TERMS AND CONDITIONS OF SALE
1.1. In these Conditions the following expressions shall have the following meanings:
“the Company” FIS WINDOWS
“these Conditions” these terms and conditions incorporating the information and speculations set out overleaf;
“the Contract” the contract for the supply of the Goods and Services by the Company to the Customer comprising these Conditions, the information and specifications contained in the Surveyor’s Report and any other terms and conditions expressly and specifically accepted by parties in writing; “the Customers” the person, firm or company placing an order upon the Company whose details are set out overleaf;
“Delivery” delivery of the goods to the customer’s premises or the installations site designated by the Customer as detailed overleaf’
“the Goods” the goods, materials and equipment that the Customer agrees to buy from the Company as detailed overleaf;
“Intellectual Property Rights” patentable inventions, registered designs, trade marks, or applications for any of the foregoing copyright, unregistered design rights and any other similar protected rights in any country;
“Price” the price for the Goods and Service as detailed overleaf;
“the Services” the installation and any other services that the Customer agrees to buy from the Company as detailed overleaf;
1.2 The expressions “written” or “in writing” shall include facsimile or other transmission by electronic means.
2.1 These conditions apply to all supplies of Goods and/or Services by the Company to the Customer. All other terms and conditions except those appearing in the Surveyor’s Report are expressly excluded and no statement of representation made by the Company or any of its employees or agents shall be binding upon it except to the extent expressly and specifically accepted by the parties in writing.
2.2 In the event of any inconsistency or conflict between these Conditions and any other terms and conditions of the Contract expressly and specifically accepted by the parties in writing those other terms and conditions shall prevail.
2.3 Contracts may not be varied or cancelled in whole or in part of Goods returned without the company’s prior written consent except to the extent that the Customer has a statutory right to do so.
3.1 It is the sole responsibility of the Customer to obtain all relevant and necessary approvals, including but not limited to any of the deeds of covenant or landlord approvals and/or approvals from local authorities in respect of building regulations, planning permission, alterations to listed buildings or alterations carried out in a conversation area. The Company cannot be held responsible for any delay in completion of the Contract arising from the Purchaser’s failure or delay in obtaining any of the above.
3.2 Any additional work found to be necessary subsequent to the Contract being entered into in order to obtain or comply with any statutory or other approval or consent shall, if to be undertaken by the Company, be agreed in writing and the Company shall not be included within the Price.
4.1 Unless otherwise stated the Price shall include Delivery.
4.2 any time for performance of the Company’s obligations mentioned in the Contract should be reckoned from the latest of:
4.2.1 the date upon which the Company receives all the necessary information, materials, drawings and final instructions to enable it to proceed without interruption, and
4.2.2 the date of receipt by the Company of any advance payments stipulated in the Contract.
4.3 Although the Company will endeavor to complete the Contract within any delivery time for performance mentioned in the Contract, such times are to be treated as estimates only and shall not be of any contractual effect.
4.4 Delay by the Company in the delivery of any one or more instalments of Goods or the delivery of a greater or lesser quantity than that provided for in the Contract or the delivery of Goods only some of which are defective or are of a description different from that provided in the Contract shall not entitle the Customer to reject all of the Goods delivered or to terminate the Contract in whole or in part unless they have an invioble statutory right to do so. Any claim in respect of error in quantity, type o visible condition of the Goods must be made in writing to the Company within seven days of Delivery whereupon the Company’s only obligation shall be to make good any defect, damage, shortage or non-delivery unless they have an invioble statutory obligation that extends further than this.
4.5 Failure by the Customer to take delivery or make payment in respect of any one of more instalments of Goods or Services to be delivered or provided by the Company shall entitle the Company to treat the Contract as repudiated by the Customer.
4.6 Without prejudice to clause 4.5 above costs incurred by the Company as a result of any suspension or delay or performance of the Contract by reason of any act or default of the Customer or incomplete or inaccurate instructions (including but not limited to demurrage, storage, double-handling, insurance during storage) will be charged to an paid by the Customer.
5. PAYMENT, TITLE AND RISK
5.1 The price for the supply of the Goods and performance of the Services shall be the sum set out overleaf and shall be payable as follows:
For Contracts for the installation of windows:
20% on formation of Contract; and
balance upon completion of the Services.
For Contracts for the installation of conservatories:
20% on formation of the Contract
approximately 25% on completion of the basework; and
balance upon completion of the Services (for the avoidance of doubt the Services shall be deemed to have been completed even if the plastering and/or tiling and/or underfloor heating have not been completed.
