Terms and conditions

"Customer" means the party with whom the Company contracts;

"Contract" means the contract made between the Company and the Customer for supply of the Goods that are subject to these Conditions;

"Goods" means all or any of the goods works and materials to be supplied by the Company;

"Services" means any services to be performed by the Company;

"Act of Insolvency" means any one or more of the following namely the passing of a resolution or the presentation of a petition for winding-up, bankruptcy or for the appointment of an administrator, the appointment of a receiver and/or manager or administrative receiver over the whole or any part of the Customers undertaking and assets, the making of a proposal for voluntary arrangement within the Insolvency Act 1986 or of a proposal for any other composition scheme or arrangement with or the calling by the Customer of any meeting of its creditor generally, the levying of execution or distress or diligence on any of its assets, the failure to pay its proper debts as and when due and anything analogous to any of the foregoing under the law of the jurisdiction where the Customer is established.

2.1 Any quotation shall remain open for a maximum period of 60 days from its date. Quotations are not binding and shall not be open for acceptance by the Customer. Where Goods are quoted for supply from stock they are quoted subject to being unsold when the Customer s order is accepted.

2.2 These Conditions shall form the terms and conditions of the Contract and shall apply to the exclusion of any terms or conditions whether put forward by or on behalf of the Customer in or on its order or otherwise or whether implied by law (insofar as the exclusion of the same is lawful).

2.3 The placing by the Customer of any order shall constitute an offer by the Customer. No contract shall come into existence unless the Company accepts the Customer s order in writing. Any order placed by the Customer with any of the Company s salesmen or other employees or representatives shall be subject to written acceptance by the Company.

2.4 No alteration to these Conditions shall be effective unless expressly agreed to in writing by a director of the Company.

2.5 The Customer shall be responsible to the Company for ensuring the accuracy; sufficiency and suitability of its order.

2.6 The Customer warrants that it has not relied on any representation or warranty made by or on behalf of the Company other than those expressly set forth in these Conditions,

3.1 Any time quoted by the Company for delivery of all or any of the Goods and/or performance of all or any of the Services is an estimate only and time shall not be of the essence. The Company shall not be liable for any failure to meet any such estimate, nor for any loss, of whatsoever nature resulting directly or indirectly therefrom.

3.2 The Company reserves the right to deliver all or any of the Goods and/or the Services in advance of the estimated date.

3.3 In the absence of agreement to the contrary delivery of the Goods shall be made by the Customer collecting the Goods at the Company s premises as soon as practicable following notification from the Company that the Goads are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place.

3.4 The Company reserves the right to deliver by instalments and each delivery shall constitute a separate contract to which these Conditions shall apply. Failure by the Company to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.

3.5 Where delivery of the Goods is to be made by the Company in bulk, the Company reserves the right to deliver up to 20 per cent more or less than the quantity ordered, and the Company shall charge for the Goods in accordance with the quantity actually delivered.

3.6 If the Customer fails to take delivery of or collect the Goods or fails to give the Company adequate delivery instructions after notification by the Company that the Goods are ready the Company may (without prejudice to its other rights and remedies):-

3.6.1 store the Goods (on its own or any third party s premises) and charge the Customer for its reasonable costs (including without limitation VAT costs of storage, carriage and insurance); and/or

3.6.2 sell the Goods at any time and after deducting all costs and expenses account to the Customer for any excess over the price already paid under the Contract or charge the Customer for any shortfall between the Contract price and such costs and expenses.

3.7
3.7.1 Notification of short delivery (measured by weight or number) or damage in transit must be made in writing to the Company within five days of the receipt of the Goods;

3.7.2 Notification of non-delivery must be made in writing to the Company within 14 days after the date of the Company s invoice;

3.7.3 The Company shall at its option either make good the whole or part of the price (and where relevant, as a deduction from any part of the price remaining unpaid) or by repair or replacement any such non-delivery short delivery or damage notified as aforesaid and save as provided in this Condition 3.7.3 shall not be liable for any such non-delivery short delivery or damage in transit nor for any loss, financial or otherwise resulting directly or indirectly therefrom. In no event shall the Company be liable to the Customer in connection with any damage or loss in transit where delivery takes place at the Company s premises.

