1. DEFINITIONS

“the Company” Focus Fireplaces Limited

“the Order” the order or request to purchase

“the Customer” the purchaser named in the order and includes its servants and agents

“the Goods” the goods listed in any order (including any instalment of the goods or any part of the parts of them)

“the Contract” the contract for the sale of the goods of which these terms and conditions form part.

2. CONTRACT

Unless the contrary is expressly agreed in writing by the Company, the terms and conditions set out herein shall apply to all contracts for the supply of goods by the company and shall apply in place of and prevail over any terms or conditions contained or referred to in Order or in correspondence or elsewhere or implied by trade, custom practice or course of dealings.

3. ACCEPTANCE

(a) A quotation by the Company does not constitute an offer and the Company reserves the right to withdraw or revise the same at any time prior to the Company’s acceptance of the Order.

(b) No valid contract shall exist unless the Company has communicated its acceptance of the Order in writing to the customer, or has delivered Goods to the customer. The Company shall use its best endeavours to fulfil all orders which it has accepted, but shall be under, no obligation to the Customer for failure to fulfil any orders otherwise than through its own default.

(c) The quantity, quality and description of any specification for the Goods shall be those set out in the Order. The Customer shall be responsible to the Company for the accuracy of the terms of the Order (including any applicable specification) and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.

(d) If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with any specifications or design submitted by the Customer, the Customer shall indemnify the Company against all loss, damage, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim which results in directly or indirectly from the Company’s use of any such specifications or designs, including, without limitation, any claim which relates to any of the following matters;

(i) any infringement of any patent, copyright, registered design, trade or service mark, confidential information or other industrial or intellectual property rights;

(ii) any claim for loss, damage or injury of or to property or person by reason of any defect, inherent or otherwise, in the Goods or in respect of any negligence of the Customer or its employees.

(e) The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are supplied to the Company’s specification, which do not materially affect their quality or performance,

(f) No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on the terms that the Customer shall indemnify the Company in full against all loss (including, without limitation, loss or profit), costs (including, without limitation, the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.

4. DELIVERY AND RISK

(a) Risk in the Goods shall pass to the Customer on delivery. Delivery shall be deemed to take place when the Company has transported the Goods to the Customer or the Customer’s agent (or, if it has been expressly agreed between the Company and the Customer that the Customer shall collect the Goods, when the Company has notified the Customer that the Goods’ are ready for collection).

(b) The Company will make every reasonable effort to meet dates requested by the customer, but any date or time of delivery quoted by the Company shall be an estimate only and time shall not be of the essence of the contract. The Company shall not be liable for any loss sustained by the Customer through delay in delivery for whatever reason. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.

(c) The Company reserves the right to make partial deliveries and to submit an invoice for each such partial delivery.

(d) Where Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these terms and conditions or claim by the Customer in respect of anyone or more instalments shall not entitle the Customer to treat the contract as a whole as repudiated.

(e) If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:

(i) Store the goods until actual delivery and charge the Customer for the reasonable costs (including Insurance) or storage; or

(ii) Sell Goods at the best price readily obtainable and (after deducting all reasonable storage, insurance and selling expenses) charge the customer for any shortfall below the price under the contract.

5. PRICES

(a) Prices quoted apply only to orders for not less than the quantity of the goods referred to in the quotation. If the Company incurs additional expenditure as a result of any suspension or delay resulting from the Customer’s Instructions or otherwise as a consequence of the Customer’s fault or from any factor beyond the control of the Company the price shall be adjusted accordingly.

(b) Except as otherwise stated under the terms of any quotation or in any price list of the Company, and unless otherwise agreed in writing between the Company and the Customer, all prices are given by the Company on an ex works basis, and where the Company agrees to deliver the Goods otherwise than at the Company’s premises, the Customer shall be liable to pay the Company’s charges for transport, insurance and installation and all other expenses incidental to delivery.

(c) Unless-otherwise stated, all prices are exclusive of any applicable value added or sales tax, which the customer shall be liable to pay to the Company.

(d) All prices are inclusive of packaging except in cases where special packaging is necessary as a result of the Customer’s particular requirements.

(e) The Customer shall reimburse the Company in full for any additional taxes, duties, levies or surcharge paid by the Company, in respect of the sale of the Goods.

6. TERMS OF PAYMENT

(a) The Company will invoice the Customer for the Goods on or after the date of delivery of the Goods unless the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods in which event the Company shall be entitled to invoice the Customer for the price at any time after the company has notified the Customer that the Goods are ready for collection (as the case may be) the Company has tendered delivery of the Goods. Payment in full for the amount shown on the invoice must be made on receipt of invoice. In any case where in its absolute discretion the Company considers it advisable to do so, the Company may require full or partial payment in advance as a condition of delivery.

