Terms and Conditions
1.1 In these Terms:
“BUSINESS DAY” means a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business.
“CONTRACT” means the contract for the supply of the Goods and/or Services;
“CUSTOMER” means the person who accepts the Supplier’s Written Quotation for the supply of the Goods and/or Services;
“DOCUMENT” includes, in addition to a document in Writing, a map, plan, design, drawing, picture or other image, or any other record of any information in any form;
“FLOOD RISK ASSESSMENT” means a written flood risk assessment provided by the Supplier to the Customer as a Specified Service;
“GOODS” means the goods (if any) to be supplied by the Supplier to the Customer and specified in the Quotation;
“GROUP” means, in relation to a company, that company, its subsidiaries, its holding companies and their subsidiaries;
“INPUT MATERIAL” means any Documents or other materials, and any data or other information provided by the Customer relating to the Services;
“LOCATION” means the location or locations where Goods shall be installed / used and whether such installation shall be carried out by the Customer or by the Supplier and shall include all buildings and structures thereon;
“OUTPUT MATERIAL” means any Documents or other materials, and any data or other information provided by the Supplier relating to the Specified Services;
“QUOTATION” means the Supplier’s Written quotation (together with the attached documents / schedules (if any)) to the Customer for the supply of Goods and/or Services (as the case may be);
“SUPPLY” shall mean in relation to Goods the sale thereof and in relation to Services the provision thereof in each case by the Supplier
“SERVICES” means the services (if any) to be provided by the Supplier for the Customer and specified in the Quotation;
“SUPPLIER” means UK Flood Barriers Northern Ltd (registered in England under number 10621068);
“TERMS” means the standard terms set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Customer and the Supplier;
“WRITING”, and any similar expression, includes post, facsimile transmission, electronic mail and other forms of electronic communication.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
- Basis of the Supply
2.1 The Supplier shall supply the Specified Services to the Customer in accordance with the Supplier’s Written Quotation (or as otherwise agreed between the parties in writing), subject to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such Quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
2.2 No variation to these Terms shall be binding unless agreed in Writing between the authorised representatives of the Customer and the Supplier.
2.3 The Supplier’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Supplier in Writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4 Any advice or recommendation given by the Supplier or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods or as to the provision of the Services which is not confirmed in Writing by the Supplier is followed or acted upon entirely at the Customer’s own risk, and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
- Orders and specifications
3.1 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in Writing by the Supplier’s authorised representative and/or a deposit is received and/or a signed Order Acceptance Form is received; whereupon the Contract shall be deemed to have commenced.
3.2 The Customer shall be responsible to the Supplier for ensuring the accuracy of the terms of any order for Services (including any applicable specification) and at the Customer’s own expense, and for giving the Supplier any necessary information relating to the Services within a sufficient time to enable the Supplier to perform the Contract in accordance with its terms. The Customer shall ensure the accuracy of all Input Material.
3.3 The quantity, quality and description of the recommended Goods, any specification for them and/ or the provision of the Services shall be as set out in the Quotation (or as otherwise agreed between the parties in Writing).
3.4 The Supplier reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to the Supplier’s specification, which do not materially affect their quality or performance.
3.5 If the Customer is a consumer, the contract is subject to your right of cancellation (set out in clause 7).
3.6 If the Customer is a business, no order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in Writing of the Supplier and on terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
- Price of the Services
4.1 The price of the Services (including Goods) shall be the Supplier’s quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Customer, after which time they may be altered by the Supplier without giving notice to the Customer.
4.2 The Supplier reserves the right, by giving written notice to the Customer at any time before delivery of the Goods and provision of the Services, to increase the price thereof to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs), any change in delivery dates, quantities or specifications for Services which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
4.3 The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Supplier.
4.4 In addition to the price, the Customer will be required to pay a delivery charge for any Goods, as detailed in the Quotation (unless the Supplier agrees otherwise in writing).
- Terms of Payment
5.1 Where Services and Goods are to be supplied payment of 60% of the total Quotation (inclusive of the price thereof VAT and delivery charges) is payable on acceptance of the Customer’s order by the Supplier in accordance with clause 3.1. The balance shall be paid prior to the commencement of the Services (unless the Supplier agrees otherwise in writing).
