These Terms assume that you are a business (meaning you are acting within the course of your business, trade or profession). If this is not the case, then you are a consumer and the consumer terms and conditions listed will apply to you and any order made.
The Customer's attention is particularly drawn to the provisions of clause 15.
In these Conditions, the following definitions apply:
Any day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Has the meaning set out in clause 2.2.
These terms and conditions as amended from time to time in accordance with clause 18.7.
The contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
The person or firm who purchases the Goods and/or Services from the Supplier.
Has the meaning set out in clause 6.2.
Force Majeure Event
Has the meaning given to it in clause 17.1.
The goods (or any part of them) set out in the Order.
Any specification for the Goods, including any relevant quote, plans or drawings agreed in writing by the Customer and the Supplier.
Intellectual Property Rights
Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world
The Customer's order for the supply of Goods and/or Services, as set out in:
(a) in the case of online purchases, the basket area of the Supplier’s website; or
(b) in the case of telephone or email orders, the Supplier’s Quote or Pro-forma Invoice as sent prior to (but incorporating any subsequent amendments agreed between the Supplier and the Customer in advance of) the Commencement Date,
(as the case may be).
The services, supplied by the Supplier to the Customer as set out in the Service Specification below.
The description or specification for the Services provided in writing by the Supplier to the Customer.
Castrads Limited, a company registered in England and Wales under company number 07750652 and with our registered office at 1 Kenwood Road, Stockport SK5 6PH.
In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory 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;
1.2.4 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; and
1.2.5 a reference to writing or written excludes faxes but includes emails.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order in accordance with clause 4 or clause 5 (as the case may be) at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract 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 by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained on the Supplier’s website or in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force. This is not a sale by sample.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. If the customer places its order online
How the contract is formed
3.1 The Supplier’s shopping pages are designed to guide the Customer through the steps it needs to take to place an Order with the Supplier. The Supplier’s order process allows the Customer to check and amend any errors in the Order before submitting its to the Supplier. The Customer should take the time to read and check its Order at each page of the order process.
3.2 After the Customer places an Order, it will receive an email from the Supplier acknowledging that the Supplier has received the Order. However, this does not mean that the Order has been accepted. The Supplier’s acceptance of the Order will take place as described in clause 10.3.
3.3 The Supplier will confirm its acceptance of the Order to the Customer by sending an email confirmation with an invoice and VAT invoice ( Confirmation Email). This will constitute the Commencement Date for the purposes of clause 2.2 and the Contract will only be formed once the Supplier has sent the Confirmation Email.
3.4 If the Supplier is unable to supply a Product, for example because that Product is not in stock or no longer available or because it cannot meet the Customer’s requested delivery date or because of an error in the price on the Supplier’s website, the Supplier will inform the Customer of this by email and the Supplier will not process the Order. If the Customer has already paid for the Products, the Supplier will refund the full amount including any delivery costs charged as soon as possible.
4. If the customer places its order on the telephone or by email
How the contract is formed
4.1 If the Customer seeks to place an Order with the Supplier over the telephone or by email, the Contract will be formed in accordance with the process set out in this clause 4.
4.2 The Customer will contact the Supplier by telephone to inform the Supplier of the Goods and/or Services it requires. Shortly afterwards, the Customer will receive an email from the Supplier containing the Supplier’s pro-forma invoice (containing details of the proposed Goods and/or Services to be supplied and a quotation). All pro-forma invoices and subsequent Contracts formed refer to (and incorporate into any contract between the Customer and the Supplier) these terms and conditions. Receipt of the Supplier’s pro forma does not mean that the Contract has been formed, which will take place as described in clause 4.5.
4.3 The Supplier’s sales process has been designed to allow the Customer to check and amend any errors in the Supplier’s pro-forma invoice before forming the contract, so as to avoid any mistakes which can be made in concluding contracts by this method. The Customer is advised to therefore take the time to check the terms of the quotation very carefully.
4.4 Once the Customer is satisfied that the Supplier’s pro-forma invoice is accurate and that it would like to proceed based subject to these terms and conditions, the Customer will then contact the Supplier by telephone again to confirm the same (and to make payment as necessary).
4.5 Following conclusion of the above mentioned telephone call, the Supplier will confirm its acceptance of the Order by sending the Customer an email confirmation including a VAT invoice (Confirmation Email). This will constitute the formation of the Contract and be deemed to be the Commencement Date for the purposes of clause 2.2 and the Contract will only be formed once the Supplier has sent the Confirmation Email.
