Terms and Conditions
TERMS OF SALE
1 Interpretation
1.1 In these Terms:
'COMPANY' means Garenberg Life Space Ltd (registered in England under number 05537960);
'CONTRACT' means the contract for the sale and purchase of the Garenberg;
'DELIVERY ADDRESS' means the address stated in the Customer’s Written order to which the Company is to deliver the Garenberg or such other address as may be agreed in writing between the Customer and the Company;
'CUSTOMER' means the person whose order for the Garenberg is accepted by the Company;
'GARENBERG' means the Garenberg home office which the Company is to supply in accordance with these Terms;
'TERMS' means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Customer and the Company;
'WRITING', and any similar expression, includes facsimile transmission but not electronic mail or 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.
2 Basis of the Sale
2.1 The Company shall sell and the Customer shall purchase the Garenberg in accordance with the Company’s Written quotation (if accepted by the Customer), or the Customer’s Written order (if accepted by the Company), subject in either case 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 Company
2.3 The Company’s employees or agents are not authorised to make any representations concerning the Garenberg unless confirmed by the Company 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 Company or its employees or agents to the Customer or its employees or agents as to the application or use of the Garenberg which is not confirmed in Writing by the Company is followed or acted upon entirely at the Customer’s own risk, and accordingly the Company 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 Company shall be subject to correction without any liability on the part of the Company
3 Orders and Specifications
3.1 No order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in Writing by the Company’s authorised representative.
3.2 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving the Company any necessary information relating to the Garenberg within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Garenberg and any specification for it shall be as set out in the Customer’s order (as accepted by the Company).
3.4 The Garenberg shall be supplied in accordance with the description contained in the Company’s specification.
3.5 The Company may from time to time make changes in the specification of the Garenberg which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Garenberg.
3.6 Any contractual description of the Garenberg by the Company relates to the identity of the Garenberg but only if it relates to a central characteristic of the Garenberg or to a substantial ingredient in its identity.
3.7 The Company reserves the right to make any changes in the specification of the Garenberg which are required to conform with any applicable statutory or E.U. requirements or, where the Garenberg is to be supplied to the Company’s specification, which do not materially affect their quality or performance.
3.8 No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in Writing of the Company and on terms that the Customer shall indemnify the Company 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 Company as a result of cancellation or deferment.
4 Price of the Garenberg
4.1 The price of the Garenberg shall be the Company’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company’s published price list current at the date of acceptance of the order. 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 Company without giving notice to the Customer.
4.2 The Company reserves the right, by giving Written notice to the Customer at any time before delivery, to increase the price of the Garenberg to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Garenberg which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions or access to the site.
4.3 The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Company.
5 Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Customer and the Company, a deposit of 20% of the full purchase price is payable on ordering the Garenberg from the Company. The balance of the price is payable before the keys to the Garenberg are handed over to the Customer (‘the Due Date’). Time of payment of the price shall be of the essence of the Contract.
5.2 The Customer shall make the full payment due without any deduction whether by way of set-off, counterclaim or otherwise.
5.3 If the Customer fails to pay the full payment on the Due Date then without prejudice to its other rights and remedies the Company may charge interest both before and after judgement on the amount unpaid at the rate of 5% per annum above HSBC Bank Plc base lending rate from time to time until payment is made in full with a part of a month being treated as a full month for the purposes of calculating interest.
5.4 Notwithstanding the above, if full payment has not been made on the due date the Agreement may be terminated forthwith by the Company serving not less than 48 hours written notice to the Customer whereupon the Company shall be entitled to remove the Garenberg and for such purpose the Company shall have an irrevocable licence or authority to enter upon the installation site with such transport as may be necessary to recover the Garenberg. The Customer shall render all reasonable assistance to the Company to enable the Customer to disconnect the electricity supply and dismantle and remove the Garenberg from the site.
5.5 In these circumstances the Customer shall be liable for a removal charge of £950 plus VAT together with the cost or arranging for an electrician to disconnect the power supply.
6 Planning
The Customer shall ensure that the installation of the Garenberg does not contravene any planning or other regulation or legislation and the Company accepts no responsibility for the failure of the Customer to comply with such regulations or legislation and the Customer shall indemnify the Company in respect of any failure to do so.
7 Installation
7.1 The Garenberg shall be installed by the Company at the Delivery Address. For the avoidance of any doubt the Garenberg is installed as an empty unit.
7.2 Before the agreed delivery date you must inform the Company of any problems it may encounter in gaining access to your property.
7.3 The Company will install the Garenberg using reasonable care and skill and as far as reasonably possible in accordance with the design and specification and within the time(s) (if any) agreed with you.
7.4 Any date specified by the Company in the order confirmation for the installation of the Garenberg is approximate only and will be confirmed by the Company at least 5 working days before installation. This date shall not be made of the essence by virtue of this confirmation. Where no dates are specified, installation shall be within a reasonable time. Subject to the other provisions of these Terms the Company will not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery or in the actual installation of the Garenberg, nor will delay in installation entitle the Customer to terminate or rescind the Agreement. Any liability of the Company for non-delivery of the Garenberg shall be limited to refunding the deposit (if any). Notwithstanding that the Company may have delayed or failed to deliver the Garenberg promptly the Customer shall be bound to accept delivery and pay for the Garenberg in full provided delivery shall be tendered at any time within 3 months of the date specified in the order confirmation.
7.5 The Customer must ensure that the installation site is easily accessible and there is adjacent all day parking for a 7.5 tonne lorry (9m long, 3m wide). In addition that the installation site is sound, level and free from any obstructions or dangers. The Company shall use all reasonable endeavours not to cause damage to the Customer’s property and shall make good any damage caused.
