The Buyers attention is in particular drawn to the provisions of condition 6
INTERPRETATION AND APPLICATION OF TERMS
The definitions and rules of interpretation in this condition apply to these conditions:
“Buyer” means the person firm or company who purchases the Goods from the Seller.
“Contract” means any contract for the sale and purchase of the Goods and where requested, the installation of the Goods between the Seller and the Buyer, incorporating these conditions. The placing of any order for Goods whether verbally or in writing by the Buyer and the verbal or written acceptance of that order by the Seller shall constitute the Contract and the Buyers unqualified acceptance of these conditions.
“Goods” any goods agreed in the Contract to be supplied to the Buyer and including any instalment of the Goods (including any part or parts of them).
“Seller” means Westgate Solar Control and/or Westgate Factory Dividers and/or Hoardfast of PO Box 21 Verulam Road Stafford Staffordshire ST16 3YJ and any authorised representative of the Seller.
“Site” means the property (or any part or parts thereof) at which the Seller is requested by the Buyer to install the Goods.
Reference to a particular law is a reference to it as amended, re-enacted or extended at the relevant time.
These conditions shall govern the Contract for the sale and, where applicable, the installation of the Goods. Any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a partner of the Seller.
Words in the singular include the plural and vice versa and a reference to one gender includes both genders.
Condition headings do not affect the interpretation of these conditions.
ORDERS AND SPECIFICATION
The Buyer shall ensure that the terms and specification of its order are complete and accurate. The Seller reserves the right to amend the order for the Goods where the Seller is also installing the Goods if in its reasonable opinion the Seller considers that the Goods ordered are not suitable for the Site. The Buyer shall be advised of any such amendments, including any amendment to the price, as soon as practicable prior to installation of the Goods. The Buyer shall be deemed to accept all Contract amendments unless it notifies the Seller in writing within 48 hours after being so notified that any such amendment is not acceptable.
Except as provided in condition 2.5 below all samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures or on its website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
If after the date the Goods are ordered, but before delivery, any changes are made to the specification of the Goods in conformity with applicable safety, statutory, or E.U. requirements, then provided that such changes do not materially affect their quality or performance, the Buyer may not refuse to accept the Goods.
The Buyer acknowledges that it is the Buyer’s sole responsibility to determine the suitability of the Goods for its purposes including ensuring that in cases where wind load calculations are appropriate and necessary that such calculations are undertaken and are accurate and are taken into account during the installation process. The Seller is entitled to assume that the glass and fixtures and fittings to which the Goods are installed are free of any defect of any kind and are suitable in the circumstances and the Seller will not be liable for any damage to the Buyers glass or fixtures and fittings arising at the time of installation of the Goods or any time thereafter.
A banksman has not been included for within the price unless specifically included in writing
Any specific layout/design drawing produced by the Seller for a particular Contract and approved by the Buyer in writing shall constitute the Buyer’s acceptance of the layout/design unless any variation thereto is agreed in writing by the parties.
PRICE AND PAYMENT
The price of the Goods shall be the Contract price and, except in the case of a mistake on the part of the Seller, the Contract price is the price for the Goods quoted by the Seller to the Buyer and is valid for 30 days from the date the quote is supplied or until earlier acceptance by the Buyer, after which time the Seller may alter the price without giving notice to the Buyer.
Unless specifically included in the Contract the Seller may on giving notice to the Buyer charge on a time spent basis for the following matters additional to the Contract: (i) for the removal of any existing similar film product; the Goods will be applied over the similar existing products unless the Contract specifically provides for their removal; and/or (ii)additional time spent to attend any Site induction; and/or (iii) additional time spent waiting for the proper clearance of the working areas at the Site and/or waiting to gain access to the Site; and/or (iv) for the hire, transport etc of any extra equipment/machinery necessary to allow the safe installation of the Goods
If the Seller gives notice to the Buyer under condition 3.2 of an increase in the price of the Goods which exceeds 10% of the original price then, except in the case of any delay on the part of the Buyer in doing so, the Buyer may cancel the balance of the contract undelivered or deemed undelivered under condition 4 of these terms subject to the Buyer on cancellation immediately paying to the Seller any amount due and owing for Goods delivered or installed.
All quotes and prices given are exclusive of VAT and delivery charges which the Buyer shall paid in addition to the price.
The Seller may require part payment or full payment of the Contract price prior to collection or delivery and where applicable, installation of the Goods.
