UNDERFLOOR HEATING SUPPLIERS AND INSTALLERS

1.         Conditions Applicable and Description

1.1       These Conditions shall apply to all contracts for the provision of goods and/or services by Warmfloors Limited of 8 Roundhill Avenue, Cottingley, Bingley, BD16 1PH, registered number 5093020 (“Warmfloors”) to you, (the “customer”), to the exclusion of all other terms and conditions including any terms or conditions which the customer may purport to apply under any purchase order, confirmation of order or similar document.  A customer who is a private person purchasing goods and/or services for private use will be described where appropriate as the “consumer”.

1.2       All orders for goods and/or services shall be deemed to be an offer by the customer to purchase goods and/or services pursuant to these Conditions.  Orders may be placed by writing, via the Warmfloors website, telephone or fax.

1.3       Acceptance by Warmfloors in the form of an order confirmation which may be oral or written shall be deemed conclusive evidence of the customer’s acceptance of these Conditions.

1.4       Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by Warmfloors and authorised by one of its Directors.

1.5       Warmfloors’s employees are not authorised to make any representations concerning the goods and/or services unless confirmed by Warmfloors in writing.  In entering into the contract the customer acknowledges that it does not rely on any such representations which are not so confirmed.

1.6       While Warmfloors shall endeavour to ensure that goods shall be supplied in accordance with any description contained in any specification provided by Warmfloors, all illustrations, leaflets, drawings, catalogues or other material issued by Warmfloors and particulars of size, weight, measurement, output and performance contained in any of the terms or in any quotation, are approximate only and not binding on Warmfloors.  Warmfloors 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.

1.7       Any typographical, clerical or other error or omission in any sales literature (which shall include all specification sheets, plans and drawings), this website, quotation, price list, acceptance of offer, invoice or other document or information issued by Warmfloors shall be subject to correction without any liability on the part of Warmfloors.

1.8       The customer shall be responsible to Warmfloors for ensuring the accuracy of the terms of any order and any applicable specification or information as required by Warmfloors submitted by the customer and for giving Warmfloors any necessary information relating to the goods within a sufficient time to enable Warmfloors to perform the contract in accordance with its terms.  If insufficient information, or insufficient specification is provided to Warmfloors so as to prevent Warmfloors from fulfilling its obligations under this contract, then Warmfloors may unilaterally terminate the contract.

1.9       If the goods are to be manufactured or any process is to be applied to the goods by Warmfloors in accordance with a specification submitted by the customer, the customer shall indemnify Warmfloors against all loss, damage, costs and expenses awarded against or incurred by Warmfloors in connection with or paid or agreed to be paid by Warmfloors in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from Warmfloors’s use of the customer’s specification.

1.10     Warmfloors reserves the right to raise a charge based on time spent and distance travelled in respect of any visit to the customer’s site prior to the placing of an order.

2.         Price

2.1       The price of the goods shall be Warmfloors’s quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in Warmfloors’s published price list current at the date of acceptance of the order but shall not include the Installation Price as referred to below.  All prices quoted are valid for 30 days only or until earlier acceptance by the customer, after which time they may be altered by Warmfloors without giving notice to the customer.

2.2       Warmfloors reserves the right, by giving notice to the customer at any time before delivery, to increase the price of the goods to reflect any increase in cost to Warmfloors which is due to any factor beyond Warmfloors’s control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increases in the cost of labour, materials or other costs of manufacture) any change in delivery dates, quantities or specification for the goods which is requested by the customer or any delay caused by any instructions of the customer or failure of the customer to give Warmfloors adequate information or instructions.

2.3       Except as otherwise agreed in writing between the customer and Warmfloors all prices quoted by Warmfloors include delivery charges.

2.4       The price is exclusive of any applicable value added tax, which the customer shall be additionally liable to pay Warmfloors.

3.         Delivery

3.1       Delivery of the goods shall take place on the ‘Delivery Date’.  The Delivery Date shall be the time at which Warmfloors has notified the customer that the goods are ready for collection, or if some other place for delivery is agreed by Warmfloors, the time at which Warmfloors delivers the goods to that place or delivers the goods to a third party courier.

3.2       Any dates quoted for delivery of the goods are approximate only and Warmfloors shall not be liable for any delay in delivery of the goods however caused.  Time for delivery shall not be of the essence.  The goods may be delivered by Warmfloors in advance of the quoted delivery date upon giving reasonable notice to the customer.

3.3       If the customer fails to take delivery of the goods or the customer fails to give Warmfloors adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the customer’s reasonable control or by reason of Warmfloors’s fault) then without prejudice to any other right or remedy to Warmfloors, Warmfloors may:

3.3.1    store the goods until actual delivery and charge the customer for the reasonable costs (including insurance) of storage; or

3.3.2    sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the customer for the excess over the price under the contract or charge the customer for any shortfall below the price under the contract.

