|1. DEFINITIONS AND INTERPRETATIONS
1.1 In these conditions:- “Buyer” the person who buys or agrees to buy the goods & services from Open Space Aluminium Ltd “Conditions” the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the authorised representative ofOpen Space Aluminium Ltd “Contract” the agreement for the purchase and sale of the Goods “Delivery Date” the date specified by Open Space Aluminium Ltd when the goods are to be delivered “Goods” the goods which the Buyer agrees to buy from Open Space Aluminium Ltd specified on the order form to which these conditions are attached “Price” the price for the Goods excluding carriage, packing, insurance and VAT “Open Space Aluminium Ltd” Open Space Aluminium Ltd whose registered office is at 18 Bolton Street, Bury, Greater Manchester, BL9 0LQ. “VAT” value added tax or any other purchase tax or levy replacing it from time to time
2. CONDITIONS APPLICABLE
2.1 These Conditions shall apply to every Contract for the sale of Goods by Open Space Aluminium Ltd to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may seek to apply under any purchase order, confirmation of order or similar document.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions and acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.3 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by Open Space Aluminium Ltd.
2.4 Open Space Aluminium Ltd’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Open Space Aluminium Ltd 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 in writing.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotations, price lists, acceptance of offer, invoice or other information issued by Open Space Aluminium Ltd may be corrected by Open Space Aluminium Ltd without any liability on its part.
3. ORDERS AND SPECIFICATIONS
3.1 The quantity, quality and description of any specification for the Goods shall be those set out in Open Space Aluminium Ltd quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by Open Space Aluminium Ltd).
3.2 Open Space Aluminium Ltd may, from time to time, make changes in the specification of the Goods which are required to comply with any applicable safety or statutory requirements; or, which do not materially affect the quality or fitness for purpose of the Goods.
3.3 No order which has been accepted by Open Space Aluminium Ltd may be cancelled by the Buyer, except with the agreement in writing of Open Space Aluminium Ltd. If the Buyer cancels he shall indemnify Open Space Aluminium Ltd in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Open Space Aluminium Ltd as a result of cancellation including but not limited to £250 survey fee, credit card surcharge of 2.2% per transaction and 1% of total contract value in respect of administration.
4. THE PRICE
4.1 The Prices in the official confirmation are fixed for the duration of the contract. Any delay requested by the Buyer resulting in Open Space Aluminium Ltd suffering material or labour cost increases prior to delivery will be recoverable by Open Space Aluminium Ltd from the Buyer plus any attributable profit margin. The Price is exclusive of VAT which shall be due at the rate ruling on the date of Open Space Aluminium Ltd’s invoice.
4.2 Open Space Aluminium Ltd 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 Open Space Aluminium Ltd which is due to any factor beyond the control of Open Space Aluminium Ltd, any change in delivery dates, quantities of specifications for the Goods which is requested by the Buyer, or any delay caused by instructions of the Buyer or failure of the Buyer to give Open Space Aluminium Ltd adequate information or instructions.
Where Open Space Aluminium Ltd is not installing the Goods:-
5.1 Payment is due from the Buyer to Open Space Aluminium Ltd upon Open Space Aluminium Ltd giving notice of completion of the Goods.
5.2 Payment must thereafter be made by the Buyer to Open Space Aluminium Ltd in cleared funds within 7 days.
5.3 There is no contractual obligations on Open Space Aluminium Ltd to deliver the Goods until they are in receipt of cleared funds for the total sum due in relation to the Goods. “However, where the Open Space Aluminium Ltd agrees to deliver the Goods with payment to be made upon delivery, if payment is then not made, the Goods will be retained by Open Space Aluminium Ltd and the Buyer will be charged the sum of £100 for failed delivery”.
5.4 Upon receipt of cleared funds Open Space Aluminium Ltd will tender the Goods for delivery pursuant to paragraph 7.1 post.
5.5 If the Buyer fails to make payment in accordance with 5.2 ante this will be treated as being in breach of the contract by Open Space Aluminium Ltd. Open Space Aluminium Ltd will give 14 days notice of its intention to dispose of the Goods. The Buyer may elect in writing to collect the Goods upon making payment in advance in cleared funds of an administration and storage charge of £50 per day from the date of the notice in this paragraph in addition to all other monies due pursuant to the contract (in cleared funds).
