TERMS AND CONDITIONS OF SALE
- “BUYER” means the person whose order for the Goods is accepted by BALCONY AND BALUSTRADES.
- “BUYER’S ORDER” means the order for Goods or services submitted, accepted or signed for by the Buyer to BALCONY AND BALUSTRADES. “CONDITIONS” means these terms and conditions of sale and supply and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and BALCONY AND BALUSTRADES.
- “CONTRACT” means the contract for the supply of the Goods incorporating the Conditions.
- “FORCE MAJEURE” includes but shall not be limited to acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, insufficient supply of electricity, gas, oil or water, damage to or loss or failure of machinery explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to BALCONY AND BALUSTRADES’ workforce) or restraints or delays affecting carriers including those used by BALCONY AND BALUSTRADES for delivery of the Goods or inability or delay in obtaining supplies of adequate or suitable materials.
- “GOODS” mean the Goods (including any parts for them) which BALCONY AND BALUSTRADES is to supply in accordance with the Conditions and as detailed in the Buyer’s Order including and not limited to services.
- “INTELLECTUAL PROPERTY RIGHTS” means any or all of the following: patents, trademarks, registered designs, design right, copyright, database right, inventions, trade secrets and other confidential information, know-how, business or trade names, rights to prevent passing off, and all other intellectual property rights and rights of a similar nature in any part of the world, whether registered or not or capable of registration or not and including all applications and the right to apply for any of the foregoing rights.
- “WRITING” includes letter, e-mail, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any statute or provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time and any regulations made there under from time to time.
2. APPLICATION AND BASIS OF CONTRACT
The Contract shall constitute the entire agreement between BALCONY AND BALUSTRADES and the Buyer in respect of the supply of the Goods to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
The Buyer’s Order shall be deemed to incorporate these Terms and Conditions. If the Buyer’s Order states any condition or term not specifically included herein it shall not be deemed to be accepted by BALCONY AND BALUSTRADES unless and until confirmed in writing by an authorized representative of BALCONY AND BALUSTRADES.
4. PRODUCT DRAWINGS
4.1 Where the Buyer wishes to purchase Goods from BALCONY AND BALUSTRADES the following procedure shall apply:
(a) After receipt of the Buyer’s Order, BALCONY AND BALUSTRADES will liaise with the Buyer and produce specific drawings for authorization and signature by the Buyer;
(b) The Buyer will sign the drawings thereby confirming that the Buyer has checked all the information & specifications to confirm they are correct and satisfactory and conform to their requirements – material, structural and legal;
(c) No alteration or change can be accepted on the drawing/s. Any amendment must be incorporated into the drawing/s and resubmitted for signature;
(d) Once approved, drawings cannot be altered and manufacture will be deemed to have taken place as per the drawings. Any alteration will require a new Buyer Order
4.2 All patterns, drawings, designs, samples and specifications submitted by the Buyer (and all intellectual property rights in the same) will, unless agreed otherwise, be the property of BALCONY AND BALUSTRADES.
4.3 BALCONY AND BALUSTRADES will confirm to the Buyer the amount of any increase in BALCONY AND BALUSTRADES’ prices, necessary to comply with the Buyer’s specifications. Quantity increases whether in number of units or size shall be deemed to increase in a proportionate rate to the prices on the Buyers Order without the need of resubmitting a new Buyers Order for confirmation.
4.4 BALCONY AND BALUSTRADES will be under no liability for, and the Buyer will fully indemnify BALCONY AND BALUSTRADES against, any awards, costs, claims, damages, demands, expenses, losses, or other liabilities ( howsoever incurred) which arise in respect of; a) any and all infringement of any intellectual property rights of any third party which may arise as a result of BALCONY AND BALUSTRADES supplying Goods (or Services) which conform with such specifications of the Buyer as are submitted and agreed in accordance with this Clause; and: b) any errors in Goods which conform with samples previously approved or accepted by the Buyer.
