Zehnder Group UK Limited (CRN: 02296696) of Unit 4, Watchmoor Point, Camberley, Surrey GU15 3AD (“We”, “Us” and “Our”) Commercial Supply Terms of Trading
IMPORTANT: Once a contract comes in to effect, these terms and conditions will create legally binding rights and obligations, Please read through these terms and conditions carefully prior to placing an order. In particular, your attention is drawn to clauses 7 (Warranties and Indemnity) and 8 (Specifications and Samples) as they contain important limitations and exclusions of Our liability and that of Our Group (as defined in clause 3.1 below).
1 Creation of contract
1.1 Any order for goods (the “Order”) shall constitute an offer to purchase the goods detailed in the relevant Order (the “Goods”) on the basis set out in these terms and conditions. You agree that these terms and conditions shall apply to the exclusion of any other terms and conditions.
1.2 A valid and enforceable contract between the person placing the relevant Order (”You” / “Your”) and Us for the sale and purchase of the Goods shall come into effect on the basis of (a) these terms and conditions, (b) the identity of the purchaser, delivery address (if any), and the identity and quantity of Goods detailed in the Order (which are hereby incorporated in to the Contract by reference) but for the avoidance of doubt no other aspects of the Order shall form part of the Contract (as defined below), (c) any order confirmation issued by Us in respect of the relevant Order and (d) any written statements of the type referred to in clause 7.1.5 (the “Contract”) upon the first to occur of Us accepting the relevant Order by (i) issuing an order confirmation in respect of the relevant Order (“the Order Confirmation”) or (ii) Us beginning to process the relevant Order on Our electronic order management system. We may reject any Order prior to acceptance by Us.
2.1 All sums stated by Us (including, for example, prices quoted and any other charges stated in these terms) exclude VAT and any other applicable taxes, duties and levies (“VAT”) (unless otherwise stated in writing) and all relevant Goods are sold subject to these terms and conditions. VAT will be charged at the rate applying at the time of delivery.
2.2 Our quotations lapse after 90 days (unless otherwise stated in writing). Quotations do not constitute an offer capable of acceptance by You. If You wish to purchase some or all of the Goods detailed in a quotation, You must submit an Order as described above.
2.3 The price quoted includes delivery (unless otherwise stated in writing).
2.4 Unless a formal written quotation is provided by Us or the prices for the relevant Goods are confirmed in the relevant Order Confirmation, all prices quoted are illustrative estimates only and the price charged will be Our current price in force at the time of delivery of the relevant Goods, calculated by reference to clause 4.2.
2.5 Rates of VAT (as defined in clause 2.1 above) charged in respect of the Goods will be those applying at the time of delivery calculated by reference to clause 4.2.
2.6 Where We agree to any variation of these terms the price may also be increased.
2.7 At any time before delivery (calculated by reference to clause 4.2) We may adjust the price to reflect any increase in Our costs of supplying the Goods. The revised price shall be binding on You.
3 Delivery & Inspection of Goods Delivery:
3.1 All delivery times quoted are estimates only. Neither We nor any member of Our group (being Our parent undertakings from time to time, Our subsidiary undertakings from time to time and the subsidiary undertakings of each of Our parent undertakings from time to time – such expressions having the meanings ascribed to them in section 1162 of the Companies Act 2006, Our “Group”) shall have any liability to You whatsoever for any costs, expenses, damage or loss (including but not limited to any indirect or consequential loss) resulting from delayed delivery or availability.
3.2 If We fail to deliver within a reasonable time, You may (by informing Us in writing and subject always to clause 11.2) cancel the Contract, however:
3.2.1 You may not cancel if:
220.127.116.11 We receive Your notice after the Goods have been dispatched or You have been notified that the relevant Goods are ready for collection by You (as appropriate); or
18.104.22.168 You are in breach of any of these terms and conditions (for example clause 3.4).
3.2.2 if You cancel the Contract, You agree that such cancellation is on the basis that You have no further claim against Us under the Contract.
3.3 If You accept delivery of the Goods:
3.3.1 after the estimated delivery time;
3.3.2 after We have increased the price of the Goods pursuant to clause 2.7
In each case, it will be on the basis that You have no claim against Us for delay or such increase in price (as appropriate).
3.4 When We notify You that the Goods are ready to be delivered You shall accept immediate delivery or in the case of collection, where We notify You that the Goods are ready to be collected You must arrange to collect the Goods within 5 (five) working days being any day other than a Saturday, Sunday or bank or public holiday in England, (“Working Days”) of the date of Our notice.
