Business to Business Sale of Goods Terms of Business
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when UK clearing banks in the city of London are open for general business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: The company, firm or person who purchases the Goods from the Supplier.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy
Force Majeure Event: has the meaning given in clause 10.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods and or the technical assistance (if applicable), as set out in the Customer’s written acceptance of the Supplier’s quotation and the Specification.
Supplier: Feel Warm Glazing Ltd
Specification: any specification for the Goods, including any related plans, measurements and CAD drawings, that is agreed in writing by the Customer and the Supplier.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes e-mails.
2. BASIS OF CONTRACT
2.1 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, custom, practice or course of dealing.
2.2 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 and the Supplier shall not begin to manufacture or otherwise prepare the Goods until the Customer returns an executed copy of the Specification to the Supplier, confirming that it has checked and approves the Specification.
2.3 The Goods supplied are both bar length and made to measure. The Supplier shall supply / manufacture the Goods according to the measurements provided by the Customer. The Supplier cannot accept return of the Goods or any claim for a refund if the reason for the return is because the Customer provided the Supplier with incorrect measurements. The Customer is therefore fully responsible for ensuring that material quantities and or dimensions are taken in the correct manner (and in accordance with any directions provided by the Supplier) and that they are correct and accurate.
2.4 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order (“Order Confirmation“), at which point the Contract shall come into existence.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues, brochures and/or its website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 28 Business Days from its date of issue.
3. GOODS
3.1 The Goods are described in the Specification.
3.2 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification without giving notice if required by any applicable statutory or regulatory requirements.
4. DELIVERY
4.1 The Supplier shall ensure that:
(a) Each delivery of the Goods is accompanied by a delivery note which shows the date of the delivery, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered;
(b) The Customer must inspect on delivery to ensure the Goods delivered match those on the delivery note; and
(c) If the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order (or such other location as the Supplier may agree in writing (“Delivery Location“) at any time after the Supplier notifies the Customer that the Goods are ready. The Customer shall not be permitted to alter the Delivery Location on less than 48 hours’ notice.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location prior to the unloading of the Goods at the Delivery Location.
4.4 The Customer shall be responsible for unloading the Goods at the Delivery Location and shall ensure that the necessary personnel, equipment and materials are available for such purpose upon the Goods’ arrival at the Delivery Location. The Supplier shall not be liable for any damage to the Goods or property during the unloading of the Goods.
4.5 Following the inspection at 4.1(b) the Customer shall have 48 hours to notify the Supplier in writing of any issues and shall be deemed to have accepted the Goods following the expiry of that period or, in the case of a latent defect in the Goods 48 hours following the latent defect becoming apparent.
4.6 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods
4.7 If the Supplier fails to deliver the Goods on the agreed date, its liability shall be limited to ensuring the goods are delivered at the earliest opportunity. The Supplier accepts no liability for consequential loss arising from a late or failed delivery.
4.8 The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods including but not limited to a failure to provide accurate measurements.
4.9 It is the responsibility of the Customer to ensure that the Supplier can deliver to the Site in the Supplier’s choice of vehicle. Most deliveries are made by HGV and therefore it is the Customers responsibility to ensure access can be gained by the HGV. Failure to reach a Site delivery address will result in a failed delivery which will result in a delivery being made away from the address provided. In this instance, it is the Customers responsibility to offload the vehicle and this will be classed as the delivery location.
4.10 If the Customer fails to agree to take delivery of the Goods within five Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.11 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier can charge in full for the Goods
4.12 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. QUALITY
5.1 The Supplier warrants that on delivery, and for a period of 10 years from the date of delivery (“Warranty Period“), the Goods shall:
(a) conform in all material respects with the Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be fit for any purpose expressly held out by the Supplier.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier 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 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, replace the defective Goods, or refund the price of the defective Goods in full if repair or replacement is not available. This excludes consequential loss.
5.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer or any third party failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design, measurement or Specification supplied and/or approved by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on arrival of the Goods at the Delivery Location.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods or services that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy the Supplier may have the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession which have not been irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time before delivery (or deemed delivery), increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 The Supplier may invoice the Customer for the Goods on or at any time after receipt by the Supplier of the Order.
