded in England, the language of the contract is English and the governing law is English.
We reserve the right at all times not to accept your order. Non-acceptance of an order may be a result of, among other things, one of the following: the product you ordered being unavailable from stock; our inability to obtain authorisation for your payment; failure to pass credit check; a product does not satisfy our quality control standards and is withdrawn; or that you do not meet the eligibility criteria.
Generally, we offer products for sale that are in stock and available for despatch. Occasionally, we may be waiting for shipments from our suppliers. Consequently you may from time to time be given the opportunity to pre-order and make an advance payment. Any items on pre-order will be shipped as soon as we receive them from the supplier. Pre-Order products will state an expected delivery date in the product description; however this may be subject to change due to circumstances beyond our control. We will keep you updated should any changes to the delivery date occur, and of course, you can request a refund at any point up to the despatch date at which the normal returns policy will apply.
Please note that any additional duty or customs charges applicable in the destination country are payable by you or the recipient (if you are purchasing for a third party).
Prices shown on the Website are in British Pounds (GBP) and are inclusive of VAT at the applicable rate unless you have selected an alternative country where VAT is not chargeable.
All prices and offers remain valid as advertised from time to time.
The GBP price of a product displayed on the Website at the time the order is accepted will be honoured, except in cases of patent error and manifest error. If you are a customer whose credit card is not denominated in GBP, the final price will be calculated in accordance with the applicable exchange rate on the day your credit card issuer processes the transaction.
Contract cancellation under the Distance Selling Regulations
Please note that you are entitled to cancel this contract if you so wish provided that you exercise your right and notify us within the trial period of the product purchased. If you wish to exercise your right to cancel this contract after your order has already been despatched, we will refund the original purchase price, provided that you have notified us in writing within the given trial period pf the product purchased, and that you have taken reasonable care of the product. Please follow the procedure set out in our returns procedure and our refund policy below.
Delivery and Returns
To Track your order status please phone us on +44 (0)333 0033352 or email firstname.lastname@example.org.
If your order is obviously incomplete or damaged then please email our customer service team at email@example.com or call +44 (0)333 0033352 Monday - Friday 0900-1700. You may do this outside of these hours and leave a message and we will endeavour to contact you on the next working day.
If you need to return a product, please contact us via firstname.lastname@example.org. If you do not have the original paperwork then please include a note detailing your name, address and any contact details, the order number, the stock number, and the reason for the return; we need to be able to identify the order in able to complete the return.
Please see below for details of our refund policy.
We hope you'll be pleased with your purchase. If you should change your mind, and wish to return anything bought from FOAM COMFORTS, we'll be happy to refund or exchange a product providing it hasn’t been misused and it’s within it’s given trial period or warranty period or in a fully re-sellable condition and unused with all FOAM COMFORTS/Nrem tags still attached. Please email email@example.com if your product has been delivered without FOAM COMFORTS/Nrem tags.
Please make sure you take reasonable care of the item while it's in your possession, and that it is returned to us in a reasonable condition. If the product returned arrives with us and has been mistreated and/or neglected we do reserve the right to refuse a refund on the item, or deduct up to 20% of the original selling price from the refund amount. This does not affect your statutory rights. Refunds will be made to the original method of purchase wherever possible.
Products which are faulty (as in they are received damaged or where a manufacturing fault occurs within the warranty period) should be notified to us in writing (including by e-mail firstname.lastname@example.org) and returned to us as soon as possible in accordance with the returns policy above. Where possible, we will offer to repair faulty items. If it cannot be repaired or the same product is not available, you are entitled to a full refund on the product. If you would like to exchange a faulty item instead of obtaining a refund please be aware that we can only replace it for the same/similar product subject to availability.
We will refund the purchaser any delivery charge paid providing it is within the trial period of the product. We regretfully cannot refund shipping fees outside of the trial periods, as these are transferred at cost. The cost of delivery will be as stated on the website at the time of order. Unless a product is delayed for any reason, we will try to combine orders where possible, to keep shipping costs as low as possible.
