Terms & Conditions

DEFINITIONS

APPLICATION OF TERMS

The Customer’s attention is drawn to these Conditions. All Orders placed with the Company and contractual agreements with the Company are subject to these Conditions at all times to the exclusion of all other terms and conditions (to include but not limited to terms or conditions which the Customer purports to apply under any purchase order, specification or other document).

QUOTATIONS

Prior to issuing the Customer with a quotation for the supply and/or installation of the Goods, the Company may require that the Customer provide the Company’s authorised representatives with access to the Customer’s Premises for a site visit in order that the Company may assess the requirements for installation of the Goods.

Any quotation for the supply and/or installation of the Goods by the Company is valid for a period of 30 days from the date of issue by the Company to the Customer, or, if different, such other period as may be stated in writing from the date thereof by the Company. If the quotation shall not be accepted by the Customer by way of an Order within the stated period of validity, then the quotation shall be deemed to have been withdrawn.

Notwithstanding and without prejudice to Clause 3.2 above, the Company reserves the right at its sole discretion to amend or withdraw any quotation issued prior to acceptance by the Customer without notice or reason.

PRICE

The Price shall subject to these Conditions be the price detailed in the Company’s Literature or as may otherwise be notified by the Company to the Customer in writing and shall be valid until such time as amended or varied by the Company.

The Company reserves the right to amend the Price at any time including at the time of Order and without being responsible for any form of loss.

Without prejudice to the generality of Clause 4.2 above, the Company reserves the right to amend the Price at the time of delivery and installation of the Goods where the Price was agreed based on the Customer’s requirements specified at any site visit however where it becomes apparent in the Company’s reasonable opinion on delivery and installation of the Goods that there has been a material change to the Customer’s requirements.

All prices detailed in the Company’s Literature are exclusive of Value Added Tax but are inclusive of packaging and delivery charges (unless specifically detailed otherwise) and, where applicable, are exclusive of any substitute taxes, levies, duties, imports, fees or charges whatsoever and howsoever payable, all of which shall be payable by the Customer in full and/or re-imbursed to the Company as appropriate. The Customer shall at all times indemnify the Company against non-payment of the same.

Any typographical or clerical error or omission relating to the Price in any quotation, Company’s Literature, Order, acceptance of Order, invoice or any other document issued by the Company shall be subject to correction without liability on the part of the Company at whatever time and whenever such a correction shall be deemed necessary by the Company.

CONTRACT

Whilst the Company shall endeavour to ensure at all times that the details portrayed in the Company’s Literature or elsewhere, including Goods descriptions, dimensions, drawings, specifications, photographs, colours, weights and information relating to the Goods is accurate, at all times such details are approximate only and do not form part of the Contract. The Company shall not be held responsible for any variation of the same nor have any liability in respect thereof. The Customer’s attention is in particular drawn to Clause 5.2 below.

The Company reserves the right at any time and without notice to amend, alter or change the design, make-up, materials or construction of any of the Goods provided at all times that the changes do not affect the quality, substantial appearance of, or performance of the Goods as anticipated at the time of the Order and the Customer shall raise no requisition in respect of the same.

A Contract shall only exist when an Order has been placed by or on behalf of the Customer and accepted by the Company notifying the Customer of such acceptance in writing. All Orders must be placed by the Customer completing the Company’s written Customer Order form (to be provided by the Company upon request) and returned to the Company. Any Order accepted by the Company may be subject to payment of a deposit if so requested by the Company.

The Company shall be entitled to regard any person placing an Order with the Company as having been authorised by the Customer to do so and shall bind the Customer in its entirety.

In the event that after the placing of an Order, the Customer shall request a modification, amendment or variation of the Contract (including the Goods to be supplied under the Contract) then any such request shall not be binding upon the Company unless authorised in writing by a director of the Company. Any such agreed modification, amendment, or variation of the Contract shall be deemed to be an amendment to the Contract and shall not constitute a new Contract.

The Customer may not cancel a Contract unless the Company agrees this in writing and then only upon terms that the Customer shall indemnify the Company in full against all costs (including the cost of all labour, materials, and services used), claims, actions, damages, charges and expenses incurred by the Company as a direct or indirect result of the cancellation.

The Company shall be entitled to cancel any Contract at any time for whatever reason and shall not be responsible to the Customer for any loss or damage arising therefrom, subject to the Company refunding to the Customer any monies paid by the Customers to be agreed between the Company and the Customer.

DELIVERY AND INSTALLATION

At the time of placing an Order the Customer shall specify on the Company’s Customer Order form details of the Customer’s Premises for the delivery and/or installation of the Goods.

