TERMS & CONDITIONS OF SALE
1.1. In these conditions the following words have the following meanings:
"Customer” The person(s), firm or company who purchases the goods from the company;
"Company” Brookeswood Architectural Joinery Ltd;
"Consumer Sale” Any sale where the purchaser of the goods is an individual;
"Contract” Any contract between the company and the customer for the sale and purchase of the goods, incorporating these conditions;
"Delivery Note” The note to accompany the goods on delivery;
"Delivery Point” The place where delivery of the goods is to take place under condition 4;
"Deposit” Twenty five per cent of the price to be paid for the goods as set out in the final schedule;
"Final Schedule” The final schedule to be signed by the customer prior to manufacture of the goods;
"Goods” Any goods agreed in the contract to be supplied to the customer by the company (including any part or parts of them)
1.2. In these conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3. In these conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires
1.4. In these conditions headings will not affect the construction of these conditions.
2. APPLICATION OF TERMS
2.1. Subject to any variation under condition 2.3 the Contract will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2. No terms or conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3. These conditions apply to all the Company’s sales (consumer sales) and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Company. Nothing in this condition will exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4. Each order for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods subject to these conditions.
2.5. No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company and any Deposit required by the Company has been received.
2.6. The Customer must ensure that the terms of its order and any applicable specification are complete and accurate in the Final Schedule.
2.7. Any quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1. The description of the Goods shall be as set out in the Company’s Final Schedule.
3.2. All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
4.1. Unless otherwise agreed in writing by the Company at least seven days prior to despatch of the Goods, delivery of the Goods shall take place at the nearest public highway to the Customer’s address. The Customer must notify the Company at the latest prior to signing Final Schedule of any restricted access for delivery.
4.2. The Customer will take delivery of the Goods within seven days of the Company giving it notice that the Goods are ready for delivery.
4.3. Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.4. If for any reason the Customer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations, the Company may store the Goods until delivery whereupon the Customer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.5. The Customer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for receiving the Goods. The delivery driver is not able or insured to assist with offloading the Goods.
4.6. If the process of offloading Goods takes longer than two hours the Company shall charge the Buyer at the rate of £40 per hour or part thereof or such rate as may reasonably be increased from time to time.
4.7. Additional deliveries may incur an extra charge by the Company.
5.1. The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5.2. The Company shall not be liable for any short or incorrect delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company on the Delivery Note and received by the Company within seven days of receipt of the Goods.
5.3. Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1. The Goods are at the risk of the Customer from the time of delivery.
6.2. Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1. The Goods; and
6.2.2. All other sums which are or which become due to the Company from the Customer on any account.
6.3. Until ownership of the Goods has passed to the Customer, the Customer must:
6.3.1. Hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2. Store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3. Not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4. Maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On
request the Customer shall produce the policy of insurance to the Company; and
6.3.5. Hold the proceeds of the insurance referred to in condition 6.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank
6.4. The Customer’s right to possession of the Goods shall terminate immediately if:
6.4.1. The Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (where the customer is a company) convenes a meeting of creditors (whether formal or informal), or enters into liquidation
(whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
6.4.2. The Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Customer, or (where the customer is a company) is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
6.4.3. The Customer encumbers or in any way charges any of the Goods.
6.5. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.6. The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
7.1. Unless otherwise agreed by the company in writing, the price to be paid for the Goods shall be as set out in the Final Schedule.
7.2. The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to unloading as set out in condition 4.6 and condition 4.7, carriage and insurance all of which amounts the Customer will pay in addition when it is due to pay for the Goods.
8.1. The Customer shall have paid the Deposit on signature of the Final Schedule, the second payment on commencement of production and the balance of the price for the Goods shall be paid to the Company prior to despatch of Goods from the factory.
8.2. In the event that the Customer is not able to accept delivery of the Goods following the Company’s notification that they are ready for despatch, the balance of the price shall become immediately due and payable. The Company reserves the right to charge full storage if the Goods are not delivered within one week of them being ready for despatch to the Customer.
8.3. Time for payment shall be of the essence.
8.4. No payment shall be deemed to have been received until the Company has received cleared funds.
8.5. All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract by the Customer despite any other provision.
8.6. In the event that the Company cancels the Contract the Customer shall be entitled to receive the Deposit or if the Customer cancels the Contract under condition 13 the Customer shall be entitled to receive the Deposit less any expenditure incurred by the Company.
8.7. The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
8.8. If the Customer fails to pay the Company any sum due pursuant to the Contract the Customer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. (Where the customer is a company) the Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.1. Where the Company is not the manufacturer of the Goods, the Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company which will supersede the following warranties.
9.2. The Company warrants that (subject to the other provisions of these conditions) upon delivery, and for a period of 12 months from the date of delivery, the Goods will:
9.2.1. Be of satisfactory quality within the meaning of the Sale of Goods Act 1994;
9.2.2. Be reasonably fit for any particular purpose for which the Goods are being bought if the customer had made known that purpose to the company in writing and the Company has
confirmed in writing that it is reasonable for the Customer to rely on the skill and judgement of the Company.