7.6 Unless otherwise agreed in writing by the Supplier, the Customer shall pay the invoice by BACS or other means of cleared funds prior to delivery or deemed delivery (whichever is earlier). Time of payment is of the essence and the Supplier may withhold delivery of the Goods pending payment by the Customer. For companies with credit accounts payment must be made in line with the terms offered by the Supplier.
7.7 For the avoidance of doubt, all invoices submitted by the Supplier for the Goods shall be payable by the Customer in accordance with this clause 8 regardless of whether any purchase invoice number is referenced or other invoicing requirements of the Customer are satisfied.
7.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.9 The Customer shall pay all amounts due under the Contract in full without any setoff, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier 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 Supplier to the Customer.
7.10 The Customer must inform in writing any change of ownership or change of company name within 7 days of companies’ house being informed. The Supplier reserves the right to withdraw credit facilities at any time and will inform the Customer in writing of any such withdrawal.
8. TERMINATION AND SUSPENSION
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, then without limiting its other rights or remedies the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
8.2 For the purposes of clause 8.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(e) (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(h) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause
8.2(a) to clause 8.2(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
8.5 Termination of the Contract shall not affect any of the parties rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.6 The Customer acknowledges and accepts that the Goods are made to measure and bespoke to the Customer’s requirements, therefore the Customer cannot cancel an Order with the Supplier.
8.7 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
9.2 Subject to clause 9.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
(i) loss of profit;
(ii) any indirect or consequential loss, arising under or in connection with the Contract;
(b) the Supplier shall not be liable for any losses incurred by the Customer as a result of the Customer providing or approving incorrect measurements of the Goods;
(c) the Supplier’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.
10. FORCE MAJEURE
Neither party shall be in breach of this Contract nor liable for any delay in performing or failure to perform any of its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11. DATA PROTECTION AND DATA PROCESSING
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this Clause 11, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
11.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
11.3 Without prejudice to the generality of Clause 11.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.
11.4 Without prejudice to the generality of Clause 11.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(v) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(f) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this Clause 11.
11.5 The Customer consents to the Supplier appointing third parties from time to time (as notified to the Customer from time to time) as a third-party processor of Personal Data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 11.
11.6 Either party may, at any time on not less than 30 days’ notice, revise this Clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
12. GENERAL
12.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post or other next working day delivery service, commercial courier or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause
12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission provided that the message is not recalled and no message of non-delivery is received by the sender.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3 Entire Agreement
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.
12.4 Severance.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.5 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.6 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
12.8 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
12.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including noncontractual disputes or claims).
Retail Customer Supply of Goods and Installation Services Terms of Business
BACKGROUND:
These Terms and Conditions are the standard terms which apply when a customer places an order for goods and installation services and Feel Warm Glazing Ltd (“the Trader”) accepts the order and the contract is made “off the premises” of the Trader.
These Terms and Conditions apply where the customer is a “Consumer” as defined by the Consumer Rights Act 2015.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Business” means any business, trade, craft or profession carried on by You or any other person/organisation;
“Commercial Unit” means a delivery of Goods, the character and/or value of which would be materially impaired if divided;
“Consumer” means a “consumer” as defined by the Consumer Rights Act 2015, and in relation to these Terms and Conditions means an individual customer of the Trader who purchases Goods for their personal use and for purposes wholly or mainly outside the purposes of any Business;
“Contract” means the contract for the sale and purchase of the Goods and Services under these Terms and Conditions;
“Goods” means the Goods We will supply which We will install as part of the Services;
“Inseparably Mixed Goods” means Goods that have become mixed inseparably (according to their nature) with other items after delivery;
“Order” means Your completed order for the purchase and delivery of Goods and provision of Services;
“Personalised Goods” means goods that are bespoke or made to Your specifications or are clearly personalised;
“Sales Literature” means any brochures, catalogues, leaflets, price lists and other documents providing details of Goods and Services available and pricing information;
“Services” means the services We will provide which involve the installation of the Goods You have purchased;
“We/Us/Our” means the Trader and includes all employees, agents and sub-contractors of the Trader;
“You/Your” means a Consumer who is a customer of the Trader.
1.2 Each reference in these Terms and Conditions to “writing”, and any similar expression, includes electronic communications whether sent by e-mail, text message, fax or other means.