5.1 The price of the Goods shall be the price on the signed Buyer’s Order.
5.2 All prices are:
(a) Supply only unless otherwise stated;
(b) Expressed in pounds sterling excluding VAT. BALCONY AND BALUSTRADES prices are subject to alteration without prior notification to cover any variations in cost to BALCONY AND BALUSTRADES of supplying the Goods;
(c) Exclusive of packing and delivery charges which will be added to the invoiced prices at cost unless specified otherwise.
5.3 Where quotations are supplied they will be valid for 30 days from date of quotation unless otherwise agreed.
6. TERMS OF PAYMENT
6.1 Unless otherwise agreed in writing by BALCONY AND BALUSTRADES and as a condition precedent to the performance of BALCONY AND BALUSTRADES’ obligations under the Contract, payment in full for all Goods or supplies by BALCONY AND BALUSTRADES is due prior to supply or, as agreed in the Buyer Order, or, as below in clause 6.1a.
6.1a A non-refundable deposit of 30% of the price is payable when the order is placed. The balance (the remaining 70%) must be paid prior to despatch unless the price is a package price involving supply and installation, whereupon 10% of the balance may remain unpaid at the time of supply and be paid on satisfactory installation.
6.2 Payment shall be made in pounds sterling as set out on the invoice.
6.3 If the Buyer fails to make any payment on the due date, then without prejudice to any other right or remedy of BALCONY AND BALUSTRADES shall be entitled to:
- 6.3.1 Cancel the Contract or suspend any further work for or deliveries to the Buyer;
- 6.3.2 Appropriate any payment made by the Buyer to such of the Goods or Services (or the Goods or Services supplied under any other contract between the Buyer and BALCONY AND BALUSTRADES) as BALCONY AND BALUSTRADES may think fit (notwithstanding any purported appropriation by the Buyer); and
- 6.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 4% per annum above Bank base lending rate from time to time until further payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) and recover from the Buyer all expenses howsoever incurred in the collection of monies owing to BALCONY AND BALUSTRADES.
7.1 No period stipulated for delivery shall commence until all specification details have been agreed and payment has been made and cleared with BALCONY AND BALUSTRADES’ bankers.
7.2 Delivery and completion dates quoted by BALCONY AND BALUSTRADES or included in the Contract are given in good faith but are estimates only. BALCONY AND BALUSTRADES shall not be liable to the Buyer for any delay in delivery.
7.3 BALCONY AND BALUSTRADES may suspend the whole or any part of the Contract if by reason of Force Majeure either party is prevented or hindered from performing their obligations or, performance of those obligations or is to a substantial degree rendered difficult (and BALCONY AND BALUSTRADES Shall not be liable for any failure to perform any of its obligations under the Contract where such failure is by reason of Force Majeure). If the event in question continues for a continuous period in excess of 90 days, either party shall be entitled to give notice in writing to the other to terminate the Contract.
7.4 If BALCONY AND BALUSTRADES exercises their right of suspension, the Buyer may cancel any remaining part of the Contract conditional on the Buyer paying expenses incurred by BALCONY AND BALUSTRADES to date and BALCONY AND BALUSTRADES’ fair charges. BALCONY AND BALUSTRADES shall have no liability for any such suspension and on any such cancellation, whether by BALCONY AND BALUSTRADES or by the Buyer. Nothing in this clause shall relieve the Buyer from his obligation to make payments under the Contract.
7.5 BALCONY AND BALUSTRADES shall be entitled to deliver in instalments. Part deliveries shall be deemed to represent separate contracts.
7.6 Delivery of ordered Goods is deemed to have taken place when they have been dispatched from BALCONY AND BALUSTRADES’ works.
