1. General
1.1 The customer’s attention is drawn to these terms and conditions of business. All quotations and contractual agreements with the company are subject to these terms and conditions whether they be for the sale of goods and/or supply of works. Please read these terms and conditions carefully as they will form the basis of all contracts between us for the sale / supply of our goods and / or works.
1.2 Nothing in these terms and conditions shall affect the statutory rights of a person acting as a consumer for the purposes of this contract.
1.3 Reference in these terms and conditions to a person includes, where applicable, bodies corporate, unincorporated associations and partnerships (including limited liability partnerships).
2. Definitions
“the company” shall mean Carey & Fox Limited whose registered office is 51 Langthwaite Business Park, South Kirkby,
Pontefract, West Yorkshire, WF9 3NR a limited company registered in England and Wales no. 04090971;
“consumer” shall mean shall have the meaning given to it in the Unfair Terms in Consumer Contracts Regulations 1994;
“the contract” shall mean the contract for the supply and acquisition of the goods / works concluded in accordance with the procedure set out below and subject always to these terms and conditions and the terms agreed in the order form;
“the contract price” shall mean the amount payable by the customer for the goods and/or works as stated in the quotation and/or the order form or as subsequently agreed between the parties in writing;
“critical zone” shall mean a 50 mm wide band around the edge of a piece of glazing (being the criteria as stipulated by
the Glass and Glazing Federation Guidelines “Quality of Vision” or such other stipulation or
measurement as may be amended or advised by the Federation from time to time);
“the customer” shall mean the person or persons indicated as such on the order form, being the person(s) for whose property an order has been placed for the company to provide the work and/or supply the goods together with (where relevant) the party employed or engaged by the property owner to assemble/install the goods; or the person, persons, business or other organisation buying the goods for trade stock for use in the course of their business;
“the goods” shall mean the goods and/or the items and any other associated items to be supplied by the company to the customer as described in the quotation and/or the order form;
“the order form” shall mean the document containing the order for the supply and acquisition of the goods / works (together with a specification document where applicable) submitted by the customer for acceptance by the company in accordance with the procedure set out below;
“the premises” shall mean the delivery location listed in the quotation and/or the order form or any other premises or building or area agreed by the company in writing;
“Regulations” shall mean the Cancellation of Contracts made in a Consumer’s Home or Place of Business etc Regulations 2008;
“the works” shall mean any supply of services or installation work in respect of the goods to be carried out by the company as described in the quotation and/or the order form together with any other or additional work as may be agreed in writing between the company and the customer.
3. Quotations and Prices
3.1 Any quotation issued by the company and/or the approximate contract price therein is valid for a period of ninety (90) days from the date of issue by the company to a potential customer or, if different, such other period as may be advised from the date of quotation by the company.
3.2 If the customer has not submitted a completed order form to the company within the period of validity set out in clause 3.1 above then the quotation shall be deemed to have been withdrawn.
3.3 The company reserves the right, upon giving notice to the customer, to withdraw any quotation at any time prior to the customer’s submission of an order form. The company shall have no liability for any customer loss ensuing from such a withdrawal.
3.4 Following the company’s acceptance of a customer’s order form (in accordance with the procedure set out in these terms and conditions), the company may fine-tune the customer’s order (taking into account the customer’s final specification requirements and the company’s survey data) and prepare CAD drawings but this further work shall not affect the validity of the contract already concluded between the company and the customer at the point of order acceptance.
3.5 The customer will at all times throughout the duration of the contract provide its reasonable co-operation to the company in order to allow the company to perform the contract in accordance with its terms and with the customer’s reasonable requirements for the goods and / or the works. If the customer fails to comply with the requirements of this clause 3.5, the company will not be liable for any delay in or failure to perform the contract and will be entitled to payment for any work done under the contract in accordance with its other terms.
3.6 The company reserves the right to charge additional fees over and above the determined contract price where:
(i) the customer requests amendments or additions to the goods or works ordered; or
(ii) the customer requests additional site surveys prior to completion of the works; or
(iii) in carrying out the works, the company becomes aware of site-specific circumstances necessitating the amendment of the goods or works ordered and priced for; or
(iv) the company (acting reasonably) considers that there is a need to amend the scope of the contract in any other particular way to fulfil the customer’s requirements.
3.7 Where additional sums are required to be paid by the customer in accordance with the terms of this contract, such sums will (unless specifically agreed between the parties in writing) be paid by the customer in accordance with the provisions of this contract applicable to the payment of the determined contract price but such additional payments will be discussed with the customer in advance of extra work being carried out or goods prepared.
3.8 Any typographical or clerical error or omission in any quotation, price list, order, acceptance, invoice, or other such document issued by the company shall be subject to correction without any liability on the part of the company at whatever time and whenever such a correction shall be necessary.
