These East Midlands Warm Roofs Ltd terms and conditions shall apply in respect of your order for the goods and/or services specified in the Order Confirmation Letter. The Order Confirmation Letter is our acceptance of your order. Except to the extent that these terms and conditions and any relevant quotations are varied by mutual consent in writing by an authorised representative of both parties they shall constitute the entire agreement between us and shall prevail over your own terms and conditions.
2. You agree that in entering into this agreement, you shall not rely on any representation, understanding or statement contained in any brochure, price list or sales literature or any other representation, (whether oral or in writing,) which is not included or referred to in either these terms and conditions or the Order Confirmation Letter.
3. Unless otherwise confirmed by us in writing the quality quantity and description of the goods and/or services shall be as set out in the Order Confirmation Letter. You shall be responsible for ensuring that the terms of the order are accurate and complete.
4. Where we are to supply goods and/or services to a specification supplied by you, you shall deliver to our premises all necessary information (including details of any design or plan) in sufficient time to enable us to supply the goods and/or provide the services by any dates estimated for delivery of the goods and/or performance of the services. Time is not of the essence in the delivery of the goods and/or performance of the services and we shall not be held liable in any respect for our failure to meet the estimated date of delivery.
5. You shall indemnify us against all losses, expenses, damages and costs incurred by us as a result of our use of any design or plan supplied by you including (but not limited to) those incurred by us in respect of any claim by a third party for infringement of any patent, copyright, design, trademark or other industrial or intellectual property right or for negligence, whether in respect of personal injury or death or otherwise.
6. Where a design is provided by us exclusively and in absence of any prior written agreement between both parties, all patent, copyright, design, trademark or other industrial or intellectual property rights shall remain vested in us. You will be granted a perpetual non-exclusive licence to use the design.
7. In the event that you wish to make amendments to your order after work has commenced or you require us to undertake work which has not been specifically quoted for by us you will be liable for the cost of the additional work undertaken. In such event we will issue you a revised quotation incorporating these changes.
8. Where we are requested to install items at your premises this shall be done solely at your risk. Before instructing us you shall be responsible for checking that the bases to which the goods are to be attached are clear of obstruction. The fitting of the goods by our representative will be at your risk and cost.
9. The price payable by you for the goods and/or services shall be the price set out overleaf. Any quotes we send to you are only valid for 30 days unless otherwise specifically agreed in writing. We reserve the right to withdraw any quote at any time before it is accepted by you, in which case you shall be notified in writing.
10. We may at anytime whether before or during work, increase the price of the goods and/or services to reflect an increase in costs which is caused by any change to estimated collection dates, quantities or specifications requested by you or any delay caused by you. Additionally we reserve the right to charge you for any out of pocket expenses which we reasonably incur and we shall on your request supply you with evidence of payment of such expenses.
11. We reserve the right to pass on any increase in costs from our suppliers to you. We shall give you notice of such increase.
12. Unless otherwise confirmed by us in writing, all prices given are exclusive of Value Added Tax (VAT), duties, insurance, carriage, set off or abatement.
13. We shall invoice you for the price of the goods and/or services provided at any time after the work to be done is completed. Where we supply you with both goods and services we may invoice you separately for each.
14. Where the goods or services are provided to you in instalments, while each instalment will constitute a separate contract, our failure to provide one or more of the instalments shall not entitle you to terminate the contract as a whole.
15. You shall pay the price in full and in cleared funds within 30 days of the invoice date, unless otherwise stated in written correspondence from us. If you do not pay the price set out in our invoice in full and in cleared funds within 30 days of its issue date (or within whichever timescale is operative) then, in addition to any other rights we may have, we shall be entitled to bring an action against you for the price (even if possession of the goods has not passed to you) and/or cancel the agreement between us and/or suspend any further deliveries to you and/or charge you interest on the outstanding amount at the rate of 8% per annum above the base rate of Barclays Bank plc calculated on a daily basis and this rate shall apply both before and after the issue of any legal proceedings we may take against you to recover any unpaid amount together with any charges incurred, including but not limited to bank charges, by us.
16. You shall not be entitled to deduct any amount from the Price by way of set off or counterclaim or for any other reason unless agreement to any such deduction has been given by us in writing and signed by the managing director of the company.
17. The date for delivery indicated overleaf is an estimate only and is not of the essence.
18. You shall be responsible for inspecting the goods on delivery for any apparent defects. If any defects are discovered during this inspection, you must notify us or our representative immediately. Your acceptance will be made to us by virtue of you or your representative signing a delivery receipt. Anybody presenting themselves to our representative as acting on your behalf in order to inspect or accept delivery of the goods shall be deemed to be your representative and as such has all relevant authorities to sign the delivery receipt confirming your acceptance of the goods.
19. If you do not accept the goods for any reason other than as set out above we will store them at your expense, charging a daily storage rate of £15. In such an instance you will be responsible for collecting the goods from our premises at a time which is convenient to both parties. If 30 days after completion of the work you have either not accepted delivery or collected the goods from our premises, we reserve the right, at our option, to deliver the goods to your premises at your cost for both fuel and an hourly rate of £45 to cover our time. In both instances you will remain liable for the price. We will not be liable for any damage to the goods while they are in storage or transit.