(b) Any sums overdue shall carry interest at the rate of 4% above Natwest Bank PLC’s base rate per annum; which interest shall accrue daily both before and after judgement and be recoverable from the Customer as a separate contract debt; and the Company’s acceptance of any principal sum exclusive of interest shall not be a waiver of the Company’s right to recover the interest thereon.

(c) The Company reserves the right to suspend, without further liabilities to the Customer, further supplies to the Customer if the terms of payment are not met.

7. ILLUSTRATIONS AND DESCRIPTIONS

(a) All illustrations, descriptions and specifications quoted in respect of the Goods or contained in any advertisement or literature although believed to be correct, shall not (save where the same expressly stipulated in the order) form part of the Contract and no warranty is given the goods will correspond exactly with any such illustration, description or specification.

(b) No oral statement or representation made at any time prior to the contract shall be a term of the contract or deemed to be an inducement or collateral contract unless reduced into writing.

(c) The Company reserves all copyright, design rights and other intellectual property rights in all its drawings, prints, plans and other data.

8. TITLE

(a) The acceptance by the company of any order for Goods shall constitute an agreement to sell the Goods and not be a sale of them and no title to the Goods shall pass to the Customer by reason of delivery or acceptance of the same.

(b) The Company shall remain the sole and absolute owner of the Goods until such time as the price of the goods and any other sums owned by the Customer to the Company shall have been paid in full by the Customer to the Company. Until such time, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee and shall not resell the Goods and shall keep them on its premises, separately from its goods or those of any other person, properly stored, protected and insured and in a manner which makes them readily identifiable as the Goods of the Company.

(c) The Customer’s right to possession of the Goods shall cease if and as soon as any of the events specified in Clause 9 occurs.

(d) If payment of the price of the Goods or any other sum owed by the Customer to the Company is overdue in whole or in part, the Company may (without prejudice to any of its rights) recover the Goods or any of them and the Customer shall be deemed to have granted to the Company an irrevocable licence to enter upon the Customer’s premises for that purpose.

9. INSOLVENCY OF THE CUSTOMER

If:

(a) The Customer shall make default in or commit a breach of any of its obligations to the Company (whether under the Contract or otherwise); or

(b) any distress, execution or other legal process is levied upon the Customer’s assets; or

(c) The Customer shall make any arrangements or composition with his or its creditors or call a meeting of his or its creditors or is unable to pay his or its debts or (being a corporation) shall enter into liquidation or have a winding-up petition or a petition for the appointment of an administrator present against it or suffer the appointment of a receiver or an administrative receiver in respect of any part of its undertaking or assets: or

(d) The Customer stops payment of its debts or ceases or threatens to cease carrying on its business or a substantial part thereof. The Company may elect, without prejudice to its rights or remedies, either to proceed with its performance of contracts than subsisting with the Customer, to cancel such contracts, or to suspend deliveries without liability to the Customer. In the latter two cases the Customer shall remain liable to Indemnify the Company against all cost incurred by the Company in connection with such contracts up until their cancellation or the suspension of deliveries. All sums then outstanding to the Company shall become immediately due and payable in full, notwithstanding any prior agreement to the contrary.

10. LOSS OR DAMAGE IN TRANSIT

(a) Where the price quoted includes delivery other than at the Company’s premises, liability (if any) of the Company shall be limited as follows:

(i) in the case of a claim for lost or damaged Goods, to the replacement of the Goods in respect of which such claim is made;

(ii) in the case of a claim for delivery of the wrong number of Goods, to making good and shortfall:

(iii) in the case of a claim for delivery of incorrect Goods, to the delivery of the correct Goods or in any of the above cases, at the Company’s discretion, refunding the price paid.

11. FORCE MAJEURE

The company shall not Incur any liability whatsoever under this contract for any delay in or failure to carry out its obligation to the extent that such failure is caused by force majeure (which expressions shall include without prejudice to its generality act of God, war, riot, acts of sabotage or subversive activity, insurrection, governmental regulations, legal restrictions, imports or export regulations embargoes, strikes, labour disputes, shortages or any other causes beyond its control. If performance of their Contract is prevented for three months by force majeure either the Company or the Customer may, upon 30 days notice to the other terminate this contract with respect to any portion unperformed.

12. GENERAL

(a) Any failure by the Company to exercise any of its rights under these conditions shall not be deemed to be a waiver of any such rights nor operate to bar the exercise or enforcement thereof at any time thereafter.

(b) The unenforceability or invalidity of anyone or more of these conditions shall not affect the enforceability or validity of the remaining conditions.

(c) The words “In writing” wherever they appear shall be deemed to include both typewriting and transmission by telex or telecopier.

13. PROPER LAW

The Contract shall be governed by and construed In accordance with English law, and all disputes arising hereunder shall be submitted to the non-exclusive jurisdiction of English Courts.