1.Definitions
In these conditions, the following definitions shall apply:
'The Company': Stovax Limited.
'The Purchaser': The person, firm or company
placing the Order.
'Order': The order accepted by the Company for the
Goods.
'Goods': The goods specified in the Order.
'Terms': These terms and conditions.
'Working Day': All days excluding Saturdays,
Sundays and Bank Holidays in England.
2.Contract
2.1.These Terms apply to all contracts with the
Company for the sale of Goods to the exclusion of all other terms
or conditions (including any terms or conditions which the
Purchaser purports to apply under any purchase order, confirmation
of order, specification or other document). No variation will be
effective unless otherwise agreed in writing by an authorised
representative of the Company.
2.2.Each Order for Goods by the Purchaser shall be
deemed to be an offer by the Purchaser to purchase Goods subject to
these Terms.
2.3.No Order placed by the Purchaser shall be deemed
accepted by the Company until a written acknowledgement of order is
issued by the Company or (if earlier) the Goods are delivered to
the Purchaser.
2.4.The Company's employees and agents are not
authorised to make any representations concerning the Goods unless
confirmed by the Company in writing. Any advice or recommendation
given by the Company or its employees or agents to the Purchaser,
which is followed or acted upon by the Purchaser, but which is not
confirmed in writing by the Company is followed or acted upon
entirely at the Purchaser's own risk. Nothing in these Terms will
exclude or limit the Company's liability for fraudulent
misrepresentation.
2.5.All descriptive and shipping specifications,
drawings, and particulars of weights and dimensions submitted with
any quotations are approximate only.
2.6.The descriptions and illustrations contained in
the Company's catalogues, price lists, and other advertising matter
are intended merely to present a general idea of the Goods
described therein and none of the above shall form part of any
contract with the Purchaser.
2.7.These terms incorporate the Company's internet
policy in force from time to time.
2.8.The Purchaser agrees with the Company that it
shall only re-sell Goods via the medium of their own showroom or
other property owned or occupied by the Purchaser. The Purchaser is
not authorised to advertise or re-sell Goods on a website owned by
the Purchaser or any third party without the prior written consent
of the Company.
3.Order and acceptance
3.1.The Purchaser shall be responsible to the Company
for the accuracy of the terms of the Order (including any
applicable specifications) and for giving the Company any necessary
information relating to the Goods within a sufficient time to
enable the Company to perform the contract in accordance with its
terms.
3.2.If the Goods are to be manufactured or any process
is to be applied to the Goods by the Company in accordance with the
specifications and/or designs submitted by the Purchaser, the
Purchaser shall indemnify the Company against all loss, damage,
costs and expenses awarded against or incurred by the Company for
infringement of any patent, copyright, registered design, design
right, trade mark or other industrial or intellectual property
rights of any other person, any claim in respect of royalties
payable in respect of the Goods or any claims for loss or injury
suffered by any person, firm or company to its property or persons
as a result of any defect, inherent or otherwise, in the Goods
resulting from a defect in such specifications or
designs.
3.3.The Company reserves the right to make changes in
the specification of the Goods as are required to conform with any
applicable safety or other statutory requirements or, where Goods
are supplied to the Purchaser's specification, where such changes
do not materially affect their quality or performance.
3.4.A separate contract shall arise in respect of each
order which is accepted by the Company in writing, or accepted by
the Company by delivery of the Goods.
3.5.No Order may be cancelled by the Purchaser except
with the agreement in writing of the Company and on terms that the
Purchaser shall indemnify the Company in full against all loss
(including loss of profits), costs (including the cost of all
labour and materials used), damages, charges and expenses, incurred
by the Company as a result of cancellation.
4.Price
4.1.The price for the Goods shall be the price quoted
or referred to in any acceptance of the order or, if no price has
been so quoted or referred to, the price shall be as set out in the
price list of the Company applicable at the date of acceptance of
the Order or, in the case of any errors or omissions, as
subsequently notified by the Company to the Purchaser.
4.2.Unless otherwise stated, all prices are exclusive
of value added tax and the cost of the delivery of the
Goods.
5.Delivery
5.1.The Company will use reasonable endeavours to
deliver on any date(s) indicated for the delivery of Goods but
delivery dates should be regarded as approximate only and time for
delivery shall not be of the essence in these Terms.
5.2.Where delivery is made in instalments, delay in
the delivery of one or more of the instalments shall not entitle
the Purchaser to reject any remaining instalments.