5.2 If the Customer fails to make any payment on the due date then, without limiting any other right or remedy available to the Supplier, the Supplier may:
5.2.1 cancel the contract or suspend the provision of any further supply of Services and Goods to the Customer;
5.2.2 appropriate any payment made by the Customer to such of the Services (or the goods / services supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and
5.2.3 charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above Barclays Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
- Supply of Specified Goods & Services
6.1 Any dates quoted for delivery of the Goods are approximate only and the Supplier shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Supplier in Writing. The Goods may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer.
6.2 The Goods are subject to availability. If the Supplier fails to deliver the Goods for any reason other than any cause beyond the Supplier’s reasonable control or the Customer’s fault, and the Supplier is accordingly liable to the Customer, the Supplier will refund or re-credit the Customer for any amounts that have been paid by the Customer to the Supplier in respect of such Goods. Notwithstanding the foregoing, in these circumstances the Supplier’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.3 If the Customer fails to take delivery of the Goods or fails to give the Supplier 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 the Supplier’s fault) then, without limiting any other right or remedy available to the Supplier, the Supplier may:
6.3.1 if the Customer is a consumer, notify the Customer of an alternative delivery date or place to collect the Goods; or
6.3.2 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.3.3 sell the Goods at the best price reasonably 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
6.4 If the Services are not available for any reason beyond the Supplier’s reasonable control, the Supplier will promptly notify the Customer and endeavour to provide an alternative service which is reasonably acceptable to the Customer. If the Supplier is not able to do so, it will be entitled to cancel the order and refund or re-credit the Customer for any amounts that have been paid by the Customer to the Supplier in respect of such Services.
6.5 The Customer shall at its own expense supply the Supplier with all necessary Documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable the Supplier to provide the Services.
6.6 The Customer shall ensure the accuracy of all Input Material.
6.7 The Customer shall at its own expense retain duplicate copies of Input Material. The Supplier shall have no liability for any loss or damage to the Input Material, however caused.
6.8 All Output Material shall be at the sole risk of the Customer from the time of delivery to or to the order of the Customer.
6.9 If the Customer is a consumer, the Goods and/or Services are supplied only for domestic and private use. The Customer agrees not to use the Goods and/or Services for any commercial purpose. The Supplier shall not be liable for any costs, claims, damages, losses, liabilities or expenses suffered or incurred as a result of use by the Customer of the Goods and/or Services (or any part of them) for any commercial purpose, where the Customer is a consumer.
- Cancellation – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A CONSUMER
7.1 Services: In the case of the provision by the Supplier to the Customer of Services, the Customer has the right to cancel the contract at any time up to the end of fourteen days after the day on which the contract is agreed (see clause 3.1). However if the Customer instructs the Supplier to start work within that fourteen day period, it will not have the right to cancel the contract.
7.2 To exercise its right of cancellation, the Customer must give written notice to the Supplier by hand or post, fax or email, at the address, fax number or email address shown below, in the case of Goods giving details of the Goods ordered and (where appropriate) their delivery. The Supplier will not accept notice by telephone or by use of any other method of service not set out above.
7.3 Once the Customer has notified the Supplier that it is cancelling the contract, the Supplier will refund or re-credit the Customer within 30 days for any sum that has been paid by the Customer or debited from its credit card for the cancelled Goods and/or Services in excess of any costs due to the supplier.
Costs attributed to the cancellation will become payable from the Customer to the Supplier in accordance with the schedule below, and will become immediately due on notification of cancellation by the Customer:
Up to and including day 14 of the cooling off period – Nil
Immediately after the 14 day cooling off period and – 60% of the contract value
up to eight days prior to installation date
Between seven and one day prior to installation date – 80% of the contract value
On or after the date of installation – 100% of the contract value
If the Customer wishes to waive the 14 day cooling off period, they can do so in writing, with 60% of total cost payable on date of notification.
7.4 If the Customer wishes, in any circumstances not covered by the preceding clauses, to change its order, then this may be done on application in writing to the Supplier and provided both parties agree. The Supplier will not accept changes notified to the installer or surveyor. Additional charges may be made for the costs of any changes requested by the Customer.
