1. INTRODUCTION
The following conditions of sale (“Conditions”) apply to the sale or loan of Goods supplied by Frovi North America Inc., hereinafter called ‘the Company’. These Conditions supersede any previous conditions of sale issued by the Company to you, (‘the Buyer’). No alteration, addition or variation to these Conditions (whether in part or the whole) shall be applicable unless agreed in writing by a director of the Company. The word ‘Goods’ shall include any product or service supplied by the Company. “Contract” shall mean the contract between the Company and the Buyer for the sale and purchase of Goods in accordance with these Conditions and for clarity, includes any Order.
2. BUYER’S ORDER
a) An “Order” shall mean the Buyer’s order for the Goods, whether oral or in writing as set out in the Buyer’s purchase order form or in the Buyer’s written acceptance of the Company’s quotation or “Specification” shall mean any specification for the Goods, including any related plans and drawings, that is agreed by the Buyer and the Company.
b) These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
c) The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate and must notify the Company immediately of any discrepancies in the Company’s written acceptance of the Order.
d) The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order to the Buyer and the Buyer has assented to these Conditions, at which point the Contract shall come into existence.
e) Any samples, drawings or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures 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.
f) The Company will not accept the cancellation of any Order except at its sole discretion, which acceptance shall be confirmed in writing. Where cancellations are accepted the Buyer will be charged for any materials purchased specifically to complete the order and for any work carried out on the Order and for any supplementary work and/or materials necessary to convert the Order into Goods acceptable to an alternative customer. For the avoidance of doubt, where the Goods to be supplied are products which are custom or made to order, the Company will not accept the cancellation of the Order or the return of any Goods.
g) Defects in quality and/or discrepancy of dimensions in any delivery shall not be grounds for cancellation of the remainder of the Order or Contract, which are of satisfactory quality and fit for the purpose specified by the Buyer to the Company in the Order.
3. LOANED GOODS
a) The Company may at its sole discretion provide a temporary loan of furniture prior to the delivery of the Goods which the Buyer has ordered pursuant to a Contract (“Loaned Goods”). The Loaned Goods shall at all times remain the property of the Company and the Buyer shall have no right, title or interest in or to the Loaned Goods (save the right to possession and use of the Loaned Goods subject to these Conditions).
b)The risk of loss, theft, damage or destruction of the Loaned Goods shall pass to the Buyer on delivery of the Goods to the Delivery Location and the Loaned Goods shall remain at the Buyer’s risk until the Loaned Goods have been redelivered to the Company by the Buyer on shipment terms Delivered at Place (“DAP”) to a location the Company directs unless other arrangements have been agreed to by the parties in writing. The Buyer shall inform the Company immediately in the event of any loss, accident or damage to the Loaned Goods. The Buyer shall indemnify the Company for any loss, damage or destruction of the Loaned Goods howsoever caused while the Loaned Goods are at the Buyer’s risk.
c) The Buyer shall take good care of the Loaned Goods and shall not do or permit to be done any act or thing which will or may jeopardize the right, title and/or interest of the Company in the Loaned Goods.
d) The Company may terminate the loan to the Buyer of the Loaned Goods immediately on notice to the Buyer. Upon termination of the loan of the Loaned Goods, the Company may immediately retake possession of the Loaned Goods and for this purpose may enter the premises at which the Loaned Goods are located.
4. CHARGES
Goods may be installed, unwrapped and laid out to the Buyer’s specification within the Buyer’s premises. An extra charge is levied for this service and quotations are supplied by the Company on request.
a) QUOTATIONS. Prices quoted by an authorized representative of the Company will be valid for one calendar month from the date of the quotation unless otherwise specified. Goods dispatched and/or services rendered thereafter may be subject to alteration in the price on the quotation.
b) Subject to Section 4(c), charges for physical Goods supplied shall be paid in full before delivery and charges for Goods consisting of services rendered shall be paid in full on completion of the services, unless otherwise agreed by the Company in writing.
c) CREDIT ACCOUNTS. We reserve the right to carry out all necessary credit checks into the credit worthiness of the Buyer prior to opening a credit account. Where the Buyer has an account with the Company, payment for Goods supplied by the Company shall be made not later than 30 days following the date of invoice unless otherwise agreed in writing. The Company may close the Buyer’s account and cease to provide credit at any time at its own discretion without giving a reason for doing so. The Company will automatically close a credit account if it remains dormant for a period of more than 12 months.
d) If any payment for the provision of Goods is not received by the above mentioned dates, as applicable, the Company shall be entitled to charge interest on the sum outstanding at the rate of 3% per month, (36% per annum) or part thereof and/or suspend any further Orders or provision of Goods to the Buyer. Further, the Company may pursue any and all remedies as provided by law.
