Terms and Conditions
1 General
1.1 In these Conditions, the following terms shall have the following meanings, unless the context otherwise requires. “Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business; “Company” means Bailey Total Building Envelope Limited (company number 07958901); “Contract” means the agreement between the Company and the Customer for the supply of the Goods in accordance with the Quotation and these Conditions; “Customer” means the customer named in the Quotation; “Goods” means the goods (or any part of them) which are detailed in the Quotation; “Insolvent” means insolvent as defined in sections 113(2) to 113(5) of the Housing Grants, Construction and Regeneration Act 1996 (as amended); “Price” means the price the Customer is to pay for the Goods and, where applicable, the Services as set out in the order acknowledgement issued by the Company (or, where the order acknowledgement does not contain a price, the amount stated in the Company’s Quotation), plus any other amount that becomes due to the Company in accordance with these Conditions; “Quotation” means the quote provided by the Company to the Customer for supplying the Goods and, where applicable, the Services; “Services” means any design support service provided by the Company in relation to the Customer’s goods including the provision of drawings and calculations.
2 Contract formation
2.1 All Quotations are made and all orders are accepted subject to these Conditions. These Conditions apply to the Contract to the exclusion of any other terms and conditions that the Customer seeks to impose or incorporate via its purchase order form or otherwise, or which are implied by trade, custom, practice or course of dealings, even if those other terms purport to provide that the Customer’s own terms shall prevail. Notwithstanding anything to the contrary contained in any order or other form used by the Customer or in correspondence, no variation or alteration of these Conditions shall have any effect unless expressly agreed to in writing by the Company and signed by a director.
2.2 Unless previously withdrawn, all Quotations are open for acceptance within 14 days only from the date thereof. A Customer’s order or acceptance of a Quotation shall only be deemed to be accepted when the Company issues a written acceptance of the order, which shall take the form of an order acknowledgement at which point the Contract shall come into existence.
2.3 The Contract constitutes the entire agreement and understanding between the parties in relation to its subject matter and supersedes all previous agreements (whether written or oral) between the parties relating thereto.
2.4 The Company reserves the right to accept or refuse any order and to cancel any uncompleted order or to suspend delivery if the Customer fails to observe or perform any term of these Conditions.
2.5 Unless otherwise agreed in writing, any descriptions and illustrations in the Company’s sales literature or samples are intended merely to present a general idea and there shall not be constituted thereby a sale by description or sample nor shall they be deemed to constitute representations. The Company reserves the right to correct any typographical or clerical errors appearing in the confirmation of order.
2.6 The Company’s employees or agents are not authorized to make any representations or advice concerning the Goods or Services unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not and shall not rely on any such representations and waives any claim for breach of a condition, breach of warranty, negligent misrepresentation or misstatement based on any representation or advice which is not expressly set out in the Contract.
2.7 To the extent the Customer believes that the terms of an order acknowledgement are inaccurate, it must query them in a writing delivered to the Company within a period of 48 hours from receipt of the order acknowledgement. The Customer acknowledges that should it fail to query an order acknowledgement within such period, it shall not be entitled to vary or contradict the terms of that document.
3 Design and copyright
3.1 Where the Company is responsible for design of the Goods, the Company shall exercise the reasonable skill and care to be expected of a duly qualified professional designer undertaking the design of goods similar in scope and character to the Goods. Where the Company is responsible for carrying out the Services, in the performance of the Services the Company shall exercise the reasonable skill and care to be expected of a duly qualified professional designer undertaking services similar to those hereby undertaken by the Company.
3.2 All drawings, calculations or other designs supplied by the Company or by its servants, sub-contractors and/or agents remain the property of the Company. The Customer is hereby granted a non-exclusive license, revocable upon any breach of these Conditions, to use the drawings only as may be strictly necessary for the use and enjoyment of the Goods contracted for. The Customer shall at all times acknowledge the Company as the author of the drawings and shall not remove, efface or alter any copyright notice attached thereto. The Customer shall indemnify the Company against any claims of liability in respect of any infringement of a patent or registered design resulting from compliance with the Customer’s express or implied instructions.
3.3 If in the carrying out of the Services the Company is to follow drawings or a specification submitted by the Customer, then the Customer shall be liable to indemnify the Company against all loss damages costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for any resultant infringement of third party intellectual property rights.
3.4 The Company reserves the right to make any changes in the specification of the Services or Goods which are required to avoid any such infringement or to conform with any applicable safety or other statutory requirements or which do not materially affect their quality or performance.
4 Price and payment
4.1 The Company reserves the right, by giving notice to the Customer at any time before delivery or collection, to increase the Price to reflect any increase in the cost to the Company of labour, materials or other overheads, any governmental legislation, any changes in taxation or excise duty, any fluctuations in currency exchange rates, any change in delivery dates which is requested by the Customer or any delay caused by any instructions of the Customer or any failure of the Customer to give the Company adequate information or instructions.
4.2The Price excludes any applicable value added tax, or similar tax which the Customer shall be additionally liable to pay to the Company at the prevailing rate.
