These are the terms and conditions (the “Terms”) on which we, Castrads North America Inc., will supply to you the products (the “Products”) and/or services (the “Services”) you are ordering from us or we are providing to you. Please read them carefully before you submit your order to us.
Are you a business or a consumer?
In some areas you will have different rights depending on whether you are a business or consumer.
We supply to both businesses and consumers, for example we supply to:
- private individuals who buy our Products for installation into their home – this is a consumer;
- companies purchasing our Products for use in their business – this is a business;
- property developers purchasing our Products for installation in houses or flats for sale/ rent – this is a business; and
- traders who fit our products on behalf of property developers or similar businesses – this is a business.
If you are a consumer, please click here for the terms and conditions which apply to you.
If you are a business, please click here for the terms and conditions which apply to you.
Consumer terms & conditions of sale
Last updated: September 25th 2019
These Terms assume that you are a consumer (meaning you are an individual acting outside the course of your business, trade or profession and are buying Products from us wholly or mainly for your personal use). If this is not the case, then you are a business and the trade terms and conditions will apply to you and any order you make with us.
Please note that before placing an order you will be asked to agree to these Terms. If you refuse to accept these Terms, you will not be able to order any Products and/or Services.
You will receive a link to these Terms and certain pre-contract information in your confirmation email once your order has been confirmed (please see clause 7.3 below).
We amend these Terms from time to time as set out in clause 9. Every time you wish to order Products and/or Services, please check these Terms to ensure you understand the Terms which will apply at that time.
These Terms, and any contract between us, will only be made in the English language.
1. Information about us
We are Castrads North America Inc., a company incorporated in the state of New York with our registered office at New York Design Center, Suite #417A, 200 Lexington Avenue, New York, NY 10016. Our website is www.castrads.com/us/.
1.1 Contacting us:
1.1.1 To cancel a Contract in accordance with your legal right to do so as set out in clause 10, you just need to let us know that you have decided to cancel. The easiest way to do this is to send an email to email@example.com. If you use this method we will email or call you to confirm we have received your cancellation. You can also contact our Customer Services team by telephone on (917) 599-9951 or by post to New York Design Center, Suite #417A, 200 Lexington Avenue, New York, NY 10016. If you are emailing us or writing to us please include details of your order to help us to identify it. If you send us your cancellation notice by email or by post, then your cancellation is effective from the date you send us the email or post the letter to us. You can use the model cancellation form set out at the end of these Terms if you want to.
1.1.2 If you wish to contact us for any other reason, including because you have any complaints, you can contact us by telephoning our customer service team at (917) 599-9951 or by emailing us at firstname.lastname@example.org.
1.1.3 If we have to contact you or give you notice in writing, we will do so by email or by pre-paid post to the address you provide to us in your order.
1.1.4 When we use the words “writing” or “written” in these Terms, this includes emails.
2. Our Products
2.1 The images of the Products on our website, in our colour samples and in our brochures are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that your computer’s display of the colours and/or our brochures/colour samples accurately reflect the colour of the Products. Your Products may vary slightly from those images and there can be discrepancies between those colours advertized and the final Products.
2.2 Radiators supplied in a primer coating must be painted with a suitable and heat-resistant paint. We would always suggest that you engage us to provide this Service for you and top-coat the radiators for you. Please be aware that a primer is not a top-coat and if no paint is applied to the Product at all, or if a paint we have not recommended is applied to the Product, we cannot accept liability for longevity of the finish (for example, a radiator will scratch more easily than if it had a top-coat).
2.3 For those radiators which we supply in a polished finish, we note that 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 you require the rear of the radiator to be polished, you must make us aware of this before placing the order. Please note that there will be an additional charge for any polishing Services.
2.4 Our Products should be maintained at all times in accordance with manufacturer’s guidelines and all supplementary guidance notes we provide.
2.5 Certain Products are supplied in crackle, electroplated or powder coated finishes. You should expect some variance from one section to the next because the finishes are applied to each individual section separately.
2.6 YOU CANNOT RELY ON SIZE ESTIMATES; DO NOT ALTER YOUR PROPERTY OR LAY ANY PIPEWORK UNTIL THE PRODUCT HAS BEEN POSITIONED OR UNTIL YOU HAVE CONFIRMED ACCURATE MEASUREMENTS.
