Standard Terms and Conditions for the supply of Goods and/or Services
Ablewight Chimney Services is a trading as name of Wight Initiatives Ltd
The Officer’s Mess, Royston Road, Duxford, Cambridge, CB22 4QH
01223 835886 www.ablewightchimneyservices.co.uk
The Customer's attention is particularly drawn to the provisions of clause 12
Definitions. In these Conditions, the following definitions apply:
any services other than the Services that the Supplier agrees to supply to the Customer from time to time.
a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
has the meaning set out in clause 2.2.
these terms and conditions as amended from time to time in accordance with clause 14.6.
any natural person who is acting for purposes outside his trade, business or profession.
the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
the Consumer or Trade Customer who purchases the Goods and/or Services from the Supplier.
has the meaning set out in clause 9.2.
the Goods and/or Services set out in the Quotation produced by the Supplier for the Customer.
the date for delivery of the Goods set out in the Quotation.
has the meaning set out in clause 5.1.
the fgoods or any part of them, to be supplied by the Supplier to the Customer as set out in the Quotation.
the Customer's order for the supply of Goods and/or Services as set out in the Quotation.
the quote in which the Supplier details the Goods and the price of the Goods and/or details the Services and the price of the Services in writing.
the services, including deliverables, supplied by the Supplier to the Customer as set out in the Specification.
the diagnostic chimney testing and/or chimney sweeping and/or creosote removal (if any), including (where appropriate) the Deliverables, to be supplied by the Supplier to the Customer as detailed in the Quotation.
Wight Initiatives Limited (registered in England and Wales with company number 07725203) trading as Ablewight Chimney Services
has the meaning set out in clause 9.1. (e) (v).
a person, firm or company acting for trade, business or professional purposes.
Rules of Interpretation. In these Conditions, the following rules apply:
- a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- a reference to a party includes its successors or permitted assigns;
- a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision;
- any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- a reference to “writing” or “written” includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the contract shall come into existence. (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force.
2.4The conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier is only valid for a period of 20 Business Days from its date of issue.
2.66 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. APPLICATION OF THESE CONDITIONS
3.1 Where a Consumer purchases Goods and/or Services these Conditions shall be subject to any laws or legislation governing the rights of consumers and the Consumer’s statutory rights as stated in Term 6 shall not be affected.
3.2 Where a Trade Customer purchases Goods and/or Services the Conditions shall be subject to any laws or legislation governing the rights of non-consumers and the Trade Customer’s statutory rights shall not be affected.
3.3 Where a Contract constitutes a distance contract pursuant to the Consumer Protection (Distance Selling) Regulations 2000, the Consumer has the right to cancel the Contract within 7 working days starting on the day after the contract is agreed or the goods received on giving notice to the Supplier, but will not have the right to cancel a Contract for the supply of Services where the performance of the Services has commenced.
4.1 The Goods are described in the Quotation.
4.2 The Supplier reserves the right to amend the Specification of the Goods if required by any applicable statutory or regulatory requirements and the Supplier shall notify the Customer in any such event.
5. DELIVERY OF GOODS
5.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing from time to time (Delivery Location).
5.2 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
5.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by any event outside the Supplier’s reasonable control or by the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the reasonable costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by any event outside the Supplier’s reasonable control or by, the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
5.5 If a the Customer fails to accept or take delivery of the Goods on the Delivery Date, then except where such failure or delay is caused by any event outside the Supplier’s reasonable control or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
5.6 (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the Delivery Date; and
5.7 (b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related reasonable costs and expenses (including insurance)
5.8 If a 10 days after the Delivery Date the Customer has not accepted or taken delivery of the Goods, the Supplier may 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.
