HUMBER DOORS LTD Conditions of Sale

In these conditions, the following terms shall have the following meanings:

Business Day - a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;

Company - Humber Doors Ltd (trading as Summerbridge Doors & Cabinets). Company Number: 11652290;

Conditions - the terms and conditions set out in this document together with any special terms agreed in writing between the Customer and the Company;

Confidential Information - information in whatever form (including, without limitation, in written, oral, visual or electronic form or any magnetic or optical disk or memory and wherever located) relating to the business, clients, customers, products, affairs and finances of the Company for the time being confidential to the Company and trade secrets Including, without limitation, technical data and know-how relating to the business of the Company or any of its suppliers, clients, customers, agents, distributors, shareholders or management, whether or not  such information (if in anything other than oral form) is marked confidential;

Contract - the contract between the Company and Customer for the sale and purchase of the Goods in accordance with these conditions;

Customer - the person or firm who purchases the Goods from the Company;

Force Majeure Event - has the meaning given in clause 15;

Goods - the goods (or any part of them) set out in the Order;

Intellectual Property Rights - patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all the other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and to 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; and

Order - the customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Company’s quotation, or as otherwise agreed.

 

  1. General
    • The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer must ensure that the terms of the Order submitted by the Customer are complete and accurate. The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order (“Order Acceptance”) at which point the Contract shall come into existence. No Contract will come into existence until an Order Acceptance is issued by the Company.
    • The Contract will be subject to these Conditions. 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, statute, custom, practice or course of dealing to the fullest extent permitted by law.
    • Any samples, drawings, descriptive matter, or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force and this is not sale by sample.
    • Acceptance of delivery of the Goods will be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
    • A quotation for the Goods given by the Company shall not constitute an offer. A quotation or tender shall only be valid for a period of 30 (thirty) days from its date of issue unless otherwise specified or withdrawn earlier by the Company.

 

  1. Delivery and Completion Dates
    • The Goods shall be delivered to the address stated in the Order (the “Delivery Location”). Delivery to any address other than the Delivery Location may incur additional costs payable by the Customer.
    • The delivery dates specified in the Order are approximate only. Time is not of the essence for delivery and performance. The Company will not be liable in any circumstances for the consequences of any delay in delivery or performance.
    • Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location unless the Goods are collected from the Company in which case delivery of the Goods shall be completed on collection from the Company. The Customer will provide, at its expense at the Delivery Location, adequate and appropriate equipment and manual labour for off-loading the Goods.
    • Delay shall not entitle the Customer to reject an Order or any other further instalment or part of the Order.
    • Where Goods are to be supplied from stock held by the Company, such supply is subject to availability of stocks at the date of delivery.
    • If the Company 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 Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. The Company shall have no liability to the Customer for direct, indirect or consequential loss, however caused (included any negligence) by any delay in delivery except as set out above.
    • The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately in accordance with these Terms. 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.

 

  1. Delayed Acceptance
    • If the Customer fails to take delivery of the Goods within 3 (three) Business Days of the Company notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract:

3.1.1    delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day after the day on which the Company notified the Customer that the Goods were ready; and

3.1.2    The Company shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).

  • If 10 (ten) Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Company may:

3.2.1    store or arrange for storage of the Goods until actual delivery or sale in accordance with clause 3.1.2 and charge the Customer for all related costs and expenses (including without limitation, storage and insurance); and/or

3.2.2    following written notice to the Customer, resell or otherwise dispose of part or all of the Goods and after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the goods.

3.3         This provision is without prejudice to any other right to which the Company may have in respect of the Customer’s failure to take delivery of the Goods or pay for them in accordance with the Contract.

 

  1. Prices

The price payable for the Goods shall be as set out in the Order or if no price is quoted, the price notified to the Customer. Prices shall exclude value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods or performance of the services (whether initially charged or payable by the Company or the Customer) which shall be payable by the Customer in addition to the price.

 

  1. Terms of Payment

5.1         Prices quoted are net of value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods or performance of the services (whether initially charged or payable by the Company or the Customer) unless otherwise agreed.