Although we have made every effort to be as accurate as possible, because some of our Products are bespoke and handmade, all measurements indicated on our site are subject to manufacturing tolerances and all measurements provided are estimates. For this reason, we strongly recommend that you position your Product in your property before installing any pipework or making any other structural or non-structural alteration to your property and stress that you cannot rely on these size estimates. If we are making the Product to measurements you have given us you are responsible for ensuring that these measurements are correct. You can find information and tips on how to measure correctly and accurately by contacting us or referring to our website.
2.7 If you need to lay the pipework and make alterations to your property prior to receiving the Product, we can upon reasonable request supply you with an accurate pipe-centre measurements document which will contain exact measurements (including pipe centre, inlet and outlet, and distance to floorboard) which you can at this point rely on. We cannot accept responsibility for any remedial works required should pipework be laid in a position not in accordance with our confirmed accurate pipe-centre measurements document.
2.8 All of the Products we supply are subject to those terms and conditions relating to assembly and finish, as set out in clause 3.
2.9 Our rights to make changes
2.9.1 Minor changes to the Products. We may change the Products:
22.214.171.124 to reflect changes in relevant laws and regulatory requirements, for example the type of paint of packaging we use; and
126.96.36.199 to implement minor technical adjustments and improvements, for example to address a security threat. These changes will not affect your use of the Products.
2.9.2 More significant changes to the Products. In addition, we may make the following changes to the Products, but if we do so we will notify you and you may then contact us to end the Contract before the changes take effect and receive a refund for any Products paid for but not received: design changes to a product; changes to the precise colour of a finish; the method by which we achieve a finish or; exact size of a product (for instance where we have changed the mould used for a cast iron radiator).
3. The assembly and finish of our Products
Not all of our Products are delivered fully assembled.
3.1 All of our sectional radiators are assembled to a restricted size due to haulage and manoeuvrability considerations and most importantly, due to health and safety considerations. The maximum size for each radiator is provided within the description provided on our website and referred to as SMax. If you order a sectional radiator in excess of its prescribed restricted size (as provided within the description on our website) 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 sassembly instructions for you to assemble yourself upon receipt.
3.2 If this is unacceptable to you, we would ask you not to submit 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 certain locations. 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.
3.3 We may add one or two extra leg sections to larger radiators to distribute the weight and reserve the right to vary the assembly structure according to the available geometry.
3.4 The packaging of the Products may vary from that shown on images on our website.
4. Our Services
4.1 We will supply the Services to you within the time estimated [in the Estimated Completion Date Email] or as otherwise agreed between us.
4.2 We will make every effort to complete the Services on time. However, there may be delays due to an Event Outside Our Control. See clause 17 for our responsibilities when an Event Outside Our Control happens.
4.3 We may have to suspend the Services if we have to deal with technical problems. We will contact you to let you know in advance where this occurs, unless the problem is urgent or an emergency.
4.4 If as part of the Services provided to you we design the Product for you, we will own the copyright, design rights and all other intellectual property rights in the Product and any drafts, drawings or illustrations we make in connection with the Product for you.
4.5 Notes specific to our Radiator Refurbishment Service. This service carries some inherent risks. Please read our separate Radiator Refurbishment Terms & Conditions for full details.
5. Use of our website
Your use of our website is governed by our Website Acceptable Use Policy. Please take the time to read these, as they include important terms which apply to you.
6. How we use your personal information
7.If you place your order online
How the Contract is formed between you and us
7.1 Our shopping pages will guide you through the steps you need to take to place an order with us. Our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each page of the order process.
7.2 After you place an order, you will receive an email from us acknowledging that we have received your order. However, please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 7.3.
7.3 We will confirm our acceptance to you by sending you an email confirmation (Confirmation Email). The Contract between us will only be formed when we send you this Confirmation Email.
7.4 If we are unable to supply you with a Product, for example because that Product is not in stock or no longer available or because we cannot meet your requested delivery date or because of an error in the price on our site as referred to in clause 13.4, we will inform you of this by email and we will not process your order. If you have already paid for the Products, we will refund you the full amount including any delivery costs charged as soon as possible.
8. If you place your order over the telephone or by email
How the Contract is formed between you and us
8.1 Having browsed our website and/or brochures, if you decide that you would prefer to place your order with us over the telephone or by email, the Contract will be formed in accordance with the process set out in this clause 8.