5. DELIVERIES
a) This is a shipment contract. The Company will make shipment to the Buyer DAP, the Delivery Location, unless otherwise specified in writing by the Company. Risk of loss or damage from any cause whatsoever will pass to the Buyer when the Goods are delivered to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after the Company notifies the Buyer that the Goods are ready. The Company shall not be obliged to make any shipment to the Buyer when the Buyer is in default to the Company under these Conditions or any other Contract or Order.
b) Delivery is completed on delivery to the Delivery Location. The Buyer assumes risk of loss during its unloading of the delivery vehicle.
c) Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by force majeure or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
d) If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by force majeure or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
e) If the Buyer fails to accept delivery of the Goods within three business days of the Company notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by force majeure or the Company’s failure to comply with its obligations under
the Contract:
(i) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third business day after the day on which the Company notified the Buyer that the Goods were ready; and
(ii) the Company shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
f) If ten business days after the day on which the Company notified the Buyer that the Goods were ready for delivery the Buyer has not accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods.
g) If the Company delivers up to and including 5% more or less than the quantity of Goods ordered the Buyer may not reject them.
h) Claims for damage in transit or storage of an Order must be specifically noted on the delivery receipt at the time of delivery. If any damage/loss or suspicion of damage/loss is noticed, it must be noted prior to any change of the Goods from its original condition as this will then become the prima facie evidence that the Goods were damaged in transit. Following this, notification must be made in writing within one working day of receipt of Goods, to both the carrier and the Company, followed by a complete claim in writing to the carrier and to the Company within three working days of receipt of the Goods. Unless the Buyer gives notice as set out above to the Company that the Goods do not conform to the applicable Order or these Conditions the Buyer shall be deemed to accept irrevocably the Goods and Buyer shall pay the price of the Goods.
i) The Buyer is responsible for unloading the delivery vehicle.
6. LEGAL OWNERSHIP & RISK OF GOODS
a) Subject to applicable law, the property rights vested in the Goods shall only pass to the Buyer, notwithstanding physical delivery, when payment for them is made in full by the Buyer as provided in clause 4 above. Until such time as payment in full is made to the Company in accordance with these Conditions and title to the Goods has passed to the Buyer, the Buyer shall hold the Goods as trustee, but not as agent, for the Company and shall ensure that the Goods shall be stored separately from any other property of the Buyer or from any property belonging to a third party and held by the Buyer and shall be clearly identifiable as the property of the Company. In Personal Property Security Act (PPSA) jurisdictions, the Buyer grants the Company a security interest in the Goods and their proceeds to secure payment of the unpaid purchase price and the Company’s secured party rights are subject to the PPSA of that jurisdiction. Upon default by the Buyer of payment or any of its other obligations under these Conditions, the unpaid purchase price shall become payable and the security interest shall become enforceable. In addition to the rights of the Company set out above, at any time prior to title to the Goods passing from the Company in accordance with these Conditions, the Company shall be entitled on demand to recover possession of the Goods or any of them (without prejudice to any other rights or remedies of the Company) and, for this purpose, shall be entitled to enter upon the Buyer’s premises (or any other premises where the Goods are stored) during normal business hours for the purpose of removing such Goods and to remove such Goods from the premises. These Conditions constitute an authority for any third party authorised by the Company to exercise the Company’s rights and remedies hereunder. The Buyer shall only be at liberty to re-sell the Goods purchased from the Company prior to the passing of title on the understanding that if it does resell the Goods then it will hold on trust for the Company monies to the value necessary to discharge payment in full to the Company.
b) Notwithstanding the retention of title described in clause 6(a) all risk passes to the Buyer at time of delivery as set out above.
7. SPECIFICATION OF GOODS
a) The Company reserves the right without notice and without affecting the validity of these Conditions to make such changes in fabric, dimensions and design as it thinks reasonable
and desirable.
b) Illustrations, descriptions and weights are to be taken as a general guide only and are not binding in detail.
c) It is the responsibility of the Buyer to examine the Goods for defects in materials and/or workmanship which would indicate the likelihood of the Goods causing danger or damage.