7.5 Notices of cancellation must be sent to: –
UK Flood Barriers Northern Ltd
Address: Unit 1 9a Wassage Way, Hampton Lovett Industrial Estate, Droitwich, Worcestershire WR9 0NX
Fax: 0191 516 6005
7.6 Goods must be returned to UK Flood Barriers Northern, Unit 1 9a Wassage Way, Hampton Lovett Industrial Estate, Droitwich, WR9 0NX
- Risk and Property
8.1 Risk of damage to or loss of the Goods shall pass to the Customer:
8.1.1 in the case of Goods to be delivered at the Supplier’s premises, at the time when the Supplier notifies the Customer that the Goods are available for collection; or
8.1.2 in the case of Goods to be delivered otherwise than at the Supplier’s premises, at the time of delivery or, if the Customer fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Supplier to the Customer for which payment is then due.
8.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Supplier’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 the Supplier’s property, but the Customer may resell or use the Goods in the ordinary course of its business.
8.4 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), the Supplier may at any time require the Customer to deliver up the Goods to the Supplier and, if the Customer fails to do so forthwith, enter on any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
8.5 The Customer shall not be entitled to pledge, create a lien over or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier, but if the Customer does so (or purports to do so) all moneys owing by the Customer to the Supplier shall (without limiting any other right or remedy of the Supplier) forthwith become due and payable.
- Rights in Input Material and Output Material
9.1 The property and any copyright or other intellectual property rights in: \
9.1.1 any Input Material shall belong to the Customer
9.1.2 any Output Material shall, unless otherwise agreed in Writing between the Customer and the Supplier, belong to the Supplier, subject only to the right of the Customer to use the Output Material for the purposes of utilising the Services.
9.2 The Customer warrants that any Input Material and its use by the Supplier for the purpose of providing the Services will not infringe the copyright or other rights of any third party, and the Customer shall indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement.
9.3 Subject to clause 9.2, the Supplier warrants that any Output Material and its use by the Customer for the purposes of utilising the Services will not infringe the intellectual property rights of any third party, and the Supplier shall indemnify the Customer against any loss, damages, costs, expenses or other claims arising from any such infringement.
- Warranties and Liability
10.1 Subject to the following provisions the Supplier warrants that Goods and/or Services will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 24 months (exclusions apply) from the date of their installation.
10.1.1 In the case of Flood Defender Doors, to maintain the 2 year warranty on locking mechanisms & gaskets, the door must be serviced 12 months after installation at the occupants/owners expense by a qualified & certified installer.
10.1.2 Sump & Pump system comes with a 12 month parts & labour warranty.
10.2 The above warranty is given by the Supplier subject to the following conditions:
10.2.1 The Supplier shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Supplier’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Supplier’s approval, failure to store the Goods properly, failure to deploy and / or incorrect deployment of the Goods;
10.2.2 The Supplier shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods and / or any Services has not been paid by the due date for payment;
10.2.3 The above warranty does not extend to parts, materials or equipment not manufactured by the Supplier, 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 Supplier and which is capable of being assigned by the by the Supplier to the Customer.
10.3 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Quotation and at the intervals and within the times referred to in the Quotation (or as otherwise agreed between the parties in writing).
10.4 Subject as expressly provided in these Terms, and except where the Goods / Services are provided 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.
10.5 Where the Goods / Services are provided under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Terms.
10.6 A 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 the Supplier within seven days from the date of delivery. Following such notification the Customer shall at its own expense return such Goods to the Supplier for examination. If upon examination the Goods shall be defective or shall fail to correspond with specification then the Supplier shall (in addition to the other provisions of these Terms) refund the reasonable costs of such carriage to the Customer. If delivery is not refused, and the Customer does not notify the Supplier accordingly, the Customer shall not be entitled to reject the Goods and the Supplier 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.
10.7 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Supplier in accordance with these Terms, the Supplier may replace the Goods (or the part in question) free of charge or, at the Supplier’s sole discretion, refund to the Customer the price of the Goods (or a proportionate part of the price), in which case the Supplier shall have no further liability to the Customer.
10.8 The Supplier shall have no liability to the Customer whether under the warranties contained at clauses 10.1 or 10.3 or otherwise for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Customer.