3.8 All returnable containers and packing materials will be charged for if these are not returned in condition satisfactory to the Company to the Company s works carriage paid within thirty-days following delivery of the relevant Goods.

All descriptive and technical specifications, drawings, catalogues, illustrations and particulars of weight and dimensions supplied by the Company are approximate only and the Company reserves the right without notice to the Customer to make alterations thereto and to supply the Goods so altered in performance of the Contract.

Following acceptance by the Company of the Customers order, no cancellation and/or suspension, either in whole or in part, may be made by the Customer, other than with the prior written consent of a director of the Company and upon terms that the Customer shall indemnify the Company in full against all loss (including without limitation loss of profit) damages, costs expenses and other liabilities awarded against incurred by the Company as a result of or in connection with the cancellation,

6.1 You:

6.1.1 Warrant and acknowledge that you have not relied on any representation made by us or our employees or upon any descriptive and technical specifications, drawings, catalogues, illustrations or particulars (including without limitation as to weight and dimensions) and waive any claim for breach of any such representations:

6.1.2 Warrant to us that the Goods are sufficient and suitable for the purpose or purposes intended (whether by yourselves or any third party);

6.1.3 Covenant that the Goods will be properly used or dealt with and in particular but without prejudice to the generality of the foregoing only in a manner and for purposes for which they are sufficient and suitable and that you will pass on to your customers a copy of any instructions relating to the Goods,

7.1 Subject to prior written agreement to the contrary, the Company shall be entitled to invoice the Customer for the price of the Goods or at any time after the Company has notified the Customer that the Goods are ready for collection or the Company has tendered delivery of the Goods.

7.2 Any price quoted by the Company is based upon costs current as at the date of quotation. The price charged to the Customer under the Contract may be changed to take account of costs current at the date of invoice.

7.3 Unless otherwise expressly stated in writing, all prices are exclusive of VAT which shall be charged where appropriate at the rate prevailing at the relevant tax point.

7.4 The Customer shall make payment in full by the twentieth of the month following the date appearing on the Company s invoice notwithstanding that the delivery may not have taken place and the property in the Goods may not have passed to the Customer, Interest at the annual rate of 4 % over the base rate of the National Westminster Bank Plc will be charged on a daily basis/at the rate prevailing on the due date on all monies outstanding after the due date until the actual date of payment (both before and after judgment), and any cash discount will not be allowed to the Customer.

7.5 Where payment is agreed to be made by instalments, any delay or default by the Customer in making payment in respect of any one instalment shall render all the remaining instalments due forthwith, and interest will be charged in accordance with condition 7.4 with immediate effect until the date of actual payment.

7.6 The Company may appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Company and the Customer) as the Company may think fit (notwithstanding any purported appropriation by the Customer).

7.7 Carriage will be paid on all orders with a nett value of £500 and over. For orders valued of less than £500 carriage will be charged at cost.

8.1 Risk in the Goods shall pass to the Customer immediately on delivery to the Customer or into custody on the Customers behalf whichever is the sooner.

8.2 Notwithstanding delivery and the passing of risk, property in and title to the Goods shall remain in the Company until the Company has received payment of the full price of (a) all Goods and/or Services the subject of the Contract and (b) all other goods and/or services supplied by the Company to the Customer under any other contract whatsoever.

8.3 Until property in and title to the Goods passes to the Customer

8.3.1 the Customer shall keep the Goods properly stored, protected and insured and separate from all or any other goods whether belonging to the Company the Customer or any third party;

8.3.2 the Company shall be entitled at any time forthwith to revoke the Customers power to deal with the Goods; and it shall automatically cease if the Customer shall commit or be subject to any Act of Insolvency; and

8.3.3 the Customer shall not make any modification to the Goods either packaging or alter remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods.

8.4 Upon termination of the Customer s power to deal with the Goods, the Customer shall place the Goods at the disposal of the Company and the Company and its servants and agents are hereby irrevocably authorised without the need for consent of any third party but using only such force as may be necessary, to enter upon any premises of the Customer or any third party for the purpose of removing the Goods.

