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© 2016 by Houdini Marine Windows

Based in Southminster, Essex, UK

HOUDINI MARINE WINDOWS LIMITED

TERMS AND CONDITIONS OF SALE

1. General

a. In these terms “Company” means Houdini Marine Windows Limited.

b. “The Customer” means the person contracting with the Company for the supply of goods and/or services by the Company.

c. “Goods” means such goods, articles, equipment and/or services to which an order by a customer relates.

d. “Intellectual Property Rights” means any and all patents, trade marks, trade names, service marks, copyright, moral rights, rights in design, rights in databases, know-how, confidential information relating to the goods (or to the manufacturing process associated with producing the goods) and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating thereto.

e. All orders are accepted only upon and subject to the following terms and conditions.

f. These terms and conditions shall govern the contract between the Company and the Customer and shall prevail over any other terms and conditions to the exclusion of all other terms and conditions (including any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order or similar documents) and shall apply unless varied by express agreement accepted in writing by an officer of the Company duly authorised for that purpose.

g. No terms or conditions endorsed upon, delivered with or contained in the Customer’s purchase order, specification or similar document will form part of this Contract simply as a result of such documents being referred to in this Contract.

h. Subject to clause 13, no order may be cancelled by the Customer except with the written agreement of the Company and on the terms that the Customer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses suffered or incurred by the Company as  a result of such cancellation.

2.  Quotations

a. Quotations by the Company shall be open for acceptance by the Customer for a period of 90 days from the date of quotation or such other period specified in the Quotation (“Quotation Period”).  The Company shall use reasonable endeavours to maintain quoted prices during the Quotation Period, but reserves the right during the Quotation Period to increase the quoted prices as a result of:  (i) increases in the costs of raw materials, labour costs, fuel, power and similar costs; (ii) as a result of amendments to the specification of the goods at the request of the Customer and; (iii) the imposition or change by any regulatory body of any relevant regulation relating to the Products.  Where the Company increases the quoted price during the Quotation Period, it will, at the request of the Customer, issue a new quotation.  From the date of such new quotation, a new Quotation Period commences.

b. On expiry of the Quotation Period, the quotation shall no longer be open to acceptance at the price set out in the quotation.  The Company will, at the request of the Customer, issue a new quotation.  From the date of such a new quotation, a new Quotation Period commences.

c. The Customer must ensure that the terms of the quotation and any applicable specification are complete and accurate.

d. When the Company receives an order from the Customer for the goods as set out in the quotation, a contract for the purchase of the goods by the Customer on these terms and conditions will be formed.

e. Quotations do not include VAT.  The Customer will be required to pay, in addition, any VAT payable on the price set out in the quotation.

f. Where no quotation is made for the goods, acceptance of delivery of the goods shall be deemed to be conclusive evidence of the formation of a contract for the purchase of the goods between the Company and the Customer on these terms and conditions, and the price for the goods shall be the price set out in the Company’s published price list current at the date of delivery.

3.  Payment

a. The Company may invoice the Customer at any time after the order has been made by the Customer.

b. Time for payment shall be of the essence of this Contract.

c. Where credit facilities have been approved by the Company, payment for orders must be made in full by not later than the end of the month following the month of invoice, unless otherwise required by the Company.  In all other cases goods will not be released until the Company has received cleared funds for the full sum owing.

d. Without prejudice to any other rights of the Company if the Customer delays in making payment  beyond the date referred to above or as otherwise required by the Company the Company may require the Customer to pay interest on the total amount of the invoice or balance unpaid at the annual rate of 4% above the base rate of National Westminster Bank from time to time from the date of the invoice to the actual date of payment.

e. Any discounts offered by the Company shall be strictly subject to such special conditions as the Company may attach e.g. as to prompt payment.

f. The Company shall be entitled to suspend deliveries to the Customer where the Company’s payment terms are not observed.

g. Queries about invoices must be notified to the Company in writing within 14 days of the date of invoice.

h. No payment shall be deemed to have been received until the company has received cleared funds.

i. All payments payable to the Company under this Contract shall become due immediately upon termination of this Contract despite any other provision.

j. The Customer shall make all payments due under this Contract without any deduction whether by way of set-off, counterclaim or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the company to the Customer.

