Terms & Conditions of Sale
(Sales of products to business and consumer customers)
1. PLEASE READ – IMPORTANT TERMS
1.1 Please read these terms carefully before you submit your order to us. Amongst other matters these terms tell you who we are, how we will provide products and services to you, how you and we may change or end the contract, what to do if there is a problem and other important information.
1.2 Please note that references in these terms to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 are abbreviated to the CC Regulations 2013.
1.3 These are the terms that apply to our supply of products (whether goods and/or services) to both our consumer and business customers. However, depending upon whether you are a business or a consumer customer you will have different rights and obligations under these terms.
1.4 You are a consumer customer if (a) you are an individual and (b) purchasing our products (whether goods and/or services) for purposes which are wholly or mainly outside your trade, business, craft or profession.
1.5 You are a business customer if you are purchasing our products (whether goods and/or services) wholly or mainly in connection with your trade, business, craft or profession.
1.6 If you are a consumer customer then all the provisions in these terms of sale apply to you apart from clauses 19 to 25 which only apply to business customers.
1.7 If you are a business customer then all the provisions in these terms of sale apply to you apart from any clauses, paragraphs or sentences (as the case may be) marked “Consumers Only”; as this content only
applies to consumer customers.
2. CONTACTING US
2.1 We are Felgains Limited a company registered in England and Wales with registration number 09877342 and our registered office is at 33 Knightsdale Road, Ipswich, United Kingdom, IP1 4JJ. This is also our address for returns purposes. Our registered VAT number is 285 4020 66.
2.2 You can contact us by telephoning our customer services team on 01473 741 144 or by emailing us at [email protected] or by writing to customer services at our address in Ipswich as set out in clause 2.1 above.
3. CONTRACTING WITH YOU
3.1 A contract will only come into force between us when we accept your order. Our acceptance of your order will take place when we inform you (whether instore, over the telephone, by writing to you or emailing you, as applicable) that we expressly accept your order. At this time a contract will come into existence between us. Simply placing an order does not bind us. All orders placed are accepted at our entire discretion. If we are unable to accept your order we will inform you of this as soon as reasonably practical.
3.2 We only sell to the UK. We do not accept orders from or deliver to addresses outside the United Kingdom.
4. VARIATIONS, MEASUREMENTS & CHANGES
4.1 Products may vary slightly from their pictures. The images of the products on our website and in our marketing materials are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that the display of the colours accurately reflects the colour of the products. Your product may vary slightly from those images.
4.2 Making sure your measurements are accurate. If we are making the product to measurements you have given us then you are responsible for ensuring that these measurements are correct.
4.3 We may change the product following our acceptance of your order: (a) to reflect changes in relevant laws and regulatory requirements; and (b) to implement minor technical adjustments and improvements.
5. DELIVERING THE PRODUCTS TO YOU
5.1 During the order process we will inform you of the costs of delivering the products to you. As regards delivery times
(a) Goods: If the products ordered are standard then we will deliver them to you as soon as reasonably possible and in any event within 30 days after the day on which we accept your order. However if you order products that are specialist and/or made to order then there may be a longer lead time and we will advised you of this.
(b) Services: If we are providing services to you under a services only contract (that is we are only providing services under the contract and not any goods / products as well) then subject to clause 5.2 below will begin the services on the date agreed with you during the order process. We will also provide an estimated completion date for the services during the order process.
5.2 CONSUMERS ONLY Supply of services in cancellation period
(a) Please note that we will not begin the supply of a services to you under a services only contract before the end of the cancellation period (as referred to in clause 7.6) unless (i) you have made an express
request of us to do so and (ii) in the case of an off-premises contract (as referred to in clause 7.3) your request to start work was in writing. A services only contract is where we are only providing services under the contract and not any goods as well.
(b) Please note that if we complete the provision of the services to you before the end of the cancellation period, then you cease to have the right to cancel the contract under the CC Regulations 2013.
