TERMS & CONDITIONS
IN these Conditions (unless the context otherwise requires)
1.1 ‘the Supplier’ and ‘the Contractor’ means Kensington Security Doors & Windows and also (where the context so permits) its assigns and any sub-contractor for the said company;
1.2 ‘Goods’ means the goods (including any instalment of the goods or any parts for them) which the Supplier is to supply in accordance with these Terms and Conditions;
1.3 ‘Services’ means the services (if any) to be provided to the Customer by the Supplier pursuant to the Contract;
1.4 ‘the Customer’ means the person, firm or company with whom the Contract is made by the Supplier whether directly or indirectly through an agent or factor who is acting for or instructed by or whose actions are ratified by such person, firm or Company;
1.5 ‘Supplier’s Premises’ means the premises mentioned in the Supplier quotation or other contractual document in respect of the Goods or, if not so mentioned, means the Supplier’s premises at 2 Park Street, Chelsea Creek, London SW6FN;
1.6 ‘Customer’s Premises’ means the premises specified as such in the Contract;
1.7 ‘the Contract’ means these Conditions of Sale, the Supplier’s acknowledgement of the Customer’s order for the Goods and/or Services and if there shall be any inconsistency between the documents comprising the contract, they shall have precedence in the order herein listed;
1.8 words in the singular shall include the plural and vice versa;
1.9 reference to any gender shall include the others, and;
1.10 references to legal persons shall include natural persons and vice versa.
THESE Conditions shall be deemed to be incorporated in the Contract and in the case of any inconsistency with any order, letter or form of contract sent by the Customer to the Supplier or any other communication between the Customer and the Supplier, whatever their respective dates, the provisions of these Conditions shall prevail unless expressly varied in writing and signed by a director on the Supplier’s behalf. Any concession made or latitude allowed by the Supplier to the Customer shall not affect the rights of the Supplier under the Contract. If any of these Conditions shall be held to be invalid, or shall not apply to the Contract, the other Conditions shall continue in full force and effect.
3.1 NOTWITHSTANDING that the Supplier may have given a detailed quotation, no order shall be binding on the Supplier unless and until it has been accepted in writing by the Supplier. The Customer is required to have provided all relevant information to the Supplier by the time that an order becomes binding on the Supplier. Should it later be discovered by the Supplier that all relevant information was not provided to the Supplier, then the Supplier will be entitled to amend the terms of the order to reflect the changes in the information that was not provided to the Supplier when the order was committed.
3.2 It is the Customer’s responsibility to check that the Supplier’s written acceptance of the order is correct. Any discrepancy between the Customer’s order and the Supplier’s acceptance must be notified to the Supplier in writing within three (3) days of the date of acceptance. In the absence of such a notification the Supplier shall be entitled to supply goods in accordance with the acceptance, and the Customer shall be obliged to pay the agreed contract price thereof.
3.3 Although additions by the Customer to an order may arise, they will be treated as a new order, and should not be regarded by the Customer as necessarily being on the same terms and conditions as the main order, unless expressly agreed by the Supplier in writing.
3.4 The Supplier reserves the right not to make modifications to an order once it has been accepted. However, if the Supplier agrees to the Customer’s request for modifications, the Supplier may impose additional charges to be notified in writing to the Customer.
4.1 THE price of the Goods and Services shall be the price listed in the Supplier’s final quotation provided in writing to the Customer;
4.2 Where the Supplier has quoted a price for the Goods the price quoted shall be valid for twenty-eight (28) days only or such lesser time as the Supplier may specify;
4.3 The Supplier reserves the right, by giving written notice to the Customer at any time before delivery or provision, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Supplier which is due to any factor beyond its control (including, without limitation, foreign exchange fluctuation, currency regulation, alteration of duties, increases labour costs, materials or other costs of manufacture), any changes in delivery dates, quantities or specifications or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions;
4.4 If the Customer requires the Supplier to work outside the normal working hours (eight (8) a.m. to five (5) p.m. Monday to Friday) the Supplier shall be entitled to charge the Customer for all overtime worked at a rate to be notified in advance to the Customer in writing;
4.5 The Supplier may charge the Customer an extra sum for any site visits and abortive or excessive numbers of tenders prepared;
4.6 The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and Services, which the Customer shall be additionally liable to pay to the Supplier;
4.7 The Supplier shall not be liable for any errors or omissions contained in the final quotation.
5. ADDITIONAL COSTS
5.1 IF the Client wishes to vary any details of the Contract he must notify the Contractor in writing as soon as possible. Any such instructions shall be valued by the Contractor on the basis of the Contractor’s rates and prices plus reasonable direct and/or indirect losses and/or expenses incurred by the Contractor and an estimate of the required adjustment to the Completion Date. The Contractor shall issue an invoice to the Client for such additional costs. The Contractor shall not be required to comply with a variation request until the relevant time and price adjustments have been agreed.