4.  Delivery and Risk

a. Unless otherwise agreed in writing between the parties, delivery of the goods shall be made at the Company’s premises prior to loading of the goods onto transportation.  The Company’s premises shall be as notified by the Company to the Customer.

b. Any dates specified by the Company for delivery of the goods are approximate only and may not be made of the essence by notice.  If no dates are specified, delivery will be within a reasonable time.

c. For the purpose of notification to the Company under this clause time is of the essence and ‘business days’ shall exclude only Sundays and Bank Holidays.

d. Unless agreed otherwise in writing between the parties, risk in the goods shall pass to the Customer immediately upon delivery to the customer.

e.

  1. The Company shall not be liable for any non-delivery of goods (even if caused by the Company’s negligence) unless written notice is given to the carrier and the Company within three business days of the date when the goods would in the ordinary course of events have been received.

  2. Damaged goods must be retained together with their packing for inspection by the Company or its agents at the point of receipt unless otherwise agreed.

  3. If goods are unexamined at the time of delivery, the Customer must endorse the delivery note accordingly and examine the goods within a reasonable period.  Reasonable period shall mean the period set out in clause 6(b)(i) 1 and 2.  Any loss or damage must be notified to the Company within that time by telephone fax or electronic mail and, unless by fax, must be confirmed in writing within 3 business days of such telephone call or electronic mail.

  4. The Company will not accept responsibility for damaged goods if:

(i) the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the goods or (if there are none) good trade practice; or

(ii) the Customer alters or repairs such goods without the written consent of the Company; or

(iii) the defect in such goods arises from any design defect in any drawing, design or specification supplied or approved by the Customer.

f. Subject to the other provisions of these terms and conditions the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods (even if caused by the Company’s negligence) nor unless such delay exceeds 180 days will any delay entitle the Customer to terminate or rescind the Contract.

g. The Company reserves the right to deliver goods in instalments.  In the even of the Company agreeing a delivery schedule with the Customer for the bulk delivery of goods any variation of such periodical deliveries will only be accepted by the Company if the Customer gives one month’s prior notice in writing.  The Company reserves the right to pass on to the Customer any resulting liabilities, loss or costs incurred including, without any limitation, any cancellation fee imposed by the manufacturers of any goods.

h. If the Customer fails to take delivery of any of the goods when they are ready for delivery or to provide any instructions, documents, licences or authorisations required to enable the goods to be delivered on time (except because of the Company’s fault) the goods will be deemed to have been delivered and (without prejudice to its other rights) the Company may:

  1. store or arrange for the storage of the goods until actual delivery or sale and charge the Customer for all related costs and expenses (including, without limitation, storage and insurance); and/or

  2. following written notice to the Customer, sell any of the goods at the best price reasonably obtainable in the circumstances and charge the Customer for any shortfall below the price under the Contract.

i. The quantity of any consignment of goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.

 

5.  Termination

a. The Contract will terminate immediately upon the happening of any one or more of the following events:  the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors; or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or  enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation; or has a receiver, manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer.

b. The Contract will terminate immediately upon service of written notice of termination by the Company on the Customer on the happening of any one or more of the following:  the Customer suffers or allows any execution whether legal or equitable to be levied on his/its property or obtained against him/it; or fails to observe or perform any of his/its obligations or duties under the Contract or any other contract between the Company and the Customer or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade.

c. The Company’s right contained in clause 4 (but not the Customer’s rights) shall continue beyond the discharge of the Customer’s and the Company’s primary obligations under the Contract subsequent upon its termination.

d. The termination of the Contract howsoever arising shall be without prejudice to the rights and duties of either the Customer or the Company accrued prior to termination.

6.  Quality

a. The Company warrants that (subject to the other provisions of these terms and conditions) upon delivery, and for a period of 12 months from the date of delivery, the goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994.

b. The Company shall not be liable for a breach of the warranty in clause 6 unless:

  1. the Customer gives written notice of the defect to the Company and, if the defect is as a result of damage  in transit, to the carrier within 7 days of:

(i) the date of delivery (where the defect would be apparent to the Customer upon a reasonable inspection); or

(ii) the date when the Customer knew or ought reasonably to have known of the defect (where the defect would not be apparent to the Customer upon a reasonable inspection); and

(iii) The Company is given a reasonable opportunity after receiving the notice of examining such goods and the Customer (if asked to do so by the Company) returns such goods to the Company’s place of business at the Customer’s cost for the examination to take place there.

