Terms & Conditions of Sale
Aanco (UK) Limited trading as Made For Trade
Conditions of Sale
The Customer’s attention is drawn in particular to the provisions of clause 12, which limit the Company’s liability to the Customer.
In these Conditions, the following definitions apply:
The ‘Company’ means Aanco (UK) Limited Trading as ‘Made for Trade’;
“Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with clause 19.9;
The ‘Contract’ means the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with these Conditions but including any white label licence agreement which the Customer is asked to sign by the Company;
The ‘Customer’ means the person, firm or company who purchases the Goods from the Company;
The ‘Goods’ means the goods which the Company is to supply to the Customer as set out in the Contract;
The ‘Korniche Roof Lantern’ means the Korniche® roof lantern and associated installation apparatus supplied by the Company;
The ‘Korniche Dimensional Specification’ means any specification for the dimensions of the Korniche Roof Lantern that is agreed in writing by the Customer and the Company and which complies with the Korniche Technical Specification;
The ‘Korniche Surveying Guide’ means the surveying guide supplied by the Company providing guidance on how the Customer should measure the Korniche Roof Lantern to enable the Company to comply with the Korniche Technical Specification;
The ‘Korniche Technical Specification’ means the Company’s technical specification and structural and environmental use parameters for the Korniche Roof Lantern in force at the relevant date of delivery;
The ‘Order’ means the Customer’s order for the Goods as set out in order form sent by the Company to the Customer providing details of the Goods requested by the Customer;
The ‘Order Confirmation Form’ means the form issued by the Company to the Customer to confirm acceptance of an Order;
The ‘Site Visit Request Form’ means a site visit request form in the form provided by the Company to the Customer and which includes details of the cost of any site visit payable by the Customer, as amended from time to time.
The ‘Specification’ means any specification for the Goods that is either:
(a) agreed in writing by the Customer and the Company; or
(b) in the case of Goods manufactured by third parties, adopted by the manufacturer of the Goods and available upon request;
The ‘Qualicoat Specification’ means the specification issued by Qualicoat for a quality label for liquid and powder organic coatings on aluminium for architectural applications in force at the date the Contract comes into existence.
2. BASIS OF CONTRACT
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, customer, practice or course of dealing.
- The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
- By placing an Order, the Customer warrants that the Customer is legally capable of entering into a binding contract.
- The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
- The Order shall only be deemed to be accepted by the Company when the Company issues an Order Confirmation Form, at which point and on which date the Contract shall come into existence. The Company will not issue an Order Confirmation Form unless it has received a signed Order from the Customer, accompanied by a deposit payment (where so required) in accordance with clause 1.
- Any samples, drawings, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Customer’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them and are provided for general guidance only. They shall not form part of the Contract nor have any contractual force.
- A quotation for the Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
- The price of the Goods shall be the price of the Goods set out in the Order.
- The Company reserves the right by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the costs to the Company which is due to:
- any factor beyond the control of the Company including but not limited to increases in the cost of raw materials;
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
- any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
- All prices of the Goods, unless otherwise stated:
1. exclude amounts in respect of value-added tax (“VAT”), which the Customer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice;
2. exclude the cost of any site visits(s) conducted by the Company at the request of the Customer in accordance with any Site Visit Request Form; and
3. exclude the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer and which the Customer shall be liable to pay in addition.
4. TERMS OF PAYMENT
- Unless otherwise agreed by the Company in writing, Orders for United Kingdom Customers without a ledger account must be accompanied by a deposit payment of 50% of the total price of the Goods including any VAT and any packaging, insurance and transport charges identified on the Order. Such Customers shall make full payment of the balance of the total price of the Goods including any VAT and any packaging, insurance and transport charges identified on the Order prior to delivery.
- Ledger accounts (where applicable) are opened subject to approval of references and at the sole discretion of the Company. The Company will make a search with a credit reference agency, which will keep a record of that search and will share that information with other businesses. The Company may also make enquiries about the directors and or owners of the business with a credit reference agency. The Company will monitor and record information relating to the Customer’s trade credit performance and such records will be made available to other organisations to assess applications for credit. All ledger accounts are subject to any credit limit which the Company may, at its sole discretion, impose upon the Customer at any time and from time to time, and the Company may, at its sole discretion, withdraw credit terms at any time, in which case the Customer shall become immediately liable for all sums outstanding to the Company.