(c) If in circumstances where, at your request, we start supplying services to you before the end of the cancellation period and then you cancel the contract under CC Regulations 2013 before completion of the services, then you must pay to us a proportionate amount of our charges in respect of the services provided up until the time we are informed of your decision to cancel the contract in accordance with the CC Regulations 2013.
5.3 Delays outside our control.
(a) If our supply of the products is delayed by an event outside our reasonable control then we will contact you as soon as reasonably practical to let you know and we will take reasonable steps to minimise the effect of the delay. We cannot accept liability for delays caused by events outside our control.
(b) CONSUMERS ONLY: if as a result of events outside our reasonable control there is a risk of a substantial delay in your receiving the products ordered then you may contact us to end the contract. Thereafter you will receive a refund as regards any sums paid in advance but where the product in question is being made to order then we reserve the right to deduct a reasonable sum as regards any costs or expenses we have incurred up until the date of cancellation.
5.4 Collection by you. If you have asked to collect the products from our premises, you can collect them, when available, from us at any time during our working hours on weekdays (excluding public holidays).
5.5 Delivering the products to you. If no one is available at the specified address to take delivery and the products cannot be posted through your letterbox, we will leave you a note informing you of how to re-arrange delivery.
5.6 Failed collection / delivery. If you do not collect the products from us as arranged or if, after a failed delivery attempt, you do not re-arrange delivery or collect them from a delivery depot we will contact you for further instructions and we shall have the right to charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you and/or you fail to re-arrange delivery or collection we may terminate (end) the contract and the provisions of clause 11 will apply.
5.7 Providing Services to you. If you do not allow us to access your property to perform the services as arranged then we may charge you the additional costs incurred by us as a result. If, despite our reasonable efforts, we are unable to contact you or re-arrange access to your property we may end the contract and the provisions of clause 11 will apply.
5.8 Responsibility & ownership of goods. A product which is goods will be your responsibility (at your risk) from the time (a) we deliver the product to the address you gave us or (b) you, or your representative, or a carrier organised by you, collects it from us. You will own a product (which is goods) once we have received payment for it in full.
5.9 Suspending the supply of products to you. We may have to suspend the supply of a product to you to update it or to reflect changes in relevant laws and regulatory requirements. We will contact you in advance to tell you we will be suspending supply of the product, unless the problem is urgent or an emergency. You may contact us to end the contract for a product if we suspend it, or tell you we are going to suspend it, in each case for a period of more than 14 days and we will refund any sums you have paid in advance for the product.
6. CONSUMERS ONLY – ENDING THE CONTRACT
6.1 Where you are a consumer customer you may terminate (end) the contract in the following circumstances:
(a) we have suspended supply of the products to reflect changes in relevant laws and regulatory requirements, or notify you we are going to suspend them for these reasons, in each case for a period of more than 14 days;
(b) there is a risk that the supply of the products may be significantly delayed because of events outside our control;
(c) we have breached the contract (that is done something wrong in a contractual sense), including in certain circumstances we have delivered late. Please note that consumers have legal rights under the Consumer Rights Act 2015 and other legislation if we have delivered late or acted contrary to the terms of the contract; please visit the Citizens Advice website www.adviceguide.org.uk for more detailed information of your rights and remedies);
(d) we have told you about an error in the price or description of the product you have ordered and you do not wish to proceed; or
(e) as a consumer you have exercised your right to cancel the contract on changing your mind (but please see clause 7 below as to when a consumer’s right to cancel applies).
6.2 Upon your informing us in accordance with clause 8 (notice to end the contract) that you wish to either (a) cancel the contract or (b) terminate (end) the contract and in either case we agree that you are
legally entitled to do so, then the contract will end immediately and we will refund you (where you have paid in advance) for any products which you have not been provided with.
7. CONSUMERS ONLY – CANCELLING THE CONTRACT
7.1 In certain circumstances you, as a consumer, may have the right to cancel (end) the contract simply because you have changed your mind. Please read the rest of this clause 7 carefully for when this right applies.
