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B2B Terms and Conditions for Supply of Goods and Services

BUSINESS TO BUSINESS – TERMS AND CONDITIONS FOR SUPPLY OF GOODS AND SERVICES (EXCLUDING WEBSITE PURCHASES)

 

The Buyer’s attention is particularly drawn to Clause 21

             

1.           Definitions

 Seller                                               means Fennel UK Ltd of Samson House, 10 Holme Road, Burnley, Lancashire BB12 0BJ.

 


Buyer                                                the person who buys or agrees to buy the Goods/and or Services from the Seller and/or acts as a Buyer on behalf of a third party.

 


Conditions                                       the terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the Seller.

 


Goods                                               the items which the Buyer agrees to buy from the Seller as set out in the Order or Supply of Goods Agreement.

 


Price                                                 the price for the Goods, excluding VAT and any carriage, packaging and insurance costs.

 

Force Majeure Event                       has the meaning set out in clause 23.

 


Intellectual Property Rights            patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, 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 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, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

 


Contract                                           means the Supply of Goods Agreement or the Buyer’s acceptance of the Order Confirmation following processing of the Buyer’s purchase order form, or the Buyer's written acceptance of the Seller's quotation, as the case may be.

 


Order                                                the Buyer's order for the supply of Goods and/or Services, as set out in the Supply of Goods Agreement OR in the Buyer's purchase order form, or the Buyer's written acceptance of the Seller's quotation, as the case may be.

 


Services                                            the services supplied by the Seller to the Buyer as set out in the Order.

 

Seller Materials                                has the meaning set out in clause 19.1.6.

 


Working Days                                 means any day Monday to Friday excluding bank and public holidays in England;


2.           Conditions

2.1         These Conditions shall form the basis of the contract between the Seller and the Buyer in relation to the sale of Goods and/or Services, to the exclusion of all other terms and conditions including the Buyer’s standard conditions of purchase or any other conditions which the Buyer may purport to apply under any purchase order or confirmation of order or any other document.

2.2         All orders for Goods and/or Services shall be deemed to be an offer by the Buyer to purchase Goods and/or Services from the Seller pursuant to these Conditions.  

2.3         Acceptance of delivery of the Goods or commencement of the Services shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.

2.4         These Conditions may not be varied except by the written agreement of a director of the Seller.

2.5         These Conditions represent the whole of the agreement between the Seller and the Buyer.  They supersede any other conditions previously issued.

 

3.           Conclusion of the contract 

3.1         Quotations made by the Seller shall be non-binding. We reserve the right to examine whether we are able to provide a delivery.  Legal agreements (Orders and delivery contracts pp) shall not come into effect for the Seller until they have been confirmed in writing by the Seller.  Any persons other than the legal representatives or the Seller shall not be entitled to negotiate legal matters on behalf of the Seller.  Any declarations made by such other persons shall only come into effect when they have been confirmed in writing by the Seller.

 

4.            Price

4.1         Prices are valid within each quarter inclusive from January to March, April to June, July to September, October to December each calendar year unless a Supply of Goods Agreement, appended Price List to the Agreement or written quotation from the Seller, signed by both the Seller and Buyer, states an alternative agreed price and terms of pricing.

4.2         Prices are based on current market data from the Global Price Index in relation to raw materials, labour costs and exchange rate variance. The agreed Price is subject to a variance of +/- 10% of the price on the Agreement. Any changes in pricing where a Supply of Goods Agreement, appended Price List or written quotation, signed by both the Seller and Buyer, is in place will be communicated in writing to the Buyer’s account contact with a minimum of 12 weeks’ notice. Reasons for the price change will be provided. Only with written acceptance of any price change from the Buyer’s account contact or agreed representative of the Buyer’s Company will the invoice price be changed. If the price change is not accepted in writing by the Buyer’s Company within the 12-week notice period the Seller is entitled to sell the goods to third parties.

 

5.           Payment and Interest

5.1         Unless expressly agreed to the contrary, Payment of the Price and VAT, plus any agreed charges or delivery costs, shall be due within 30 days of the date of the Seller’s invoice. The Buyer is responsible for payment of all invoices, not excluding those Orders placed for direct delivery to a third party.