5.6 If the Buyer fails to collect the Goods in accordance with paragraph 5.5 ante then Open Space Aluminium Ltd to mitigate loss pursuant to the contract will for a period of 14 days attempt to sell the Goods to a third party. Any monies recovered will be set against the claim of Open Space Aluminium Ltd. If no third party is found within the period of 14 days specified in this paragraph then the Goods will be destroyed by Open Space Aluminium Ltd.
5.7 At the expiration of the 14 day period referred to at paragraph 5.6 ante Open Space Aluminium Ltd will quantify the loss suffered as a result of the breach on the part of the Buyer which will consist of the following:-
5.7.1 The Price.
5.7.2 VAT on the Price.
5.7.3 The administration/storage charge referred to in paragraph 5.5 ante
5.7.4 Less any money recovered pursuant to paragraph 5.6 ante.
5.8 Open Space Aluminium Ltd may appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract with the Buyer) as Open Space Aluminium Ltd may in its sole discretion think fit.
Where Open Space Aluminium Ltd is installing the Goods:-
5.9 Payment is due from the Buyers to Open Space Aluminium Ltd as follows:-
5.9.1 50% of the Price on placing an Order
5.9.2 45% of the Price on installation
5.9.3 the 5% remaining balance of the Price within 2 days of installation
And should the Buyer fail to make payment in accordance with the above, then Open Space Aluminium Ltd shall be entitled to recover from the Buyer all losses suffered, including, but not limited to additional delivery costs, costs of re-issuing a warranty, limited to a value of £125.
5.10 Open Space Aluminium Ltd shall not be under any obligation to provide any guarantee or warranty in relation to the Goods or undertake any remedial works until such time as the Buyer has paid the Price in full.
5.11 Open Space Aluminium Ltd may charge the Buyer interest (both before and after judgement) on the amount unpaid at the rate of 4% per annum above the National Westminster Bank Plc base rate from time to time (or the same rate of another clearing bank notified by Open Space Aluminium Ltd to the Buyer) until payment is made in full.
6. INTELLECTUAL PROPERTY
6.1 The specifications and designs of the Goods (including the copyright, design right and other intellectual property in them) shall as between the parties be the property of Open Space Aluminium Ltd.
6.2 No right or licence is granted by this Contract to the Buyer under any patent, trademark, registered design or other intellectual property right, except the right to use or resell the Goods.
7. DELIVERY OF THE GOODS
7.1 Delivery of the Goods shall be made to the Buyer’s address on the Delivery Date. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
7.2 Open Space Aluminium Ltd shall not be liable for any loss or damage whatever due to failure by Open Space Aluminium Ltd to deliver the Goods (or any of them) promptly. Time for delivery shall not be of the essence of the Contract.
7.3 Notwithstanding that Open Space Aluminium Ltd may have delayed or failed to deliver the Goods (or any of them) promptly, the Buyer shall be bound to accept delivery and to pay for the Goods in full, provided that delivery shall be tendered at any time within two months of the Delivery Date.
7.4 It shall be the responsibility of the Buyer to check the Goods upon delivery for any missing Goods or part(s) thereof (“missing items”). If there are any missing items upon delivery the Buyer shall notify the driver of the delivery vehicle immediately and the Buyer and the driver shall make a written record of the missing items on the delivery note and both the Buyer and the driver shall sign the note. Open Space Aluminium Ltd will replace such missing items free of charge within a reasonable time (time not being of the essence).
7.5 Where the buyer has contracted Open Space Aluminium Ltd to install the goods, and If upon delivery of the Goods, Open Space Aluminium Ltd is unable to install the Goods as a result of the Buyer having failed to ensure that all necessary preliminary work has been undertaken, then Open Space Aluminium Ltd shall be entitled to the Buyer an abortive installation fee in the sum of £500.00 (“the Abortive Installation Fee”). Open Space Aluminium Ltd requires payment of the Abortive Installation Fee must be made in cleared funds within 7 days of Delivery Date. Open Space Aluminium Ltd will be under no contractual obligation to reattempt delivery and/or installation until such time as the Abortive Installation Fee has been paid in full.
8. ACCEPTANCE OF THE GOODS
8.1 The Buyer shall be deemed to have accepted the Goods at the expiry of three working days after delivery of the Goods to the Buyer.