5.2         Subject to clause 5.3 payment must be received by the Company before delivery of the Goods.

5.3         Notwithstanding the terms of clause 5.2 the Company may approve a credit facility for the Customer. If so, the Customer shall pay the Order price no later than the end of the month following the month of the invoice unless otherwise agreed by the Company in writing. All payments by the Customer to the Company shall be made without deduction or set off. The Company may at any time, without limiting its other rights and remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.

5.4         When Orders are delivered as instalments, each instalment will be invoiced as dispatched and each month’s invoices will be treated as a separate account and be payable accordingly.

5.5         Where work under an Order is to be performed over a period in excess of one month, the value of the work will be ascertained by the Company at the end of each month and (unless the contract otherwise expressly provides) a sum equal to such value (or any percentage thereof specified in the contract) shall be invoiced and such invoices shall be paid in accordance with the foregoing provisions of this clause.

5.6         Failure to pay any sums due on the due date shall entitle the Company to suspend further instalments and/or Orders to the Company without prejudice  to any other rights the Company may have. The Company may charge interest on the overdue amount at a rate of 4% above the base rate of the Bank of England. Such interest will accrue on a daily basis from the due date to the date of the actual payment of the overdue amount, whether before or after judgement. The Customer shall pay the interest together with the overdue amount.

5.7         The Company reserves the right where genuine doubts arise, as to a Customer’s financial position or in the cases of failure to pay for any Goods or services or any delivery or instalment as aforesaid to suspend delivery or performance or any Order or any part instalment without liability until payment or satisfactory security for payment has been provided.

 

  1. Title and Risk of the Goods

6.1         The risk of damage to or loss of the Goods shall pass to the Customer on completion of delivery (or deemed delivery in accordance with clause 2).

6.2         Title to the Goods shall remain with the Company until:

6.2.1    payment in full has been received by the Company for those Goods and for any other Goods supplied by the Company; and

6.6.2    any other monies due from the Customer to the Company on any account have been paid in full.

6.3         Until ownership of the Goods passes to the Customer under clause 6.1 above, the Customer shall:

6.3.1    hold the Goods on a fiduciary basis as the Company’s bailee;

6.3.2    keep the Goods separately and ready identifiable as property of the Company;

6.3.3    not attach the Goods to property without the Company’s consent;

6.3.4    maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

6.3.5    not remove deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.6    notify the Company immediately if it becomes subject to any of the events listed at clause 10.1.1 to 10.1.3; and

6.3.7    give the Company such information relating to the Goods as the Company may require from time to time.

6.4         Notwithstanding the terms of clause 6.1, the Customer may (as between it and its customer only) sell the Goods by bona fide sale at full market value (and account to the Company accordingly) or in the ordinary course of its business, use the Goods before ownership of the Goods has passed to the Customer provided that:

6.4.1    any such sale will be a sale of the Company’s property on the Customer’s own behalf and the Customer will deal as principal when making such a sale; and

6.4.2    title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.

6.5         If at any time prior to the property in Goods passing to the Customer (whether or not any payment to the Company is then overdue or the Customer is otherwise in breach of any obligation to the Company) or if before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clauses 10.1.1 to 10.1.3 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then the Company may without prejudice to any other of its rights:

6.5.1    provided that the Goods have not been resold, or irrevocably incorporated into another product, require the Customer to deliver up the Goods and, 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.  The Company will be entitled to recover payment for the Goods notwithstanding that title in any of the Goods has not passed from the Company; or

6.5.2    terminate the Customer’s authority to re-sell or use the Goods forthwith by written notice to the Customer which authority shall be automatically terminated (without notice) upon any insolvency of the Customer or its going into liquidation (as defined by the Insolvency Act 1996) or it having a receiver or administrative receiver appointed or calling a meeting of its creditors or any execution or distress being levied on goods in its possession.

6.6         Where the Company is unable to determine whether any Goods in respect of which the Company’s right to possession has terminated, the Company will be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.

