Terms & Conditions
Sapa Building Systems Limited - Terms & Conditions of Supply
2. Basis of contract
3. Information, samples and materials supplied
8. Risk and title
9. Termination and suspension
12. Health and safety
13. Instructions to customer
14. Intellectual property rights
15. Export terms
16. Contracts for services
In these Conditions: “Company” means Sapa Building Systems Limited; “Customer” means the party with whom the Company contracts; “Contract” means the contract made between the Company and the Customer for supply of the Goods and /or Services which is subject to these Conditions; “Goods” means all or any of the goods works and materials to be supplied by the Company; “Services” means any services to be performed by the Company; and “Act of Insolvency” means any one or more of the following namely the passing of a resolution or the presentation of a petition for winding-up, bankruptcy or for the appointment of an administrator, the appointment of a receiver and/or manager or administrative receiver over the whole or any part of the Customer’s undertaking and assets, the making of a proposal for a voluntary arrangement within the Insolvency Act 1986 or of a proposal for any other composition scheme or arrangement with or the calling by the Customer of any meeting of its creditors generally, the levying of execution or distress or diligence on any of its assets, the failure to pay its proper debts as and when due, the Customer ceasing, or threatening to cease, to carry on business, the Company reasonably apprehending that any of the events mentioned above is about to occur in relation to the Customer and anything analogous to any of the foregoing under the law of the jurisdiction where the Customer is established.
2. Basis of contract
2.1 - Any quotation shall remain open for a maximum period of 30 days from its date. Quotations are not binding and shall not be open for acceptance by the Customer. Where Goods are quoted for supply from stock they are quoted subject to being unsold when the Customer’s order is accepted.
2.2 - These Conditions shall form the terms and conditions of the Contract and shall apply to the exclusion of any terms or conditions whether put forward by or on behalf of the Customer in or on its order or otherwise or whether implied by law (insofar as the exclusion of the same is lawful).
2.3 - The placing by the Customer of any order shall constitute an offer by the Customer. No contract shall come into existence unless the Company accepts the Customer’s order in writing. Any order placed bthe Customer with any of the Company’s employees or agents shall be subject to written acceptance by the Company.
2.4 - No alteration to these Conditions shall be effective unless expressly agreed to in writing by a director of the Company.
2.5 - The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
2.6 - Any advice or recommendation given by the Company or its employees or agents as to the storage, application or use of the goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.7 - Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3.1 - The Customer shall be responsible to the Company for ensuring the accuracy and sufficiency of its order (including of any applicable specification and/or sample) and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms. The Company shall be entitled to charge the Customer for all costs (and a reasonable element of profit) incurred by it where variations to Goods and/or Services are requested to the Customer and accepted by the Company.
3.2 - Where samples are to be supplied by the Company, the Customer shall as soon as reasonably practicable and in any event within 14 days after receipt of the same notify the Company that the samples are in all respects satisfactory or of any respect in which the samples are not satisfactory. In default of such notification the Company shall be entitled but not bound to proceed in the manufacture of the remainder of the Contract.
4.1 - Any time quoted by the Company for delivery of all or any of the Goods and/or performance of all or any of the Services is an estimate only and time shall not be of the essence. The Company shall not be liable for any failure to meet any such estimate, nor for any loss, of whatsoever nature resulting directly or indirectly therefrom.
4.2 - The Company reserves the right to deliver all or any of the Goods and/or the Services in advance of the estimated date.
4.3 - In the absence of agreement to the contrary delivery of the Goods shall be made by the Company delivering the Goods to an agreed destination or by the Customer collecting the Goods at the Company’s premises at any time after the Company has notified the Customer that the Goods are ready for delivery.
4.4 - The Company reserves the right to deliver by installments and each delivery shall constitute a separate contract to which these Conditions shall apply. Failure by the Company to deliver any one or more of the installments or any claim by the Customer in respect of any one or more installments shall not entitle the Customer to treat the Contract as a whole as repudiated.
4.5 - Where delivery of the Goods is to be made by the Company in bulk, the Company reserves the right to deliver up to 10 per cent more or less than the quantity ordered, and the Company shall charge for the Goods in accordance with the quantity actually delivered.
4.6 - If the Customer fails to take delivery of or collect the Goods or fails to give the Company adequate delivery instructions within 14 days after notification by the Company that the Goods are ready the Company may (without prejudice to its other rights and remedies):
4.6.1 - store the Goods (on its own or any third party’s premises) and charge the Customer for its reasonable costs (including without limitation VAT costs of storage, carriage and insurance); and/or
4.6.2 - sell the Goods at any time and after deducting all costs and expenses account to the Customer for any excess over the price already paid under the Contract or charge the Customer for any shortfall between the Contract price and such costs and expenses.
4.7.1 - Notification of short delivery (measured by weight or number) or damage in transit must be made in writing to the Company within five days of the receipt of the Goods.