5.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6. QUALITY OF GOODS (For Consumers)
The Supplier warrants that on delivery, and for a period of 6 months from the date of delivery (Warranty Period)
6.1 The Goods shall:
- conform in all material respects with their description and the Specification;
- be free from defects in design, material and workmanship;
- be fit for purpose
6.2Subject to clause ,6.3 the Supplier shall, at its option, repair or replace the defective Goods or refund the price of the defective Goods in full if:
- the Consumer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not conform to Clause 6.1 and
- the Supplier is given a reasonable opportunity of examining such Goods; and
- the Consumer (if reasonably asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Consumer’s cost;
6.3 If the Customer in clause 6.2 above is a Consumer who gives the clause 6.2 (a) notice in writing within 6 months from the date of delivery of the Goods, then the goods shall be deemed to not comply with 6.1 unless the supplier can show that the goods have been misused.
- Clause 6.2 (c) shall apply save that the cost of returning the Goods to the Supplier’s place of business shall be met by the Supplier; and
- the Supplier shall, at the reasonable option of the Consumer, repair or replace the defective Goods, or refund the price of the defective Goods in full and shall refund to the Consumer all reasonable delivery charges.
6.4 The Supplier shall not be liable for the Goods failure to comply with 6.1 if:
- the Customer makes any further use of such Goods after giving a notice in accordance with clause 6.2; or
- the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there were none) good trade practice;
- the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Consumer;
- the Customer alters or repairs such Goods without the written consent of the Supplier; or
- the defect arises as a result of fair wear and tear, wilful damage, or negligence or as a result of abnormal working conditions; or
- Trade Customers Only. The defect arises because the Customer failed to follow the Supplier's written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; good trade practice or abnormal working conditions.
6.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 6.2
7. TITLE AND RISK – CONSUMER
7.1 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods and/or supply of Services as specified on the Order and any other Goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.1.2 A Consumer will be deemed to have accepted Goods bought via Distance Contract only if he has not rejected them within 7 Business Days of receiving the Goods in accordance with clause 3.3 (as applicable). Rejection of goods must be made in writing to 23 King Street, Cambridge, CB1 1AH or email@example.com
7.2 The risk in the Goods shall pass to the Consumer on delivery.
7.3 Until title to the Goods has passed to the Consumer , the Consumer shall:
- store the goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the goods;
- maintain the Goods in a satisfactory condition and keep them insured against all risks for their full price on the Suppliers behalf from the date of delivery;
- give the Supplier such information relating to the Goods as the Supplier may require from time to time,
- notify the Supplier immediately if it becomes subject to any events listed in Clause 13.1 .
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13 or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time:
- require the Customer to deliver up the Goods; and
- if the Customer fails to do so promptly, seek a Court Order granting entry into any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. SUPPLY OF SERVICES
8.1 The Supplier shall provide the Services to the Customer in accordance with the Specification in all material respects
8.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Quotation but any such dates shall be estimates only and time shall not be of the essence for the performance of services.
8.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
8.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
9. CUSTOMER'S OBLIGATIONS
9.1 The Customer shall:
- confirm that the terms of the Quotation are complete and accurate;
- co-operate with the Supplier in all matters relating to the Services;
- provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, chimney flue and other facilities as reasonably required by the Supplier to provide the Services;
- provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
- obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- ensure that where a chimney flue is to be swept and/or tested as part of the Services:
- the chimney flue has not been used for at least 24 hours prior to the date that the Services are to be provided;
- it has notified the Supplier of any damage or alteration to the appliance, stack, flue, pot or any other part of the structure that might affect the sweeping and/or testing processes;
- the chimney is in a fit and proper condition to withstand any potential stresses caused by the sweeping and/or testing processes;
- if there is any question as to the suitability, or structural integrity of the appliance, stack, flue, pot or any other part of the structure, that this is checked out and verified by a competent, accredited builder, prior to the sweeping and/or testing services being carried out; and
- keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) in safe custody at its own risk, take reasonable care to maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation.
9.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
- the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations
- the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 9.2.; and
- the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
10. CHARGES AND PAYMENT
10.1 The price for the Goods shall be the price set out in the Quotation. The price of the Goods is inclusive of all costs and charges of packaging, insurance and transport of the Goods.
10.2 The price for Services shall be the price set out in the Quotation.
10.3 The charges for any Additional Services shall be on a time and materials basis:
- the charges shall be calculated in accordance with the Supplier's standard daily fee rates from time to time in force; and
- the Supplier's standard daily fee rates for each individual person are calculated on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days.