7.2 Under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CC Regulations 2013) the right to cancel only applies when the contract you have entered into with us is a “distance contract” or an “off-premises contract” (please see clause 7.3 below for meanings). Please note that:
(a) the right to cancel may not always apply (please see clause 7.4 for important exceptions);
(b) the right to cancel must be exercised within the relevant time period (that is within the cancellation period and please see clause 7.6 in this regard); and
(c) there is no right to cancel where the contract is an “on-premises contract” (please see clause 7.5 below for further information).
7.3 The CC Regulations 2013 defines distance contract and off-premises contracts in some detail (and you should refer to the CC Regulations 2013 as applicable) but generally speaking:
(a) a distance contract is a contract which has been entered into without the simultaneous physical presence of the trader and the consumer and which exclusively uses a means of distance communication (such
as the telephone, mail order or exchange of emails); and
(b) an off-premises contract is a contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader (such as, for example, in the consumers home).
7.4 Exceptions to right to cancel. Please note under the CC Regulations 2013, you, as a consumer customer, do not have a right to cancel the contract on changing your mind in respect of any of the following:
(a) the supply of goods that are made to your specifications or are clearly personalised. This is because where we adapt or tailor products to the specification of a consumer customer, cancellation rights do not apply as otherwise we would be left with a product specific to a particular consumer’s preferences or requirements and with no ready and commercial market for the same and as such we would be left unfairly out of pocket;
(b) services, once these have been completed, even if the cancellation period is still running (please see clause 5.2 for further information);
(c) products sealed for health protection or hygiene purposes, once these have been unsealed after you receive them;
(d) sealed computer software once unsealed after you receive it;
(e) any products which become mixed inseparably with other items after their delivery;
(f) the supply of goods which are liable to deteriorate or expire rapidly;
(g) contracts where the consumer has specifically requested a visit from us for the purpose of carrying out urgent repairs or maintenance.
7.5 No right to cancel as regards “on-premises contract” Please note that where the contract is an “on-premises contract” then there is no right under the CC Regulations 2013 to cancel the contract later upon changing your mind. An “on-premises contract” is defined in the CC Regulations 2013 as being a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract; generally speaking an on-premises contract includes contracts entered into by you in person “in store” at our business premises.
7.6 What is the cancellation period within which to exercise a right to cancel? This depends on what you have ordered and how it is delivered.
(a) Is your contract just for services? If so, you have 14 days after the day we inform you that we have accepted your order (with the contract coming into force in accordance with clause 3).
However, this is subject to the provisions of clause 5.2, in circumstances where following your request we have either commenced or completed the provision of the services during the cancellation period.
(b) Is your contract just for goods (or a contract with both goods and services as its object) if so you have 14 days after the day you (or someone you nominate) receives the goods, unless: (i) your goods are split into several deliveries over different days. In this case you have until 14 days after the day you (or someone you nominate) receives the last delivery to change your mind about the goods; or (ii) your goods are for regular delivery over a set period. In this case you have until 14 days after the day you (or someone you nominate) receives the first delivery of the goods.
8. CONSUMERS ONLY – NOTICE TO END THE CONTRACT
8.1 Where you are entitled to end (terminate) the contract under clause 6 or cancel it under clause 7 and wish to do so, you must let us know by either telephoning, emailing or writing to us stating your intention and including details of what you bought, when you ordered or received it and your name and address. However we would suggest that it is best that you either email or write to us for evidential purposes. Please see clause 2 for our contact details.
8.2 If you are exercising your right to cancel the contract under clause 7 you may use (but do not have to) the model cancellation form to be found in this clause below and then complete it and either email or post it to us.
Model cancellation form
To: Customer Services, Customer Services, Felgains Limited, 33 Knightsdale Road, Ipswich, United Kingdom, IP1 4JJ. [or] to Customer services by email using the following e-mail address [email protected]
I hereby give notice that I cancel my contract for the sale of the following goods [xxx]/ for the supply of the following service [xxx], Ordered on [xxx]/received on [xxx].