3.9 The drawings, dimensions, and weights detailed in a quotation are approximate only and do not form part of the contract between the customer and the company. The company shall however use all reasonable endeavours to provide the best approximate contract price in a quotation that it can at all times.
4. Contract
4.1 The company shall supply and the customer shall acquire the goods / works in accordance with the provisions of the customer’s order form (if accepted by the company), but subject always to these terms and conditions, which shall govern the contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made, or which may be supplied by or on behalf of the customer.
4.2 Each order form submitted by the customer to the company shall be deemed an offer by the customer to buy the goods and/or commission the works subject to these terms and conditions. No such offer is binding on the company unless and until:
(i) the company accepts that offer in writing; or
(ii) the company receives a deposit from the customer, as set by the company in the quotation or as otherwise agreed by the company and customer; or
(iii) the company commences the supply of the goods / works;
whichever is earliest, at which point a binding contract shall be deemed to have come into effect on the basis of these terms and conditions.
4.3 The customer shall be responsible for ensuring the accuracy of the terms set out on any order form (including any applicable specification) submitted by or on behalf of the customer, and for giving the company any necessary information and documents relating to the goods / works required within a sufficient time to enable the company to perform the contract in accordance with these terms and conditions. The company shall not be liable for any delay in or failure to provide the goods / works or any associated costs incurred by the customer where the customer has failed to comply with the provisions of this clause.
4.4 The company reserves the right to make any changes in the specification of the goods / works which are required to conform with any applicable statutory or E.U. requirements or, where the goods / works are to be supplied to the customer’s specification, which do not materially affect their quality or performance.
4.5 No modifications, amendments, or variations of the contract, the order form or of these terms and conditions apply unless they are in writing and are agreed and signed by or on behalf of the company. Any such modification, amendment, or variation that is agreed by the company shall not (where a contract has already been concluded) constitute the creation of a new contract between the parties and the validity of the original contract shall not be affected.
4.6 Where the customer requires any modification, amendment or variation to the contract, the company reserves the right to require the customer to pay a new and/or further deposit to the company as a condition of agreeing to the same (to the extent that the modification, amendment or variation requires increased cost to be incurred by the customer).
5. Delivery of goods
5.1 Subject to the payment of the contract price by the customer to the company, the company shall deliver the goods on a date to be notified, and, wherever possible, agreed with the customer.
5.2 At the time of entering into the contract, the customer shall provide the company with a preferred delivery and/or
installation date (“the preferred date”). Whilst the company shall use all reasonable endeavours to meet the preferred date, the preferred date or any other dates quoted or agreed at any time by the company and the customer are and can only ever be approximate.
5.3 The customer acknowledges that the company makes the goods to order and delivery (or performance of the works) may be subject to receipt of third party components and materials the delivery dates for which cannot be guaranteed. Consequently, the company and customer agree that time for the delivery of the goods is not and shall never be of the essence and accordingly the company shall not incur any liability whatsoever for any failure to deliver the goods by the preferred date or any other given date nor shall any such delay or failure entitle the customer to refuse to accept any delivery under or performance of, or to repudiate, the contract.
5.4 Any packaging of the goods for/or in order to necessitate delivery shall be at the absolute discretion of the company (acting reasonably in the circumstances). Any such packaging will be charged to the customer unless it is specifically itemised in the contract price.
5.5 Delivery of the goods shall be effected by the customer attending at the company’s premises to collect the goods unless at the time of forming the contract (or subsequently) the parties have agreed in writing that:
(a) the company will attend at the customer’s premises and unload or hand over the goods; or
(b) another procedure has been agreed between the company and the customer for example by post or registered carrier.
5.6 The company reserves the right to charge additional costs to the customer to cover any increased costs, postage, or cost of carriage in the event that the means of delivery should change from that notified or agreed at the time of formation of the contract.
5.7 Where the customer has agreed to arrange collection of the goods from the company’s factory or premises and has failed to make such collection within 7 days of notification that the goods are available for collection, or in the event that the customer fails to accept delivery of the goods on the date notified by the company, then the company reserves the right:
(a) to arrange alternative delivery arrangements the cost of which shall be charged to the customer; and/or
(b) store such goods until actual delivery or collection and charge the customer for the reasonable costs (including insurance) of storage;
but, for the avoidance of doubt, nothing in this clause 5.7 shall affect the company’s right to be paid the contract price for the goods in accordance with the other terms of the contract.
5.8 In the event that the company is to deliver the goods to the customer’s premises, the delivery shall be made by either box-van or lorry. The customer hereby undertakes to ensure that adequate access is available to enable the delivery to be effected by the company by such means, failing which the company shall deliver the goods at the closest point of accessibility to the customer’s premises which shall be determined by the company’s employees or agents at their sole discretion.
