a) We means the Company: the Company means KwikTuf Ltd: You means you, the Purchaser, the person, firm or company to whom the quotation, invoice, delivery note, application for payment or acknowledgement of order is addressed: The Goods means the goods, the subject of the quotation, delivery note, invoice, applications for payment or acknowledgement of order respectively. Contract means the contract for the sale of the Goods as set out in the quotation, invoice, delivery note, acknowledgement of order and these conditions, and any other documents signed by the parties and expressly stated to form part of the Contract.
b) All illustrations, data and other information contained in our brochures, catalogues, advertisements, price lists, technical data sheets or other documents are approximate only and shall not form part of the contract.
c) These conditions supersede any earlier conditions appearing in any of our documentation (other than special conditions) and all representations terms, conditions, warranties or guarantees whether express or implied arising by statute common law or otherwise are (to the extent permissible by law) hereby excluded provided that nothing in these conditions shall operate to exclude or restrict liability for personal injury or death resulting from our negligence or to exclude the provisions of Section 12 of the Sale of Goods Act 1979.
d) If the whole or any part of any one or more provisions of the Contract are invalid or unenforceable at law, all the other provisions of the Contract shall remain in full force and effect and the parties shall negotiate in good faith to agree and implement one or more substitute provisions having similar effect so far as the law permits.
e) No variation of the Contract shall be effective unless it is in writing, signed by us and expressly stated to be a variation of the Contract.
f) Any notice given in connection with the Contract may be sent by hand or by registered post or by the recorded delivery service or transmitted by facsimile resulting in the receipt of a written communication. Any notice so sent or transmitted to the address of the party shown in the Contract (or such other address as such party may by notice to the other half substitute thereof) shall be deemed validly and effectively given on the day when, in the ordinary course of the means of transmissions, it would first be received by the addressee in normal business hours at the place of receipt.
2. The price and the payment terms
a) Each consignment of the Goods will be invoiced separately and payment against our invoice shall fall due in full on the date of agreed payment terms.
b) If for any reason you are unable to accept delivery when due, the Goods may be invoiced and payment will fall due on the date of agreed payment terms. In such cases we will, if facilities permit, store the Goods at your risk until delivery and reserve the right to make additional charges for such storage and any extra handling and transportation. This clause shall not affect any rights we may have against you for failure to accept delivery.
c) If you fail to make any payments when due we may, at our option and without prejudice to any other rights or remedies which we may have under the Contract or otherwise, suspend further deliveries until payment is made or terminate the Contract. We shall be entitled to charge interest on the outstanding balance of all overdue accounts from the time of default to the time of payment calculated on a daily basis at a rate of 2.5% per month as well after as before judgement.
d) All payments are to be made without deduction or set-off from any sums owing or due from us.
3. Your Obligation to Us
a) The loading, handling, working or carrying of your own materials shall be entirely at your risk. You are responsible for the loading and unloading of the Goods and also for any damage to the Goods during loading and unloading, however caused.
b) If you wish the Goods to comply with any specification, you must notifiy us of these requirements in writing and any such specification must be agreed by us prior to entering into the Contract.
c) You shall not assign the benefit of this contract without our prior written consent.
d) By accepting the Quotation, you warrant that the use of the Goods is appropriate to the intended application and their use complies with all local and national legislation, building regulations, standards, codes of practices and any other requirements particularly but without limitation the safety section of BS6262 1982 British Standard Code of Practice for Glazing for Building and Building Regulations 1991.
e) You agree to indemnify us for all injury, loss or damage occurring to any person or property and against all action, demands, expenses or charges made in connection with the Contract arising from the use of the Goods where the use of the Goods results in injury, damage or loss due directly or indirectly to the carelessness or negligence of you or your servants or agents or to any breach by you of your obligations to us under the Contract.
a) Times or dates for despatch or delivery of Goods or for completion of any works to be carried out by us are estimates only and shall not be binding upon us either as a term of the Contract or otherwise. In no circumstances shall we be liable for any loss or damage sustained by you in consequence of our failure to deliver, start or complete within such time or by such date or in consequence of any delay in delivery however caused.
b) Notwithstanding Clause 7, when the Goods are delivered by us, risk shall pass to you on delivery. In all other cases risk shall pass to you on despatch.
c) Where delivery is to be made by instalments each delivery is deemed to be the subject of a separate Contract and any failure by us in respect of any one delivery shall not entitle you to repudiate the Contract or any further instalments to be delivered thereunder.