4.6 Upon payment (or partial-payment(s) as the case may be) for the Goods and/or Services in accordance with this clause 4, the Supplier will supply the Customer with further invoice(s) recording monies paid and, if necessary, any outstanding balance in relation to that order (or any others).
4.7 If the Supplier is unable to supply a Product, for example because that Product is not in stock or no longer available or because it cannot meet the Customer’s requested delivery date or because of an error in the price on the Supplier’s website, the Supplier will inform the Customer of this by email and the Supplier will not process the Order. If the Customer has already paid for the Products, the Supplier will refund the full amount including any delivery costs charged as soon as possible.
5.1 The Goods are described in the Supplier's catalogue and website, as modified by any applicable Goods Specification.
5.2 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
6. Delivery of Goods
6.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
6.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree ( Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
6.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
6.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
6.6 If the Customer fails to accept or take delivery of the Goods within 6 weeks of the Supplier notifying the Customer that the Goods are ready (or asks for delivery to take place any later than 6 weeks from when the Goods are ready or anticipated to be ready), then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
6.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the expiry of 6 weeks following the day on which the Supplier notified the Customer that the Goods were ready; and
6.6.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer £100.00 + VAT per week for costs and expenses (including insurance) of storage.
6.7 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7. Quality of Goods
7.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery, the Goods shall:
7.1.1 conform in all material respects with their description and any applicable Goods Specification (subject to clauses 7.4 and 7.9.);
7.1.2 be free from material defects in design, material and workmanship; and
7.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979), however, this warranty does not apply in the circumstances described in clause 7.13.
7.2 The Supplier warrants further to clause 7.1 that on delivery, its cast iron and steel radiators (but for the avoidance of doubt, none of its valves and other items) shall be free from manufacturing defects for 10 years and its valves and other non-electrical accessories shall be free from manufacturing defects for 5 years. However, this warranty does not apply in the circumstances described in clause 7.13. The Supplier can offer an extended 25 year warranty for an additional fee (however this will only extend to cast iron or steel radiators (not valves and so forth). If the Customer requires an extended warranty, this must be brought to the Supplier’s attention before the Contract is formed.
7.3 The Goods may vary slightly from those images provided on the Supplier’s website or in the Supplier’s brochures and there can be discrepancies between those colours advertised and the final Goods. Likewise, any Goods supplied in non-standard colour-matched finishes may vary slightly from the images on the Supplier’s website.
7.4 Radiators supplied in a primer coating must be painted with a suitable and heat-resistant paint. It is strongly recommended that the Customer engages the Supplier to provide this Service to and top-coat the radiators. If the Customer chooses to do this itself, the Supplier strongly recommend that the Customer uses Hammerite radiator paint. WARNING: A primer is not a top-coat and if no paint is applied to the Goods at all, or if a paint the Supplier has not recommended is applied to the Goods, the Supplier can not accept liability for the longevity of the finish (for example, a radiator will scratch more easily than if it had a top-coat).
7.5 For those radiators which supplied in a polished finish, these products will not be polished on the rear, nor will they be polished in between sections or on the joining collar at the bottom of the radiator as it will be hidden under normal installation. If the Customer requires the rear of the radiator to be polished, it must make the Supplier aware of this before placing the order. There will be an additional charge payable by the Customer for any polishing services.
7.6 All Goods should be maintained at all times in accordance with manufacturer’s guidelines and all supplementary guidance notes provided by the Supplier.
7.7 Certain Goods are supplied in crackle, electroplated or powder coated finishes. The Customer should expect some variance from one section to the next because the finishes are applied to each individual section separately.
7.8 THE CUSTOMER CAN NOT RELY ON SIZE ESTIMATES; DO NOT ALTER PROPERTY OR LAY ANY PIPEWORK UNTIL THE PRODUCT HAS BEEN POSITIONED Although the Supplier will make every effort to be as accurate as possible, because the Goods are bespoke and handmade, all measurements stipulated in brochures or on the Supplier’s website have a 2% tolerance and all measurements provided are estimates. The Supplier strongly recommends that the Customer positions the Goods on its premises before installing any pipework or making any other structural or non-structural alteration to the premises. BE ADVISED; the Customer can not rely on these estimates. If the Customer needs to lay pipework or make alterations to its premises prior to receiving the Goods, the Supplier can upon reasonable request supply the Customer with a pipe-centre specification document which will contain exact measurements (including pipe centre, inlet and outlet, and distance to floorboard) which the Customer can at this point rely on. The Supplier can not accept responsibility for any remedial works required should pipework be laid in a position not in accordance with the Supplier’s pipe-centre specification document.