5.2         Only cheques, bank transfer payment and debit/credit card will be accepted as the methods for payment.  Any collection, presentation and/or other associated charges shall be charged to the Buyer.  They are to be paid to the Seller together with the invoice monies.  The Seller can offer no guarantee for the prompt presentation, notation, and notification of the cheque in the event of non-cashment.

5.3         Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of 8% per annum above the Bank of England base rate from time to time in force.  Such interest shall accrue after as well as before any judgment. The Seller reserves the right to claim additional default damages.  Default payment shall be deemed to have occurred in the event that a cheque is not cashed or court or out of court insolvency proceedings are pending against the Buyer.  In these cases all outstanding invoices shall become due for payment immediately regardless of whether cheques given in payment are in the hands of the Sellers or have been passed on.  The Buyer may not make payment dependent on the cheque being returned to him. Furthermore, in the above cases the Seller shall also be entitled to demand advance payment or security for goods, which have already been supplied in full or in part, even if no invoices have yet been issued for them.  If the payment default or the cases equivalent to this last more than 14 days, all the agreed discounts, turnover and freight payments shall become null and void.

5.4         The Buyer shall pay all accounts in full and not exercise any rights of set-off or counter-claim against invoices submitted by the Seller.

 

5.5         If, at the time when the order is accepted or during its fulfilment, the Seller becomes aware of circumstances, which call the creditworthiness or the Buyer into doubt, the Seller shall be entitled to demand reasonable security for his claim against the Buyer.  If this security is not forthcoming to the adequate extent, the Seller may demand payment of all outstanding claims, even if bills of exchange have been presented for them, or withdraw from the Contract.

 

6.           Goods

                               6.1         The Goods are described in the Agreement and Order.

6.2         The Seller reserves the right to amend or change the specification of the Goods if required by any applicable statutory or regulatory requirements.

 

7.           Copyright

7.1         The Seller shall reserve the objective and metal proprietary rights for sketches, drawings, small samples and other documents.  They may not be made accessible to others without the consent of the Seller and are to be returned on request. Reproduction of sketches, drawings or related documents in whole or part is not permitted.  The Buyer shall be obliged to ensure that any design drawings presented by him do not violate the protected rights of third parties. 

 

8.           Exclusivity

8.1         If the Buyer does not make any follow up orders for an article manufactured exclusively for him within the period of 1 year, then the Seller shall be entitled to supply this article to third parties as long as the Buyer has been informed of this in writing and the Buyer has not objected to such supplies without a period of two months after receipt of notification. 

8.2         If the Buyer does not make any follow up orders within a period of two years since the last delivery, the Seller may supply the article to third parties without having to inform the Buyer.  If a delivery has been made to a third party, the Buyer shall be compensated after a specific agreement has been made, by payment of a settlement or of licence fees, for his non-amortised tool costs.

 

9.           Tool costs

9.1         Tool costs shall be the actual cost of production and maintenance of the tools.  Subsequent modifications shall be charged as a supplement.  A proportion of these costs, as agreed when the order is placed shall be paid by the Buyer, even if the article to be produced using the tool is not actually manufactured.  Tools costs are not included in the price per article and shall be charged separately.  The tool costs shall be payable net after the presentation of the samples.  No discount shall be granted.  The tools shall be exclusive property of the Seller unless some other agreement has been made in writing in an individual case.  The Buyer shall have no right to demand that the tools be handed over to him, even for examination purposes.

 

10.         Warranties


                            10.1       The Seller warrants that for a period of 24 months commencing on the earlier of either the date of delivery of                                             the Goods, or the commencement of the Services (Warranty Period), the Goods and/or Services shall:

            10.1.1    conform with their description;

            10.1.2    be of satisfactory quality with the meaning of the Sale of Goods Act 1979;

            10.1.3    be fit for any purpose held out by the Seller; and

            10.2.4       be carried out in accordance with the Supply of Goods and Services Act 1982.

                            10.2       In the unlikely event of product failure, Fennel UK will send the original Buyer a replacement of the same                                            model or a comparable model at no cost. This warranty covers defects in material and workmanship for 2                                            years from date of purchase. The warranty is for replacement only and does not cover the cost of removal,                                            installation or other incidental charges, consequential damages nor compensation.

