a. The Company offers Goods and Services for sale subject to these conditions of Sale which shall apply to and be incorporated into all contracts made by the Company for the sale of Goods and/or Services to the exclusion or any other terms and conditions. The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, repre¬sentation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract. In the case of consumer transactions, the Terms and Conditions do not affect the consumer’s statutory rights.
b. No servant or agent of the Company has the authority to modify, amend or exclude any of these Terms and Conditions, to sell or enter into an agreement to sell otherwise than exclusively subject to these Terms and Conditions or to make any representation or warranty (save as provided herein) without the express authority in writing of a Director of the Company, and no modification or amendment or exclusion shall be binding on the Company unless otherwise agreed in writing by a Director of the Company. Any such concession , by way of modification, exclusion or amendment of any paragraph in part or in whole shall not affect the validity or enforceability of the remaining provisions and shall not be construed as a waiver of any right or remedy available to the Company.
c. In the event of invalidity of any of these conditions or any paragraph or part thereof the same shall be severed and shall not affect the validity or enforceability of the remaining provisions.
d. Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
e. These Terms and Conditions replace all previous Terms and Conditions by the Company and shall be read in conjunction with any special conditions of the Company’s quotation.
f. The Buyer shall not disclose to any third party save for the purpose of performing this or any contract between the Company and Buyer, or pursuant to legal obligations, details of this or any other contract between the Company and Buyer.
In these Terms and Conditions the following shall have the following meanings:-
a. ‘The Company’ means the Vulcan Cladding Systems Limited, its servants or any authorised personnel.
b. ‘The Goods’ or ‘Services’ means products, materials or services supplied by the Company.
c. ‘The Buyer’ means the person, firm, business, company or organisation agreeing to purchase Goods or Services pursuant to these Terms and Conditions or with whom the Contract is made.
d. ‘The Contract’ means the Company’s quotation for the sale or supply of Goods or Services and any documents referred to therein, these Terms and Conditions, the Buyer’s order for the Goods or Services and the Company’s acknowledgements thereof, and if there shall be any inconsistency between the documents comprising the Contract, the acceptance of order by the Company shall take precedence.
The headings to these Conditions shall not affect their construction or interpretation.
4. Quotations and Prices
a. All prices quoted are exclusive of V.A.T which will be charged at the applicable rate.
b. The price of the Goods and/or Services will be that agreed at the time of acceptance of order.
c. Statements in the Company’s adverts, catalogues, literature or price lists etc. shall not be deemed to be an offer to sell Goods and/or Services.
d. Quotations and estimates issued by the Company shall not constitute an offer to sell Goods or Services. The Contract shall only come into being on the Company accepting an order from the Buyer in writing in accordance with these Terms and Conditions.
e. The Company retains the right to withdraw and offer at any time by notice to the offeree.
f. The Company further retains the right to revise the price of Goods and Services should the quantities, sizes, specifications or circumstances differ from those allowed for in the quotation.
g. Panel prices are based on dimensions taken to the next full 25mm above the finished panel size. Dimensions under 300mm shall be calculated as the full 300mm for pricing purposes.
h. The Company’s prices are based on sizes, quantities and specification as requested by the Buyer whether in drawings, bills of quantities, schedules and specifications and shall be accepted by the Company as correct. The Company shall not accept any liability for the same whether they are in fact correct or not.
i. The Company reserves the right to alter or withdraw any price list at any time without prior notice to the Buyer.
a. Notwithstanding any quotation, estimate, tender or price list issued by the Company, no order shall be binding unless and until it has been accepted by the Company in writing.
b. The receipt by the Company from the Buyer of any order or further instruction pursuant to the same shall be deemed to be acceptance by the Buyer of these Terms and Conditions.
c. The Company retains the right to accept or refuse any order given further to provision of any quotations, estimate, tender or price list for any reason and in the event of such a refusal the Company shall be under no liability for damages or expenses of any kind.
d. The Buyer may not cancel any order or addendum to the same except by prior agreement with the Company upon such terms which reimburse the Company for all costs, expenses and charges incurred including the costs of labour, mould making and purchase of raw materials in respect of the order up to the date of receipt of written notification of cancellation of the same from the Buyer.
