Terms & Conditions
Certikin International Limited
Terms and conditions for the supply of goods and/or services
1.1 In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Certikin Products: goods manufactured by the Company and affixed with the Company’s branding.
Company: Certikin International Limited registered in England and Wales with company number 03047290.
Company’s Premises: Witan Park, Avenue Two Station Lane Industrial Estate, Witney, Oxon, OX28 4FJ or Premier Park Castle Gate, Oulton, Leeds, West Yorks LS26 8ZA.
Conditions: these terms and conditions as amended from time to time in accordance with clause 20.7.
Contract: the contract between the Company and the Customer for the supply of Goods and/or
Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Company.
Force Majeure Event: means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
Goods: the Certikin Products and/or Third Party Products (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings that are agreed in writing by the Customer and the Company.
Hazardous Goods Charge: a charge added to any invoice which covers chemicals identified by a UN number.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the
Customer’s purchase order form or via telephone or via the Website.
Services: the installation and/or application and/or repair and/or maintenance of the Goods (if required and agreed) by the Company as set out in the Order.
Third Party Products: goods manufactured and/or supplied by third parties and supplied by the Company as the third party’s wholesale supplier or agent.
Website: the website www.certikin.co.uk operated by the Company and any other website(s) operated by the Company from time to time, and as may be updated from time to time.
1.2 A reference to writing or written includes fax but not e-mail.
1.3 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Company issues (at its complete discretion) written acceptance of the Order at which point and on which date the Contract shall come into existence.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions of the Goods contained in the Company’s catalogues, brochures or Website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 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.
2.6 Any quotation given by the Company shall not constitute an offer and may be withdrawn at any time and shall in any event lapse on the date 30 days from the date of issue unless specified otherwise in writing.
3.1 The Goods are described in the Company’s pricelists and on the Website, as modified by any applicable Goods Specification, or as described in any applicable Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Company 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 professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Company’s use of the Goods Specification. This clause
3.2 shall survive termination of the Contract.
3.3 The Company reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. DELIVERY OF GOODS
4.1 Unless the Goods are to be collected by the Customer from the Company’s Premises or such other location as may be advised by the Company before delivery, the Company shall deliver the Goods to the location set out in the Order (or such other location as the parties may agree). If the Customer is a consumer, the Company shall deliver the Goods within 30 days after the date on which the Company e-mails the Customer to confirm acceptance of its Order (or such longer period as the parties may agree).
4.2 Except as provided in clause 4.4, any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Customer’s premises or other delivery address specified by the Customer or on completion of loading of the Goods at the premises from which the Customer is collecting the Goods (as applicable) and the Company shall not be liable for any delay in delivery of the Goods or performance of the Services that is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods and/or Services.
4.4 If the Customer is a consumer, and the Company misses the 30 day delivery deadline for any Goods, then the Customer may cancel the Order straight away if any of the following apply:
(a) the Company has refused to deliver the Goods;
(b) delivery within the delivery deadline was essential (taking into account the relevant circumstances); or
(c) the Customer told the Company before it accepted the Order that delivery within the delivery deadline was essential.
4.5 If the Company fails to deliver the Goods (including if the Customer is a consumer and it chooses to cancel the Order for late delivery under clause 4.4), the Company’s liability shall be limited to a refund of the price paid for the Goods (and, if the Customer is a Consumer, any delivery costs the Customer has paid (although as permitted by law, the maximum refund will be the costs of delivery by the least expensive delivery method the Company offers (provided that is a common and generally acceptable method)). The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Customer’s failure to provide the Company with adequate delivery instructions for the Goods, or adequate access for delivery or any relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to accept or take delivery of the Goods within 30 Business Days of the Company notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Company’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the Business Day following the day on which the Company notified the Customer that the Goods were ready; and (b) the Company shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 Any person accepting delivery at the Customer’s premises or agreed delivery address shall be deemed to have the Customer’s authority to accept the Goods. The Customer shall be liable for any additional delivery charges if the Company is unable to deliver due to the Customer or any other person not being available to accept delivery.
4.8 If 30 Business Days after the Company notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, the Company 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.
4.9 The Customer shall not be entitled to reject the Goods if the Company delivers up to and including 5 per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered. Notification of non-delivery or damage to the Goods must be made in writing to the Company in accordance with clause 4.10.