c. The Company shall not be liable for a breach of warranty in clause 6a if any of the circumstances set out in 4e (iv) occur.

d. If the Customer makes a valid claim against the Company based on a defect in the quality  of the goods, the Company shall at its option repair or replace such goods (or the defective part) or refund the price of such goods at the pro-rata Contract rate provided that, if the Company so requests, the Customer shall, at the Customer’s expense, return the goods or the part of such goods which is defective to the Company.

e. If Company complies with clause 6d it shall have no further liability for a breach of the warranty in clause 6a in respect of the quality of such goods.

f. Any goods replaced will be belong to the Company and any repaired or replacement goods will be guaranteed on these terms and conditions for the period of 12 months from the date of repair or replacement.

7.  Title

a. All goods supplied by the company shall remain the sole and absolute property of the Company as legal and equitable owner until such time as the Customer shall have paid to the Company the agreed price in full and any other sums due from the Customer to the Company.

b. Until such time as the Customer becomes the owner of the goods he will keep the goods insured with a reputable insurance Company to their full replacement value against loss or damage howsoever occasioned and the Company shall have a first claim on the proceeds payable under such policy and on request the Customer shall produce the policy of insurance to the Company.

c. The Customer acknowledges that he is in possession of the goods solely as fiduciary for the Company until the agreed price is paid in full and that the entire proceeds of sale of any goods for which the Customer has not paid the Company and of any product into which those goods have been incorporated are held in trust for the Company and shall not be mingled with other monies or paid into any overdrawn bank account and shall be at all times identifiable as the Company’s monies and such goods shall be maintained by the Customer in a satisfactory condition and shall not be destroyed or defaced, nor shall any identifying mark or packaging be obscured.

d. The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.

8.  Specification

a. The specification of the goods shall be set out in the Company’s quotation.  Any variations to the specification shall be agreed between the parties in writing.

b. Unless the Company expressly otherwise agrees in writing all specifications, photographs, descriptions, illustrations and advertising matter published by or on behalf of the Company (together referred to as ‘specifications’) are to convey a general impression only of the goods offered and shall not constitute a contract for the sale by description of the goods nor form part of any contract between the Company and Customer nor amount to any representation with respect to the extent of specific compliance by the goods with such specifications.

c. In so far as specifications relate to goods not manufactured by the Company they are based on information supplied by the manufacturer of such goods for which the Company accepts no liability whatever.

d. In so far as goods are manufactured in accordance with specifications supplied to the Company by the Customer, or by a manufacturer of the article to which the goods are to be fitted the Company, with the exception of any liability for death or personal injury arising from its negligence or fraudulent misrepresentation, accepts no liability whatever for any loss or damage however arising as a consequence of:

  1. any error, admission or mistake in the said specification and/or

  2. any failure by a manufacturer to provide a specification which properly accords with the wishes of the Customer.

e. The Company reserves the right to make any change without notice in the specifications of goods to be supplied so long as the functional performance of the goods remains materially unimpaired.

f. The Company reserves the right to make any change in the specifications of goods necessary to comply with any statutory, legal or government requirement.

9.  Product Performance

Data published or communicated by the Company relating to performance is either based on experience obtained during tests or on data supplied by any manufacturer and shall not be incorporated as a term of any contract between the Company and Customer nor amount to any representation unless a specified performance has at the Customer’s request been guaranteed by the Company in writing.

10.  Force Majeure

Notwithstanding any other provision hereof the Company is under no obligation or liability in respect of failure to perform, or delay in performance of, any of its obligations under any contract between the Company and Customer where such delay or failure is caused by reasons beyond the Company’s reasonable control, including without prejudice to the generality of the above, where caused directly or indirectly by reason of war, strikes, lock-outs or other labour disputes, adverse weather conditions, breakdowns, delays in transport, accidents, delays in obtaining materials, governmental prohibition or restrictions.