e. Should any Goods or Services to be supplied by the Company be dependant in part or in whole on a third party supplier, in the event of cost increases by the third party or withdrawal of any offer to supply, the Company reserves the right to notify the Buyer in writing in respect of any Goods or Services not delivered or not being able to deliver them, without liability for any loss or expense incurred by the Buyer.
a. Unless the Buyer has a credit account with the Company all Goods and Services must be paid in full prior to manufacture or delivery at the Company’s discretion, unless otherwise agreed in writing by a person authorised by the Company. Terms may include cash with order, against Pro Forma invoice or cash on delivery.
b. Any Goods or Services supplied to a Buyer holding a credit account with the Company must be paid within the terms of the account unless otherwise stated in the contract or sale agreement. No discount shall be allowed unless the agreed payment terms are complied with.
c. The Company retains the right to set a maximum amount of credit for an account and may at any time close any account at its sole discretion without explanation, the balance of the account being payable in full immediately in such an event.
d. Time of payment is of the essence of the Contract and failure to pay within the time specified shall entitle the Company to suspend further performance of the Contract upon the expiry of 7 days written notice, enabling the Company to cancel all or part of any remaining Contract(s) with the Buyer without liability or prejudice to any other remedy available to the Company.
e. All amounts due under the Contract from the Buyer to the Company shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
f. The Company is entitled to charge interest on overdue account at the rate of 2% per calendar month or part thereof, accruing from day to day on all or any sums which remain payable by the Buyer until such time as payment is made in full.
g. The Company may at its discretion withhold delivery of Goods or Services whether under the same or other contract, without any liability whatsoever to the Buyer if the account is overdue, until full payment of all monies due is banked and cleared.
h. The Company shall be entitled to recover all expenses and costs incurred in collecting or recovering overdue sums and the Buyer hereby agrees to indemnify the Company in respect of all such expenses and costs.
i. Where Goods or Services are supplied in instalments the Buyer must pay for each instalment within the agreed terms.
j. The Company shall at any time be entitled to appropriate any payment made by the Buyer in settlement of any debt of the Buyer as the Company in its absolute discretion thinks fit, notwithstanding any purported appropriations the contrary by the Buyer.
k. The Buyer shall have no right to set-off any monies due on one Contract against any payment due on any other contract whatsoever.
l. Goods and Services shall be paid for within the terms of this agreement whether or not the Buyer is in turn paid for the use, ownership or installation of the Company’s Goods or Services prior to the date of payment to the Company.
7. Retention of Title
a. Title to the Goods shall remain the sole and absolute property of the Company as legal and equitable owner until all monies due according to the Contract are paid for in full in cash or cleared funds.
b. Until title to the Goods has passed in accordance with clause 9a. above, the Buyer shall:
i) store such Goods separately from all other goods held by the Buyer so that they remain readily identifiable at the Buyer’s property;
ii) not remove, deface or obscure any identifying mark or packaging on or relating to such Goods; and
iii) maintain such Goods in good condition and keep them insured on the Company’s behalf for their full price against all risks with an insurer that is reasonably acceptable to the Buyer.
c. If the Buyer shall be in breach of contract through default, non-payment or other means, the Company shall retain the right at its sole discretion to repossess and resell the Goods.
d. The Company shall be entitled to all rights of access to the Buyer’s premises, stores and sites and upon any kind of building upon which the Goods are situated to enforce the Company’s rights under these Terms and Conditions. The Buyer shall render all reasonable assistance to enable the Business to carry out the same.
e. The Buyer shall have no power to create any charge lien or other encumbrance whatsoever on the Goods or any part thereof so long as the property and legal ownership in the same shall remain with the Company.
a. The risk of damage and/or loss and expense or cost of replacement passes to the Buyer under the following circumstances:-
i) when Goods cease to rest on the Company’s delivery vehicle when being delivered to the Buyer’s site or premises.