8. SUBCONTRACTING
The Company reserves the right to subcontract the fulfilment of the order, or any of its other obligations under these Conditions, including any installation or any part thereof.The Company reserves the right to subcontract the fulfilment of the order, or any of its other obligations under these Conditions, including any installation or any part thereof.
9. INFORMATION, ADVICE AND OPINION
The Buyer is responsible to ascertain the suitability of the Goods for the use intended and any advice given to the Buyer on the suitability of the Goods sold is based on the information provided by the Buyer prior to or at the time the Company accepts the Buyer’s Order.
10. WARRANTIES
a) All FRÖVI products carry a five-year structural warranty. The Company warrants that for a period of five years from the date of delivery, the Goods shall:
(i) conform in all material respects with their description as provided by the Company to the Buyer and any applicable Specification; and
(ii) be free from material defects in design, material and workmanship that are the fault of the Company (but specifically excludes any defects in materials specified by the Buyer such as fabrics, laminates, and veneers which are not manufactured by the Company in which case, to the extent the Company is able to apply any third party warranty to the Buyer’s benefit without any additional cost to the Company, be subject to the original manufacturer’s warranty conditions and shall not be the responsibility of the Company).
b) DISCLAIMER OF FURTHER WARRANTIES: EXCEPT AS SET FORTH ABOVE IN CLAUSE 10(a), THE COMPANY MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS OF THE GOODS FOR ANY PARTICULAR PURPOSE, AND NO WARRANTY OR REPRESENTATION SHALL BE IMPLIED BY LAW STATUTE, AT COMMON LAW OR OTHERWISE.
c) Subject to clause 10(d) below, if:
(i) the Buyer gives notice in writing to the Company during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 10(a) above;
(ii) the Company is given a reasonable opportunity of examining such Goods; and
(iii) the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost, the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
d) The Company shall not be liable for the Goods’ failure to comply with the warranty set out in clause 10(a) in any of the following events:
(i) the Buyer makes any further use of such Goods after giving notice in accordance with clause 10(c);
(ii) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, use and maintenance of the Goods or (if there are none) good practice regarding the same;
(iii) the defect arises as a result of the Company following any drawing, design or Specification supplied by the Buyer;
(iv) the Buyer alters or repairs such Goods without the written consent of the Company;
(v) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(vi) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
e) Except as provided in this clause 10, the Company shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 10(a).
11. STANDARDS
a) Fabrics conform to varying standards; please refer to fabric manufacturer websites for technical information. All furniture frames are tested by the Company to ensure that they withstand the heavy demands of the contract furniture market.
b) The Company cannot be held liable in any manner whatsoever if the Buyer independently specifies a fabric of its choice which does not comply with clause 11(a) above. It is not the duty of the Company to automatically bring this lack of compliance to the Buyer’s notice.
12. INTELLECTUAL PROPERTY
FRÖVI and Oneseat are registered trademarks. In this clause 12, “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
a) The Goods are supplied to the Buyer on condition that the Buyer will not copy, disassemble, cause, permit, allow or assist any copying or disassembling (whether in part or whole) of the Goods supplied without the express permission in writing from the Company. The Company will not hesitate to take all necessary action to protect its Intellectual Property Rights in respect of the Goods, and no licence is granted to the Buyer directly or indirectly under the Intellectual Property Rights held, made,obtained or licensable by the Company now or in the future.
b) The Buyer shall indemnify the Company against all damages, costs, penalties and expenses to which the Company shall become liable as a result of work done in accordance with the Buyer’s specification which involves the infringement of any third party’s Intellectual Property Rights.
c) Notwithstanding any other provisions of these Conditions, the Company retains all property rights, including Intellectual Property Rights, for images, drawings, calculations, and other documents. This also applies to written documents that are designated as “confidential” by the Company. Documents that have been designated as “confidential” by the Company
may not be disclosed by the Buyer to any third party without the Company’s express and signed consent.
d) The Buyer must immediately inform the Company if any third party asserts proprietary rights regarding Goods that have not yet been fully paid for by the Buyer or to any of the Company’s Intellectual Property Rights. At the Company’s option, the Company may take over the defense of any lawsuit, arbitration, or other similar proceeding in which a third party asserts proprietary rights regarding Goods that have not yet been fully paid for or to any of the Company’s Intellectual Property Rights.