4.10 Damage caused in transit or non-delivery of the Goods (or any part of them) which is apparent by reasonable inspection on delivery must be notified immediately to the Company in writing and recorded on the carrier’s paperwork at the time of delivery. The Company shall have no liability for non-delivery or delivery of damaged Goods unless notification is made by the Customer to the Company as prescribed by this clause 4.10.
For export shipments see Clause 19.
4.11 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. If the Company delivers the Goods by instalments due to operational reasons or shortage of stock, the Customer will not be charged extra delivery costs for this. If the Customer requests that the Company deliver the Order in instalments, the Company reserves the right to charge the Customer additional delivery costs. 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 OF GOODS
5.1 Certikin Products
(a) The Company warrants that on delivery and for a period of 12 months from the date of delivery, the Certikin Products will conform in all material respects with their description and any applicable Goods Specification and shall be free from material defects. If some or all of the Certikin Products do not comply with the warranty set out in this clause 5.1, the Company will, at its option, subject to the rest of this clause 5.1, either make good by repair or by the supply of a replacement, defects which, under proper use, appear in the Certikin Products within a period of 12 months after the Certikin Products have been delivered and installed, provided that:
(i) the Customer notifies the Company in writing of the claimed defects immediately on their appearance;
(ii) the Company is satisfied that the defects arise solely from faulty design (other than a design made, furnished or specified by the Customer), materials or workmanship;
(iii) if required by the Company, the Certikin Products claimed to be defective are returned to the Company at the expense of the Customer (unless the Customer is a consumer, in accordance with clause 7.7); and
(iv) where the Customer requests the Company to install the replacement product it shall pay for those Services in accordance with clause 9.
(b) The repaired or replacement Certikin Products will be delivered to the Customer at the original place of delivery, but otherwise the provisions of these Conditions shall apply to any repaired or replacement Certikin Products.
(c) As an alternative to clause 5.1 (a), the Company shall be, in its absolute discretion, entitled to return the sums paid by the Customer for the defective Certikin Products to the Customer if the Customer has already paid such sums when the claimed defect is notified by the Customer to the Company.
(d) The Company shall not be liable for the Certikin Products’ failure to comply with the warranty in clause 5.1 if:
(i) the Customer makes any further use of such Certikin Products after giving a notice in accordance with clause 5 (a)(i);
(ii) the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Certikin Products or (if there are none) good trade practice;
(iii) the defect arises as a result of the Company following any drawing, design or specification supplied by the Customer;
(iv) the Customer alters or repairs such Certikin Products without the written consent of the
(v) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(vi) the Certikin Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards; or
(vii) the Goods in question are perishable Goods.
(e) If the Goods upon examination are not found to be defective the Company’s reasonable costs of the examination and all costs of carriage to and from the Company shall be borne by the Customer.
(f) Except as provided in this clause 5, and /or unless the Customer is a consumer, the Company shall have no liability to the Customer in respect of the Certikin Products’ failure to comply with the warranty set out in clause 5.1.
5.2 Third Party Products:
(a) Unless otherwise agreed in writing the Company gives no warranty or guarantee in relation to any Third Party Products contained in the Goods and the Customer shall rely only on any warranty or guarantee provided directly by the manufacturer of the Third Party Products.
(a) If the Customer is a business, except as provided in this clause 5, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
(b) If the Customer is a consumer, the rights contained in this clause 5 are in addition to the Customer’s legal rights in relation to the Goods that are faulty or not as described. Advice about the Customer’s legal rights is available from their local Citizens’ Advice Bureau or Trading Standards office. Nothing in these Conditions is intended to or will affect these legal rights.
6. GOODS RETURN / SERVICES CANCELLATION POLICY FOR BUSINESS CUSTOMERS
Once the Order has been accepted by the Company in accordance with Clause 2.2 Goods and Services cannot be cancelled or returned without the Company’s written agreement.
6.1 Return of Goods. Subject to Clause 6 (above) Goods may be returned:
(a) (i) if the Goods were delivered incorrectly or not required and are returned in perfect condition including packaging, or
(ii) if the Goods are damaged and are returned in the same condition as delivered including packaging where applicable, or
(iii) if the Goods are faulty; and
(b) a goods return authorisation has been issued by the Company and
(c) the Goods are returned within two weeks of delivery. Goods returned outside this period will be subject to a re-stocking charge.
6.2 Goods held for more than three months may only be returned if faulty and under warranty.
6.3 Goods which are perishable, subject to batch control or are bespoke, personalised or special orders are excluded from this returns policy.