                            10.3       The warranty excludes or does not apply if/to:

                        10.3.1           The product is damaged due to abuse or improper installation.

10.3.2                     The defect is the result of use outside intended purpose.

10.3.3                     Product modifications have been carried out.

10.3.4                     The product does not function properly because it was not originally designed,    

                                    manufactured or approved for use with an incompatible cabinet material   

                                    thickness.

10.3.5                    Normal wear and tear.

10.3.6                    Surface marks and damage caused by unsuitable cleaning products and abrasives.

10.4       To obtain a replacement within the warranty period the Buyer must telephone or e-mail Fennel UK Ltd (returns@fenneluk.com) and provide the following details:

a.       The date of purchase, Buyer name and item code number of the product.

b.       Details of how the product was installed/used and the type of defect or malfunction experienced.

 

11.         Call Forward

              11.1        Any goods ordered for ‘calling off’ must be called off within a period of twelve months after the

date of the order or within the agreed time period stated within the Supplier Agreement or other Contract. After this time, the Seller shall be entitled, after setting an additional period of one week, to ship the goods and demand payment.

 

12.         Carriage of Goods

12.1       Carriage will be chargeable on all sales unless otherwise agreed in writing by the Seller.

 

13.         Delivery of Goods

13.1       Delivery of the Goods shall be made to the Buyer’s address unless an alternative delivery address has been agreed.  The Buyer shall make all arrangements necessary to take delivery of the Goods on the day notified by the Seller for delivery.

13.2       The Seller reserves the right to make part delivery of an Order. Each of these deliveries will be deemed to be a separate transaction and shall be invoiced separately.

13.3       The Seller undertakes to use its reasonable endeavours to despatch the Goods on an agreed delivery date but does not guarantee to do so.  Time of delivery shall not be of the essence of the contract unless specifically agreed in writing by the Seller.

13.4       Where the Seller has agreed, a delivery deadline shall commence on the date specified in the order, but at earliest when the Buyer has supplied the documentation, approvals, calls and consignment addresses, all the details of the order have been clarified and the Buyer has made any agreed deposit payments or guarantees.  If the Buyer requests modifications to the order after the order has been confirmed, the delivery deadline shall not start until the Seller has confirmed the modifications.  The delivery deadline shall be extended by a reasonable period in the event of measures taken in industrial disputes, in particular, strikes and lockouts and in the event of unforeseen obstacles occurring which the Seller, despite taking all reasonable care which can be expected, cannot avert, e.g., delay in the supply of major parts by a subcontractor, for whose delay the Seller cannot be held responsible.  If a binding delivery deadline or a certain delivery date is exceeded by more than four weeks then the Buyer shall be entitled to withdraw from the contract after the elapse of a reasonable period of at least 14 days.  This additional period must be set in writing and sent to the Seller by registered mail.  The right to withdraw shall become null and void if the withdrawal notification does not arrive at the Seller’s premises at the latest within 14 days of the elapse of the additional period.  Further claims on the part of the Buyer, in particular claims for compensation for late delivery of non-fulfilment, shall be excluded as long as this is legally admissible.

13.5       The Seller shall not be liable to the Buyer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the Goods.  If short delivery does take place, the Buyer may not reject the Goods but shall accept the Goods delivered as part performance of the contract, and a pro-rata adjustment to the Price shall be made.

13.6       If the Buyer fails to take delivery of the Goods on the agreed delivery date or, if no specific delivery date has been agreed, when the Goods are ready for despatch, the Seller shall be entitled to store and insure the Goods and to charge the Buyer the reasonable costs of so doing.

 

14.         Acceptance of the Goods

14.1       The Buyer is required to check all deliveries within 3 Working Days of delivery to confirm all Goods confirmed by the Seller as dispatched have been received. Any missing Goods or discrepancies from the Order Confirmation must be reported to the Seller in writing within this period and the whereabouts of the missing Goods will be investigated by the Seller. Should the Seller be found responsible for non-delivery the Goods will be replaced and dispatched by the Seller as soon as possible, subject to availability. Should the Seller identify that the Goods may have gone missing in transit they will investigate with the Courier and if proven that they have been mislaid by the Courier the Seller will seek compensation from the Courier on behalf of the Buyer and replacement goods will be dispatched, subject to availability. If missing Goods are not reported within the specified period the Seller is not obliged to investigate or provide replacements.

