Terms and Conditions of sale – Belfry Façade Systems Limited and associated and subsidiary companies
These terms and conditions (“Conditions”) set out in this document as amended from time to time in accordance with this document govern the sale of goods including any parts of them (“Goods”) of the Goods and/or services (“Services”) by Belfry Façade Systems Limited or any subsidiary or associated company (“Company”) to the person or firm who purchases the goods and/or services (“Customer”) from the Company as stated on the Company’s written quotation for Goods and/or Services which is accepted by the Customer or the Customer’s order for Goods and/or Services which is accepted by the Company by way of sales order acknowledgement and or other written agreement or as the case may be (“Sales Order Acknowledgement”). These conditions apply to all quotations and Sales Order Acknowledgement to the exclusion of any other terms that the Customer seeks to impose or which are implied by trade, custom, practice or course of dealing.
1. INTERPRETATION
(a) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes emails.
(d) A reference to Business Days refers to Monday to Friday (excluding the usual bank holidays in England and Wales).
(e) These terms and conditions are made only in the English language.
2. BASIS OF CONTRACT
2.1 The customers order constitutes an offer by the Customer to purchase the Goods and/or Services which shall only be deemed accepted when the Company issues written acceptance in the form of a Sales Order Acknowledgement which links or states that these Conditions apply on which date the contract for the supply of Goods and Services shall come into existence (“Contract of Sale”)
2.2 A quotation by the Company is not an offer and is only valid for 20 Business Days from the date of issue (or such other time period stated on the quotation) and may be withdrawn by the Company within such period at any time.
2.3 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.4 Any samples, drawings or advertising produced by the Company and any illustrations contained in the Company’s catalogues or brochures are produced for the sole purpose of giving the general character of the Goods referred to in them. They shall not form part of the Contract of Sale nor have any contractual force. No Contract of Sale shall be deemed to be a sale by sample and the Customer shall have no claim if the colour or composition of the bulk supplied fails to correspond with the sample.
2.5 Any illustrations, performance details examples of installations and methods of assembly and other technical data issued by the Company is provided for general guidance only and forms no part of the Contract of Sale unless accepted by a Director of the Company in writing.
2.6 The Company will only agree to a cancellation of a Sales Order Acknowledgement if all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other costs, loss or damage resulting from such cancellation will be paid by the Customer to the Company. If the Customer returns Goods for any other reason than faulty and/or damaged, the Customer must contact the Company and the Company will then advise how to effect a return. Goods must be returned to the Company within seven days of delivery, for a refund and the Goods must be received by the Company in a saleable condition. There will be a restocking fee of 25% and delivery and return charges will not be refunded.
3. GOODS
3.1 The Company shall supply Goods to the Customer pursuant to each Contract of Sale in accordance with an agreed Sales Order Acknowledgment or as agreed in writing with the Customer. The Customer accepts sole responsibility for ensuring the accuracy and completeness of the Sales Order Acknowledgement or other agreement in writing or as the case may be.
3.2 The Company reserves the right to amend the Sales Order Acknowledgment if required to comply with any applicable statutory or regulatory requirements. Dimensions specified by the Company are approximate only and the Company may alter the dimensions of Goods within reasonable limits having regard to the nature of the Goods and that it meets its requirements. The Company also reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements
3.3 The Customer shall be solely responsible for ensuring that all drawings, information, advice and recommendations given to the Company either directly or indirectly by the Customer or by the Customer’s agents, servants, consultants or advisors are accurate, correct and suitable. Examination or consideration by the Company of such information shall in no way limit the Customer’s responsibility unless a Director of the Company accepts responsibility in writing.
3.4 The images of the Goods are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that your computer’s display of the colours accurately reflect the colour of the Goods. The colour of the Goods may vary slightly from those images.
3.5 We reserve the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirement.
4. DELIVERY
4.1 The Company will its reasonable endeavours to deliver goods to you by the delivery date on the Sales Order Acknowledgement or as agreed with the Customer or if no date is agreed with the Customer, within a reasonable time. Delivery dates are estimates only. Time of delivery is not of the essence of the Contract of Sale. If the Company has not delivered the goods within five working days of a delivery date for any reason than force majeure, the Customer may nominate a reasonable final delivery date.
4.2 Delivery shall be dependent upon timely receipt of all necessary information and approvals from the Customer. Any changes by the Customer following a Sales Order Acknowledgement may result in delayed delivery.