4.3 The order acknowledgement issued by the Company shall set out the agreed payment option. The Company may require payment to be made in any of the following ways:
4.3.1 payment of the Price to be paid in full in advance of the Company preparing the Good or carrying out the Services;
4.3.2 if a credit facility can be approved in line with the Company’s requirements. the Company shall be entitled to invoice the Customer for the Goods and Services at any time after the Company has notified the Customer that the Goods are ready for collection or (as the case may be) the Company has delivered (or, in the case of a failed delivery, attempted to deliver) the Goods and the Customer shall pay each invoice submitted by the Company within 28 days of the date of the invoice.; or
4.3.2 a deposit payment of 30% of the Price shall be made by the Customer in advance of the Company preparing the Good or carrying out the Services, 60% of the price shall then be paid by the Customer before delivery of the Goods and the final 10 shall be paid to the Company within 30 days of the Company notifying the Customer that the Goods are ready for collection or (as the case may be) the Company has delivered (or, in the case of a failed delivery, attempted to deliver) the Goods.
4.4 The time for payment shall be of the essence of the Contract.
4.5 Payment shall not be delayed if the Goods are not used nor shall payment be delayed pending settlement of any claim against the Company. All amounts due under the Contract 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).
4.6 If the Customer fails to make payment in accordance with clause 4.3, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to simple interest on the amount unpaid at the rate of 8% per month or part month above the base rate for Barclays Bank Plc until payment in full is made. Such interest shall accrue on a daily basis from the due date for payment until actual payment of the overdue amount, whether before or after judgment.
5 Delivery and collection
5.1 The Company may either deliver the Goods to the agreed location of delivery or allow the Customer to collect the Goods. Any dates quoted for delivery or collection are estimates only and the time of delivery shall not be of the essence of the Contract. The Company shall not in any event be liable to compensate the Customer in damages or otherwise for any non-delivery or late delivery of Goods or failure to have the Goods available to collect by the estimated date or for any loss consequential or otherwise arising therefrom. 5
.2 If the parties have agreed that the Good will be collected, the Goods shall be collected by the Customer at the Company’s premises within a reasonable period of time after the Company has notified the Customer that the Goods are ready for collection.
5.3 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall be treated as a separate contract. Any defect or delay in delivery in respect of one or more instalments shall not entitle the Customer to cancel any other installment or treat such as a severable breach giving rise to a claim for compensation.
5.4 The Company does not undertake to deliver any Goods over roads or ground which it in its discretion considers to be unsuitable. If a vehicle used for performing the Contract delivers a load to or from a place situate off the public highway, the Customer shall be solely responsible for any injury, damage or accident occasioned by reason of such delivery whether to the Goods or the Company’s employees or property and shall indemnify the Company in respect thereof.
5.5 In the event of any Goods or any packing or container being delivered and deposited whether on the public highway or elsewhere the Customer shall be responsible for compliance with all regulations and for all steps which need to be taken for the protection of persons or property in relation to such Goods, packing or container and shall indemnify and hold harmless the Company (which shall have no duty to mitigate) in respect of all or any costs claims losses or expenses which it may incur as a result of such delivery as aforesaid.
6 Risk and Passing of Property
6.1 The Goods are at the entire risk of the Customer from the time the Company notifies it that they are available for collection or in the case of Goods to be delivered, at the time of delivery or, if the Customer fails to take delivery of the Goods, the time when delivery was intended to occur.
6.2 Notwithstanding delivery or collection and the passing of risk in the Goods, the property in all goods supplied shall not pass to the Customer until the Company receives payment in full for the Goods.
6.3 Until such time as the property in the Goods passes, the Customer shall hold them as the Company’s fiduciary agent and bailee, and shall:
6.3.1 keep them separate from all other goods held by the Customer so that they remain readily identifiable as the Company’s property; and
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from delivery;
6.3.4 notify the Company immediately if it becomes Insolvent;
6.3.5 give the Company such information as it may reasonably require from time to time relating to the Goods.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business, so long as it does so as principal and not as the Company’s agent and title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Goods passes to the Customer, the Customer becomes Insolvent , then, without limiting any other right or remedy the Company may have: (a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and, (b) the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises where the Goods are stored and repossess them.
7 Services and Goods - quality and limitations of liability.
7.1 The quantity and description of and any applicable specification for the Goods and/or Services shall be as set out in the Quotation. The suitability of the Goods is for the Customer to determine.
7.2 The Company warrants that on delivery the Goods shall:
7.2.1 conform with their description and any applicable specification set out in the Quotation;
7.2.2 be free from material defects in manufacture; and
7.2.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
7.3 The Customer shall inspect the Goods immediately on delivery thereof and shall within 24 hours from such delivery give notice to the Company in writing of any shortage on delivery or damage in transit. If the Customer fails to give such notice, the Customer shall be deemed to have accepted the Goods accordingly.
7.4 In the event of a breach of clause 7.2 but subject to clause 7.5, the Company shall, at its option deliver replacement Goods or credit or refund the Price (or a proportionate part of the Price) of the defective Goods if the Customer gives notice in writing to the Company that some or all of the Goods do not comply with the warranty set out in clause 7.2 within 7 days from the date of delivery or, where the defect or failure was not apparent on reasonable inspection, within a reasonable time after discovery of the defect or failure but in any event within one month of such date. Provided always that the Customer shall (at its own cost) return the Goods to the Company’s premises for inspection.