5.9 In the event that such access shall not be available for box-van or lorry as detailed in clause 5.8 above, the customer shall not be entitled to any rebate of the contract price, nor to withhold nor delay payment to the company of all or any part of the contract price thereof, or to any other right of action against the company whatsoever.
5.10 For the avoidance of doubt, delivery of the goods may take place in instalments. Where the goods are to be delivered in instalments, each instalment shall constitute a separate contract and failure by the company to supply any one or more of the instalments in accordance with these terms and conditions or any claim by the customer in respect of any one or more instalments shall not entitle the customer to treat the contract as a whole as repudiated.
6. Supply of Works
6.1 Prior to commencing the works, the company will provide to the customer an anticipated date upon which the works are to be commenced and, insofar as the company is able, an estimate of the duration of the works.
6.2 Where the customer has notified the company of its preferred date (under clause 5.2 above) the company will use all reasonable endeavours to commence or carry out any works by the preferred date or as otherwise notified to the customer. However, the customer acknowledges that the company makes the goods / performs the works to the customer’s specific order and therefore the company and customer agree that time for the carrying out of the works is not and shall never be of the essence and accordingly the company shall not incur any liability whatsoever for any failure to carry out the works by the preferred date or any other given date nor shall any such delay or failure entitle the customer to refuse to accept any delivery under or performance of, or to repudiate, the contract.
6.3 By the anticipated commencement date and for the duration of the works, at its own expense the customer shall ensure that:
(i) sufficient space is available for the accommodation of and access to the necessary openings to which the goods are to be fitted;
(ii) adequate electricity supplies are available for the company’s use;
(iii) suitable environmental conditions are in place;
(iv) any facilities reasonably specified by the company to the customer are available;
(v) the company’s employees or sub-contractors have safe, clear and unobstructed access to the inside and outside of the premises;
(vi) all possible obstructions to the works have been removed, including (but not limited to) curtains, blinds, shutters, ornaments, garden furniture and any other interior and exterior possessions and effects;
(vii) adequate space and access is available for the delivery of the goods by either box-van or lorry;
(viii) all items in use by any other contractor or third party at the premises (for example, skips, scaffolding et cetera) have been removed; and
(ix) family pets are kept under strict control at all times.
6.4 The customer acknowledges that its failure to comply with the provisions of clause 6.3 above may delay or render the provision of the works impossible. Where such delay is caused by the customer’s failure to comply with clause 6.3 above, the customer shall not be entitled to any rebate of the contract price or deposit, nor to withhold, delay or in any other way alter payment to the company of the contract price, nor to any other action or right of action against the company whatsoever.
6.5 Where the customer fails (for whatever reason) to accept performance of the works on the agreed date, or requests a change to the agreed date scheduled for performance of the works, the company may agree an alternative date for performance of the works but (i) the company reserves the right to charge the customer for any additional costs or expenses incurred by the company in changing the agreed date for performance of the works and (ii) the customer will remain liable for payment of the contract price in full in accordance with the other terms of this contract.
6.6 The company reserves the right at its sole discretion to employ sub-contractors to carry out any works on its behalf, provided always that where part or all of the works are sub-contracted to a third party, the company shall supervise those works and shall remain liable for the provision of those works.
6.7 The customer hereby acknowledges that, where the company is supplying the goods and is also carrying out the works, the delivery and works may take place separately.
6.8 Subject to the provisions of this clause 6, the company undertakes to carry out the works using due care and attention.
6.9 As part of the works, the company undertakes and warrants to make good damage to internal plasterwork up to a maximum distance of 20 millimetres only from any newly installed goods to the extent that such damage has been caused by the works.
6.10 In undertaking the works, the company will endeavour to minimise disruption. The company cannot, however, guarantee:
(i) to avoid causing superficial damage to wallpaper, paint work and tiling in the immediate vicinity of the works;
(ii) to remove intact existing glass, frames or secondary double-glazed units; or
(iii) to avoid causing damage to the areas immediately surrounding the existing glass, frames or units being removed.
6.11The company will not be responsible at any time for:
(i) alterations to pelmets, blinds or other window or door coverings necessitated by the works;
(ii) redecoration of the premises or of plaster, rendering or re-plastering work;
(iii) removal of any existing paint or mastic lines on stone or brickwork left as a result of the works; or
(iv) repairing damage which has been caused by items or materials already in situ, which (in the company’s sole, reasonable opinion) are subsequently found to be defective by the company.
6.12 Where damage occurs or replacement items are required under clauses 6.10 and 6.11 above, the customer shall be responsible for the repair of any such damage or replacement of any items as necessary at its own cost.
6.13 Any materials or items (such as defunct glass, frames et cetera) removed from the premises during the course of the works (at the request or with the consent of the customer) will be cleared from the premises by the company’s employees or sub-contractors but such items will become the property of the company and cannot be retrieved from the company except by prior written agreement of the company.
