Terms and conditions

10 July 2023

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Terms and Conditions for the Purchase of Goods (“T&Cs”)

 

1. Definitions

1.1      In this Contract:

“Acceptance” means Neulive’s acceptance of the Goods following inspection and testing thereof in accordance with clause 3, as confirmed in writing by Neulive to the Supplier;

“Confidential Information” means all information which is marked as confidential or has otherwise been indicated as being confidential, or information which would be regarded as confidential by a reasonable business person, and disclosed (whether in writing, orally or by any other means) by a party to the other whether before or after the Effective Date; “Delivery” means completion of delivery of the Goods in accordance with clause 2.3.2;

“Delivery Date(s)” means the delivery date(s) for the Goods as set out in the PO;

“Delivery Location(s)” means the location(s) where the Goods are to be

delivered as set out in the PO;

“Effective Date” means the date the PO is accepted by both parties (and, if signed by the parties on different dates, the later of these dates);

“Goods” means the goods to be manufactured (if applicable), supplied and delivered by the Supplier to Neulive hereunder, as identified in the PO;

“Insolvency Event” means where a person ceases or threatens to cease to carry on business, is found unable to pay its debts within the meaning of the Insolvency Act 1986 section 123, has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters into any composition with creditors generally, or has an order made or resolution passed for it to be wound up (otherwise than in furtherance of any scheme for solvent amalgamation or solvent reconstruction) or undergoes any similar or equivalent process in any jurisdiction;

“Neulive” means Neulive Limited with registered number

14863144 and having its principal place of business at 6 Vicarage Road, Edgbaston, Birmingham B15 3ES;

“Price” means the price for the Goods, as set out in the PO;

“Purchase Order” or “PO” means the form to be used by the parties to procure the Goods under these T&Cs, as set out at the start of these T&Cs;

“Specifications” means the specifications for the Goods, which shall include the quantities and descriptions of the Goods and other particulars that the Supplier must comply with in the provision of the Goods, as set out in the PO; and

“Supplier” means theperson, firm or body corporate entering into this Contract as identified in the PO.

1.2      In this Contract, unless the context otherwise requires:

1.2.1 references to (a) clauses are references to the clauses in these T&Cs; (b) any gender includes the other genders; and (c) a law includes that law as amended, extended, consolidated, re-enacted or applied by or under any other law before or after the Effective Date and any subordinate legislation made (before or after the Effective Date) under that or any other applicable law;

1.2.2 the singular includes the plural and vice versa;

1.2.3 a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having a separate legal personality);

1.2.4 the word “including” and any similar words are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words; and

1.2.5 headings are for convenience only and do not affect interpretation of this Contract.

2. Provision of Goods, Risk & Title

2.1      This Contract shall commence on the Effective Date.

2.2 The Supplier shall provide the Goods to Neulive on, and in accordance with, the terms set out in this Contract.

2.3      Unless expressly stated otherwise in the PO:

2.3.1 time for delivery of the Goods shall be of the essence;

2.3.2 delivery of the Goods shall (a) take place during Neulive’s normal business hours or as instructed by Neulive; and (b) be completed on the completion of unloading the Goods by the Supplier at the Delivery Location(s); and

2.3.3 the Supplier shall not deliver POs in instalments unless agreed otherwise in the PO. Where Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Neulive to the remedies set out in clause 4.

2.4 Unless Neulive has agreed otherwise in writing, the Supplier shall deliver the exact specified quantities of items comprised in the Goods in accordance with the PO. Without affecting its other rights and remedies, Neulive reserves the right to reject incomplete deliveries and to return excess quantities at the Supplier’s sole risk and expense. Any rejected Goods shall be returnable at the Supplier’s risk and expense.

2.5 Title to the Goods shall pass to Neulive on Delivery and risk in the Goods shall pass to Neulive on Acceptance (or in the case of a latent defect in the Goods, following the latent defect becoming apparent to Neulive).

2.6 Neulive may at any time prior to despatch of the Goods amend or cancel a PO by written notice to the Supplier. If Neulive amends or cancels a PO, its liability to the Supplier shall be limited to payment to the Supplier of its direct and reasonable costs incurred by it in fulfilling the PO up until the date of receipt of the notice of amendment or cancellation, except that where the amendment or cancellation results from the Supplier’s failure to comply with its obligations hereunder, Neulive shall have no liability to the Supplier for any such costs.

3. Inspection

3.1 Neulive shall have the right to inspect and test the Goods at any time before or following Delivery. Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations hereunder, and Neulive shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.