6.4 Services may not be cancelled once the Company has begun to supply the Service.
7. CONSUMER RIGHT OF RETURN AND REFUND
This clause 7 applies if the Customer is a consumer.
7.1 Cancellation Rights
If the Customer is a consumer, the Customer has a legal right to cancel a Contract under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 during the period set out in clause (e). This means that during the relevant period if the Customer changes its mind or decides for any other reason that it does not want to receive or keep the Goods, and/or receive the Services, except as provided in this clause 6, the Customer can notify the Company of its decision to cancel the Contract and receive a refund. Advice about the Customer’s legal right to cancel the Contract is available from the Customer’s local Citizens’ Advice Bureau or Trading Standards office.
7.2 However, this cancellation right does not apply in the case of:
(a) any made to measure or custom made Goods and any Goods made to the Customer’s specification or clearly personalised;
(b) any perishable Goods;
(c) any Goods which have a security seal which the Customer has opened or unsealed;
(d) any Goods which become mixed inseparably with other items after their delivery; or
(e) the Company having begun to provide the Services.
7.3 Cancellation Period
(a) The Customer’s legal right to cancel a Contract for Goods starts from the date on which the Company e-mails the Customer to confirm acceptance of its Order, which is when the Contract between the parties is formed. The Customer’s deadline for cancelling the Contract is 14 days after the day on which it receives the Goods. If the Goods are delivered in instalments, the Customer’s deadline for cancelling the Contract is 14 days after the day on which it receives the last instalment of the Goods or the last of the separate Goods ordered. For example, if the Company e-mails the Customer to confirm acceptance of its Order on 1 January and the Customer receives a single item on 10 January, the Customer may cancel at any time between 1 January and the end of the day on 24 January.
(b) The Customer may cancel any order for Services at any time before the start date for the Services set out in the Order.
(c) Once the Company has begun to provide the Services, the Customer may cancel a Contract for Services by providing the Company with at least 30 days’ notice in writing.
7.4 Exercise of Right to Cancel
To cancel a Contract, the Customer just needs to let the Company know that it has decided to cancel. The easiest way to do this is to complete the cancellation form on the Company’s website. If the Customer uses this method the Company will e-mail the Customer to confirm it has received the cancellation form.
The Customer can also e-mail the Company at [email protected] or contact the Customer
Services team by telephone on 01993 777210 or by post to Certikin International Ltd Avenue, 2 Station Lane Industrial Estate Witney Oxon OX28 4FJ to cancel a Contract. If the Customer e-mails or writes to the Company please include details of the order to help identify it. If the Customer sends the cancellation notice by e-mail or by post, then its cancellation is effective from the date it sends the e-mail or posts the letter. For example, the Customer will have given the Company notice in time as long as it gets the letter into the post on the last day of the cancellation period or e-mails before midnight on that day.
If the Customer cancels a Contract for Goods the Company will:
(a) Refund the Customer the price it paid for the Goods. However, please note the Company is permitted by law to reduce its refund to reflect any reduction in the value of the goods, if this has been caused by the Customer handling them in a way which would not be permitted in a shop. If the Company refunds the Customer the price paid before it is able to inspect the Goods and later discovers that the Goods have been handled in an unacceptable way, the Customer must pay the Company an appropriate amount.
(b) refund any delivery costs the Customer has paid, although, as permitted by law, the maximum refund will be the costs of delivery by the least expensive delivery method the Company offers (provided that this is a common and generally acceptable method). For example, if the Company offers delivery of Goods within 3-5 days at one cost but the Customer choose to have the Goods delivered within 24 hours at a higher cost, then the Company will only refund what the Customer would have paid for the cheaper delivery option.
(c) make any refunds due to the Customer as soon as possible and in any event within the deadlines indicated below:
(i) if the Customer has received the Goods and the Company has not offered to collect the items: 14 days after the day on which the Company receives the Goods back from the Customer or, if earlier, the day on which the Customer provides the Company with evidence that it has sent the Goods back. For information about how to return Goods, see clause 7.9;
(ii) if the Customer has not received the Goods, or the Customer has received the Goods and the Company has offered to collect the items: 14 days after the Customer informs the Company of its decision to cancel the Contract.
If a Customer cancels a Contract for Services:
(a) under clause 7.3 (b), and the Company has already started work on the Order by that time, the Customer will pay the Company any costs which the Company has reasonably incurred in starting to fulfil the Order, and this charge will be deducted from any refund that is due to the Customer or, if no refund is due, invoiced to the Customer. The Company will tell the Customer what these costs are when it is contacted by the Customer; or
(b) under clause 7.3 (c), the Company will refund any advance payment made by the Customer for the Services that have not been provided.