8.5 if any of the foregoing provisions of this Conditions shall be invalid or unenforceable such invalidity or unenforceability shall not affect the remaining provisions,

Without prejudice to any rights and remedies available to it, the Company shall be entitled, forthwith on written notice to the Customer either to terminate the Contract wholly or in part and/or any other contract with the Customer or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Customer (and on the giving of such notice all monies outstanding from the Customer to the Company shall become immediately due and payable) if:-

9.1 any sum owing to the Company from the Customer on any account whatsoever shall be unpaid after the due date for payment (in which event the Company shall have a general lien for any such sum on all and any property of the Customer in its possession);

9.2 the Customer shall commit or be subject to any Act of Insolvency;

9.3 the Customer shall commit any breech of any contract (including without limitation the Contract) with the Company.
In the event of a suspension of performance the Company shall be entitled, as a condition of resuming performance, to require pre-payment or such security as it may require.

The Company shall:

10.1 make good at its option by reimbursement of the whole or part of the price (and, where relevant, as a deduction from any part of the price remaining unpaid) or by repair or by replacement:-

10.1.0.a subject to Condition 5 any failure by the Goods to correspond with their specification at the time of delivery

10.1.0.b any defect developing under normal use in the Goods and due solely to faulty design (except where the design is supplied by or on behalf of the Customer) materials and/or workmanship;

10.1.0.c make good by reimbursement of the price or by reperformance of the Services any defective workmanship in the performance of Services; provided that:

10.1.1 any failure to meet specification is notified in writing to the Company within 14 days from the date of delivery or (where the failure was not apparent on reasonable inspection) within a reasonable time after discovery of the failure and in any event such failure must be notified within 3 months after delivery;

10.1.2 any such defect in design materials workmanship shall have appeared within 3 months after delivery and shall have been thereupon promptly notified to the Company in writing; 10.1.3 the Company shall be under no liability in respect of any defect to the Goods arising from any drawings, design or specification supplied by the Customer;

10.1.4 the Company shall be under no liability in respect of any defect arising from fair wear and tear, or other acts of the Customer including without limitation wilful damage, negligence, lack of proper maintenance or servicing, 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;

10.1.5 the Company shall be under no liability until any monies due from the Customer under the Contract have been paid in full; and

10.1.6 any Goods alleged to be defective are promptly made available to the Company for inspection and, if so required by the Company, are promptly returned at the Customer s risk and expense to the Company s works for inspection.

10.2 The Company shall pass on the benefit of any such warranty or guarantee as is given by the manufacturer to the Company and can be transferred.

10.3 The Company shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company its servants or agents, in a sum which is greater than the Contract price.

10.4 The Company shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company, its servants or agents,

10.5 Provided that nothing in this Condition shall operate so as:-

10.5.1 to exclude the Company s non-excludable liability in respect of death or personal injury caused by the negligence of the Company its servants or agents;

10.5.2 to exclude the application of Section 12 of the Sale of Goods Act 1979;

10.5.3 to exclude liability for fraudulent misrepresentation.

10.6 The colour fastness of white products is expected to remain reasonable stable for a period of 10 years from the date of manufacture in accordance with the compound manufacturers technical specifications which are available on request, provided that they are used in Middle or Northern Europe. No warranty is given as to the fastness of any other colour, but technical information supplied by the manufacturer is available on request.

10.7 The process of affixing Laminate to Profile is carried out fully according to the procedures recommended by the suppliers of the Laminate and Adhesive. The performance of the Laminate is warranted in accordance with the warranty supplied to us by those manufacturers and full details of this are available to you on request.
Provided that:

(a) Notice of claim is given in writing to us within 28 days of when you were or ought reasonably to have been aware of any alleged breach of Warranty and in any event within 7 years from the date of supply of the Goods.
(b) We shall be under no liability in respect of any failure of the Laminate to adhere or change of colour arising from:
(i) Subsequent manufacturing operations, transport installation, import, abrasion, mechanical damage, neglect, wilful damage, pollution, lack of proper maintenance, failure to follow our instructions;
(ii) End use of the Profile other than in Middle or Northern Europe (north of latitude 46 degrees North) and elevations below 1800mm, above sea level.
(c) Any items alleged to be defective are promptly made available to us for inspection and, if reasonably so required by us are promptly returned at your risk and expense to us for inspection;
(d) This warranty is for your sole benefit and may not be assigned or transferred;
(e) If you require delivery of Profile to which Laminate has been affixed within 48 hours of such affixing, no warranty of any kind is given.
(f) Our liability is limited to reimbursement of the price paid or replacement of the Goods.
(g) No warranty is given in relation to woodgrain Laminate affixed to cellular foam uPVC products when used externally.