14.2       The Buyer shall carry out a thorough inspection of the Goods within 5 Working Days of delivery and give notice in writing to the seller after discovering that some or all of the goods do not comply with the Warranty above, the Buyer must return the Goods to the Seller at the Buyer’s cost and the Seller shall, at its option, repair or replace any Goods that are defective, or refund the price of such defective Goods. The obligation on the part of the Buyer to examine the goods shall extend to the entire consignment. 

14.3       The Buyer shall be deemed to have accepted the Goods 7 Working Days after delivery to the Buyer. 

14.4       The Buyer takes full responsibility for ensuring that any third party directly receiving Goods on their instruction adheres to clauses 14.1, 14.2 and 14.3 above. The Seller is under no obligation to replace or repair any Goods identified as missing or defective outside of the periods stated.

14.4       Deviations of up to 10% of the ordered quantity and insignificant deviations in dimensions and colour shall not entitle the Buyer to register a complaint.  Specimens shall be deemed to be average samples.  The samples shall remain the property of the Seller unless they are invoiced separately and their ownership transferred.

14.5       In the event of a justified complaint the Seller may choose whether to provide free replacements for the Goods, or individual parts of them or whether to remedy the defects.  If the Seller acknowledges the defects but no decision as to what action he intends to take has been made within a period of 10 Working Days of receipt the written demand by the Buyer, the Buyer may demand the cancellation of the contract.  In the event of a complaint the Buyer, at the request of the Seller, must return the parts at his own expense, correctly and suitably packed to the Seller.  He shall not be entitled to return all the goods against the will of the Seller in the event of a complaint if only requested to send the defective parts.  All additional claims on the part of the Buyer, whether they involve compensation, reductions, cancellation (unless admissible as outlined above) or claims resulting from a positive violation of the contract and in particular for the compensation of other damage connected with the delivery of defective goods, shall be excluded as long as this is legally possible, even in the event of justified complaints.  Damage caused by gross negligence or malice shall be excluded from this exclusion of liability.

14.6       Where the Buyer has accepted, or has been deemed to have accepted, the Goods the Buyer shall not be entitled to reject Goods which are not in accordance with the contract. 

14.7       If the Buyer refuses to accept the Goods, the Seller shall be entitled to set an additional period of one week.  If the Buyer does not specify a delivery date within this period, the Seller shall be entitled to deliver the order quantity without notification after the elapse of the period or to store them at his own premises or at the premises of a third party at the expense of the Buyer.  The Seller and his storage agent may only be held liable for malice and shall not be obliged to insure the goods.  In all cases of acceptance delays, the total purchase price shall be payable without restriction, with the elapse of any agreed delivery deadlines and discounts.  Storage monies and transport costs shall be charged to the Buyer.

 

15.         Compensation in the event of non-fulfilment

15.1       If the Seller has a claim for compensation as a result of the complete or partial non-fulfilment of the contract by the Buyer, this may be claimed to a level equalling 25% of the purchase price for the non-delivered goods without having to provide any evidence that damage has been caused (lump sum compensation).  The Buyer may reserve the right to provide evidence that the damage cause was less than this amount.  The Seller shall reserve the right to make a claim for compensation, which exceeds the amount of 25% of the purchase price.  

 

16.         Returns

16.1       Returns are accepted at the Seller’s discretion however the Buyer must notify the Seller of discrepancies with or damages to an Order as per Clauses 8.1, 8.2 and 8.3 above. For returns where a Buyer has ordered goods in error, has changed their mind or no longer requires the goods the Seller reserves the right to charge costs of carriage and re-stocking fee to cover the associated costs of return. Our standard re-stocking fee is 20% of the original order value (net of carriage and VAT).

16.2       To request the return of any items for replacement, exchange or refund, please contact the Seller via email at returns@fenneluk.com with full details of the Order, and the reason for the return, within 5 Working Days of delivery for Goods which are damaged or faulty and/or Goods that you wish to return which where ordered in error or no longer required.