7.7 If the Customer has returned the Goods to the Company under this clause 7 because they are faulty or mis-described, the Company will refund the price of the Goods in full, together with any applicable delivery charges, and any reasonable costs the Customer incurred in returning the items.
7.8 Method of Refund
The Company will refund the Customer on the credit card or debit card used by the Customer to pay.
7.9 Obligation to Return
If the Goods have been delivered to the Customer before it decides to cancel the Contract:
(a) then the Customer must return the Goods to the Company without undue delay and in any event not later than 14 days after the day on which it let the Company know that it wishes to cancel the Contract. The Customer can either send the Goods back, or return the items to the Company’s Premises. Certikin International Avenue 2 Station Lane Industrial Estate Witney, Oxon, OX28 4FJ. If the Company has offered to collect the Goods, the Company will collect the Goods from the address to which they were delivered. The Company will contact the Customer to arrange a suitable time for collection;
(b) unless the Goods are faulty or not as described (in this case, see clause 7.7), the Customer will be responsible for the cost of returning the Goods. If the Goods cannot be returned by post, the Company estimates that if the Customer uses the carrier which delivered the Goods to it, these costs should not exceed the sums charged for delivery. If the Company has offered to collect the Goods, it will charge the Customer the direct cost to it of collection;
7.10 Legal Rights in Relation to Faulty Goods
Because the Customer is a consumer, the Company is under a legal duty to supply Goods that are in conformity with the Contract. As a consumer, the Customer has legal rights in relation to Goods that are faulty or not as described. These legal rights are not affected by the Customer’s right of return and refund in this clause 7 or anything else in these Terms. Advice about the Customer’s legal rights is available from the Customer’s local Citizens’ Advice Bureau or Trading Standards office.
8. TITLE AND RISK
8.1 The risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods that the Company has supplied to the Customer in respect of which payment has become due.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery;
(e) notify the Company immediately if it becomes subject to any of the events listed in clause 8.6; and
(f) give the Company such information relating to the Goods as the Company may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
8.4 The Customer shall not pledge or in any way charge by way of security for any indebtedness any Goods which remain the property of the Company, but if the Customer does so all monies owing by the Customer to the Company shall (without prejudice to any other rights or remedies of the Company) become immediately due and payable.
8.5 The Customer shall inform any sub-purchaser that the Goods are sold subject to a retention of title clause and they shall impose a clause in similar terms to the sub-purchaser providing the same rights as in this clause.
8.6 Before title to the Goods passes to the Customer and provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, 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 if:
(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;
(c) 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 that Customer (being a company);
(d) 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 (being a company);
(e) the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
(g) the Customer (being an individual) 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 the Customer’s 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 8.6 (a) to clause 8.6(h) (inclusive);
(j) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
9. SERVICES – INSTALLATION, APPLICATION, REPAIR AND MAINTENANCE
9.1 The Company warrants that it will use reasonable care in performing the Services.
9.2 If any part of the Services is performed negligently or in breach of the provisions of the Contract or these Conditions then, at the request of the Customer (if the request is given within six months of the provision of the Services), the Company will re-perform the relevant part of the Services, always subject to clause 9.4 and clause 15 below.
9.3 The Company 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 Company shall notify the Customer in any such event.
9.4 Any performance dates for the Services set out in the Order or otherwise agreed between the parties, shall be estimates only and time shall not be of the essence for the performance of the Services.
9.5 The Customer shall be responsible for ensuring adequate access to the installation site to enable installation to take place. The Customer shall ensure that the site is ready in all respects for the installation, and has available all appropriate facilities and utilities. Where a specific completion date is required by the Customer, the Company may require access to the site outside normal working hours in which case the Company shall not be liable for any additional cost incurred by the Customer or any third parties.
9.6 The Company reserves the right to charge an additional fee to cover costs incurred if the Customer delays installation by more than one month after the date of installation requested by the Customer in the Order.
10. CUSTOMER’S OBLIGATIONS
10.1 The Customer shall:
(a) ensure that the Order is complete and accurate;
(b) co-operate with the Company in all matters relating to the Services;
(c) provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
(d) provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the premises, where the Goods are to be installed, for the supply of the Services;
(f) 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;
(g) keep and maintain all materials, equipment, documents and other property of the Company (Company Materials) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation; and
(h) attend the premises where the Services are to be carried out when required by the Company.