4.3 The Company shall deliver the Goods to the location set out on the Sales Order Acknowledgement or such other location as the Company may agree in writing or as the case may be and the Company may hand over the Goods to any person who claims to have authority to receive Goods at the location (“Delivery location”) at any time after the Company notifies the Customer that the Goods are ready.
4.4 Delivery of the Goods shall be completed on the ‘Goods’ arrival at the Delivery Location. The Customer shall be responsible and make reasonable arrangement to receive and off-load Goods during normal working hours or such times agreed. The Customer must provide sufficient persons to be available to off-load the Goods within a reasonable time. The Customer must sign the delivery note upon delivery as acceptance of the Goods. Any Goods which are damaged or wet should be hi-lighted to the driver. The Customer is to photograph the Goods prior to off-loading and send these by e-mail to the Company immediately. The Driver and the Company are to both sign detailing the Good damaged.
4.5 The Company is under no obligation to accept any request by the Customer for postponement of delivery. If the company does not accept such request then the Customer shall pay all costs and expenses incurred by the Company including without limitation storage and transport costs.
4.6 The Company may deliver the Goods by instalments, which shall be invoiced and paid. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.7 Where Goods are ordered by reference to numerical quantities of weight, the Company reserves the right to under or over deliver the quantity or weight of Goods ordered by plus or minus 10% without adjustment to the price and the quantity and/or weight delivered shall be deemed to be the quantity and/or weight ordered under the Sales Acknowledgement and the Customer may not reject them.
4.8 Where the Company has agreed on the Sales Order Acknowledgement that the Customer can call of Goods under the Sales Order Acknowledgement over a period of time, all Goods must be delivered within one month of the date of the Sales Order Acknowledgement (unless otherwise agreed in writing)
4.9 The Customer shall ensure that the Delivery Location is suitable for the Goods to be delivered and that adequate access and off-loading is available. The decision of the Company’s representative as to the nearest point of accessibility shall be accepted by the Customer as final and be deemed the Delivery Location. Any special delivery arrangements (eg tail lift is required) must be specified in the Sales Order Acknowledgement and may be subject to separate charge. The Company cannot accept any responsibility for any special delivery arrangements. The Customer will be responsible for the cost of any abortive delivery attempts due to the Customer not informing the Company of any required special delivery arrangements at the Delivery Location.
4.10 The Company accepts no responsibility for damage of any kind caused by transport vehicles to the Delivery Location or any access road. Any damage caused by transport vehicles due to an unsuitable Delivery Location shall be at the cost of the Customer and/or the logistics company.
4.11 Unless otherwise agreed in writing by the Company, any packaging is intended to be only sufficient to protect the Goods for all normal conditions and periods of transport. The Company hi-lights that all metal Goods are fragile, which should be kept dry, level and not stacked. The Goods should not be stored in such a way so that the metal Goods are at risk of condensation which may cause damage and/or discolouration. When moving the Goods panels and sheets must be supported along the length. Please contact the Company if further guidance is required. The Company cannot accept any responsibility for incorrect storage and any subsequent damage and/or discolouration caused.
5. INTERNATIONAL DELIVERY
5.1 We deliver to most worldwide countries (“International Delivery Destinations”). However, there are restrictions on some Goods for certain International Delivery Destinations, so please review local customs office information carefully before ordering Goods.
5.2 If you order Goods for delivery to one of the International Delivery Destinations, your order may be subject to additional delivery charges, import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and we cannot predict their amount. You will be responsible for payment of any such import duties and taxes. Please contact us and/or your local customs office before placing your order.
5.3 You must comply with all applicable laws and regulations for the country for which the Goods are destined. We will not be responsible if you break any such laws and/or regulations.
6. TITLE AND RISK
6.1 Risk in the Goods shall pass to the Customer where delivery has been made by the Company upon arrival of the Goods at the Delivery Location and prior to unloading of the Goods.
6.2 Title to the Goods shall not pass to the Customer until the Company receives all sums (in cash or cleared funds) under the Contract of Sale or any other contract with the Customer.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Company immediately if it becomes subject to any of the events listed in clause 10.1 and the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(e) give the Company such information relating to the Goods as the Company may require from time to time.