5.3.Subject to Clause 5.4 below, delivery shall take
place when the Goods are delivered to the Purchaser's premises
unless the Purchaser has given the Company special instructions as
to carriage or delivery in which case delivery shall take place
when the Goods are delivered in accordance with the Purchaser's
instructions.
5.4.Where the Purchaser requires delivery to take
place outside the United Kingdom, delivery terms (insofar as they
shall be inconsistent with this Clause 5) will be specified by the
Company, in acceptance of the Order.
6.Terms of Payment
6.1.Payment shall be made in full not later than 30
days from the date of the Company's invoice. Time of payment by the
Purchaser shall be of the essence. In the event that the Company is
unable, by reason of the Purchaser's instructions or lack of
instructions, to despatch the Goods when they are ready for
despatch, the Company shall be entitled to invoice the Purchaser
after notification to the Purchaser that the Goods are ready for
despatch.
6.2.The Purchaser shall make all payments due under
these Terms without any deductions whether by way of set-off,
counterclaim, discount, abatement or otherwise, unless the
Purchaser has a valid court order.
6.3.If the Purchaser fails to make any payment on the
due date then, without prejudice to any right or remedy available
to the Company, the Company shall be entitled to:
(a) cancel the contract and/or suspend any further deliveries to
the Purchaser;
(b) appropriate any payment made by the Purchaser to such of the
Goods (or goods supplied under any other contract between the
Company and the Purchaser) as the Company may think fit; and
(c) charge the Purchaser interest (both before and after
judgement on the amount unpaid) at the rate of 4 per cent per annum
above the base rate of HSBC Bank PLC from time to time, such
interest to accrue on a daily basis until the date of actual
payment.
7.Risk and property
7.1.The risk of damage to or loss of the Goods shall
pass to the Purchaser at the time of delivery or, if the Purchaser
wrongly fails to take delivery of the Goods, at the time when the
Company has tendered delivery of the Goods.
7.2.Notwithstanding delivery and the passing of risk
in the Goods, or any other provision of these Terms, the property
in the Goods shall not pass to the Purchaser until the Company has
received in cash or in cleared funds:
(a) payment in full of the price of the Goods; and
(b) payment in full for all other goods agreed to be sold by the
Company to the Purchaser, for which payment is then due or accruing
due.
7.3.Until such time as the property in the Goods
passes to the Purchaser the Purchaser shall hold the Goods as the
Company's fiduciary agent and bailee and shall keep the Goods
properly stored and insured and identified as the Company's
property.
7.4.Until such time as the property in the Goods
passes to the Purchaser (and provided the Goods are still in
existence and have not been resold) the Company shall be entitled
at any time to require the Purchaser to deliver up the Goods to the
Company, and if the Purchaser fails to do so forthwith, to enter
upon any premises of the Purchaser or any third party where the
Goods are stored and repossess the Goods.
7.5.The Purchaser 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 Company but if the
Purchaser does so all monies owing by the Purchaser to the Company
shall, without prejudice to any other right or remedy of the
Company, forthwith become due and payable.
7.6.Until such time as the property in the Goods
passes to the Purchaser, the Purchaser may sell, manufacture or
process the Goods in the normal course of its business.
7.7.In the event of the Purchaser failing to comply
with the terms of payment or on the presentation of a petition for
the winding up, administration or bankruptcy of the Purchaser, or
the Purchaser having a receiver or administrator appointed in
respect of the Purchaser or any of the Purchaser's assets, or in
the event of any other insolvency proceedings being commenced by or
against it, or on the Purchaser ceasing or threatening to cease to
carry on business, or (in the case of a company) if a meeting is
called to consider a resolution to wind up the Purchaser, or a
proposal for a Voluntary Arrangement in respect of the Purchaser,
the Company and/or its agents may at any time enter upon any
premises owned or occupied by the Purchaser for the purpose of
taking possession of any goods the property in which belongs to the
Company. The Purchaser shall afford the Company inspection of any
documents to such goods for the purpose of tracing them.
8.Lien
Without prejudice to any other remedies which the Company may
have, the Company, shall in respect of all debts due and payable or
accruing by the Purchaser to the Company, have a general lien on
all goods and property belonging to the Purchaser in its possession
(whether worked on or not) and shall be entitled, upon the
expiration of 14 days notice to the Purchaser, to dispose of such
goods or property as it thinks fit at any price in its absolute
discretion and to apply the proceeds of sale thereof towards the
payment of such debts.