1.3 Each reference to a statute or provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time.
1.4 Each reference to “these Terms and Conditions” is a reference to these Terms and Conditions.
1.5 Each reference to a Schedule is a reference to a schedule these Terms and Conditions.
1.6 The headings used in these Terms and Conditions are for convenience only and do not affect the interpretation of these Terms and Conditions.
1.7 Words signifying the singular number will include the plural and vice versa.
1.8 References to any gender will include the other gender.
1.9 References to persons, unless the context otherwise requires, include corporations.
2. Information about Us
2.1 We are a Limited Company.
2.2 We are registered in the United Kindom under number 10159842.
2.3 We are regulated by LBC.
2.4 We are a member of CERTAS and HomePro.
3. Communication and Contact Details
3.1 If You wish to contact Us with questions or complaints, You may contact Us by telephone at 01785 716560 or by email at contact@feelwarmglazing.co.uk.
3.2 In certain circumstances You must contact Us in writing (as stated in various Clauses throughout these Terms and Conditions). When contacting Us in writing You may use the following methods:
3.2.1 contact Us by email at contact@feelwarmglazing.co.uk; or
3.2.2 contact Us by pre-paid post at Feel Warm Glazing Ltd, 118 Vale Gardens, Penkridge, Staffordshire, ST19 5LL.
4. The Contract
4.1 These Terms and Conditions govern the sale of Goods and Services by Us and will form the basis of the Contract between Us and You. Before making Your Order, please ensure that You have read these Terms and Conditions carefully. If You are unsure about any part of these Terms and Conditions, please ask Us for clarification.
4.2 Nothing provided by Us including, but not limited to Sales Literature, constitutes a contractual offer capable of acceptance. Your Order constitutes a contractual offer that We may, at our discretion, accept.
4.3 A legally binding contract between Us and You will be created upon our acceptance in writing of Your Order.
4.4 We will ensure that the following information is given or made available to You prior to the formation of the Contract between Us and You, save for where such information is already apparent from the context of the transaction:
4.4.1 The main characteristics of the Goods and Services;
4.4.2 Our identity (set out on page 1 and in Clause 2) and contact details (set out in Clause 3);
4.4.3 The total price for the Goods and Services including taxes or, if the nature of the Goods or Services is such that the price cannot be calculated in advance, the manner in which it will be calculated;
4.4.4 Where applicable, all additional delivery charges or, where such charges cannot be calculated in advance, the manner in which they will be calculated;
4.4.5 Where applicable, the arrangements for payment, delivery and the time by which We undertake to deliver the Goods and perform the Services;
4.4.6 Our complaints handling policy;
4.4.7 Information about Your right to cancel during the “cooling off” period (set out in Clause 11);
4.4.8 We will ensure that You are aware of Our legal duty to supply goods that are in conformity with the Contract;
4.4.9 Where applicable, details of after-sales services and commercial guarantees;
4.4.10 Where applicable, the functionality, including appropriate technical protection measures, of digital content; and
4.4.11 Where applicable, any relevant compatibility of digital content with hardware and software that We are aware of or might reasonably be expected to be aware of.
5. Description and Specification of Goods and Services
5.1 We have made every reasonable effort to ensure that the Goods conform to illustrations, photographs and descriptions provided in Our Sales Literature and descriptions provided by Our salespeople. We cannot, however, guarantee that all descriptions, illustrations and/or photographs will be precisely accurate due to discrepancies that may arise during the printing process and/or differences in the colour reproduction of electronic displays.
5.2 If You receive any Goods that do not conform to illustrations, photographs or descriptions under sub-Clause 5.1 You may return those Goods to Us as provided in Clause 10.
5.3 If We find, or are made aware of, any typographical, clerical or other accidental errors or omissions in any Sales Literature We will make every reasonable effort to correct such errors or omissions as soon as is reasonably possible. If, as a result of any such error or omission, You have received the wrong Goods, You may return those Goods to Us as provided in Clause 10. If, as a result of any such error or omission, You have paid too much, We will refund the excess paid for the Goods.
5.4 We reserve the right to make any changes in the specification of the Goods or Services that may be required to conform to any applicable safety or other legal or regulatory requirements without notice.