3.2 If following such inspection or testing Neulive considers in its reasonable opinion that the Goods do not conform or are unlikely to comply with clause 5.3.1 or are otherwise not in conformity with this Contract, Neulive shall, without limiting any other right or remedy Neulive may have, inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance. Neulive may conduct further inspections and tests after the Supplier has carried out its remedial actions.

3.3 If the Supplier fails to carry out the remedial action necessary to ensure compliance of the Goods with clause 5.3.1 or other terms of this Contract, this will be considered an irremediable material breach of this Contract and as a result Neulive may terminate this Contract in accordance with clause 9.2.1.

4. Remedies

4.1 If any Goods are not delivered on the Delivery Date(s), or do not comply with the undertakings set out in clause 5.3.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, Neulive may:

4.1.1 reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;

4.1.2 refuse to take any subsequent attempted delivery of the Goods;

4.1.3 require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the Price of the rejected Goods (if paid);

4.1.4 terminate this Contract with immediate effect;

4.1.5 obtain substitute goods from another supplier and recover from the Supplier any costs and expenses reasonably incurred by Neulive in obtaining such substitute goods; and/or

4.1.6 claim damages for any other costs, expenses or losses resulting from the Supplier’s failure to deliver the Goods on the Delivery Date(s).

4.2 Clause 4.1 applies to any repaired or replacement Goods. Neulive’s rights and remedies hereunder are in addition to its rights and remedies implied by statute and common law.

5. Supplier Obligations

5.1 The Supplier shall perform its obligations hereunder in a timely and professional manner and with due care and skill, and in accordance with good industry practice and all applicable laws, regulations and codes from time to time in force.

5.2 If requested by Neulive, the Supplier shall provide Neulive, in reasonable time before the Delivery Date(s), with all information and assistance necessary to enable Neulive to prepare the Delivery Location(s) and provide proper environmental and operational conditions for the Goods.

5.3     The Supplier shall ensure that:

5.3.1 the Goods (a) are delivered in accordance with the PO; (b) are properly packed and secured in such manner so as to enable them to reach the Delivery Location(s) in good condition; (c) correspond with the Specifications; (d) conform with all standards referred to on any part of the Goods and in any packaging and/or documentation in, with or in relation to which the Goods are supplied; (e) are of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier by Neulive expressly or by implication, and in this respect Neulive relies on the Supplier’s skill and judgment; (f) are free from defects in design, material and workmanship; and (g) comply with all applicable statutory and regulatory requirements, including those relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;

5.3.2 it obtains and maintains in force all licences, permissions, authorisations, consents and permits needed to manufacture (where it is the manufacturer) and supply the Goods in accordance with this Contract;

5.3.3 any delivery is accompanied by a delivery note which shows the type and quantity of the Goods and any special storage instructions;

5.3.4 if it requires Neulive to return any packaging materials to it, that fact is clearly stated on the delivery note accompanying the relevant Goods, and any such returns shall be at the Supplier’s expense; and

5.3.5 in the performance of its obligations hereunder, it does not (a) interfere with, disturb or disrupt the business and operations of Neulive, any employees and contractors of Neulive, or any other supplier engaged by Neulive; or (b) cause Neulive to breach any applicable laws, regulations or codes.

5.4 At all times, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with this Contract, and shall, on Neulive’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

6. Price & Payment

6.1 Unless expressly stated otherwise in the PO, the Supplier may only invoice Neulive for the Goods on or at any time after Delivery.  

6.2 In consideration of the provision of the Goods by the Supplier in accordance with this Contract, Neulive will pay any undisputed Price if a valid written VAT invoice is received (a) by or on the 6th of the month, at the end of that month or (b) on or after the 7th of the month, at the end of the following month. The Price shall be exclusive of VAT and Neulive will pay the Supplier any VAT properly chargeable on the Goods delivered pursuant to this Contract.

6.3 The Supplier shall not be entitled to any payment other than the Price. The Price are inclusive of all out-of-pocket expenses and any other costs which may be incurred by the Supplier in connection with the provision of the Goods, including packaging, insurance and delivery costs. Neulive may at any time, without limiting any of its other rights or remedies, retain or set off any amount owed to it by the Supplier against any amount due to the Supplier hereunder or under any other agreement between the parties.

6.4 If any sum due for payment under or in accordance with this Contract is not paid on the due date, the party in default shall pay interest on such sum from the due date until the date of actual payment (whether before or after judgment) at the rate of 4% per annum above the Bank of England’s base rate from time to time, such interest to accrue on a daily basis until actual payment of the overdue amount, whether before or after judgment.