The Customer confirms and acknowledges that the Company may at its sole discretion appoint sub-contractors or any other party authorised by the Company to deliver and/or install the Goods to include, but not limited to, delivery by the manufacturer of the Goods. For the purposes of this Clause 6, references to the Company shall include reference to such parties.

The Company shall notify the Customer of a date for delivery and/or installation of the Goods at the time of Order to be agreed with the Customer where-ever possible, together with an approximate time estimate for installation of the Goods at the Customer’s Premises, however the Customer’s attention is drawn to Clause 6.6 below.

Delivery of the Goods shall be effected and be deemed to have taken place by the Company delivering the Goods to the Premises. The Customer warrants to ensure that adequate access is available to the Customer’s Premises to enable the Company to deliver and/or install the Goods. In the event that the Company is unable to deliver the Goods to the Customer’s Premises, or upon delivery is unable to install the Goods, the Company reserves the right to charge to the Customer a charge to cover part of the cost of failed delivery.

The Company shall not be liable for any penalty, loss, injury, damage, cost or expense arising from any delay or failure in delivery or installation of the Goods or performance of the Contract from any cause at all, nor shall any such delay or failure entitle the Customer to refuse to accept any delivery under the Contract, performance of the Contract or to repudiate the Contract.

Any dates quoted or provided by the Company to the Customer or by the Customer to the Company for delivery and/or installation are approximate only, although the Company shall use its best endeavour to supply or install the Goods within any time notified by the Company to the Customer but time shall never and not be of the essence at any point. The Company shall not incur any liability whatsoever for failure either by itself or by any party appointed by it to supply or deliver or install Goods by any given date or dates.

COMPLAINTS

The Customer shall carefully examine the Goods upon delivery and after installation and shall notify the Company in writing setting out full and detailed particulars of any shortages or defects discoverable upon careful examination to be received by the Company within 24 hours of installation. Any other purported notification by the Customer to the Company of such alleged shortages or defects shall not be valid. In the absence of such notification within this stated time and in this stated form, the Company hereby excludes all liability in respect of any defects or shortages.

In the event that the Customer notifies the Company of an alleged defect or damage to the Goods in accordance with Clause 7.1, the Company shall use its reasonable endeavours to attend the Customer’s Premises to inspect the Goods. If (in the Company’s reasonable opinion) the Company finds that there is no damage or defect to the Goods, the Company may charge to the Customer an additional charge to cover the Company’s wasted expenditure in attending the Customer’s Premises.

For the avoidance of doubt, delivery of the Goods may take  place separately and on  a piecemeal basis.

Without prejudice to the above, the Company shall not accept any complaints about Goods where in the Company’s reasonable opinion the Goods have been used inappropriately or incorrectly which may have affected their performance or condition at the time of use.

PAYMENT

In consideration of the supply and/or installation of the Goods by the Company to the Customer, the Customer shall pay the Price.

Unless otherwise agreed by the Company at the time of Contract, payment for the Goods shall become due from the Customer 30 days from the date of invoice.

Payment shall be made either in cash or by debit/ credit card, or by cheque drawn on a UK clearing bank or by bank transfer.

In the event of any late payment whatsoever, the Company shall be entitled to charge interest on any balance due at the rate of 4% above Barclays Bank plc minimum base rate, the interest being calculated from the date the payment falls due in full.

The Customer shall reimburse the Company all costs and expenses (including but not limited to legal costs) incurred in the collection of any overdue amount.

If required by the Company a deposit of such figure as may be required by the Company to cover the cost of the Contract shall be paid by the Customer to the Company upon placing an Order and before any Goods are supplied.

The Company may agree to staged payments and/or credit facilities with the Customer at the Company’s sole discretion.

Payment shall be made in full without any deduction whether by way of set off, counterclaim, discount or otherwise.

RISK

The risk in the Goods shall pass to the Customer immediately upon delivery and the Customer shall take out and ensure appropriate insurance is in place accordingly.

RETENTION OF TITLE

Notwithstanding clause 9.1 above, the Company shall retain title and ownership in the Goods until the Price and all other sums outstanding and owing by the Customer to the Company are paid in full.

Pending payment in full of the Price and any other sums due to the Company, the following sub-clauses shall apply.