10.2 If the Company’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 Company 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 Company’s performance of any of its obligations;
(b) the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 10.2; and
(c) the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
11. CHARGES AND PAYMENT
11.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Company’s published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods including Hazardous Goods Charge where applicable and any credit or debit card charges levied by the issuer of the credit or debit card used to pay for the Goods, which costs and charges shall be paid by the Customer when it pays for the Goods.
11.2 Subject to any special terms agreed in writing between the Company and the Customer, payment for the Goods shall be made in clear and full funds prior to delivery of the Goods, and delivery shall not be made until payment has been received in full by the Company.
11.3 The charges for Services shall be on a time and materials basis:
(a) the charges shall be calculated in accordance with the Company’s hourly fee rates available on request;
(b) the Company’s standard hourly fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
(c) the Company shall be entitled to charge an overtime rate of 150 per cent of the standard hourly fee rate for any time worked by individuals whom it engages on the Services on a Business Day but outside the hours referred to in clause 11.3 (b); and double the standard hourly fee rate on any day that is not a Business Day: and
(d) the Company shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Company engages inconnection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials.
11.4 The Company reserves the right to:
(a) increase the price of the Goods and /or Services, by giving notice to the Customer at any time before delivery and/or installation, to reflect any increase in the cost of the Goods to the Company that is due to:
(i) any factor beyond the reasonable control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the Goods.
11.5 Prices quoted are exclusive of VAT which is chargeable at the current rate and the Customer shall additionally be liable to pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
11.6 Any grant of credit must be agreed in advance in writing by an authorised representative of the Company. Full payment is then due by the due date.
11.7 The Company has the right to withdraw credit at any time by giving written notice to the Customer in which case all amounts due to the Company from the Customer shall become immediately due and payable.
11.8 The Company shall invoice the Customer for the Goods and/or Services. The Customer shall pay each invoice submitted by the Company in full and in cleared funds to a bank account nominated in writing by the Company in accordance with any agreed credit terms. Time for payment shall be the essence of the Contract.
11.9 Without limiting any other right or remedy of the Company, if the Customer fails to make any payment due to the Company under the Contract by the due date, the Company shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current National Westminster Bank’s base rate accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
11.10 The Customer shall pay all amounts due under the contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and Services shall be owned by the Company.
12.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Customer.
13.1 Each party undertakes that it shall not at any time disclose to any person any technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature or any confidential information concerning the business, affairs, customers, clients or suppliers of the other party (Confidential Information), except that each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 13.1; and (b) as may be required by law, court order or any governmental or regulatory authority.
13.2 All Company Materials are the exclusive property of the Company.
13.3 No party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under this Contract.
13.4 This clause 13 shall survive termination of the Contract.
14. DATA PROTECTION
15. LIMITATION OF LIABILITY IF THE CUSTOMER IS A BUSINESS
This clause 15 only applies if the Customer is a business.
15.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
15.2 Subject to clause 15.1 the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business opportunity, loss of goodwill or any indirect or consequential loss arising under or in connection with the Contract; and
15.3 Subject to clause 15.1 the Company’s total liability to the Customer in respect of all 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 recovered for the Goods and/or Services. Unless the Customer notifies the Company that it intends to make a claim in respect of an event within the notice period, the Company shall have no liability for that event. The notice period for an event shall start on the day of delivery for Goods and the date of completion for Services and shall expire 12 months from that date or such earlier time as English law dictates.
15.4 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
15.5 This clause 15 shall survive termination of the Contract.
16. LIMITATION OF LIABILITY IF THE CUSTOMER IS A CONSUMER
This clause 16 only applies if the Customer is a consumer.
16.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
(e) breach of the terms implied by section 13 to 15 of the Sale of Goods Act 1979 (description, satisfactory quality, fitness for purpose and samples) and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 (description, satisfactory quality, fitness for purpose and samples); or
(f) defective products under the Consumer Protection Act 1987.
16.2 If the Company fails to comply with these Conditions, the Company is responsible for loss or damage the Customer suffers that is a foreseeable result of the Company’s breach of the Conditions. Loss or damage is foreseeable if they are an obvious consequence of the Company’s breach or if they are contemplated by the Customer and the Company at the time the Company entered into the Contract.