6.14 For the avoidance of doubt, performance of the works may take place in instalments. Where the works are to be performed in instalments, each instalment shall constitute a separate contract and failure by the company to supply any one or more of the instalments in accordance with these terms and conditions or any claim by the customer in respect of any one or more instalments shall not entitle the customer to treat the contract as a whole as repudiated.
7 Examination and Approval of Goods by a Non-Consumer
7.1 Where the customer is not purchasing the goods and/or works as a consumer but is acting in the course of its business (for example (but without limitation) a company, organisation, or builder), the customer shall carefully examine the goods and/or works upon delivery / performance and shall notify the company in writing of any shortages or defects reasonably discoverable upon careful examination. This written notification must be received by the company within 3 working days, commencing with the date of receipt of the goods by the customer / completion of the works (except in the case of latent defects which must be notified within 3 working days of their becoming apparent). In the absence of such notification, the customer will be deemed to have accepted the goods / works as fully compliant with this contract and the company excludes to the fullest extent permitted in law all liability in respect of any defects or shortages. Any goods / works which the customer believes are damaged or defective must be retained together with the packaging for inspection by or on behalf of the company.
7.2 Upon receiving notification under clause 7.1 above and having investigated the notified claim(s), if the company shall be satisfied that, at the company’s sole discretion, the goods / works are satisfactory, are not damaged or defective, and are as agreed in the contract, then the company’s obligation under the contract shall be deemed to have been fulfilled. If however, the company agrees that the notified claim(s) are valid, the company will as soon as reasonably practicable either repair or replace the defective goods / re-perform the defective works or (at the sole discretion of the company) refund to the customer the price already paid for such defective goods / works.
8 Examination and Approval of Goods by a Consumer
8.1 Where the customer is a consumer the customer shall be afforded reasonable time in all the circumstances to inspect the goods and/or the works and advise the company in writing of any shortages or defects reasonably discoverable upon examination (except in the case of latent defects in respect of which the reasonable period will run from the point that the latent defect becomes apparent).
8.2 The company considers a reasonable time to be 7 days, but accepts that this may vary in certain circumstances where the customer has advised or notified the company at the time of entering into the contract of the unusual circumstances and the same have been accepted as being unusual by the company.
8.3 The customer shall notify the company within this reasonable time of any such shortage or defect and in the absence of such notification the company excludes all liability in respect of any defects or shortages to the fullest extent permitted in law.
8.4 Any goods / works which the customer believes are damaged or defective must be retained for inspection by or on behalf of the company.
8.5 Upon receiving notification under clause 8.1 above and having investigated the notified claim(s), if the company shall be satisfied that, at the company’s sole discretion but acting reasonably in the circumstances, the goods and/or the works are satisfactory and are as agreed in the contract and the goods are not damaged and/or the goods and/or the works are not defective then the company’s obligations under the contract shall be deemed to have been fulfilled. If however, the company agrees that the notified claim(s) are valid, the company will as soon as reasonably practicable either repair or replace the defective goods / works or (at the sole discretion of the company) refund to the customer the price already paid for such defective goods / works.
9 Quality of Goods
9.1 Subject to the relevant provisions of these terms and conditions the company hereby undertakes and warrants to the customer that:
a) All goods shall be manufactured with due care and attention, and
b) Where applicable, all goods shall be packaged with due care and attention, and
c) All goods and works will be of the requisite quality and fitness for any purpose specifically made known to the company at the time of forming the contract, and
d) All goods and works will be supplied in line with applicable legislative requirements, and
e) The company shall use all reasonable endeavours to ensure that the goods and works shall comply with any relevant specifications for them, and
f) All works (if applicable) shall be carried out with due care and attention.
9.2 The customer’s attention is drawn to the fact that timber is a natural product. As such, goods comprising timber may be subject to:
a) Variations in colour; and/or
b) Variations in grain; and/or
c) Minor imperfections; and/or
d) movement;
and the customer therefore acknowledges that the company will not be held liable for any such variation and/or movement as aforesaid and the customer shall not be at liberty to reject goods / works displaying such tendencies, to regard the same as a breach of contract, nor seek damages in light of such natural properties of the timber.
9.3 In line with the company’s environmental policy, the company confirms that all timber provided will wherever possible be sourced from legal and sustainable sources, and in particular FSC (Forest Stewardship Council) certified timbers. The company does not, however, warrant or guarantee that any timber supplied to the customer will fulfil this requirement.
9.4 The company warrants that all glazing and glass supplied by the company to the customer will be of a quality, thickness, and weight to the minimum standard required from time to time by the British Standards Institution and/or the Glass and Glazing Federation.