8. BREAKAGES, SHORTAGES AND OTHER CLAIMS
8.1 The Buyer will inspect the Goods on delivery and sign an acceptance or delivery note, endorsing thereon a full note of any shortage or damage where present. Such signature shall be conclusive evidence that the Goods are of the correct quantity and free from reasonably apparent defects and damage except as set out in such endorsement. If such note is not signed it will be deemed to have been signed without endorsement. Under no circumstances will a comment of “unchecked” be accepted as relief of this clause.
8.2 Any defect or damage which is not reasonably apparent on receipt shall be notified by the Buyer to BALCONY AND BALUSTRADES within three working days of receipt. Damaged Goods must be returned to BALCONY AND BALUSTRADES within three working days of receipt. Damaged Goods must be returned to BALCONY AND BALUSTRADES before replacement will be considered. Agreement and a Goods Return number must first be obtained from the BALCONY AND BALUSTRADES sales office before any Goods are returned.
8.3 Any claim for non-delivery of Goods shall be notified by the Buyer to BALCONY AND BALUSTRADES Within 14 days of the date of invoice.
8.4 BALCONY AND BALUSTRADES shall have no liability arising out of non-delivery or shortage in delivery (subject to consigning the correct quantity of Goods for delivery) deterioration or damage in transit but agrees to provide reasonable assistance (at the Buyer’s expense) to the Buyer in making a claim against the carrier.
9. RETURNS AND RESTOCKING CHARGES of standard stock items. When Goods are agreed for return, the Buyer shall pay a handling and restocking charge to cover administration and inspection charges involved in accepting the Goods back to stock. The charge will be subject to variation without notice but is currently 20% of the invoiced value of Goods in addition to any delivery or collection costs. Non-standard products (supplied in accordance with Clause 4) cannot be accepted for return unless otherwise agreed. The Buyer is responsible for the safe return of the Goods in an undamaged state. Damaged Goods cannot be returned or accepted.
10. TITLE, PROPERTY, RISK
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
- 10.1.1 In the case of Goods to be delivered at BALCONY AND BALUSTRADES’ premises, at the time when BALCONY AND BALUSTRADES notifies the Buyer that the Goods are available for collection; or
- 10.1.2 In the case of Goods to be delivered otherwise than at BALCONY AND BALUSTRADES premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when BALCONY AND BALUSTRADES has tendered delivery of the Goods.
10.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods (legal and/or equitable) shall not pass to the Buyer until BALCONY AND BALUSTRADES has received in cash or cleared funds payment in full of the price of the Goods and all other Goods (or Services) agreed to be supplied by BALCONY AND BALUSTRADES To the Buyer for which payment is then due.
10.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods on a fiduciary basis as BALCONY AND BALUSTRADES’ bailee and shall keep the Goods separate from those of the Buyer and third parties and shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods. The Buyer shall maintain the Goods in a satisfactory condition insured on BALCONY AND BALUSTRADES’ behalf for their full price against all risks of loss or damage with an insurer or insurers approved by BALCONY AND BALUSTRADES. On request, the Buyer shall permit BALCONY AND BALUSTRADES or its appointed representative to enter all premises at which the Goods may be stored for the purposes of assessing the extent of the Buyer’s compliance with its obligations under this Sub-clause and shall produce such policy or policies of insurance as are to be maintained together with evidence of payment of all premiums to BALCONY AND BALUSTRADES. The Buyer shall hold any proceeds of such insurance on trust for BALCONY AND BALUSTRADES and not mix them with any other money, nor pay such proceeds into an overdrawn bank account.
10.4 The Buyer may resell the Goods to a third party once ownership has passed to it provided that any sale shall be affected in the ordinary course of the Buyer’s business at full market value. Nothing in this clause 10.4 shall make the Buyer the agent of BALCONY AND BALUSTRADES for any such sale and no contractual rights will be acquired by such third party against BALCONY AND BALUSTRADES.