• The Customer shall keep the Goods in such a way that they can be readily identifiable as belonging to and being Goods of the Company;
• The Customer shall permit the Company to collect the Goods at the Customer’s expense should the Company or its authorised representatives so request at any time after payment is due.
• In the event that the Goods shall be in any way mixed, compounded, or entwined with the property of a third party or parties then the product or products thereof shall be deemed to be held in common with such third party or parties.
• Without prejudice to the above, the Customer shall hold the Goods as the Company’s trustee and bailee and shall keep the Goods properly stored, protected, insured, labelled and identified as being the Company’s property.
• The Customer shall not sell, give away, transfer or otherwise dispose of the Goods until the Price and all sums outstanding have been paid to the Company. In the event that the Customer should do so then any monies received and the proceeds of sale, or disposal, including any cheque received or other payment shall be held on trust by the Customer for the Company and the Customer will forward the cheque or payment to the Company immediately.  Pending the same, the Customer shall keep any monies received in a separate account so as to be identifiable as the Company’s monies.  In particular, but without prejudice to the foregoing, the Customer shall not pay the proceeds into any bank account which is overdrawn.
• The Company shall be entitled at any time following the date upon which payment is due and without additional notice to enter the premises of the Customer or any third party where the Goods are situate or shall be stored and repossess the same accordingly.  For the avoidance of doubt, the Customer irrevocably consents to allow the Company access onto their premises for this purpose.  The Customer shall reimburse the Company for all reasonable expenses and fees incurred (including, but not limited to, legal expenses) in so doing.
• The Company shall be entitled to maintain an action for the Price of the Goods notwithstanding that title to the same shall not have passed to the Customer.
• The Customer will immediately notify the Company of any damage to the Goods and will hold any insurance monies received in trust for the Company absolutely.  In the event that a claim is to be made under the Customer’s insurance, the Company may, at the Company’s sole discretion, conduct negotiations and effect a settlement with the insurers in place of the Customer.  The Customer at all times irrevocably authorises the Company to collect any insurance monies from the insurers.  The Company may apply any insurance monies as the Company shall see fit.

WARRANTY

Unless otherwise expressly confirmed by the Company to the Customer in writing, in lieu of all warranties, conditions, or liabilities imposed by law, the Company’s sole liability in respect of any defect in, damage to, or failure of the Goods supplied or for any loss, injury, or damage attributable thereto is limited to making good by replacement or repair defects which under proper use appear therein and arise solely from defective design, workmanship, or faulty materials within a period of 3 calendar months from the date of delivery.

The Company will only accept liability under clause 11.1 above provided that the Customer notifies the Company in the manner and at such times as are set out at 7.1 above.

At no time shall the Company be liable for any defect in, failure of, or damage to the Goods as a result of misuse by the Customer or any third party, due lack of care and attention, lack of general maintenance, or inappropriate use.

At no time shall the Company be liable for any defect in, failure of, or damage to the  Goods or non performance or inadequate performance of the Contract which occurs as  a result or consequence of the actions of any third party to include, but not limited to,  the Company’s suppliers or the manufacturers of the Goods.

LIABILITY

The Company shall only be liable as stated in clause 11 above.  This clause is in lieu of all conditions, warranties, and statements of whatever nature in respect of the Contract whether express or implied by statute, trade, custom, or otherwise and any such condition, warranty, or statement is hereby excluded.

Without prejudice to the foregoing clauses, the Company’s liability for any loss or damage sustained by the Customer as a direct result of any breach of the Contract or any liability whatsoever of the Company (including negligence) in respect of the performance of the Contract shall be limited to payment of damages not exceeding the invoice value of the Contract.

The Company will not be liable for the following loss or damage which shall or may arise out of or in connection with any failure in, defect of, or damage to the whole or any part of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or its use by the Customer or howsoever caused (even if foreseeable or in the Company’s contemplation)

• Loss of profit or profits, business, or revenue whether sustained by the Customer or any third party, and/or
• Special, indirect, or consequential loss or damage, whether sustained by the Customer or any third party, including, but not limited to, loss of profit, loss of interest, loss of Contract, loss of chance, damage to property of the Customer or any third party, and/or
• Any loss arising from any claim made against the Customer by any person or third party, and/or
• Any personal injury to the Customer or any other person or individual where such injuries are not caused by the Company’s negligence.

The Customer shall indemnify the Company against all claims, actions, costs, expenses (including any Court costs and legal fees incurred) or other liabilities whatsoever.  Non-exhaustive illustrations of the same include

• Any liability arising under the Consumer Protection Act 1987, unless caused by the negligent act or omission of the Company in the supply of the Goods, and/or
• Any claim for breach of industrial and/or intellectual property rights arising out of the order of the Customer, and/or
• Any breach of Contract or negligent or wilful act or omission of the Customer in relation to the Contract.

These conditions do not purport to exclude or restrict any liability which is prohibited by Section 2 (1) and (6) of the Unfair Contract Terms Act 1977.

FORCE MAJEURE

The Company shall be entitled, without liability on its part, and without prejudice to its other rights, to terminate the Contract or any unfulfilled part thereof, or, at its option, to suspend or give partial performance under it, if performance by the Company or its suppliers is prevented, hindered, or delayed whether directly or indirectly by any reason or cause whatsoever beyond the Company’s or its supplier’s reasonable control, whether or not such cause existed on the date when the Contract was made.  Non-exhaustive illustrations include act or acts of God, war, riot, terrorism, explosion, abnormal weather conditions, fire, flood, government action, strike, lock-out, delay by suppliers, accidents and shortage of materials, labour, or manufacturing facilities.

