Staingard Terms Of Business

1. GENERAL

These are the main terms of business of Staingard (a company registered in England and Wales with registration number 5694078) whose registered office is at Barnston House, Beacon Lane, Heswall, Wirral, Merseyside, CH60 0EE, and its associate companies and partner organisations.

‘Authorised Representatives’ means any director or its representative, and in the case of the Client, any director, partner or sole proprietor.

‘the Client’ means any individual, firm, company or the party with whom Staingard contracts in respect of the provision of Goods and/or Services.

“Confidential Information” means any and all information that relates to the business affairs, strategic, tactical and financial plans, products, developments, trade secrets, know how, clients and personnel of Staingard which is disclosed (in any form) to the Client whether or not marked “Confidential” or which may reasonably be regarded as being confidential.

‘Contact Report’ means any correspondence between Staingard and the Client in relation to the Contract.

‘Contract’ means any agreement for the provision of the Services to the Client.

“Delivery” means delivery of the Goods or Services by Staingard in accordance with these Terms.

“Delivery Address” means the Client’s address. In the absence of a specified address for the Client or where the Client is to collect the Goods the Delivery Address shall be Staingard’ address or the agreed place of collection.

“Estimated Delivery Date” means the date for delivery agreed from time to time by the parties.

‘Goods’ all products sold by Staingard (excluding insurance services) including but not be limited to furniture care and protection products, mattress protectors and furniture.

‘Proposal Form’ means Staingard’ standard form for collection of data (either electronically or on paper) by the Client.

‘Quotation’ means any quotation sent to the Client by Staingard on Staingard’ headed notepaper, detailing amongst other things, the description and price of the Services.

‘Replacement Goods’ those goods replaced under the terms of the insurance contract having been deemed irreparable.

‘Services’ means services to be provided by Staingard including the provision of insurance policies to the Client by Staingard, administration of customer data, the issue of policy certificates, the provision of a claims handling service, the provision of training and ongoing training, the provision of licensed software or proposal forms for the capture of customer data and the design and preparation of two dimensional and

three dimensional point of sale, packaging, literature, electronic and/or digital data and other promotional material or sales assistance tools as agreed between the parties from time to time.

2. THE CONTRACT

2.1 Any Contract shall incorporate and be subject to these Terms and the Quotation. In the event of a conflict between these Terms and the Quotation these Terms shall prevail UNLESS both parties agree in writing to the contrary. By placing an order with Staingard or accepting Staingard’ Quotation, the Client agrees to deal with Staingard on these Terms to the exclusion of all other terms, conditions, warranties or representations.

2.2 Any Quotation provided by Staingard constitutes an invitation to the Client to appoint Staingard within 30 days of the relevant Quotation date in accordance with these Terms and any other additional terms referred to in a Quotation or accepted and agreed in accordance with clause 2.1 above. 2.3 Staingard The failure or delay of Staingard to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to these Terms does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect Staingard’ right later to enforce or exercise it nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege. Except as expressly provided otherwise, the remedies available to the parties under these T&Cs or the Contract shall be without prejudice to any other rights, either at common law or under statute, which either may have against the other.

2.4 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, Proposal Form acceptance of offer, invoice or other document or information issued by Staingard shall be subject to correction without any liability on the part of Staingard. The Client shall be responsible for the accuracy of any Contract entered into by it or its acceptance of any Quotation2.5 Notwithstanding clause 17 of these Terms the Client may not cancel, rescind or repudiate any Contract which has been accepted by Staingard except with the written agreement of Staingard and on terms that the Client shall indemnify Staingard in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Staingard as a result of cancellation, rescission or repudiation for all work up to and including the date of cancellation, rescission or repudiation.

2.6 Staingard may at its absolute discretion (and without providing reasons) refuse insurance cover in respect of any customers of the Client.

2.7 The Client shall not be entitled to cancel (in whole or in part) any order for Goods or Quotation except with the prior written permission of Staingard. As a condition of its permission Staingard may require that the Client indemnify Staingard in full against all loss (including loss of profit), costs (including materials and labour), damages and expenses incurred by Staingard in relation to the cancelled order or Quotation.