10.4The price for the Services shall include any expenses incurred by the individuals whom the Supplier engages in connection with the Services and any Additional Services.
10.5 The Supplier reserves the right to:
- increase the price of the Goods, by giving notice to the Customer at any reasonable time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
- any request by the Customer to change the Delivery Date(s), quantities or types of Goods ordered, or the Specification in respect of the Goods; or
- any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
10.6 the Supplier shall invoice the Customer 100% of the price of the Goods and/or Services immediately upon the Commencement Date.
10.7The Customer shall pay each invoice submitted by the Supplier as stated in the invoice within 14 days and in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract. If the Customer fails to pay sums due in accordance with Clause 10.7 the Supplier reserves the right without limiting any right or remedy, to remove any discount applied to the order.
10.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
10.9.1 Without limiting any other right or remedy of the Supplier, if a Trade Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to exercise its statutory right to claim interest and compensation for debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 and the Regulations made under it unless the Act is found not to apply in which case the Supplier will charge interest on the overdue amount at the rate of 8% per annum above the Bank of England minimum lending rate from time to time until payment in full, compounding quarterly
10.9.2 Without limiting any other right or remedy, if a Consumer fails to make any payment by the Due Date, the Supplier will charge interest on the overdue amount at the rate of 5% per annum above the Bank of England minimum lending rate calculated on a daily basis or otherwise as determined by court proceedings in accordance with clause 14.7.
10.9.3 Without limiting any other right or remedy, if the Customer fails to make payment within 60 days of the Due Date, the Supplier reserves the right to instruct a third party debt collection agency, without further notice, to recover the sums due and any additional legal costs and expenses of the third party debt collection agency incurred as a result.
10.10 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
11.1Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 11.2.
11.2 Each party may disclose the other party's confidential information:
- to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Clause 12; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
12. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 and sections 12-15 of the Sale of Goods Act 1979 (title and quiet possession, description; satisfactory quality; sale by sample); or.
- breach of the terms implied by sections 13-15 of the Supply of Goods and Services Act 1982 (supply to be carried out with reasonable care and skill, within a reasonable time and for a reasonable price)
12.2 Subject to clause 12.1:
- the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss (unless such loss was reasonably foreseeable and was incurred due to breach of contract) arising under or in connection with the Contract; and
- the Supplier'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 be determined in the first instance by negotiation or if both parties agree by mediation; but if negotiation and/or mediation fail, shall be determined by the court in accordance with clause 14.7.
12.3 This clause 12 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 Business Days after receipt of notice in writing of the breach;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986.
- The Customer is subject to any insolvency which includes, but is not limited to, Company Voluntary Arrangements; Bankruptcy Petitions and Orders; IVA (Individual Voluntary Arrangements); DRO (Debt Relief Order); Receivership; Administration/Administration Orders; Winding-up Orders (Registered and Unregistered Companies.
- the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract:
- by giving the Customer 1 month’s written notice; and
- with immediate effect by giving written notice to the Customer if the Customer unreasonably fails to pay any amount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:
- the Customer fails to pay any amount due under this Contract on the due date for payment; or
- the Customer becomes subject to any of the events listed in clause 13.1 (b), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
14. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
- the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
- the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14.1 Assignment and subcontracting:
- The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party. The validity and enforceability of this Contract will not be affected or amended by any such assignment or subcontracting.
- The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number, or if to a consumer sent or delivered to that consumer’s last known address.
- Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such address or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
- This clause 14.2 shall not apply to the service of any proceedings or other documents in any legal action. For the avoidance of doubt notice given under this Contract shall be validly served if sent by e-mail.
14.3 Waiver and cumulative remedies:
- A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
- If a court 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 deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
- If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.5 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.6 Entire agreement:
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misrepresentation] based on any statement in the Contract.
- Nothing in this clause shall limit or exclude any liability for fraud.
14.7 Variation: Any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by both parties.
14.8 Governing law and jurisdiction: The 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 construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.