1. These General Conditions shall, to the exclusion of all other terms and conditions (including those which the Customer purports to apply under any other documentation), apply to any contract between the parties for the provision of Goods and Services by the Supplier, such contract to be created upon the acceptance by the Supplier of an Order from the Customer. Any modifications of or deviations from these General Conditions must be agreed in writing on the Order. Where any of these conditions are inconsistent with the term of any Order, the Order shall prevail.
2. The term “Supplier” shall refer to Cosy Insulation; the term “Customer” shall refer to the customer placing an Order; the term “Goods” shall refer to the tiles and other materials used by the Supplier in connection with the Services as more particularly described in the Order; the term “Services” shall refer to the services to be provided by the Supplier, including, without limitation, the installation and fitting of the Goods; the term “Order” shall refer to the Customer’s order for the Goods and Services based on a quotation provided by the Supplier in accordance with Condition 3; the term “Contract” shall refer to the contract between the Supplier and the Customer after the Supplier accepts an Order; and the term “in writing” shall include fax and electronic mail.
QUOTATIONS AND DESCRIPTIONS
3. Any quotation for Goods and Services is given on the basis that a binding contract shall only come into existence in accordance with Condition 1. Any quotation for Goods and Services shall be valid for a period of 30 calendar days from its date of issue, unless the Supplier notifies the Customer in writing that the quotation has been withdrawn during this period.
4. Any samples, drawings, descriptions or advertising issued by the Supplier, and any descriptions or illustrations contained in its catalogues or brochures, are issued or published solely to provide the Customer with an approximate idea of the Goods and Services they describe. They do not form part of the Contract between the parties or any other contract between the parties for the supply of Goods and Services.
QUALITY OF GOODS AND SERVICES
5. The Supplier warrants that at the date of installation and for a period of 5 years thereafter (the “Warranty Period”), the Goods shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Supplier.
6. Subject to Condition 7, if:
(a) the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Condition 5; and
(b) the Supplier is given a reasonable opportunity of examining such Goods,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
7. The Supplier shall not be liable for the Goods’ failure to comply with the warranty in Condition 5 if a defect arises due to wilful damage, failure to follow instructions (in respect of care of the Goods or otherwise), misuse, alteration or unauthorised repair, improper maintenance or negligence on the part of the Customer or a third party or if the Customer has failed to pay for the Goods in accordance with Conditions 20 to 24.
8. Except as provided above, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Condition 5.
9. At the end of the Warranty Period, any recourse to the Customer for defects arising in respect of the Goods shall be against the manufacturer of the Goods and subject to the terms of the manufacturer’s guarantee (as appended to these General Conditions).
10. These General Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under Condition 6 save that the Warranty Period shall be limited to the time remaining under the same had the Goods not been repaired or replaced.
11. The Supplier reserves the right to alter the Goods or use substitute goods of an equal or better quality if required by any applicable statutory or regulatory requirements.
12. The Supplier warrants that it will provide the Services using reasonable care and skill.
13. The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) pay the Deposit in accordance with Condition 21;
(c) co-operate with the Supplier in all matters relating to the Services;
(d) provide the Supplier, its employees and subcontractors, with access to the Customer’s premises and facilities as reasonably required by the Supplier to provide the Services;
(e) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(f) provide the Supplier with true and accurate replies in response to any questions about the condition of the Customer’s premises prior to commencement of the Services;
(g) prepare the Customer’s premises for the supply of the Services;
(h) take all reasonable steps to ensure that the Supplier does not sustain any damage or loss to any materials, equipment or other property of the Supplier which is stored on the Customer’s premises; and
(i) obtain building control approval (and any other local authority consents that are required in connection with the Services) prior to commencement of the Services by the Supplier (please note that failure to comply with this obligation is entirely at the Customer’s own risk and the Supplier accepts no liability for anything that arises as a result of the Supplier acting on the Customer’s instructions to proceed with the Services notwithstanding that building control approval (or other local authority consent) has not been obtained).
14. If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations; and
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Condition 14; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
TIME FOR PROVISION OF GOODS AND SERVICES
15. The Services shall be provided on the date set out in the Order or such other time as may be agreed between the parties. Any date provided shall be an estimate only and under no circumstances shall time be made of the essence for the Contract.
16. If either party anticipates that the agreed date for provision of the Services is no longer suitable/possible, it shall forthwith notify the other party in writing, stating the reason, and, if possible, an alternative date.