7.9 NOT ALL OF THE GOODS ARE DELIVERED AS FULLY ASSEMBLED All of the Supplier’s sectional radiators are assembled to a restricted size due to haulage and manoeuvrability considerations and most importantly, due to health and safety restrictions. The maximum size for each radiator is provided within the description provided on the Supplier’s website or within its brochures. If the Customer orders a sectional radiator in excess of its prescribed restricted size (as provided for within the description on our site) we will be unable to deliver this to you in a fully-assembled form and this will be assembled by us up to the maximum size, with the additional sections supplied separately with a radiator tool and some assembly instructions for you to assemble yourself upon receipt. If this is unacceptable to you, we would ask you not to complete your order until you have spoken to a member of staff (details of which are provided in clause 1 above). Any self-assembly of our Products is done so at your own risk and we strongly recommend that you contact us about the on-site assembly service we can supply to most locations within the United Kingdom. If we feel that the radiator is too large in one piece, we will contact you to discuss the possibility of delivery in two or more pieces.
7.10 We may add one extra leg section to larger radiators to distribute the weight and reserve the right to vary the assembly structure according to the available geometry.
7.11 The packaging of the Goods may vary from that shown on images on the Supplier’s website or in the Supplier’s brochures.
7.12 Subject to clause 7.13, if:
7.12.1 the Customer gives notice in writing during the relevant warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 7.1;
7.12.2 the Supplier is given a reasonable opportunity of examining such Goods; and
7.12.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
7.13 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 7.1 and clause 7.2 if:
7.13.1 the Customer moves the Goods in a manner other than in accordance with the radiator handling guide which is supplied in your Confirmation Email;
7.13.2 the Customer fails to maintain the Goods at all times in accordance with manufacturer’s guidelines and all supplementary guidance notes we provide;
7.13.3 the Customer makes any further use of such Goods after giving a notice in accordance with clause 7.9;
7.13.4 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice including (but not limited to) self-assembly and movement guides;
7.13.5 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
7.13.6 the Customer alters or repairs such Goods without the written consent of the Supplier including any painting of the Goods not performed by the Supplier;
7.13.7 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
7.13.8 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
7.13.9 the Goods are damaged during transit and this damage is not reported to the Supplier in writing within 48 hours of arrival at the Delivery Location.
7.14 Except as provided in this clause 7, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 7.1.
7.15 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 7.9.
8. Title and risk
8.1 The risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
8.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property; 8.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; 8.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery; 8.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 16.1.1 to clause 16.1.12; and 8.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
8.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 16.1.1 to clause 16.1.12, then, without limiting any other right or remedy the Supplier may have:
8.4.1 the Customer's right to resell Goods or use them in the ordinary course of its business ceases immediately; and
8.4.2 the Supplier may at any time:
18.104.22.168 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
22.214.171.124 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
9. Supply of Services
9.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
9.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified by us (in email or otherwise), but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
9.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
9.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
10. Customer's obligations
10.1 The Customer shall:
10.1.1 ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;
10.1.2 co-operate with the Supplier in all matters relating to the Services;
10.1.3 provide any and all necessary information required by the Supplier to provide the Services;
10.1.4 provide the Supplier, its employees, agents, consultants and subcontractors, with access to any necessary premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
10.1.5 provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
10.1.6 make the Supplier aware of any access restrictions; and
10.1.7 prepare any necessary premises for the supply of the Services.
10.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
10.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
10.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 10.2; and
10.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
11. Charges and payment
11.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list or website as the case may be as at the Commencement Date. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods.
11.2 Subject to clause 11.4, the charges for Services shall be agreed between the Customer and the Supplier and will be based on a fixed fee and/or day rate basis.
11.3 The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred and required by the Supplier for the performance of the Services, and for the cost of any materials.
11.4 The Supplier reserves the right to:
11.4.1 increase its fee rates for the charges for the Services as necessary in the event the Customer breaches any of its obligations under clause 10 to take into account any extra work reasonably required to be performed by the Supplier as a result, including (but not limited to) waiting times or having to return to the premises in the event the Customer is not present to allow access;
11.4.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
126.96.36.199 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
188.8.131.52 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
184.108.40.206 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
12. In respect of Goods and Services ordered by the Customer through the Supplier’s website – All payments must be made simultaneously with or in advance of the formation of the Contract.
13. In respect of Goods and Services ordered by the Customer over the telephone –
The Supplier may require a deposit to be paid on or before the Commencement Date at its Discretion. The Supplier will advise the Customer of such deposit which will be noted in its pro-forma invoice, and take any necessary payment, prior to formation the Contract. With regard to any monies which are not payable on or before the Commencement Date, such monies shall be payable within 30 days from the Commencement Date, or 5 Business Days prior to the estimated delivery date, whichever shall be the earliest.