If, for any reason, we do not have an item in stock or there is a delay in shipping, we will notify you with an expected delivery date and explanation.
DESCRIPTION OF PRODUCTS
We will take all reasonable care to ensure that all details, descriptions and prices of products appearing on the Website are correct at the time when the relevant information was entered onto the system. Although we aim to keep the Website as up to date as possible, the information including product descriptions appearing on this Website at a particular time may not always reflect the position exactly at the moment you place an order. We cannot confirm the price of a product until your order is accepted in accordance with our order acceptance policy.
We have made every effort to display as accurately as possible the colours of our products that appear on www.nremsleepsystems.co.uk. However, as computer monitors vary, we cannot guarantee that your monitor's display of any colour will be completely accurate.
The colour of the foam is for guidance only and may discolour over time. This is not a fault in the foam, simply oxidation of the dye and will cause no damage to the structure of the mattress. By purchasing from this Website, you acknowledge that this will occur and this shall not constitute a breach of these Conditions.
Those products which contain natural fibres are subject to dye and shade variations. By purchasing from this Website, you acknowledge that the goods may have any of these markings and the existence of such markings shall not constitute a breach of these Conditions.
INTELLECTUAL PROPERTY AND RIGHT TO USE
This website and its content is copyright of Foam Comforts (International) Ltd . All rights reserved. Any redistribution or reproduction of part or all of the contents in any form is prohibited other than in accordance with this provision.
You acknowledge and agree that the material and content contained within this Website is made available to you for your personal non-commercial use only. Any other use of the material and content of the Website is strictly prohibited. Permission is granted to temporarily download one copy of the materials (information or software) on Foam Comforts website for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not, except with Foam Comforts International Ltd express written permission:
modify or copy the materials;
use the materials for any commercial purpose, or for any public display (commercial or non- commercial); attempt to decompile or reverse engineer any software contained on Foam Comforts website;
remove any copyright or other proprietary notations from the materials;
transfer the materials to another person or "mirror" the materials on any other server;
nor may you transmit it or store it in any other website or other form of electronic retrieval system.
This license shall automatically terminate if you violate any of these restrictions and may be terminated by Foam Comforts (International) Ltd at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
You agree not to (and agree not to assist or facilitate any third party to) copy, reproduce, transmit, publish, display, distribute, commercially exploit or create derivative works of such material and content.
RIGHTS, LIABILITIES, INDEMNITY
You have certain rights under the law. In England these include:
That any products you order through this Website will be of satisfactory quality, fit for their intended purpose, and will conform to any description given on this Website;
Certain remedies if a product is defective; and
A right to cancel any order for a product within seven working days commencing on the day after the date on which you receive it, and receive a full refund even if it is not defective.
Nothing in the Conditions are intended to affect these rights.
Limitation of our liability
While we will use reasonable endeavours to verify the accuracy of any information we place on the Website, we make no warranties, whether express or implied in relation to its accuracy. The Website is provided on an "as is" and "as available" basis without any representation or endorsement made and we make no warranties of any kind, whether express or implied, in relation to the Website, or any transaction that may be conducted on or through the Website including but not limited to, implied warranties of non-infringement, compatibility, security, accuracy, conditions of completeness, or any implied warranty arising from course of dealing or usage or trade.
If we breach the Conditions we shall be liable for losses which are direct losses and any reasonably forseable consequences where, for example, they could be contemplated by you and FOAM COMFORTS at the time of you placing the order, and FOAM COMFORTS despatching the order. We shall only be liable for losses up to 150% of the total value of products purchased.
We make no warranty that the Website will meet your requirements or will be uninterrupted, timely or error-free, that defects will be corrected, or that the site or the server that makes it available are free of viruses or bugs or represents the full functionality, accuracy, and reliability of the Website. We will not be responsible or liable to you for any loss of content or material uploaded or transmitted through the Website. To the fullest extent permissible under applicable law, we disclaim any and all warranties of any kind, whether express or implied, in relation to the products. This does not affect your statutory rights as a consumer nor does it affect your contract cancellation rights.