7.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
7.6 The Services shall be performed within a reasonable period of time but time shall not be of the essence for performance of the Services. If the Customer alleges that there is any defect in the Services, it must notify the Company in writing within 1 month of the date of completion of the Services and, if the Company agrees that there is a defect in the Services, the Company shall rectify the same within a reasonable time thereafter.
7.7 The Company is entitled to assume that any drawings, calculations, specifications or other documents provided to them by or on behalf of the Customer are correct and the Company shall have no liability to the Customer for any defect or issue that arises as a result of the Customer requiring the Services and/or Goods to comply with any drawings, calculations, specification or other documents provided to the Company by or on behalf of the Customer and the Company shall also be under no liability in respect of any defect arising from fair wear and tear, accidental or willful damage, negligence, abnormal working conditions, failure to follow the Company’s or any manufacturer’s instructions, misuse or alteration.
7.8 Nothing in these Conditions shall limit or exclude the Company’s liability for (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; (d) defective products under the Consumer Protection Act 1987; or (e) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability. Without prejudice to the foregoing:
7.8.1 the Company shall under no circumstances be liable to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of use, loss of contracts with any third party, or any indirect or consequential loss arising under or in connection with the Contract;
7.8.2 the Company shall have no liability whatsoever for any loss or damage sustained by the Customer (including for the avoidance of doubt any liability to any third party) as a result of any delay in the performance of the Company’s obligations under the Contract; and
7.8.3 the Company’s total liability to the Customer for all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed a sum equivalent to 10% of the Price.
7.9 Notwithstanding any other provision of these Conditions, and without prejudice to any provision in these Conditions whereby liability is excluded or limited to a lesser amount, the liability of the Company under or in connection with the Contract, shall not exceed the amount, if any, received by the Company by way of indemnity against the claim or claims in question under the professional indemnity insurance taken out by the Company and in force at the time that the claim or claims, or (if earlier) circumstances that may give rise to the claim, is or are reported to the insurers in question.
8 Termination and suspension
8.1 Without affecting any other right or remedy available to it, the Company may terminate the Contract for any reason by giving the Customer not less than five Business Days’ written notice.
8.2 The Company shall have the option, without prejudice to any of its other rights or remedies, by notice in writing to the Customer to terminate the Contract immediately if:
8.2.1 the Customer commits a material breach of the Contract or of any other of its obligations to the Company (which for the avoidance of doubt shall include the Customer failing to pay any amount due under the Contract in accordance with clause 4.4); or
8.2.2 the Customer becomes Insolvent;
8.2.3 the Company reasonably believes that the Customer is about to become subject to any such insolvency events; or
8.2.4 the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
8.3 Without limiting its other rights or remedies, the Company may suspend provision of the Goods or Services under the Contract or any other contract between the Company and the Customer if the Customer becomes subject to any of the events listed in clauses 8.2.2 to 8.2.4 or the Company reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract in accordance with clause 4.4.
8.4 On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest. In respect of Goods and/or Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt.
8.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
8.6 Clauses which expressly or by implication are intended to continue in force on or after termination of the Contract shall continue in full force and effect.
8.7 In the event of insolvency or administration of the Customer the directors, partners and/or shareholders shall be jointly and severally held personally liable to re-imburse the Company.
9 Cancellation
9.1 No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify and hold harmless the Company in full (with no duty to mitigate) against all loss (including loss of profit), costs (including the cost of all labour and materials used) damages charges and expenses incurred by the Company as a result of cancellation.
10 Variations
10.1 Variations in the Goods and for Services described in the Quotation will only be undertaken at the discretion of the Company and upon instructions confirmed in writing by the Customer. Oral instructions will not be accepted without confirmation in writing. The price of the additional Goods or Services will be based upon costs prevailing on the date of instruction.
11. Assignment and sub-contracting
11.1 The Company shall be entitled without prior written consent of the Customer to assign, transfer, sub-contract or in any manner make over to any third party the benefit and/or burden of the Contract. The Customer shall not assign or charge the benefit of the Contract or any right arising under it.
12. Notices
12.1 Any notice required to be given or served under the Contract shall be in writing and shall be delivered by hand or sent by first class post or sent by email to the address of the relevant party as stated in the Quotation or on that party’s business correspondence.
12.2 Notices shall be deemed to have been received, if delivered by hand, on the date and at the time of delivery (as evidenced by a signed delivery receipt), or if sent by first class post, at 9:00am on the second Business Day after the date of posting. Notices sent by email shall be deemed to be received on the same Business Day that the email is sent. If the email is sent after 5:00pm or not on a Business Day, the notice shall be deemed to be received on the next Business Day. The provisions of this clause 12 shall not apply to the service of any proceedings or other documents in any legal action.
13. General
13.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
13.2 A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.3 No failure or delay by the Company to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.4 If any court or other competent authority finds that any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, 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.