5.2 The Customer agrees to pay for any losses or extra costs incurred by the Supplier as a result of the Customer’s instructions or lack of instructions or through failure or delay in taking delivery or through any act or default on the part of the Customer, its servants, agents or employees.
5.3 The Supplier reserves the right to make an additional charge for any extras ordered by the Customer not specified in the quotation and also for the expenses of all inspections, tests, alterations or additions or any other work undertaken at the Customer’s request. In particular, but without prejudice to the generality of the foregoing, the Supplier may impose a charge for inspecting and/or testing Goods and/or Services identified by the Customer as defective, or out of compliance with their contractual description if the Supplier determines that the Goods and/or Services are not defective and/or do comply with their contractual description and/or any defects are not their responsibility under the terms of the contract.
6. TERMS OF PAYMENT
6.1 THE Customer agrees to pay the Supplier the Contract sum together with any VAT properly chargeable.
6.2 Subject to any alternative payment terms as may be set out in writing between Supplier and Customer, the final date for payment shall be 14 days after the Due Date. The Customer shall not be entitled by reason of any alleged minor defect to withhold more than a proportionate amount of the Contract sum.
6.3 At any time after the Completion Date the Supplier shall submit a final account representing the total value of the Contract Works carried out by the Supplier. The due date for payment of the final account shall be 14 days after the issue of the final account by the Supplier.
6.4 For contracts with a value in excess of £500.00 excluding VAT, progress payments will be negotiated between the Customer and the Supplier prior to acceptance of the contract.
6.5 For contracts under £500.00 payment in full may be required prior to the commencement of any work.
6.6 If the Goods are delivered in instalments and/or Services are provided on discrete occasions the Supplier shall be entitled to invoice each instalment as and when delivery thereof has been made or installation thereof has been undertaken and payment shall be due in respect of each completed activity.
6.7 If a payment schedule has been determined or if the Customer has agreed to take specified quantities of Goods at specified times, any default by the Customer of the agreed payment schedule or the failure to provide delivery instructions in respect of any quantity of Goods outstanding shall cause the whole of the balance of the Contract price to become due forthwith and the Supplier shall be entitled to suspend work and further deliveries in respect of such order until payment has been made.
6.8 The price of the Goods and/or Services shall be due in full to the Supplier in accordance with the terms of the Contract and the Customer shall not be entitled to exercise any set-off lien or any other similar right or claim.
6.9 The time of payment shall be the essence of the Contract
6.10 Without prejudice to any other rights it may have, the Supplier is entitled to charge interest at 6% per calendar month or part thereof compounded monthly on overdue payments of the price of the Goods or the Services or the price of any instalments thereof.
6.11 Furthermore without prejudice to the above, the Supplier shall be entitled to recover from the Customer all reasonable legal, administrative and other costs and expenses incurred in recovering overdue payments of the price of the Goods and/or Services.
6.12 The Supplier shall only release the Operation and Maintenance Manuals when the Customer has paid for the Goods in full.
7.1 IF specified within the Order Form as a condition the Client may deduct from any interim payment due to the Contractor a sum equivalent to that which is specified within the Order Form by way of retention.
7.2 If clause 6.1 applies the Client shall pay to the Contractor one half of the retention within 14 days of the Certificate of Practical Completion and the other half of the retention within 6 months of the Certificate of Practical Completion.
7.3 Subject to clause 6.1 and 6.2 the Client will not be entitled to deduct from any interim payment due to the Contractor any sums by way of retention.
8. INTELLECTUAL PROPERTY
THE Customer hereby acknowledges that all intellectual property rights pertaining to any specifications, details and drawings prepared by the Supplier in conjunction with any quotation or acceptance of an order, and any subsequent data specifically provided for the customer belong exclusively to the Supplier and shall remain its exclusive property.
9. FREE ISSUE MATERIALS
THE Supplier accepts no responsibility, whether by reason of breach of contract, duty or in tort or otherwise, for loss or damage to free issue materials or components supplied to it. Such materials or components are not insured by the Supplier.
10.1 ALL times or dates given for delivery of the Goods or performance of Services are given in good faith but without responsibility on the Supplier’s part. Time of delivery or performance shall not be of the essence of the Contract or any other contract nor shall the supplier be under any liability for any delay beyond the company’s reasonable control.
