Terms and Conditions of Supply
Terms and Conditions of Supply
This document (together with the documents referred to in it) tells you the terms and conditions on which we supply products and services to you. Please read these terms and conditions carefully before ordering any Products and Services from us. You should understand that by ordering any of our Products and Services, you agree to be bound by these terms and conditions.
In particular, your attention is drawn to condition 11 which sets out our limitation of liability.
1.1. The definitions in this condition apply to these Conditions:
Contract: has the meaning given in condition 2.5.
Conditions: the terms and conditions set out in this document.
Delivery Date: the delivery date set out in the Order or as otherwise agreed between us.
Force Majeure Event: has the meaning given in condition 12.
Order: your order for the Services.
Products: the products that we are selling to you as set out in the Order.
Services: the services that we are providing to you as set out in the Order.
Site: the place for delivery and/or where we are to install the Products and/or carry out the Services.
We/us: Scott Reynolds of The Squirrels Battle Road Staplecross TN32 5QT, trading as Warm and Dry.
Writing or written: does not include faxes and e-mail.
1.2. Headings do not affect the interpretation of these Conditions.
1.3. Unless the context otherwise requires, all of these Conditions shall apply to the supply of both Products and Services.
2. Basis of supply
2.1 These Conditions and the Order are considered by us to set out the whole agreement between you and us for the supply of the Products and Services.
Please check that the details in the Conditions or on the Order are complete and accurate before you commit yourself to the contract. If you think that there is a mistake, please make sure that you ask us to confirm any changes in writing, as we only accept responsibility for statements and representations made in writing by our authorised employees and agents.
2.2 Any samples, drawings, descriptions or advertising we issue, and any descriptions or illustrations contained on our website, or in our other promotional materials, are issued or published solely to provide you with an approximate idea of the Products and Services they describe. They do not form part of the contract between you and us or any other contract between you and us for the supply of the Products and Services.
2.3 If any of these Conditions are inconsistent with any term of the Order, the Order shall prevail.
2.4 The Order is an offer by you to enter into a binding contract, which we are free to accept or decline at our absolute discretion.
2.5 These Conditions shall become binding on you and us when:
2.5.1 we issue you with written acceptance of an Order; or
2.5.2 we notify you that we are able to supply the Products and Services,
whichever is the earlier, at which point a contract shall come into existence between us (the Contract).
2.6 Any quotation for the Products and Services is given on the basis that a binding contract shall only come into existence in accordance with condition 2.5. A quotation shall be valid for a period of 21 calendar days from its date of issue, unless we notify you in writing that we have withdrawn it during this period.
2.7 We have the right to revise and amend these Conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our business' capabilities. You will be subject to the policies and terms in force at the time that you order the Products and Services from us, unless any change to those policies or these Conditions is required by law or government or regulatory authority (in which case, it will apply to orders you have previously placed that we have not yet fulfilled).
3. Our status
3.1 Please note that in some cases, we accept orders as agents on behalf of third party sellers. The resulting legal contract is between you and that third party seller, and is subject to the terms and conditions of that third party seller, which they will advise you of directly. You should carefully review their terms and conditions applying to the transaction.
3.2 We may also provide you with recommendations of other companies, whether affiliated with us or not. We cannot give any undertaking, that products and services that you purchase from such suppliers will be of satisfactory quality, and any such warranties are DISCLAIMED by us absolutely. This DISCLAIMER does not affect your statutory rights against the third party supplier. We will notify you when a third party is involved in a Contract, and we may disclose your customer information related to that transaction to such third party supplier.
4. Consumer rights
4.1 Subject to condition 4.3, if you are contracting as a consumer, you may within 7 calendar days of the Contract coming into existence amend or cancel an Order by providing us with written notice. If you amend or cancel an Order, your liability to us shall be limited to payment to us of all costs we reasonably incur in fulfilling the Order until we receive your amendment or cancellation. However, where the amendment or cancellation is due to our failure to comply with these Conditions you shall have no liability to us for it.
4.2 If you are a consumer, to cancel a Contract, you must inform us in writing. You must also return the Products to us immediately, in the same condition in which you received them, and at your own cost and risk. You have a legal obligation to take reasonable care of the Products while they are in your possession. If you fail to comply with this obligation, we may have a right of action against you for compensation.
4.3 If you are a consumer, you will not have any right to cancel a Contract for the supply of any of the following Products and Services where you have told us, in writing, that you want us to start performing a Contract before the 7 calendar day cancellation period has expired.
5. Your Site
5.1 It is your responsibility to ensure the Site is ready for us to supply the Products and Services at the Delivery Date. You shall ensure that, on the Delivery Date:
5.1.1 the Site is clear and ready for installation;
5.1.2 the Site's walls and flooring are in place and all other services at the Site are in position; and
5.1.3 you provide us, in sufficient time, with any information and instructions relating to the Products and Services that is or are necessary to enable us to supply the Products and Services in accordance with these Conditions.