We will not be liable, in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise out of or in connection with the conditions for:
Any economic losses (including without limitation loss of revenues, profits, contracts, business or anticipated savings);
Any loss of goodwill or reputation;
Any special or indirect losses suffered or incurred by that party arising out of or in connection with the provisions of any matter under the Conditions.
Nothing in the Conditions shall exclude or limit our liability for death or personal injury resulting from our negligence or that of our agents or employees.
Nothing in these Conditions is intended to affect your statutory rights.
You agree fully to indemnify, defend and hold us, and our officers, directors, employees, agents and suppliers, harmless immediately on demand, from and against all claims, liability, damages, losses, costs and expenses, including reasonable legal fees, arising out of any breach of the Conditions by you or any other liabilities arising out of your use of this Website, or the use by any other person accessing the Website using your shopping account and/or your Personal Information.
PRIVACY AND COOKIES
Foam Comforts is committed to ensuring that your privacy is protected. Should we ask you to provide certain information by which you can be identified when using this website, then you can be assured that it will only be used in accordance with this privacy statement.
Additionally, if you would like to correct your personal data or just access it please do not hesitate to contact us on email@example.com
We reserve the right to: Modify or withdraw, temporarily or permanently, this Website (or any part thereof) with or without notice to you and you confirm that we shall not be liable to you or any third party for any modification to or withdrawal of the Website; and/or changes to the Conditions from time to time, and your continued use of the Website (or any part thereof) following such change shall be deemed to be your acceptance of such change. It is your responsibility to check regularly to determine whether the Conditions have been changed. If you do not agree to any change to the Conditions then you must immediately stop using the Website.
Public forums and user submissions
The Website owner is not responsible for any material submitted to the public areas by you which include bulletin boards, hosted pages, chat rooms, blogs, or any other public area found on the website. Any material (whether submitted by you or any other user) is not endorsed, reviewed or approved by FOAM COMFORTS. FOAM COMFORTS reserves the right to remove any material submitted or posted by you in the public areas, without notice to you, if it becomes aware and determines, in its sole and absolute discretion that you are or there is the likelihood that you may:
Defame, abuse, harass, stalk, threaten or otherwise violate the rights of other users or any third parties;
Publish, post, distribute or disseminate any defamatory, obscene, indecent or unlawful material or information;
Post or upload files that contain viruses, corrupted files or any other similar software or programmes that may damage the operation of FOAM COMFORTS and/or a third party's computer system and/or network;
Violate any copyright, trademark, other applicable Great Britain or international laws or intellectual property rights of FOAM COMFORTS or any other third party; or
Submit contents containing marketing or promotional material which is intended to solicit business.
Compliance with laws
The Website may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations regarding the Website and any transactions conducted on or through the Website.
If any part of these Conditions shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severable from the conditions and shall not affect the validity and enforceability of any of the remaining provisions of the conditions.
Waiver and Survival
If you breach these Conditions, and we take no action, we shall still be entitled to our rights and remedies in any other situation where you are in breach of the Conditions.
Each provision of the conditions shall be construed as separately applying and surviving even if for any reason one or other of those provisions is held to be inapplicable or unenforceable in any circumstances.
These Conditions govern our relationship with you. Any changes to these Conditions must be in writing and signed by both parties. In this way, we can avoid any problems surrounding what FOAM COMFORTS and you are expected to do. You confirm that, in agreeing to accept the Conditions, you have not relied on any representation save insofar as the same has expressly been made a term of these Conditions and you agree that you shall have no remedy in respect of any representation. Your Statutory Rights are not affected by these terms and conditions. Nothing in this Clause shall limit or exclude our liability in respect of any fraudulent or negligent misrepresentation whether or not such has become a term of the Conditions.