10.2 The Customer shall ensure that the agreed delivery site can be reached with reasonable ease by a normal delivery vehicle of the type and size of the Supplier’s choice and shall provide the facilities necessary to ensure safe offloading of the Goods at the agreed delivery site. Damage occasioned due to the Customer’s failure to comply with this clause, shall be the Customer’s responsibility.
11.1 IF the Supplier agrees to undertake the installation of Goods supplied by it, it reserves the right to instruct or employ a sub-contractor of its choice for that purpose.
11.2 Installation of equipment supplied, removal of old apparatus, equipment preparation and completion of site or foundation are not included in the Contract price unless expressly stated in the Supplier’s quotation and the Customer shall pay the Supplier upon request.
11.3 Where any contract between the Supplier and the Customer includes the installation of any Goods it shall be the Customer’s responsibility to ensure that the relevant site is made suitable for installation and that all reasonable access and facilities required on and about the site necessary for the continuous and efficient carrying out of the work during normal working hours are provided. If the Customer fail to do this the Supplier shall (but without prejudice to any of its accrued rights) be entitled to suspend or cancel the Contract.
11.4 The Supplier will not be responsible for faults resulting from the incorrect installation of equipment by the Customer or its representatives or agents. In such a case it is the Customer’s responsibility to commission and test the installation and to arrange at the Customer’s cost for any faults to be rectified.
GOODS supplied in accordance with the contract cannot be returned without the Supplier’s prior written authorisation. Duly authorised returns shall be sent to the Supplier’s Premises at the Customer’s expense.
13. PASSING OF TITLE AND RISK
13.1 THE title to the Goods shall remain with the Supplier until the Customer pays the price of the Goods in full and any other sums outstanding between the Supplier and the Customer whether in respect of this contract or otherwise.
13.2 The Supplier shall be entitled at any time to recover any or all of the Goods to which the Supplier has title and for that purpose the Supplier’s employees or agents may with such transport as is necessary enter any premises occupied by the Customer or to which the Customer has access where the Goods may be or are believed to be situated.
14. CONDITIONS AND WARRANTIES
THE Contract shall not constitute a sale by description or sample. Any terms, conditions or warranties (whether express or implied by statute, common law or arising from conduct or a previous course of dealing or trade custom or usage) as to the performance of the Services, or as to the quality of the Goods or their fitness for any particular purpose even if that purpose is made known expressly or by implication to the Supplier or as to the correspondence of the Goods with any description or sample are hereby expressly denied.
15. DEFECTIVE GOODS
15.1 THE Supplier undertakes in the case of Goods manufactured by the Supplier and the Goods appearing to have defects in materials or workmanship at its own discretion either, first to repair such an item and if this is not possible, to supply a replacement free of charge at the place of delivery specified by the Customer for the original Goods provided that it has been accepted and paid for
15.2 In the case of Goods not manufactured by the Supplier the Supplier will pass on to the Customer to the extent that it is able any benefits obtainable under any warranty given by the Supplier’s supplier provided that the Goods have been accepted and paid for.
15.3 In order to exercise its rights under this Condition the Customer shall inform the Supplier in writing within seven days of the date when such defects appeared or ought reasonably to have been discoverable.
15.4 Nothing herein shall impose any liability upon the Supplier in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Customer its servants or agents including in particular (but without prejudice to the generality of the foregoing) any failure by the Customer to comply with any recommendations of the Supplier as to operating and handling of the Goods.
15.5 Where the Goods are for delivery in instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Customer shall be bound to accept delivery thereof.
16. CUSTOMER’S DRAWINGS
THE Supplier shall not be liable for imperfect work caused by any inaccuracies in any drawing, bills of quantities or specifications supplied by the Customer.
17. BUILDING REGULATIONS
IT will be the Customer’s sole responsibility to ensure that any Goods ordered comply with building regulations and any other relevant legal provisions or statutory instruments in force from time to time; further the Customer shall indemnify and hold the Supplier harmless and indemnified against any liability or adverse consequence that the Supplier may suffer or sustain as a result or in consequence of the Customer’s failure to comply with this clause.
18. CONSEQUENTIAL LOSS
THE Supplier shall not be liable for any costs, claims, damages, expenses or indirect or consequential losses arising out of any tortuous act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.