9.Shortages and damaged Goods
The Purchaser shall be responsible for inspecting the Goods as
soon as reasonably practicable following delivery. No claims for
damaged Goods shall be made unless the Company is notified in
writing within 48 hours of receipt of the Goods. No claims for
shortages or incorrectly despatched Goods shall be made unless the
Company is notified in writing within 7 Working Days of receipt of
the Goods. In the absence of such notification the Purchaser shall
be deemed to have accepted the Goods.
10.Warranty
10.1.Subject to Clause 2.5 and the conditions set out
in this clause 10, the Company warrants that the Goods will
correspond with their specification at the time of delivery under
Clause 5 and will be free from defects in material and workmanship
for a period of 1 year from the date of delivery.
10.2.The Company will extend the warranty in clause
10.1 from one year to two years provided that the Purchaser can
demonstrate that the Goods have been serviced, by an appropriately
qualified individual, in accordance with the Company's standards,
within 30 days of the end of its first year of use. Appropriately
qualified individual means a qualified HETAS (or equivalent)
registered engineer).
10.3.The company will also extend the warranty in
clause 10.1 from one year to 5 years, in the case of the castings,
which form the main carcass of cast iron stoves and the cast iron
door in the case of steel stoves provided that the Purchaser can
demonstrate that the Goods have been serviced, by an appropriately
qualified individual, in accordance with the Company's standards,
within 30 days of the end of each year of use. Appropriately
qualified individual means a qualified HETAS (or equivalent)
registered engineer). The warranty afforded by this section does
not extend to the grate, damper, log retainer or baffle castings,
as these are naturally wearing parts.
10.4.The above warranty is given by the Company subject
to the following conditions:
(a) the Company shall be under no liability in respect of any
defect in the Goods arising from any drawing, design or
specification supplied by the Purchaser;
(b) the Company shall be under no liability in respect of any
defect in the Goods arising, after their delivery under Clause 5,
from wilful damage, negligence, abnormal working conditions,
failure to follow the Company's instructions (whether oral or in
writing), misuse or alteration or repair of the Goods without the
Company's approval;
(c) the above warranty does not extend to parts, materials or
equipment not manufactured by the Company, in respect of which the
Purchaser shall only be entitled to the benefit of any such
warranty or guarantee as given by such manufacturer to the
Company;
(d) the Company shall be under no liability if full payment for
the Goods has not been made by the due date for payment.
(e)in the particular case of burning showroom models, the
warranty period shall run from the original date of installation of
the Goods and time shall not be extended if the Goods are moved
altered or reconnected subsequent to their initial
installation.
10.5.Subject as expressly provided in these Terms and
except where the Goods are sold to a person dealing as a consumer
(within the meaning of the Unfair Contract Terms Act 1977) ('a
Consumer Transaction') all warranties and conditions or other terms
implied by statue or common law are excluded to the fullest extent
permitted by law. Where the Goods are sold under a Consumer
Transaction the statutory rights of the Purchaser are not affected
by the Terms.
10.6.Any claim by the Purchaser which is based on any
defect in the quality or condition of the Goods, or their failure
to correspond with specifications, shall be notified to the Company
in writing within 14 days from the date on which the defect or
failure became apparent. Where a valid claim is notified to the
Company in accordance with these Terms, the Company shall be
entitled to replace the Goods (or the part in question) free of
charge or, at the Company's sole discretion, refund to the
Purchaser the price of the Goods (or an apportioned part of the
price), but the Company shall have no further liability to the
Purchaser.
10.7.Except in respect of death or personal injury
caused by the negligence of the Company, or for any other type of
claim liability for which cannot be excluded by law, the Company's
total liability in contract, tort (including negligence or breach
of statutory duty) misrepresentation, or otherwise, arising in
connection with the Terms or otherwise arising out of or in
connection with the supply of the Goods or their use or resale by
the Purchaser shall be limited to the price paid by the Purchaser
for the Goods ( plus their reasonable cost of installation, not
exceeding £1,000).
10.8.Subject to clause 10.4 and clause 10.6 the Company
shall not be liable to the Purchaser for any indirect loss or
damage suffered by the Purchaser (whether for loss of use, loss of
profit, loss of contract or business, depletion of goodwill, any
financial or economic loss, costs, expenses or otherwise)
whatsoever.