Name of consumer(s), [xxx]
Address of consumer(s), [xxx]
Signature of consumer(s) (or print name if sent by email),
9. CONSUMERS ONLY – RETURNING PRODUCTS AFTER ENDING THE CONTRACT
9.1 Where as a consumer you are entitled to terminate (end) the contract under clause 6 or cancel the contract under clause 7 and have done so after goods have been dispatched to you, or you have received them, then you must return them to us.
9.2 You must either return the goods in person to where you bought them, post them back to us at our returns address (see clause 2.2) or (if they are not suitable for posting) allow us to collect them from you. Please call customer services or email us to arrange collection (clause 2 has our contact details).
9.3 If you are exercising your right to change your mind you must send off the goods within 14 days of telling us you wish to end the contract.
9.4 We will pay the costs of return if: (a) the products are faulty or misdescribed; or (b) you are ending the contract because we have told you of an upcoming change to the product or these terms, an error in pricing or description, a delay in delivery due to events outside our control or because you have a legal right to do so as a result of something we have done wrong. In all other circumstances (including where you are validly exercising your right to cancel and change your mind) you must pay the costs of return.
9.5 What we charge for collection. If you are responsible for the costs of return and we are collecting the product from you, we will charge you the direct cost to us of collection.
9.6 How we will refund you. Where you have previously paid us, we will refund you the price you paid for the products including delivery costs, by the method you used for payment. However, we may make deductions from the price, as described below.
9.7 Deductions from refunds if you are exercising your right to change your mind. If you are validly exercising your right to cancel (change your mind) under clause 7 above then:
(a) We may reduce your refund of the price to reflect any reduction in the value of the goods, if this has been caused by your handling them in a way beyond what is necessary to establish the nature, characteristics and functioning of the goods (such as handling the goods over and above how you might in a shop situation). If we refund you the price paid before we are able to inspect the goods and later discover you have handled them in an unacceptable way, you must pay us an appropriate amount.
(b) The maximum refund for delivery costs will be the costs of delivery by the least expensive delivery method we offer. For example, if we offer delivery of a product within 3 to 5 days at one cost but you choose to have the product delivered within 24 hours at a higher cost, then we will only refund what you would have paid for the cheaper delivery option.
(c) Where the product is a service, we may deduct from any refund an amount for the supply of the service for the period for which it was supplied, ending with the time when you told us you had changed your mind. The amount will be in proportion to what has been supplied, in comparison with the full performance of the contract.
9.8 When your refund will be made. We will make any refunds due to you as soon as reasonable practical. If you are validly exercising your right to change your mind then:
(a) if the products are goods and we have not offered to collect them, your refund will be made within 14 days from the day on which we receive the product back from you or, if earlier, the day on which you provide us with evidence that you have sent the product back to us.
(b) in all other cases, your refund will be made within 14 days of your telling us you have changed your mind.
10. WARRANTY (FOR CONSUMER AND BUSINESS CUSTOMERS)
10.1 We warrant that on delivery and during the warranty period, that the our products shall:
(a) conform in all material respects with their description and any applicable specification; and
(b) be free from material defects in material and workmanship.
The warranty period for our products generally lasts for at least 12 months from the date of delivery. Warranty periods exceeding 12 months from the date of delivery will be advised to you.
10.2 Subject to clause 10.3, if:
(a) you give us notice in writing during the warranty period that some or all of the products do not comply with the warranty set out in clause 10.1;
(b) we are given a reasonable opportunity of examining such products; and
(c) you (if asked to do so by us) return such products to our place of business;
then we will, at our discretion, repair or replace the defective products, or refund the price of the defective products in full.
10.3 We shall not be liable for any products failure to comply with the warranty in clause 10.1 if one or more of the following apply:
(a) you make any further use of such products after giving a notice in accordance with clause 10.2;
(b) the defect arises because you have failed to follow our instructions as to the storage, installation, commissioning, use or maintenance of the products;
(c) the defect arises as a result of any drawing, design or specification supplied by you or your representatives;
(d) you alter or repair the products without our prior written consent;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal use or working conditions; and
(f) the products differ from their description or applicable specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
10.4 The terms of this clause 10 shall apply to any repaired or replacement products supplied by us under this clause 10, but not so as to increase the warranty period beyond its original period.