7. Confidentiality

7.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations hereunder, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to this Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.  These restrictions shall continue to apply after the termination or expiry of this Contract. A party shall not acquire any right, title or interest in or to the other’s Confidential Information.

8. Liability

8.1 Neulive does not limit or exclude its liability in respect of death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or any other liability to the extent it is not lawfully permitted to limit or exclude it.

8.2 Subject to clauses 8.1 and 8.3, Neulive’s total liability for all claims arising under or in connection with this Contract whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, howsoever arising shall be limited to the Price paid hereunder.

8.3 Subject to clause 8.1, Neulive shall not be liable to the Supplier, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Contract for:

8.3.1 loss of business, revenue, profits, contracts, goodwill or anticipated savings;

8.3.2 damage to reputation; or

8.3.3 indirect, special, exemplary, punitive or consequential loss or damage,

whether or not such losses were within the contemplation of the parties at the Effective Date.

8.4 The Supplier shall keep Neulive indemnified against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Neulive as a result of or in connection with any claim made against Neulive by a third party:

8.4.1 for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the supply or use of the Goods;

8.4.2 for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and

8.4.3 arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Contract by the Supplier, its employees, agents or subcontractors.

8.5  This clause 8 shall survive termination or expiry.

9.  Termination

9.1 Neulive may terminate this Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on this Contract. Neulive shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.

9.2 Without prejudice to any other termination rights set out in this Contract, a party may terminate (in whole or in part) this Contract with immediate effect by giving written notice to the other party if the other:

9.2.1 commits (a) an irremediable breach of this Contract; or (b) any remediable material breach of this Contract and fails to remedy such breach within 20 days from the service on it of a notice specifying the material breach and requiring it to be remedied (or, having so remedied, subsequently commits a similar breach within the next 20 days); or

9.2.2 undergoes an Insolvency Event.

9.3 On expiry or termination all accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination or expiry. All clauses which expressly or by implication survive termination or expiry shall continue in full force and effect.

10. General

10.1 No amendment or variation of this Contract shall be effective or binding on the parties unless made in writing and signed by authorised signatories of each party.

10.2 Save for those subcontractors set out in the PO, the Supplier shall not assign, transfer, or subcontract any of its rights or obligations hereunder without the prior written consent of Neulive. Neulive may at any time assign, transfer, subcontract, or deal in any other manner with any or all of its rights hereunder.

10.3 The relationship of the Supplier to Neulive will be that of independent contractor and nothing in this Contract shall render it (nor any of its employees, agents or subcontractors) an employee, worker, agent or partner of Neulive and accordingly they shall not hold themselves out as such. Neither party shall have authority to

make representations, act in the name of, or on behalf of, or to otherwise bind the other party.

10.4 Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from an event, circumstance or cause beyond its reasonable control.

10.5 Any notice given hereunder shall be in writing and signed by or on behalf of the party giving it, and shall be served by delivering it personally, sending it by pre-paid first class recorded delivery or sending it by email, to the relevant party at the address as set out in the PO. Notices shall be deemed to have been received (a) if delivered and received personally, at the time of delivery, (b) in the case of pre-paid first class recorded delivery, at the time recorded by the delivery service and (c) in the case of email, at the time that the email enters the information system of the intended recipient provided that no error message indicating failure to deliver has been received by the sender.

10.6 If any term in this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant term shall be deemed deleted. Any modification to or deletion of a term shall not affect the validity and enforceability of the rest of this Contract. If any term in this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is valid, legal and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

10.7 The failure to exercise or delay in exercising a right or remedy provided to a party hereunder shall not constitute a waiver of that right or remedy, and no waiver by a party of any breach of this Contract shall constitute a waiver of any subsequent breach of the same or any other provision.

10.8 A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce or enjoy the benefit of any term of this Contract.

10.9 This Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. No counterpart shall be effective until each party has executed and delivered at least one counterpart.

10.10 This Contract sets out the entire agreement between the parties in relation to its subject matter and overrides any prior correspondence, arrangements, understandings, agreements or representations relating to its subject matter. Each party acknowledges that, in entering into this Contract, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that its only liability in respect of those representations and warranties that are set out in this Contract (whether made innocently or negligently) shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud.

10.11 This Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed in accordance with English law. The parties irrevocably submit to the exclusive jurisdiction of the English courts to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).