Terms & Conditions of Sale

1. INTERPRETATION

In these Terms and Conditions the following definitions apply:

• “SELLER” is Spicgem Limited (t/a Roseview Windows).
• “BUYER” is the person who accepts a quotation of the Seller for the sale of the Goods or whose Order for the Goods is accepted by the Seller.
• “CONDITIONS” are the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
• “CONTRACT” is the contract for the purchase and sale of the Goods in accordance with these Conditions.
• “ORDER” is the Buyer’s order for the Goods, as set out by the Buyer’s written acceptance of Seller’s quotation, completion of an order form, provision of a purchase order or by any other means recognised by the Seller.
• “GOODS” Means the goods (or any part of them) which the Seller is to supply in accordance with these Conditions.
• “IN WRITING” and “WRITTEN” refer to any written format, including fax and email.

Any reference to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. BASIS OF SALE

All quotations and offers are made and all Orders are accepted subject to these Conditions, and they shall apply to all Contracts to the exclusion of any other terms or conditions that the Buyer seeks to apply or incorporate, or which may be implied by trade, custom or practice.

The Contract comes into existence at the point at which the Buyer accepts, in writing, the Order or the Seller’s interpretation of the Order as advised in writing by the Seller.

No variation to these Conditions shall be binding unless agreed in writing between authorised representatives of the Buyer and the Seller.

The Contract constitutes the entire agreement between the Buyer and Seller. No other parties are included in the Contract.

The Seller’s employees or agents are not authorised to make any representations or give any advice or recommendation concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not confirmed.

Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3. ORDERS AND SPECIFICATIONS

No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.

The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable design measurement quantities and specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s written acknowledgement of the Order and accepted in writing by the Buyer.

If the Goods are to be manufactured or any process to be applied to the Goods by the Seller in accordance with instructions submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s instructions.

The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit, labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

4. PRICE OF GOODS

The price of the Goods shall be the Seller’s quoted price or where no price has been quoted (or a quoted price is no longer valid) the price advised by the Seller upon acceptance of the Order. All prices quoted are valid for the period stated in the quotation, after which time they may be altered by the Seller without giving notice to the Buyer.

The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller. This includes, without limitation: foreign exchange fluctuations, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture, any change in delivery dates quantities or specifications for the Goods requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

Where the Seller agrees to deliver the Goods other than to the Buyer’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.

The price is exclusive of any applicable taxes or duties (including VAT), which the Buyer shall be additionally liable to pay to the Seller.

The Buyer shall pay all amounts due under the Contract in full without any counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.

5. PAYMENT TERMS

Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods. If the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of Goods.

The Buyer shall pay the price of the Goods, without any deductions according to the payment terms previously agreed with the Seller.

The Seller reserves the right at any time to demand full or partial payment before proceeding further with any order.

If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

• Cancel the Contract and/or any other contract between the Buyer and the Seller.
• Suspend any further deliveries to the Buyer in relation to the Contract or any other contract between the Buyer and the Seller.
• Cancel other orders received from the Buyer.
• Appropriate any payment (whether partial payment or full payment) made by the Buyer for goods supplied under any other contract between the Buyer and the Seller as the Seller may think fit (notwithstanding any purported appropriation of the Buyer).
• Charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 5% per cent per month above the Bank Of England’s base rate, until payment is made in full (a part of a month being treated as a full month for the purpose of calculating interest) and
• Charge the Buyer all costs, charges and expenses incurred by the Seller (including without limitation, cost incurred in commencing and carrying out legal proceedings) in the collection of the payment (and so that any taxation of the Seller’s costs, charges and expenses shall be on a full indemnify basis).

6. DELIVERY

Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if the Buyer’s address or some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.

Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may (without limitation):

• Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage, or
• Sell the Goods at the best price readily obtainable and (after deducting all the reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

7. PROPERTY AND RISK

Risk of damage to or loss of the Goods shall pass to the Buyer:

• In the case of Goods to be collected from the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection.
• In the case of Goods to be delivered to an agreed location, at the time of delivery or—if the Buyer wrongfully fails to take delivery of the Goods—at the time when the Seller has intended delivery of the Goods.
• Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions, property the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other sums then due and payable by the Buyer to the Seller.
• Until the property of the Goods passes to the Buyer the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. The Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds properly stored, protected and insured.
• Until such time as the property of the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
• The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8.WARRANTY

Upon payment of the price of the Goods in accordance with the Contract, the Seller shall issue the Buyer a guarantee. The form of this guarantee is available upon request.