6. Orders
6.1 All Orders You place for Goods and Services will be subject to these Terms and Conditions.
6.2 You may change Your Order at any time before We despatch the Goods by contacting Us. Requests to change Orders do not need to be made in writing.
6.3 If You change Your Order We will inform You in writing of any change to the Price.
6.4 You may cancel Your Order at any time before We despatch the Goods by contacting Us. If You have already paid for the Goods under Clause 7, We will refund the payment to You within 10 working days. If You request that Your Order be cancelled, You must confirm this cancellation in writing.
6.5 We may cancel Your Order at any time before We despatch the Goods in the following circumstances:
6.5.1 The Goods are no longer in stock and We are unable to re-stock (if, for example, the Goods are discontinued); or
6.5.2 An event outside of Our control continues for more than 3 days (please see Clause 14 for events outside of Our control).
6.6 If We cancel Your Order under sub-Clause 6.5 and You have already paid for the Goods under Clause 7, We will refund the payment to You within 10 Working Days. If We cancel Your Order, We will confirm the cancellation in writing.
7. Price and Payment
7.1 The price of the Goods and Services will be that shown in Our latest quotation in force at the time of Your Order. If the price shown in Your Order differs from Our current price We will inform You upon receipt of Your Order.
7.2 If We quote a special price which is different from the price shown in Our current price list, the special price will be valid for 30 days or, if the special price is part of an advertised special offer, for the period shown in the advertisement. Orders placed during this period will be accepted at the special price even if We do not accept the Order until after the period has expired.
7.3 We may change Our prices at any time but these changes will not affect any Orders that We have already accepted.
7.4 We have made every reasonable effort to ensure that our prices, as shown in Our current advertising material are correct. Prices will be checked when We process Your Order. If the actual price of the Goods is lower than that stated in Your Order, We will charge You the lower price. If the actual price of the Goods is higher than that stated in Your Order, We will ask You how You wish to proceed.
7.5 All prices include VAT. If the rate of VAT changes between the date of Your Order and the date of Your payment, We will adjust the rate of VAT that You must pay. Changes in VAT will not affect any prices where We have already received payment in full from You.
7.6 Our prices include the cost of delivery.
7.7 You must pay for the Goods and Services according to the payment schedule set out in your order confirmation.
7.8 We accept the following methods of payment:
7.8.1 Cash;
7.8.2 Bank Transfer;
7.8.3 Credit/Debit Card
7.8.4 Cheque
7.9 If You do not make payment to Us by the due date as shown in/on your order confirmation We may charge You interest on the overdue sum at the rate of 4% per annum above the base lending rate of the bank of England from time to time. Interest will accrue on a daily basis from the due date for payment until the actual date of payment of the overdue sum, whether before or after judgment. You must pay any interest due when paying an overdue sum.
7.10 The provisions of sub-Clause 7.9 will not apply if You have promptly contacted Us to dispute an invoice in good faith. No interest will accrue while such a dispute is on-going.
8. Delivery
8.1 Please note that delivery is currently only possible within the areas that we cover.
8.2 When We accept Your Order, We will provide an estimated delivery date and (if different) a date for performance of the Services. Please note that estimated delivery dates may vary according to the availability of Goods, Your location, and circumstances beyond our control. Unless agreed otherwise, the Goods will be delivered without undue delay and in any case no later than 30 calendar days after the date on which the Contract is formed.
8.3 Delivery will be deemed to have taken place when the Goods have been delivered to the delivery address indicated in Your Order and You (or someone identified by You) have taken physical possession of the Goods or, if You are collecting the Goods from Us Yourself, when You have collected the Goods.
8.4 If for any reason We are unable to deliver the Goods at Your chosen delivery address, We will leave a note informing You that the Goods have been returned to Our premises, requesting that You contact Us to arrange re-delivery.
8.5 The responsibility (sometimes referred to as the “risk”) for the Goods remains with Us until delivery is complete as defined in sub-Clause 8.4 at which point it will pass to You. Please note, however, that if You do not wish to collect the Goods and do not wish to use Our nominated carrier to deliver them, instead choosing Your own carrier, the risk in the Goods will pass to You as soon as they are passed to Your chosen carrier.