8.2 Having contacted us by telephone to let us know the Products and/or Services you would like to receive, you will receive an email from us containing our quote. All quotes refer to (and incorporate into any Contract between us) these Terms. Please note that receipt of our quote does not mean that your order has been accepted and our acceptance of your order will take place as described in clause 8.5.
8.3 Our sales process has been designed to allow you to check and amend any errors in the quote before forming the Contract, so as to avoid any mistakes which can be made in concluding Contracts by this method. Please therefore take the time to check your quote carefully.
8.4 Once you are satisfied that the quote is accurate and that you would like to proceed based on the order set out within the quote, but subject to these Terms, you should contact us by telephone again to confirm the same and to make payment as necessary.
8.5 Following the conclusion of our telephone call, we will confirm our acceptance to you by sending you a Confirmation Email. The Contract between us will only be formed when we send you this Confirmation Email.
8.6 If we are unable to supply you with a Product, for example because that Product is not in stock or no longer available or because we cannot meet your requested delivery date or because of an error in the price on our site as referred to in clause 13.4, we will inform you of this by email and we will not process your order. If you have already paid for the Products, we will refund you the full amount including any delivery costs charged as soon as possible.
9. Our right to vary these Terms
9.1 We amend these Terms from time to time. Please see the start of these Terms to see when these Terms were last updated.
9.2 Every time you order Products from us, the Terms in force at the time of your order will apply to the Contract between you and us.
9.3 We may revise these Terms as they apply to your order from time to time to reflect changes in relevant laws and regulatory requirements. If we have to revise these Terms as they apply to your order, we will contact you to give you reasonable advance notice of the changes and let you know how to cancel the Contract if you are not happy with the changes. If advance notice cannot be provided, we shall advise you of the change as soon as practicable after it has been made. You may cancel either in respect of all the affected Products or just the Products you have yet to receive. If you opt to cancel, you will have to return (at our cost) any relevant Products you have already received and we will arrange a full refund of the price you have paid, including any delivery charges.
10. Your consumer right of return and refund
10.1 Your rights when you end the Contract will depend on what you have bought, whether there is anything wrong with it, how we are performing and when you decide to end the Contract.
Your rights to end the Contract
10.2 If what you have bought is faulty or misdescribed you may have a legal right to end the Contract (or to get the Product repaired or replaced or a Service re-performed or to get some or all of your money back – see clause 10.12 below).
10.3. If you want to end the Contract because of something we have done or have told you we are going to do. If you are ending a Contract for a reason set out at 10.3.1 to 10.3.5 below the Contract will end immediately and we will refund you in full for any Products which have not been provided. The reasons are:
10.3.1 we have told you about an upcoming change to the Product or these terms which you do not agree to (see clause 2.9.2);
10.3.2 we have told you about an error in the price or description of the Product you have ordered and you do not wish to proceed;
10.3.3 there is a risk that supply of the Products may be significantly delayed because of events outside our control (see clause 17);
10.3.4 we have suspended supply of the Products for technical reasons, or notify you we are going to suspend them for technical reasons, in each case for a period of more than [insert]; or
10.3.5 you have a right to end the Contract because of something we have done wrong (including because we have delivered late (see clause 11.6).
10.4 If you have changed your mind about a Product or Services you may be able to get a refund if you are within the cooling-off period (see clause 10.5 below), but this may be subject to deductions and you may have to pay the costs of return of any goods.
10.5 If you are a consumer, you may cancel a Contract for off-the-shelf products only. Your right to cancel a Contract starts from the date of the Confirmation Email (the date on which we email you to confirm our acceptance of your order), which is when the Contract between us is formed. Your deadline for cancelling the Contract then depends on what you have ordered and how it is delivered, as set out in the table below. This means that during the relevant period if you change your mind or decide for any other reason that you do not want to receive or keep a Product or receive the Services, you can notify us of your decision to cancel the Contract and receive a refund.
We do not offer refunds on non-faulty custom-built products. For the avoidance of doubt, our sectional cast iron and steel radiators are, unless otherwise stated, all custom-built.
|Your Contract||End of the cancellation period|
|Your Contract is for a single Product (which is not delivered in instalments on separate days).||The end date is the end of 14 days after the day on which you receive the Product.
Example: if we provide you with a Confirmation Email on 1 January and you receive the Product on 10 January you may cancel at any time between 1 January and the end of the day on 24 January.
|Your Contract is for either of the following:
One Product which is delivered in instalments on separate days.
