1. Basis of contract
1.1 These terms and conditions apply to the Contract (being, the contract between the Supplier and the Customer for the sale and purchase of the goods and services in accordance with these terms and conditions) 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.
1.2 The Customer's order for the goods and services, as set out in the Customer's purchase order form and call log (the ‘Order’), constitutes an offer by the Customer to purchase the goods and services set out in the Order (the ‘Goods’ and ‘Services’) in accordance with these terms and conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification (being any specification for the Goods or Services, including any related plans and drawings, that is agreed by the Customer and the Supplier), submitted by the Customer are complete and accurate.
1.3 The Order shall be deemed to be accepted when the Customer submits their order to the Supplier by facsimile or email and does not receive a delivery failure notification, at which point the Contract shall come into existence.
1.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
1.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations of the Goods or descriptions of the Services contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract or have any contractual force.
1.6 A quotation given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days (a day other than a Saturday, Sunday or public holiday in England) from its date of issue.
1.7 All of these conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2. Goods
2.1 The Goods are described in the Supplier's most recent catalogue, which may be amended from time to time, or as modified by any applicable Specification.
2.2 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 2.2 shall survive termination of the Contract.
2.3 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
3. Delivery
3.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, 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; and
(b) 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 Customer's expense.
3.2 If the Supplier is required to deliver the Goods and provide any Services to the Customer he shall do so to the location set out in the Order or such other location as the parties may agree (Delivery and Job Location).
3.3 If the Customer is required to collect the Goods, it will be from the Supplier's premises or such other location as may be advised by the Supplier (Collection Location). . Collection of the Goods must take place within 10 days from the date the Order was accepted.
3.4 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery and Job Location or on the completion of loading of the Goods at the Collection Location as the case may be.
3.5 Any dates quoted for delivery of Goods and Services are approximate only, and the time of delivery and provision of Services is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods and Services.
3.6 If the Supplier fails to deliver the Goods and provide Services, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods and services of similar description and quality in the cheapest market available, less the price of the Goods and Services. The Supplier shall have no liability for any failure to deliver the Goods and Services 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 and Services.
3.7 If the Customer fails to take or accept delivery of the Goods within 10 Days of the Order being accepted , 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 10th Business Day after the day on which the Order was accepted; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.8 If 15 Business Days after the day on which the Order was accepted the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
3.9 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 or the whole contract.
3.10 The Customer is required to sign a delivery note upon delivery of the Goods confirming acceptance of them.
3.11 The Customer is required to inspect the goods immediately upon delivery.
3.12 If the Customer notices a defect, default or error as a result of the Services provided, they must notify the Supplier within 24 hours of the Service being provided.
3.13 The Supplier shall have no liability in relation to goods lost or damaged in transit or in respect of any matter or thing by reason whereof the Customer alleges that the goods are not in accordance with the Contract unless the Customer noted such loss or damage or matter or thing on the delivery receipt and gives notice thereof in writing to the Supplier and their carrier within ten days of delivery or such shorter period as may be required by the carrier’s conditions of carriage or in the case of a whole consignment failing to arrive gives notice thereof in writing to the Supplier within 7 days of receive to the Supplier’s invoice/ dispatch note.
3.14 Customers returning incorrectly ordered cylinders that have been shipped direct to a customers' site will incur a £30 handling fee and the original cost of delivering to the customer site will not form part of any refunds.
4. Services
4.1 The Supplier shall have the right to make any changes to the services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services and the Supplier shall notify the Customer in any such event.
4.2 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4.3 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(c) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services and ensure that such information is accurate in all material respects;
(d) prepare the Customer's premises for the supply of the Services;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
4.4 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.4; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
4.5 Services can only be cancelled within office hours, being 9 – 5 Monday to Thursday and 9 – 3:30 on Fridays.
4.6 The Supplier will not under any circumstance be held liable to the Customer for any loss of time or earnings from work.
5. Quality
5.1 Except as provided for in clause 5.2, the Supplier warrants that on delivery, and for a period of 12 months from the date of delivery or collection, (warranty period), the Goods shall:
(a) conform in all material respects with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Supplier.
(e) Lifetime Guarantee: The stainless steel unvented cylinder carries a lifetime guarantee against faulty manufacture or materials, provided that: The product is used solely for the storage of water from a mains public supply. The product has not been modified or tampered with. The product has been installed and maintained in accordance with the installation instructions. The product has not been subjected to damage caused by frost, or other external influence. The product is registered on the Product Registration section of the TC&SC website within 28 days of installation. The immersion heater, water control valves, cylinder thermostat, expansion vessel and energy cut out valves are guaranteed for two years from the date of manufacture on a new build and once replaced for one year. This guarantee is only available in the United Kingdom of Great Britain and Northern Ireland. Claims made against our Lifetime Guarantee must be supported with evidence of purchase and the product serial number, along with a copy of the completed Benchmark Checklist and service record. Your Statutory rights are not affected by this guarantee. All cylinders are WRAS Approved.