10.8 All other warranties, condition or other terms as to merchantable quality, fitness for purpose or which otherwise relate to the quality of the Goods provided are (save for the statutory rights of customers) hereby excluded. We shall (save as provided herein) have no liability whatsoever howsoever arising or arisen including without limitation in negligence for any such matters. You hereby acknowledge that such exclusion is reasonable in light of the fact that it is not practicable for us to obtain insurance for consequential loss arising from the failure of the product at a cost which it could pass on to you.

For the purposes of Section 6(8) of the Health and Safety at Work Etc Act 1974 the Customer undertakes to comply with all instructions relating to the Goods received from the Company from time to time and to take such other steps sufficient to ensure, so for as is reasonably practicable, that the Goods will at all times be safe and without risk to health when being properly used, set, cleaned and maintained by a person at work.

11.1 If any claim is made against the Customer that the Goods infringe or that their use or resale infringes the patent; copyright, database right, design right, registered design, trade mark or other industrial or intellectual property rights of any other person or any claim is made in respect of passing off or unauthorised use of confidential information in relation to the Goods end/or their use or resale the Customer shall forthwith notify the Company in writing and the Company shall be given full control of any proceedings or negotiations in connection with any such claim. The Customer shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations and except pursuant to a final award, the Customer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld). The Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Company may have in relation to such infringement.

11.2 If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Customer, the Customer shall (without prejudice to the other rights and remedies of the Company) indemnify the Company in full against all loss, costs, damages, charges, expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with

11.2.1 any claim for infringement of any patent, copyright, database right, design right, registered design, trade mark or other industrial or intellectual property rights of any other person and/or for passing off and/or unauthorised use of confidential information which results from the Company s use of the Customer s specifications;

11.2.2 any other liability of any kind to any third pony including without limitation for defective Goods, personal injury or death to the extent that it arises from the specification.

12.1 Any term or expression which is defined in the provisions of incoterms 2000 (or any subsequent revision thereof) shall import the respective obligations of Buyer and Seller into these Conditions, but in the event of conflict these Conditions shall prevail.

12.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 13 shall (subject to any special terms agreed in writing between the Company and the Customer) apply not withstanding any other provision of these Conditions.

12.3 Unless otherwise agreed in writing between the Company and the Customer, the Goods shall be delivered and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

12.4 The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company s premises before shipment. The Company shell have no liability for any claim in respect of any defect in the Goods which would be apparent on testing or inspection and which is made after shipment, or in respect of any damage during transit.

12.5 Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer in favour of the Company and confirmed by a bank in the UK acceptable to the Company or, if the Company has agreed in writing on or before acceptance of the Customer s order to waive this requirement, by acceptance by the Customer and delivery to the Company of a bill of exchange drawn on the Customer payable 60 days after sight to the order of the Company at such branch of National Westminster Bank in England as may be specified in the bill of exchange

If the Contract is for or to include Services to be performed by the Company the following provisions shall apply:-

13.1 The Company shall only be obliged to carry out Services during normal working hours and shall be entitled to charge for any overtime worked upon request by the Customer.

13.2 Where Services are performed at the premises of the Customer, the Customer shall provide free of charge:-

13.2.1 Proper and safe storage and protection of all Goods, tools, plant, equipment and materials on site;

13.2.2 Free and safe access to the site and place where the Services are to be performed;

13.2.3 All facilities and services necessary to enable such Services to be performed safely and expeditiously;

13.2.4 If such Services include the installation of Goods, all builders work, foundations and cutting away and making good where necessary;

13:2.5 The availability of all plant: and equipment to permit the Goods to be tested upon completion of Services.

