TERMS AND CONDITIONS OF SALE
APERTURE TRADING LTD
In these Terms and Conditions of Sale, 'Cash' includes cash, cheques, credit or debit cards and any other form of payment approved by the Company; 'The Company' means Aperture Trading Ltd ' The Customer' means the person, firm or company who enters into the contract to purchase Goods;
'The Goods' means the goods and services which the Company is to supply to the Customer.
‘The Bespoke Products’ means VS, Conservatories, Bi - folds, Glass, Solid Roofs, Hardware, WarmCore and Portal products –
The Company’s profile products (including the profile elements of Bespoke Products) and the Goods are only suitable and intended for use in the “Serviced Regions”. In Europe the Serviced Regions are Belgium, Denmark, France (north of Paris only), Germany, Estonia, Finland, Great Britain, Ireland, Iceland, Latvia, Lithuania, Luxembourg, Netherlands, Norway, Poland, European part of Russia, Sweden, Slovakia and Czech Republic. Please discuss your requirements with us before ordering Goods. The profile products and Goods should not be used or resold for use outside the Serviced Regions. See Warranties and excluded warranties in clause 13.
1. RULING CONDITIONS
Any contract made with the Company is subject to these terms unless these terms are excluded or varied by express written agreement made by the Company & Customer. In particular the Customer shall offer to order the goods from the Company upon these terms and any conflicting terms of business of the Customer shall have no effect.
By placing an order, the Customer warrants that the Customer is legally capable of entering into a binding contract
2.1 The Company reserves the right by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the costs to the Company which is due to any factor beyond the control of the Company including but not limited to increases in the cost of raw materials.
2.2 All prices are unless otherwise stated net of VAT ex works.
3. TERMS OF PAYMENT
3.1 Subject to the prior written agreement of the Company in writing, orders for United Kingdom Customers without an account are accepted if payment is received electronically prior to production.
3.2 Ledger accounts (where applicable) are opened subject to approval of references and at the sole discretion of the Company. We will make a search with a credit reference agency, which will keep a record of that search and will share that information with other businesses. We may also make enquiries about the directors and or owners of the business with a credit reference agency. We will monitor and record information relating to your trade credit performance and such records will be made available to other organisations to assess applications for credit.
3.3 In the case of ledger accounts (where applicable) unless otherwise agreed by the Company in writing, the terms of payment shall be made (without deduction or set-off) within 30 days following the month in which the Goods were dispatched or would have been dispatched save for postponement otherwise than due to default on the part of the Company, but if default is made in the payment of any one invoice these credit terms shall cease to apply and the Customer will become immediately liable for all sums outstanding.
3.4 The Company shall be entitled to submit its invoice to ledger account customers with its delivery advice note or at any time thereafter save that where delivery has been postponed at the request of or by the default of the Customer then the Company may submit its invoice at any time after the Goods are ready for delivery or would have been ready for delivery or would have been ready in the ordinary course but for the request or default as aforesaid. These credit terms may be withdrawn or amended at the discretion of the Company at any time and without notice to the Customer.
3.5 Where Goods are delivered by instalments to ledger account customers the Company may invoice each instalment separately and the Customer shall pay invoices in accordance with these terms.
3.6 In relation to Portal structures (which will be labelled as Portal structures on any plans and quotation) then payment of the relevant price shall be made as follows: 30% of the price shall be payable on placement of an order; 40% of the price shall be payable on signing off by the Customer of any detailed manufacturing plans and drawings prepared by the Company; and 30% of the price shall be payable 5 days prior to delivery of the goods ex-works
3.6 No disputes arising under the contract, nor delays beyond the reasonable control of the Company shall interfere with prompt payment in full by the Customer.
3.7 The time for payment for the Goods or any instalment shall be of the essence. In the event of default in payment by the Customer the Company shall be entitled without prejudice to any other right or remedy to suspend all further deliveries on any contract or contracts between the Company and the Customer without notice and the Company reserves the right to claim interest pursuant to the Late Payment Of Commercial Debts Regulations 2013 after as well as before judgement until payment in full is made.
3.8 The method of payment for overseas Customers will be agreed by the Company in writing prior to confirmation of the order.
3.9 The Company reserves the right to allocate credits to oldest balances on the Customer account and
will advise details of the allocation to the Customer.