3.5 If for any reason You fail to accept delivery of any Goods when they are ready for delivery, or We are unable to deliver the Goods because You have not provided adequate instructions, or if You do not collect the Goods by the required date for collection (calculated by reference to clause 3.4), We may:
3.5.1 treat the Goods as having been delivered on that day for the purposes of risk and payment;
3.5.2 charge You for the storage and redelivery of those Goods; and / or
3.5.3 give You 14 (fourteen) days’ notice requiring You to take delivery of the Goods at any time. After expiry of such notice We may resell or otherwise dispose of the Goods.
provided always that this clause 3.5 will not affect any other rights We may have against You in respect of Your breach of the Contract.
3.6 We may deliver the Goods in instalments. Each instalment is treated as a separate contract.
3.7 We may decline to deliver if:
3.7.1 We believe that it would be unsafe, unlawful or unreasonably difficult to do so; or
3.7.2the premises (or the access to them) are unsuitable for Our vehicle of that of Our carrier
in which case We will attempt to arrange an alternative time, date and, if necessary, place for delivery and if this is not reasonably practicable We may cancel the Contract or the affected part of it. Where We are able to arrange an alternative delivery with You, We may charge You additional fees for such delivery.
3.8 Where We arrange for a third party to deliver the Goods to You and/or arrange for insurance of the Goods in transit, We shall be considered to be acting as Your agent and the provisions of subsections (2) and (3) of Section 32 of the Sale of Goods Act 1979 shall not apply.
3.9 You must inspect the Goods on delivery. If any Goods are damaged or not delivered, You must write to tell Us within three Working Days of delivery or the expected delivery time. You must give Us (and any carrier) a fair chance to inspect the damaged Goods or verify the shortage.
3.10 You shall not be entitled to reject the Goods or any part of them where the sole reason is short delivery.
3.11 If You fail to notify Us in the time and manner specified in clause 3.9 above:
3.11.1 You shall not be entitled to reject the Goods;
3.11.2 You shall be deemed to have accepted that the Goods are in accordance with the Contract in terms of product type, quantity delivered and freedom from damage;
3.11.3 We shall have no liability whatsoever to You in respect of the delivery of the relevant Goods; and
3.11.4 You shall pay the price of the Goods as if they had been delivered in accordance with the Contract.
3.12 The time for making all notifications under clause 3.9 is of the essence.
4.1 The Goods are at Your risk from the time of delivery.
4.2 Delivery takes place on the first to occur of either:
4.2.1 when the Goods are loaded on to the collection vehicle by Us at Our premises (if You are collecting them or arranging carriage); or
4.2.2 when the Goods have been unloaded by Us or Our carrier at the premises or address specified by You (if We are arranging carriage); or
4.2.3 when delivery is deemed to have taken place under clause 3.5.1.
4.3 Where We arrange for the Goods to be delivered to You by Us or Our carrier then:
4.3.1 You shall be responsible for ensuring that:
22.214.171.124 delivery is to be made on hard roads to a hard and safe draw-in site suitable for unloading the Goods to the roadside during normal working hours (being 9am – 5pm) on Working Days;
126.96.36.199 the Goods are able to be stacked on good firm level and cleared ground upon unloading by Us or Our carrier;
188.8.131.52 the Goods are able to be properly and safely off-loaded from the delivery vehicle by Us or Our carrier;
184.108.40.206 You are able to store and protect the Goods at Your own expense; and
220.127.116.11 You have personnel available to move the Goods from the roadside in to the premises or address of delivery as deliveries will be made as per clause 4.3.2 below.
4.3.2 All deliveries will be to the roadside of the premises or address to which You have requested the Goods be delivered. Our drivers are not permitted to take the Goods in to the premises or address of delivery as they are not insured to do so.
4.3.3 On Our request or that of Our carrier You will on delivery (as determined in accordance with clause 4.2) sign a receipt slip in respect of Goods delivered. Any damage of shortfall must be notified in accordance with clause 3.9.
4.4 Where You collect the Goods from Our premises then:
4.4.1 You shall be responsible for ensuring that:
18.104.22.168 the collection of the Goods is arranged in advance by You and agreed by Us;
22.214.171.124 the Goods are collected in suitable and safe vehicles during normal working hours (being 9am – 5pm) on Working Days ; and
126.96.36.199 at Your own expense, the Goods are properly and safely off-loaded, stacked, stored and protected at Your premises.