10.5 CONSUMERS ONLY: We are under a legal duty to supply goods and services that are in conformity with the contract. The Consumer Rights Act 2015 and other legislation give consumer’s important legal rights and remedies and those legal rights are not affected by these terms or the warranty in clause 10. For more detailed information please visit the Citizens Advice website www.adviceguide.org.uk
11. OUR RIGHT TO END THE CONTRACT
11.1 We may end the contract if you do something wrong, for example we may terminate (end) the contract by giving notice in writing to you if:
(a) you do not make any payment to us when it is due and you still do not make payment within 5 days of us reminding you that payment is due;
(b) you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the products; or
(c) you do not, within a reasonable time, allow us to deliver the products to you.
11.2 If we terminate (end) the contract because you have done something wrong (that is you are in breach of contract) then we reserve the right to claim compensation (damages) from you in respect of any losses and/or costs we suffer or incur as a result.
12. QUESTIONS, COMPLAINTS & YOUR LEGAL RIGHTS
12.1 If you have any questions or complaints about our products, please contact us (please see clause 2 for contact details).
12.2 If you wish to make a formal complaint then please write to, or email, our complaints manager with full details of your complaint. The email address of our complaints manager is [email protected] We will then send you our complaints policy detailing the process that we will follow and the related timescale. In all cases we will endeavour to resolve complaints in a speedy, responsive and user friendly manner and typically within one month of receiving your complaint and the related details.
12.3 Should we fail to resolve a complaint to your satisfaction then you have the right to contact the Code Administrator of the BHTA (British Healthcare Trades Association) which is our trade body. The BHTA can be contacted by telephone on 020 7702 2141 or by emailing [email protected] and their website is www.bhta.com
12.4 We have undertaken to comply with the BHTA Code of Practice for the Healthcare & Assistive Technology Products and Services Industry and a copy of the Copy of Practice can be found on the BHTA website.
12.5 If you decide to notify the BHTA of your complaint then the BHTA will gather the facts and then advise both you and us as to its conclusions. If you are not happy with the BHTA conclusions you would then have the option of your complaint being referred to an independent arbiter. The decision of the independent arbiter would essentially be binding on both of us. Alternatively instead of following the BHTA complaints process or seeking a binding arbitration you do have the right to pursue an independent court action.
12.6 CONSUMERS ONLY: We are under a legal duty to supply goods and services that are in conformity with the contract. The Consumer Rights Act 2015 and other legislation give consumer’s important legal rights and remedies. For more detailed information please visit the Citizens Advice website www.adviceguide.org.uk
12.7 CONSUMERS ONLY: Your obligation to return rejected products. If you wish to exercise your legal right to reject products that do not comply with the contract under the Consumer Rights Act 2015 then you must either return them in person to where you bought them, post them back to us or (if they are not suitable for posting) allow us to collect them from you. We will pay the costs of postage or collection. Please contact customer services for a return label or to arrange collection (see clause 2 for contact details).
13. PRICE AND PAYMENT
13.1 Price for the product. The price of the product (plus VAT) will be the price (a) told to you over the telephone (b) set out in our brochure (c) set out on our website or (d) told to you in the course of email exchanges (as the case maybe). We take all reasonable care to ensure that the price of the product advised to you is correct. However please see clause 13.3 for what happens if we discover an error in the price of the product you order.
13.2 Rates of value added tax. If the rate of VAT changes between your order date and the date we supply the product, we will adjust the rate of VAT that you pay accordingly, unless you have already paid for the product in full before the change in the rate of VAT takes effect.
13.3 Errors in price. It is always possible that, despite our taking all reasonable care, some of the products we sell may be incorrectly priced. We will normally check prices before accepting your order so that, where the product’s correct price at your order date is less than our stated price at your order date, we will charge the lower amount. If the product’s correct price at your order date is higher than the price stated to you, we will contact you for your instructions before we accept your order. If we make a mistake and accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may end the contract, refund you any sums you have paid and require the return of any goods provided to you.