For Contracts for the supply of Goods:
25% on formation of the Contract; and
balance 3 days prior to delivery.
5.2 In the event of any delay due to the act or default of the Customer in relation to the occurrence of any event or the reaching of any stage which gives rise to or is a pre-condition of the payment of any sums due to the Company under the Contract, then for the purpose of such payment that event or stage shall be deemed to have occurred or have been reached at the time when but for such delay or default it would have occurred or have been reached.
5.3 The Company reserves the right to charge interest at 4% per month above the base rate from time to time of HSBC Bank plc on overdue amounts calculated from day to day from the due date for payment until the actual receipt. The Company may also add to the price and recover from the Customer all costs incurred in seeking payment of outstanding amounts due to it from the Customer.
5.4 The risk in the Goods shall pass to the Customer upon Delivery
5.5 Notwithstanding Delivery title to the Goods shall not pass until:
5.5.1 the Price has been paid in full; and
5.5.2 the price payable in respect of goods and/or services applied under any other contract between the Company and the Customer (whenever made) has been paid in full.
5.6 Until such time as title to the Goods has been passed the Customer shall be in possession of the Goods as bailee for the Company and in fiduciary capacity.
5.7 The Company may recover Goods in respect of which title has not been passed to the Customer at any time after any event as described in clause 10 occurs and the CUstomer hereby licenses the Company and its officers, employees or agents to enter upon any premises of the Customer for the purpose of recovering any Goods in respect of which title has not passed to the Customer.
5.8 The Company may take action to recover the Price as it relates to the Goods notwithstanding that title has not passed to the Customer.
6. LIABILITIES, ACCIDENTS AND DAMAGE
6.1 Subject as hereinafter provided and to the Customers invioble statutory rights the Company’s liabilities in respect of the quality and performance of the Goods or the quality of the Services will be limited to the repair or replacement of defective Goods or reperformance of any Services not carried out in accordance with the Contract.
6.2 The Company shall accept liability with regard to claims in respect of damage to tangible property and of injury to or the death of any person to the extent resulting from the COmpany’s negligence or that of it’s employees in relation the Goods or the provision of Services but so that such liability in respect of physical damage to property shall not exceed the sum of £5 million in relation to any one event or series of events arising from the same cause.
6.3 The Company undertakes to make good any defect in Goods that may appear under normal and proper use that is due to faulty design materials or workmanship provided the Company is notified in writing within 30 days of the discovery of the defect and that in the case of the Goods that do not form a part of any fixture or fitting the defective item or part is returned to the Company’s premises all charges prepaid. The repaired or replaced items or parts will be delivered free to the Customer in the UK. Defective Goods or parts replaced shall belong to the Company.
6.4 The Company may at its discretion arrange to have defective Goods repaired or replaced at the Customer’s premises but if in the reasonable opinion of the Company there is no fault or defect or the same has been caused by misuse, failure by the Customer to observe any instructions supplied for use with Goods, work carried out to the Goods by persons not authorised or approved by the Company or the combination of the Goods with other equipment or services approved by the Company a charge may be made for the attendance and work done at the Company’s usual rates.
6.5 If the Buyer establishes to the reasonable satisfaction of the Company that any Services rendered in the UK have not been performed in accordance with their Contract or with reasonable care and skill the Company undertakes to re-perform such Services as soon as reasonably practicable by subject to clause 6.2 and to the Customers invioble statutory rights the Company shall have no further liability to the Buyer in relation to the Services.
6.6 Subject and without prejudice to clause 6.2 and notwithstanding anything in the Contract to the contrary the Company shall in no circumstances be liable for any special, indirect or consequential damages or losses such as but not limited to loss of goodwill revenue or profits or loss of use or production or any other economic loss or damage.
7.1 All intellectual Property Rights in all drawings, designs, specifications and other documented technical information supplied by the Company to the Customer in connection with the Contract (the “Material”) shall belong to and vest in the Company (where appropriate) by way of assignment of future intellectual Property Right by the Customer to the Company. The Customer will not use or reproduce the Material other than in connection with the Contract and will not disclose the same or part with possession of copies thereof to any third party without the prior consent of the Company.
7.2 The Company reserves the right to make such reasonable changes in design, construction or assembly of the Goods as wil in its reasonable opinion constitute an improvement and to use alternative materials or components that in its opinion are not inferior to the described in the contract.
8. INSTALLATION ETC.
8.1 Performance of the Services shall be subject to the supply by the Customer of suitable access and accommodation for the Goods and of any necessary power and other services.