9.5 The company excludes any liability for optical effects outside the critical zone.
9.6 The company does not warrant:
i) that the installation of double-glazed units will eliminate or reduce any condensation at the premises or any subsequent property at which the glazing shall be installed, nor that any double-glazed unit shall be free from condensation on their external faces; or
ii) that the glass or glazing will be free of all imperfections.
9.7 The company reserves the right to modify the goods / works without any form of prior notice at any stage where such modification does not materially affect the specification or overall design of the goods or the performance of the works.
9.8 Goods that are supplied containing a spacer bar will be deemed to comply in all respects with the provisions of this contract to the extent that they fall within the following tolerance levels:
- The perimeter sightline tolerance is +/- 2mm giving a maximum acceptable slope of 4mm;
- The heritage bar sightline tolerance is +/- 1.5mm giving a maximum acceptable slope of 3mm.
10 Price
10.1 The customer agrees to pay the contract price as set in accordance with the provisions of the contract. The contract price shall be the company’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the company’s published price list current at the date of acceptance of the order (including standard hourly rates in respect of the provision of any works).
10.2 The company reserves the right, by giving written notice to the customer at any time before delivery / completion of performance, to increase the price of the goods / works to reflect any increase in the cost to the company which is due to any factor beyond its reasonable control, though the company agrees to use its reasonable endeavours to mitigate the impact of any cost increases to the customer wherever possible.
10.3 Should the company be prevented from adhering to the delivery date by the customer’s postponement or delays (howsoever
arising) then the company reserves the right to charge additional costs to the customer to reflect any such extra costs as are incurred by the company.
10.4 All prices quoted are exclusive of value added tax and, where applicable, 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 reimbursed
to the company as appropriate. The customer shall at all times indemnify the company against any non-payment of the
same.
11 Payment
11.1 In consideration of the supply of the goods and/or works by the company to the customer, the customer shall pay the company the contract price.
11.2Unless otherwise agreed by the company at the time that the contract is formed, payment for the goods and/or the works shall be due and paid in accordance with the following provisions:
11.2.1 where no works are to be performed, the customer shall pay to the company a deposit of 30% of the contract price upon placing an order with the company and the remaining 70% of the contract price shall be paid by the customer to the company not less than 4 days prior to the date agreed for delivery of the goods;
11.2.2 where works are to be performed, the customer shall pay to the company a deposit of 30% of the contract price upon placing an order with the company, 65% of the contract price not less than 4 days prior to the date agreed for delivery of the goods / performance of the works and the remaining 5% upon completion of the works.
11.3In the event that delivery and/or the date for commencement of the works shall be delayed by the actions of the customer (for whatever reason) then
payment of the contract price shall still be due from the customer in full in the time period detailed in clause 11.2 above or as otherwise agreed between the parties in writing. Payments shall be made either in cash, or by cheque drawn on a UK clearing bank or by bank transfer.
11.4In the event of late payment by the customer, the company shall be entitled to suspend performance of the contract or terminate any part of or all of it and / or charge interest on a daily basis on any balance due at the rate of 4% over the Bank of England bank base rate the interest being calculated from the date the payment falls due until the date of payment in full.
11.5The customer shall reimburse the company all costs and expenses (including, but not limited to, legal costs) incurred by the company in the collection of any overdue amount.
11.6Invoices shall be raised by the company up to 14 days before the date agreed for payment of each instalment of the contract price. In the event of delivery or performance in instalments, then the company may (at the company’s sole discretion) raise separate invoices in respect of each such instalment.
11.7In the event that the works take longer than estimated, the company reserves the right to request an interim payment for the works done upon expiration of each and every 21 day period.
11.8The company shall be entitled to offset any amount owed to it by the customer against any amount owed to the customer by the company under this contract or any other contract between the company and the customer.
12 Overdue Delivery
12.1 In the event that the delivery of the goods and/or performance of the works shall be delayed by the actions of the customer, additional charges may be raised by the company in accordance with the terms of the contract.
12.2In the event that delivery of the goods and/or performance of the works shall be delayed by the customer for a period in excess of 28 days then the company reserves the right to provide written notification to the customer requiring the customer to take delivery of the goods and/or to enable completion of the works within 14 days (hereinafter “formal contract completion notice”).
12.3If notwithstanding the issue of a formal contract completion notice, the customer should still be unwilling or unable to take delivery of the goods and/or allow the company to carry out the works, the company may, at the expiration of the 14 day period under the formal contract completion notice:
12.3.1 sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) either account to the customer for the excess over the price under the contract or charge the customer for any shortfall below the price under the contract. In any such calculation, account will be taken of any monies already paid to the customer under the contract; and/or
12.3.2 treat the contract as breached by the customer and the company shall be entitled to claim damages (together with any legal costs, the costs of labour, material, services used, and administration charges) from the customer for breach of contract.