8.2 After acceptance the Buyer shall not be entitled to reject the Goods.
|9. DAMAGED GOODS
9.1If, within seven days of the Delivery Date, the Buyer shall discover that any of the Goods were damaged or defective on delivery, such damage or defects being the responsibility of Open Space Aluminium Ltd, then only the following provisions alone shall apply:-
9.1.1 The Buyer will notify Open Space Aluminium Ltd in writing of the alleged damage or defect within those seven days.
188.8.131.52 Where the Buyer has notified the Seller of alleged damage or defect pursuant to clause 9.1.1 the Seller shall require the Buyer to make payment of any outstanding sums in relation to the Goods prior to carrying out any inspection/remedial works.
9.1.2 Except where the buyer is dealing as a consumer (here meaning where the Buyer does not contract as a business) The Buyer will return, at the Buyer’s cost, the damaged or defective Goods to Open Space Aluminium Ltd for inspection
9.1.3 If, in the sole opinion of Open Space Aluminium Ltd, the damaged or defective Goods are not in accordance with this Contract and should be replaced by Open Space Aluminium Ltd, due to the damage or defect being the responsibility of Open Space Aluminium Ltd, Open Space Aluminium Ltd will, within a reasonable time:-
184.108.40.206 replace or repair the damaged or defective Goods at its cost;
220.127.116.11 deliver the replacement Goods to the Buyer at Open Space Aluminium Ltd’s cost.
9.2 If the Buyer requires an urgent replacement of defective or damaged Goods and requests Open Space Aluminium Ltd, in writing, to replace the Goods before the Goods have been returned to Open Space Aluminium Ltd, then the following procedure shall apply:-
9.2.1 Open Space Aluminium Ltd will manufacture and deliver the replacement Goods within a reasonable time.
9.2.2 Open Space Aluminium Ltd will send an invoice for the replacement Goods to the Buyer for the cost of the replacement Goods and delivery.
9.2.3 Upon the Buyer returning the defective or damaged Goods, if in the sole opinion of Open Space Aluminium Ltd the returned Goods are damaged or defective so as not to be in accordance with this Contract and are the responsibility of Open Space Aluminium Ltd, Open Space Aluminium Ltd will issue a credit note to the Buyer for the invoice referred to in 9.2.2 ante and refund the return costs of the Buyer.
10. TITLE AND RISK
10.1 The Goods shall be at the Buyer’s risk as from delivery
10.2 In spite of delivery having been made, ownership of the Goods shall not pass from Open Space Aluminium Ltd until:
10.2.1 the Buyer shall have paid the Price plus VAT in full; and
10.2.2 no other sums whatever shall be due from the Buyer to Open Space Aluminium Ltd.
10.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Open Space Aluminium Ltd’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, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business.
10.4 Open Space Aluminium Ltd shall be entitled to recover the Price (plus VAT) notwithstanding that ownership in any of the Goods has not passed from Open Space Aluminium Ltd to the Buyer.
10.5 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), Open Space Aluminium Ltd shall be entitled at any time to require the Buyer to deliver up the Goods to Open Space Aluminium Ltd 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.
10.6 The Buyer shall not pledge, or in any way charge by way of security for any indebtedness, any of the Goods which are the property of Open Space Aluminium Ltd. Without prejudice to the rights of Open Space Aluminium Ltd, if the Buyer does so, all sums whatever owing by the Buyer to Open Space Aluminium Ltd shall forthwith become due and payable.
10.7 The Buyer shall insure and keep insured the Goods to the full price against “all risks” to the reasonable satisfaction of Open Space Aluminium Ltd until the date that the ownership in the Goods passes from Open Space Aluminium Ltd and shall whenever requested by Open Space Aluminium Ltd produce reasonable evidence of the policy of insurance. Without prejudice to the other rights of Open Space Aluminium Ltd, if the Buyer fails to do so, all sums whatever owing by the Buyer to Open Space Aluminium Ltd shall forthwith become due and payable.
10.8 Until such time as property in the Goods passes to the Buyer, the Seller shall be under no obligation to provide any warranty or effect any FENSA registration in respect of the Goods supplied.
11. WARRANTIES AND LIABILITIES
11.1 Subject to the terms set out below Open Space Aluminium Ltd warrants that the Goods will at the time of delivery correspond to the description given by Open Space Aluminium Ltd. Except where the Buyer is dealing as a consumer (here meaning where the Buyer does not contract as a business), all other warranties, conditions or terms relating to quality, fitness or condition of the Goods and whether implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.