13.4 When and how to pay. When you must pay us depends on which products you are buying:
(a) For goods (not requiring installation services): as regards orders for goods / products that do not require installation services from us, then payment must be made in full upon placement of the order. The only exception to this are:
(i) when such products are ordered by business customers who have a formal account with us; in this case payment must be made in accordance with the terms agreed in relation to that business account; or
(ii) where your order is such that we have to ourselves order in the goods / products in question, in which case we will accept either payment in full at the time of order or payment of 50% of the price with the balance to be paid when the goods / products are ready for dispatch or collection as the case maybe.
(b) For products requiring installation services for non-account customers: then the payment terms are as follows:
- 50% of the total price on placing of your order;
- 40% of the total price upon our notifying you that the products are ready for dispatch; and
- 10% upon completion of the installation services.
14. CONSUMERS ONLY – OUR LIABILITY TO YOU
14.1 If you are a consumer we only supply the products to you for domestic and private use. If you use the products for any commercial, business or re-sale purposes then our liability to you will be limited as set out in clause 19 below.
16. CONSUMERS ONLY – TRANSFER OF RIGHTS UNDER THE CONTRACT
16.1 As a consumer customer you may transfer the warranty at clause 10 to another person who has acquired the product we supplied to you. We will not accept any liability under the warranty in clause 10 unless the person seeking to rely on it is the original purchaser or can produce a letter or chain of letters from the original purchaser and subsequent purchasers (where appropriate) transferring the benefit of the warranty to the new owner of the product in question. We will be happy to supply a suggested specimen letter upon request.
16.2 No other person shall have any rights to enforce any of the terms of the contract referred to in clause 3, except as explained in clause 16 in respect of our warranty.
17. CONSUMERS ONLY – DEATH OF CUSTOMER AFTER CONTRACT COMES INTO FORCE
17.1 Unfortunately it can happen that a customer may pass away after a binding contract has come into force or otherwise become unsuitable to use the product contracted for. As such this clause 17 sets out the terms and conditions that will apply in these circumstances. We may also require documentary proof of the authority of the representatives to act on behalf of the deceased’s estate.
17.2 For the avoidance of doubt nothing in this clause 17 affects the right of a consumer customer to cancel a contract pursuant to the CC Regulations 2013 (and please see clause 7 in this regard).
17.3 If a customer subsequently dies after the contract has come into force (or otherwise become unsuitable to use the product contracted for) and before the product has been delivered by us to that customer:
(a) then in circumstances where the customer has previously paid us a 50% deposit pursuant to clause 13.4(b), then if our corresponding order with the manufacturer can legally be cancelled by us, then we will pay the deposit to the deceased’s estate but having first deducted and retained from the deposit a reasonable sum to cover any costs and expenses that we have incurred (including by way of example survey costs, administration charges and any cancellation charges of the manufacturer that we are obliged to pay);
(b) then in circumstances where the customer has previously paid us a 50% deposit pursuant to clause 13.4(b), then if our corresponding order with the manufacturer cannot be legally cancelled by us (for example because the product or a significant part of the same has already been built and/or delivered to us), then we reserve the right to retain the deposit and pursue a claim against the deceased’s estate in respect of any additional loss, costs and expenses that we have and/or will incur by virtue of our contract with the customer not being fully performed as both parties originally intended (including recovery of any additional sums that we are obliged to pay to the manufacturer). Alternatively where we consider (acting reasonably) that the applicable product and/or parts of the same can properly and promptly be utilized by us elsewhere (such as promptly sold by us to another customer) then in these circumstances we may with the permission of the deceased representatives, sell the equipment in question and take any sums subsequently realised by us in this way into account in assessing the amount of the deposit retention and our loss under the contract. However, please note that where products are bespoke, made to a customer’s specification and/or are clearly personalised then we may be unable to utilise them elsewhere or sell them to another customer.