5.2 If the Site is not ready for installation to commence on the Delivery Date, you will be responsible for any costs incurred as a result. We may charge you a one-off fee of £500 (in addition to our storage costs contemplated in condition 5.3.1) or such other sum as we may agree in writing.
5.3 We accept no liability in respect of any Products and Services provided to you, if the Site is unsuitable for the storage or installation of the Products and Services. You shall be responsible for the storage of flammable or explosive chemicals or materials and you shall comply with the Gas Safe Register, OFTEC, Part P regulations or any warning notice issued to you.
5.4 If any additional works on the Site are required as a result of unforeseen complications with the Site, we will discuss the issues with you and resolve them as quickly as possible either by amending the Order or creating a new order. Additional charges may be incurred for any agreed additional services.
6. Quality of Products and Services
6.1 Unless we are prevented from doing so by a Force Majeure Event, we will provide Services which:
6.1.1 conform in all material respects with their description;
6.1.2 are carried out with reasonable care and skill;
6.1.3 are fit for any purpose we say the Services are fit for, or for any purpose for which you use the Services and about which you have informed us, or we could reasonably expect you to use the Services;
6.1.4 are free from material defects in design, material and workmanship; and
6.1.5 comply with all applicable statutory and regulatory requirements for supplying the Services in the United Kingdom.
6.2 We warrant that on delivery and for a period of 6 months from the date of delivery, the Products shall:
6.2.1 conform in all material respects with the manufacturer's specification subject to any qualification or representation contained in the brochures, advertisements or other documentation;
6.2.2 be of satisfactory quality;
6.2.3 be fit for any purpose we say the Products are fit for or for any reasonable purpose for which you use the Products;
6.2.4 be free from material defects in design, material and workmanship; and
6.2.5 comply with all applicable statutory and regulatory requirements for selling the Products in the United Kingdom.
6.3 The warranties in conditions 6.1 and 6.2 are in addition to your legal rights in relation to the Products and Services which otherwise do not conform with these Conditions. Advice about your legal rights is available from your local Citizens' Advice Bureau or Trading Standards office.
6.4 These Conditions apply to any replacement Products and Services we supply to you in the unlikely event that the original Products and Services do not conform with these Conditions.
6.5 If you do not, or you provide us with incomplete, incorrect or inaccurate information or instructions, we may cancel the Order by giving you written notice, or we may make an additional charge of a reasonable sum to cover any extra work that is required.
6.6 If you are a consumer, we only supply the Products and Services for domestic and private use, and you agree not to use the Products and Services for any commercial purpose.
6.7 The warranties in this condition 6 do not apply to any defect in the Products and Services arising from:
6.7.1 blockages in waste or drainage systems;
6.7.2 fair wear and tear, wilful damage, accident, negligence by you or any third party;
6.7.3 your use of the Products and Services in a way that we do not recommend;
6.7.4 your failure to follow our instructions; or
6.7.5 any alteration or repair you or a third party carries out without our prior written approval.
7.1 Delivery of the Order shall be completed when we deliver the Products and Services to you.
7.2 We will take reasonable steps to meet the Delivery Date. However, occasionally delivery may be affected by factors beyond our control and so cannot be guaranteed. We will let you know if we become aware of an unexpected delay and will arrange a new delivery date with you.
7.3 If you fail to take delivery of an Order within 7 calendar days of the date on which we notify you that the Products and Services are ready, then, except where this failure is caused by our failure to comply with these Conditions or by an event beyond your control:
7.3.1 we will store the Products until delivery takes place and may charge you a reasonable sum currently £50 a day to cover expenses and insurance; and
7.3.2 we shall have no liability to you for late delivery.
7.4 If you have not taken delivery of the Products within two weeks of our notifying you that they are ready, we may, after giving you reasonable prior notice in writing, resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, pay you for any excess over the price of the Products or charge you for any shortfall below their price.
7.5 If we are not able to deliver the whole of the Order at one time due to operational reasons or shortage of stock, we will deliver the order in instalments. We will not charge you extra delivery costs for this. If you ask us to deliver the Order in instalments, we may charge you extra delivery costs. Each instalment shall constitute a separate contract. If we are late delivering an instalment or one instalment is faulty, that will not entitle you to cancel any other instalment.
8. Defective Products and returns
8.1 In the unlikely event that the Products and Services do not conform with these Conditions, please let us know as soon as possible after delivery of the Products and Services. On a date agreed between us, we will check that the Products and Services are faulty. We will then:
8.1.1 provide you with a full or partial refund;
8.1.2 replace the Products;
8.1.3 repair the Products;
8.1.4 re-perform the Services.