3.10 Any credit terms extended by the Company shall cease on any change in the legal status of the Customer. Any change in the legal status of a Customer must be notified to the Company in writing signed by a Director or Proprietor. Credit terms will only be reinstated by the Company following such a change at the Company's sole discretion and confirmed by the Company in writing signed by a Director of the Company.
4. QUOTATIONS AND ORDERS
All quotations are made and all orders are accepted subject to the following conditions;
4.1 All conditions of the Customer or other terms conditions or warranties whatsoever are excluded from the contract or any variation thereof unless expressly accepted by the Company in writing.
4.2 Quotations shall only be available for acceptance for a maximum period of 30 days from the date thereof and may be withdrawn by the Company within such period at any time by written or verbal notice
4.3 If any statement or representation upon which the Customer relies has been made to the Customer other than in the documents enclosed with the Company's Order confirmation quotation or acknowledgement of order the Customer must set out that statement or representation in a document to be attached to or endorsed on the order in which case the Company may clarify the point and submit a new quotation.
4.4 The Company supplies the Goods in pack quantities and will levy a surcharge of 15% of the price of the Goods for any quantity ordered which does not correspond to the standard pack quantity for those Goods.
4.5 For profile deliveries the Company will allocate a delivery day to the Customer and the Company will, subject always to clause 6.1, expect three working days between receipt of order and delivery. For example: Main order received by 1900 hours Monday and any addition by 1200 noon Tuesday (UK Time) will, subject always to clause 6.1, be delivered Thursday and so on. Any addition received after 12 noon Tuesday (UK time) may be processed for delivery at the Company's discretion but will attract a 15% surcharge on the price of the Goods.
4.6 Conservatory roof kit orders will be processed and delivered in five working days provided that the Customer’s delivery day coincides.
4.7 The Company will only accept orders for conservatory roof kits, complete conservatories and other Bespoke Products on receiving a signed order confirmation from the Customer, this order confirmation shall constitute acceptance by the Customer both of these terms and conditions and of the contract price.
4.8 The Company will only accept orders for Portal structures (which will be labelled as Portal structures on any plans and quotation) on receiving a signed order confirmation (including individually signed preliminary plans or drawings) from the Customer, this order confirmation shall constitute acceptance by the Customer both of these terms and conditions and of the contract price.
4.9 Processing, construction and delivery times for Bespoke Products or Portal structure orders will vary according to the nature of the item/structure and a provisional time estimate will where possible be specified in the relevant order confirmation. Delivery times will be extended in the case of UK bank holidays or statutory holidays and during the
5.1 If after the date of contract and before the date of delivery of the Goods, improvements are made in the design or specification of the Goods the Company may, on giving notice to the Customer, incorporate such improvements in the Goods sold to the Customer provided that:
(a) the performance and quality of the altered Goods are at least equal to those of the Goods ordered and
(b) no price variation is made except with your consent and
(c) delivery is not unreasonably delayed.
5.2 We shall not be obliged to make any alteration to the Goods ordered whether arising by reason of the amendment of the regulations of a competent authority made subsequent to the date of contract or otherwise.
6.1 Time for delivery is given as accurately as possible but is not guaranteed. The Customer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery time stated. The Company allows a strict maximum of 30 minutes for each UK delivery, failing which you will not receive your order.
6.2 The date of delivery shall in every case be dependent upon prompt receipt of all necessary information final instructions or approvals from the Customer, changes in design specifications or quantities required may result in delay in delivery.
6.3 The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery but shall be under no obligation to do so. When delivery is postponed otherwise than due to default by the Company the Customer shall pay all costs and expenses including a charge of 15% of the total value of the order for transportation and/or storage or restocking occasioned thereby and the Company shall be entitled to invoice the Goods in accordance with these conditions. The Company also reserves the right to levy a charge for labour costs incurred in cleaning and or repackaging returned Goods.
6.4 Unless otherwise expressly agreed any packaging supplied by the Company is intended to be only sufficient to protect the Goods for all normal conditions of transit and for the normal period of transit only.
6.5 Some of the Company's product is delivered in metal stillages which can be left at the Customers premises and used as storage for a maximum period of 4 weeks. After this period they should be available for collection from the customer’s premises, otherwise they will become chargeable. Stillages which are found to be damaged will also be chargeable.
6.6 It is Company Policy that its driver does not leave the rear of his vehicle during unloading. Therefore the Customer should provide assistance for off loading, ie. forklift or two able bodied persons.