4.7.2 - Notification of non-delivery must be made in writing to the Company within 14 days after the date of the Company’s invoice.
4.7.3 - The Company shall at its option either make good by reimbursement the whole or part of the price (and where relevant, as a deduction from any part of the price remaining unpaid) or by repair or replacement any such non-delivery short delivery or damage notified as aforesaid and save as provided in this condition 4.7.3 shall not be liable for any such non-delivery short delivery or damage in transit nor for any loss, financial or otherwise resulting directly or indirectly therefrom. In no event shall the Company be liable to the Customer in connection with any damage or loss in transit where delivery takes place at the Company’s premises.
4.7.4 - If the Company fails to deliver the goods for any reason other than any cause beyond the Company’s reasonable control or the Customer’s fault, and the Company is accordingly liable to the Customer, the Company’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
4.8 - All returnable containers and packing materials will be charged for, but credit will be given if these are returned in satisfactory condition to the Company’s works, carriage paid within thirty days following delivery of the relevant Goods.
All descriptive and technical specifications, drawings, catalogues, illustrations and particulars of weight and dimensions supplied by the Company are approximate only and the Company reserves the right without notice to the Customer to make alterations thereto and to supply the Goods so altered in performance of the Contract provided that such alterations do not materially affect the characteristics of the Goods.
Following acceptance by the Company of the Customer’s order, no cancellation and/or suspension, either in whole or in part, may be made by the Customer other than with the prior written consent of a director of the Company and upon terms that the Customer shall indemnify the Company in full against all loss (including without limitation loss of profit) damages, costs expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with the cancellation.
7.1 - The price of the Goods shall be the Company’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company’s published current price list at the date of the acceptance of the Order, less any discounts to which the customer is entitled but without any other deduction. Where the Goods are supplied for export from the United Kingdom, the Company’s export price shall apply.
7.2 - The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company.
7.3 - Unless otherwise expressly stated in writing, all prices are exclusive of VAT which shall be charged where appropriate at the rate prevailing at the relevant tax point.
7.4 - Unless otherwise agreed in writing payment of all sums due under the Contract shall be made in full by the 26th day of the month following the month of invoice notwithstanding that the delivery may not have taken place and the property in the Goods may not have passed to the Customer. Interest at the annual rate of 4% over the base rate of the Barclays Bank Plc will be charged at the rate prevailing on the due date on all monies outstanding after the due date until the actual date of payment (both before and after judgment).
7.5 - Where payment is agreed to be made by installments, any delay or default by the Customer in making payment in respect of any one installment shall render all the remaining installments due forthwith, and interest will be charged in accordance with condition 7.4 with immediate effect until the date of actual payment.
7.6 - The Company may appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Company and the Customer) as the Company may think fit (notwithstanding any purported appropriation by the Customer).
8.1 - Risk in the Goods shall pass to the Customer immediately on delivery to the Customer or into custody on the Customer’s behalf whichever is the sooner.
8.2 - Notwithstanding delivery and the passing of risk, property in and title to the Goods shall remain in the Company until the Company has received payment of the full price of (a) all Goods and/or Services the subject of the Contract and (b) all other goods and/or services supplied by the Company to the Customer under any other contract whatsoever.
8.3 - Until property in and title to the Goods passes to the Customer:
8.3.1 - the Customer shall keep the Goods properly stored, protected and insured and separate from all or any other goods whether belonging to the Company the Customer or any third party;
8.3.2 - the Company shall be entitled at any time forthwith to revoke the Customer’s power to deal with the Goods and it shall automatically cease if the Customer shall commit or be subject to any Act of Insolvency; and
8.3.3 - the Customer shall not make any modification to the Goods or their packaging or alter remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods.
8.4 - Upon termination of the Customer’s power to deal with the Goods, the Customer shall place the Goods at the disposal of the Company and the Company and its servants and agents are hereby irrevocably authorised without the need for consent of any third party but using only such force as may be necessary, to enter upon any premises of the Customer or any third party for the purpose of removing the Goods.
8.5 - If any of the foregoing provisions of this Condition shall be invalid or unenforceable such invalidity or unenforceability shall not affect the remaining provisions.
Without prejudice to any rights and remedies available to it, the Company shall be entitled, forthwith either to terminate the Contract wholly or in part and/or any other contract with the Customer or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Customer (and all monies outstanding from the Customer to the Company shall become immediately due and payable) if:
9.1 - any sum owing to the Company from the Customer on any account whatsoever shall be unpaid after the due date for payment (in which event the Company shall have a general lien for any such sum on all and any property of the Customer in its possession);
9.2 - the Customer shall commit or be subject to any Act of Insolvency; or
9.3 - the Customer shall commit any breach of any contract (including without limitation the Contract) with the Company.