8.6 You own the Goods once We have received payment in full for them.
8.7 Please note carefully the following:
8.7.1 If We refuse to deliver the Goods, You may treat the Contract as being at an end and We will reimburse You without undue delay.
8.7.2 If delivery of the Goods within the agreed time period or at the agreed time was essential (taking into account the relevant circumstances at the time the Contract was formed) and We fail to deliver, You may treat the Contract as being at an end and We will reimburse You without undue delay.
8.8 If any of the events in sub-Clause 8.7 occur You may, instead of treating the Contract as being at an end, specify a new delivery time or time period. If We continue to fail to deliver the Goods, You may treat the Contract as being at an end and We will reimburse You without undue delay.
8.9 If, despite the events in sub-Clause 8.7 and 8.8, You choose not to treat the Contract as being at an end, Your right to cancel Your Order or to reject the Goods will be unaffected. If You do so, We will reimburse You without undue delay.
8.10 If the Goods form a Commercial Unit, You may only reject or cancel all of the Goods, not a portion of them.
9. Providing the Services
9.1 As required by law, We will provide the Services with reasonable skill and care, consistent with best practices and standards in the construction industry.
9.2 We will begin providing the Services on the date We notify to You under Clause 8.2.
9.3 We will make every reasonable effort to complete the Services on time and in accordance with the specification contained in the Sales Literature. We cannot, however, be held responsible for any delays if an event outside of Our control occurs. Please see Clause 14 for events outside of Our control.
10. Faulty, Damaged or Incorrect Goods
10.1 By law, We must provide goods that are of satisfactory quality, fit for purpose and as described at the time of purchase. If any Goods You have purchased do not comply and, for example, have faults or are damaged when You receive them, or if You receive incorrect Goods, please contact Us as soon as reasonably possible to inform Us of the fault, damage or error, and to arrange for a refund, repair or replacement.
10.2 If You request a repair or replacement and:
10.2.1 it is not possible for Us to repair or replace the Goods;
10.2.2 arranging a repair or providing a replacement would impose a significant burden on Us;
10.2.3 We would not be able to arrange a repair or provide a replacement within a reasonable time and without significant inconvenience to You
You may opt either to keep the Goods at a reduced price, or to cancel the Contract and receive a refund. Please note that We may reduce such refunds to take account of any use You have had of the Goods since they were delivered to You.
10.3 Please note that You will not be eligible to claim under this Clause 10 if:
10.3.1 We informed You of any faults, damage or other problems with the Goods before Your purchase of them;
10.3.2 You have purchased the Goods for an unsuitable purpose that is neither obvious nor made known to Us and the problem has resulted from Your use of the Goods for that purpose; or
10.3.3 the problem is the result of normal wear and tear, misuse or intentional or careless damage.
Please also note that You may not return Goods to Us under this Clause 10 merely because You have changed Your mind. Please refer to Clause 11 for details of what to do if You change Your mind.
10.4 To return Goods to Us for any reason under this Clause 10, You may do so in person during Our business hours of Monday to Friday 9am to 5pm or You may return them to Us by post or another suitable delivery choice. You may alternatively request that We collect the Goods from You. Please ensure that the Goods are ready for collection at the agreed time and location. We are solely responsible for collecting the Goods in this case, however We may appoint a third party carrier to collect them in which case We will provide You with all relevant details. We will be fully responsible for the costs of returning Goods under this Clause 9 and will reimburse You where appropriate.
10.5 Repairs made under this Clause 10 will be carried out within a reasonable time. Replacements issued under this Clause 10 will be dispatched within a reasonable time. All repairs and/or replacements will be performed and/or issued at Our expense. We will issue refunds (whether full or partial, including reductions in price) under this Clause 10 within 30 working days of the event triggering the refund.
10.6 All refunds issued under this Clause 10 will include all delivery costs paid by You when the Goods were originally purchased.
10.7 For further information on Your rights as a consumer, please contact Your local Citizens Advice Bureau or Trading Standards Office.