The guarantee is given by the Seller subject to the following conditions:

• The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing design or specification supplied by the Buyer.
• The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing) misuse or alteration or repair of the Goods without the Seller’s approval.
• Where the Goods are sold under a consumer contract (as defined by the Sale of Goods Act 1979) all warranties, conditions of other terms implied by statute or common law are excluded to the fullest extent permitted by law. The statutory rights of the Buyer are not affected by these Conditions.

Any guarantee claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification must be notified to the Seller within seven working days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.

If delivery is not refused and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions the Seller shall be entitled to replace the Goods (or the part in question) free of charge, or at the Seller’s sole discretion, refund to the Buyer the price of the Goods ( or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.

9. LIABILITY

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

• death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).
• fraud or fraudulent misrepresentation
• breach of the terms implied by section 12 of the Sale of Goods Act 1979
• defective products under the Consumer Protection Act 1987, or
• any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.

Subject to liabilities listed above, the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:

• loss of profit, revenue, goodwill, contracts, business opportunity data, or anticipated savings (in each case whether direct or indirect), or
• cost expenses or other claims for consequential loss or damage
• consequential compensation
• any indirect, special or consequential loss arising under or in connection with the Contract.

The Seller’s total liability to the Buyer 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 100% of the price of the Goods.

10. FORCE MAJEURE

The Seller shall not be 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. A “Force Majeure Event” means any event beyond the Seller’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including:

• Act of God. Explosion, flood, tempest, fire, collapse of buildings, epidemics, natural disasters, extreme weather conditions.
• War, threat of war, armed conflict, terrorism, sabotage, insurrection, civil disturbance or requisition
• Acts of Parliament, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any local authority.
• Import or export regulations or embargoes.
• Strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party).
• Difficulties in obtaining raw materials, labour, fuel, parts or machinery.
• Failure of energy sources or transport network.
• Power failure or breakdown of machinery.
• Default of suppliers or subcontractors.

11. INDEMNITY

If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trademark or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:

• The Seller is given full control of any proceedings or negotiations in connection with any such claim.
• The Buyer shall give the Seller all reasonable assistance for the purpose of any such proceedings or negotiations.
• Except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld).
• The Buyer shall do nothing which would or might impact the validity of any insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do).
• The Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim, and
• Without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.

12. INSOLVENCY OF THE BUYER

This clause applies if:

• the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or becomes bankrupt or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or
• a receiver or administrator is appointed to any of the property or assets of the Buyer, or
• the Buyer ceases or threatens to cease to carry on business, or
• the Seller reasonably apprehends that any of the events mentioned above are about to occur in relation to the Buyer and notifies the Buyer accordingly.

If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer. If the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

13. GENERAL

A person or organisation who is not party to the Contract shall not have any rights to enforce its terms.

All intellectual property rights created by or on behalf of the Seller in connection with the Contract shall be and remain the property of the Seller and the Buyer shall do everything necessary to ensure the Seller has the benefit of this Clause.

The Seller grants to the Buyer a non-exclusive, personal, royalty-free, non-transferable right and licence to use the Seller branding in connection with onward sales of the Goods by the Buyer, provided that the Buyer shall:

• comply at all times with any Seller branding usage requirements and/or guidance issued by the Seller from time to time
• under no circumstances use the Seller’s branding or identity in connection with any goods other than the Goods (including modifications to the or additions to the Goods) in such a manner as may cause any person to believe that such goods were manufactured by the Seller
• not imply any endorsement of the Buyer by the Seller or otherwise lead any person to believe that the Buyer is acting in partnership with the Seller
• not do anything which may be detrimental to the reputation, image or goodwill of the Seller.

The Seller may revoke licence to use the Seller’s branding at any time at its sole discretion.

Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in any part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.

The Contract shall be governed by and construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the English courts.

Revision 1.2