ii) when goods are collected by the Buyer from the Company’s factory depot or site compound or upon the expiry of seven days’ notice that the Goods will be ready for collection from the before mentioned places, whichever event occurs earlier.
iii) when the Company is requested by the Buyer to store completed Goods,(or materials marked and set aside for the future production of products or Goods vested off-site) or to delay delivery, for any purpose whatsoever.
iv) when Services are completed on the Buyer’s premises or site.
v) when Services are completed on the Company’s premises on pre-fabricated items and upon the expiry of seven days’ notice to the Buyer of the completion date.
vi) the default or breach of the Contract in any way by the Buyer.
b. The above Clauses are notwithstanding that the Company retains title to the Goods in accordance with clause 7 above.
a. Delivery shall be by means of collection, despatch or any other means of supply as set out in the order.
b. Any date or dates named by the Company for supply or delivery of the Goods or Services shall not be of the essence of the Contract and are given as an estimate only. Failure to make delivery shall not be deemed to be a breach or repudiation of any Contract and the Company shall not be liable for any loss, delay or damage sustained by the Buyer as a result of any delay in delivery.
c. The Company reserves the right to supply or deliver in instalments and in such cases the failure of the Company for on delivery shall not vitiate the Contract as a whole.
d. The Buyer shall be liable for any cost or expense incurred by the Company due to any request or action by the Buyer which shall cause the Company to make more deliveries than the number included for in the order.
e. If the Buyer is unable to or fails to accept delivery or collection of the Goods or Services at the time when they are ready for despatch or requests a delay in a scheduled delivery date the Company reserves the right to store the Goods at the risk of the Buyer from the notified date of delivery or supply and to charge to the Buyer any costs incurred at the Company’s discretion for additional handling and storage.
f. The Company shall have no liability with regard to the loss or expense caused by late delivery due to the Buyer providing inadequate, misleading or otherwise faulty details or information or filing to provide the necessary information in time.
g. Delivery shall be to the place specified in the order unless the Company shall be otherwise notified in writing 5 working days prior to delivery to the nearest point on a road suitable in the driver’s opinion for the delivery vehicle.
h. The Buyer shall provide all necessary labour or plant to unload the Goods at its own expense and liability.
i. A person duly empowered by the Buyer shall be in attendance at the time of delivery to examine and sign for receipt of the Goods.
j. If, notwithstanding condition 9.b a stated delivery date has a contractual effect and the Company fails to deliver the Goods by such date, any liability whatsoever of the Company whether in Contract, tort or otherwise howsoever and whether or not resulting from any negligence of the part of the Company, in respect of or in connection with such failure shall not exceed 2% of the purchase price of the portion of the Goods or Services delivered late for each week of the delay, and shall not, in any event, exceed in total 20% of the price of the portion of the Goods and Services delivered late.
10. Storage and Handling
The Buyer undertakes that the Goods will be transported, installed, used, kept, stored, maintained and treated in strict compliance with all applicable requirements of statue, statutory rule or order, regulation or other instrument of law, relevant standard or Code of Practice and furthermore with any relevant instructions of the Company and will notify any subsequent purchaser of such instructions. Instructions are available from the Company on request.
11. Defective, Damaged or Undelivered Goods
a. The Buyer shall note on the Delivery Note and advise the Company offices immediately verbally and within three days in writing of any defects, damage or shortage to Goods or materials.
b. When Goods or materials are set aside and stored at the Company’s premises at the request and risk of the Buyer, the Buyer shall be given 7 days’ notice to examine such Goods or completed materials, and thereafter the above shall apply.
c. Without prejudice to condition 9, no claim in respect of non-delivery or damage in transit will be entertained by the Company unless condition 11a is complied with.
d. The Company shall cease to be liable for any damage to Goods after they have ceased to rest on the vehicle on which they are delivered or when they are placed on the Buyer’s collecting vehicle.
e. The Company shall not be liable for any claim in respect of consequential loss or expense incurred by the Buyer resultant from Goods or Services being defective or delayed.
f. The Company reserves the right to remedy or replace such items as are accepted to be defective. This action will not constitute annulment of the Contract.
g. The Buyer shall prevent further use or distribution of any suspected defective or damaged Goods unless subsequently advised to the contrary by the Company in writing.