5. Warranty and Liability
a) The liability of the Company is subject to compliance by you with all the terms contained in this clause 5.
b) The Company shall make good by reimbursement of the whole or part of the price (and where relevant as a deduction from any part of the price remaining unpaid) or at its option by repair or by replacement any defect developing under normal use in the Goods and due solely to faulty design (except where the design is supplied by you or on your behalf), faulty materials or faulty workmanship provided that:-
i. You shall be responsible for ensuring that Goods are fit for the purpose for which you wish to use them and the Company gives no warranty (and none shall be implied) that the Goods are fit for any particular purpose; and
ii. The defect in question shall have appeared within 12 months (or such longer time period (if any) as may be provided for in any guarantee given by or on behalf of the manufacturer of the Goods) after you have taken possession of the Goods or performance of Services has been completed and shall have been thereupon notified in writing within 7 days to the Company; and
iii. Any goods alleged to be defective shall be stored in a safe place by you until such time as the Company authorises their disposal in writing; and
iv. Any goods alleged to be defective shall, if so required by the Company, be promptly returned at your risk and expense, to the company’s works for inspection, and the Company shall in its reasonable opinion consider them to be defective solely by reason of faulty design or workmanship; and
v. No attempt shall be made by you or by any third party to remedy any defect before, if so required by the Company, the Goods in question shall have been returned to the company for inspection; and
vi. The Goods in question shall have been installed and handled properly and in accordance with the Company’s recommendations and shall not have been fitted with any parts, components or accessories other than those manufactured or recommended by the Company.
c) Our standard warranty will only apply to those units which do not contain features which may have the potential to affect the performance of the unit. In the case of units containing such features (non standard units) the company’s standard warranty will not apply. It is the responsibility of the Purchaser in such cases to establish what, if any, warranty is provided on these non standard units. In the absence of any written concession by the Company, it will be deemed that no warranty whatsoever is provided in respect of non standard units.
d) Apart from any such reimbursement repair or replacement the company, its employees and agents shall be under no liability to the Purchaser or to any third party for any injury, loss or damage of any kind whatsoever, howsoever and wheresoever arising or arisen, and whether direct or indirect, including without limitation any injury, loss or damage arising out of or incidental to:-
i. Any negligence of the Company or of any of its employees or agents (except insofar as such negligence may result in death or personal injury); or
ii. The company’s performance of or failure to perform or breach of any of its obligation, whether express or implied under the contract or otherwise; or
iii. The supply , installation, repair or maintenance of any of the Goods; or
iv. Any defect in any of the goods; or
v. Any advice given or representation made by the Company or on its behalf; or
vi. Any performance of any services
e) The company shall not be liable for any claim relating to any breach of warranty, express or implied brought after the expiry of the period of twelve months from the date on which the contract was made (or, in the case of goods, after the expiry of such longer period (if any) as may be provided for by or on behalf of the manufacturer of those Goods).
f) The Company shall in no circumstances be liable to you for any economic loss, loss of profit, loss of business or like loss.
g) The Company shall use its reasonable endeavours to transfer to you the benefit of any guarantee in respect of the Goods available from the manufacturer provided that the Company may in its discretion, elect to do so only at the cost to you.