6.7         If Goods in which ownership has not passed to the Customer are mixed with, or incorporated into, other goods, the property in those other goods shall be held on trust for the Company to the full extent of the sums recoverable by the Company under clause 5.2 above.

6.8         The Customer assigns to the Company all rights and claims the Customer may have against its own customers and others in respect of Goods specified in clause 6.4.

 

  1. Warranty: Limit of Responsibility

7.1       Subject to the conditions set out in 7.4, the Company warrants that the Goods will correspond with their specification at the time of delivery.

7.2       Any claim by the Customer which is based on any defect in the quality or conditions of the Goods or their failure to correspond to specification shall (whether or not delivery is refused by the Customer) be notified to the Company within 7 (seven) days from the date of delivery or (where the defect or failure was not apparent on reasonable receipt inspection), prior to the installation of the Goods.

7.3       The Company further warrants that subject to the conditions set out in 7.4, it will either repair or replace or refund the full purchase price of the Goods which are accepted by the Company (after inspection of such Goods) as having become defective after installation, within a period of 6 (six) years (the “Warranty Period”, “Warranty”) from dispatch of such Goods from the Company’s works, unless otherwise agreed in writing with the Customer.

7.4       Claims made as identified in 7.2 or 7.3 shall not apply where:

7.4.1    the defect or fault is attributable to defective materials supplied by third parties where the Customer’s only remedy will be against that third party;

7.4.2    the defect or fault is attributable to the Goods not having been installed or maintained in accordance with the Company’s installation, maintenance and product care instructions, or (if there are none), good trade practice regarding the same;

7.4.3    the defect or fault arises as a result of the Company following any drawing or design supplied by the Customer;

7.4.4    the Customer alters or repairs such Goods without the written consent of the Company;

7.4.5    the defect or fault arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;

7.4.6    the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or

7.4.7    the Company has not received payment of all sums due in full (in cash or cleared funds) for the Goods in question.

7.5       Except as provided in this clause 7, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the Warranty.

7.6       The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

7.7       These Conditions shall apply to any repaired or replacement Goods supplied by the Company.

 

  1. Limitation of Liability

8.1       Nothing in these Conditions shall limit or exclude the Company’s liability for:

8.1.1    death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

8.1.2    fraud or fraudulent misrepresentation;

8.1.3    breach of the terms implied by Section 12 of the Sale of Goods Act 1979 or section 2 of the Sale and Supply of Goods and Services Act 1982;

8.1.4    defective products under the Consumer Protection Act 1987; or

8.1.5    any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

8.2       Subject to clause 8.1:

8.2.1    The Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss or profit, or any indirect consequential loss (including at all times, without limitation, economic loss, loss of business, depletion of goodwill or similar) howsoever caused arising under or in connection with:

8.2.1.1       any of the Goods, or the manufacturer or sales or supply, or failure or delay in supply of the Goods by the Company or on the part of the Company’s business;

8.2.1.2       any breach by the Company of any of the express or implied terms of the Contract;

8.2.1.3       any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods;

8.2.1.4       any statement made or not made, or advice given, by or on behalf of the Company; and

8.2.1.5       or otherwise under the Contract

8.3       The Company’s total liability to the Customer in respect of all other 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 the price paid for the Goods in the Order under which liability has arisen.

8.4       The Company hereby excludes to the fullest extent permitted in law, all conditions and warranties, whether express (other than as set out in these Conditions) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.

8.5       The Customer acknowledges that the above provisions of this clause 8 are reasonable and reflected in the price which would be higher without those provisions, and the Customer will accept such risk accordingly.

8.6       This clause 8 shall survive termination of the Contract.

 

  1. Damage, Shortage or Loss in Transit

The Company will only consider a claim by the Customer in respect of loss or of damage to the Goods in transit if the Customer:

9.1.1    gives written notice to the Company within 21 days of non-delivery or within 7 days of the delivery of the Goods in any case; and

9.1.2    where the Goods are transported by an independent freight carrier, the Customer complies in all respects with the freight carrier’s conditions of carriage for notifying claims for loss or damage in transit.