4.4.2 entry by You and Your vehicle or Your carrier and their vehicle onto Our premises shall be at Your own risk or Your carrier’s own risk respectively.
5 Payment terms
5.1 You are to pay Us in cleared funds prior to delivery, unless You have an approved credit account.
5.2 If You have an approved credit account, payment is due no later than 30 days following the end of the month in which the Goods are delivered or collected (as appropriate), unless otherwise agreed in writing by Us. If You pay by cheque, You will not be deemed to have paid until the relevant cheque has been credited to Our bank account in cleared funds.
5.3 Where the cost of delivery, packaging, VAT or any other charges are stated separately from the price for the Goods, they will nevertheless be payable at the same time as if they formed part of the price of the relevant Goods.
5.4 If You fail to pay Us in full on the due date We may, without prejudice to any other rights:
5.4.1 suspend or cancel any future deliveries without incurring any liability to You. Where We elect to suspend future deliveries, You will still be bound by the Contract;
5.4.2 cancel any discount offered to You;
5.4.3 charge You interest at the rate set under s.6 of the Late Payment of Commercial Debts (Interest) Act 1998 (“the Act”) calculated (on a daily basis) from the date following the date of delivery (determined in accordance with clause 4.2) or expiry of Your credit period (whichever is the later) until payment;
5.4.4 claim fixed sum compensation from You under s.5A of the Act to cover Our credit control overhead costs;
5.4.5 demand immediate payment of all invoices issued to You whether or not they are outstanding at the relevant time;
5.4.6 recover (including without limitation under clause 7.12) the reasonable cost of taking legal action to make You pay;
5.4.7 If You have an approved credit account, We may withdraw it or reduce Your credit limit or bring forward Your due date for payment; and
We may take any of the actions detailed in clauses 5.4.1 – 5.4.7 at any time without prior notice.
5.6 You do not have the right to withhold or set off any money You owe to Us on the basis or assertion that We or any member of Our Group owes money to You or that You have a claim against Us or Our Group.
5.7 While You owe money to Us, We have a lien on any of Your property in Our possession.
5.8 Time for payment is of the essence.
6.1 Until You pay all debts You owe Us:
6.1.1 all Goods supplied by Us remain Our property;
6.1.2 You must store all Goods supplied by Us separately from other goods and in suitable conditions and so that they are clearly labelled and identifiable as Our property;
6.1.3 You must insure them (against the risks for which a prudent owner would insure them) and hold the policy on trust for Us;
6.1.4 You may use those Goods and sell them in the ordinary course of Your business, but not if:
188.8.131.52 We revoke that right (by informing You in writing); or
184.108.40.206 You become insolvent.
6.2 If You sell any of the Goods in accordance with clause 6.1.4 before title has passed to You, You shall hold the proceeds on trust for Us and pay such proceeds to Us on demand.
6.3 You must inform Us (in writing) immediately if You become insolvent (on any of the bases set out in clause 15.4).
6.4 If Your right to use and sell the Goods ends You must allow Us to remove the Goods.
6.5 All Goods sold by You under clause 6.1.4 shall, in relation to Goods of the same description, be deemed to be sold on a “first in first out” basis.
6.6 Upon request You must notify Us of the location at which You are storing any Goods which remain Our property and You irrevocably agree that We (and Our agents, advisors and/or employees) have Your permission to enter any such premises where the Goods may be stored:
6.6.1 at any time, to inspect them; and
6.6.2 after Your right to use and sell them has ended, to remove them, using reasonable force if necessary. If any of the Goods have been fixed We may still remove them and in so doing We shall endeavour not to cause any unnecessary damage, but We will not be liable or responsible for any damage reasonably caused as a result of or in connection with such removal.
6.7 Despite Our retention of title to the Goods, We have the right to take legal proceedings to recover the price of Goods supplied should You not pay Us by the due date.
6.8 You are not Our agent. You have no authority to make any contract on Our behalf or in Our name.
7 IMPORTANT: Warranties and indemnity
7.1 We warrant that the Goods will, subject always to clauses 7.3 – 7.6:
7.1.1 On delivery (as determined in accordance with clause 4.2) comply with the description (if any) contained in the Order Confirmation (if one is provided);
7.1.2 On delivery (as determined in accordance with clause 4.2) comply, subject always to clause 15.6, with (i) the technical specifications and performance figures detailed in the product brochures and product data sheets published by Us subject always to any qualifications detailed therein and (ii) the technical specifications and performance figures, if any, contained in the Order Confirmation (if one is provided) subject always to any qualifications detailed therein, in both cases (i) and (ii) when tested in accordance with the relevant British Standard.
