1a IN THESE CONDITIONS
“SUPPLIER” means Profab Access Ltd
“CUSTOMER’’ means the person (s) whose order for the supply of products is accepted by the supplier and if more than one person any obligations of the customer shall be joint & several.
“PRODUCTS” means the products (including any instalment of the products) which the supplier is to supply in accordance with these conditions.
‘’CONDITIONS’’ means the terms and conditions of sale in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the supplier and the customer.
“ CONTRACT’’ means the contract formed for the purchase and sale of the products upon these conditions, which shall override any inconsistent terms implied trade custom or practice or previous dealings or any contrary or additional terms contained or referred to in the customer’s order form.
“WRITING’’ includes facsimile, e-mail, cable and comparable means of communication.
1b The headings in these conditions are for convenience only and shall not affect their interpretation.
2 BASIS OF SALE
2a The supplier shall sell and the customer shall purchase the products upon these conditions in accordance with any order of the customer which is accepted by the supplier and each accepted order shall constitute an individual legally binding contract.
2b No variation to these conditions is binding unless agreed in writing by authorised representatives of the supplier and customer.
2c Where an order is placed by a customer no contract shall be formed until such order has been accepted in writing by the supplier and in particular:
2d No quotation by the supplier constitutes an offer and any acceptance of a quotation by a customer does not constitute a contract until accepted by the supplier and all quotations will be deemed to be withdrawn after 30 days from the date of quotation.
2d (i) Where an order is placed by telephone an official purchase order must be obtained and quoted.
2d(ii) Any clerical error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the supplier shall be subject to correction without any liability on the part of the supplier.
3a The price of the products shall unless otherwise be agreed, in writing and taken from the supplier’s list price at the time of receipt of the customer’s order and payment will be in sterling.
3b The supplier reserves the right by giving notice to the customer at any time before delivery to increase the price of the products to reflect any increase in the cost to the supplier due to currency fluctuation or any change in delivery dates, quantities or specifications for the products which is requested by the customer, or any delay caused by any instructions of the customer or failure of the customer to give the supplier adequate information or instructions.
3c Except as otherwise stated under the terms of any quotation by the supplier or unless otherwise agreed in writing, all prices are given to the customer are given not including delivery.
3d The price is exclusive of any applicable vat, or like taxes or import duties which the customer shall be additionally liable to pay to the supplier.
3e Should the customer defer any previously agreed delivery date (whether to full or part deliveries), the supplier will invoice the customer as if the goods had been delivered & payment shall be due according to the normal terms of payment. The supplier may also charge storage costs for the period of deferment.
4 TERMS OF PAYMENT
4a Subject to any special terms agreed in writing between the supplier and the customer:
4b The supplier may invoice the customer for the price of the products on or at any time after delivery of the products unless the products are to be collected by the customer or the customer wrongfully fails to take delivery of the products, in which event the supplier may invoice the customer for the price at or anytime after the supplier has notified the customer that the products are ready for collection (as the case maybe) the supplier has tendered delivery of the products.
4c The customer shall pay the price of the products without any deduction within 28 days of the date of the suppliers invoice date after that month end. The supplier may recover the price, notwithstanding that delivery may not have taken place and the property in the products has not been passed to the customer.
4d If the customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the supplier, the supplier may take any one or more of the following actions.
4d (i) Suspend all or any other deliveries to be made under the contract or any other contract with the customer (in which event the customer shall not be released from any of its obligations under the contract or any other contract) and the supplier shall not be responsible for resultant delay in delivery.
4f Cancel the contract or any other contract with the customer and claim damages from the customer for breach of contract.
4g Charge the customer interest ( both before and after any judgement ) on the amount unpaid at the rate of 4% above the bank base rate of National Westminster bank plc for the time being per calendar month or part of a month until payment in full is made, such interest to be calculated from the date of the invoice.
5a Although the supplier will endeavour to meet agreed delivery dates, such delivery dates are not guaranteed and the supplier accepts no liability for any delay in delivery of the products.
5b The products may be delivered by the supplier in advance of any quoted delivery date by agreement with the customer.
5c Where the products are to delivered in instalments, each delivery will constitute a separate contract and failure by the supplier to deliver any one or more of the instalments in accordance with these conditions or any claim by the customer in respect of any one or more instalments shall not entitle the customer to treat the contract as whole as repudiated.
5d Due to the nature of the products, the supplier may deliver quantities subject to a deviation agreed with the customer.
5e If upon delivery the products are found to be missing or damaged, the supplier shall not be liable unless the customer notifies the supplier in writing within three working days of a short or damaged delivery.
5f If delivery is postponed by the customer the supplier may charge the customer with storage costs.
6 RISK, PROPERTY, TITLE
6a Risk of damage to or loss of the products shall pass to the customer at the time of delivery (or if the customer wrongfully fails to take delivery of the products the time when the supplier has tendered delivery).
6b The products shall remain the property of the supplier and title shall not pass to the customer until the supplier has received in cash or cleared funds payment in full of the price of the products (and any relevant additional charges).
6c Until such time as the property in the products passes to the customer, the customer shall hold delivered products as the suppliers fiduciary agent and bailed, and shall keep them separate from those of the customer and third parties and properly stored protected and insured and identified as the customers property, save that the customer shall be entitled to resell or use the products in the ordinary course of business, but shall in such circumstances account to the supplier for the proceeds or otherwise of the products and shall keep all such proceeds separate from any moneys or property of the customer and third parties.