11. Cancellation of Contract During the Cooling Off Period
11.1 Where the Contract is not made “on Our premises”, You have a statutory right to a “cooling off” period. This period begins once the Contract has been made and ends:
11.1.1 in relation to the Goods, 14 calendar days after the Goods have been delivered. If the Goods are delivered in instalments, the 14 calendar day period begins on the day that You receive the final instalment;
11.1.2 in relation to the Services, at the end of 14 calendar days after the date on which the Contract was made.
This right will not apply to Personalised Goods or Inseparably Mixed Goods.
11.2 If You wish to cancel the Contract within the cooling off period You should inform Us immediately by a clear statement (e.g. a letter sent by post, fax or email to the postal address, fax number or email address specified in these Terms and Conditions).
11.3 To meet the cancellation deadline, it is sufficient for You to send Your communication concerning the exercise of the right to cancel before the cancellation period has expired.
11.4 If You exercise the right to cancel in relation to the Services:
11.4.1 You will receive a full refund of any amount paid to Us in respect of the Services;
11.4.2 We will process the refund due to You as a result of a cancellation without undue delay and, in any case, within the period of 14 days after the day on which We are informed of the cancellation.
11.5 If You exercise the right to cancel in relation to the Goods:
11.5.1 We will issue a refund within 10 working days and in any event no later than 14 calendar days after We receive the returned Goods and the refund will include standard delivery charges;
11.5.2 You must return the Goods to Us within 14 calendar days of the day on which You inform Us that You wish to return the Goods. You must pay return shipment costs if Goods are returned under this Clause 11;
11.5.3 We will not refund additional costs such as express delivery and gift-wrapping;
11.5.4 We may make a deduction from the refund for loss in value of any goods supplied, if the loss is the result of unnecessary handling by You.
11.6 We will refund money using the same method used to make the payment, unless You have expressly agreed otherwise. In any case, You will not incur any fees as a result of the refund.
11.7 If You wish Us to begin providing the Services on a date that falls within the cooling off period You must make an express request for provision of the Services to begin within the 14 calendar day cooling off period. By making such a request You acknowledge and agree to the following:
11.7.1 If We fully perform the Services within the 14 calendar day cooling off period, You will lose the right to cancel after the Services are complete (although You may still have the right to return the Goods);
11.7.2 If You cancel the Services after provision has begun but before it is complete You will still be required to pay for the Services supplied up until the point at which You inform Us of Your wish to cancel;
11.7.3 The amount due will be calculated in proportion to the full price of the Services and the actual Services already provided. Any sums that have already been paid for the Services will be refunded subject to deductions calculated on this basis;
11.7.4 We will process any refund within 10 Working days and in any event no later than 14 calendar days after You inform Us of Your wish to cancel.
12. Guarantee
12.1 The Goods are provided with a manufacturer’s guarantee. For further details and terms please refer to the manufacturer’s guarantee documentation supplied with the Goods.
12.2 The manufacturer’s guarantee exists in addition to Your legal rights as a consumer (that the Goods match Our description, that they are of satisfactory quality and that they are fit for purpose). More information on Your rights as a consumer can be obtained from Your local Citizens Advice Bureau or Trading Standards Office.
13. Complaints and Feedback
13.1 We always welcome feedback from Our customers and, while We always use all reasonable endeavours to ensure that Your experience as a customer of Ours is a positive one, We nevertheless want to hear from You if You have any cause for complaint.
13.2 All complaints are handled in accordance with Our complaints handling policy and procedure, which accompanies this document.
13.3 If You wish to complain about any aspect of Your dealings with Us, please contact Us in one of the following ways:
13.3.1 In writing, addressed to Feel Warm Glazing, 118 Vale Gardens, Penkridge, ST19 5LL;
14. Events Outside of Our Control (Force Majeure)
14.1 We will not be liable for any failure or delay in performing Our obligations under these Terms and Conditions where the failure or delay results from any cause that is beyond Our reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, strikes, lock-outs or other industrial action by third parties, riots and other civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism (threatened or actual), acts of war (declared, undeclared, threatened, actual or preparations for war), epidemic or other natural disaster, or any other event that is beyond Our reasonable control .