2.8 Staingard reserves the right to make any changes in the specifications of the Goods which are required to conform with any applicable safety or other requirements or which do not materially affect their quality or performance.

3. PRICES

3.1 The price of the Goods shall, subject to a price increase by Staingard, be the price set out in the relevant order or Quotation or, if not specified, the price listed in Staingard’ published price list current at the date of the Contract (the “Price”). All Price quotes are, save as provided herein, valid for 30 days only or until earlier acceptance by the Client, after which time they may be altered by Staingard without giving notice to the Client. The Price shall be inclusive of the cost of Delivery where such Delivery is by post. Subject to any alternative basis for charging specified by Staingard in writing the Client shall pay Staingard for the Services and Goods such sums and at such times as are specified herein, save that if any additional items are incorporated into the Contract, Staingard shall be entitled to charge such sum as is indicated on any subsequent Quotation or Contact Report, which shall supersede any previous Quotation in time, and in any event, time for payment shall be of the essence.

3.2 Staingard reserves the right by giving 30 days notice to the Client at any time to increase the price of the Goods and/or the Services. In addition to the Increase, Staingard reserves the right at any time before Delivery, by giving notice to the Client to increase the Price to reflect any increase in the cost to Staingard which is due to any factor beyond its control (which shall include but, not be limited to, any increase in the cost of materials, goods or labour, transport charges, currency fluctuation, taxes and/or duties), any change in Estimated Delivery Date, Delivery Address, quantities or specifications for the Goods which is requested by the Client or any delay caused by any instructions of the Client or failure of the Client to give Staingard adequate information or instructions.

3.3 Except as may be otherwise agreed in writing by Staingard orders for the Goods are accepted on the basis that the price quoted is exclusive of any Insurance Premium Tax and Value Added Tax where applicable.

4. COVER PROVIDED

4.1 The Insurance cover provided for the Client’s customers shall be such cover as is specified in any insurance certificates provided by Staingard only.

5. PROCEDURE AND DELIVERY

5.1 Staingard shall provide insurance and administration only.

5.2 Unless otherwise expressly agreed in writing “Delivery” shall be deemed to have been duly effected by Staingard:- (i) in the case of Goods to be collected by the Client when Staingard has notified the Client that the Goods are ready for collection at the Delivery Address; or (ii) in all other cases by Staingard dispatching the Goods to the Delivery Address by a commercial carrier.

5.3 Staingard shall use its reasonable efforts to effect Delivery on or around the Estimated Delivery Date, but time of Delivery shall not be of the essence. Staingard may, upon giving reasonable notice to the Client, effect Delivery before the Estimated Delivery Date.

5.4 Where Staingard is to deliver the Goods in instalments each instalment shall be treated as an entirely separate contract and any default or breach by Staingard in respect of any such instalment shall not entitle the Client to cancel any other instalment or treat the Contract as a whole as repudiated.

5.5 If the Goods are damaged on Delivery or (save as permitted otherwise under these Terms) less than the correct amount of the Goods is Delivered then, unless the Client notifies Staingard within three days of Delivery, no claim against Staingard may be made in respect of damage to or short delivery of such Goods.

5.6 If the Goods have not been delivered despite receipt by the Client of the invoice from Staingard relating to them then, unless the Client notifies Staingard within seven days after the date of such invoice, no claim against Staingard may be made in respect of non-delivery of those Goods. In the event that the Client notifies Staingard of non-delivery in accordance with this clause 5.6 or Staingard fails to deliver the Goods in

accordance with these Terms (other than for reasons beyond Staingard’ control or as a result of the Client’s default) and Staingard is liable to the Client for such non-delivery Staingard’ liability shall be limited to the excess in cost (if any) to the Client (in the cheapest reasonably available market) of similar goods to replace those not

delivered by Staingard.