13 Risk
The risk in the goods shall pass to the customer immediately upon delivery (which will be made in accordance with the applicable provisions of these terms and conditions) or where the customer wrongfully fails to take delivery of the goods, upon the company notifying the customer that the goods are available for collection. It is the customer’s obligation to ensure that appropriate insurance is in place in respect of the goods accordingly from the time of risk transfer.
14 Retention of Title
14.1 Notwithstanding clause 13 above, the company shall retain title and ownership in the goods until the contract price and all other sums outstanding and owing by the customer to the company are paid in full.
14.2.1 Pending payment in full pursuant to clause 11 above, the customer shall:
(i) hold the goods as the company’s trustee and bailee, storing the goods separately, securely, insured, protected, in appropriate conditions and in such a way as they can be readily identifiable as belonging to and being the goods of the company;
(ii) where possible, at the customer’s own expense immediately return the goods to the company should the company or its authorised representatives so request at any time after payment is outstanding;
(iii) where the goods are mixed, compounded, or integrated into or with the property of a third party or parties hold the goods as bailee and trustee for and on behalf of the company and such third parties together;
(iv) not sell, give away, or otherwise dispose of the goods. In the event that the customer shall 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; and
(v) immediately notify the company of any damage to the goods and hold any insurance monies received as result of such damage on 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.
14.3 Where payment of the contract price (or any part thereof) is outstanding, the company shall be entitled:
(i) at any time following the date upon which payment is due and without additional notice to enter the premises of the customer (or of any third party where the goods are being stored) and repossess the same accordingly. For the avoidance of doubt, the customer hereby irrevocably consents to allow the company access to their premises for this purpose or to procure permission from any third party, where third party premises are used for storage. The customer shall reimburse the company for all reasonable expenses and fees incurred (including, but not limited to, legal expenses) in so doing; and
(ii) to maintain an action for the price of the goods notwithstanding that title to the same shall not have passed to the customer.
15 Warranty
15.1 Subject to the remaining provisions of clause 15 hereunder, and with the exception of those provisions detailed in clause 15.2 below, the company’s sole liability in respect of any defect in or failure of the goods / works supplied or damage attributable thereto or loss is limited to either (i) 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 ten (10) years from delivery or (ii) at the sole discretion of the company, repayment to the customer of the price paid for the faulty goods and/or works. For the avoidance of doubt, nothing in this clause 15 is intended to operate so as to limit or exclude the company’s liability for matters that cannot be excluded by operation of law.
15.2At all times, the following are the only exceptions to clause 15.1 above.
(i)Where the goods comprise ironmongery the company’s sole liability in respect of any defect in or failure of the
goods supplied or for any damage attributable thereto or loss 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 one (1) year from delivery.
(ii) Where the goods comprise factory fitted double-glazed units the company’s sole liability in respect of any defect in
or failure of the goods supplied or for any damage attributable thereto or loss 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 ten years from delivery to the following extent:
- where the defect or failure arises between the date of delivery and the period ending on the fifth anniversary of the date of delivery, the company will supply the replacement / repair and all installation work free of charge; and
- where the defect or failure arises on any date after the fifth anniversary of the date of delivery but before the tenth anniversary of the date of delivery, the company will simply supply a replacement double glazed unit free of charge (ie no installation or other work will be provided except at cost).
15.3For the avoidance of doubt, all warranties given by the company under this contract in respect of the goods and/or the works are subject always to payment in full of the contract price (and any other amounts due from the customer to the company under the contract) in accordance with the terms of the contract.
15.4At no time shall the company have any liability to the customer for any damage to or failure of the goods / works resulting from misuse of the goods by the customer or any third party, lack of due care and attention, lack of general maintenance, or faulty installation where the installation has not been carried out by the company. In particular, the customer acknowledges that factory applied opaque spray coatings will, under normal circumstances, last for up to ten (10) years subject to regular inspection and proper care and maintenance. The customer acknowledges that extra precautions will be vital in particularly exposed or hostile environments.
15.5In the event that any goods are supplied by a third party separately to the goods supplied by the company, the company does not give any warranties in respect of such third party goods, but will use all reasonable endeavours to pass on to the customer the benefit of any warranties given by the manufacturer of such goods.
15.6The company will only accept liability under the above warranty provided it is notified of any claim that the goods and/or works are not in accordance with the requirements of the contract in writing at the earliest opportunity by the customer and in accordance with the other provisions of this contract. Where possible, the defective goods should be returned to the company with such written notification at the customer’s expense.
15.7It is a specific condition of this contract that the warranty protection offered by the company is offered only to the customer and the warranty shall not be transferable to any third party without the prior written consent of the company.
15.8In the event that at the company’s discretion the repairs are not as a result of any defect or as a result of neglect or misuse then the company will charge the customer in accordance with the company’s terms then and from time to time in force.