Third Party Sites
We may include hyperlinks on this Website to other websites or resources operated by parties other than FOAM COMFORTS, including advertisers. FOAM COMFORTS has not reviewed all of the sites linked to its Website and is not responsible for the content or accuracy of any off-site pages nor are we responsible for the availability of such external websites or resources, and do not endorse and are not responsible or liable, directly or indirectly, for the privacy practices or the content of such websites, including (without limitation) any advertising, products or other materials or services on or available from such websites or resources, nor for any damage, loss or offence caused or alleged to be caused by, or in connection with, the use of or reliance on any such content, goods or services available on such external websites or resources.
Further, you acknowledge and agree that, if you have chosen to enter the linked website we are not responsible for the availability of such external sites or resources and do not review or endorse and are not responsible or liable, directly or indirectly, for (i) the privacy practices of such websites, (ii) the content of such websites, including (without limitation) any advertising, content, products, goods or other materials or services on or available from such websites or resources or (iii) the use to which others make of these websites or resources, nor for any damage, loss or offence caused or alleged to be caused by, or in connection with, the use of or reliance on any such advertising, content, products, goods or other materials or services available on such external websites or resources.
You acknowledge and agree that no joint venture, partnership, employment or agency relationship exists between you and FOAM COMFORTS as a result of the Conditions or your use of this Website.
Third Party Rights
No one other than a party to this contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
The Conditions shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Foam Comforts (Europe) Ltd – STANDARD TERMS AND CONDITIONS OF SALE
“Company" means Foam Comforts (Europe) Ltd. (No 08876953); “Conditions” means these terms and conditions of sale and “Condition” shall be construed accordingly; "Contract" means the contract between the Company and the Customer for the sale and purchase of the Products; "Customer" means the person, firm or company by whom the Products are purchased; and "Products" means the Products to be supplied to the Customer pursuant to a Contract to which the Conditions apply.
Every sale by the Company to the Customer shall be subject to these Conditions to the exclusion of any other terms or conditions set out on or referred to in any order, letter, contract or other communication sent by the Customer to the Company and the provisions of these Conditions shall prevail unless expressly varied in writing by the Company.
The Company reserves the right to correct any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by the Company without any liability on the part of the Company.
No forbearance or delay by either party in enforcing the provisions of these Conditions shall prejudice or restrict the rights of that party, nor shall any waiver of its rights operate as a waiver of any subsequent breach, and no right, power or remedy herein conferred upon or reserved for either party, is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
If in any particular case any of these Conditions shall be or be held to be invalid or shall not apply to the Contract the other Conditions shall continue in full force and effect.
The Company's quotations do not constitute an offer. Orders placed with the Company shall not be binding on the Company or deemed accepted by it unless and until a written acceptance of such order is issued to the Customer by the Company.
Each order or acceptance of a quotation for Products by the Customer shall be deemed to be an offer by the Customer to purchase Products subject to these Conditions.
An order for Products may not be cancelled by the Customer except with the written agreement of the Company (in its absolute discretion) and the payment by the Customer to the Company of such amount as may be necessary to indemnify the Company against all loss resulting from the said cancellation.
Unless otherwise agreed by the Company in writing, delivery of the Products shall take place at the Customer's home address as stated on the order.
All times, dates or periods given for delivery of the Products are given as an approximate guide. The Company shall not be liable for any delay in delivery of the Products, howsoever caused. Time of delivery shall not be of the essence of the Contract.
If for any reason the Customer fails to accept delivery of any of the Products when they are ready or have been scheduled for delivery or the Company is unable to deliver Products on time because the Customer has not provided appropriate instructions or authorisations, then the Company may thereafter store the Products for the Customer's account and the cost of this or failed delivery shall be a debt due from the Customer to the Company on demand but nothing in this Condition shall limit any other right of the Company against the Customer or modify the obligations of the Customer as regards payment for the Product.
The Company shall be released from its obligations hereunder to the extent that the performance of those obligations is delayed, hindered or prevented by any circumstances beyond its control (including, but not limited to, industrial action, war, act of God, accident, fire, explosion, storm, flood, failure of any of the Company's usual sources of supply of Products or materials, quotas or licence restrictions, shortage of or delay in obtaining fuel or power, breakdown of plant and machinery).