Unless otherwise required, the full Contract price or where applicable any balance thereof in the case of prior part payment in accordance with condition 3.5 above, including any increase in the price incurred pursuant to conditions 2.1 and 3.2, shall become payable within 28 days of receipt of the Goods by the Buyer or where the Goods are installed by the Seller, then within 28 days of completion of any such installation. Time for payment of the price shall be of the essence.
All payments due under the Contract shall be made without any deduction or set off, paid in pounds sterling, and no payment shall be deemed to have been received until the Seller has received cleared funds.
All payments shall become due and payable immediately on termination of this Contract notwithstanding any other provision of this Contract.
If the Buyer fails to make any payment by the due date then, without limiting any other right or remedy available to the Seller, the Seller may: (i) Cancel the Contract in the case of the price or part of the price being payable prior to delivery collection or installation (whichever is applicable); and/or (ii) Suspend any further deliveries of Goods to the Buyer; and/or (iii) Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and/or (iv) Charge the Buyer interest at a rate of 4% above the base lending rate from time to time of Lloyds TSB Bank plc on any outstanding sum under the Contract from the due date on a daily basis until the date of payment whether before or after any judgment. The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 together with the reasonable administrative charges incurred by the Seller in collecting any overdue payment.
COLLECTION, DELIVERY, INSTALLATION
Delivery of the Goods shall be made by the Buyer collecting the Goods from the Seller’s premises after being notified that the Goods are ready for collection, unless the Seller has agreed to deliver the Goods.
The quantity of any consignment of Goods as recorded by the Seller on despatch from the Seller’s place of business shall be conclusive evidence of the quantity received by the Buyer on receipt of any such delivery.
Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable period of time.
Subject to the other provisions of these conditions the Seller shall not be liable for any direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
Where the Contract requires the Seller to install the Goods reasonable access must be provided for the Seller with any necessary equipment to the area(s) of the Site where the Goods are required to be installed. The Seller reserves the right at any time to refuse to install or to continue with the installation of the Goods on the Site if the Seller (acting reasonably) considers that the working area at the Site is not safe and clear. If in the Seller’s reasonable opinion the Goods installation areas at the Site cannot be cleared and made safe within a reasonable period of time then the Seller’s Contract obligations in relation to the installation of the Goods will cease and determine without prejudice to any loss claim or action by the Seller against the Buyer and for the avoidance of doubt the Seller will not be responsible to the Buyer for any loss claim or action due to or arising from the Seller’s refusal to install the Goods or any delay in installing the Goods.
The Seller shall not be liable for any damage to any property of the Buyer which has not been cleared from the areas of installation as referred to in condition 4.5 above and the Buyer accepts that there may be some damage to adjacent decoration caused by soapy water overspray/water contact generally when used in the installation process.
The Seller will remove any sticker graphics or similar from the items to which the Goods are to be applied as part of the installation process and the Buyer must advise the Seller in writing prior to the date of installation of any such sticker graphic or similar matter which it does not wish to be removed. Any Goods installed may have the Seller’s name and contact details marked thereon.
No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss, costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
Delivery of the Goods may take place in one or more consignments and each consignment may be invoiced and will be paid for separately. Delivery of each consignment will be a separate Contract and no cancellation or termination of any one Contract or consignment shall entitle the Buyer to repudiate or cancel any other Contract or consignment.
If the Seller fails to deliver the Goods or where agreed, fails to install the same, due to any reason other than a reason which is beyond the Seller’s reasonable control or other than where such none delivery or installation is due to the fault of the Buyer, the Seller’s liability to the Buyer in such circumstances shall be limited to the excess cost (if any) over the price of the Goods to the Buyer (in the cheapest available market) of obtaining similar goods to the Goods to replace those not delivered and/or the installed (as the case may be).
If the Buyer fails to collect the Goods or fails to take delivery of the Goods and/or fails to give the Seller adequate delivery instructions or facilities for installation at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of any fault of the Seller) then, without limiting any other right or remedy available to the Seller, the Seller may: (i) store the Goods until actual collection or delivery and charge the Buyer for the reasonable costs (including insurance) of storage; and/or (ii)sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Contract price or charge the Buyer for any shortfall below the Contract price.
RISK AND PROPERTY
The risk in the Goods passes as follows: (i) In the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods. For the purposes of this condition delivery to a carrier shall be deemed delivery to the Buyer; (ii)Where the Seller is also to install the Goods, when the Seller has delivered the Goods to the Site (whether or not they are installed).