- In the case of ledger accounts (where applicable) unless otherwise agreed by the Company in writing, the Customer shall pay the Company’s invoices within 30 days following the month in which the Goods were dispatched or would have been dispatched save for postponement otherwise than due to default on the part of the Company, but if default is made in the payment of any one invoice these credit terms shall cease to apply and the Customer shall become immediately liable for all sums outstanding to the Company.
- The Company shall be entitled to submit its invoice to ledger account Customers with its delivery advice note or at any time thereafter save that where delivery has been postponed at the request of or by the default of the Customer then the Company may submit its invoice at any time after the Goods are ready for delivery or would have been ready for delivery or would have been ready in the ordinary course but for the request or default as aforesaid. These credit terms may be withdrawn or amended at the discretion of the Company at any time and without notice to the Customer.
- Where Goods are delivered by instalments to ledger account Customers the Company may invoice each instalment separately and the Customer shall pay invoices in accordance with these Conditions.
- No disputes arising under or in connection with the Contract, nor delays beyond the reasonable control of the Company shall interfere with prompt payment in full by the Customer. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
- The time for payment for the Goods or any instalment shall be of the essence. In the event of default in payment by the Customer the Company shall be entitled without prejudice to any other right or remedy to suspend all further deliveries on any contract or contracts between the Company and the Customer without notice and the Company reserves the right to claim interest pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 after as well as before judgement until payment in full is made.
Any credit terms extended by the Company shall cease on any change in the legal status of the Customer. Any change in the legal status of a Customer must be notified to the Company in writing signed by a Director or Proprietor. Credit terms will only be reinstated by the Company following such a change at the Company’s sole discretion and confirmed by the Company in writing signed by a Director of the Company.
- If after the date of the Contract and before the date of delivery of the Goods, improvements are made in the design or specification of the Goods the Company may, on giving notice to the Customer, incorporate such improvements in the Goods sold to the Customer provided that:
1. the performance and quality of the altered Goods are at least equal to those of the Goods ordered; and
2. no variation to the price of the Goods is made except with the Customer’s consent; and
3. delivery is not unreasonably delayed.
- The Company shall not be obliged to make any alteration to the Goods whether arising by reason of the amendment of the regulations of a competent authority made subsequent to the date of the Contract or otherwise. Notwithstanding that, the Company reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
- Time for delivery is given as accurately as possible but is not guaranteed. Time of delivery is not of the essence.
- The Korniche Roof Lantern, conservatory roof kit and bi-folding door orders will be processed and delivered, planned and agreed that the Customer’s delivery day coincides, unless agreed previously.
- Processing, construction and delivery times for Goods will vary according to the nature of the item/structure and a provisional time estimate will where possible be specified in the relevant Order Confirmation Form. Delivery times will be extended in the case of UK bank holidays and during the Christmas period.
- The date of delivery shall in every case be dependent upon prompt receipt of all necessary information final instructions or approvals from the Customer, changes in design specifications or quantities required may result in a delay in delivery.
- The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery but shall be under no obligation to do so. When delivery is postponed otherwise than due to default by the Company the Customer shall pay all costs and expenses incurred by the Company in connection with such postponement including (but not limited to) a charge of 15% of the total value of the Contract for transportation and/or storage or restocking occasioned thereby and the Company shall be entitled to invoice the Goods in accordance with these Conditions.
- Goods supplied in accordance with these Conditions cannot be returned without the Company’s prior written authorisation. Duly authorised returns shall be sent to the Company’s premises at the Customer’s expense and the Company shall be entitled to apply a 15% handling charge in respect of those Goods returned. For the avoidance of doubt, the Company shall not, in any circumstances, accept the return of any Goods which have been resold or undergone any manufacturing process.
- Unless otherwise expressly agreed any packaging supplied by the Company is intended to be only sufficient to protect the Goods for all normal conditions of transit and for the normal period of transit only.
- It is Company policy that drivers do not leave the rear of their vehicle during unloading. It is the sole responsibility of the Customer to ensure that the delivery location is safe and can accept delivery of the Goods and that the Customer made available sufficient and suitably skilled personnel and appropriate equipment to unload the Goods necessary for delivery safely. The Customer shall provide assistance for off-loading, i.e. forklift or two able-bodied persons and the Company reserves the right to postpone delivery of any Goods where, in the Company’s sole discretion, it determines that the Customer has failed to provide a safe delivery location and sufficient and suitable assistance to enable delivery to be completed. In the event that the Company at its discretion is unable to safely deliver the Goods or any part thereof, the Customer shall be responsible for the costs of re-delivery together with associated costs as set out in clause 5 above.