For the avoidance of doubt, the Supplier will not deliver the Goods or supply the Services to the Customer until all arrears are cleared in full.
13.1 Time for payment shall be of the essence of the Contract.
13.2 All principal amounts payable by the Customer under the Contract are, except where indicated to the contrary, 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 by the Supplier to the Customer, the Customer shall, on receipt of a VAT invoice from the Supplier, pay to the Supplier 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.
13.3 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc'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.
13.4 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
14. Intellectual property rights
14.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
14.2 All Intellectual Property Rights in the Goods manufactured by the Supplier shall be owned by the Supplier.
14.3 All Supplier Materials are the exclusive property of the Supplier.
15. Limitation of liability
The customer's attention is particularly drawn to this clause.
15.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
15.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; 15.1.2 fraud or fraudulent misrepresentation; 15.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); 15.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or 15.1.5 defective products under the Consumer Protection Act 1987.
15.2 Subject to clause 15.1:
15.2.1 the Supplier shall, subject to clause 15.2.2:
220.127.116.11 be liable for all losses which are foreseeable to the Supplier at the Commencement Date;
18.104.22.168 under no circumstances be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any losses which were not foreseeable by the Supplier at the Commencement Date; and
22.214.171.124 not be liable for loss of profit in connection with the Contract; and
15.2.2 the Supplier's total liability to the Customer in respect of all 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 15 (FIFTEEN) times the value of those particular Goods and/or Services which are defective (Damage Value) and for the avoidance of doubt, the Damage Value shall not be deemed to include any other Goods and/or Services provided under the same Contract or otherwise and shall relate only to the Goods and/or Services which caused such damage.
The Customer operates a call-centre. The Customer Orders 5 radiators from the Supplier for £1,000.00 each and installs them into its commercial property. The installation is performed correctly. One of the radiators has a manufacturing defect, leaks and causes water-damage to the floor, wall and shorts a phone line, taking 5 call centre staff off-line for 2 hours. The water also damages a business-laptop which a call-centre worker had left on the floor charging underneath the radiator.
The Customer has to hire a contractor to repair the floor and wall and to fix and replace the phone line. The Supplier is obliged to replace the radiator in question. The Supplier is obliged to pay for those damages which would be reasonably foreseeable as a result of a leaking radiator (namely foreseeable damage to certain areas of the floor and walls, the contractor’s fees to repair floor and wall damage, and the plumber’s costs to install new radiator). The Supplier is not obliged to pay for those damages which were not reasonably foreseeable (including the laptop damage). The Supplier is not liable for the Customer’s loss of profit for the 2 hours its 5 staff were offline (and the Customer would rely on its own insurance for this).
In any event, the Supplier’s total maximum liability for the Customer’s losses in this case would be capped at £15,000.00 (that is, 15 x £1,000.00).
Had the Customer, perhaps rather unusually, installed a brand-new solid mahogany floor into its call-centre premises and invested in and hung some very expensive art adjacent to the faulty-radiator (neither of which being brought to the Supplier’s attention before the Commencement Date), and both were damaged by the above mentioned leak, such loss would not be foreseeable by the Supplier at the Commencement Date (that is, neither would be expected to be present in a commercial property of this nature) and the Supplier would not be liable for such damage.
15.3 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.
15.4 This clause 15 shall survive termination of the Contract.
16.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
16.1.1 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
16.1.2 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
16.1.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
16.1.4 the other party (being an individual) is the subject of a bankruptcy petition or order;
16.1.5 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
16.1.6 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
16.1.7 the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
16.1.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
16.1.9 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.1.1 to clause 16.1.8 (inclusive);
16.1.10 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
16.1.11 the other party's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
16.1.12 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
16.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
16.3 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 16.1.1 to clause 16.1.12, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
16.4 On termination of the Contract for any reason:
16.4.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
16.4.2 the Customer shall return all of the Supplier Materials which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
16.4.3 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
16.4.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
17. Force majeure
17.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
17.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
17.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 12 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
18.1 Assignment and other dealings.
18.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
18.1.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
18.2.1 Any notice or other communication given to a party under or in connection with this Contract 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 in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by email to [email protected]
18.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the Supplier’s registered office; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, two Business Days after transmission.
18.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
18.3.1 If any provision or part-provision of the Contract 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.
18.3.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.
18.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
18.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
18.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
18.8 Governing law. This Agreement 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 the law of England and Wales.
18.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).