Multiple Products which are delivered on separate days.
|The end date is 14 days after the day on which you (or someone you nominate) receives the last instalment of the Product or the last of the separate Products ordered.
Example: if we provide you with a Confirmation Email on 1 January and you receive the first instalment of your Product or the first of your separate Products on 10 January and the last instalment or last separate Product on 15 January you may cancel in respect of all instalments and any or all of the separate Products at any time between 1 January and the end of the day on 29 January.
|Your Contract is for the regular delivery of a Product over a set period.||The end date is 14 days after the day on which you (or someone you nominate) receives the first delivery of the Products.
Example: if we provide you with a Confirmation Email on 1 January in respect of Products to be delivered at regular intervals over a year and you receive the first delivery of your Product on 10 January, you may cancel at any time between 1 January and the end of the day on 24 January. 24 January is the last day of the cancellation period in respect of all Products to arrive during the year.
|Your Contract is for Services||You have 14 days after the date of the Conformation Email. However, once we have completed the Services you cannot change your mind, even if the period is still running. If you cancel after we have started the Services, you must pay us for the Services provided up until the time you tell us that you have changed your mind.|
10.6 To cancel a Contract, you just need to let us know that you have decided to cancel. The easiest way to do this is to send an email to email@example.com. If you use this method we will email you to confirm we have received your cancellation. You can also contact our Customer Services team by telephone on (917) 599-9951. If you are emailing us then please include details of your order to help us to identify it. If you send us your cancellation notice by email, then your cancellation is effective from the date you send us the email. For example, you will have given us notice in time as long as you email us before midnight on that day. You can use the model cancellation form set out at the end of these Terms if you want to.
10.7 However, this right of cancellation does not apply if surface finishings have been applied to Products at your specification and direction (for example, primer finish, painting, polishing or powder coatings). In the case of Products which have received surface finishings at your specification:
10.7.1 our work in the provision of these Services and the additional products used as part of these Services cannot be cancelled once this work has been undertaken (as permitted by law); and
10.7.2 due to the additional works involved in restoring the Products following a full surface finish, we are not obliged to provide a refund if the goods have been finished at your specification.
10.8 If you cancel your Contract we will:
10.8.1 refund you the price you paid for the Products, other than:
10.8.1.1 in the case of surface finishings applied to Products at your specification and direction and in which case, in accordance with clause 10.7, due to the additional works involved in restoring the Products following a full surface finish, we will not be obliged to offer a refund for the Product; and
10.8.1.2 to reflect any reduction in the value of the Products, if this has been caused by your handling them in a way which would not be permitted in a shop (as we are permitted to do by law),
save that if we refund you the price paid before we are able to inspect the Products and later discover you have handled them in an unacceptable way, you must pay us an appropriate amount;
10.8.2 (unless the Product is faulty or not as described and in which case refer to clause 10.9) refund any delivery costs you have paid, although, as permitted by law, the maximum refund will be the costs of delivery by the least expensive delivery method we offer (provided that this is a common and generally acceptable method). For example, if we offer delivery of a Product within 3-5 days at one cost but you choose to have the Product delivered within 24 hours at a higher cost, then we will only refund what you would have paid for the cheaper delivery option; and
10.8.3 make any refunds due to you as soon as possible and in any event within the deadlines indicated below:
10.8.3.1 if you have received the Product and we have not offered to collect it from you: the end of 14 days after the day on which we receive the Product back from you or, if earlier, the day on which you provide us with evidence that you have sent the Product back to us.; or
10.8.3.2 if you have not received the Product or you have received it and we have offered to collect it from you: the end of 14 days after you inform us of your decision to cancel the Contract.
10.9 If you have returned the Products to us under this clause 10 because they are faulty or mis-described, we will refund the price of the Products in full, together with any applicable delivery charges, and any reasonable costs you incur in returning the item to us.
10.10 We will refund you by the same method used by you to pay, unless agreed between us otherwise.
10.11 If a Product has been delivered to you before you decide to cancel your Contract:
10.11.1 then you must return it to us without undue delay and in any event not later than 14 days after the day on which you let us know that you wish to cancel the Contract. If we have offered to collect the Product from you, we will collect the Products from the address to which they were delivered. We will contact you to arrange a suitable time for collection; and
10.11.2 unless the Product is faulty or not as described (in this case, see clause 10.9), you will be responsible for the cost of returning the Products to us. We estimate that if you use the carrier which delivered the Product to you, these costs should not exceed the sums we charged you for delivery. If we have offered to collect the Product from you, we will charge you the direct cost to us of collection.