7. RISK AND TITLE
7.1 Risk shall pass to the Customer so that the Customer is responsible for all loss and damage or deterioration to the Goods:
(a) if the Company delivers the Goods by its own transport at the time when the Goods or a relevant part thereof are unloaded at the place of delivery or if the Customer wrongfully fails to take delivery at the time the Company tendered delivery of the Goods;
(b) in all other circumstances at the time when the Goods or a consignment or other part thereof leaves the premises of the Company whether or not the Company arranges transport.
7.2 Title in the Goods or any part thereof supplied hereunder shall not pass to the Customer until payment has been made in full and cleared funds received for:
(c) the Goods including any interest payable, and
(d) all other goods the subject of any other contract between the Company and the Customer which at the time of payment of the price of the Goods have been delivered to the Customer.
7.3 Before title has passed to the Customer under the terms of this clause and without prejudice to any of its other rights, the Company shall have the right to recover or resell the Goods or any of them and may enter upon the Customer's premises by its servants or agents for that purpose and in respect thereof the Customer shall take all reasonable precautions to protect the Goods from damage or loss arising from any cause and shall indicate that the Goods are the property of the Company.
7.4 In the event of a sale of the Goods by the Customer in the ordinary course of its business to a third party the Customer shall assign to the Company in writing its rights to recover the selling price from the third party concerned if so required by the Company.
7.5 As the insurable risk in the Goods shall pass to the Customer as soon as the materials are delivered to him or to his order and pending disposal the Customer shall keep the Goods insured in the amount of the price at which the Goods are sold to the Customer against all insurable risks.
7.6 If the Goods are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for the Company.
7.7 Any items loaned to the customer by the Company ('the Loan') will remain the property and title of the Company.
7.8 The Company may terminate the Loan at any time and on written notice to the Customer. The Customer shall deliver up the item to the Company immediately on receipt of the above written notice.
7.9 The Loan shall immediately terminate in any event on the happening of the voluntary or compulsory liquidation of the Customer or the appointment of an administrator over the Customer or a receiver over any of the Customer's assets or the Customer ceasing to trade or altering its legal status and in these circumstances the Customer shall deliver up the item pursuant to clause 7.8 above.
7.10. In the event of the appointment of an administrator over the Customer or a receiver over any of the Customer's assets then it is acknowledged that none of the Goods shall be sold or agreed to be sold by the administrator/receiver, without the Company’s prior written consent or (where relevant) a prior court order having been obtained.
8.1 Deliveries shall be subject to a delivery charge, the amount payable for UK delivery being £150.00 plus VAT for deliveries of less than £1500.00 net of VAT and discount on our own vehicles and where delivery is effected by a third party carrier the full cost will be charged to the Customer.
8.2 Unless otherwise specified prices quoted include delivery to destinations in the United Kingdom in which case the Company will select the mode of transport with due regard to urgency and cost. The entire cost of any other mode of transport to destinations in the United Kingdom which the Customer may specify e.g. passenger train, parcel post etc. shall be borne by the Customer. No allowance will be credited for Goods collected from the Company's premises by the Customer.
8.3 For overseas destinations, delivery shall, unless otherwise agreed in writing, be ex-works at the Company’s Sutton in Ashfield premises. The Company reserves the right to charge for inland transport when Goods are delivered to a port of the Customer's choice.
9.1 Containers, crates, cases, bags, drums and pallets in or on which Goods are delivered ('Containers') shall become the property of the Customer, except those Containers marked or stated in the Company's quotation or other documentation as being returnable are returnable, as are specialised Containers of high intrinsic value such as stillages and drums and specialised intermediate bulk Containers which remain the property of the Company even if not so marked. In the absence of any written agreement, the interpretation as to which Containers are returnable at all times rests solely with the Company, and it is the responsibility of the Customer to check with the Company before disposing of any Container that the Company may wish to treat as returnable.
9.2 The Customer shall without charge or cost to the Company return to the Company all returnable Containers immediately after delivery if this is practicable, and shall return on demand or when empty all returnable Containers loaned by the Company to the Customer. The Customer shall pay to the Company the replacement value of any returnable Container lost or damaged before being returned to the Company. The Company retains the right to charge rental on any Containers overdue for return.
