ODC Door & Glass Systems Ltd
Wintergarden (Conservatory) Terms and Conditions of Supply and Installation
These terms apply to our supply to you. Read them before signing the contract.
“Contract” – the page the Customer signs incorporating these conditions.
“Customer” – the customer named in the Contract.
ODC Door & Glass Systems Ltd of 97 Bollo Lane London W3 8QN.
“Goods” – the goods to be supplied by the Company and identified in the Contract being Wintergardens or conservatories, folding sliding doors, verandas, glass rooms, atriums, balcony systems and other associated products. Other goods such as internal and external doors and ironmongery not forming part of a Wintergarden contract are supplied under our standard Terms and Conditions for such goods.
“Works” – the works (if any) identified in the Contract being any or a combination of the following:
(a) Obtaining planning permission and building approval where required;
(b) Of selection of Goods:
(c) Full build of Goods:
(d) Installation of Goods.
These Conditions shall govern the Customer’s order for any Goods and/or Works. Acceptance by the Company of the Customer’s order is conditional upon acceptance by the Customer of these Conditions which shall prevail over any terms and conditions of the Customer (apart from alterations to or departures from these Conditions specifically agreed by the Company in writing).
2. TENDERS. QUOTATIONS, CONCLUSIONS OF CONTRACTS
(a) All tenders/quotations issued by the Company shall be valid for a period of 30 days from the date thereof or such longer period as may be agreed between the parties in writing.
(b) Apart from as provided below no Contract shall be concluded between the Company and the Customer until the Company shall have issued to the Customer its formal acceptance order AND any deposit required by these Conditions has been received by the Company. Any Contract entered into by the parties for Goods or Works is conditional upon the Company completing a site survey of the Customer’s premises. Upon completion of such survey, in the event that it reveals matters which will involve an increase to the Contract price, and such matters were not reasonably evident to the Company at the time the Contract was entered into the Company may alter the design for the Goods and/or Works and the price to be paid by the Customer accordingly. In the event that the Customer is not satisfied with the altered design and/or price, the Customer may cancel the Contract without penalty. The Customer must make the Company aware of all matters affecting premises including but not limited to hidden drains, cellars, underpinning, piling, soakaways etc. The Company shall not be liable for any Additional Works which may be required as a result of such matters once Works have commenced. Any issues shall be noted and sent to the Customer in writing.
(c) Prices for Works included in any tender/quotation are based upon uninterrupted access at all reasonable times and upon reasonable notice to the Customer’s premises until completion of work.
(d) The Company reserves the right to alter the specification for the Goods/Works to an equal or higher standard without notice.
The Company will use its reasonable endeavours to deliver the Goods and, where appropriate, to complete all Works at the rate and within the time estimated in its acceptance of order form or (if none) within a reasonable time but the Company shall not be liable for any failure due to circumstances beyond its reasonable control (as identified as force majeure below). In such circumstances the Company will deliver the Goods and/or complete the Works as soon as possible and time is not of the essence of the Contract.
4. CUSTOMER’S OBLIGATIONS
(a) The Customer must notify the Company in writing if the premises are or form part of a listed building or are in a conservation area or are otherwise subject to any form of restriction or right which may have an impact on the fulfilment of any of the Company’s obligations arising out of the Contract and/or the warranties referred to in Condition 10.
(b) Save to the extent that the Company has accepted to take responsibility for such matters as part of the Works to be carried by the Company, the Customer must apply for and obtain any necessary planning, building regulation or other statutory, legal or other permission or consent required by law or otherwise so that the Company is able to fulfil its obligations under the Contract. Where practical, the Company may require the Customer to be responsible for moving manhole covers and the provision of piling.
(c) The Customer must notify its insurers of the Works and ensure that the Works together with the Goods delivered are adequately covered by the Customer’s insurance from delivery of the Goods.
(d) In the absence of any notice to the contrary, the Company shall be entitled to assume all necessary steps have been taken by the Customer to enable the Company to deliver the Goods and carry out the Works and the Customer agrees to reimburse the Company for any losses or expenses that the Company may incur as a result of the Customer’s failure to carry out its obligations set out in this Condition 4.