9.3. The Company warrants that this condition 9.3 applies to:
9.3.1. A material defect which is not characteristic of the material in the structure of the Goods ("Material Defect”) for a period of 10 years from the date of delivery of the Goods; and
9.3.2. Any other material defect which does not affect the structure of the Goods ("Material Non-Structural Defect”) for a period of 12 months from the date of delivery of the Goods.
If within 10 years after delivery a Material Defect or if within 12 months of delivery a Material Non-Structural Defect shall be discovered and such a defect has arisen from faulty
materials employed or workmanship carried out by the Company existing but not discoverable upon inspection at the time of delivery of the Goods (or as the case may be) completion
of the work, the Company shall at its sole option supply replacements or rectify the defective work. For the avoidance of doubt a defect is not a Material Defect or Material Non-
Structural Defect it manifests itself in the brass fitments to the Goods or in the glassware comprised in the Goods.
9.4. The Company shall not be liable for a breach of any of the warranties in condition 9.2 and 9.3 unless:
9.4.1. The Customer gives written notice on the Delivery Note of the defect to the company and confirms it in writing to the Company within seven days of the time when the Customer
discovers or ought to have discovered the defect;
9.4.2. the Company is given a reasonable opportunity after receiving the notice of the defect of examining such Goods and the Customer (if asked to do so by the Company) returns such
Goods to the Company’s place of business at the Company’s cost for the examination to take place there; and
9.4.3. if the Goods are found by the Company to be in satisfactory condition, the Customer will pay for their redelivery and cost of return to the Customer’s premises.
9.5. The Company shall not be liable for a breach of any of the warranties in condition 9.2 and 9.3 if:
9.5.1. 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 Goods or (if there are none) good trade practice;
9.5.2. The Customer alters or repairs such Goods without the written consent of the Company;
9.5.3. There has been normal deterioration or improper or faulty handling, installation or maintenance or defects in or substance to any structure or surface to which the Goods are attached; Or
9.5.4. Glass damage or breakage is not attributable to a manufacturing defect of other fault of the company.
9.6. Subject to conditions 9.4 and 9.5, if any of the Goods do not conform with any of the warranties in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the company so requests, the customer shall allow the company to inspect the goods or the part of such goods which is defective to the company.
9.7. If the Company complies with condition 9.6 it shall have no further liability for a breach of any of the warranties in condition 9.2 in respect of such Goods.
9.8. Any Goods removed and replaced with new goods under condition 9.6 will belong to the Company and any repaired or replacement Goods will be guaranteed for a Material Non-Structural Defect on these terms for the 12 month period.
9.9. The Company will supply a replacement unit free of charge to replace any double glazed unit which fails in service as a result of material defect within 10 years of installation. However, the installation of the replacement unit is the Customer’s responsibility.
10. LIMITATION OF LIABILITY
10.1. Subject to condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
10.1.1. Any breach of these conditions; and
10.1.2. Any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by sections 12 to 15 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3. Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
10.4. Subject to conditions 10.2 and 10.3:
10.4.1. The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price for the Contract; and
10.4.2. The Company shall not be liable to the Customer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11.1. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
11.2. The Company may assign the Contract or any part of it to any person, firm or company.
12. COMPLIANCE WITH LAW AND REGULATIONS
12.1. It is the Customer’s responsibility to comply in every respect with all relevant planning and building regulation requirements, statutes, regulations, bye-laws or other lawful requirements and to obtain all necessary consents, licences, permits or authorities which may be required in connection with any work to be performed pursuant to the Contract.
13. FORCE MAJEURE
13.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of [thirty] days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
14. EXPORT FROM THE UNITED KINGDOM
14.1. THE PROVISIONS OF THIS CONDITION 14 SHALL (SUBJECT TO ANY SPECIAL TERMS AGREED IN WRITING BETWEEN THE CUSTOMER AND THE COMPANY) APPLY.
14.2. THE CUSTOMER SHALL BE RESPONSIBLE FOR COMPLYING WITH ANY LEGISLATION OR REGULATIONS GOVERNING THE IMPORT OF GOODS INTO THE COUNTRY OF DESTINATION AND FOR THE PAYMENT OF ANY DUTIES THEREON.
14.3. THE GOODS WILL BE SOLD EX WORKS, FOB OR CIF AT THE OPTION OF THE COMPANY.
15.1. Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
15.2. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.3. Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
15.4. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
15.5. The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.6. The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
16.1. All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:
16.1.1. (In case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or
16.1.2. (In the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Customer.
16.2. Communications shall be deemed to have been received:
16.2.1. if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
16.2.2. if delivered by hand, on the day of delivery;
16.2.3. if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
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