(c) then in circumstances where the customer has previously paid to us a 50% deposit and a further 40% of the price pursuant to clause 13.4(b), then we reserve the right to retain the total of all sums received from the customer and to forward the actual product ordered to those administering the deceased’s estate for their disposal as they best see fit. Alternatively where we consider (acting reasonably) that the applicable product and/or parts of the same can properly and promptly be utilized by us elsewhere (such as promptly sold by us to another customer) then in these circumstances we may, with the permission of the deceased representatives, sell the equipment in question and take any sums subsequently realised by us in this way into account in assessing the amount of our retention. However please note that where products are bespoke, made to a customer’s specification and/or are clearly personalised then we may be unable to utilise them elsewhere or sell them to another customer.
18. GENERAL PROVISIONS
18.1 Each of the clauses of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
18.2 If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
18.3 CONSUMERS ONLY: These terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts. If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.
19. LIMITATION OF LIABILITY – BUSINESS CUSTOMERS ONLY
19.1 Nothing in these terms shall limit or exclude our liability for: (a) death or personal injury caused by our negligence; (b) fraud or fraudulent misrepresentation; or (c) any other matter in respect of which it would be unlawful for us to exclude or restrict liability.
19.2 Subject to clause 19.1 we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for (a) any loss of profit or loss of business (whether direct or indirect loss) or (b) for any indirect or consequential loss arising under or in connection with any contract between us.
19.3 Subject to clauses 19.1 and 19.2 our total liability to you for (whether for breach of contract, in tort (including negligence), breach of statutory duty or otherwise):
(a) as regards all claims for loss or damage to your premises, real property and/or physical assets, shall not exceed one million pounds in the aggregate; and
(b) as regards all other claims for loss or damage shall not exceed 120% of the sale price (excluding vat) of the products (whether goods and/or services) the subject of the claims.
20. OTHER SUPPLY RELATED TERMS – BUSINESS CUSTOMERS ONLY
20.1 We warrant to you that any services will be provided using reasonable care and skill.
20.2 If you are a business customer this is our entire agreement with you and these terms constitute the entire agreement between us in relation to your purchase of the products. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these terms and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
20.3 These terms apply to the contract to the exclusion of any other terms that you seek to impose or incorporate (whether pursuant to conditions of purchase or otherwise), or which are implied by trade, custom, practice or course of dealing.
20.4 Any dates quoted for delivery of the products (including any goods or services) are approximate only, and the time of delivery is not of the essence.
20.5 You shall pay all amounts due under the contract in full without any set-off, counterclaim, deduction or withholding except as required by law. We may, without limiting our other rights or remedies, set off any amount owing to you against any amount payable by us to you under any contract or account whatsoever.
20.6 You shall have no right or power to assign the benefit or delegate the burden of this a contract without our prior written consent.
21. LAW & JURISDICTION – BUSINESS CUSTOMERS ONLY
21.1 If you are a business, any dispute or claim arising out of or in connection with a contract between us or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
22. TITLE AND RISK – BUSINESS CUSTOMERS ONLY
22.1 The risk in the goods being supplied to you shall pass to you on completion of delivery.
22.2 Title to the goods shall not pass to you until the earlier of:
(a) our receiving payment in full (in cash or cleared funds) for the goods and any other goods that we have supplied to you; in which case title to the goods shall pass at the time of payment of all such sums; and
(b) your reselling the goods, in which case title to the goods shall pass to the you at the time immediately prior to the sale
22.3 Until title to the goods has passed to you, you shall: (a) not remove, deface or obscure any identifying mark relating to the goods; (b) maintain the goods in satisfactory condition and keep them insured against all risks for their full price on our behalf from the date of delivery; and (c) give such information relating to the goods as we may require from time to time.
22.4 If before title to the goods passes to you, or at any time we become entitled to exercise a termination right under clause 24.1, then, without limiting any other right or remedy we may have:
(a) your right to resell goods or use them in the ordinary course of your business shall cease immediately; and
(b) we may at any time: (i) require you to deliver up all goods in your possession which have not been resold, or irrevocably incorporated into another product; and (ii) if you fail to do so promptly, enter any premises of yours or of any third party where the goods are stored in order to recover them.