16.3       We will not accept the return of Goods without prior authorisation or where the returned Goods are unfit for re-sale, unless the Goods have been reported damaged or faulty in accordance with Clause 10.2. These Goods must be paid for in full by you.

16.4       Where product returns are agreed by the Seller, the defective Goods should be correctly and suitably packaged and labelled by the Buyer for their safe return.  If Goods are not suitably packaged and are received back by the Seller with damage caused in transit, the Seller is not obliged to credit or refund the products. All returned items should be received back in the same condition in which they were shipped. This means that new items must be returned new, unused and complete and where possible in their original packaging. We reserve the right to refuse returns or to charge our fees and expenses if the Goods are not received in new, unopened condition.

16.5       If the Goods are not suitable to be returned by Royal Mail services, then at our discretion we may be able to offer a collection service. If the return is not the result of a Seller error and we arrange the collection and return for the Buyer we will deduct the cost of the return from any credit/refund that may be due.

16.6       Once the Seller is in receipt of the returned Goods they will carry out a returns inspection. This will be carried out no later than 2 Working Days after the Goods have been returned. On completion of the inspection the Seller will inform the Buyer of their decision whether they accept or reject the return and provide details of the action to be taken.

16.7.1    If the Seller accepts the return the replacement, exchange or refund will be actioned. The Seller will only refund the cost of sending an item back to us if it is found to be defective, damaged or incorrect.

16.7.2    If the Seller rejects the return the Buyer has the choice of having the Goods sent back to them at their cost or leaving the Goods with the Seller to dispose of as we wish. The Seller reserves the right to return the Goods to the Buyer at cost to the Seller should they not wish to dispose of the Goods and the Buyer must accept delivery of the Goods.



17.         Title and risk

17.1       The risk of deterioration, loss and incorrect shipment shall be transferred to the Buyer on delivery of the good to the address provided by the Buyer to the Seller. Incoterms for Goods to be despatched for delivery outside of the UK will be pre-agreed between the Seller and Buyer prior to despatch.

17.2       Notwithstanding the earlier passing of risk, title in the Goods shall remain with the Seller and shall not pass to the Buyer until the amount due under the invoice for them (including interest and costs) has been paid in full.

17.3       Until title passes the Buyer shall hold the Goods as bailee for the Seller and shall store or mark them so that they can at all times be identified as the property of the Seller.


                                17.4       The Seller may at any time before title passes and without any liability to the Buyer:

17.4.1    repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Buyer’s right to use, sell or otherwise deal in them; and

17.4.2    for that purpose (or determining what if any Goods are held by the Buyer and inspecting them) enter any premises of or occupied by the Buyer.

17.5       The Seller may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Buyer.

 

18.         Supply of Services

18.1       The Seller shall provide the Services to the Buyer.

18.2       The Seller shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

18.3       The Seller shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Seller shall notify the Buyer in any such event.

 

19.         Buyer’s obligations

 

19.1       The Buyer shall:

19.1.1    Ensure that the terms of the Order are complete and accurate;

19.1.2    Co-operate with the Seller in all matters relating to the Services;

19.1.3    Provide the Seller, its employees, agents, consultants and subcontractors, with access to the Buyer's premises as reasonably required by the Seller to provide the Services;

19.1.4    Provide the Seller with such information and materials as the Seller may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

19.1.5    Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and

19.1.6    keep and maintain all materials, equipment, documents and other property of the Seller (Seller Materials) at the Buyer's premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller's written instructions or authorisation.

                19.2       If the Seller's performance of any of its obligations in respect of the Services is prevented or delayed                                 by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation                                 (Buyer Default):

19.2.1    the Seller shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays the Seller's performance of any of its obligations;

19.2.2    the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller's failure or delay to perform any of its obligations as set out in this clause 19.2; and

19.2.3    The Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Buyer Default.

 

20.         Intellectual Property Rights

20.1       All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Seller.

20.2       The Buyer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Buyer's use of any such Intellectual Property Rights is conditional on the Seller obtaining a written licence from the relevant licensor on such terms as will entitle the Seller to license such rights to the Buyer.

                                20.3       All Seller Materials are the exclusive property of