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), BALCONY AND BALUSTRADES Shall be entitled at any time to require the Buyer to deliver up the Goods to BALCONY AND BALUSTRADES 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 (following any detachment of the Goods from any property of the Buyer or any third party which may be necessary) the Goods. For the avoidance of doubt, BALCONY AND BALUSTRADES shall be entitled, after such repossession, to dispose of any such Goods as it sees fit.
10.6 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 BALCONY AND BALUSTRADES but if the Buyer does so (or if the Buyer becomes or is declared insolvent (or being an individual, is declared bankrupt) or convenes a meeting of or proposes any arrangement or composition with its creditors or is subject to an order or resolution for winding up (except for the purposes of a solvent reconstruction or amalgamation) or suffers or permits any equivalent step to be taken in any jurisdiction) all money owing by the Buyer to BALCONY AND BALUSTRADES Shall (without prejudice to any other right or remedy of BALCONY AND BALUSTRADES) forthwith become due and payable.
10.7 If BALCONY AND BALUSTRADES store, transport or work on any Goods or other property (including Goods about to be delivered by them or Goods intended for incorporation in or use on contract Goods and services) belonging to the Buyer or any third party, BALCONY AND BALUSTRADES does so at the Buyer’s sole risk and (except as provided in these conditions) BALCONY AND BALUSTRADES shall have no liability to the Buyer or to any other party for loss, deterioration or damage to such Goods or other property howsoever arising and whether by negligence or otherwise.
10.8 In cases where BALCONY AND BALUSTRADES make a contract of carriage and/or arrange for insurance of Goods in transit they shall be deemed to be acting as the Buyer’s agent and sub-section (2) and (3) of Section 32 Sale of Goods Act 1979 shall not apply.
10.9 All estimates of costs, plans, drawings, catalogues, photographs, illustrations and similar descriptive material remain the property of BALCONY AND BALUSTRADES and shall be returned to them unless agreed otherwise. No item may be copied or handed to a third party without the consent of BALCONY AND BALUSTRADES.
11.1 The assessment of the Goods’; suitability, quality and fitness for purpose is the Buyer’s responsibility irrespective of any specifications, formulations, data, literature and statements as to content, suitability, performance or otherwise, issued, and description and samples given, by BALCONY AND BALUSTRADES.
11.2 Goods are supplied on condition that the Buyer undertakes at all times to take notice of and comply with (and draw to third parties’ attention and require them to take notice of and comply with) all instructions and recommendations issued with or contained on or relating to the Goods or relevant data sheets, and all reasonable and prudent precautions as to installation, use, maintenance, cleaning and otherwise. For the avoidance of doubt, where the Goods comprise internal or external Balustrades, the Buyer shall be responsible for ensuring that such equipment is properly installed by a qualified individual. Where the Goods comprise internal or external lighting or involve electrical connections, the Buyer shall be responsible for ensuring that such equipment is properly installed by a qualified electrician Where the Buyer carries out or procures installation, BALCONY AND BALUSTRADES shall not be liable to the Buyer or any third party for any loss or damage which arises from the installation and/or use of such equipment.
11.3 All sizes, colours, finishes and any other descriptions or specifications published in any brochures, promotional or other information published in any medium are as accurate as possible within normal manufacturing tolerances and, in keeping with its policy of continual development, BALCONY AND BALUSTRADES reserves the right to alter such specifications and to supply Goods to the Buyer reflecting such altered specifications without prior notice to the Buyer provided that such alterations do not materially affect the characteristics of the Goods. Slight deviations within accepted tolerances shall not entitle a Buyer to cancel an order, return Goods or claim compensation.
11.4 Wood stains will be matched as accurately as possible. However the Buyer recognizes and acknowledges that, if different base timbers are used or if woods of differing ages are utilized there may be a variance of grain pattern which gives a slight difference of colour even if the stain has been carefully matched.
11.5 When colours are shown in printed form they have been reproduced as accurately as possible within the limits of the printing process. Wherever possible the Buyer should provide colour swatches or paint references at time of enquiry.