15.9The service under this clause generally does not cover:
a) The replacement of parts necessary by virtue of wear and tear, misuse, neglect, or maltreatment and/or
b) Items considered by the company to be of general maintenance only including (but not limited to) seasonal door adjustment, sash adjustment, and drainage clearance
which shall be identified and determined by the company (acting reasonably) whose decision at all times shall be final.
16 Liability
16.1 The customer accepts responsibility for insuring the premises and any goods at the premises and the company accepts no liability in respect of any loss or damage to the premises or other goods at the premises, except to the extent that such damage was caused by the negligence of the company or that of its employees / agents.
16.2 Nothing in these conditions purports to exclude or limit any party’s liability for death or personal injury arising from its own negligence or for their own fraudulent misrepresentation or for any other matter which cannot be excluded or limited by operation of law.
16.3 Subject to clauses 16.1, 16.2 and 16.4, the company’s total aggregate liability for any loss or damage sustained by the customer or any third party as a direct result of any breach of the contract or any liability of the company (including negligence) in respect of the performance of the contract shall be limited to a sum equal to the price payable by the customer for the goods / services under the contract.
16.4 Subject to clauses 16.1 and 16.2 above, 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 or defect of or in any part of the goods (including any delay in supplying or any failure to supply the goods in accordance with the contract or the quotation or at all) or its use by the customer or howsoever caused (even if foreseeable or in the company’s contemplation):
16.4.1Loss of profit or profits, business, or revenue whether sustained by the customer or any other third party, and/or
16.4.2 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, damage to property of the customer or anyone else, and/or
16.4.3 Any loss arising from any claim made against the customer by any third party, and/or
16.4.4 Any personal injury to the customer or any other person or individual where such injuries are not caused by the company’s negligence.
16.5 The company shall not be liable for any defects in the goods arising directly or indirectly from compliance with any
drawings, design, specification (including colour) or order of the customer’s, the customer’s architects, builder, surveyor or
any advisor appointed by or upon the customer’s behalf.
16.6 These conditions do not affect a consumer’s statutory rights.
17 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 any cause whatever beyond the company’s or its suppliers’ 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, explosion, abnormal weather conditions, fire, flood, government action, strike, lock-out, delay by suppliers, accidents and shortage of materials, labour, or manufacturing facilities. The company will, however, use its reasonable endeavours to mitigate the effects of any force majeure event to the extent that it is able to do so in the circumstances.
18 Confidentiality and Intellectual Property
18.2The company shall have and retain the copyright, design right and all other intellectual or industrial property rights in drawings, designs, plans, proofs, models, prototypes, specifications and/or quotations prepared by the company as well as in the goods themselves and the product of any works carried out under the contract.
18.3In the event that the customer shall submit drawings, designs, plans, proofs, specifications to the company the customer warrants that the use of such documents or their implementation will not infringe the intellectual property rights of any third party.
18.4The 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 clauses 18.1 18.2 and 18.3 and at the customer’s own expense will defend or at the company’s option, assist in the defence of any proceedings, which may be brought in that connection, provided that the company shall be under no liability in respect of any infringement as aforesaid occasioned by use of a design or specification supplied to the customer by the company.
19 Termination
19.1 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 than for the purposes of genuine amalgamation or restructuring) 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 other 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 buyer as repudiated and shall be entitled to suspend deliveries to the customer and the manufacture of goods for the customer on giving written notice thereof to the customer without being liable for any form of loss.
19.2 Either party shall be entitled to terminate this contract (without prejudice to any other rights in respect of breaches of terms of this contract by the other) with immediate effect in the event of any fundamental breach by the other party of these terms and conditions or the other terms of the contract, save that in the event of such a breach being remediable, then notice may be given to the defaulting party at the other party’s sole discretion to rectify and remedy any breach within 28 days of notice. In the event that such a breach is not subsequently remedied by the defaulting party then this contract shall terminate with immediate effect.
20 Entire Agreement and Representations
20.1The customer confirms that it has not relied on any warranty representation or undertaking made by or on behalf of the company or of any other person in respect of the subject matter of these conditions and/or the contract and/or the quotation save for any representation or warranty or undertaking expressly set out in the body of these terms and conditions and/or the contract and/or the quotation. Where the customer does follow / act upon on a warranty representation or undertaking that has not been set out in the body of these terms and conditions and/or the contract and/or the quotation it does so entirely at its own risk, and accordingly the company shall not be liable in respect of any such warranty representation or undertaking which is not so confirmed.
20.2Information, statements or representations contained in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by or on behalf of the company is for illustrative purposes only and the customer agrees to rely upon its own judgement as to the nature and quality of the company’s goods / works, their use and application and their suitability for its purposes.