6.9. If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by an event beyond the Company’s reasonable control or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or the Customer’s failure to comply with clause 6.8.
7. RISK AND TITLE
- Risk shall pass to the Customer so that the Customer is responsible for all loss and damage or deterioration to the Goods:
1. if the Company delivers the Goods by its own transport at the time when the Goods or a relevant part thereof are unloaded at the place of delivery or if the Customer wrongfully fails to take delivery at the time the Company tendered delivery of the Goods; or
2. in all other circumstances at the time when the Goods or a consignment or other part thereof leaves the premises of the Company whether or not the Company arranges transport.
- Title in the Goods or any part thereof supplied hereunder shall not pass to the Customer until payment has been made in full and cleared funds received for:
1. the Goods including any interest payable, and
2. all other goods the subject of any other contract between the Company and the Customer which at the time of payment of the price of the Goods have been delivered to the Customer.
- Before title has passed to the Customer under the terms of this clause and without prejudice to any of its other rights, the Company shall have the right to recover or resell the Goods or any of them and may enter upon the Customer’s premises by its servants or agents for that purpose and in respect thereof the Customer shall take all reasonable precautions to protect the Goods from damage or loss arising from any cause and shall indicate that the Goods are the property of the Company.
- In the event of a sale of the Goods by the Customer in the ordinary course of its business to a third party the Customer shall assign to the Company in writing its rights to recover the selling price from the third party concerned if so required by the Company.
- As the insurable risk in the Goods shall pass to the Customer as soon as the materials are delivered to him or to his order and pending disposal the Customer shall keep the Goods insured in the amount of the price at which the Goods are sold to the Customer against all insurable risks.
- If the Goods are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for the Company.
- Where prices of the Goods in the Contract include delivery to destinations in the United Kingdom, the Company will select the mode of transport at its own discretion with due regard to urgency and cost. No allowance will be credited for Goods collected from the Company’s premises by the Customer.9. SHORTAGES AND DELIVERY DAMAGE APPARENT ON INSPECTION
No liability will be accepted regarding claims or complaints as to shortages or transport damage unless notified to the Company by telephone within 2 working days and confirmed in writing within 7 days. For the avoidance of doubt, the Company has no liability for transport damage in relation to non-UK orders. Goods claimed to be subject to transport damage or a shortage must be notified to the Company immediately, and if it is agreed by the Company that the Goods are damaged or a shortage is apparent, the Goods will be replaced or repaired free of charge or at the option of the Company, allowed for credit, provided that such credit shall not exceed the value of the relevant Goods as invoiced and provided that the Customer shall if required by the Company, return any damaged Goods at the Company’s expense (subject to the Company’s prior approval) in the same condition as they were supplied (agreed damage excepted).
10. GOODS WARRANTIES
- Except in respect of the Korniche Roof Lantern (to which the provisions of clause 11 apply instead) and on the terms of this clause 10, the Company warrants that on delivery and for the relevant periods from the date of delivery set out in this clause 10 (Warranty Period), the Goods referred to within this clause 10 shall:
(a) conform in all material respects with their description and the Specification; and
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979);
(d) in the case of the Goods referred to in clause 10.7, be free from foil delamination and maintain impact strength and shape retention; and
(e) in the case of the Goods referred to in clause 10.14, be free from peeling, powdering, blistering, corrosion (other than where caused by bending or folding after the application of paint), chalking, fading and loss of sheen in accordance with the Qualicoat Specification.
(a) the Customer gives notice in writing to the Company during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 10.1; and
(b) the Company is given a reasonable opportunity of examining such Goods, including but not limited to being given the opportunity to conduct site visit(s) at the request of the Customer in accordance with the Company’s Site Visit Request Form; and
(c) the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost,
the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods (including any return delivery costs or site visit fee(s) incurred by the Customer) in full.
- The Company shall not be liable for the Goods’ failure to comply with the warranty set out in clause 1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 10.2;
(b) the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practise regarding the same;
(c) the defect arises as a result of the Company following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Company;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
(g) the circumstances set out in clauses 10.10 and 10.15,
upon the occurrence of any event(s) referred to in this clause 10.3, the Customer shall not be entitled to any refund in respect of any site visit(s) conducted by the Company in accordance with the Company’s Site Visit Request Form at the Customer’s request.
- Except as provided in this clause 10, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 1.
- The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
- These Conditions shall apply to any repaired or replacement Goods supplied by the Company (except for the Korniche Roof Lantern which shall be dealt with in accordance with clause 11 below). Unless otherwise stated in this clause 10, the Warranty Period for repaired or replacement Goods shall be the balance remaining of the Warranty Period for the relevant original Goods which have been repaired or replaced.