If, as a result of the performance of the Contract being wholly or partially suspended pursuant to sub-Condition 4.1, the Company fail to make a delivery of Products within 2 months of the estimated delivery date, either party may cancel the Contract by notice in writing to the other without prejudice to any rights which have accrued before such cancellation.
Price and Payment
The prices of the Products shall be the Company's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company's Website on the date of the Contract. All prices quoted are inclusive of any charges for UK carriage and value added tax but exclude international carriage, customs and import levies or any similar duties or levies.
Unless otherwise agreed by the Company in writing, payment for the Products shall be made in full or by successful application for a payment plan by the Customer, that is active, before physical delivery of Products. Time for payment shall be of the essence.
The Customer shall pay the price of the Products without any deduction whether by way of set-off counterclaim or otherwise.
All warranties, conditions and other terms implied by statute, common law, trade usage, course of dealing or otherwise are, to the fullest extent permitted by law, excluded from the Contract.
The Company does not give any warranty that the Products are fit for any particular purpose for which the Products are being bought by the Customer (unless the Company has agreed otherwise in writing).
Damage, Defects or Non-compliance
Subject to Condition 7.2, no liability will attach to the Company (whether in contract or for negligence or otherwise) for loss of or damage to the Products occurring prior to delivery or for any claim that any item delivered pursuant to the Contract is defective or is otherwise not in accordance with the Contract.
In the event of a valid claim for defect, loss, damage or non-compliance with the Contract, the Company will, at its own cost, repair and/or replace, at its discretion, the whole or any part of the Products which are defective in consequence of defect in materials or in the Company's workmanship but subject to the following conditions:
in respect of any alleged defect which would be apparent to the Customer on reasonable inspection, the Customer must give written notice thereof to the Company within 3 working days of the later of delivery and the unpacking of the Products by the Customer but, in any event, within 30 working days of delivery;
in respect of any alleged defect not apparent on reasonable inspection, the Customer must give notice thereof to the Company within 30 working days of the alleged defect complained of coming to the attention of the Customer;
in all cases, the Company is given a reasonable opportunity following notice of complaint of examining the Products;
the Customer shall make the Products available for collection by the Company (or its appointed carrier);
the Company shall not be liable for any defects in the Products arising from or in consequence of the manner in which they are assembled or maintained or from any alteration, or repair of the Products carried out otherwise than by the Company or from the manner in or conditions under which the Products are stored or if the Customer makes any further use of such Products after giving notice;
the Company shall not be liable for any defects to the extent that the aggregate value of the defective Products is less than 8% of the aggregate value of all the Products delivered in the same batch as the defective Products.
Collection of Products by the Company (or its appointed carrier) pursuant to Condition 7.2 shall not imply that the Company accepts the validity of the claim made by the Customer.
The Company's liability is limited to repair or replacement of the Products (or part thereof) (at its option) and liability for every form of indirect or consequential damage or loss (except only death or personal injury resulting from the Company's negligence) is hereby expressly excluded.
If the Customer shall fail to give notice in accordance with Condition 7.2 above the items delivered shall be deemed to be in all respects in accordance with the Contract and, without prejudice to earlier acceptance by the Customer, the Customer shall be bound to accept and pay for the same accordingly and all claims in respect of non-delivery, loss, damage, defect or non-compliance shall thereafter be wholly barred.
Termination or Cancellation
In the event of:
the Customer failing to observe or perform any of its obligations under the Contract or any other Contract between the Company and the Customer; or
the Customer being unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or any act occurring or proceedings being commenced relating to, or indicating, the bankruptcy or insolvency or possible bankruptcy or insolvency of the Customer;
the Customer being declared bankrupt or insolvent, this includes entering into IVA or other debt management plans; or
non-payment by the Customer of any monies due from the Customer to the Company,
the Company shall be entitled to suspend all or any future deliveries under this or any other Contract and on written notice to cancel this or any Contract between the Customer and the Company.