5.7 The Client shall be deemed to accept the Goods on Delivery notwithstanding any late delivery by Staingard.

5.8 If the Client fails to take Delivery of the Goods or fails to give Staingard adequate delivery instructions before the Estimated Delivery Date, then, without prejudice to any other right or remedy available to Staingard, Staingard may:- (i) store the Goods until actual Delivery is made and charge the Client for the costs (including insurance) of storage; and/or (ii) sell or supply the Goods in or to a third party in any country at the best price readily obtainable and (after deducting all storage and selling expenses) charge the Client for any shortfall below the price under the Contract.

5.9 Risk of loss of or damage to the Goods shall pass to the Client on Delivery and the Client shall insure the Goods from that time until ownership of and title to them passes to the Client. Notwithstanding Delivery and the passing of risk in the Goods to the Client, or any other provisions of these Terms, ownership of and title to the Goods shall be retained by Staingard until Staingard has received in cash or cleared funds payment in full of the Price (and of the price of any other Goods supplied to the Client by Staingard at any time whether or not such price has

become due). If any of the Goods owned by Staingard is incorporated into other goods and is not identifiable in and separable from the resulting composite or mixed goods, title to the resulting composite or mixed goods shall vest in Staingard and shall be retained by Staingard for so long as and on the same terms as those on which it would have retained title to the Goods in question.

5.10 Until ownership of and title to all goods owned by Staingard passes to the Client, the Client shall hold the goods in the Client’s possession or control as Staingard’ fiduciary agent and bailee and shall keep them separate from those of the Client and third parties and properly stored, protected and insured and identified as Staingard’ property. The Client shall be entitled to resell or use such goods in the ordinary course of its business but shall account to Staingard for the entire proceeds of sale or otherwise of such goods whether tangible or intangible, including

insurance proceeds, and shall keep all such amounts separate from any monies or property of the Client and third parties and, in the case of tangible proceeds, properly stored, protected and insured. The Client shall maintain records of the persons to whom it sells or disposes of such goods and of the payments made by such persons for such goods and will allow Staingard to inspect those records and the goods themselves on request. Staingard shall be entitled to trace the proceeds of sale or otherwise of such goods.

5.11 For the avoidance of doubt, the Goods, all other goods supplied to the Client by Staingard and all goods into which the Goods or such other goods have been incorporated which are in the Client’s possession shall be presumed to belong to Staingard unless the Client can prove otherwise.

5.12 Until ownership of and title to any goods owned by Staingard passes to the Client (and providing the goods are still in existence and have not been resold), Staingard shall be entitled at any time to require the Client to deliver up such goods to Staingard and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where such goods are stored and repossess them. The Client shall procure that any third party which holds such goods shall permit Staingard to take possession of them and shall indemnify Staingard against any

liability which it may incur to such third party in connection with taking or attempting to take possession of them. Staingard shall be entitled to use or dispose of such goods as it wishes. Unless Staingard expressly elects otherwise any Contract between it and the Client shall remain in existence notwithstanding any exercise by Staingard of any of its rights under this clause.

5.13 The Client shall not be entitled to pledge or in any way charge by way of security for any indebtedness any goods which remain the property of Staingard, but if the Client does so, all monies owing by the Client to Staingard shall (without prejudice to any other right or remedy of Staingard) forthwith become due and payable.

6. OBLIGATIONS OF THE CLIENT

6.1 The Client will be provided with supplies of Staingard’ the Proposal Forms for the Services and the Client shall complete a Proposal Form for each policy for each customer or shall make necessary arrangements with Staingard to provide the information electronically in a format provided or otherwise approved by Staingard.

6.2 The Client shall use best endeavours to ensure that all information which shall be sent to Staingard is correct and accurate and shall indemnify if Staingard suffers loss as a result of such inaccuracies.

6.3 It is the Client’s duty to ensure that it and its customers understand the scope of the cover provided by Staingard and that the Client requests from Staingard any necessary training and/or sales literature (at the Client’s cost) as agreed between the parties.