11.6 The Buyer shall be responsible for ensuring the suitability of any installation advice given by BALCONY AND BALUSTRADES.
11.7 If a fabric or other material has been specifically requested by the Buyer to be used in the construction of Goods, it is his/her responsibility to ensure that the material meets any relevant performance or safety regulations ruling at that time. The Buyer agrees expressly to indemnify BALCONY AND BALUSTRADES in full in respect of any remedial work, alteration work, reconstruction and subsequent reinstatement together with all costs, claims and demands which might be made against BALCONY AND BALUSTRADES In relation to the manufacture, supply and siting of the Goods ordered and all and any additional costs so arising will be added to the total invoice value by BALCONY AND BALUSTRADES and payment of the additional sums so arising must be made in full by the Buyer upon presentation of the invoice.
11.8 Any typographic, clerical or other error or omission in sales literature, quotation or price list, acceptance of offer, invoice or other document or information issued by BALCONY AND BALUSTRADES shall be subject to correction without any liability on the part of BALCONY AND BALUSTRADES.
12. INSTALLATION AND SITE WORK
12.1 Where BALCONY AND BALUSTRADES undertake work or provide labour (which they may sub-contract) at the Buyer’s works or elsewhere (not in their exclusive occupation) the Buyer shall indemnify BALCONY AND BALUSTRADES against all liability (including without limitation in respect of employee or other third party claims) arising directly or indirectly from defects in or unsuitability of the site or of materials (other than those provided by BALCONY AND BALUSTRADES) or from negligence or breach of statutory duty of the Buyer or his/her employees or any third party (other than BALCONY AND BALUSTRADES employees) and howsoever arising. Where the price is based on a preliminary visit to site/examination of drawings, we reserve the right to vary the price when changes take place. This may include the cost of further site visits. The Buyer accepts that there will be an extra charge if additional work is required resulting from structural weakness in the substrate to which the balustrade will be fixed.
12.2 Where BALCONY AND BALUSTRADES installs, maintains, repairs or tests any Goods the Buyer shall bear the total cost and provide (at the Buyer’s expense) all relevant information and such facilities as BALCONY AND BALUSTRADES May require.
12.3 The Buyer shall be responsible for ensuring compliance with all statutory requirements and third party rights in connection with the siting, installation, erection and use by BALCONY AND BALUSTRADES goods, or the provision by BALCONY AND BALUSTRADES of services, to the Buyer’s Order and shall indemnify BALCONY AND BALUSTRADES accordingly.
13. INTELLECTUAL PROPERTY
13.1 All Intellectual Property Rights in relation to the Goods and the Services, BALCONY AND BALUSTRADES’ designs, data sheets, packaging and literature shall remain the property of BALCONY AND BALUSTRADES and no license (except as to the use for which their Goods or Services are supplied) shall be implied.
13.2 The Buyer or his agents shall not at any time alter or deface the BALCONY AND BALUSTRADES’ name, logo or trademarks or juxtapose them with any other mark likely to cause confusion.
13.3 The Buyer warrants that all designs, provided by the Buyer for BALCONY AND BALUSTRADES to manufacture in accordance with, are the intellectual property of the Buyer or an adaptation of a standard design with the original manufacturer’s consent. The Buyer will indemnify BALCONY AND BALUSTRADES against any costs or claims for breach of any third party intellectual property rights.