9.3 The Company does not recommend re-use by the Customer of either returnable or non-returnable Containers or packaging nor give any undertakings as to suitability, or accept liability if Containers or packaging are re-used, and any such re-use shall be entirely at the Customer's risk, and before reusing any Container the Customer shall first remove therefrom any product label or reference to the Company or its logo. The Customer undertakes to dispose of all non-returnable Containers and packaging in a safe and proper manner, and according to any relevant regulations which may be in force from time to time.
9.4 Returnable Containers are only provided for the storage of Goods as part of the delivery and until the transfer into the Customer's own container, or until the Goods have been used up, depending on particular circumstances. The Company does not permit the re-use by the Customer of returnable Containers in any circumstances. In the case where a residual heel of product remains in the Container (as in the case of, but not limited to, pressurised gases.) the Customer is responsible for ensuring that the remaining contents are not contaminated by any other substance, including air in the case of pressurised gases, prior to the Container being returned to the Company. Where a
Container is returned with the remaining contents contaminated, the Company shall have the right:
(a) to refuse any refund which would otherwise be payable on the return of the Container, and or
(b) to make a charge in respect of the cost of decontaminating the Container, and/or
(c) to charge the Customer for any Goods remaining in the Container which have become unsellable due to such contamination.
10. SHORTAGES AND DEFECTS APPARENT ON INSPECTION
No liability will be accepted regarding claims or complaints as to shortages or transport damage unless notified to the Company by telephone within 72 hours and confirmed in writing within 7 days. For the avoidance of doubt the Company has no liability for transport damage in relation to non-UK, ex works orders. Goods claimed to be defective must be returned immediately, and if it is agreed by the Company that the Goods are defective, the Goods will be replaced or repaired free of charge or at the option of the Company, allowed for credit, provided that such credit shall not exceed the value of our Goods as invoiced and provided that the Customer shall return the Goods in the same condition as they were supplied.
11. DEFECTS NOT APPARENT ON INSPECTION
11.1The Customer shall not be entitled to any claim in respect of any repairs or alterations undertaken by the Customer without the prior specific consent of the Company nor in respect of any defect arising by reason of fair wear and tear or damage due to misuse.
11.2 The Company shall not be liable for loss or damage suffered by reason of use of the Goods after the Customer becomes aware of a defect or after circumstances which would reasonably have indicated to the Customer the existence of a defect.
11.3 The Company may within 15 days of receiving such a written complaint (or 28 days where the Goods are situated outside the United Kingdom) inspect the Goods, the Customer if so required by the Company shall take all steps necessary to enable the Company to do so.
11.4 In the case of export Goods for overseas destinations the Company accepts no liability for damage or loss after the Goods have been dispatched by the Company although the Company will arrange insurance against transit or other risks if instructed to do so by the Customer at the Customers cost.
12. WARRANTIES AND LIABILITIES
12.1 The Company warrants that the Goods to be supplied consequent upon its acceptance of the Customer’s order will at the time of delivery be of satisfactory quality and in accordance with the specification.
12.2 Subject to any limitations on the Company's liability contained elsewhere in these Conditions, the Company's obligation under the warranty at paragraph 12.1 shall be (at the Company's option) either:
(a) to correct or repair or
(b) to replace free of charge, or
(c) to refund the Price
of any Goods which are shown to the Company's satisfaction to have been defective at the time of delivery, provided that notice of such defect and satisfactory proof thereof is given by the Customer immediately after discovery and within 14 days from the date of delivery, except that where the alleged defect is a matter in relation to which the Company has provided a specific guarantee for a specified period, the claim must be made in accordance with and subject to the terms of the guarantee within the specified guarantee period. The Company's said obligation pursuant to this sub condition shall apply only if the Customer shall on request return any such Goods to the Company for inspection at the Customer's expense if requested to do so.
13. WARRANTY CONDITION
13.1 The Company warrants:-
that (provided that the products are used in the temperate geographic regions for which they are intended) it guarantees its white PVC-U profiles for 10 years and woodgrain in accordance with condition 12, above, Cherrywood 3202001167, Golden Oak 2178001167, Mahogany 2097013167, Black Brown 851805167 foils for a period of 10 years from the date of delivery whilst Deep Red 308105167, Blue 515005167, Green 612505167, Grey 701605167, Cream 137905167, White 915205168 & 929405179, Rustic Cherry 3214007195, Irish Oak 3211005148, Antique Oak 3211006148 foils are guaranteed for 7.5 years from the date of delivery and Anteak 3241002195 foils for 5 years from the date of delivery. However, in respect of Goods sold for use in the UK, in the event that such Goods are removed from the UK and used or installed outside the UK then no warranty or guarantee is given in relation to foils or profiles even if Goods are used or installed in the Serviced Regions.