13.3 The Customer shall pay the Company any expenses incurred by the Company by reason of a breach by the Customer of any of its obligations in this Condition without prejudice to the Company s right to recover any loss thereby occasioned.

13.4 Goods and Services supplied on the site of the Customer are at all times at the sole risk of the Customer and if any part is lost or destroyed for any reason whatsoever the Company shall be entitled to charge as a variation to the Contract for the restoration of such Goods and/or Services. The Customer shall for the benefit of itself and the Company insure and keep insured with reputable insurers the full value of Goods and Services against every kind of loss, damage or destruction. The Customer shall produce the policy to the Company upon request together with the latest premium receipts and in default of effecting the same the Company shall be entitled to do so and add the cost of such insurance to the Contract price.

14.1 It shall be the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever, (including without limitation any relating to the importation or use of the Goods in the country of destination and for the payment of duties thereon) are duly complied with. It shall be a condition precedent to the performance by the Company of its obligations under the Contract that all necessary licences, permits and consents shall have been obtained by the Customer.

14.2 Without prejudice to the generality of Condition 11.1 the obtaining of any relevant exchange control consents shall be a condition precedent to the performance by the Company of any of its obligations under the Contract.

14.3 Neither party shall have any liability for any failure to perform or for any delay in the performance (other than as to payment) of any of its obligations under the Contract .used by any factor beyond its reasonable control.

14.4 No failure or delay on the part of the Company to exercise any of its rights under the Contract shall operate as a waiver of nor shall any waiver by the Company of any breach by the Customer of any of its obligations under the Contract affect the rights of the Company in the event of any further or continuing breach.

14.5 The Contract is personal to the Customer, who shall not assign or in any way part with the benefit without the Company s prior written consent.

14.6 Each and every obligation contained in these Conditions shall be treated as a separate obligation and shall be severally enforceable such notwithstanding the non-enforceability of any other such obligation.

14.7 The clause headings in these Conditions ore for convenience only and shall not in any way affect the interpretation of the Contract.

14.8 The Conditions and the Contract shall not create or evidence, or be deemed to create or evidence, any agency or partnership between the Company on the one hand and the Customer or any third party on the other.

14.9 Any notice required to be given in writing under the Contract shall be given, where possible, by facsimile transmission and otherwise by first class post addressed to the registered office of the party for which it is intended, or to such other address as may be notified in writing in accordance herewith for the purpose, and shall be deemed to have been received, in the case of a facsimile transmission, upon transmission and, in the case of a letter, forty-eight hours after posting. In providing service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted.

14.10 The Contract shall be governed by English Law.

14.1 1 The parties irrevocably submit to the exclusive jurisdiction of the English Courts.

For the avoidance of doubt save as expressly provided herein nothing in these Conditions shall confer on any third party any benefit or the right to enforce any provision of these Conditions,

16.1 Except when otherwise agreed, any tool (hereinafter referred to as "Tools") provided entirely or partly at our expense shall be and remain our property and in our possession at all times, even when you have been charged with part cost. Where the cost of Tools is paid for in full by you, the tools become your property and may be removed subject to our right of lien until all other goods manufactured and/or supplied have been paid for.

16.2 Tools in respect of which you have paid all or part cost will not be used for any other customer without your written consent.

16.3 Tools in respect of which you have borne all or part of the cost shall (subject to Clause 7.4) be stored and maintained during their normal useful life at our expense, but while all reasonable care will be taken in maintenance, we do not undertake to replace worn out Tools.

16.4 If you order less of the Goods than is specified in our quotation, we shall be entitled to charge you the whole or a proportionate part of the cost of making the tools as we think fit talking into account any part cost already paid by you, and also adjust the price per metre of the products as we see fit.

16.5 Stillages are our property: These must be returned within 2 months of delivery and if not returned, We reserve the right to charge these to you at cost price.

17.1 In these conditions:

"Adhesive" means the adhesive for affixing Laminate to Profile.

"We" means Eurocell Profiles Ltd.

"Contract" means the contract made or to be made between us and yourselves subject to these conditions.

"Repair" means to make good by any means including that of a chemical process.