19. DEFAULT OR INSOLVENCY OF BUYER
IF the Customer shall be in breach of any of its obligations under the Contract or if any distress or execution shall be levied on the Customer’s property or assets or if the Customer shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition is presented against him or (if the Customer is a Company) if any Resolution or Petition to wind up such company shall be passed or presented or if a receiver, administrative receiver or administrator of the whole of any part of such company’s undertaking property or assets shall be appointed, the Supplier at its discretion and without prejudice to any other right or claim may by notice in writing determine wholly or in part any and every contract between the Supplier and the Customer or may (without prejudice to the Supplier’s right subsequently to determine the Contract for the same cause should it so decide) by notice in writing suspend further deliveries of Goods until any defaults by the Customer are remedied to the sole satisfaction of the Supplier.
20. LIMITATION OF LIABILITY
THE liability of the Supplier to the Customer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the purchase price of the Goods and/or Services that are the subject matter of the claim.
NO statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the Supplier’s agents or employees shall be construed to enlarge, vary or override in any way any of these Conditions.
ANY written notification from the Customer required hereunder must be sent by first class registered delivery mail or fax addressed to the Supplier at the Supplier’s Premises or such other address as may be notified to the Customer in writing from time to time.
23. FORCE MAJEURE
23.1 THE Supplier shall be entitled to delay or cancel delivery or to reduce the amount of goods delivered if it is prevented from or hindered in or delayed in manufacturing obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its control including (but not limited to) strikes, lock outs, accident, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal sources of supply.
23.2 Neither the Client nor the Contractor shall be liable for any failure or delay in performing their obligations under these terms and conditions where such failure or delay results from any cause that is beyond the reasonable control of the parties. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action.
24. DISPUTE RESOLUTION
If any dispute or difference concerning the Contract Works shall arise between the Client and the Contractor, such dispute or difference may be referred to adjudication to be conducted in accordance with the Scheme for Construction Contracts Regulations (England and Wales) 1998 (as amended). For the purposes of such adjudication the parties agree that the nominating body for appointment of the adjudicator shall be the President or Vice President of the Royal Institute of Chartered Surveyors.
25.1 The Contractor may terminate the agreement immediately if:
25.1.1 the Client is in breach of any of his obligations hereunder;
25.1.2 the Client has become Insolvent;
25.1.3 the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or make a proposal for or enters into any compromise arrangement with its creditors;
25.1.4 (being a company) 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 Client, other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
25.1.5 (being an individual) the Client is the subject of a bankruptcy petition or order;
25.1.6 a creditor or encumbrancer of the Client 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;
25.1.7 (being a company) 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 Client;
25.1.8 (being a company) a floating charge holder over the Client’s assets has become entitled to appoint or has appointed an administrative receiver;
25.1.9 a person becomes entitled to appoint a receiver over the Client’s assets or a receiver is appointed over the Client’s assets; or
25.1.10 any circumstances whatsoever beyond the reasonable control of the Contractor that arise and require for any reason the termination of the Contract.
25.2 In the event of termination under clause 8.1 the Client shall pay to the Contractor the value of the Contract Works executed, based upon the Contractor’s rates and prices, materials on the Site and the cost of removal of its plant, tools and equipment by the Contractor and shall allow the Contractor its direct loss and expense and loss of profit. Such payment shall be made in accordance with clause 5 hereof following an application for payment by the Contractor.
26.1 The Contractor may assign, transfer, charge or sub-contract any or all of its rights and obligations under the Contract without the consent of the Client.
26.2 The Client shall not assign, transfer, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the Contractor.
The Contractor reserves all copyright and any other rights (if any) which may subsist in the products of, or in connection with, the provision of the Contract Works. The Contractor reserves the right to take such actions as may be appropriate to restrain or prevent infringement of such copyright.
28.1 Any notice or other communication to be given or made under the Contract shall be in writing and shall be delivered by hand, post or email to the Contractor or the Employer at the address set out in the Order Form or at such other address or number as the relevant party may specify from time to time by notice in writing to the other.
28.2 Notices shall be deemed to have been received:
1. in the case of delivery by hand, when delivered;
2. in the case of pre-paid post, two days after the date of posting; and
3. in the case of email, upon receipt of a “read notice” from the recipient to the sender.
29. LAW AND JURISDICTION
29.1 The governing law of the Contract shall be the laws of England and Wales.
29.2 The parties irrevocably agree 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 letter or its subject matter or formation (including non-contractual disputes or claims).
30. THIRD PARTY RIGHTS
Nothing in the Contract confers or purports to confer on any third party any benefit or any right to enforce any term of the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
THE headings in these Conditions are intended for reference only and shall not affect their construction.
IF any clause of the Contract is held by a competent authority to be invalid or unenforceable the validity of the other clauses of the Contract shall not be affected and they shall remain in full force and effect.