3.4       Warmfloors may deliver the goods by separate instalments.  Each separate instalment shall be invoiced and paid for in accordance with the provisions of the contract of sale.  The failure of Warmfloors to deliver or the failure of the customer to pay for any one or more of the said instalments of the goods shall not entitle the customer to treat the whole contract as repudiated.

3.5       Where the goods ordered by the customer are not available from stock the customer shall be notified and given the option to either wait until the goods are available from stock or cancel the order and receive a full refund within 30 days.

4.         Installation

4.1       Subject to any special terms agreed between Warmfloors and the customer, Warmfloors agrees to install the goods.

4.2       The customer shall be responsible for providing safe, lawful, unhindered and suitable access to the site where the goods are to be installed.  A clear working area must be provided with a flat and level surface for the installation of the goods.  A suitable local power supply adjacent to any point of work for both the operation and installation of the goods and for portable electrical tools must be provided and be within 2.0m of the installation site.  Any installation will be conducted during Warmfloors’s ordinary hours of work.  Warmfloors may agree to install the goods outside these hours but reserves the right to increase the price of the installation to reflect any additional costs incurred.

4.3       The price of the installation of the goods (the “Installation Price”) shall be Warmfloors’s quoted price for such installation and shall be quoted with the price of the goods.  Any additional cost howsoever and wheresoever incurred by Warmfloors due to the suspension or delay of the installation work caused by any delay, lack of instruction, change of instruction, or interruption on the part of the customer, or any of its employees or agents shall be added to the quoted Installation Price.

5.         Payment

5.1       Subject to any special terms agreed in writing between Warmfloors and the customer, Warmfloors shall be entitled to invoice the customer for the price of the goods on or at any time after delivery of the goods unless the goods are to be collected by the customer or the customer wrongfully fails to take delivery of the goods, in which event Warmfloors shall be entitled to invoice the customer for the price at any time after Warmfloors has notified the customer that the goods are ready for collection.

5.2       Subject to any special terms agreed in writing between Warmfloors and the customer Warmfloors shall be entitled to invoice the customer for the Installation Price on or at any time after the installation of the goods is completed.

5.3       The customer shall pay 100% of the price of the goods on or before the Delivery Date.  If the order is placed outside of the United Kingdom then the customer shall pay 100% of the price of goods on placing the order by irrevocable letter of credit opened by the customer in favour of Warmfloors (the terms of which have previously been approved by Warmfloors) opened through a bank with correspondence arrangements with a clearing bank in the United Kingdom, that is acceptable to Warmfloors, and confirmed for payment in the United Kingdom by such clearing bank.  The customer will be responsible for all costs incurred by Warmfloors as a result of any stipulations appearing in the letter of credit other than those agreed by Warmfloors.

5.4       The Installation Price shall be payable on or before 30 days after the time at which installation is completed and any other charges shall be payable on or before 30 days from the date of invoice.

5.5       Interest on overdue moneys under the contract shall accrue from the date when payment becomes due from day to day until the date of payment at the rate of 3% above the Barclays Bank plc’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgment.

6.         Customer Cancellation

6.1       Requests by the Customer to cancel or amend any order or for the rescheduling of deliveries shall be made in writing and shall only be accepted by Warmfloors in writing.  Warmfloors reserves the right to refuse to cancel any order once the order has been confirmed.  Warmfloors may also charge a handling fee of £25 on any returned goods.
            
6.2       Consumers may cancel any order placed (whether or not confirmed) at any time within 7 working days beginning with the day after the day on which the consumer receives the goods and receive a refund of the price or any part thereof paid.  To cancel any order, the Consumer must inform Warmfloors of such cancellation in writing, return the goods in their delivered condition immediately and at the Consumer’s sole cost and risk.  Any statutory consumer rights are unaffected by these Conditions.  For the avoidance of doubt this clause will not apply where the goods have been installed prior to the Consumer seeking to cancel the order or where the goods have been made to measure or created, altered or modified to accord with the Consumer’s particular requirements.

6.3       No order which has been accepted by Warmfloors may be cancelled by the customer except with the agreement in writing of Warmfloors and on such terms that the customer will indemnify Warmfloors in full and against all loss (including loss of profit), costs (including the full cost of labour and materials used), damage, charges and expenses incurred by Warmfloors as a result of such cancellation.

7.         Risk and Property

7.1       Risk of damage to or loss of the goods shall pass to the customer on the Delivery Date or if the customer wrongfully fails to take delivery of the goods at the time when Warmfloors has tendered delivery of the goods

7.2       Notwithstanding delivery and the passing of risk in the goods, or any other provisions of these Conditions, the property in the goods shall not pass to the customer until Warmfloors has received in cash or cleared funds full payment of the price of the goods.

7.3       Until such time as the property in the goods passes to the customer, the customer shall hold the goods as Warmfloors’s fiduciary agent and bailee, and shall keep the goods separate from those of the customer and third parties and properly stored, protected and insured and identified as Warmfloors’s property.