PVCu and Colour Warranties
- The Warranty Period from the date of delivery that shall apply in respect of the PVCu and coloured foil elements of Goods is: –
|White PVC-U profiles and woodgrain
|Foil Colour: –
|Golden Oak 2178001167
|Black Brown 851805167
|Deep Red 308105167
|White 915205168& 929405179
|Rustic Cherry 3214007195
|Irish Oak 3211005148
|Antique Oak 3211006148
The Warranty Period applicable in respect of the PVCu and colours elements for brown and caramel gutters only covers the time of delivery and no time period thereafter.
Sealed glazed units forming part of Goods
- The Warranty Period from the date of delivery that shall apply in respect of sealed glazed units comprised within Goods is:
|Sealed glazed units
- The warranty in clause 8 extends to all sealed glazed units supplied by the Company and by its approved sealed glazed unit manufacturers, subject to this clause 10.
- In addition to the exclusions contained within clause 3, the Company shall not be liable for the Goods’ failure to comply with the warranty set out in clause 10.1 in respect of sealed glazed units in any of the following events:
1. sealed units, which have been glazed incorrectly (including with silicon sealants). For these purposes, a sealed unit will be deemed to have been incorrectly glazed if the method and manner of installation does not comply with the BS 6262 Code of Practice, ‘Glazing for Buildings’, or BS8000 ‘Workmanship on Building Sites’ Part 7 Code of Practice for Glazing and any subsequent amendments, current at the date of installation;
2. sealed units used at altitudes over 800 metres, or where they have been transported over such elevation, unless the Company has agreed in writing to warrant the relevant Goods in such circumstances;
3. sealed units, which have not been maintained completely in accordance with the Company’s recommendations (a copy of which is available upon request) and/or any recommendations/methods of the glazing system manufacturer;
4. sealed units showing the optical phenomenon occasionally seen as interference colour bands, known as “Brewster’s fringes”;
5. minor imperfections, such as bubbles, blisters, hairlines, blobs, fine scratches or small pinpricks, which when viewed at 90 degrees in normal daylight and from 3 metres are not obvious. These imperfections are not considered to be defects.
- All replacement sealed units supplied will be on a “like for like” basis using standard components available at the time of replacement. Should it be necessary to source the replacement sealed glazed unit from a supplier who is not a sealed glazed unit manufacturer approved by the Company, the Warranty Period for that replacement sealed glazed unit shall only cover the time of delivery and no period thereafter.
- No warranty is given that the installation of double glazing will reduce the incidence of condensation to the interior or exterior of the sealed glazed unit.
- The warranty in clause 10 applies only to sealed glazed units installed within the United Kingdom.
Aluminium Profile Products
- The Warranty Period from the date of delivery that shall apply in respect of aluminium profile products comprised within Goods is: –
|Aluminium profile products
|Aluminium powder coating finishes – RAL colours, dual colours finishes and marine powder coated paint finishes
|Associated moving hardware, e.g. door locks, hinges etc.
- In addition to the exclusions contained within clause 3, the Company shall not be liable for the Goods’ failure to comply with the warranty set out in clause 10.1 in respect of aluminium profile products in any of the following events:
1.where the defect arises from mechanical contact, thermal shocks, friction, poor water drainage, pollution, use of cleaning products on the Goods which contain non-neutral chemicals; or
2.where the defect arises because the Goods are located within direct influence of zones of salt water (or where they are situated within 5 miles of a coastal front or high tide line) or where they are exposed to acidic or industrial sources which are known or understood to be damaging or corrosive to thermosetting powder coatings; or
3.where the defect arises due to the use of alloys or materials which are not compatible with aluminium, copper, lead, zinc
- No warranty is given that the powder coat paint finish applied to the bi-folding doors will cover the thermal break (Polyamide) that is situated between the inner and outer aluminium profiles to door sashes and outer frames. No warranty is given that paint will consistently cover or adhere to the thermal break (Polyamide).
- The Company (provided that the Goods in question have been accepted and paid for) will extend to the Customer to the extent that it is able the manufacturer’s guarantee on all Goods not manufactured by the Company.