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, except where the Goods have been installed the property title to the Goods shall not pass to the Buyer until the Seller has received payment in full of the price of the Goods plus VAT and any extra charges incurred and/or payable under the provisions of these terms and all other Goods for which payment is due by the Buyer to the Seller and all other debts and obligations owed by the Buyer to the Seller have been paid.
Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods at no cost to the Seller separate from those of third parties and in such a way that they remain readily identifiable as the Seller’s property, and properly stored, protected and insured.
The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
The Buyers right to possession of the Goods shall terminated immediately if: (i) the Buyer makes a 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 Buyer; or (ii) the Buyer ceases, or threatens to cease, to carry on business; or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
If condition 5.6 applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Buyers order or suspend any further deliveries without any liability to the Seller, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
On termination of the Contract, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this condition 5 shall remain in full force and effect.
WARRANTIES AND LIABILITY
If the Buyer establishes to the reasonable satisfaction of the Seller that the Goods are defective, or there is a defect in the workmanship, or there is a defect in the design of the Goods, or the Goods are not in accordance with the quality or specification contained in the Contract, or there is some other failure on the part of the Seller in relation to the Goods then the Seller shall at the Seller’s sole discretion either: (i) replace the Goods (or part of the Goods); or (ii) refund to the Buyer the price of the Goods (or a proportionate part of the price). In either case the Seller shall have no further liability to the Buyer, subject to the remaining provisions of this condition.
The Seller is under no obligation whatsoever under this condition or other liability in respect of any defect in the Goods arising from: (i) any drawing, design, specification or description for purpose for which the Goods are to be used supplied by the Buyer or on the Buyer’s behalf; or (ii) fair wear and tear, wilful damage, negligence, or abnormal working conditions including but not limited to dusty conditions and temperatures of below 5 degrees centigrade, accident, failure to follow the Seller’s instructions (whether oral or in writing), misuse, alteration or repair of the Goods, without the Seller’s approval; or (iii) a defect or failure resulting from incorrect installation, handling, storage (including where Goods are not stored at the correct temperature), use, application or any act (including negligence) of the Buyer or any third party; or (iv) failure by the Buyer to properly test any sample goods provided by the Seller prior to concluding the Contract including tests of materials, equipment, application, methodology and suitability for the purpose for which the Buyer requires the Goods and any failure resulting from inaccurate wind load calculations or failure to undertake and apply such calculations where appropriate; or (v) failure by the Buyer or by any carrier to properly transport the Goods after risk has passed under condition 5 including any failure to transport the Goods at the correct temperature.
The Seller shall be under no liability under any condition warranty or guarantee if the Contract price plus the cost of extras pursuant to condition 3.2, plus VAT (in each case) has not been paid by the due date for payment.
Replacement Goods under this condition may be delivered to the Buyer at the address at which the defective Goods are located and upon notification to the Buyer title to the defective Goods shall (if it has vested in the Buyer) re-vest in the Seller and the Buyer shall make the defective Goods available to the Seller for collection. The Buyer shall not dispose of the defective Goods unless authorised by the Seller. If (notwithstanding any other condition) replacement Goods are provided by the Seller under this condition at a time when property in the defective Goods has not passed to the Buyer, the title in the replacement Goods shall remain with the Seller under condition 5.2 as if they were the Goods originally supplied by the Seller.
A claim by the Buyer which is based on condition 6.1 of these conditions shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date the Goods are delivered (pursuant to condition 4) or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If the Buyer fails to notify the Seller as required by this condition, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price of the Goods on demand by the Seller.
The Buyer shall permit the Seller to take samples from the Goods for analysis in order to confirm the origin of the Goods and for the purposes of determining any of those matters set out under condition 6.1.
Subject as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these conditions.
Except in respect of death or personal injury caused by the Seller’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these conditions.
The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control.
The Seller shall not be liable to the Buyer or any third party in respect of any cracking, thermal cracking or breakage of glass and/or scratches to glass during or at any time after installation (or during the initial cleaning process prior to installation) or damage to decoration from soapy overspray or water contact and as specified elsewhere in these conditions. The Buyer accepts the risk and liability of any such damage occurring.
PLANNING, STATUTORY CONSENTS and OTHER CONSENTS
All necessary consents regulations or permissions legally required from any local authority or other body for the installation of the Goods or other works carried out by the Seller shall be the responsibility of the Buyer and the Seller shall not be liable for any loss incurred by the Buyer if the Buyer fails to obtain any such necessary consents regulations or permissions.
No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
The laws of England and Wales shall govern the Contract.
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of the Contract, this is not intended to, and does not give any person who is not a party to the Contract any right to enforce any of its provisions.