7.6 If in the reasonable opinion of the Company the installation site does not comply with any of the requirements set out in Clause 6.3 the Company may in its absolute discretion either defer installation until such time as the Customer has resolved the matter to the Company’s reasonable satisfaction or the Company may cancel the Agreement by written notice with immediate effect. The Customer shall indemnify the Company for all additional costs incurred due to any such deferment. Where the installation has been deferred but the Customer has not resolved the matter to the Company’s reasonable satisfaction within 28 days of the original installation date then the Company may immediately cancel the Agreement and return the Customer’s deposit less an amount in respect of all the Company’s charges and expenses as set out above.
7.7 The Customer shall be responsible for the safety of the Company’s employees and those of any sub-contractor during installation of the Garenberg and in particular prior to commencement of the works shall notify the Company of any precautionary measures desirable for the safety and well-being of such employees whilst on site.
7.8 The Customer shall ensure that the Company is provided with all necessary electricity for the use of its employees or those of any sub-contractor in connection with the installation of the Garenberg.
7.9 For the avoidance of doubt, notwithstanding that the Company has agreed to install the Garenberg, delivery of the Goods shall be made when the Garenberg is brought on site by the Company and accordingly the Customer shall be responsible from that time for the secure storage of the Garenberg whilst on site and for damage to or loss of the Garenberg thereafter
7.10 The Company shall not be responsible for and shall have no liability to the Customer in respect of:
7.10.1 any damage caused by prevailing site or weather conditions;
7.10.2 any failure by the Customer to ensure that the dimensions of the opening into which the Garenberg is to be installed conform to the dimensions advised to the Company by the Customer or any other defect, deficiency or irregularity in any such opening; or
7.10.3 any damage whatsoever caused to the Garenberg after completion of the works
7.11 On completion of the installation the Company will issue an installation checklist for counter signature by the Customer confirming that the Garenberg has been installed to the Customer’s satisfaction and following the payment of the balance of the price the keys of the Garenberg will then be formally handed over. It is the Customer’s responsibility to arrange for a qualified electrician to connect the Garenberg to the Customer’s electricity supply and the Company excludes all liability in this respect. If the Company provides the name of an electrician to the Customer, it is the Customer’s responsibility to satisfy themselves that the electrician is suitably qualified electrician to connect the Garenberg to the Customer’s electricity supply and the Company excludes all liability in this respect.
8 Risk and Property
8.1 Risk of damage to or loss of the Garenberg shall pass to the Customer upon handover of the keys to the Garenberg and responsibility for effecting and maintaining insurance cover passes to the Customer at that time.
8.2 Notwithstanding delivery and the passing of risk in the Garenberg, or any other provision of these Terms, the property in the Garenberg shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Garenberg.
9 Warranty
9.1 The Company warrants that the structural elements of the Garenberg will be free from any significant defect for a period of 5 years from the date of the Contract. For the purposes of this clause 'structural elements' means the floor, roof and external walls of the Garenberg but not the internal cladding, windows or door. In addition, the Company warrants that upon installation the Garenberg shall be free from any significant defect in other materials or otherwise.
9.2 If the Garenberg does not conform to these warranties the Company will take such steps as it deems necessary to bring the Garenberg into a condition where it is free from such defects or, at the Company’s sole discretion, refund the purchase price of the Garenberg to the Customer. The Customer shall provide the Company with access and all reasonable assistance so that it may remove the Garenberg whereupon ownership shall vest in the Company
9.3 The Company shall not be liable for a breach of the warranty set out above relating to workmanship and materials other than 'structural elements', unless the Customer gives written notice to the Company within one month from the date upon which the Customer signs the installation checklist referred to in clause 6.5 and the Company is given a reasonable opportunity after receiving the notice of examining the Garenberg. If the Customer does not so notify the Company the Customer shall not be entitled to reject the Garenberg and the Company shall have no liability for such failure, and the Customer shall be bound to pay the price as if the Garenberg had been delivered and installed in accordance with the Contract.
9.4 The Company shall not be liable for a breach of the warranty set out above caused by any settlement or subsidence of the installation site.
9.5 Any replaced goods will be guaranteed on these terms for the unexpired portion of the one month period.
9.6 Subject as expressly provided in these Terms, and except where the Garenberg is sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.7 Where the Garenberg is sold 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.
9.8 Except in respect of death or personal injury caused by the Company’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Garenberg (including any delay in supplying or any failure to supply the Garenberg in accordance with the Contract or at all) or their use by the Customer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Garenberg, except as expressly provided in these Terms.
9.9 The Company 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 Company’s obligations in relation to the Garenberg, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:
9.9.1 Act of God, explosion, flood, tempest, fire or accident
9.9.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.9.3 acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
9.9.4 import or export regulations or embargoes;
9.9.5 strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
9.9.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.9.7 power failure or breakdown in machinery.
10 Insolvency of Customer
10.1 This clause 12 applies if:
10.1.1 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
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
10.1.3 the Customer ceases, or threatens to cease, to carry on business; or
10.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
10.2 If this clause applies then, without limiting any other right or remedy available to the Company, the Company may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Garenberg have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11 General
11.1 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.
11.2 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
11.4 The Contract shall be governed by the laws of England, and the Customer agrees to submit to the non exclusive jurisdiction of the English courts.
11.5 A person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This condition shall not affect any right or remedy of any person which exists or is available otherwise than pursuant to that act.