6.4 The Client shall fully and effectively indemnify Staingard and keep it harmless in the event that it or its employees or any third party acting on its behalf incorrectly advises its customers of the nature and scope of the insurance cover provided by Staingard (i.e. other than as included on any standard insurance certificates provided by Staingard).

6.5 The Client shall use best endeavours to assist Staingard from time to time in ordering replacement components.

6.6 The Client has the option to supply Staingard with information contained on any Proposal Form by electronic means provided that such data is compatible with current systems operated by Staingard.

6.7 If the Client does not provide the Proposal Forms to Staingard by the timescales set out in these Terms Staingard reserves the right to refuse acceptance of all any Proposal Forms received by it which are more than 60 days old from the date of issue.

7. PAYMENT AND INVOICING PROCEDURE

7.1 Once Staingard has received the completed Proposal Forms from the Client, it will check the Client’s Proposal Forms to ensure that they comply with its requirements. Staingard will issue certificates of insurance direct to the Client’s customers. The Client shall either settle the invoice immediately it is received or if credit terms are agreed, will have 30 days from the date of each invoice to settle the invoice in full without deduction. If payment is not made in accordance with these Terms Staingard shall be entitled to cease all further work on behalf of the

Client without liability in respect of any loss or damage sustained by the Client as a result of the same and cancel all cover.

7.2 In respect of Goods, the Client shall make payment to Staingard in respect of all invoices in full and without any deduction or set off (whether in relation to such invoice or otherwise) within 30 days from the invoice date. Time of payment shall be of the essence. Any errors in any invoice shall be notified by the Client to Staingard within 15 days from the date of the relevant invoice and failure to so notify Staingard of any error shall prevent the Client from disputing such invoice at a later date. Where the Goods are point of sale or exhibition items Staingard shall be

entitled to invoice the Client for a contribution in the amounts and at the times agreed between the parties from time to time. 7.3 Failure by the Client to make payment to Staingard in accordance with the Contract Staingard shall entitle Staingard to charge interest on the amount for the time being unpaid at the rate of four per cent per annum above the base rate from time to time of National Westminster Bank PLC notwithstanding judgment being obtained by Staingard and Staingard shall be entitled as its option either:

7.3.1 to suspend all or any supplies of deliveries to be made under that or any Contract with the Client PROVIDED ALWAYS THAT in any event, the Client shall not in any respect be released from its obligations to Staingard under that or any such Contract, and/or,

7.3.2. to terminate any or all Contracts with the Client and to claim all losses from the Client and/ Or

7.3.3. to refuse to process any or all Proposal Forms received by Staingard following the Client’s non-payment for whatever reason and/or

7.3.4. to write to all of the Client’s customers whose premiums have not been paid to Staingard by the Client informing them that they are no longer covered because the Client has failed to pass on the premium for the Services.

8. COSTS OF PURCHASES AND CLIENT APPROVAL

Subject to clause 3.2 above Staingard undertakes not to incur any costs which are chargeable to the Client without the Client’s prior agreement (such agreement not to be unreasonably withheld or delayed) PROVIDED ALWAYS THAT the Client’s approval of copy, layouts, proofs, scripts, Contact Reports, digital data or schedules will constitute the authority of Staingard to incur such costs.

9. COPYRIGHT AND TITLE

9.1 The copyright in all artwork, digital data, copy, promotional and publicity material and all other work created or commissioned by Staingard belongs to Staingard and any such material if supplied to the Client shall only be used directly for the purposes authorised by Staingard.

9.2 Such intellectual property rights other than copyright as shall exist in the promotional and other material supplied by Staingard to the Client shall remain vested in HEWL and the Client shall hold such material as bailee until Staingard has been paid in full for any such material, to repossess the material and for that purpose to go upon any premises occupied by the Client or any third party.