5. MATERIALS & OWNERSHIP
(a) Property of the Goods, whether fixed or unfixed, shall not pass to the Customer until the full Contract price of the Goods and all sums from time to time owing by the Customer in respect of the Goods (but excluding any charges levied for the Works) to the Company (whether under this or any other Contract) shall have been paid in full; such Goods are referred to as the “retained Goods”. Until payment of all such sums the Customer shall hold the retained Goods in a fiduciary capacity for and on behalf of the Company.
(b) Until such time as the property in the retained Goods passes to the Customer the Company shall be entitled at any time to require the Customer to deliver up the retained Goods and the Company shall be entitled to enter the Customer’s premises to retrieve such Goods.
(c) The repossession of retained Goods by the Company in accordance with this Condition shall be without prejudice to all or any of the Company’s other rights against the Customer under the Contract.
(d) The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness the retained Goods or any part of them which remain the property of the Company.
All Goods delivered to the Customer whether fixed or unfixed and notwithstanding Condition 5(a) above shall be at the sole risk of the Customer from delivery and in the event of the Goods or any part thereof being lost, damaged, destroyed or stolen, howsoever occurring before payment for them in full has been made to the Company, the Customer shall nonetheless pay to the Company the full value of any Goods and the full value of any Works damaged, destroyed or lost together with any additional costs incurred by the Company in replacing any such Goods and in reinstating any such Work provided however that the Customer shall not be responsible for any damage or loss sustained arising solely from the negligence of the Company, its servants or Agents.
(a) Delivery of the Goods shall be made when the Company delivers the Goods to that Customer or to a place designated by that Customer and identified in the Contract.
(b) Claims against the Company for short or incorrect delivery shall be notified to the Company as soon as reasonably practical following receipt of the Goods by the Customer. The Company shall make good shortages and/or errors in delivery within a reasonable time thereafter.
(c) If the Customer fails to take delivery of the Goods, including failure to give adequate instructions, within 30 days of the Company’s notice that the Goods are ready for dispatch (otherwise than by reason of any cause beyond the Customer’s reasonable control or as a direct result of any failure by the Company) then, without limiting any other right or remedy available the Company may:
i) Agree to retrieve and/or;
ii) Store the Goods for collection by the Customer for up to 3 months and charge for the reasonable costs of storage (to be paid by the Customer prior to collecting the Goods) and/or
iii) 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 and/or
iv) Charge a fee not exceeding 10% of the Contract value as an administration charge to cover any additional costs it may incur should the provisions of this Condition apply.
8 STRIKES ETC. (FORCE MAJEURE)
(a) The Company shall not be liable to the Customer if it is unable to carry out any provision of the Contract for any reason beyond its control including (but without limitation) Act of God, legislation, war, civil commotion, terrorist activity, disease, pandemic, volcanic activity, fire, flood, drought, failure of power supply, lock-out, strike, stoppage or other action by employees or third parties In contemplation or furtherance of any dispute or owing to any inability to procure parts or materials required for the performance of the Contract.
(b) The Company shall notify the Customer as soon as reasonably practicable after the circumstances preventing performance arise. During the continuance of such an event the Company may, in its absolute discretion, withhold, reduce or suspend performance of its contractual obligations, without liability to the Customer for any loss or damage whatsoever suffered directly or indirectly by reason of any such withholding, reduction or suspension provided that in the event that such suspension continues for a period in excess of 90 days, either party may terminate the Contract without penalty and the Customer shall receive a pro-rata refund of any sums paid in advance to the Company and not yet incurred by the Company in the performance of the Contract.
9. DRAWINGS AND PLANS
Whilst the Company will take all reasonable care to ensure that working plans, diagrams and drawings provided to the Customer are adequate to facilitate the Works in a proper and workmanlike manner, it shall, in those cases where any planning, erection or installation works are not undertaken by the Company, and in relation to any part of the structure not erected by the Company, be the sole responsibility of the Customer to ensure that all working plans, diagrams and drawings meet with the Customer’s requirements in every respect and furthermore, it shall be the sole responsibility of the Customer in such cases to ensure the performance of planning, erection or installation works in a proper and workmanlike manner and in accordance with all applicable laws and regulations.
(a) In relation to a material defect in the structure of the Goods (material structural defect) the Warranty Period shall be for a period of 5 years from the date of delivery of the Goods; and
(b) In relation to all double glazed units the Warranty Period shall be for a 5 year period from the date of delivery of the Goods provided that such Goods are installed by the Company.