11. KORNICHE ROOF LANTERN
- The Company warrants that on delivery, and for a period of ten years from the date of delivery (Korniche Warranty Period), the Korniche Roof Lantern shall:
1. conform in all material respects with the Korniche Technical Specification and the Korniche Dimensional Specification;
2. be free from material defects in design, material and workmanship; and
3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
11. the Customer gives notice in writing to the Company during the Korniche Warranty Period within a reasonable time of discovery that some or all of the Korniche Roof Lantern does not comply with the warranty set out in clause 1; and
12. the Company is given a reasonable opportunity of examining such Korniche Roof Lantern, including but not limited to being given the opportunity to conduct a site visit(s) at the request of the Customer in accordance with the Company’s Site Visit Request Form; and
13. the Customer (if asked to do so by the Company) returns such Korniche Roof Lantern to the Company’s place of business at the Customer’s cost,
the Company shall, at its option, repair or replace the defective Korniche Roof Lantern, or refund the price of the defective Korniche Roof Lantern in full, together with any site visit fee(s), where appropriate.
- The Company shall not be liable for the Korniche Roof Lantern’s failure to comply with the warranty set out in clause 1 in any of the following events:
11. the Customer makes any further use of such Korniche Roof Lantern after giving notice in accordance with clause 2;
12. the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Korniche Roof Lantern, including, but not limited to failure to follow the Korniche Surveying Guide, the structural and environmental use parameters set out in the Korniche Technical Specification, or (if there are none) good trade practise regarding the same;
13. the Customer alters or repairs such Korniche Roof Lantern without the written consent of the Company;
14. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
15. the Korniche Roof Lantern differs from the Korniche Technical Specification as a result of changes made to ensure it complies with applicable statutory or regulatory requirements;
16. where the defect arises from mechanical contact, thermal shocks, friction, poor water drainage, pollution, use of cleaning products on the Korniche Roof Lantern which contain non-neutral chemicals; or
17. where the defect arises because the Korniche Roof Lantern is located within direct influence of zones of salt water (or where it is situated within 5 miles of a coastal front or high tide line) or where it is exposed to acidic or industrial sources which are known or understood to be damaging or corrosive to thermosetting powder coatings,
upon the occurrence of any event(s) referred to in this clause 11.3, the Customer shall not be entitled to any refund in respect of any site visit(s) conducted by the Company in accordance with the Company’s Site Visit Request Form at the Customer’s request.
- Except as provided in this clause 11, the Company shall have no liability to the Customer in respect of the Korniche Roof Lantern’s failure to comply with the warranty set out in clause 1.
- The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the contract between the Company and the Customer for the sale and purchase of the Korniche Roof Lantern.
- These Conditions shall apply to any repaired or replacement Korniche Roof Lantern supplied by the Company, but so that the Korniche Warranty Period in such circumstances shall only last until the end of the Korniche Warranty Period for the originally supplied Korniche Roof Lantern that has been repaired or replaced.
- It is the sole responsibility of the Customer to ensure that before any deposit payment is made under clause 1 or an Order is sent to the Company:
1. the relevant proposed delivery and/or installation location falls within the structural and environmental use parameters set out in the Korniche Technical Specification; and
2. the Korniche Roof Lantern is fit for the Customer’s purposes, including the requirement that the Customer’s existing roof and seal to which the Korniche Roof Lantern is to be installed is fit for purpose; and
3. the Korniche Surveying Guide has been reviewed, carefully considered and applied by the Customer (or a competently qualified surveyor) appointed by the Customer on Its behalf.
12. LIMITATIONS OF LIABILITY
- No representation is made nor warranty given by the Company as to the suitability or fitness of the Goods for any particular purpose, and the Customer shall be responsible for ascertaining whether the Goods are suitable or fit for the Customer’s purpose, taking into account zones of high exposure to the elements (weather conditions), i.e. coastal or areas of high elevation, hilly or mountainous and the Company shall be under no liability for any loss damage expense or liability incurred by the Customer or any third party as a result of the Goods not being suitable for a particular use.
- Nothing in these Conditions shall limit or exclude the Company’s liability for:
1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
2. fraud or fraudulent misrepresentation;
3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
4. defective products under the Consumer Protection Act 1987; or
5. any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
1. the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
2. the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
3. The Customer acknowledges, agrees and recognises that the limitation of liability contained in this clause is reasonable in that the prices quoted by the Company are dependent upon such limitation being incorporated in the Contract.
13. FORCE MAJEURE
- If the Company is prevented (directly or indirectly) from making delivery of any Goods by reason of force majeure (as hereinafter defined) the Company shall be under no liability whatsoever to the Customer nor shall the Company be deemed to be in breach of the Contract by reason of any delay in performing or failure to perform any of its obligations in relation to the Goods, and the Company shall have the right at its absolute discretion to allocate such deliveries as it is able to make, between deliveries pursuant to the Contract, and deliveries pursuant to any other contract with any third party.