11.  Liability – The  Buyer's Attention is in Particular Drawn to the Provisions of Conditions 11h & 11j

a. Nothing in these terms and conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.

b. Except as herein expressly provided any express or implied condition, statement, representation or warranty, statutory or otherwise, relating to any goods or services supplied by the Company is hereby expressly excluded as also is any liability in negligence or otherwise arising in contract or tort.

c. If any defect in any goods manufactured or assembled by the Company appears within 12 months of the date of delivery then unless otherwise agreed in writing the Company shall at its option (and without being bound to do so) replace the goods or supply new parts or repair the defect subject to the Company being satisfied that the goods have been adequately maintained and used in the correct manner and that the defect arises from faulty materials or workmanship.  In such circumstances the new or repaired goods will be returned to the Customer free of charge, save that the Customer  will be responsible for the costs of removing, returning and of refitting any faulty goods.

d. The Company endeavours to ensure that all glass forming part of the goods is able to withstand long and sustained use.  However the Customer should note that glass is fragile and may be liable to unforeseeable breakage.  The Company will not be liable for any such breakage or any loss or damage caused by such breakage.

e. Samples of glass and products are provided as an indication only; in particular the colour of glass may differ and vary from one batch to another.

f. The Company will not be responsible for any fault whensoever arising when due to the use of any proprietary or any other unsuitable cleaners or chemical treatments.

g. In the case of goods not manufactured or assembled by the Company, the Company’s liability, if any, shall be limited to such benefits as the Company may receive under the manufacturer’s guarantee (if any) and the terms and conditions under which the goods were supplied to the Company.

h. Subject to clause 11a the Company shall not be liable to the Customer by reason of any representation or any implied warranty, condition or other term or any duty at law or under the express terms of the Contract for any direct loss of profit or any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (whether or not caused by negligence of the Company, its employees, agents or sub contractors) which arise out of or in connection with the Contract.

i. In no event shall the Company be liable for any loss or damage arising out of or in connection with goods which have been modified or altered by any party other than the Company.

j. Subject to the above provisions of this clause 11 the Company’s total liability in contract, tort (including negligence or breach) of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price.

12.  Indemnity

The Customer shall indemnify the Company against all liability, actions, proceedings, costs, claims, damages or demands in any way connected with this Contract brought or threatened to be brought against the Company by any third party except to the extent the Company is liable to the Customer in accordance with these terms and conditions.

13.  Cancellation or Amendment

Although orders are accepted on condition that no cancellation or amendment shall be made, the Company may agree to orders being cancelled or amended provided that the Company may insist that the Customer pays for all expenses incurred by the Company prior to cancellation and indemnifies the Company against any loss or other liabilities arising.

14.  Intellectual Property

The Intellectual Property Rights shall vest in and be held by the Company and for the avoidance of doubt all Intellectual Property Rights arising from services, works, concepts and/or ideas provided by or commissioned by the Customer relating directly or indirectly to the goods belonging to the Company.

15.  Miscellaneous

a. Where natural materials are used, every effort will be made for the matching of these materials but no responsibility can be accepted for flaws and inconsistencies inherent in the material.

b. Testing and inspection, if specified by the Customer or his agent, shall be at a place nominated by the Company, and shall be conducted there.  All costs and fees incurred in connection with testing and inspection are to be chargeable to the Customer.

c. Whilst every care will be taken when handling or working upon Customer’s own materials the Company cannot accept liability for any damage which may occur.

d. If new and improved products are produced by the Company, it will not replace products previously supplied to the Customers, unless otherwise agreed in writing.

e. Tooling charged to the Customer remains the property of the Company.

f. Jigs, moulds and fixtures supplied by the Customer to enable the manufacture of any item shall be retained by the Company for future reference or use for a minimum period of one year following production/delivery, after which the Customer may request their return or they may be scrapped/destroyed by the Company at its discretion unless otherwise agreed in writing.

g. Each right or remedy of the Company under this Contract is without prejudice to any other right or remedy of the Company whether under this Contract or not.

h. Any provision of this Contract which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and other provisions of this Contract and the remainder of such provision shall not be affected.

i. Failure by the Company to enforce or partially enforce any provision of this Contract will not be construed as a waiver of any of its rights under this Contract.

j. The Company may assign, license or sub-contract all or any part of its rights or obligations under this Contract without the Customer’s consent.

k. This Contract is personal to the Customer who may not assign, license or sub-contract all or any of its rights or obligations under this contract without the Company’s prior written consent.

l. The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.

16.  Applicable Law

The Contract shall in all respects be construed and operate as a contract made England and shall be subject to English law and to the non-exclusive jurisdiction of the English Courts.