(c) In relation to any Building Works, where a material defect arises which does not affect the structure of the Goods, the Warranty Period shall be for a period of 12 months from delivery of the Goods. For the avoidance of doubt a defect is not a defect in the structure of the Works if it is a defect which manifests itself as normal shrinkage in plasterwork, skirting boards or similar post-installation settling.
(d) If within the relevant Warranty Period, a material defect shall be discovered and:-
(i) The Customer notifies the Company in writing promptly after discovery giving full particulars and either at its own expense and risk (where the Goods have not been erected or installed) returns the Goods to the Company or (at the Company’s sole option) permits the Company to inspect the same; and
(ii) Such defect has arisen from faulty materials employed or workmanship carried out by the Company existing but not discoverable upon inspection at the time of delivery of the Goods or (as the case may be) completion of the work then the Company shall at its sole option supply replacements or (as the case may be) rectify the defective work. The warranty contained in this Condition 10 shall apply to repaired or replacement Goods or Works for the remainder of the unexpired Warranty Period.
(e) The Company’s liability under this Condition applies only to defects appearing before the Customer makes any modification or alteration to the Goods, whilst the Goods are being properly used, stored or maintained and (where any installation or erection is not carried out by the Company) have been properly installed or erected and in particular (but without limitation) the Company shall not be liable pursuant to the Warranty in this Condition 10 or otherwise in the case of defects arising from-
(i) Normal deterioration or fair wear and tear;
(ii) Improper or faulty handling, installation or maintenance (where this is not carried out by the Company);
(iii) Repair of or modification to the Goods or Work by or on behalf of the Customer where this is not carried out by the Company or in strict accordance with the Company’s instructions;
(iv) Defects in or subsidence to any structure or surface to which the Goods are affixed or attached not caused by the Company;
(v) Glass damage or breakage not attributable to manufacturing defect and not caused by the Company;
(vi) Defects in connection with any under floor heating supplied by the Company which is covered by a separate warranty; and/or
(vii) Failure to treat the Goods in accordance with the Company’s instructions,
(f) A replacement unit will be supplied free of charge to replace any double-glazed unit which fails in service as a result of material defect during the Warranty Period.
(g) The Customer’s rights against the Company under this condition 10 are not assignable without the Company’s written consent, such consent not to be unreasonably withheld. In the event that the Customer wishes to assign the benefit of the warranties referred to in this Condition 10 or the prospective purchaser of the Customer’s property wishes to take the benefit of such warranties, it shall permit the Company to inspect the current condition of the Goods/Works in order to verify that the Company is able to consent to such assignment and the Customer agrees to pay the Company’s reasonable inspection costs in advance of such inspection. In the event that the Customer or prospective purchaser fails to request such inspection within 3 months following the sale of the property to the prospective purchaser, the warranties in this Condition 10 shall be deemed non-assignable,
(h) This warranty is to be provided free of charge and does not affect the Customer’s rights at law relating to faulty or mis-described Goods or Works carried out without due care and skill The Customer can obtain more information about its rights in this regard from its local authority, Trading Standards Department or Citizen’s Advice Bureau.
11. LIMITS OF LIABILITY
(a) The Goods are supplied strictly on the basis that the Customer has satisfied itself of their suitability for its purposes.
(b) Subject to Condition 11 (d) the Company shall not be liable, for any indirect, unforeseeable or consequential losses or expenses or lost of profit suffered by the Customer.
(c) Subject to Condition 11 (d) the Company’s entire liability to the Customer shall not exceed the total purchase price of the Goods and any Works or the sum actually paid by the Customer to the Company under the Contract, whichever is the lower.
(d) Nothing in these Conditions excludes or limits the Company’s liability for death or personal injury resulting from the Company’s negligence or for fraudulent misrepresentation. Nothing in these Conditions shall be construed as limiting or excluding the statutory rights or the Customer’s rights at law concerning faulty or mis-described Goods or Works carried out without due care and skill, further details of which can be obtained from the Customer’s local Trading Standards Department or Citizen’s Advice Bureau.
12. GOVERNING LAW
The Contract shall be governed by the laws of England and Wales and subject to the exclusive jurisdiction of the courts of England and Wales in relation to all disputes whether in contract or in tort.
