Topstak Chimney Specialists Limited – Standard Conditions of Sale June 1999
Please note that all offers and supplies from Topstak are made subject to the following conditions of sale that are also displayed in our Cowbridge and Monmouth showroom. These include details on the restocking charges. If we are also carrying out installation work, please note the additional conditions for installation work.
DEFINITIONS USED IN THESE CONDITIONS “Order” means the order placed by the Buyer to the Seller for supply of Goods. “Buyer” means the person or firm or company who places the order. “Seller” means Topstak Chimney Specialists Limited. “Goods” means the products materials or items supplied by the Seller. “Contract” means the contract made to supply the Goods ordered under the terms of these conditions of sale.
1. ORDERS No order placed by the Buyer shall be binding on Seller until it has been accepted in writing by the Seller at which stage a binding contract shall exist subject to the these conditions which shall govern the contract to the exclusion of any other Terms and Conditions subject to which any order is made or purported to be made by the Buyer.
2. PRICES & GOODS The prices for the Goods being ordered shall be those confirmed in writing by the Seller. However the Seller reserves the right to adjust the prices by an amount corresponding to any increase in the cost of materials, labour or overheads occurring after the date the order was acknowledged due to factors outside our control. Notification in writing of the price change will be given to the Buyer prior to delivery or collection of the Goods.
If after accepting an order the Seller is unable to provide the Goods that have been ordered, the Seller reserves the right to supply the Buyer equivalent Goods having a similar or higher specification than the Goods ordered and in such cases will give notification to the Buyer prior to delivery or collection of the Goods.
3. TERMS OF PAYMENT The Seller shall invoice the Buyer for the Goods at the plus value added tax or any other taxes that may be ruling at time of supply.
Unless otherwise agreed in writing by the Seller the terms of payment for Goods supplied by the Seller are payment with order prior to delivery or on collection. Where the Seller has to granting account terms to the Buyer invoices shall be paid in full by the end of the month following month of invoice date or otherwise as may be agreed in writing by the Seller.
The Buyer shall be responsible for payment of daily interest at 2% above Lloyds Bank plc base rate on any money that is overdue beyond the payment due date and also for any costs incurred by the Seller in pursuing collection of payment.
If at any time the Buyer fails to pay for Goods by the due date or the Seller has reasonable grounds for believing the Buyer will not pay by the due date the Seller reserves the right to suspend delivery of Goods to the Buyer without being held liable for any breach in failing to supply Goods for which an order has been placed.
4. RETURN OF GOODS Goods may only be returned by written agreement with the Seller. Any standard Goods ordered by the Buyer and delivered substantially in accordance with the Buyer’s instructions will be subject to a re-stocking charge equal to a minimum of 25% of the invoiced value of the Goods if they are subsequently returned to the Seller for any reason other than faulty manufacture. The Seller reserves the right not to accept return of any Goods which have been specially made to the Buyer’s order.
The Buyer shall be responsible for ensuring the Goods are returned in an undamaged saleable condition and also for any costs or charges incurred in returning the Goods to the Seller.
5. DELIVERY (a) Any delivery date given is merely an estimated delivery date and cannot be guaranteed and the Seller shall not be liable for any delay in delivery whatever the cause of the delay and whatever its length nor for any loss or damage caused thereby or arising there from of whatsoever kind. (b) Where delivery is made by instalments each instalment deliverable under the contract shall be deemed to be sold under a separate contract. Defective deliveries of one or more instalments shall not entitle the Buyer to repudiate the contract with regard to any instalment remaining deliverable. (c) Unless otherwise stated by the Seller in writing, the price quoted is ex-works and does not include delivery. (d) The Seller may use its own transport or contract carriers or hauliers or other means to deliver the Goods to the Buyer. (e) Where delivery is arranged by the Seller to the address requested by the Buyer its is the responsibility of the Buyer to ensure that there is a good hard road access to the address or site to enable safe unloading of the Goods by the Buyer. The Seller or those making delivery on behalf of the Seller reserve the right to refuse making the delivery if it is found that there is no good hard road access to the address or a suitable area at which to unload the Goods. (f) It is the Buyer’s responsibility to off-load Goods at the delivery address and do so in a safe manner. Any damage caused during or as a result of off-loading the Goods is the sole responsibility of the Buyer.