The Company will (so far as it is legally able to do so) assign to the Customer the manufacturer’s guarantee (if any) on all Goods not manufactured by the Company and on all foils other than those set out above.
Save for the warranty provided at condition 12, brown and caramel gutters are excluded from any additional warranties.
No warranty as to colour stability is given in relation to profile products which have been colour sprayed.
In relation to Goods which the Customer has informed the Company will be used outside the Serviced Regions no warranty is given as to colour stability, impact strength and shape retention other than as may be set out in an Annex to these terms duly signed on behalf of the Company.
In relation to spray finishes (wet or powder) on Goods no warranty is given in relation to colour stability, adhesion and wear if the Goods are used in a coastal environment (being within 1 mile of the coast).
Such warranties as are provided under this condition 13 will apply to colour stability, impact strength and shape retention with regard to PVC-U profiles. Any Goods found to be defective under the terms of the warranty will be replaced and delivered free of charge to the premises of the Customer. The warranty is conditional on the material being handled, stored and applied in full compliance with any guidelines that are issued by the Company.
13.2 Conservatory Roof Glass and other sealed glazed units
1. This warranty applies to all sealed units supplied by the Company, subject to the conditions stated herein.
2. If within Ten years from the invoice date, through faulty manufacture, the unbroken sealed unit becomes visually obscured by condensation or dust collection within the unit the Company will: Supply a replacement sealed unit and, at our option, either install the new sealed unit, or accept the costs of removing the faulty sealed unit and installing the new one, provided those charges do not exceed those which the Company would have incurred for the same job.
3. This warranty does not cover consequential damage or loss of whatever nature and howsoever arising whether from failure of the existing sealed unit, or from the de-glazing and the re-glazing of a replacement sealed unit, or otherwise.
4. The acceptance by the Company of any claim under this warranty is conditional upon the Company’s representative being given a reasonable opportunity to inspect the unbroken sealed unit before it is de-glazed. If upon inspection by a Company representative, it is found that the sealed unit was not of faulty manufacture, a charge will be made for the cost of the inspection. If the claimant challenges the result of the inspection, a mutually acceptable independent inspector may be appointed, and subsequently all charges relating to both inspections will be paid: a) By the Company if the decision is in favour of the claimant. b) By the claimant if the decision is in favour of the Company.
5. All replacement sealed units supplied will be on a "like for like" basis using standard components available at the time of construction. Should it be necessary to source the replacement sealed unit from another supplier, this warranty would not apply for those Goods.
6. This warranty applies only to sealed units installed within the United Kingdom.
7. The following are not covered by this warranty:
a) Sealed units, which have been glazed incorrectly (including with silicon sealants) where the original contract was for supply only. For these purposes, a sealed unit will be deemed to have been incorrectly glazed if the method and manner of installation does not comply with the BS 6262 Code of Practice, Glazing for buildings, or BS8000 workmanship on building sites Part 7 code of practice for glazing and their amendments, current at the date of installation.
b) Sealed units used at altitudes over 800 metres, or where they have been transported over such elevation, unless the warranty has been specifically amended in writing to cover the relevant special application.
c) Sealed units, which have not been maintained completely in accordance with the Company’s recommendations (a copy of which is available upon request) and/or any recommendations/methods of the glazing system manufacturer. d) Sealed units showing the optical phenomenon occasionally seen as interference colour bands, known as "Brewster's Fringes"
(e) minor imperfections, such as bubbles, blisters, hairlines, blobs, fine scratches or small pinpricks, which when viewed at 90 degrees in normal daylight and from 3 metres are not obvious. These imperfections are not considered to be defects.
8. A claim is only valid when it is made in writing, in normal circumstances to the issuing location, or alternatively to the Registered office of the Company.
9. This warranty extends to all sealed units made by the Company, whether or not they bear the BM Trada Quality Mark. This Quality Mark is not available for, or applicable to, all types of sealed unit. No warranty is given that the installation of double glazing will reduce the incidence of condensation.