Please pay particular attention to clause 11.2.
11.1 We aim to deliver most goods in the times estimated but not more than 30 days after the expected completion date specified in the Expected Completion Date Email in the case of bespoke radiator orders, or after the Confirmation Email (which we email you to confirm our acceptance of the order) in the case of off-the-shelf orders. However, this can take longer in the case of bespoke Products (particularly, in relation to the Aged Copper finish) which we will bring to your attention prior to Contract formation. Likewise, we will always contact you 1 or 2 days prior to dispatch in the case of radiator orders. Occasionally our delivery to you may be affected by an Event Outside Our Control. See clause 17 for our responsibilities when this happens. We strongly recommend that because our delivery dates are estimates only, you refrain from hiring professionals (such as plumbers) until the Products have been delivered.
11.2 If no one is available at your address to take delivery, we will endeavour to leave you a note that the Products have been returned to our premises. In such case, please contact us (using the details at clause 1 above) to arrange a re-delivery time and date. Because of the size and weight of our Products, we reserve the right to charge you for re-delivery if you haven’t been in at the delivery address at the time and date we have pre-notified you of. If you do not re-arrange delivery we will contact you with further instructions, and may charge you for storage costs and any further delivery costs. If despite our reasonable efforts, we are unable to contact you to re-arrange delivery we may end the Contract.
11.3 We always expect that you will want the Products and/or Services as soon as possible. If this is not the case, please let us know and we will delay production as per your timetable. In the event that we are required to store your Products for any longer than two weeks at our factory without having received warning at the point of order, we reserve the right to charge you for our costs including insurance.
11.4 Delivery of an order shall be completed when we deliver the Products to the address you gave us and the Products will be your responsibility from that time.
11.5 You own the Products once we have received payment in full, including all applicable delivery charges.
11.6 If we miss the delivery deadline for any Products then you may cancel your order straight away if any of the following apply:
11.6.1 we have refused to deliver the Products;
11.6.2 delivery within the delivery deadline was essential (taking into account all the relevant circumstances); or
11.6.3 you told us before we accepted your order that delivery within the delivery deadline was essential.
11.7 If you do not wish to cancel your order straight away, or do not have the right to do so under clause 11.6 , you can give us a new deadline for delivery, which must be reasonable, and you can cancel your order if we do not meet the new deadline.
11.8 If you do choose to cancel your order for late delivery under clause 11.6 or clause 11.7, you can do so for just some of the Products or all of them, unless splitting them up would significantly reduce their value. If the Products have been delivered to you, you will have to return them to us or allow us to collect them, and we will pay the costs of this. After you cancel your order we will refund any sums you have paid to us for the cancelled Products and their delivery.
12. International delivery
12.1 We deliver to a variety of international destinations and for any non-US residents, we would ask that you contact our sales staff before placing an order, to confirm that we can deliver to your home-state. However there are restrictions on some Products for certain international delivery destinations, so please review the information on the relevant Product page(s) carefully before ordering Products.
12.2 If you order Products from our site for delivery to one of the international delivery destinations, your order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and we cannot predict their amount.
12.3 You will be responsible for payment of any such import duties and taxes unless our quote for delivery explicitly includes these costs. Please contact your local customs office for further information before placing your order.
12.4 You must comply with all applicable laws and regulations of the country for which the Products are destined. We will not be liable or responsible if you break any such law.
13. Price of products and delivery charges
13.1 The prices of the Products will be as quoted on our website at the time you submit your order. We take all reasonable care to ensure that the prices of Products are correct at the time when the relevant information was entered onto the system. However please see clause 13.4 for what happens if we discover an error in the price of Product(s) you ordered.
13.2 Prices for our Products may change from time to time, but changes will not affect any order you have already placed.
13.3 The price of a Product does not include delivery charges. Our delivery charges are as advised to you during the check-out process or via the telephone or in our quote, before you confirm your order.
13.4 Our website contains a large number of Products. It is always possible that, despite our reasonable efforts, some of the Products on our website may be incorrectly priced. We will normally check prices as part of our dispatch procedures. However, if the pricing error is obvious and unmistakable and could have reasonably been recognized by you as a mispricing, we do not have to provide the Products to you at the incorrect (lower) price. If the Product’s correct price is higher than the price stated on our website, we will contact you as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Product at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing.