6d Until such time as the property in the products passes to the customer (and provided the products are still in existence and have not been resold ) the supplier shall be entitled at any time to require the customer to deliver up the products to the supplier and, if the customer fails to do so forthwith, to enter upon any premises of the customer or any third party where the products are stored and repossess the products.
7 RETURNS & CANCELLATION POLICY
7a No contract for goods ordered maybe cancelled unless cancellation is received in writing within 24 hours of the customer’s official order. The return of goods is strictly determined by the supplier. Only “stock panels” can be returned & the aforementioned panels must comply with the following conditions in order for a credit to be raised minus a 15 % restocking charge.
7b Conditions of returning “stock panels” are as follows:
7b(i) It is the customer’s responsibility to ensure that the goods are returned to the suppliers premises with their packaging intact.
7b(ii) Only “stock panels” can be returned & it is the customer’s responsibility to ensure if the panels they are acquiring are “stock” or not at point of purchase.
8 WARRANTIES & LIABILITIES
8a Subject to the conditions set out below the supplier warrants that the products will be free from defects in material and workmanship for a period of 10 years from date of delivery.
8b(i) The above warranty is given by the supplier subject to the following conditions:
8b(ii) Any claim which is based upon any defect in the quality or condition of the products or their failure to correspond with specification shall (whether or not delivery is refused by the customer) be notified in writing to the supplier within 7 days from the date of delivery ( or sooner ) or ( where the defect or failure was not apparent on reasonable inspection ) within a reasonable time after discovery of the defect or failure and where any such valid claim is notified to the supplier, the supplier shall be required to replace the products free of charge, or at the supplier’s discretion, refund to the customer the price of the products ( or a proportionate part of the price ), but the supplier shall have no further liability to the customer.
8b (iii) The supplier accepts no liability if the products are not inspected and any defect or failure apparent on reasonable inspection is not notified to the supplier prior to installation.
8b(iv) The supplier shall be under no liability & the customer will indemnify the supplier against all actions, claims, costs & proceedings, including claims that the specification or products infringe the intellectual property rights of another. The supplier gives no warranty as to the fitness for any particular product in respect of any defect in the products arising from:
8b (v) Any drawing, design, specification or free issue material supplied by the customer.
8b(vi) Incorrect installation, wear and tear, normal deterioration in chemical products, wilful damage or negligence (other than by the supplier ), abnormal working conditions, failure to follow the supplier’s instructions, or misuse or alteration of the products.
8b (vii) Any defects in material or workmanship of any other default of a sub-contractor nominated by the customer.
8c The conditions in clause 1b do not exclude any liability arising from any express fire resistance given by the supplier in writing in relation to the products save that there shall be no liability:
8c(i) If a product’s specification or dimensions has or have been modified altered or added to in any way at the customer’s request, insofar as such modification alteration or addition is relevant to or could affect the fire rating of the product.
8c(ii) If the product is modified altered or added to in any way by the customer or any third party after delivery.
8c(iii) If the product is incorrectly installed or any guidelines of the supplier for the installation use and/or maintenance of the product are not followed.
8d Except in the event of death or personal injury caused by the suppliers negligence, the supplier shall not be liable to the customer by any representation, or any implied warranty, condition or any other term, or any duty at common law, or under the express terms of the contract, for any consequential loss or damage ( whether for loss of profit or otherwise ), costs, expenses or other claims for consequential compensation whatsoever ( and whether caused by the negligence of the supplier, its employees or agents or otherwise ) which arise out of or in connection with the supply of the products or their use or resale by the customer, except as expressly provided in these conditions.
8e The supplier shall not be liable for any damage done to any property of the customer whilst it is in the control of the supplier or its agents and employees.
9 FORCE MAJEURE
Neither party shall be liable to the other for any failure to perform or delay in performance of the contract due directly or indirectly to any cause beyond that parts’ reasonable control. During the periods of time when either party is unable to perform, the other party shall be relieved of its corresponding obligations.
10 INSOLVENCY OF THE CUSTOMER
The supplier may cancel the contract or suspend any further deliveries under the contract without any liability to the customer (and if products have been delivered but not paid for the price shall become immediately due and payable not withstanding any previous agreement to the contrary) in any of the following circumstances.
10a The customer makes an voluntary arrangements with its creditors or becomes subject to an administration order or (been an individual or firm) becomes bankrupt or (been a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10b An encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the customer; or
10c The customer ceases, or threatens to cease, to carry on business; or
10d The supplier reasonably apprehends that any of the events may occur.
11 CANCELLATION OF CONTRACT
The supplier without prejudice to its other rights and remedies at law can refuse a purported cancellation of the contract by the customer.
11a The supplier may make such charge as it considers reasonable in respect of any purported cancellation of the whole or part of any order by the customer.
11b Any cancellation accepted by the supplier will render the customer liable for the value of products manufactured or partially manufactured (including but not limited to the cost of all raw materials purchased) by the supplier whether or not despatched to the customer prior to receiving purported notice of cancellation and may result in an adjustment of the price for the quantity of products actually despatched to the customer.
11c No cancellation will be agreed where products are to be supplied to meet special requirements of the customer.
If any provision of these conditions is held by any competent authority to be invalid or enforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
If the customer requires testing and inspection of the products this will take place at the supplier’s premises or a place to be fixed by the supplier and the customer shall be responsible for all fees incurred in connection with such testing and inspection.
Any drawings submitted by the supplier are the property of the supplier and may not be used or copied for any other purpose save with the suppliers approval in writing.