7.4       Until such time as the property in the goods passes to the customer Warmfloors shall be entitled at any time to require the customer to deliver up the goods to Warmfloors, and if the customer fails to do so forthwith, to enter upon any premises of the customer or any third party where the goods are stored and repossess the goods.

7.5       The customer 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 Warmfloors but if the customer does so the entire proceeds of sale or other moneys received in respect of the goods shall be held in trust for Warmfloors and shall not be mixed with the customer’s money or paid into any overdrawn bank account and shall at all material times be identified as Warmfloors’s money and all moneys owing by the customer to Warmfloors shall (without prejudice to any other right or remedy of Warmfloors) forthwith become due and payable.

8.         Warranties and liability

8.1       Subject to the conditions set out below Warmfloors warrants that the goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the Delivery Date or the completion of their installation by Warmfloors (whichever is the later).  For certain goods Warmfloors may offer an extended warranty for such period as Warmfloors may determine which will be detailed in writing.

8.2       Warmfloors shall be under no liability under the above warranty:

8.2.1    unless the goods or any component or part thereof are found to be defective, or faulty on examination by Warmfloors.  Any components or parts of the goods returned to Warmfloors for examination shall be at the customer’s own expense;

8.2.2                in respect of any defect in the goods arising from any drawing, design or specification supplied by the customer;

8.2.3    in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Warmfloors’s instructions (whether oral or in writing), incorrect installation, misuse or alteration or repair of the goods without Warmfloors’s approval;

8.2.4    if the total price for the goods has not been paid by the due date for payment.

8.3       The above warranty does not extend to parts, materials or equipment not manufactured by Warmfloors, in respect of which the customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the customer;

8.4       Subject as expressly provided in these Conditions, and except where the goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.5       Any claim by the customer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall (whether or not delivery is refused by the customer) be notified to Warmfloors within 7 days of the Delivery Date or where it is not possible for the customer to inspect the goods on delivery, 7 days from the first available date of inspection by the customer or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the customer does not notify Warmfloors accordingly, the customer shall not be entitled to reject the goods and Warmfloors shall have no liability for such defect or failure, and the customer shall be bound to pay the price as if the goods had been delivered in accordance with the contract.

8.6       Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to Warmfloors in accordance with these Conditions, Warmfloors shall be entitled to replace the goods (or the part in question) free of charge or, at Warmfloors’s sole discretion, refund to the customer the price of the goods (or a proportionate part of the price), but Warmfloors shall have no further liability to the customer.

8.7       Except in respect of death or personal injury caused by Warmfloors’s negligence, Warmfloors shall not be liable to the customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever whether caused by the negligence of Warmfloors, its employees or agents or otherwise which arise out of or in connection with the supply of the goods or their use or resale by the customer, and the entire liability of Warmfloors under or in connection with the contract shall not exceed the price of the goods, except as expressly provided in these Conditions.

8.8       Warmfloors shall not be liable to the customer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of Warmfloors’s obligations in relation to the goods, if the delay or failure was due to any cause beyond Warmfloors’s reasonable control.  Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Warmfloors’s reasonable control; Act of God, explosion, flood, tempest, fire or accident,         war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Warmfloors or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.

9.         Insolvency of the customer

9.1       This clause applies if:

9.1.1    the customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

9.1.2    an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the customer; or

9.1.3    the customer ceases, or threatens to cease, to carry on business; or

9.1.4    Warmfloors reasonably apprehends that any of the events mentioned above is about to occur in relation to the customer and notifies the customer accordingly.

9.2       If this clause applies then, without prejudice to any other right or remedy available to Warmfloors, Warmfloors shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the customer, and if the goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

10.       Export terms

10.1     In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the contract is made.  Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.

10.2     Where the goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the customer and Warmfloors) apply notwithstanding any other provision of these Conditions.

10.3     The customer shall be responsible for complying with any legislation or regulations governing the importation of the goods into the country of destination and for the payment of any duties on them.

10.4     Unless otherwise agreed in writing between the customer and Warmfloors, the goods shall be delivered FOB the air or sea port of shipment and Warmfloors shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

10.5     The customer shall be responsible for arranging for testing and inspection of the goods at Warmfloors’s premises before shipment.  Warmfloors shall have no liability for any claim in respect of any defect in the goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

11.       General

11.1     Any notice or other document required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

11.2     No waiver by Warmfloors of any breach of the contract by the customer shall be considered as a waiver of any subsequent breach of the same or any other provision.

11.3     If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

11.4     These Conditions are not intended to confer any rights on any person not party to the contract and for the purposes of the Contracts (Rights of Third Parties) Act 1999 no third party consent shall be required to any termination or variation of this Agreement.

11.5     The contract shall be governed by the laws of England, and the customer agrees to submit to the non-exclusive jurisdiction of the English Courts.