14. How to pay
14.1 We accept payment by bank transfer, credit or debit card, check, cash and PayPal.
14.2 Payment for the Products and all applicable delivery charges is due in full in advance of delivery.
14.3 If you do not make any payment to us by the due date we may charge interest to you on the overdue amount at the rate of 2% a year above the base lending rate of the Federal Reserve 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 any overdue amount.
15. Our Ironshield Warranty
15.1 We provide a warranty for our non-electrical products – this is our “Ironshield Warranty”. The terms of this Ironshield Warranty are posted on our website here.
15.2 To benefit from our Ironshield Warranty, the Product and warranty must be registered with us within one (1) year of the Product being delivered by us. To register the Product and warranty, please contact us using the details set out in clause 1 above. If the Products have not been registered with us for the warranty within this one (1) year period, we may be able to offer warranty terms at a later date for an additional fee.
15.3 Our standard Ironshield Warranty is that our non-electrical products, including our cast iron and steel radiators, valves, brackets and tools shall be free from manufacturing defects for 10 years.
15.4 We can also offer an extended 25 year warranty for an additional fee. This must be brought to our attention before the Contract is formed so please contact our sales staff to discuss the same before concluding your order.
15.5 If you are a consumer, the Ironshield Warranty is in addition to, and does not affect, your legal rights in relation to Products that are faulty or not as described.
16. Our liability to you
16.1 If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of our breach or if it was contemplated by you and us at the time we entered into this Contract.
16.2 We are not responsible for loss which arises when we are not at fault or in breach of these Terms. We are not responsible for any damage caused by installation of our Products by a third-party or any other losses we didn’t cause and always recommend that you use a qualified and competent plumber to install our Products into your Property.
16.3 As we are selling to you as a consumer we are not responsible for any business or non-consumer losses (for example, loss of profit, loss of business, business interruption or loss of business opportunity). We only supply the Products for domestic and private use. You agree not to use the Product(s) for any commercial, business or resale purposes.
16.4 We do not in any way exclude or limit our liability for:
16.4.1 death or personal injury caused by our negligence;
16.4.2 fraud or fraudulent misrepresentation;
16.4.3 for breach of your legal rights in relation to the Products including the right to receive Products which are: as described and match information we provided to you and any sample or model seen or examined by you; of satisfactory quality; fit for any particular purpose made known to us; supplied with reasonable skill and care and, where installed by us, correctly installed.
17. Events outside our control
17.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause 17.2.
17.2 An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
17.3 If an Event Outside Our Control takes place that affects the performance of our obligations under a Contract:
17.3.1 we will contact you as soon as reasonably possible to notify you; and
17.3.2 our obligations under a Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control.
Where the Event Outside Our Control affects our delivery of Products to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
17.4 You may cancel a Contract affected by an Event Outside Our Control which has continued for more than 60 days. To cancel please contact us. If you opt to cancel, you will receive a refund for any Products (including delivery charges) for any Products you have paid for but not received.
18. Other important terms
18.1 We may transfer our rights and obligations under a Contract to another organization, but this will not affect your rights or our obligations under these Terms. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the Contract OR We will contact you to let you know if we plan to do this. If you are unhappy with the transfer you may contact us to end the Contract within [insert timescale] of us telling you about it and we will refund you any payments you have made in advance for Products not provided].
18.2 You may only transfer your rights or your obligations under these Terms to another person if we agree in writing (except in the case of transfers of our Ironshield Warranty – please see below for further details).
18.3 This Contract is between you and us. No other person shall have any rights to enforce any of its terms.
18.4 Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
18.5 If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you. For example, if you miss a payment and we do not chase you but we continue to provide the Products, we can still require you to make the payment at a later date.
18.6 Nobody else has any rights under this Contract (except someone you pass your warranty on to in accordance with our Ironshield Warranty terms). This Contract is between you and us. No other person shall have any rights to enforce any of its terms, except as explained in clause 18.2 in respect of our warranty. Neither of us will need to get the agreement of any other person in order to end the Contract or make any changes to these terms.