6. INSPECTION OF DELIVERED GOODS The Buyer shall inspect the Goods at the time of being delivered and shall immediately give the Seller notice of any matter whereby it is alleged that the Goods are not in accordance with the contract are damaged or defective and the Buyer or its representative shall clearly specify in writing on the delivery note or ticket accompanying the Goods being delivered to acknowledge delivery the full details of damaged missing or alleged unacceptable Goods. If the Buyer fails to give such notice within three days of delivery, the Goods shall be deemed to be in all respect in accordance with the contract and the Buyer shall be bound to accept and pay for the same accordingly.
If on delivery any Goods are found to be damaged or missing at time of delivery the Buyer must report the full details in writing to the carriers and upon their delivery documents and inform the Buyer immediately and no later than 3 days after delivery to enable a claim to be made against the carriers. If these conditions are not met the Buyer will be responsible for any loss or damage of Goods.
7. DESCRIPTION AND USE OF GOODS The Buyer shall be responsible for ensuring that the Goods their specification and application are suitable for the purpose intended with reference to the printed details technical specifications installation and user instructions issued for the Goods referred hereto as the “Product literature”. It is the Buyer’s
responsibility to ensure the Product Literature is given to their customer in the event that the Goods are resold by them.
8. RESERVATION OF PROPERTY(a) All Goods supplied either by delivery or collection remain the property of the Seller until the price thereof and all other sums due under this agreement or any other agreement between the Seller and the Buyer have been paid in full. (b) Notwithstanding that property in the Goods has not been passed, the Buyer shall be entitled to sell the Goods in the ordinary course of business until notified to the contrary by the Seller or until any of the events set out in (e) below have occurred. If the Goods are sold by the Buyer the proceeds of sale up to the amount due to the Seller shall be held on trust for the Seller and shall be paid forthwith to the Seller. (c) The Seller reserves the right at any time that the price has not been paid in full in accordance with the Terms of this contract to give notice to the Buyer to return the Goods. If any of the events set out in (e) below have occurred the Buyer shall immediately return the Goods to the Seller. If the Buyer should fail to return the Goods the Seller shall have the right to re-take possession of the Goods and any other Goods previously supplied by the Seller to the value of all monies due to the Seller and for that purpose, the Seller its servants agents or authorised representatives have the right to enter any premises of the Buyer where the Goods may be. The Buyer shall be responsible for all costs incurred by the Seller in respect of Goods which have been repossessed. (d) Should the Buyer alter the Goods by subjecting them to any manufacturing process or incorporating them into another product or mixing them in any way the Seller shall own the resulting product (“the altered Goods”) until payment due under all contracts between the Seller and the Buyer has been made in full and all the Seller’s rights under this clause shall extend to the altered Goods. (e) The events herein referred to are if
1) the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order winding up or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) 2) a receiver is appointed or another takes possession of any assets or property of the Buyer a petition to wind-up the Buyer will be or has been presented 3) any notice or resolution is made to wind-up the Buyer (save for the purpose of reconstruction or amalgamation). 4) the Buyer ceases or threatens to cease to carry out the whole or a significant part of its business.
9. REPRESENTATIONS Any statement made by the Seller or our servants or agents prior to or at the time of making this contract are superseded by this contract and shall not amount to a representation as to the quality or fitness for any purpose of the Goods or otherwise.
10. EXCLUSION AND LIMITATION OF LIABILITY(a) The Seller shall not be liable in respect of any claim made by the Buyer whether for breach of contract, negligence or otherwise, or for any injury, loss or damage caused to any person or property by reason of any defect in the Goods supplied other than a defect relating to merchantability. (b) In no circumstances whatever shall the Seller be liable whether for negligence, breach of contract or otherwise;
i) for any consequential loss or damage including loss of profits or increased costs. ii) in a sum exceeding the price of Goods relating to which a claim arises, the prices being determined on the basis of this limit and/or exclusion of liability. iii) The Buyer undertakes;
(a) to give written notice to the Seller of any occurrence which might give rise to a claim by the Buyer, (b) to give the Seller in writing full details of such an occurrence as soon as the
same can reasonably be ascertained, (c) to submit any claim against the Seller arising out of in connection with such occurrence in writing within 30 days thereof.