22.5 That title in the goods has not passed to you pursuant to the provisions of this clause 22 shall not prevent us from being entitled to bring a claim for legal redress (including as to the price of the goods) where you fail to pay for the goods pursuant to the provisions of these terms.
23. YOUR OBLIGATIONS – BUSINESS CUSTOMERS ONLY
23.1 You shall:
(a) ensure that the terms of your order and (if submitted by you) the specification for the goods / products are complete and accurate;
(b) co-operate with us in all matters relating to the supply of the products;
(c) provide us with access to the your premises and other facilities as reasonably required by us to provide any services;
(d) provide us with such information and materials as we may reasonably require to supply any services, and ensure that such information is accurate in all material respects;
(e) prepare your premises for the supply of the services in accordance with any site related specification that we may issue;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for your receipt of services before the date on which the services are to start;
(g) keep and maintain all materials, equipment, documents and other property of ours (“Supplier Materials”) at your premises in safe custody at your own risk, and maintain the same in good condition until returned to us, and not dispose of or use the Supplier Materials other than in accordance with our written instructions or authorisation; and
(h) only use any products, goods or equipment provided by us in accordance with the applicable operating instructions or manuals and ensure that our products are maintained at periodic intervals as specified in the applicable operating instructions or manual.
24. TERMINATION PROVISIONS – BUSINESS CUSTOMERS ONLY
24.1 Without limiting our other rights or remedies we may terminate a contract by giving you not less than 3 months’ written notice.
24.2 Without limiting our other rights or remedies, we may terminate the contract with immediate effect by giving written notice to you if:
(a) you commit a material breach (other than non-payment) of your obligations under the contract and (if such breach is remediable) fail to remedy that breach within 20 days after receipt of a notice in writing to do so;
(b) you suspend, threaten to suspend, cease or threaten to cease to carry on, all or substantially the whole of your business;
(c) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the contract has been placed in jeopardy; or
(d) you fail to pay any amount due whether under the contract, or any other contract between us, on the due date for payment.
24.3 You may terminate the contract with immediate effect by giving written notice to us if we commit a material breach of our obligations under the contract and if such breach is remediable, we fail to remedy that breach within 20 days after receipt of notice in writing from you to do so.
24.4 Without limiting our other rights or remedies, we may suspend the supply of any services and goods under the contract or under any other contract between us if the you fail to pay any amount due under the contract on the due date for payment.
24.5 On termination of the contract for any reason then you shall immediately pay to us all of our outstanding unpaid invoices. In respect of any goods and/or services supplied but for which no invoice has yet been submitted, we may without prejudice to any other rights or remedies submit an invoice which shall be payable by you immediately on receipt.
24.6 On termination of the contract for any reason clauses which expressly or by implication have effect after termination shall continue in full force and effect.
25. DEATH OF END USER AFTER CONTRACT COMES INTO FORCE – BUSINESS CUSTOMERS ONLY
25.1 It is sometimes the case that a business customer purchases a product (by way of example a stair lift) for a particular individual. Unfortunately it can happen that after a binding contract has come into force and before delivery has been made by us, the individual in question passes away (or otherwise becomes unsuitable to use the product ordered). As such this clause 25 sets out the terms and conditions that will apply in these circumstances, such that:
(a) if our corresponding order with the manufacturer can legally be cancelled by us, then we will repay the deposit to you but having first deducted and retained from the deposit a reasonable sum to cover any costs and expenses that we have incurred (including by way of example survey costs, administration charges and any cancellation charges of the manufacturer that we are obliged to pay);
(b) if our corresponding order with the manufacturer cannot be legally cancelled by us (for example because the product or a significant part of the same has already been built and/or delivered to us), then we reserve the right to retain the deposit in full and pursue a claim against you in respect of any additional loss, costs and expenses that we have and/or will incur by virtue of the our contract not being fully performed as both parties originally intended (including recovery of any additional sums that we are obliged to pay to the manufacturer).