13.3 “Warmcore” products
1. This warranty applies (subject to the other provisions of these conditions) to all Goods which are warmcore products supplied by the Company and extends only to the replacement of the faulty unit or repair or replacement of the failed part of the unit and not associated removal and refitting costs nor any consequential loss.
2. Door hardware and locking mechanisms shall be free from defects in materials and manufacture for 10 years.
3. In relation to surface foils or spray finishes (powder) on warmcore products which have not been applied by the Company, the Company shall so far as it is legally able to do so, where relevant, assign to the Customer any warranty provided by the Company’s relevant supplier .
13.4 Solid Roofs
1. This clause applies (subject to the other provisions of these conditions) to all Bespoke Products or other Goods which are solid roofs.
2. A 12 month warranty is given as to colour stability of roof tiles however the Company shall so far as it is legally able to do so, where relevant, assign to the Customer any warranty provided by the Company’s relevant supplier in relation to features of such solid roofs other than colour stability of tiles. This is set out under the “Qualicoat specifications document” (14th Edition) available on request.
3. A 10 year structural warranty is given and is subject to the roof being installed as per the “Celsius Solid Roof Installation Guide”, available on request.
13.5 Hardware products
The Company shall so far as it is legally able to do so, where relevant, assign to the Customer any warranty provided by the Company’s relevant supplier.
All supplier warranties are available on request.
14.1 No representation is made nor warranty given by the Company as to the suitability or fitness of the Goods for any particular purpose, and the Customer shall be responsible for ascertaining whether the Goods are suitable or fit for the Customer's purpose, and the Company shall be under no liability for any loss damage expense or liability incurred by the Customer or any third party as a result of the Goods not being suitable for a particular use.
14.2 Save as provided in this Condition 14 the Company's liability in connection with the sale of the Goods to the Customer shall be as follows:
(a) in respect of physical damage to or loss of the Customer's tangible property to the extent that it results from the wilful default or negligence of the Company, its employees, agents or contractors the Company's liability shall be limited to the price of the Goods in respect of each incident or series of connected incidents;
(b) in respect of all other direct loss (whether in contract, tort, or otherwise) the Seller's liability shall not exceed the price of the Goods; and
(c) in respect of any loss of profits, loss of goodwill or for any type of consequential, special or indirect loss or damage the Company's liability shall be nil.
14.3 Nothing in these Conditions shall be deemed to exclude or restrict the Company's liability for fraudulent misrepresentation or for death or personal injury resulting from the Company's negligence, or any liability for breach of the Company's implied undertaking as to title.
14.4 The Customer recognises that the limitation of liability contained in this clause is reasonable in that the prices quoted by the Company are dependent upon such limitation being incorporated in the Contract.
15. FORCE MAJEURE
15.1 If the Company is prevented (directly or indirectly) from making delivery of any Goods by reason of force majeure (as hereinafter defined) the Company shall be under no liability whatsoever to the Customer nor shall the Company be deemed to be in breach of the Contract by reason of any delay in performing or failure to perform any of its obligations in relation to the Goods, and the Company shall have the right at its absolute discretion to allocate such deliveries as it is able to make, between deliveries pursuant to the Contract, and deliveries pursuant to any other contract with any third party.
15.2 The following shall be regarded as force majeure:
Act of God, explosion, flood, tempest, fire, accident, war, threat of war, sabotage, insurrection, civil disturbance, government requisition, acts, restrictions, regulations, bye-laws, prohibitions, or measures of any kind, on the part of any governmental, parliamentary, or local authority; import or export regulations, or embargoes, strikes, lock-outs, or other industrial actions, or trade disputes, shortages of raw materials, labour, fuel or parts of machinery, power failure, or breakdown in machinery, including tooling and die failure unavailability of the use of public or private telecommunications networks and any other cause whatsoever beyond the Company’ s reasonable control.
16.1 The Customer shall indemnify the Company on demand against any costs charges losses or expenses including legal fees which the Company may sustain or incur as a consequence of any failure by the Customer promptly and properly to perform its obligations hereunder.