18.7 Please note that these Terms are governed by New York State law.
MODEL CANCELLATION FORM
To: Castrads North America Inc., New York Design Center, Suite #417A, 200 Lexington Avenue, New York, NY 10016
Telephone: (917) 599-9951
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]/for the supply of the following service [*]:
Ordered on [*]/received on [*],
Order reference number:
Name of consumer(s):
Address of consumer(s):
Signature of consumer(s) (only if this form is notified on paper):
[*] Delete as appropriate
Business terms & conditions of sale
Last updated: September 25th 2019
These terms and conditions (the “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 federal holiday in the United States.
Has the meaning set out in clause 2.2.
These Terms as amended from time to time in accordance with clause 18.7.
Has the meaning set out in clause 3.3.
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 North America Inc., a company incorporated in the state of New York with our registered office at New York Design Center, Suite #417A, 200 Lexington Avenue, New York, NY 10016.
All documents, information and materials provided by the Supplier relating to the Goods and/or Services including data, reports, manuals, handbooks and specifications.
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 the Order 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 3.3.
3.3 The Supplier will confirm its acceptance of the Order to the Customer by sending an email confirmation (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. 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 subject to these Terms, 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 a 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 unloading of the Goods 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 4 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 a weekly rate 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.
6.8 The Supplier will not be liable to the Customer where any installations of the Goods cannot be undertaken because access is denied due to restrictions provided by other furnishings, fixtures or fittings in the premises and/or due to plumbing restrictions or denied access to buildings in the vicinity of the relevant premises.
7. Quality of Goods
7.1 Warranty: 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 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.
7.3 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 cannot accept liability for the longevity of the finish (for example, a radiator will scratch more easily than if it had a top-coat).
7.4 For those radiators which are 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.
7.5 All Goods should be maintained at all times in accordance with manufacturer’s guidelines and all supplementary guidance notes provided by the Supplier.
7.6 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.
7.7 THE CUSTOMER CANNOT 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 some of the Goods are bespoke and handmade, all measurements stipulated in brochures or on the Supplier’s website have a manufacturing 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 cannot rely on these size 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 cannot 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. If the Supplier is making the Goods to measurements the Customer has given to the Supplier the Customer is responsible for ensuring that these measurements are correct. The Customer can find information and tips on how to measure correctly and accurately by contacting the Supplier or referring to the Supplier’s website.
7.8 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 website) 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 certain locations. 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.
7.9 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.
7.10 The packaging of the Goods may vary from that shown on images on the Supplier’s website or in the Supplier’s brochures.
7.11 Subject to clause 7.1, if:
7.11.1 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;
7.11.2 the Supplier is given a reasonable opportunity of examining such Goods; and
7.11.3 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.
7.12 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 7.1 if:
7.12.1 the Customer moves the Goods in a manner other than in accordance with the radiator handling guide which is supplied in your Confirmation Email or within the Help Guide supplied on delivery;
7.12.2 the Customer fails to maintain the Goods at all times in accordance with manufacturer’s guidelines and all supplementary guidance notes we provide;
7.12.3 the Customer makes any further use of such Goods after giving a notice in accordance with clause 7.9;
7.12.4 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 self-assembly and movement guides;
7.12.5 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
7.12.6 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;
7.12.7 the defect arises as a result of fair wear and tear, wilful damage, negligence by the Customer or any third party, or abnormal storage or working conditions; or
7.12.8 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
7.12.9 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.
7.13 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, referred to in clause 7.1.
7.14 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
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:
188.8.131.52 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
184.108.40.206 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.
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 at the relevant premises; 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 Contract 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 or the provision of the Goods 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 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 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:
220.127.116.11 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);
18.104.22.168 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
22.214.171.124 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, and where relevant as set out in the Confirmation Email.
In respect of Goods and Services ordered by the Customer over the telephone –
13. 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 of 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 unless credit terms have been formally agreed.
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.
14.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services and/or the Goods to the Customer.
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 clauses 15.1 and 15.2:
15.2.1 under no circumstances be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for
126.96.36.199 loss of profits;
188.8.131.52 loss of sales or business;
184.108.40.206 loss of agreements or contracts;
220.127.116.11 loss of anticipated savings;
18.104.22.168 loss of data or information;
22.214.171.124 loss of or damage to goodwill;
126.96.36.199 any indirect and consequential loss; 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 200% of the price paid or payable to the Supplier for 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 $2,000.00 (that is, 200% of $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;
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 and any Goods 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 and any Goods 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 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, by commercial courier or by email to firstname.lastname@example.org.
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, one 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.
18.4 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 New York state.
18.9 Jurisdiction. Each party irrevocably agrees that the courts of New York state 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).