10. LIABILITY

10.1 There are no warranties, conditions, guarantees or representations as to quality or fitness for a particular purpose of any Goods or Services and all other warranties, conditions, guarantees or representations whether oral or in writing, except as expressly stated in the Contract, and all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

10.2 Staingard does not seek to exclude or limit its liability for: (i) fraud or fraudulent misrepresentation; (ii) death or personal injury resulting from negligence of Staingard or its employees; or (iii) any other liability which must not, under English Law, be excluded or limited. Without prejudice to the foregoing, Staingard’ total liability to the Client under any Contract shall be limited to the total payment made or due by the Client in respect of that Contract.

10.3 Staingard shall not in any event be liable for any indirect, special or consequential loss or damage, howsoever arising or in respect of any loss of anticipated profits or wasted overheads or similar costs in connection with or arising out of the furnishing, functioning or use of the Goods or enjoyment of the Services and shall not be liable for any other damages except as provided in the relevant Contract.

11. CLAIMS

11.1 Staingard will provide full claims handling on such basis as is to be agreed between the parties from time to time. The Client has no authority to accept a claim on behalf of Staingard.

11.2 Any structural and/or manufacturing defects occurring during the manufacturer’s guarantee period, unless otherwise agreed, are the sole responsibility of the Client.

11.3 Where Staingard are required to replace furniture to settle a claim, it is agreed that the Client will supply the Replacement Goods or components at cost plus ten per cent plus VAT until the expiry of the last policy under the terms of the Contract has expired.

11.4 Whilst the Client’s comments regarding any claim may be taken into consideration by Staingard the decision of the Staingard claims departments acting on behalf of underwriters will be final and binding.

11.5 Where Staingard experiences consistent problems with a particular product of the Client, Staingard reserves the right to refuse cover for that product if in the opinion of Staingard the Client does not take steps to rectify the flaw.

11.6 Where Staingard settles a claim where the Client’s customer adds consideration to enhance Replacement Goods, Staingard shall only be responsible for payment of the depreciated goods at the rate of cost plus ten per centum and not the cost of the additional enhancement.

12. INSOLVENCY AND BREACH OF CONTRACT

In the event that:

12.1 The Client shall commit any breach of the Contract and shall fail to remedy such breach (if capable of remedy) within a period of fourteen days from the date of notice in writing from Staingard requesting such remedy, or

12.2 Any distress or execution is levied upon any of the goods or property of the Client, or

12.3 The Client offers to make any arrangements with or for the benefit of its creditors or commits any act of bankruptcy or being a limited company has a receiver or an administrator or an administrative receiver appointed over the whole or any part of its undertaking, property

or assets, or

12.4 Any order is made or a resolution is passed or analogous proceedings are taken for the winding-up of the Client (save for the purpose of reconstruction or amalgamation without insolvency and previously approved in writing by Staingard) then, and in any such case, Staingard shall be entitled without prejudice to its other rights hereunder, immediately to suspend all further supplies of the Services or the Goods until the default has been made good or determine at any time the Contract or any unfulfilled part hereof or at Staingard’ option to make partial supplies of the Services or the Goods, Notwithstanding any such termination, the Client shall pay to Staingard for all Goods and/or Services up to and including the date of termination.

13. TERMINATION

13.1 Notwithstanding the provisions of clause 16, either party may terminate the Contract by giving to the other not less than 90 days written notice of termination, unless such termination comes into effect before the end of the current catalogue season in which case such termination will come into effect on the last day of the current catalogue. In the event that, unless otherwise agreed between the parties, reasonable notice is not given prior to the end of the current catalogue season Staingard reserve the right to insist on continuity of supply until the end of the next catalogue.

13.2 Upon termination of this agreement, the Client shall return all documentation and equipment provided by Staingard and ensure that all and any references to Staingard have been removed from the Client’s premises and that the Client ceased to use any of the material supplied by Staingard in consequence of this agreement.

13.3 All and any payments outstanding upon termination of this agreement shall be settled immediately.

13.4 Following expiry or termination of the Contract Staingard will not accept Proposal Forms for Goods which have been sold by the Client but are deliverable to the Client’s customer 60 days after the Contract has terminated.