20.3This contract supersedes any other arrangements (whether past or present), contracts, assurances, understandings, course of dealings, or promises between the parties.
21 Cancellation
21.1 Except as specifically set out in these terms and conditions, where the customer is not a consumer, it may not cancel a contract unless the company agrees it in writing and then only upon the terms that the customer shall indemnify the company in full against all loss (including loss of profit), cost (including the cost of all labour, material, administration costs, and services used), claims, actions, damages, charges and expenses incurred by the company as a result of the cancellation including all and any consequential loss suffered by the company howsoever arising which shall at the company’s discretion be deducted from any deposit paid.
21.2 Except as specifically set out in these terms and conditions (and in particular under clause 21.3), where the customer is a consumer, it may cancel the contract (i) prior to the commencement of work under the contract or, (ii) if work has started under the contract it may cancel the contract with the prior agreement of the company but on condition that the customer re-imburses the company’s reasonable costs incurred in carrying out work under the contract prior to the date of cancellation.
21.3 Where the contract is one to which the Regulations apply, the customer shall have the right to cancel the contract within the period of 7 days from the date on which the customer was provided with notice of its rights to cancel the contract under the Regulations (“the Cancellation Period”) and to be repaid in full any deposit which it has then paid to the company. However, where the customer has requested in writing that the company commence work under the contract within the Cancellation Period, the customer will still have the right to cancel the contract inside the Cancellation Period, but the customer must pay to the company its reasonable costs incurred in performing the contract prior to its cancellation. The customer’s right to cancel the contract in accordance with the Regulations is explained in more detail in the notice of rights to cancel the contract, a copy of which is attached to these terms and conditions at the Appendix.
22 Notice
22.1 Any notice of breach of the terms of this contract, or any notice of termination under this contract, shall be served personally by one party on the other by way of registered post or recorded delivery service to the other’s last known address and shall be deemed effective the second working day after the date of postage.
22.2 Any change to a party’s registered address must be notified to the other party in writing within 7 days of the change taking effect.
23 Miscellaneous
23.1 The company may at the company’s sole discretion assign its rights under and / or subcontract the performance of this contract in whole or in part provided always that where part or all of the works are sub-contracted to a third party, the company shall supervise those works and shall remain liable for the provision of those works. The customer may not assign or sub-contract the performance of its obligations under the contract without first obtaining the prior written consent of the company.
23.2 In the event of these terms and conditions conflicting with any other terms and conditions, then these terms and conditions shall prevail.
23.3 i) The company shall have a lien on all the customer’s property in the company’s possession (howsoever arising)
for all sums due at any time from the customer and shall be entitled to use, sell, or dispose of that property as
agent for and at the expense of the customer and apply the proceeds in and towards the payment of such sum
(including sale costs) upon providing 28 days notice in writing to the customer. Upon accounting to the
customer for any balance remaining after payment of any sums due to the company and the cost of sale and
disposal, the company shall be discharged of any liability in respect of the customer’s property.
ii)Except in the specific circumstances set out in this contract, the deposit paid by the customer is non-refundable and the company shall be entitled to apply any such deposit paid by the customer towards any of the costs incurred by the company upon the customer’s behalf in the event that the customer should cancel the contract or otherwise default upon any of the customer’s obligations in these terms and conditions.
23.4 Each right or remedy of a party under the contract is without prejudice to any other right or remedy it may have whether under the contract or not.
23.5 No waiver by a party of any breach of contract shall be construed as a waiver of any subsequent breach of the same or any other provision hereof.
23.6 Failure or delay by a party in enforcing or partially enforcing any provision of this contract shall not be construed as a waiver of its rights generally under the contract.
23.7 For the avoidance of doubt nothing in the contract shall confer on any third party any benefit or the right to enforce any term or terms of the contract.
23.8 If any provision of these terms and conditions or the contract generally 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 or the contract and the remainder of the provision in question shall not be effected thereby.
23.9 Obligations imposed upon more than one person under the contract are joint and several and where any party under this contract at any time comprises more than one person references to it are to each person individually as well as jointly with the others comprising it.
23.10 Any unresolved dispute arising under or in connection with these terms and conditions or concerning the goods / works supplied by the company may be referred to arbitration with the agreement of both the company and the customer. However, at all times, the company shall not be compelled nor bound to refer any matter to arbitration, and may choose alternate means to settle any dispute, such as, but not limited to, the issue of Court proceedings where the company deems the same appropriate.
23.11 Words importing the singular also include the plural and vice versa where the context so requires.
23.12 The headings, marginal notes, and notes for guidance in this contract shall not be deemed to be part thereof nor taken into consideration in the interpretation or construction thereof.
23.13All references herein to clauses are references to clauses numbered in this contract and not to those in any other document unless otherwise stated.
23.14 This contract 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.