10.9.The Company shall not be liable to the Purchaser
or be deemed to be in breach of contract by reason of any delay in
performing or any failure to perform the Company's obligations in
relation to the Goods, if the delay or failure was due to any cause
beyond the Company's reasonable control. Without prejudice to the
generality of the foregoing, the following shall be regarded as
causes beyond the Company's reasonable control:
(a) act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, insurrection, act of
terrorism, civil disturbance;
(c) acts, restrictions, regulations, byelaws, prohibitions or
measures of any kind on the part of any governmental, parliamentary
or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs, or any other industrial actions or trade
disputes (whether involving employees of the Company or a third
party);
(f) difficulty in obtaining raw materials, labour, fuel, parts
or machinery;
(g) power failure or breakdown in machinery.
If the Company becomes aware that any cause beyond its
reasonable control will, or is likely to, cause the Company to be
unable to perform, or to be delayed in the performance of, its
obligations in relation to the Goods the Company shall inform the
Purchaser as soon as practicable and shall use its reasonable
endeavours to perform its obligations as soon as, in the Company's
judgement, it is practicable to do so or if in the Company's
judgement it will not be practicable to do so within a reasonable
time the Company shall have the option to cancel the Order without
incurring any liability to the Purchaser and refund any payment
made by the Purchaser under the Order.
11.Patent and design rights
11.1The patent, copyright, registered design, design
rights and trademark rights, relating to the Goods remain the
absolute property of the Company and any designs and drawings in
respect of the Goods may not be produced or disclosed to any third
party without the written consent of the Company.
11.2The Company grants a non-exclusive licence to
Purchaser (provided that the Company has separately agreed in
writing that the Purchaser may hold itself out as an official
retail reseller of the Company's Goods), which licence may be
revoked by the Company at any time, without notice or explanation,
to the Purchaser to use all the Company's trade names, brand
logo's, copyright, registered designs, design rights, photographic
images and trade mark rights supplied by the company in relation to
the Goods or ancillary materials (such as brochures and information
pertaining to the Goods)but only for the purposes of advertising
the Goods for re-sale in a showroom owned or occupied by the
Purchaser. Such licence will terminate if and when the Purchaser
ceases to be an official re-seller of the Goods.
11.3The Purchaser is not entitled to use any of the
Company's trade names, brand logo's, patents, copyright, registered
designs, design rights, photographic images or trade mark rights
for the purposes of advertising the Goods on any website whether
owned by the Purchaser or any third party without the prior written
consent of the Company or indeed to any other extent save as
authorised by sub-clause 11.2.
12.Export terms
12.1.In these conditions, 'Incoterms' means the
international rules for the interpretation of trade terms of the
International Chamber of Commerce in force at the date when the
contract is made. Unless the context otherwise requires any term or
expression which is defined in or is given a particular meaning by
the Incoterms shall have the same meaning in these Terms and if
there is any conflict between the provisions of Incoterms and these
Terms, the latter shall prevail.
12.2.Where the Goods are supplied for export from the
United Kingdom the conditions of this clause 12 shall (subject to
any special terms agreed in writing between the Company and the
Purchaser) apply notwithstanding any other provision of these
Terms.
12.3.The Purchaser shall be responsible for complying
with any legislation or regulations governing the importation,
labelling, approvals, installation and resale of the Goods into any
country of destination outside the United Kingdom and for the
payment of any duties or fees thereon.
13.Returns Policy
13.1.Items faulty on arrival: If the Goods are found to
be faulty on delivery the Purchaser must notify the Company within
2 Working Days of delivery . The Company will then issue
instructions as to the return to it or collection by it of the
Goods or attendance on site to repair. If Goods are to be returned
or collected they must be returned in their original packaging
complete with all accessories and documentation. The Company shall
not be liable for any loss or damage occasioned by the Purchaser's
failure to follow the Company's directions as to re-delivery to it
of the Goods. Once the Company has verified the fault, the Company
will provide a replacement or full refund at its sole discretion.
The Company tests returned items, and if a returned item is found
not to be faulty by the Company's technicians the Company reserves
the right not to provide a refund but to return the Goods to the
Purchaser and to make a charge for the reasonable costs of the
return carriage.
13.2.Where a customer requests to return the Goods to
the Company, within one month of their despatch, despite there
being no fault or defect with them, then the Company may allow them
to do so, at its absolute discretion, but reserves the right to
levy a restocking charge of 30%, by way of reduction against the
credit due to the Customer.