14. LAW

These Terms and each and every Contract made pursuant thereto shall be governed in all respects by and in accordance with the laws of England and the parties submit to the exclusive jurisdiction of English Courts.

15. ENTIRE AGREEMENT

15.1 These Terms contain all the terms agreed by the parties relating to their subject matter and supersede any prior agreements, understandings or arrangements between them, whether oral or in writing, and no representation undertaking or promise shall be taken to have been given or been implied from anything said or written in negotiations between the parties prior to the Contract except as set out in these Terms (provided however that nothing in these Terms shall exclude or limit either party’s liability for fraud or fraudulent

misrepresentation). The Client agrees that it will have no remedy in respect of any statement made to it upon which it relied in entering the Contract and that its only remedies will be for breach of the Contract. No amendment, modification or variation of these Terms or the Contract shall be binding unless made in writing and agreed by Staingard.

15.2 The client irrevocably and unconditionally waives any right it may have to claim damages for any misrepresentation whether or not contained in the Contract or breach of any warranty not contained in the Contract unless such misrepresentation or warranty was made fraudulently and/or to rescind the Contract.

15.3 Nothing in these T&Cs or the Contract shall confer any rights upon any person who is not a party to it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

16. INVALIDITY AND SEVERABILITY

If any provision of these Terms shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not effect the other provisions of these Terms and all provisions not affected by such invalidity and unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

17. ASSIGNMENT

The Client shall not assign the Contract except with the prior written consent of Staingard on such terms as may be required by Staingard. Consent to assign the Agreement will be granted only in exceptional cases, and consent will be withheld unless there is evidence satisfactory to Staingard that the proposed assignee is fully capable of performing and fulfilling all the conditions and obligations of the Terms.

18. NOTICES

Any notice required to be given to the Client or to Staingard must be given in writing and delivered by hand, mail, telex or facsimile with mail confirmation, at such address as shall have been notified to the other party in writing. If hand delivered, notices are deemed served on the second day following delivery. If sent by first class mail, notices are deemed served on the second day following posting. If sent by telex, notices are deemed served upon receipt of the sender’s answerback. If sent by facsimile, notices are deemed served upon receipt of the

sender’s confirmation provided that such facsimile notice is followed by confirmation by first class mail.

19. CONFIDENTIALITY

19.1 The Client shall keep Staingard’ Confidential Information confidential and shall not divulge the same to any third party or use it itself except for the purposes of the Contract without the prior written consent of Staingard.

19.2 The provisions of this clause 19 shall not apply to any information that is:

19.2.1 in or comes into the public domain other than as a result of a breach of these T&Cs or other obligation of confidentiality; or

19.2.2 received from a third party not under an obligation of confidentiality with respect thereto; or

19.2.3 required to be disclosed under operation of law or by any regulatory body (but then only to the extent and for the purpose required); or

19.2.4 approved for disclosure by Staingard in writing.

19.3 The Client shall be entitled to divulge Staingard’ Confidential Information to its employees, directors, officers and professional advisors who have a need to know the same provided that such parties are aware of and comply with these obligations as to confidentiality. The Client shall be liable for any breach by such parties of this clause 19.

19.4 Promptly upon completion, termination or expiration of the Contract the Client shall deliver up to Staingard all copies of the Confidential Information relating to the Contract in its possession.

19.5 The obligations of this clause 19 shall continue in force notwithstanding the termination or expiration of the Contract.

20. DATA PROTECTION

20.1 In this clause 20 the “Act” means the Data Protection Act 1998 and, where appropriate, terms used in this clause 20 shall have meanings ascribed to them in the Act.

20.2 The Client shall use and/or hold any personal data (as defined in the Act) in its possession pursuant to the Contract strictly in accordance with the Act and shall take all such steps as may be necessary to safeguard such personal data;

20.3 The Client shall defend, hold harmless and indemnify Staingard against all liability damages costs claims and expenses which it may incur by reason of any default under this clause 20 or any breach of the Act attributable to or caused, directly or indirectly, by the Client