Failure of the Buyer to comply with these undertakings shall absolve the Seller from any liability in connection with such occurrence but without prejudice to the rights of the Seller in relation to any breach by the Buyer of such undertakings.
11. FORCE MAJEURE Any delay in, of failure of, performance by the Seller of any of its obligations shall not constitute default or give rise to any claim for damages if and to the extent that such a delay or failure or performance was caused by or contributed to by strikes, lock-outs, restriction of supplies, breakdown of plant or machinery, shortage of labour, war-riots, civil commotion or any other circumstances beyond the control of the Seller.
12. GUARANTEE CLAIMS Any claims made by the Buyer against the Seller in respect of defective or damaged Goods under the terms and conditions of any specific product guarantee given in writing by the Seller must be substantiated in writing to the Seller together with returning the alleged defective or damaged Goods to the Seller. Where a claim is considered to by the Seller to be valid the Seller shall at its own discretion be entitled without prejudice or accepting liability to offer or supply replacement Goods or give a refund or credit and in full and final settlement of such claim and thereafter the Seller shall have no further liability in respect of the claim.
13. LIQUIDATION If the Buyer, being a body corporate, shall pass a resolution, or suffer or be subject to order of the court to be made for winding-up, or if a receiver shall be appointed being and individual or firm, or shall suspend payment, propose or enter into a composition or arrangement with its creditors, or have a receiving order in bankruptcy made against him or them, or in either case shall fail to take or call for delivery of, or to pay for, or provide a security for the price of any Goods in accordance with the terms of the contract then we may, without prejudice to any other right and remedies, rescind this and every or any other contract with the Buyer and suspend or cancel delivery of any Goods there under.
14. WAIVER No failure by the Seller to exercise or delay in exercising any of our rights under this contract shall operate as a waiver of such rights or shall prevent the Seller from subsequently enforcing any right or treating any breach by the Buyer as a breach.
17. PROPER LAW AND JURISDICTION This contract shall be subject to English law and the exclusive jurisdiction of the English courts.
18. VARIATION No variation of these conditions shall be effective unless made in writing and signed by an authorised representative of this.
19. CANCELLATION OF ORDER. If you place an order you have a cooling off period giving you the right to cancel it within 14 days, and if the goods have been delivered you are responsible for returning them to us in good unmarked condition. We recommend that the goods are insured in case they are damaged in transit. If you wish to cancel an order after 14 days from the date of placing the order there will be a cancellation charge to be paid or
deducted from your deposit if one has been paid to us. The cancellation charge varies from 10% or more of the order value according to the product ordered and the manufacturer’s’ cancellation charges, which can be up to 100% for items that are made specially for you.
20. ADDITIONAL CONDITIONS FOR INSTALLATION WORK
We, the Seller reserve the right to employ sub contractors to carry out the installations work.
We only give estimated costs for carrying out installation work, as chimneys, fireplace and covered construction can occasionally be different to what is normally expected. If the engineers find an unforeseen problem, such as having to clear a major blockage in the chimney, we will advise of the additional time and cost likely to be incurred. We would not do any additional work without your agreement.
Before the engineers arrive for the pre arranged date to install a stove and or chimney the area around the fireplace must be cleared of any ornaments and soft furnishings to avoid damage and ensure good working access. Even though they will keep disruption to a minimum and use dustsheets on the floors near and to the working area it is inevitable the installation work will create dust that will settle on surfaces.
We recommend that you remove and /or cover any other furnishings, bookshelves, pictures etc in the room. The use of dustsheets provides reasonable protection to the floor area near and to the working area and minimises the risk of damage to floor coverings. However, if a 100% protection of floor coverings is required we recommend that you use a specialist to take up carpets before the installation, and then have them relayed afterwards. If wooden floors need to be protected it is recommended that you arrange for a specialist to lay and secure a suitable protective boarding, such as plywood, over the floor prior to installation. If any work requires planning permission it is your responsibility to make the necessary checks with your local planning office and obtain permission if it is required.