Exclusions to the guarantee:
* Any labour charges associated with replacement of the unit or any of its components.
* Any consequential losses caused by malfunction or failure of the unit.
* The effects of scale build up
5.2 In the case of any defect arising which would have been apparent to the Customer on reasonable examination of the goods on delivery, the Customer shall notify the Supplier of the defects in writing, within 24 hours of delivery.
5.3 Subject to clause 5.4, if:
(a) the Customer gives notice in writing to the Supplier during the warranty period within ten days 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,
then the Supplier shall, at its option, repair or replace the defective Goods on a like-for-like basis, or refund the price of the defective Goods in full.
5.4 The Supplier shall not be liable for Good's 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; or
(b) the defect arises because the Customer 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 and installation by a suitably qualified professional maintaining the appropriate qualifications; or
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer; or
(d) the Customer alters or repairs such Goods without the written consent of the Supplier; or
(e) the defect arises as a result of fair wear and tear, (including, but not limited to, corrosion or scale damage) wilful damage, negligence, or abnormal storage or abnormal working conditions;
(f) the defect arising as a result of an installation or changes completed by somebody other than the supplier; or
5.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements 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.
5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
5.7 FAILURE TO CARRY OUT THE ANNUAL SAFETY CHECK ON UNVENTED PRODUCTS WILL INVALIDATE THE GUARANTEE.
5.8 These terms and 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 completion of delivery. At this point the Customer is obliged to hold the relevant insurances.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods 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; and
(b) The Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
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 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Supplier's agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 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:
(a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold; and
(ii) 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 and acceptance, or, if no price is quoted, the price set out in any individual Trading Agreement (‘TA’), or, where there is no TA then the price shall be that set out in the Supplier's published price list in force as at the date of delivery.
7.2 The price of Services shall be agreed between the Parties prior to the service being conducted. If further work is required at the time or after the service is conducted or further Goods are required to complete the Service, the agreed price may increase accordingly. The Customer shall also be liable to reimburse the Supplier for any parking or congestion charges incurred as a result of the Suppliers attendance. Any price increase will be discussed with the Customer.
7.3 Payment for Services is required prior to the Service being carried out and at the time of booking.
7.4 If the Services are cancelled less than 24 hours prior to the Service date, the Customer will not be entitled to any refund of pre-paid payments, as detailed in clause 7.3.
7.5 The Supplier may, by giving notice to the Customer at any time up to 10 Business Days before 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 (specifically raw materials including copper and steel) and other manufacturing costs); or
(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.
7.6 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which may be invoiced to the Customer in addition to the purchase price. All delivery costs are based on UK Mainland only and non-mainland deliveries are subject to bespoke pricing.
7.7 The price of the Goods and Services 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 or Services.
7.8 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.9 In relation to any delivery by Instalments as specified within clause 3.9, the Customer is required to make the relevant payments in instalments or as invoiced. Any failure to discharge any individual invoice or comply with the terms of the contract in relation to each instalment, the Supplier is entitled to treat such a breach as fundamental and terminate future performance of the contract.
7.10 The Customer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated or as stated within the TA, if different. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.11 All payments shall be made in Pounds Sterling unless otherwise stipulated by the Supplier.
7.12 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 5% per annum above Barclays Bank PLC'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.
7.13 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The 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.
8. Termination and suspension
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, 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(f) (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 and Services 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(i), 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, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
8.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. Limitation of liability
9.1 Nothing in these terms and 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); or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982; or
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(e) defective products under the Consumer Protection Act 1987; or
(f) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
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 loss of profit, or any indirect or consequential loss arising under or in connection with the Contract, including but not limited to:
(i) loss of profits
(ii) loss of sales/ business;
(iii) loss of agreements/ contracts;
(iv) damage to goodwill;
(b) where the Supplier is not involved in recommending which Goods are required for any particular purpose, the Supplier shall under no circumstance be liable to the Customer for any damage suffered or loss incurred whatsoever; and
(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 total price paid for the Goods and Services.
10. Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving 14 days written notice to the affected party.
11. General
11.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all 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.
11.2 Variation. The Supplier may vary these terms and conditions from time to time and as appropriate. Such amendments will be effective only if notified to the Customer in writing, prior to or at the time of amendment, at their registered office.
11.3 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.
11.4 Severance. 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.
11.5 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 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, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
(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 11.5(a); if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am 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 fax or email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.6 Third Parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.7 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.
11.8 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 non-contractual disputes or claims).
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