In the event of any cancellation by the Company in accordance with Condition 8.1 above or any cancellation and/or repudiation of the Contract by the Customer, the Company shall be entitled to recover damages from the Customer for the following:
the value of any work completed or Products delivered at the date of termination;
the value of any work begun or Products begun to be manufactured but not completed at the date of termination including the cost of materials, labour and overheads in connection therewith;
the amount representing any further profit which the Company would have made on the Contract but for its termination, such profit to be determined by the Company's auditors whose decision shall be conclusive and binding on the Customer.
The rights conferred by Condition 8.2 shall be without prejudice to any other right enjoyed by the Company pursuant to these Conditions or by law.
Reservation of title
Property in the Products shall pass to the Customer on the happening of whichever of the following events shall first occur, namely payment in full of the whole purchase price of the Products and payment in full of every other sum whatsoever which is due from the Customer to the Company whether under this Contract or otherwise howsoever. This sub-Condition shall apply notwithstanding that the Products have been affixed to or incorporated in real property.
Until ownership of the Products has passed to the Customer, the Customer must:
hold the Products on a fiduciary basis as the Company's bailee and trustee;
store the Products in such a way that they remain readily identifiable as the Company's property;
maintain the Products in 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 Customer shall produce the policy of insurance to the Company; and
hold the proceeds of the insurance referred to in Condition 9.2(c) on trust for the Company and not pay the proceeds into an overdrawn bank account.
The Customer may resell the Products before ownership has passed to it solely on the basis that any sale shall be effected in the ordinary course of the Customer's business at full market value and any such sale shall be a sale of the Company's property and the Customer shall deal as principal when making such a sale and any proceeds will be due to the Company. The Customer will remain liable for any difference between the balance outstanding and full market value at the time of the sale.
The Customer's right to possession of the Products shall terminate immediately on the occurrence of any of the events listed at Condition 8.1 or if the Customer encumbers or in any way charges any of the Products.
The Company shall be entitled to recover payment for the Products notwithstanding that ownership of the Products has not passed from the Company. Nothing in this Condition shall in any way limit or modify the Customer's obligation to pay for the Products in accordance with these Conditions.
The Customer grants the Company, its agents and employers an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customer's right to possession is terminated, to recover them.
At any time before the happening of the last of the events mentioned in Condition 9.1, the Company may by notice in writing to the Customer determine the Customer's right to sell the Products and the Customer shall thereupon return the Products to the Company and shall cease to be in possession of the Products with the consent of the Company. At any time after the giving of such a notice, the Company may enter upon any premises where the Products are or are reasonably believed to be and may remove the Products.
The Products are at the entire risk of the Customer from the time of delivery.
The provisions of this Condition 9 shall continue in full force and effect notwithstanding termination of the Contract, howsoever caused.
Intellectual property rights
The Customer shall not use the Products for the purpose of designing or manufacturing identical Products, without the Company's prior written consent. The copyright, trade marks, trade names and all intellectual property rights of any description in or in connection with the Products shall remain the property of the Company.
The aggregate liability of the Company (whether in contract or for negligence or breach of statutory duty or otherwise howsoever) to the Customer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the price of the Products provided always that nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence or fraudulent misrepresentation.
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.
The Customer acknowledges that the limitations of liability contained in this Condition 11 are reasonable and that these limitation provisions have been taken into account by the Company in pricing the Products.
The Customer may not assign or transfer the Contract, or any part of it, without the Company's prior written consent.
Any notice to be given under these Conditions or the Contract must be in writing and may be delivered or sent by prepaid first class post or email to the party to be served at that party's last-known address, or email address.
Any notice shall be deemed served: if posted, 48 hours after posting; and, if sent by email, at the time printed on the email delivery report (as appropriate).
These Conditions and the Contract shall be governed by English law and any dispute hereunder shall be subject to the jurisdiction of the English Courts.