12. Force Majeure
If the Company is prevented, hindered or delayed, whether directly or indirectly from making a delivery or supply of Goods or Services or any part thereof in accordance with the terms of the Contract or from otherwise performing such Contract or any part thereof by reason of an act or acts of God, war, whether declared or not, terrorism, embargo, riot, strike, lock-out, trade dispute, fire, breakdown, inclement weather, interruption of transport, government action, delay in delivery or non-delivery to the Company of any Goods, Services or material or by any cause whatsoever (whether or not of like nature to those specified above) outside its control, it shall be under no liability whatsoever whether in contract, tort, or otherwise howsoever to the Buyer who shall be notified in writing by the Company, either to cancel the Contract or without liability, to extend the time for such performance by such a period as is reasonable under all circumstances.
In the event of repeat or part orders, the Company will use its best endeavours to obtain the nearest possible colour match. The Company cannot guarantee perfect matching in such cases due to many factors beyond its control. Colours shown on the Company’s colour cards and literature are approximate only due to printing tolerances, and no responsibility can be accepted for slight differences compared to the colour of the product.
14. Warranty and Guarantee
a. The Company warrants that all Goods are manufactured with all reasonable care and skill in accordance with the recommendations of the producers of the raw materials, and the specification outlined in the Contract.
b. The Company shall replace, free of charge, any Goods which are found to contain any significant faulty workmanship or raw materials. The Company shall not be liable for any costs beyond the replacement of the particular Goods concerned or alternatively for any cost in excess of the purchase price of the Goods.
c. Performance of condition 14b shall discharge the Company’s liability in entirety under this warranty.
d. The above warranty is conditional upon the following:-
i) the Buyer complying with condition 10 and 11a
ii) the Company being afforded reasonable opportunity to inspect the Goods within fourteen days of receipt of notice.
iii) the Buyer returning the defective Goods at his own expense if requested to by the Company, until such time as Company agrees liability for the defect whereupon the Company will refund the cost of transport.
e. Some Goods supplied may be subject to and covered by warranties provided by the third-party manufacturer thereof. Details of the manufacturer’s warranties and related conditions shall be available upon on request. The Company’s only liability is to pass through the benefit of any such applicable manufacturer’s warranties to the Buyer so far as it is legally able to do so.
a. The Company provides all advice etc. with all reasonable care and skill but shall be under no liability whatsoever to the Buyer for any loss, expense or damage in Contract, tort or otherwise to the Buyer for any loss expense or damage in negligence of the Company (including any liability for death or personal injury resulting from negligence) for or arising out of any advice, design, information, opinion or statement etc. given or made by the Company and whether the same be oral or in writing and all conditions, warranties and other terms whether express or implied, statutory or otherwise, inconsistent with this condition are hereby excluded. In particular and without prejudice to the generality to the foregoing:-
i) The Buyer enters into any Contract with the Company on the basis that he relies upon his own or his consultants’ or advisers’ skill and judgement and not in reliance upon any advice, information, opinion etc. given by the Company.
ii) The Buyer is responsible for determining whether the Goods ordered are fit for any purpose for which they may be required.
16 Buyers’ and Company’s Drawings, Specifications etc.
a. The Company shall not be liable for any inaccuracies or inadequacies of detail, design or substance of Goods or Services arising out of conformity to drawings, details, specifications, bills of quantities etc. supplied by the Buyer , or for any costs or expenses arising from the same, which shall be reimbursed on an indemnity basis by the Buyer.
b. Where the Buyer is to provide the above mentioned information he shall supply the same in reasonable time to enable the Company to deliver within the specified period.
c. The Company retains the right to alter the exact specification of the Goods which do not materially affect the usefulness, quality or performance of the Goods supplied, or where the specification must comply with any overriding safety or statutory recommendation or requirement notwithstanding the provisions of condition 16a.
d. The Buyer will fully indemnify the Company against any costs, expense or damage incurred by the Company due to any changes to the shape, size or specification made or caused by the Buyer after acceptance of the order and the Contract being formed in accordance with these Terms and Conditions.
e. The Buyer shall be responsible for providing correct detail, specifications, sizes etc. to enable the Company to quote. The Company accepts no liability under any circumstances should this information be incorrect.