TERMINATION

In the event of any payment due by the Customer to the Company not being paid on the due date, or in the event of the Customer becoming insolvent or bankrupt or a petition being presented or a resolution being passed for the liquidation (otherwise for the purpose of amalgamation or reconstruction) or sequestration of the Customer or a receiver, administrator, administrative receiver or judicial factor being appointed over all or any of the assets of the Customer, or if any steps are taken in relation to any of the foregoing, or the Customer making any voluntary arrangements with its creditors generally, or if the Customer shall cease, or threaten to cease trading or carrying on business, or if the Customer shall, without prior written consent of the Company, sell or otherwise dispose of the whole or substantially the whole of its assets, or if the Company reasonably apprehends that any of the foregoing events is about to occur (and notifies the Customer accordingly), the Company shall be entitled to treat the Contract of which these conditions form part and any other Contract between the Company and the Customer as repudiated and shall be entitled to suspend deliveries to the Customer without being liable for any form of loss.

ENTIRE AGREEMENT CLAUSE

The Customer confirms that it has not relied upon any warranty, representation, or undertaking of or on behalf of the Company by any of its employees or agents (whether written or oral) in respect of the Goods and the Company shall have no liability in respect thereof.

This agreement supersedes any other arrangements, if appropriate, and whether past or present, Contracts, assurances, understandings, course of dealings, or promises between the parties hereto.

These Conditions represent the entire agreement between the Company and the Customer.

Nothing in these terms and conditions is intended to exclude nor limit the Company’s liability for fraud or fraudulent misrepresentation.

COMPATIBILITY

The Customer confirms and acknowledges that it is the sole responsibility of the Customer alone to ensure that the Goods ordered from the Company shall be appropriate for the Customer’s requirements. The Company shall not at any time be liable in any way shape or form for any information or suggestion provided by the Company (its employees or agents) in relation to the use of the Goods, the capabilities of the Goods, or as to whether or not the Goods shall be suitable for the Customer’s requirements, and/or compatible with any of the Customer’s own Goods.

INTELLECTUAL PROPERTY

The Company shall have and shall retain the property, copyright, and all other intellectual or industrial property rights in any designs, proofs, catalogues, brochures, pricelists, quotations, and literature generally prepared by the Company.

The Customer shall indemnify the Company from all actions, costs, claims, demands, expenses and liabilities whatsoever arising from any actual or alleged infringement brought in connection with clause 17.1.

MISCELLANEOUS

The Company may at the Company’s sole discretion subContract the performance of this Contract in whole or in part.

In the event of these Conditions conflicting with any other terms and conditions, then these terms and conditions shall prevail.

This Contract is between the Company and the Customer as principals and shall not be assignable by the Customer without express written consent of the Company.

Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

No waiver by the Company of any breach of Contract by the Customer shall be construed as a waiver of any subsequent breach of the same or any other provision hereof.

Failure or delay by the Company in enforcing or partially enforcing any provision of this Contract shall not be construed as a waiver of its rights generally under the Contract.

For the avoidance of doubt, nothing in this agreement shall confer on any third party any benefit or the right to enforce any term or terms of this agreement.

If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part then the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be effected thereby.

Obligations by more than one person are joint and several and where any party under this agreement at any time is more than one person, references to it are to each person individually as well as jointly with the others comprising it.

Words importing the singular also include the plural and vice versa where the context so requires.

The headings, marginal notes, and notes for guidance in this agreement shall not be deemed to be part thereof nor taken into consideration in the interpretation or construction thereof.

All references herein to clauses are references to clauses numbered in this agreement and not to those in any other document unless otherwise stated.

These terms and conditions on behalf of the Company have been prepared to reflect the Unfair Contract Terms Act 1977.  The Company considers these terms and conditions to be reasonable.  Should the Customer consider that these terms and conditions may be unreasonable, given the Customer’s particular circumstances, then the Customer shall inform the Company before any order is placed and Contract entered into.  In such circumstances, the Company may, at the Company’s sole discretion, either agree to vary these terms and conditions, enter into different terms and conditions, or insist upon the Customer being bound by these terms and conditions which, for the avoidance of doubt, the Company maintains at all times are fair and reasonable.  Should the Customer not notify the Company to the contrary then the Customer shall be deemed to accept that these terms and conditions are fair and reasonable.

These Conditions shall be governed by and construed in accordance with the law of England and Wales and the parties shall submit to the jurisdiction of the English Courts in their entirety.