6. Your rights and our rights
a) You agree to inspect the Goods immediately upon delivery or collection and any defective Goods must be returned within 7 days of receipt in the same condition as they were supplied save that were the Goods have been used or installed and it is not practicable to return them you must notify us in writing of the alleged defect within 7 days of delivery.
b) The supply of Goods hereunder shall not confer any right upon you to use any of our trademarks without our prior written consent and at all times such trademarks shall remain our property. Nor does it imply any right to use any patent which we may have or any indemnity against infringements or the right of third parties.
c) In no circumstances can orders for Goods, whether made to your specific requirement or not, be cancelled by you. In the event of such a cancellation you will be obliged to pay a restocking and handling charge for the Goods and any administration costs involved in full.
d) If you commit any breach of these terms and conditions or become insolvent or commit an act of bankruptcy or if a Receiver or Administrative Receiver is appointed over any part of your business or property, then we may defer or cancel any further deliveries and treat the Contract of which these conditions form part as having been repudiated by you, but without prejudice to any of our other rights and remedies hereunder.
e) No failure by us whether by way of indulgence or otherwise to enforce or delay in enforcing our rights hereunder shall operate as a waiver of any of our rights.
f) Unless otherwise specifically agreed in writing by us the Goods are supplied only on these conditions and no variation from or addition thereto (whether contained in any document emanating from you or made orally by any person action or purporting to act on our behalf) shall have effect unless it is in writing signed by a person duly authorised on our behalf. Should any of these conditions conflict with any conditions stated in your order these conditions shall prevail. The giving by yourself of any delivery instructions for the Goods or any part thereof or the acceptance by you of delivery of the Goods or any part thereof or any document by you in confirmation of the transaction set out on the basis hereof, after receipt by you of this document, shall constitute unqualified acceptance by you or these Conditions.
7. All Monies Retention of Title
a) Notwithstanding delivery and the passing of risk, property in and title to the goods shall remain with the company until the company has received payment of the full price of (i) all goods the subject of the contract and (ii) all other goods supplied by the company to the purchaser under any contract whatsoever. Payment shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the company and the purchaser. Any payment by you to us shall only be treated as received by us when a cheque or any other method of payment has been met on presentation or otherwise honoured and you acknowledge that you are in possession of the Goods solely as bailee for us until then. In the event of any of the Goods supplied being resold by you or being mixed or incorporated with any other Goods which are sold by you before title therein has passed to you, you shall hold such part of the proceeds of sale as are equivalent to the price at which the Goods are supplied by us to you, and all rights which you may have against the purchasers thereof, on behalf of and as trustee for us. Any monies so received by you shall be placed in a separate account so as to be readily identifiable as being our property.
b) Until such time as title in the Goods passes to you, you will store them on your premises separately from your own Goods or those of any other person and in a manner which makes then readily identified as our Goods.
c) If you commit any breach of these terms and conditions or become insolvent or commit an act of bankruptcy or if a receiver or an administrative receiver is appointed over any part of your business or property your right to possession of the Goods shall cease immediately. We (including our servants and our agents) are authorised by you to enter upon any premises where the Goods are stored or where they are reasonably believed to be stored, for the purpose of ensuring that the terms of this Clause 6 are being complied with and in the circumstances set out in Clause 6 (c) for the purpose of removing any Goods in which title has not passed to you.
8. Applicable Law
a) These conditions shall be considered as a contract made in England and shall be governed in all respects by the Law of England and the parties agree to submit to the jurisdiction of the Courts of England.
9. Force Majeure
a) We will not be liable for any failure to deliver the Goods arising from circumstances outside our control which shall be deemed to include (but shall not be limited to) war, riot, civil commotion, fire, earthquake, obstruction of private or public road or highway, acts of God, exceptional weather, strikes, lock-outs, or any other form of industrial action, shortages of labour or materials, and delay in delivery of materials by suppliers or sub-contractors.
b) If we are prevented from delivering the Goods in circumstances outside our control, we shall give you notice of this fact as soon as reasonably practical after discovering the same.
c) If the circumstances preventing our delivery of the Goods are still continuing three months after you receive our notice as referred to in (b) above, either party may given written notice to the other terminating the Contract.
d) If the Contract is terminated in the matter set out in c) above we shall refund any payment which you have already made on account of the price of the Goods not delivered, subject to deduction by us of any amount we are entitled to claim from you. We shall not be liable to compensate you for any further loss or damage caused by our failure to delivery the Goods or any of them.