10.9 It shall be the responsibility of the Customer at all times to ensure that the Goods shall be properly used, maintained and repaired at all times in such a way that the use by the Customer of the Goods shall not cause any damage or loss to the Location. The Supplier shall be under no liability to the Customer for any loss or consequential loss arising from the Customer’s failure to comply with this provision.
10.10 Except in respect of: (i) death or personal injury caused by the Supplier’s negligence; (ii) liability for defective products under Section 2 of the Consumer Protection Act 1987; (iii) breach of the terms implied by Section 2 of the Supply of Goods and Services Act 1982; or (iv) breach of the terms implied by Section 12 of the Sale of Goods Act 1979, and except as otherwise set out in these Terms, the Supplier 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, or (in particular but without limiting the severability of this clause) in respect of any damage or loss caused by overwhelming / overtopping flooding, impact damage, third party intervention (e.g. vandalism), for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Supplier, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods / Services (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use by the Customer, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the price of the Goods / Services, except as expressly provided in these Terms.
10.11 The Supplier 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 the Supplier’s obligations in relation to the Goods / Services, if the delay or failure was due to any cause beyond the Supplier’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Supplier’s reasonable control:
10.11.1 Act of God, explosion, tempest, fire or accident;
10.11.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
10.11.3 acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
10.11.4 import or export regulations or embargoes;
10.11.5 strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Supplier or of a third party);
10.11.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
10.11.7 power failure or breakdown in machinery.
10.12 It is the Customer’s responsibility to ensure that the structures, buildings and the like which are protected by the installation of the Goods are strong enough to withstand flood damage. If this is not done, the Supplier shall not be liable for any resulting loss or damage including (without limitation) flood pressure / structural damage to contiguous walls / buildings.
11.1 The copyright, design right and all other intellectual property rights in any materials and other documents or items prepared or produced for the Customer by or on behalf of the Supplier in connection with the contract shall belong to the Supplier absolutely and any such materials, documents or items shall be or remain the sole property of the Supplier.
11.2 The Customer shall be entitled to use any such materials, documents or other items as are referred to in clause 11.1 in connection with the Services but shall not be entitled to copy any such items or, if the Customer is a consumer, use them for any commercial purpose.
12.1 In the event that:
12.1.1 the Customer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Customer (within the meaning of the Insolvency Act 1986); or
12.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
12.1.3 the Customer ceases, or threatens to cease, to carry on business; or
12.1.4 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly; or
12.1.5 the Customer commits a breach of any material term of the Contract which is not capable of remedy or, if capable of remedy, is not remedied within 14 days of the Supplier notifying the Customer in writing of such breach, then, without limiting any other right or remedy available to the Supplier, the Supplier may immediately cancel the Contract or suspend any further supply of Goods / Services under the Contract without any liability to the Customer, and if the Goods / Services have been supplied but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13 Consequences of Termination
13.1 On termination of the Contract for any reason:
13.1.1 the Customer shall return all of the Supplier’s materials which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
13.1.2 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
13.1.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14.1 Neither party shall, without the prior written consent of the other (such consent not to be unreasonably withheld, conditioned or delayed), assign, transfer, mortgage, charge, declare a trust of or deal in any other manner with the Contract or any of its rights and obligations under or arising out of the Contract (or any document referred to in it), or purport to do any of the same, or sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party or agent. However, each party shall be free to deal in such a manner with other companies in its Group without requiring the prior written consent of the other party.
14.2 A notice required or permitted to be given by either party to the other under these Terms 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.
14.3 Any notice shall be deemed to have been duly received:
14.3.1 if delivered personally, when left at the address referred to in this clause; or
14.3.2 if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or
14.3.3 if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
14.3.4 if sent by fax or e-mail, on the next Business Day after transmission.
14.4 The provisions of clauses 14.2 and 14.3 shall not apply to the service of any proceedings or other documents in any legal action.
14.5 The Supplier will take all reasonable precautions to keep the details of the Customer’s order and payment secure, but unless the Supplier is negligent, the Supplier will not be liable for unauthorised access to information supplied by the Customer.
14.6 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.
14.7 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.8 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.9 The Contract shall be governed by the laws of England, and the Customer agrees to submit to the exclusive jurisdiction of the English courts.
14.10 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.11 A person who is not a party to the Contract shall not have any rights under or in connection with it.