13.4 If any claim is made against the Buyer that the Goods or Services infringe or that their use or resale infringes the Intellectual Property Rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, BALCONY AND BALUSTRADES 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;
- 13.4.1 BALCONY AND BALUSTRADES shall not be liable for loss of profit, loss of business, depletion of goodwill, damage to reputation or otherwise or other economic loss (whether direct or indirect) or any special or indirect losses, costs, expenses or other claims for special compensation whatsoever (howsoever caused) which arise out of or in connection with such a claim;
- 13.4.2 BALCONY AND BALUSTRADES is given full control of any proceedings or negotiations in connection with any such claim;
- 13.4.3 The Buyer shall give BALCONY AND BALUSTRADES all reasonable assistance for the purposes of any such proceedings or negotiations;
- 13.4.4 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 BALCONY AND BALUSTRADES (Which shall not be unreasonably withheld);
- 13.4.5 the Buyer shall do nothing which would or might vitiate any policy of insurance or 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);
- 13.4.6 BALCONY AND BALUSTRADES Shall be entitled to the benefit of, and the Buyer shall accordingly account to BALCONY AND BALUSTRADES 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
- 13.4.7 without prejudice to any duty of the Buyer at common law, BALCONY AND BALUSTRADES shall be entitled to require the Buyer to take such steps as BALCONY AND BALUSTRADES may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which BALCONY AND BALUSTRADES Is liable to indemnify the Buyer under this clause.
14. DEFECTIVE GOODS, LIMITATION OF LIABILITY AND INDEMNITY
14.1 BALCONY AND BALUSTRADES warrants that Goods will conform in all material respects to their specification and will be free from defects in design, material and workmanship under normal conditions of use for a period of 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire provided that the defect is not attributable to fair wear and tear or any fault or damage arising from impact, modification, accident, neglect, abnormal working conditions, inappropriate working conditions, inappropriate use or treatment, inappropriate installation, Inappropriate use of fixings or fixing or incorrect handling or exposure to such other substances as may be injurious to such materials.
14.2 BALCONY AND BALUSTRADES shall not be liable for a breach of the warranty in clause 14.1 or any other warranty, condition or guarantee if:
(a) The total price for the Goods has not been paid by the due date for payment;
(b) The Buyer makes any further use of such Goods after becoming aware of the defect;
(c) The defect arises because the Buyer failed to follow BALCONY AND BALUSTRADES’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or
(d) The Buyer alters or repairs the Goods without the prior written consent of BALCONY AND BALUSTRADES.
14.3 If delivery is not refused, and the Buyer does not notify BALCONY AND BALUSTRADES In accordance with clause 8, the Buyer shall not be entitled to reject the Goods and BALCONY AND BALUSTRADES shall have no liability for any defect or failure which was reasonably apparent upon inspection, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. In no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure, which is so slight that it would be unreasonable for him to reject them.
14.4 BALCONY AND BALUSTRADES’ sole liability for breach of the warranty set out in clause 14.1 shall be at BALCONY AND BALUSTRADES’ option to repair or replace defective Goods, or to refund the Contract price or relative part thereof.
14.5 If BALCONY AND BALUSTRADES complies with condition 14.4 it shall have no further liability for a breach of the warranty in clause 14.1 in respect of such Goods.
14.6 Any Goods replaced by BALCONY AND BALUSTRADES will belong to BALCONY AND BALUSTRADES and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12 month period.
14.7 Nothing in these Conditions excludes or limits the liability of BALCONY AND BALUSTRADES for death or personal injury caused by BALCONY AND BALUSTRADES’ negligence or fraudulent misrepresentation.
14.8 Subject to the provisions of clauses 14.4 and 14.7, BALCONY AND BALUSTRADES shall not be liable for any loss of profit, loss of business, depletion of goodwill, damage to reputation or otherwise or other economic loss (whether direct or indirect) or any special or indirect losses, costs, expenses or other claims for special compensation whatsoever and howsoever caused (whether by negligence or otherwise) which arise out of or in connection with the Contract.
14.9 Without prejudice to the other provisions of this clause 14, BALCONY AND BALUSTRADES’ aggregate liability under the Contract in respect of any breach of contract, negligence or otherwise, shall not exceed the price paid by the Buyer for the Goods.
14.10 All other conditions, warranties or other terms whether express or implied, statutory or otherwise, inconsistent with this clause 14 are hereby expressly excluded to the fullest extent permitted by law.