9. Title and risk
9.1 The Products will be your responsibility from the time of delivery.
9.2 Ownership of the Products will only pass to you when we receive payment in full of all sums due for the Products, including delivery charges.
10. Price and payment
10.1 The price of the Products will be as set out in the quotation we provided to you or, if we have not provided a quotation or the quotation has expired, in our price list in force at the time the Contract comes into existence. In relation to Products, prices will not exceed 120% of the trade purchase price at which we buy the Products from our suppliers.
10.2 Prices are liable to change at any time, but price changes will not affect Orders that we have confirmed in writing.
10.3 These prices include VAT. However, if the rate of VAT changes between the date of the Order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Products and Services in full before the change in the rate of VAT takes effect.
10.4 We may invoice you for the Products and Services at any time after we have provided the Services to you. You must pay the invoice immediately on presentation of the invoice by debit card, credit card, cash or BACS. If you pay by credit card, a charge of 2% of the total amount paid will be levied.
10.5 If you do not make any payment due to us by the due date for payment (as set out in condition 10.5), we may charge interest to you on the overdue amount at the rate of 5% a year above the base lending rate of Lloyds TSB from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with the overdue amount.
10.6 Without limiting any other remedies or rights that we may have, if you do not pay us on time, we may cancel or suspend any other outstanding Order until you have paid the outstanding amounts.
10.7 Conditions 10.5 and 10.6 shall not apply for the period of the dispute if you dispute the payment owing in good faith and let us know promptly after you have received the invoice that you dispute it.
11. Limitation of liability
11.1 This condition 11 does not include or limit in any way our liability for:
11.1.1 death or personal injury caused by our negligence;
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 any breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
11.1.4 losses for which it is prohibited by section 7 of the Consumer Protection Act 1987 to limit liability; or
11.1.5 any other matter for which it would be illegal or unlawful for us to exclude or attempt to exclude our liability.
11.2 Subject to condition 11.1:
11.2.1 if either of us fails to comply with these Conditions, neither of us shall be responsible for any losses that the other suffers as a result, except for those losses which are a foreseeable consequence of the failure to comply with these Conditions;
11.2.2 neither of us shall be responsible for losses that result from our failure to comply with these Conditions including, but not limited to, losses that fall into the following categories:
(a) loss of income or revenue or profit;
(b) loss of business;
(c) loss of anticipated savings;
(d) loss of data; or
(e) any waste of time.
However, this condition 11.2.2 shall not prevent claims for foreseeable loss of, or damage to, your physical property;
11.2.3 our total liability to you 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 not exceed £1,000,000.
12. Events outside our control
12.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Conditions that is caused by events outside our reasonable control (Force Majeure Event).
12.2 A Force Majeure Event includes any act, event, non-occurrence, omission or accident beyond our reasonable control and includes, in particular (without limitation), the following:
12.2.1 strikes, lock-outs or other industrial action;
12.2.2 civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
12.2.3 fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
12.2.4 impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
12.2.5 impossibility of the use of public or private telecommunications networks; or
12.2.6 failure of a third party supplier.
12.3 Our obligations under these Conditions are suspended for the period that the Force Majeure Event continues, and we will have an extension of time to perform these obligations for the duration of that period. We will take reasonable steps to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Conditions can be performed despite the Force Majeure Event.
You may not transfer any of your rights or obligations under these Conditions to another person without our prior written consent, which we will not withhold unreasonably. We can transfer all or any of our rights and obligations under these Conditions to another organisation, but this will not affect your rights under these Conditions.
All notices sent by you to us must be sent to Warm and Dry at 10 Flimwell Close, Flimwell, Wadhurst, TN5 7PP. We may give notice to you at either the e-mail or postal address you provide to us in the Order. Notice will be deemed received and properly served 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that the e-mail was sent to the specified e-mail address of the addressee.
15.1 If any court or competent authority decides that any of the provisions of these Conditions are invalid, unlawful or unenforceable to any extent, the term will, to that extent only, be severed from the remaining conditions, which will continue to be valid to the fullest extent permitted by law.
15.2 If we fail, at any time while these Conditions are in force, to insist that you perform any of your obligations under these Conditions, or if we do not exercise any of our rights or remedies under these Conditions, that will not mean that we have waived such rights or remedies and will not mean that you do not have to comply with those obligations. If we do waive a default by you, that will not mean that we will automatically waive any subsequent default by you. No waiver by us of any of these Conditions shall be effective unless we expressly say that it is a waiver and we tell you so in writing.
15.3 A person who is not party to these Conditions shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
15.4 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.