In the event of a suspension of performance the Company shall be entitled to require, as a condition of resuming performance, to require pre-payment, or such security as it may require.
10.1 - The Company shall:
10.1.1 - make good at its option by reimbursement of the whole or part ofthe price (and, where relevant, as a deduction from any part of the price remaining unpaid) or by repair or by replacement:
10.1.1.1 - subject to condition 5 any failure by the Goods to correspond with their specification at the time of delivery; and/or
10.1.1.2 - any defect due solely to faulty materials and/or workmanship.
10.1.2 - make good by reimbursement of the price or by reperformance of the Services any defective workmanship in the performance of Services; provided that:
10.1.3 - any failure to meet specification is notified in writing to the Company within 14 days from the date of delivery or (where the failure was not apparent on reasonable inspection) within a reasonable time after discovery of the failure and in any event such failure must be notified within six months after delivery;
10.1.4 - the Customer shall within 14 days of the date of delivery or in the case of a latent defect within three days of the date when the defect might reasonably have been discovered (but in any event no later than six months after delivery of the Goods ) notify the Company in writing of any such defect;
10.1.5 - the Company shall be under no liability in respect of any defect in the Goods arising from any drawings, design or specification supplied by the Customer;
10.1.6 - the Company shall be under no liability in respect of any defect arising from fair wear and tear, any glass breakage after the date of delivery or other acts of the Customer including without limitation willful damage, negligence, lack of proper maintenance or servicing, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;
10.1.7 - the Company shall be under no liability until any monies due from the Customer under the Contract have been paid in full; and
10.1.8 - any Goods alleged to be defective are promptly made available to the Company for inspection and, if so required by the Company, are promptly returned at the Customer’s risk and expense to the Company’s works for inspection.
10.1.9 - the above warranty does not extend to parts, materials or equipment not manufactured by the Company in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company and can be transferred.
11.1 - The Company shall not be liable to the Customer in contract, tort (including without limitation negligence) or breach of statutory duty for any loss or damage which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company its servants or agents, in a sum which will exceed the contract price paid by the customer.
11.2 - The Company shall not be liable to the Customer in contract, tort (including without limitation negligence) or breach of statutory duty for any indirect or consequential (including economic) loss of any kind which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company, its servants or agents.
11.3 - Nothing in these Conditions shall operate so as:
11.3.1 - to exclude the Company’s non-excludable liability in respect of death or personal injury caused by the negligence of the Company its servants or agents;
11.3.2 - to affect the statutory rights of the Customer where Goods are sold or Services are supplied to a Customer dealing as a consumer within the meaning of Unfair Contract Terms Act;
11.3.3 - to exclude the application of Section 12 of the Sale of Goods Act 1979; or
11.3.4 - to exclude liability for fraudulent misrepresentation.
11.4 - The Customer is required to notify the Company of any claim under condition 11.3 as soon as reasonably possible except that any claim under condition 11.3.3 shall be notified to the Company within 14 days of the Customer suffering any alleged loss or damage.
For the purposes of Section 6(8) of the Health and Safety at Work Etc Act 1974 the Customer undertakes to comply with all instructions relating to the Goods received from the Company from time to time and to take such other steps sufficient to ensure, so far as is reasonably practicable, that the Goods will at all times be safe and without risk to health when being properly used, set, cleaned and maintained by a person at work.
13.1 - The Customer shall ensure that all materials and components are correctly assembled, installed, used and maintained in strict accordance with the Company’s instructions or recommendations.
13.2 - The Customer shall indemnify the Company in respect of any liability the Company may have in relation to damage caused by faulty installation, work or parts damaged after supply by the Company whether the installation work has been carried out by the Customer or by any other person to whom the Customer has supplied the Goods.
13.3 - If the Customer arranges installation by another person the Customer shall keep a record of the name, telephone number and address of the installer and end user.
13.4 - Where the Customer supplies any glass or other alternative materials, the Customer shall ensure that the glass or material supplied is subjected to adequate safety testing and quality controls. The Customer shall not supply a substitute to the glass as specified by the Company. Where the Customer wishes to supply what he considers to be a safer alternative to the glass specified by the Company he may only do so with written approval by the Company that the proposed alternative is suitable and falls within the stress loads for which the product has been tested.
13.5 - The Customer shall use the Goods only for the purpose for which they are marketed by the Company.
13.6 - The Customer must ensure that all assembly booklets, information leaflets and other literature supplied by the Company with the Goods are given to the installer and end user, as appropriate.
14.1 - If any claim is made against the Customer that the Goods infringe or that their use or resale infringes the patent, copyright, design right, registered design, trade mark or other industrial or intellectual property rights of any other person or any claim is made in respect of passing off or unauthorised use of confidential information in relation to the Goods and/or their use or resale the Customer shall forthwith notify the Company in writing and the Company shall be given full control of any proceedings or negotiations in connection with any such claim. The Customer shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations and except pursuant to a final award, the Customer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld). The Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Company may have in relation to such infringement.