- The following shall be regarded as force majeure:
Act of God, explosion, flood, tempest, fire, accident, war, threat of war, sabotage, insurrection, civil disturbance, government requisition, acts, restrictions, regulations, bye-laws, prohibitions, or measures of any kind, on the part of any governmental, parliamentary, or local authority; import or export regulations, or embargoes, strikes, lock-outs, or other industrial actions, or trade disputes, shortages of raw materials, labour, fuel or parts of machinery, power failure, or breakdown in machinery, including tooling and die failure unavailability of the use of public or private telecommunications networks and any other cause whatsoever beyond the Company’s reasonable control.
- The Customer shall indemnify the Company in full on demand against any costs charges losses or expenses including legal fees which the Company may sustain or incur as a consequence of any failure by the Customer promptly and properly to perform its obligations hereunder.
- The Customer shall indemnity the Company against any damages losses costs claims or expenses suffered or incurred by the Company in respect of any claim brought against the Company by any third party for any loss injury or damage wholly or partly caused by the Goods. The Company shall not be responsible for any loss, injury or damage suffered as a result of a failure on the part of the Customer or any third party to use, handle or deal with the Goods in a safe and proper manner and in accordance with all applicable regulations and all procedures recommended by the Company, including (but not limited to) any instructions provided under clause 3 (b) . Nothing in this clause will require the Customer to indemnify the Company against any liability to the extent that this arises as a result of any circumstance referred to in clause 12.2.
- The Company shall be entitled without prejudice to its other rights and remedies, either to terminate wholly or in part the Contract or any or every other contract with the Customer or to suspend any further deliveries under the Contract or any or every other such contract in any of the following events.
1. if any debt due and payable by the Customer to the Company is unpaid.
2. if the Customer has failed to take delivery of any Goods under the Contract, or any other Contract as aforesaid otherwise than in accordance with the Customer’s contractual rights.
3. if the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession or a receiver is appointed, of any of the property or assets of the Customer; or the Customer ceases, or threatens to cease, to carry on business; or the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
- In addition to any right of lien that the Company may have the Company shall in any of the events described in clause 1.c above have a general lien over all Goods sold and delivered by the Company to the Customer under the Contract or any other Contract.
- Any implied right to sell the Goods in the ordinary course of business shall terminate on the occurrence of any of the events listed in clause 1.c.
The Company may (but is not obliged to) agree to the cancellation of a Contract on condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage resulting to the Company by reason of such cancellation shall be paid forthwith by the Customer to the Company.
17. CONFIDENTIAL INFORMATION
All drawings documents and other information supplied by the Company are supplied on the express understanding that copyright is reserved to the Company and that the Customer will not without the prior written consent of the Company either give away loan exhibit or sell any such drawings or extracts there from or copies thereof or use them in any way except in connection with the Goods in respect of which they are issued.
18. TRADEMARKS/DESIGN RIGHTS/PATENTS
The supply of Goods by the Company shall not confer any right upon the Customer to use any of the Company’s trademarks (except in the installation or re-sale of Goods in the packaging supplied by the Company); or any of the Company’s patents or design rights, and at all times such trademarks, patents, and design rights, shall remain the absolute property of the Company.
- No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision of this or any other contract.
- If any of the provisions of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions, and the remainder of the provision in question, shall not be affected thereby.
- The Customer shall not assign or transfer any of its rights benefits or obligations under the Contract (save with the prior written consent of the Company).
- The Contract shall be governed by and construed in all respects in accordance with English Law, and the Customer hereby submits for all purposes of and in connection with the Contract, to the non-exclusive jurisdiction of the English Courts.
- Any notice or other communication to be given under the Contract shall be in the English language and may be delivered in writing by hand or sent by pre-paid first-class post or fax to the party to be served at that party’s registered office or last-known trading address and (in relation to the Company) marked for the attention of the ‘Head of Customer Services’.
A notice shall be deemed to have been served, if by hand when delivered, if by facsimile when transmitted, and if by first class post 48 hours after posting.
- The clause headings are for reference purposes only and do not limit or otherwise affect the interpretation of these Conditions.
- Each of the provisions contained in these Conditions shall be construed as separate and severable.
- A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
- No variation of the Contract shall be effective unless it is in writing and signed by the parties or their authorised representatives.
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.