17. Limitation of Liability
a. Nothing in these Terms and Conditions shall limit or exclude the Company’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors.
b. Subject to clause 17a. above, any liability to the Company in regard of any Goods or Services supplied howsoever arising shall be limited to the replacement of the same or full refund of the purchase price at the Company’s discretion.
c. The Company shall under no circumstances whatever be liable to the Buyer, 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.
a. Without prejudice to any other rights of the Company, the Buyer agrees to indemnify the Company and to keep the Company at all times fully indemnified from and against all liabilities, actions, proceedings, judgements, awards and damages whatsoever and howsoever arising and the costs thereof (including, without prejudice to the generality hereof, the legal costs of the Company on an indemnity basis in connection with any of the foregoing) arising directly or indirectly:-
i) As a result of or in connection with any breach or non-performance of any of the Buyer’s obligations or warranties under or in relation to the Contract.
ii) As a result of or in connection with any conduct of the Buyer, it’s servants or agents in connection with the Contract.
iii) In respect of any actual or alleged infringement of patent, registered design, trade mark, design right, copyright or other intellectual property right, as a result of the Goods supplied or worked on complying with the particular design or specification of the Buyer or as a result of any act of the Buyer in relation to any Goods supplied or worked on.
19. Default and Insolvency of the Buyer
a. Under the following circumstances the Company shall be entitled without prejudice to any other right or remedy to cancel the Contract or suspend any further services, manufacture or deliveries under the Contract without liability and if Goods have been delivered but not paid for the full price of the same shall immediately become due and payable notwithstanding any previous terms or agreement:-
i) the Buyer making any arrangement or entering into negotiations regarding any such arrangement with its creditors or becoming under any administrative or winding up order or becoming insolvent in bankruptcy or liquidation.
ii) the appointment of a receiver for any assets or property of the Buyer.
iii) the Buyer ceasing or threatening to cease to carry on business.
iv) the Company reasonably suspecting or ascertaining that one or any of the before mentioned events is likely or about to occur to the Buyer and notifying the Buyer in writing accordingly.
b. Furthermore in the event of the above circumstances transpiring:-
i) the Buyer’s right to possession and right to resell the Goods shall cease immediately.
ii) the Company may enter any premises where its Goods are stored or are reasonably believed to be stored and repossess the same without prejudice to the obligation of the Buyer to purchase the Goods.
20. Buyer’s Undertaking
The Buyer acknowledges that before entering into an agreement to purchase Goods or Services from the Company it has expressly or by placing an order impliedly represented and warranted that:-
i) it is not insolvent and has not committed an act of bankruptcy.
ii) being a limited company with limited or unlimited liability it knows of no circumstances which would entitle a debenture holder, secured creditor or any other person to appoint a receiver to petition for its winding up or to exercise any other rights over or against its assets.
iii) the sole proprietor, partners or directors of the Buyer, whether a limited or unlimited Business shall be personally liable for any monies which may be outstanding to the Company should the Buyer cease trading or become insolvent or bankrupt or enter in administrative receivership without prejudice to any other rights of remedy which the Company has.
a. The Company retains the right to sub-contract or assign the Contract in part or in whole to any person, firm, business or company.
b. The Buyer shall not assign or transfer any contract pertaining to these Terms and Conditions or the benefit thereof to any other person, firm, business or company whatsoever.
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
A waiver of any right under the Contract or law 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 the Company 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 prevent or restrict its further exercise of that or any other right or remedy.
24. No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
25. Governing Law
a. The Contract shall be deemed to have been made in England and shall be subject on all respects to and governed by and construed in English Law.
b. Any claim or dispute arising out of the Contract shall be subject to the exclusive jurisdiction of the English Courts unless the Company exercises its right to refer any matter of dispute to arbitration by a qualified arbitrator.