14.11 The Buyer shall indemnify BALCONY AND BALUSTRADES against all liability incurred by BALCONY AND BALUSTRADES to third parties arising in any way out of the performance of the Contract.
15. SUSPENSION AND TERMINATION
- 15.1.1 the Buyer commits a material breach of the Contract or any other contract with BALCONY AND BALUSTRADES; or
- 15.1.2 any event conferring a right of termination under 15.2 below shall have occurred, then in any such case BALCONY AND BALUSTRADES shall be entitled (without prejudice to any other of its rights here under) to suspend further performance of the Contract for such reasonable time as BALCONY AND BALUSTRADES shall deem fit and for this purpose to stop any Goods in transit to the Buyer or in the course of installation.
15.2 BALCONY AND BALUSTRADES May, by notice to the Buyer, terminate supply if the Buyer commits a material breach of the Contract or any other contract with BALCONY AND BALUSTRADES (such breach, if capable of remedy, not having been remedied within 7 days of notice to do so) or any judgment against the Buyer is unsatisfied for 14 days or (being an individual) the Buyer dies or commits any act of bankruptcy or (being a corporation) enters liquidation or receivership or ceases or threatens to cease to carry on business or BALCONY AND BALUSTRADES reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly or any event analogous to any of the foregoing shall happen in any other jurisdiction and any such termination shall be without prejudice to the Buyer’s obligations and BALCONY AND BALUSTRADES’ rights under the Contract.
15.3 No order which has been accepted by BALCONY AND BALUSTRADES may be cancelled by the Buyer except with the agreement in writing of BALCONY AND BALUSTRADES and on terms that the Buyer shall indemnify BALCONY AND BALUSTRADES 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 BALCONY AND BALUSTRADES as a result of cancellation.
The Buyer may not assign any Contract or any rights thereunder without the prior written consent of BALCONY AND BALUSTRADES. BALCONY AND BALUSTRADES may freely assign, transfer or subcontract the whole or any part of any Contract and, if requested by BALCONY AND BALUSTRADES, the Buyer shall take all steps which are necessary (including, without limitation, the execution of all documents) to give effect to such assignment, transfer or subcontracting.
17. EXPORT ORDERS
17.1 The Buyer shall be exclusively responsible for (and shall indemnify BALCONY AND BALUSTRADES against) all customs duties and other costs of importation and costs of obtaining confirmation of payments, letters of credit and for obtaining all licences relevant to the sale and delivery of and payment for the Goods (delivery being subject to the Buyer obtaining all such licences).
17.2 Unless otherwise agreed in writing payment for international sales shall not be deemed completed unless payment in full has either been received by BALCONY AND BALUSTRADES or been secured by irrevocable letter of credit (payable on sight) issued and confirmed by a bank registered in England or Wales.
17.3 Delivery terms will conform to Incoterms 2000.
18.1 These Conditions shall be interpreted without reference to their headings, which are for convenience only.
18.2 The contract shall be governed by English Law and the Buyer shall submit to the exclusive jurisdiction of the English Courts.
18.3 Any provision of these Conditions held by a court of law to be invalid shall be severable and shall to the extent necessary to prevent such invalidity be deemed to be omitted from these Conditions and any liability which would otherwise have been excluded or limited shall nevertheless be subject to the remaining provisions of these Conditions.
18.4 The provisions of these Conditions shall remain in full force and effect notwithstanding that the parties’ obligations under the Contract may have been performed or discharged.
18.5 The waiver of any breach of any of these Conditions or the non-enforcement of any of these Conditions shall not prevent the subsequent enforcement of that Condition or the exercise of any right arising from that breach and shall not be deemed a waiver of any subsequent breach.
18.6 Any entity who or which is not expressly a party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract and the provisions of the Contracts(Rights and Third Parties) Act 1999 shall be expressly excluded from this Agreement.