13.3.Returns of goods to the Company, where there is no
fault or defect with them will not be accepted by the Company after
one month of despatch.
14.General
14.1.If any provision of these Terms is held by any
competent authority to be invalid or unenforceable, in whole or in
part, the validity of the other provisions of these Terms and the
remainder of the provision in question shall not be affected
thereby.
14.2.These Terms and any contract incorporating them
shall be governed by, and construed in accordance with, English law
and all disputes arising hereunder shall be submitted to the
non-exclusive jurisdiction of the English courts.
14.3.Any waiver by the Company of any breach of, or any
default under, any provision of these Terms by the Purchaser, will
not be deemed a waiver of any subsequent breach or default and will
in no way affect the other provisions of these Terms.
14.4.The parties to these Terms do not intend that any
of these Terms will be enforceable by virtue of the Contracts
(Rights of Third Parties) Act 1999 by any person that is not a
party to them.
14.5.Without prejudice to the generality of clause 14.4
whilst the Company will honour the warranty set out in clause 10 to
the Purchaser it is personal and not transferable to any person to
whom the Purchaser supplies the Goods to. Accordingly any warranty
offered by the Purchaser to any person to whom it sells or
otherwise supplies the Goods is a matter between that person and
the Purchaser.
14.6.All communications between the parties about these
Terms must be in writing and delivered by hand or sent by pre-paid
first class post or sent by fax;
- in the case of the Company, to the registered office at the
foot of these Terms, marked for the attention of the Company
Secretary.'
- in the case of the Purchaser, to the registered office of the
Purchaser (if it is a company) or otherwise to any address of the
Purchaser notified in writing to the Company.
14.7.Communications shall be deemed to have been
received:
- If sent by post, 2 Working Days after posting (excluding the
day of posting);
- If delivered by hand, on the day of delivery;
- If sent by fax on a Working Day prior to 5pm, at the time of
transmission and otherwise on the next Working Day.
15.ESSENTIAL INSTALLATION SAFETY
CONSIDERATIONS
15.1.The Purchaser must be aware that Goods incorrectly
installed may be a serious danger to people and property. The
Purchaser is responsible for the proper installation of the Goods
and the Company cannot accept any liability in respect of any
omissions errors or failures on the part of the Purchaser or any
other third party (whether nominated by the purchaser or not) to
install the Goods in accordance current laws or industry guidelines
or with any installation instructions provided by the
Company.
15.2.Any installation instructions provided by the
Company are provided by way of guidance only to the Purchaser and
the correct method of installation will vary according to the
environmental factors present on each installation. The Purchaser
should in no circumstances undertake installation of the Goods
unless it, or its agent or employee, is suitably qualified and
sufficiently expert in such installation to understand how to
follow the instructions correctly and install the Goods safely in
the circumstances of each individual installation.
15.3.The Purchaser shall indemnify the Company against
all costs, claims and expenses arising in connection with any
failure by the Purchaser or its employees, agents, or
sub-contractors to install the Goods correctly.
15.4.Cooperation with provision of Health and Safety
Information and Product Recalls or Product Modifications The
Purchaser undertakes to keep proper sales records of any Stovax
Goods sold or otherwise supplied by the Purchaser to third parties,
comprising as a minimum the address/contact details of the person
to whom the Goods have been supplied the serial number of the
appliance and if known the identity and qualification of the person
installing such Goods and any location at which they are installed.
The Purchaser will fully cooperate with the Company (at the
Company's reasonable expense) in the event of the Company wishing
to issue to users of the Goods essential health and safety
information about the Goods or in the case of a product recall or
product modification including without limitation promptly making
the records available to the Company for such purpose. The
Purchaser will encourage all persons to whom it may supply an
appliance acquired from the Company to complete their appliance
registration card and or registering their appliance on line at
www.stovax.com promptly following purchase.
16.Data Protection Act.
The Purchaser agrees that the Company may need to pass personal
information which you provide to us to our credit insurers, credit
reference agencies and information providers, insurance companies,
intermediaries and agents for the sole purpose of enabling such
organisation to carry out credit risk assessment pursuant to the
terms of any credit insurance policy, which the company may, from
time to time have in force. The Purchaser shall procure that it has
such consents as may be required pursuant to the Data Protection
Act 1998 to enable the Purchaser to provide the Company with any
such personal information.