(a) The Customer has the right to cancel the Contract in circumstances where written notice has been given by the Customer to the Company within 7 days of signing the Contract stating that the Customer wishes to cancel the Contract (‘Cooling Off Period”). If the Contract is cancelled under these circumstances, the Company shall refund the deposit and any other sums paid by the Customer in full within 7 days of receiving the notice of cancellation. Such right of cancellation shall not apply where the parties have agreed in writing that performance of the Works shall commence during the Cooling Off Period and the Company has commenced such Works during the Cooling Off Period.
(b) Without prejudice to Condition 13(a) if the Company provides written notice to the Customer of the need for a significant modification/variation to the Works and/or the purchase price, the Customer shall have the right to cancel the Contract by giving the Company written notice of the cancellation within 7 days of having received the notice from the Company and if the Contract is cancelled under these circumstances, the Company shall refund to the Customer the deposit and any other sums paid by the Customer to the Company following deduction of the value or cost (whichever is the greater) of the Works, and any other services provided, Goods or services purchased, or any other fees, costs, charges and/or liability properly or likely to be incurred in fulfilling the Company’s duties and obligations under the Contract up to the point of cancellation.
(c) The Company has the right to cancel the Contract by giving the Customer written notice of cancellation, delivered to the Customer’s premises, in circumstances where;
(i) At any stage during the Works to be carried out by the Company, in the reasonable opinion of the Company, the Works become unreasonably difficult, frustrated or onerous;
(ii) The Customer (or the Company, in the event the Company is responsible for such matters as part of the Works) is unable to obtain any planning permission, building or other relevant consent, or fulfil any other statutory requirement, or any other fundamental obligation necessary for the Works; any application by the Customer for finance or other such funding has been declined, withdrawn or cancelled;
(iii) The Customer makes any voluntary arrangement with his or her creditors or becomes bankrupt within the meaning of the Insolvency Act 1996 or the Company (acting reasonably) has reason to believe that the Customer may become bankrupt;
(v) Toxic or hazardous materials Including, for the avoidance of doubt, any asbestos or asbestos related products, are found at the Customer’s premises before or during any Works; or
(vi) The Customer fails to comply with its obligations to make payments under Condition 14;
(d) In circumstances where the Contract is cancelled in accordance with clauses 13(c) the Company reserves the right and shall be entitled to deduct from the deposit and any other sums paid, or otherwise recover, the value or cost (whichever is the greater) of the Works, and any other services provided, goods or service: purchased, or any other fees, costs, charges and/or liability properly or likely to be incurred in fulfilling its duties and obligations under the Contract up to the point of cancellation. After taking into account any such deduction, all other monies paid by the Customer to the Company shall be refunded within 7 days of the Company giving the Customer notice of cancellation.
14. TERMS OF PAYMENT AND LATE OR NON-PAYMENT
(a) Payment terms are set out in the quotation and/or the schedule of products.
(b) Subject to Condition 13 the Contract may not be cancelled or terminated by the Customer without prior written consent of a Director of the Company.
(c) Interest will be charged monthly on unpaid accounts at the current statutory rate under the Late Payment of Commercial Debts (Interest) Act 1998 at 8% above base rate from time to time. The warranties described in Condition 10 shall have no effect unless the account balance has been settled. No changes to price take effect unless signed by both parties on a variation to Contract form.
(a) The Customer acknowledges that all the intellectual property in drawings and documents provided by the Company in connection with the Contract and in the design and make-up of the Goods and performance of the Works is owned by the Company.
(b) If any provision of the Contract or part thereof is held by a court or other competent authority to be invalid or unenforceable in whole or in part it shall, to the extent of such invalidity be deemed severable and the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
(c) Any personal information provided by the Customer will be used by the Company for the purpose of fulfilling its contractual obligations. The Company will notify its Customers in writing of its products and offers from time to time unless the Customer notifies the Company that it does not want to be contacted in this way. The Company may verify ownership of any property at which the Goods will be installed and may use a credit reference agency for this purpose and in relation to credit checks on the Customer hereunder.
(a) Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 16 shall (subject to any special terms agreed in writing between the Customer and the Company) apply notwithstanding any other provision of these Conditions
(b) 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 thereon.
(c) The Goods will be sold ex works, fob or cif (Incoterms 2010) at the option of the Company as specified in the Contract.
(d) Export payment terms shall be determined by the Company and detailed in the Contract.
17. COMPANY INFORMATION
Registered Name and Address :
ODC Door & Glass Systems Ltd, 40 Chamberlayne Road, London, NW10 3JE.
Company Number : 6732865
VAT Number: 942 6397 96