20. Risk in the goods will pass to you on delivery. Title in any goods supplied by us to you shall not pass to you until we have received in cleared funds all sums due to us.
21. Until ownership of the goods has passed to you, you will hold the goods on a fiduciary basis as our bailee and keep them separately and marked clearly as belonging to us. We reserve the right to enter your premises and you shall grant us access to recover any goods supplied by us to you if payment is not made on the due date. Until all sums owing to us have been paid in full and in cleared funds you shall properly store, protect and insure the goods against loss or damage and in the event of a relevant claim shall hold the proceeds of such insurance on our behalf as our trustees.
22. If you have not paid in cleared funds any invoice within 30 days of the date of that invoice, or if a receiver, administrator or liquidator is appointed in respect of your business, your right to possession of the goods shall end and we shall be entitled to terminate the agreement and you shall at your expense make the goods available to us and allow us to repossess them and in such circumstances you hereby grant us, our agents and employees an irrevocable licence to enter at any time any premises where the goods are stored to enable us to repossess or inspect them.
23. We hereby warrant that all services will be performed with all due skill and care and for a period of 12 months from the date of delivery, unless otherwise stated, that the works performed will be free from defects and by way of remedy in respect of the services shall at our option either (1) repair or (2) replace or (3) offer a full or partial refund or (4) any combination of (1), (2) or (3) PROVIDED THAT:
a) the defect was not capable of being apparent on inspection
b) the defect complained of is not due to a fault with the specification provided by you
c) the goods (where relevant) have been properly maintained and fitted in accordance with our recommendations
d) you notify us within 7 days of discovery of the defect
e) any goods alleged to be defective have been stored in a secure place and made available to us for inspection on our request
f) no attempt by any third party or you has been made to remedy the defect
g) we have confirmed the defect
24. Where the damage to the goods does not prohibit its movement it is your responsibility to deliver the goods to our premises where it is to be repaired. You will remain liable for any expenses incurred as a result of meeting this obligation. We will only reimburse you for any costs incurred where it is in our sole opinion reasonable to do so and only after prior written notice of an expenses claim has been submitted to us before delivery of the goods. For the avoidance of doubt, written confirmation as to an expenses claim being submitted will not necessitate our payment of it.
25. No warranty, guarantee or other term relating to quality or fitness for purpose is given in respect of the goods supplied by us but we shall, where possible, assign to you the benefit of any warranty, guarantee or indemnity given to us by any third party. We will supply no substitute goods or reimburse you for any goods hired for the time that the goods are in our possession.
26. Except in respect of death or personal injury caused by our negligence we shall not be liable to you by reason of any representation (unless fraudulent) or any implied warranty, condition or other term or any duty at common law or under the express terms of this agreement for any loss of profit or any indirect or consequential loss, loss of goodwill, any destruction of data, damage, costs or expenses whether or not such losses were in the contemplation of the parties and at the date of this contract, which arise out of or in connection with the provision of the goods and/or services by us to you.
27. Our entire liability under these terms and conditions shall be limited to the warranty set out above and shall not in any event exceed the price paid by you. This limitations and exclusions contained herein allow us to provide the goods and/or the services to you at the price. If you require us to accept greater liability we may be prepared to do so subject to an agreement to an additional charge to reflect the increased risk and cost of insurance to us.
28. You agree to indemnify and hold us harmless for all liabilities, loss, claims and expenses that may arise from any breach of these terms and conditions by you, including any third party liabilities incurred by us.
29. We shall not be liable to you or deemed to be in breach of the Agreement for any delay in performing, or failure to perform any of our obligations in respect of the supply of the goods, if the delay or failure is due to any cause beyond our reasonable control including without limitation any action by a third party supplier.
30. Any notice required to be given by either of us to the other shall be in writing addressed and posted first class to the relevant party's registered office or principal place of business and shall be effective on the third day of posting.
31. No waiver by us of a breach of any provision in these terms and conditions by you shall be considered as a waiver of any subsequent breach of the same or any other provisions.
32. If any provision of 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 and the remainder of the provision in question shall not be affected.
33. We may terminate the Agreement without penalty or compensation between us immediately if you become unable to pay your debts or enter into compulsory or voluntary liquidation (other than for the purpose of affecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different entity shall agree be bound by and assume your obligations under these terms and conditions) or if you compound with or convene a meeting of your creditors or have a receiver or manager or an administrator appointed of your assets or cease for any reason to carry on business or take or suffer similar action which in our opinion means that you may be unable to pay your debts. Similarly, we may terminate the Agreement without penalty or compensation between us immediately where variations in the work requested by you mean that the Agreement becomes no longer commercially viable for us. In such an event you will be charged our standard hourly rate of £45 for the work undertaken before termination.
34. The Contracts (Rights of Third Parties) Act 1999 shall not apply to these terms and conditions.
35. These terms and conditions shall be governed by the laws of England and Wales.