8.2 The Customer will permit the Company, its agents, employees, and sub-contractors access to the installation site at all reasonable times so that the Company may complete the installation between the hours of 8:00 am and 5:00 pm.
8.3 If performance of the Services is prevented, delayed or impeded by any act or omission of the Customer including failure to advise the Company of special local conditions, the Customer shall pay such extra charge as the Company shall reasonably require.
8.4 The Company will only carry out the work listed in the Contract and detailed in the Surveyor’s Report.
8.5 Neither the Company nor its agents, employee or sub-contractors will be in any way responsible for structural defects existing in the property at the time of commencement of installation and which become evident as a result of such installation.
8.6 The Customer accepts that windows and conservatories made from woods will always vary in appearance, particularly when finished wood stains are applied and the Company takes no responsibility for such differences of appearance.
8.7 The Company will use its best endeavours to rectify any damage to plastering caused during the performance of the Services, but does ont undertake to match finishes such as external rendering.
8.8 The Company will take the utmost care when removing windows and doors where tiling has been fitted up to the windows or doors, but accepts no responsibility or liability for any such tiles that break under flexing when removing such windows and doors.
8.9 It is the Purchaser’s sole responsibility to remove any curtains, blinds, pelmets, and any other such items prior to the Services being performed and to clear surrounding area and passages and to reinstate such items after the Services have been performed.
8.10 Under British Telecom Regulations the Company is not permitted to move telephone cables and junction boxes attached to existing window frames. It is the Customer’s sole responsibility to arrange with British Telecom for the relocation of such telephone cables and junction boxes either before or during the performance of the Services.
8.11 It is the Customer’s sole responsibility to remove any existing fixtures or fittings that may be in danger of being damaged during the performance of the Services prior to the commencement of the Services.
8.12 The Company will use its reasonable endeavours to obtain as close a match as possible to existing brickwork but accepts no liability or responsibility for any differences in colour.
8.13 The Company accepts no liability or responsibility for removal of any waste material arising in connection with the performance of the Services but can provide, at additional cost, a skip for the removal of such waste material from the site.
8.14 The Company does not guarantee that any conservatories that it installs will be free from condensation or that any windows it installs will reduce condensation.
9. FORCE MAJEURE
The Company does not accept any liability for the extent to which the fulfilment of its obligations is prevented, frustrated or impeded as a consequence of any statute, rules, regulations, import and export restrictions or as a result of strikes, lock-outs or industrial action of any kind, fire, accident, civil disturbance, weather, act of terrorism, act of God, orders or requisitions by any Government Department, Council or other competent authority, delays by the Company’s suppliers or any other circumstances beyond its control. The Company undertakes, however, to take all reasonable steps to overcome difficulties arising therefrom. If by reason of any such circumstances performance within a reasonable time becomes impossible either party shall be entitled to terminate the Contract by notice in writing to the other without prejudice to the accrued rights of either party.
10. SOLVENCY AND DEFAULT
If the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order (being an individual or firm), becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), or if an encumbrance takes possession or a receiver is appointed over any of the property or assets of the Customer or if the Customer ceases or threatens to cease to carry on business, or if the Customer takes or suffers any similar or analogous action in consequence of debts, or if the Customers commits any breach of the Contract or any other contract between the Customer and the Company or if the Customer reasonably apprehends that any of the foregoing is about to occur in relation to the Customer and notifies the Customer accordingly, the Company shall be entitled without prejudice to any of its other rights to stop any Good to transit and/or suspend or to postpone further delivery and suspend or postpone the performance of any of the Services until the situation or breach is rectified and also (or as an alternative) to terminate the Contract and to recover payment for all Goods delivered and Services performed (whether or not such a payment is otherwise then due) and also recover from the Customer a sum equivalent to the Company’s loss of profit arising out of such determination.
Failure by the Company to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions shall not be affected.
Any notice hereunder shall be deemed to have been duly given if in writing and sent by first class post, or by facsimile to the party concerned at that party’s registered office or any other address notified for the purpose. Notices sent by first class post shall be deemed to have been given three days after dispatch and notices sent by tealeaf shall be deemed to have been given on the date of transmission.
The Company shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations under the Contract.
The Company may assign its rights and obligations under the Contract on giving the Customer one weeks’ written notice. The Customer shall not assign its rights and obligations under the Contract without the Company’s prior written agreement (such agreement not to be unreasonably withheld or delayed).
16. GOVERNING LAW
The Contract shall be governed by and construed in accordance with the laws of England and parties hereby submit to the jurisdiction of the English Courts.