 

  1. Termination

10.1     If the Customer:

10.1.1  enters into a deed of arrangement or commits an act of bankruptcy or compounds with his creditors or if a receiving order is made against him or (being a Company) it shall pass a resolution or a Court shall make an order that the Customer shall be wound up (otherwise than  for the purpose of amalgamation or reconstruction) or if a receiver (including an administrative receiver) shall be appointed of any of the  assets or undertaking of the Customer or if circumstances shall arise which shall entitle the Court or creditor to appoint a receiver (including and administrative receiver) or a manager of which entitles the Court to make a winding up order; or

10.1.2  the equivalent of any of the above occurs in the jurisdiction in which the Customer is subject, or the financial responsibility of the Customer shall, in the opinion of the Company, become impaired; or

10.1.3  ceases or threatens to cease, to carry on all or substantially the whole of its business: or

10.1.4  if the Customer shall commit any breach of any part of the Contract,

the company may without prejudice to its rights and remedies, hereunder, stop all Goods in transit and suspend any further Order and/or terminate this Contract by notice in writing to the Customer with immediate effect.

10.2     Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination including the right to claim damages in respect of any breach of the Contract which existed ta or before the date of termination..

10.3     Clauses which expressly or by implication survive termination of the Contract shall continue in         full force and effect.

10.4     On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt.

 

   11. Non-Standard Orders

Where the Customer orders Goods or material of a type, size and quality not normally produced by the Company, the Company will use all reasonable endeavours to execute the Order, but if it proves impossible, impracticable or uneconomical to carry out or complete the Order, the Company reserves the right to cancel the Contract or the uncompleted balance thereof, in which event, the Customer will only be liable to pay for the part thereof actually delivered or performed.

 

  1. Sub-Contracting

The Company shall be entitled to sub-contract any of the work relating to an Order without obtaining the consent of, or giving notice to, the Customer.

 

  1. Assignment

13.1     None of the rights or obligations of the Customer under the contract may be assigned or transferred in whole or in part without prior written consent of the Customer.

13.2     The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

 

  1. Intellectual Property Rights

No right or licence is granted to the Customer in respect of the Intellectual Property Rights of the Company, except the right to use, or re-sell the Goods in the Customer’s ordinary course of business.

 

  1. Force Majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond or party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including but not limited to strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s) failure of energy sources or transport network, acts of God, extremes of weather, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, pandemics, epidemics or similar events, natural disasters or extreme adverse weather conditions or default of supplies or subcontractors. The time for performance of such obligations shall be extended accordingly.

 

  1. Variation and Waiver

16.1     Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Company.

16.2     No failure to exercise or delay in exercising any right or remedy provided under this Agreement or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.

16.3     No single or partial exercise of any right or remedy under this Agreement shall prevent or restrict the further exercise of that or any other right or remedy.

 

  1. Notices

17.1     Any notices must be in writing and may be delivered by hand, first class post, Special Delivery post, fax or email, addressed to the recipient at its registered office or to any other address, fax number or email address as notified in writing to the sender by the other party.

17.2     Any notice shall be deemed to have been received:

(a)        if delivered by hand, at the time the notice is left at the proper address;

(b)        if sent by pre-paid first class post or other next working day delivery service, at 9:00 am on the Business Day after posting; or

(c)        if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

17.3     This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

  1. Entire Agreement

18.1     This Agreement constitutes the whole agreement and understanding of the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement. Each party acknowledges that it has not relied upon any warranty, representation, statement or understanding other than those expressly set out in this Agreement.

18.2     Nothing in this clause shall limit or exclude any liability or fraudulent misrepresentation.

 

  1. Rights of Third Parties

No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.

 

  1. Confidentiality

20.1       The Customer shall keep confidential any Confidential Information that it may acquire and shall not use the Confidential Information for any purpose other than to perform its obligations under the Contract and will ensure that its officers and employees comply with the provisions of this clause 20.

 

  1. Severance

21.1       If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected and the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

21.2       If any provision of the Contract is deemed deleted under Clause 21.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

  1. Governing Law and Jurisdiction

This Contract 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 constructed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.