6.4 The Company may recover Goods in respect of which title has not passed to the Customer at any time and the Customer hereby licences the Company, its officers, employees and agents to enter upon any premises of the Customer for the purposes either of satisfying itself that these Conditions are being complied with by the Customer or recovering any Goods in respect of which title has not passed to the Customer.
6.5 Subject to this clause 5, the Customer may re-sell or use the Goods in the ordinary course of business (but not otherwise) before title passes provided that the Customer shall have a fiduciary duty to account to the Company the proceeds of any sale of the Goods (which shall be kept separate and identifiable from the Customer’s own monies).
7. QUALITY
7.1 The Company warrants that on delivery the Goods shall conform in material respects with any applicable Sales Order Acknowledgment.
7.2 The Customer shall have no claim for shortages or defects which should be apparent on visual inspection upon delivery unless the shortages or defects are clearly marked on the signed copy of the Company’s delivery note at the time of delivery and notified as per clause 4.4. The Customer acknowledges that white rust, rust, oxidation or discolouration, without limitation, are defects which it is reasonable for the Customer to be expected to notice at the time of delivery.
7.3 The Customer shall have no claim for shortages or defects capable of being apparent on subsequent visual inspection (not being shortages or defects falling within clause 7.2 unless:
(a) the Customer inspects the Goods and notifies the Company in writing before fixing or otherwise using the Goods or cutting or removing bands and in any event within three (3) Working Days of delivery at the Delivery Location; and
(b) the Company is given an opportunity to inspect the Goods and investigate any compliant before any use is made of the Goods.
7.4 If a compliant is not made to the Company in accordance with clause 7.3 then the Goods shall be deemed to be in all respects in accordance with the Contract of Sale and the Customer shall be bound to pay for such Goods.
7.5 The Customer shall have no claim in respect of defects not apparent on visual inspection at the time of delivery or within three Working Days thereafter (and for the purpose of rust, oxidation and discolouration shall be regarded as being a defect which is apparent on visual inspection at the time of delivery) unless:
(a) A written notice including photographs is sent to the Company as soon as reasonably practicable after the defect is discovered and no use (“use” for this purpose being taken to include any sale, disposal or the parting of possession) is made of the Goods after the defect is discovered and no alteration made thereto before the company is given an opportunity to inspect the Goods in accordance with this clause; and
(b) The written notice is sent within three Working Days of the date of delivery of the Goods or in the case of items not manufactured by the Company within the guarantee period specified by the manufacturer of such item.
7.6 The Company may within 21 days of receiving such a written notice (or within thirty days where the Goods are situated outside the United Kingdom) inspect the Goods and the Customer shall if so required by the Company take all steps necessary to enable the Company to do so.
7.7 The Company shall not be liable for the Goods’ failure to comply with the warranty set out in clause 7.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;
(b) the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Company following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Company;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
(g) there are variations to the metal finish and/or materials and/or colour of different batches.
7.8 Except as provided in this clause 7, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1. The Company may at its option refund, repair or replace the relevant part of the Goods. If the Company does repair fund or replace the relevant part of the Goods the Customer shall be bound to accept such repaired or substituted Goods to the exclusion of any other remedy.
7.9 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.
7.10 These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
8. PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Sales Order Acknowledgment, or, if no price is quoted, the price set out in the Company’s published price list in force as at the date of delivery. The items set out in clauses 8.2 and 8.3 shall become part of the agreed price without notice to or further agreement from the Customer.
8.2 The Company may at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, shipping rates, increases in labour, materials and other manufacturing costs, or any other unforeseen events);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; and
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions, which shall be invoiced to the Customer and paid for by the Customer when it pays for the Goods.
8.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer and paid for by the Customer when it pays for the Goods
8.4 The Company may invoice the Customer for the Goods on dispatch or at any time after or on the completion of delivery of the Goods (and when the Goods would have been delivered if the Customer had not postponed delivery or defaulted) unless otherwise agreed in writing.
8.5 The Customer has a credit account the Customer shall pay each invoice in full and in cleared funds by the end of the month following the month the invoice was dated. . If the Customer does not have a credit account, the Customer shall pay each invoice immediately in full and in cleared funds and for the avoidance of doubt no delivery shall be effected unless such payment(s) is/are received. Payment shall be made to the bank account nominated in writing by the Company. Payments shall be made in Pounds Sterling or such currency as previously agreed in writing. Time for payment is of the essence. Any Customer bank charges must be fully settled by the Customer and these charges cannot be deducted from any payment or invoice.