14.2 - If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Customer, the Customer shall (without prejudice to the other rights and remedies of the Company) indemnify the Company in full against all loss, costs, damages, charges, expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with:
14.2.1 - any claim for infringement of any patent, copyright, design right, registered design, trade mark or other industrial or intellectual property rights of any other person and/or for passing off and/or unauthorised use of confidential information which results from the Company’s use of the Customer’s specifications; and
14.2.2 - any other liability of any kind to any third party including without limitation for defective Goods, personal injury or death to the extent that it arises from the specification.
15. Export terms
15.1 - Any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but in the event of conflict these Conditions shall prevail.
15.2 - Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 13 shall (subject to any special terms agreed in writing between the Company and the Customer) apply not withstanding any other provision of these Conditions.
15.3 - Unless otherwise agreed in writing between the Company and the Customer, the Goods shall be delivered to the air or sea port of shipment and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
15.4 - The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on testing or inspection and which is made after shipment, or in respect of any damage during transit.
15.5 - Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer in favour of the Company and confirmed by a bank acceptable to the Company.
If the Contract is for or to include Services to be performed by the Company the following provisions shall apply:
16.1 - the Company shall only be obliged to carry out Services during normal working hours and shall be entitled to charge for any overtime worked upon request by the Customer;
16.2 - where Services are performed at the premises of the Customer, the Customer shall provide free of charge:
16.2.1 - proper and safe storage and protection of all Goods, tools, plant, equipment and materials on site;
16.2.2 - free and safe access to the site and place where the Services are to be performed;
16.2.3 - all facilities and services necessary to enable such Services to be performed safely and expeditiously;
16.2.4 - if such Services include the installation of Goods, all builders work, foundations and cutting away and making good where necessary; and
16.2.5 - the availability of all plant and equipment to permit the Goods to be tested upon completion of Services;
16.3 - the Customer shall pay the Company any expenses incurred by the Company by reason of a breach by the Customer of any of its obligations in this condition without prejudice to the Company’s right to recover any loss thereby occasioned; and
16.4 - Goods and Services supplied on the site of the Customer are at all times at the sole risk of the Customer and if any part is lost or destroyed for any reason whatsoever the Company shall be entitled to charge as a variation to the Contract for the restoration of such Goods and/or Services. The Customer shall for the benefit of itself and the Company insure and keep insured with reputable insurers the full value of Goods and Services against every kind of loss, damage or destruction. The Customer shall produce the policy to the Company upon request together with the latest premium receipts and in default of effecting the same the Company shall be entitled to do so and add the cost of such insurance to the Contract price.
17.1 - It shall be the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever, (including without limitation any relating to the importation or use of the Goods in the country of destination and for the payment of duties thereon) are duly complied with. It shall be a condition precedent to the performance by the Company of its obligations under the Contract that all necessary licenses, permits and consents shall have been obtained by the Customer.
17.2 - Without prejudice to the generality of condition 16.1 the obtaining of any relevant exchange control consents shall be a condition precedent to the performance by the Company of any of its obligations under the Contract.
17.3 - Neither party shall have any liability for any failure to perform or for any delay in the performance (other than as to payment) of, any of its obligations under the Contract caused by any factor beyond its reasonable control.
17.4 - No failure or delay on the part of the Company to exercise any of its rights under the Contract shall operate as a waiver of nor shall any waiver by the Company of any breach by the Customer of any of its obligations under the Contract affect the rights of the Company in the event of any further or continuing breach.
17.5 - The Contract is personal to the Customer, who shall not assign or in any way part with the benefit without the Company’s prior written consent.
17.6 - Each and every obligation contained in these Conditions shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non- enforceability of any other such obligation.
17.7 - The clause headings in these Conditions are for convenience only and shall not in any way affect the interpretation of the Contract.
17.8 - The Conditions and the Contract shall not create or evidence, or be deemed to create or evidence, any agency or partnership between the Company on the one hand and the Customer or any third party on the other.
17.9 - Any notice required to be given in writing under the Contract shall be given, where possible, by facsimile transmission and otherwise by first class post addressed to the registered office of the party for which it is intended, or to such other address as may be notified in writing in accordance herewith for the purpose, and shall be deemed to have been received, in the case of a facsimile transmission, upon transmission and, in the case of a letter, forty-eight hours after posting. In proving service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted.
17.10 - The Contract shall be governed by English Law.
17.11 - The parties irrevocably submit to the exclusive jurisdiction of the English Courts, save in the case of a Customer who has no assets within the jurisdiction of the English Courts and who is established in a country which will not enforce the judgment of the English Courts. In those circumstances the Company may if it chooses refer any disputes arising out of the Contract to arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, such arbitration to take place in London.