16.3 If the Company is installing the Goods and/or providing Services at a property, the Company will make good any damage to the property caused by the Company in the course of installation or performance. However the Company is not responsible for the cost of repairing any pre-existing faults or damage to the property that the Company discovers in the course of installation and/or performance of the Services.
16.4 The Company only supplies the Goods and/or Services to the Customer for domestic and private use. The Customer agrees not to use the Goods and/or Services for any commercial, business or re-sale purpose, and the Company shall have no liability to the Customer for any loss of profit, loss of business, business interruption, or loss of business opportunity.
17. TERMINATION AND SUSPENSION
17.1 Without limiting its other rights or remedies, the Company shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or to terminate the Contract or any other contract between the Customer and the Company if:
(a) the Customer fails to make pay any amount due under this Contract on the due date for payment; or
(b) the Customer becomes subject to any of the events listed in clause 8.6, or the Company reasonably believes that the Customer is about to become subject to any of them.
18. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods and Services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Company Materials and any Goods which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
19. EXPORT TERMS
19.1 In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
19.2 Where the Goods are supplied for export outside the United Kingdom either directly or indirectly the provisions of this clause 18 shall (subject to any special terms agreed in writing between the Customer and the Company) apply notwithstanding any other provision of these Conditions.
19.3 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
19.4 Unless otherwise agreed in writing between the Customer and the Company, the Goods shall be Ex works and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
19.5 The Customer shall be responsible for arranging testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit. Items missing from containers must be reported as soon as possible and in any event no later than 14 days of receipt of the container. For the avoidance of doubt the risk in the Goods will pass not later than when the Goods are handed over to the first carrier.
19.6 The Customer shall pay the Company for the Goods in full and clear funds at the time of placing its Order or, if the Order exceeds £12,000.00 (Pounds Sterling twelve thousand) in value and, unless otherwise agreed between the parties, the price of any Goods must be secured by an irrevocable letter of credit in a form satisfactory to the Company established by the Customer in favour of the Company immediately upon receipt of the Company’s acceptance of the Customer’s Order and confirmed by a United Kingdom bank acceptable to the Company. The letter of credit shall be for the price payable for the Goods (together with any tax or duty payable) to the Company and shall be valid for six months. The Company shall be entitled to immediate cash payment on presentation to such United Kingdom bank of evidence of the confirmation of the first carrier that it has taken possession of the Goods.
19.7 Charges incurred in respect of the letter of credit shall be for the Customer’s account.
20.1 Company Website:
(a) If requested and in its sole discretion the Company may provide the Customer with an individual password to access the Website. It is the sole responsibility of the Customer to keep this password secure. The Company will accept no responsibility for the misuse of the password and the Customer accepts full liability for orders placed under their password.
(b) Orders placed on the Website are governed in all respects by these Conditions.
(c) The Company reserves the right to change, suspend or withdraw any part of the Website. Access to the Website may be denied at the sole discretion of the Company to any Customer who breaches these Conditions.
(d) The Website and its contents are provided to the Customer on an “as is” and “as available” basis. The Company does not make and expressly disclaims to the fullest extent permitted by law any and all representations or warranties of any kind with respect to the Website and its contents including without limitation its completeness, accuracy, fitness or suitability for any purpose or freedom from viruses.
(e) The Company, its directors, employees and other agents shall not be liable for damages of any kind including without limitation, direct, indirect, special or consequential damages, loss of income or profits, loss of or corruption of data, loss of or damage to property or claims of third parties, arising out of or in connection with the Customer’s use of its Website.
20.2 Assignment and subcontracting:
(a) The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
If the Customer is a consumer:
(i) the Customer may contact the Company for any reason, including because the Customer has any complaints, by telephoning the Customer Services team on 01993777210 or by emailing the Company at [email protected]; and
(ii) if the Company has to contact the Customer to give it notice in writing, the Company will do so by e-mail or by pre-paid post to the address provided in the Order.
If the Customer is a business:
(i) the Customer may contact the Company by telephoning the Customer Services team on 01993777210 or by e-mailing the Company at [email protected];
(ii) if either party wishes to give formal notice of any matter in under or in connection with this Contract to the other party, it shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
(iii) any formal notice under clause 20.3 (ii) shall be deemed to have been duly received if delivered personally, when left at such address or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or 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, on the next Business Day after transmission.
20.4 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
20.6 Third Parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
20.7 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Company.
20.8 No partnership: Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of the other party, or authorise any party to make or enter into any commitments for or on behalf of the other party.
20.9 Governing law and jurisdiction: This 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.