11.2 Except in respect of death or personal injury caused by Open Space Aluminium Ltd’s negligence, Open Space Aluminium Ltd shall not be liable to the Buyer by reason of representation, or any implied warranty, condition or other term , or any duty at common law, or under express terms of the Contract for any consequential loss or damage ( whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by negligence of Open Space Aluminium Ltd, its employees, agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer except as expressly provided in these Conditions.
11.3 Where any valid claim in respect of any of the Goods is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to Open Space Aluminium Ltd then Open Space Aluminium Ltd shall be entitled to replace the Goods (or the part in question) free of charge or, at Open Space Aluminium Ltd’s sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the price) but Open Space Aluminium Ltd shall have no further liability to the Buyer.
11.4 In the event of any claim arising out of the supply of the Goods by Open Space Aluminium Ltd the remedies of the Buyer shall in all respects be limited to damages. The liability of Open Space Aluminium Ltd shall not exceed the Price of the Goods.
11.5 Where the Buyer rejects any Goods then the Buyer shall have no further rights whatever in respect of the supply of such Goods or the failure by Open Space Aluminium Ltd to supply Goods which conform to the Contract.
11.6 Where glass defects are reported by the Buyer the guidelines of the G.G.F. and Pilkington Brothers plc will be deemed as the inspection criteria. Open Space Aluminium Ltd will not be liable for any reported defects which fall outside these guidelines.
11.7 Where coated aluminium surface defects are reported by the buyer the guidelines of BS EN 12206-1:2004 will be deemed as the inspection criteria. Open Space Aluminium Ltd will not be liable for any reported defects which fall outside these guidelines.
11.8 Where the buyer has sought to purchase a “lower level threshold” on Bi-Fold doors, and Open Space Aluminium Ltd has specified or advised that this component carries a lower weather rating, Open Space Aluminium Ltd will not guarantee the product for its weather tightness and will not be liable for any claim arising from such.
The buyer will therefore decline all rights to report or make any claim for leakage or ingress of water, or any damage caused whether to property or persons.
11.8.1 Where the buyer has sought to purchase any door scheme where the door leaves/glass/sightlines are not equal in size, Open Space Aluminium Ltd will not be liable for any claim arising from any complaint regarding glass sight line distances and equality of glass or door sizes. The buyer will therefore decline all rights to report or make any claim for such. 11.9 All promotional literature and drawings provided by Open Space Aluminium Ltd or any of its suppliers are for general guidance only. Their contents do not form part of the Contract with Open Space Aluminium Ltd unless specifically referred to it in writing by Open Space Aluminium Ltd. 11.10 Open Space Aluminium Ltd shall upon request provide the Buyer with the load weights for the Bi-Fold Doors, but it shall be the responsibility of the Buyer to ensure the suitability of the pre-existing structural supports
12. GENERAL PROVISIONS
12.1 Any notice required to be served pursuant to this Contract shall be in writing and served by first class post; or, by hand on Open Space Aluminium Ltd at its registered office or such other address as Open Space Aluminium Ltd may from time to time notify to the Buyer; and on the Buyer at the Buyer’s registered office or principal place of business.
12.2 Any provision of this Contract which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of this Contract
12.3 act by reason of any delay in performing or any failure to perform any of Open Space Aluminium Ltd’s obligations in relation to the Goods if the delay or failure was due to any cause beyond Open Space Aluminium Ltd’s reasonable control.
12.4 Open Space Aluminium Ltd may cancel this Contract at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice Open Space Aluminium Ltd shall promptly repay to the Buyer any sums paid in respect of the Goods insofar as relating to price. Open Space Aluminium Ltd shall not be liable for any loss or damage whatever arising out of such cancellation.
12.5 No waiver or forbearance by Open Space Aluminium Ltd (whether expressed or implied) in enforcing any of its rights under this Contract shall prejudice its rights to do so in the future.
12.6 This Contract is only enforceable by the original parties to it and their successors and permitted assigns. Nothing in this Contract shall confirm on any third party any benefit or right to enforce any term of this instrument pursuant to the Contracts (Rights of Third Parties) Act 1999. This does not affect any right or remedy of a third party apart from the said Act.
13. PROPER LAW OF CONTRACT
13.1 The Contract shall be subject to the laws of England and Wales.
13.2 Open Space Aluminium Ltd and the Buyer submit to the exclusive jurisdiction of the courts of England and Wales and irrevocably agree that proceedings issued out of the said courts may without prejudice to the rules of service of such courts be served on them by delivering such proceedings in an envelope addressed to the party to be served at the address for such party set out in the Contract.