8.6 All amounts payable by the Customer under the Contract of Sale are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract of Sale by the Company to the Customer, the Customer shall on receipt of a valid VAT invoice from the Company, 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.
8.7 If the Customer fails to make any payment due to the Company under the Contract of Sale by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4.0% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.8 The Customer shall pay all amounts due under the Contract of Sale in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
9. TERMINATION
9.1 Without limiting its other rights or remedies, the Company may terminate this Contract of Sale by giving written notice to the Customer, without liability:
(a) by giving the Customer not less than 1 months’ written notice for any reason;
(b) with immediate effect if the Customer commits a material breach of any term of the Contract of Sale and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so;
(c) with immediate effect if the Customer fails to pay any amount due under this Contract of Sale on the due date for payment;
(d) with immediate effect if the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(e) with immediate effect if the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(f) with immediate effect if the Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract of Sale has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods and/or Services under the Contract of Sale or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 9.1(a) to clause 9.1(f), 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 of Sale on the due date for payment.
9.3 On termination of the Contract of Sale for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and the Customer shall return all the Customer Materials 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.
9.4 Termination of the Contract of Sale shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract of Sale that existed at or before the date of termination.
9.5 Any provision of the Contract of Sale that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
10. LIMITATION OF LIABILITY
10.1 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.
10.2 Subject to clause 10.1:
(a) 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, sales, business or revenue, or loss or corruption of data, information or software or loss of business opportunity or loss of anticipated savings or loss of goodwill or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Company’s total liability to the Customer in respect of all other 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 50% of the price of the Goods or Services being provided under the Contract.
10.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.4 This clause 10 shall survive termination of the Contract.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 “Intellectual Property Rights” means any patent, copyright, trade mark, database right, deign right, know how, confidential information or any other industrial or intellectual property right subsisting anywhere in the world including any application for the foregoing.
11.2 Nothing shall affect, or grant any right to any Intellectual Property Rights owned by and/or licensed to the Company.
11.3 All Intellectual Property Rights arising as a result of performance of the Contract of Sale (including without limitation improvements and/or adjustments to Goods) shall belong to the Company unless otherwise agreed in writing.
11.4 No right or licence of Intellectual Property Rights is granted under the Contract of Sale to the Customer except the right to use or resell the Goods in accordance with this Contract. The Customer shall not grant any sub-licences to any third party.
11.5 The Specifications and designs of the Goods shall belong to the Company. Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of the Company then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party and shall indemnify the Company against any claim of actual or alleged infringement.
11.6 All drawings documents and other information supplied by the Company are supplied on the express understanding that all Intellectual Property Rights are reserved to the Company and that the Customer will not without the written consent of the Company either give away, loan, exhibit or sell any such drawings or extracts therefrom or copies thereof or use them in any way except in connection with the Goods in respect of which they are issued and except in accordance with this Contract.
12. GENERAL
12.1 The company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract of Sale as a result of any issue beyond its reasonable control including without limitation act of God, government action, failure of a supplier, strikes or trade disputes, failure of transport or loading facilities.
12.2 The Customer shall keep in strict confidence the terms and conditions of each Sales Order Acknowledgement/Contract of Sale, all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed by the Company any other confidential information concerning the Company’s business or its products or its services which the Customer may obtain. Without prejudice to its other rights and remedies the Company may seek injunctive relief for a breach of this provision. This clause shall survive termination.
12.3 The company shall apply with all applicable laws including without limitation the Bribery Act 2010 and the Modern Slavery Act 2015.
12.4 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
12.5 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract of Sale without the prior written consent of the Company.
12.6 Any notice or other communication given to a party under or in connection with the Contract of Sale shall be in writing addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing.
12.7 No failure or delay by a party to exercise any right or remedy provided under the Contract of Sale 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.
12.8 If any provision or part-provision of the Contract of Sale 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.
12.9 No one other than a party to this Contract of Sale shall have any right to enforce any of its terms.
12.10 The Contract of Sale constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given on behalf of the Company which is not set out in the Contract.
12.11 No variation of the Contract of Sale or the Conditions shall be effective unless it is agreed in writing by a Director of the Company.
12.12 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
12.13 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract of Sale or its subject matter or formation.