16.2 The Customer shall indemnity the Company against any damages losses costs claims or expenses suffered or incurred by the Company in respect of any claim brought against the Company by any third party for any loss injury or damage wholly or partly caused by the Goods or the use or the use of any Container other than for storage of the Goods. Any loss injury or damage suffered as a result of a failure on the part of the Customer or any third party to use handle or deal with the Goods in a safe and proper manner and in accordance with all applicable regulations and all procedures recommended by the Company. Nothing in this clause will require the Customer to indemnify the Company against any liability to the extent that this arises as a result of the Company's own negligence.
17.1 The Company shall be entitled without prejudice to its other rights and remedies, either to terminate wholly or in part the Contract or any or every other contract with the Customer or to suspend any further deliveries under the Contract or any or every other such contract in any of the following events.
(a) if any debt due and payable by the Customer to the Company is unpaid.
(b) if the Customer has failed to take delivery of any Goods under the Contract, or any other Contract as aforesaid otherwise than in accordance with the Customer's contractual rights.
(c) if the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession or a receiver is appointed, of any of the property or assets of the Customer; or the Customer ceases, or threatens to cease, to carry on business; or the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
17.2 In addition to any right of lien that the Company may have the Company shall in any of the events described in paragraph 17.1(c ) above have a general lien over all Goods sold and delivered by the Company to the Customer under the Contract or any other Contract.
17.3 Any implied right to sell the goods in the ordinary course of business shall terminate on the occurrence of any of the events listed in condition 17.1(c).
The Company will only agree to cancellation on condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage resulting to the Company by reason of such cancellation will be paid forthwith by the Customer to the Company.
19. CONFIDENTIAL INFORMATION
All drawings documents and other information supplied by the Company are supplied on the express understanding that copyright is reserved to the Company and that the Customer will not without the written consent of the Company either give away loan exhibit or sell any such drawings or extracts there from or copies thereof or use them in any way except in connection with the Goods in respect of which they are issued.
20. TRADE MARKS/DESIGN RIGHTS/PATENTS
The supply of Goods by the Company shall not confer any right upon the Customer to use any of the Company's trade marks (except in the re-sale of Goods in the packaging supplied by the Company); or any of the Company's patents or design rights, and at all times such trade marks, patents, and design rights, shall remain the absolute property of the Company.
21. DATA AND TECHNICAL INFORMATION (including Portal surveys and guidance) 21.1 The information contained in the advertising sales and technical literature issued by the Company may be relied upon to be accurate in the exact circumstances in which it is expressed otherwise any illustrations performance details examples of installations and methods of assembly and all other technical data in such literature are based on experience and from trials under test conditions. Accordingly the information contained in the Company's publications is provided for general guidance only and forms no part of the contract unless expressly agreed in writing.
Customers should obtain specific recommendations and advice from the Company regarding the uses and attributes of the Company's Goods.
21.2 In relation to Portal structures:
- The Company may (at a cost to be agreed) comment on what site surveys are desirable but the commissioning and specification for any survey is the responsibility of the Customer;
- If the Company carries out any survey for the Customer this will be at the Customer’s cost;
- Initial structural calculations (based on a specified design only) shall be provided to the Customer;
- In the event that the Company agrees (at the Customer’s cost) to provide a member of staff
to attend on site during installation of a Portal structure, then the role of such person is to provide outline guidance only on erection of the Portal structure. For the purposes of clarification the Company shall not be responsible for the quality of construction/assembly or for any other element of the structure or foundations.
22.1 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision of this or any other contract.
22.2 If any of the provisions of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions, and the remainder of the provision in question, shall not be affected thereby.
22.3 The Customer shall not assign or transfer any of its rights benefits or obligations under the Contract (save with the prior written consent of the Company).
22.4 The Contract shall be governed by and construed in all respects in accordance with English Law, and the Customer hereby submits for all purposes of and in connection with the Contract, to the nonexclusive jurisdiction of the English Courts.
22.5 Any notice or other communication to be given under this agreement shall be in the English language and may be delivered in writing by hand or sent by pre-paid first-class post or fax to the party to be served at that party's registered office or last-known trading address and (in relation to the Company) marked for the attention of the ‘Head of Customer Services’. A notice shall be deemed to have been served, if by hand when delivered, if by facsimile when transmitted, and if by first class post 48 hours after posting.
22.6 The clause headings are for reference purposes only, and do not limit or otherwise affect the interpretation of the foregoing Conditions.
22.7 Each of the provisions contained in these Conditions shall be construed as separate and severable.
22.8 A person who is not a party to the contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these terms and conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.