13. TAXES AND LEVIES
All Orders are subject to payment by the Buyer for any taxes or levies or other sales, use, excise, or any other tax, duty, fee or charge which may now or in the future be imposed by any governmental authority having jurisdiction on the production, sale, shipment or provision of the Goods. All such charges shall be paid in addition to the amount of the Company’s invoice and the Company reserves the right to hold delivery until such charges are paid. This provision includes any GST/HST that may be applicable.
14. LIMITATION OF LIABILITY
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 14.
LIMITATION OF LIABILITY AND REMEDIES:
Notwithstanding the other terms and conditions set out herein, the Company shall not be liable, and Buyer waives all claims against the Company, for special, incidental or consequential damages, whether or not based upon the Company’s negligence or breach of warranty or strict liability in tort or any other cause of action. Buyer’s exclusive remedy for any cause of action under this contract or in connection with sale of the Goods or provision of services is a claim for damages and in no event will damages or any other recovery of any kind against the Company exceed the price of the specific Goods and/or services as to which the claim is made. The Company shall not be liable to Buyer for any loss, damage or injury to persons or property resulting from the Buyer’s handling, storage, transportation, resale or use of the Goods.
15. TERMINATION
a) Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Buyer if:
(i) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of the Buyer being notified in writing to do so;
(ii) the Buyer enters into receivership or bankruptcy proceedings, or takes any step or action in connection with provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver or trustee 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;
(iii) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(iv) the Buyer’s financial position deteriorates to such an extent that in the Company’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
b) Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in clause 15(a) (i) to (iv), or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
c) 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.
d) On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest.
e) Termination of the Contract 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 this Contract that existed at or before the date of termination.
f) Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
16. FORCE MAJEURE
The Company shall not be liable or responsible for any failure to perform in whole or in part or for any delay in performing any of its obligations under these Conditions or the applicable Order that are caused by events that are beyond the control of the Company or that are not avoidable by reasonable diligence. If any such event occurs, the Company shall notify the Buyer and use reasonable endeavours to rearrange delivery and/or partially perform its obligations under these Conditions so far as it can reasonably do so without incurring unreasonable cost. The following, while not an inclusive listing, will not be considered events within the Company’s control or avoidable by reasonable diligence: act of God, war, insurrection, government regulations, embargoes, strikes or walk-outs, illness, flood, fire, explosion, cyber-attack, terrorism, pandemics or equipment breakdown or any other cause beyond the control of the Company and any reference to “force majeure” in these Conditions shall mean the circumstances listed in this clause.
17. SEVERABILITY
The unenforceability of any part of these Conditions will not affect the enforceability of any other part.
18. FRUSTRATION
If the Company’s performance of its obligations under these Conditions shall become impossible or otherwise frustrated the Company shall be entitled to reasonable remuneration for work done until the date of such frustration.
19. SET-OFF
The Buyer hereby waives any and all existing or future claims for compensation or set-off against any payments due by the Buyer to the Company under these Conditions, and the Buyer shall pay to the Company the amounts payable to the Company under these Conditions and any order confirmation on the due date or dates for payment thereof regardless of any compensation, setoff or counter claim on the part of the Buyer against the Company.
20. REMEDIES
a) No right, power or remedy conferred upon or reserved to the Company in these Conditions is exclusive of any other right, power or remedy in these Conditions or by law provided, permitted or conferred to or upon the Company but each such right, power or remedy shall be cumulative of every other right, power or remedy permitted or conferred to or upon
the Company.
b) Any neglect, delay or forfeiture on the part of the Company in enforcing or implementing, or in seeking to enforce or implement, these Conditions shall not be deemed to be or act as, a waiver, surrender or release of any of these Conditions.
21. GOVERNING BODY AND JURISDICTION
a) These Conditions and any contract between the Buyer and the Company shall be construed In accordance with the laws of the Province of Ontario and be subject to the exclusive jurisdiction of the courts of Ontario, Canada.
b) The application of the 1980 United Nations Convention on Contracts for the International Sale of Goods and the Sale of Goods Act, RSO 1990, c. S.1, and any similar corresponding legislation in another province in Canada, is expressly excluded.
22. NOTICES
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax.
b) A notice or other communication shall be deemed to have been received:
if delivered personally, when left at the address referred to in clause 22(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, one Business Day after transmission.
c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.