14.2 If any event described under this Clause 14 occurs that is likely to adversely affect Our performance of any of Our obligations under these Terms and Conditions:
14.2.1 We will inform You as soon as is reasonably possible;
14.2.2 Our obligations under the Contract will be suspended and any time limits that We are bound by will be extended accordingly;
14.2.3 We will inform You when the event outside of Our control is over and provide details of any new delivery dates or availability of Goods as necessary;
14.2.4 If the event outside of Our control continues for more than 10 Days We will cancel the Contract and inform You of the cancellation. Any refunds due to You as a result of that cancellation will be paid to You as soon as is reasonably possible;
14.2.5 If an event outside of Our control occurs and You wish to cancel the Contract, You may do so in accordance with Your right to cancel under sub-Clause 6.4.
15. Liability
15.1 We will be responsible for any foreseeable loss or damage that You may suffer as a result of Our breach of these Terms and Conditions or as a result of Our negligence. Loss or damage is foreseeable if it is an obvious consequence of the breach or negligence or if it is contemplated by You and Us when the Contract is entered into. We will not be responsible for any loss or damage that is not foreseeable.
15.2 We will maintain suitable and valid insurance including public liability insurance.
15.3 We only supply Goods and Services for domestic and private use. We make no warranty or representation that the Goods and Services are fit for commercial, business or industrial purposes of any kind (including resale). By placing an Order, You agree that You will not use the Goods or Services for such purposes. We will not be liable to You for any loss of profit, loss of business, interruption to business or for any loss of business opportunity.
15.4 If We cause any damage to Your property while providing the Services, We will make good that damage at no additional cost to You. We are not responsible for any pre-existing faults or damage in or to Your property that We discover while providing the Services.
15.5 Nothing in these Terms and Conditions is intended to or will limit or exclude Our liability for death or personal injury caused by Our negligence or for fraud or fraudulent misrepresentation.
15.6 Nothing in these Terms and Conditions is intended to our will limit or exclude Our liability for failing to perform the Services with reasonable care and skill or in accordance with information provided by Us about the Services or about Us.
15.7 Nothing in these Terms and Conditions is intended to or will limit Your legal rights as a Consumer under any consumer protection legislation. For more details of Your legal rights please refer to Your local Citizens Advice Bureau or Trading Standards Office.
16. How We Use Your Personal Information (Data Protection)
16.1 All personal information that We may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and Your rights under the GDPR.
16.2 For complete details of Our collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of Your rights and how to exercise them, and personal data sharing (where applicable), please refer to Our Privacy Notice available from www.feelwarm.co.uk.
17. Other Important Terms
17.1 We may transfer (assign) Our obligations and rights under the Contract to a third party (this may happen, for example, if We sell Our business). If this occurs We will inform You in writing. Your rights under the Contract will not be affected and Our obligations under the Contract will be transferred to the third party who will remain bound by them.
17.2 You may not transfer (assign) Your obligations and rights under these Terms and Conditions (and under the Contract, as applicable) without Our express written permission (such permission not to be unreasonably withheld).
17.3 The Contract is between You and Us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of the Contract.
17.4 If any provision of the Contract or these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract or these Terms and Conditions and the remainder of the provision in question will not be affected.
17.5 No failure or delay by Us or You in exercising any rights under the Contract means that We or You have waived that right, and no waiver by Us or You of a breach of any provision of the Contract means that We or You will waive any subsequent breach of the same or any other provision.
17.6 You shall permit us or person(s) employed or engaged by us, without compensation or consideration to you, to take photographs at the project site of both completed work and work in progress, for purposes including, but not limited to, publication in newspapers, magazines, and other print media, use in broadcast media, publication via the Internet, and use in marketing materials used by us. Such photographs and any accompanying descriptions shall not identify you or the property address of the project without the express written consent of you.
18. Law and Jurisdiction
18.1 These Terms and Conditions, the Contract, and the relationship between you and Us (whether contractual or otherwise) shall be governed by, and construed in accordance with the law of England & Wales.
18.2 As a consumer, you will benefit from any mandatory provisions of the law in your country of residence. Nothing in Sub-Clause 19.1 above takes away or reduces your rights as a consumer to rely on those provisions.
18.3 Any dispute, controversy, proceedings or claim between you and Us relating to these Terms and Conditions, the Contract, or the relationship between you and Us (whether contractual or otherwise) shall be subject to the jurisdiction of the courts of England, Wales, Scotland, or Northern Ireland, as determined by your residency.