17. If the Customer provides notice to the Supplier in accordance with Condition 16, the Supplier may by notice in writing require the Customer to permit the Supplier to provide the Services within a final reasonable period. If the Customer fails to permit the Supplier to provide the Services within such period, the Supplier may deem the Order to be cancelled by the Customer and shall be entitled, following notice in writing to the Customer stating that the Contract has been terminated, to compensation for the loss it has suffered by reason of the Customer’s cancellation of the Order in accordance with Condition 18 and to retain the Deposit in accordance with Condition 19.
AMENDMENT OR CANCELLATION OF ORDER
18. The Customer may, within 14 calendar days of placing an Order, amend or cancel an Order by providing the Supplier with written notice. If the Customer amends or cancels an Order, its liability to the Supplier shall be limited to a payment to the Supplier of all costs that the Supplier reasonably incurs in fulfilling the Order prior to receipt of the Customer’s amendment or cancellation. However, where the amendment or cancellation is due to the Supplier’s failure to comply with these General Conditions, the Customer shall have no liability to the Supplier for it.
19. The Deposit paid to the Supplier in accordance with Condition 21 will be non-refundable, unless otherwise agreed in writing by the Supplier.
20. The Contract price shall be paid as per the agreed payment terms stated in the Order. Except where otherwise indicated, the price shall be exclusive of any applicable VAT or other taxes. Payments shall be made immediately on receipt of an invoice from the Supplier.
21. A deposit of £500 (the “Deposit”) shall be payable immediately upon entering the Contract. The remainder of the Contract price (the “Completion Sum”) shall be payable on the date upon which the Supplier finishes providing the Services.
22. If payment is made other than in cash in respect of either the Deposit or the Completion Sum, payment shall not be deemed to have been effected before the Supplier’s account has been fully credited.
23. If the Customer does not make any of the payments due to the Supplier on the due date for payment (as set out in Condition 21), the Supplier shall be entitled to charge the Customer interest on the overdue amount at the rate of 4% a year above the base lending rate of Bank of Ireland from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest to the Supplier together with the overdue amount.
24. The Supplier reserves the right to increase the Contract price, by giving notice to the Customer at any time before commencing the Services, to reflect any increase in the cost of the Goods to the Supplier that is due to any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs) or to cover any additional work required to complete the Services that was not anticipated when the Order was accepted.
25. In the event that the Supplier is called to the Customer’s premises otherwise than to repair or replace the Goods in accordance with Condition 6 (subject to Condition 7) or to repair damage to the Customer’s premises caused as a result of the Supplier’s negligence in performance of the Services (subject to Condition 29), the Supplier shall be entitled to charge the Customer using its standard hourly rates for the call out and any work undertaken.
TITLE AND RISK
26. Risk in the Goods shall pass to the Customer on completion of the performance of the Services.
27. Notwithstanding the performance of the Services, neither legal title nor beneficial ownership of any of the Goods shall pass to the Customer until the Supplier has been paid in full for the Order. Until such times as title passes to the Customer, the Supplier shall be permitted onto the Customer’s premises to repossess the Goods.
LIMITATION OF LIABILITY
28. Subject to Condition 30, the entire liability of the Supplier under or in connection with any defects shall not exceed that part of the purchase price which has been paid for the Goods and Services.
29. Subject to Condition 30, the Supplier shall not be liable for any loss of production, loss of profit, loss of use, loss of contracts or for any other consequential or indirect loss whatsoever, nor shall the Supplier be liable for any damage to the Customer’s premises arising out of or in connection with the provision of the Services which occurs as a result of any pre-existing damage to the premises and which was not revealed to the Supplier by the Customer prior to commencement of the Services, contrary to Condition 13(f).
30. Nothing in these General Conditions shall have the effect of excluding or limiting liability for death or personal injury caused by the Supplier’s negligence or for any other liability that cannot be limited by law.
31. The Supplier shall be entitled to terminate the Contract immediately in the event that the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 103 or 242 of the Insolvency (Northern Ireland) Order 1989. In the event of such termination or suspension, the Supplier shall have no further liability to the Customer and where the Services and Goods have been provided to the Customer but not paid for the outstanding sums shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
32. The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. A Force Majeure Event for the purposes of this Condition 32 includes industrial disputes and any other circumstance beyond the control of the parties such as fire, war, extensive military mobilization, insurrection, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by sub-contractors.
33. No waiver by the Supplier 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.
34. If any provision of these General 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 General Conditions and the remainder of the provision in question shall not be affected.
35. The Contract shall be governed by the laws of Northern Ireland.