7.1.3 On delivery (as determined in accordance with clause 4.2) comply with any sample which We agreed in writing would reasonably represent the Goods; and
7.1.4 Be free from material defects in materials and workmanship for a period of:
220.127.116.11 15 (fifteen) years from the date of delivery (as determined in accordance with clause 4.2) for products in Our Tetro range, subject always to clause 18.104.22.168 below;
22.214.171.124 10 years from the date of delivery (as determined in accordance with clause 4.2) for aluminium and stainless steel radiators, subject always to clause 126.96.36.199 below;
188.8.131.52 5 years from the date of delivery (as determined in accordance with clause 4.2) for steel radiators and other central heating products, subject always to clause 184.108.40.206 below;
220.127.116.11 5 years from the date of delivery (as determined in accordance with clause 4.2) for the following Greenwood
Airvac branded products:
18.104.22.168.1 Omnique, Elite 100 and Elite 150 intermittent extractor fans;
22.214.171.124.2 Omnique continuous extractor fans; and
126.96.36.199.3 Positive input ventilation products;
188.8.131.52 3 years from the date of delivery (as determined in accordance with clause 4.2) for Zehnder branded extractor fans;
184.108.40.206 2 years from the date of delivery (as determined in accordance with clause 4.2) in respect of the electrical componentry forming part of electrified radiator products;
220.127.116.11 2 years from the date of delivery (as determined in accordance with clause 4.2) for all other Greenwood Airvac branded products which are not listed in clause 18.104.22.168
22.214.171.124 2 years from the date of delivery (as determined in accordance with clause 4.2) for all other products not listed above.
7.1.5 On delivery (as determined in accordance with clause 4.2) or for any longer period specifically stated therein comply with any statements, promises, representations, warranties, conditions and assurances made in writing by one of Our directors or senior managers and which are either contained in (i) Our written quotation (or any covering letter) relating to the relevant Goods or (ii) other written correspondence relating to the relevant Goods, in both cases (i) and (ii) which are not withdrawn before the Contract comes in to force and which expressly state that You may rely on such statements, assurances etc when entering into the Contract.
7.2 Save for the warranties provided in the Contract, so far as permissible at law, We do not make any representations or give any warranties as to the quality of the Goods or their fitness for any purpose. To the fullest extent permissible at law, We hereby exclude any other warranty, representation, term or condition that would otherwise be implied in to this Contract.
7.3 We shall have no liability in respect of any claim under clause 7.1 where the defect complained of arises from and / or is attributable to:
7.3.1 fair wear and tear;
7.3.2 wilful damage;
7.3.3 mis-use and / or neglect;
7.3.4 abnormal working conditions;
7.3.5 the alteration, adaption or adjustment of the Goods without Our prior written approval;
7.3.6 the Goods slightly varying in colour or suffering some other minor alteration which may occur as a result of Our manufacturing process; or
7.3.7 any of the facts or circumstances described in clause 7.10.2
7.4 Any claim under the warranties in clause 7.1 shall be invalidated in the event of:
7.4.1 Your failure to notify Us in writing of any claims under such warranty as soon as reasonably practicable (and in any event within 14 days) of the relevant claim coming to Your attention;
7.4.2 a failure to use the Goods (i) for the purposes for which goods of the relevant Goods are reasonably intended and / or (ii) in accordance with Our instructions for use;
7.4.3 a failure to install the Goods in accordance with Our instructions on installation;
7.4.4 a failure to maintain the Goods in accordance with Our instructions on proper maintenance;
7.4.5 installation or use of the relevant Goods in a manner that is inconsistent with the technical or safety laws or standard codes of practice (British Standard or equivalent) in the country where such Goods are installed or used;
7.4.6 the Goods being used with accessories, systems and other goods of a type, condition or standard other than prescribed by Us;
7.4.7 the Goods being removed from their originally installed position and re-installed elsewhere;
7.4.8 save in respect of electrified radiators, the Goods having been installed onto a heating system that ( i ) has n ot been cleaned/treated immediately prior to installation of the relevant Goods and / or (ii) which does not contain correct water treatments and inhibitors to the approved British Standard Code of Practice BS 7593 (or equivalent);
7.4.9 Your failure to pay the full purchase price for the Goods including the costs outlined in clause 5.3;
7.4.10 defects caused by and / or attributable to installation or service / repair / maintenance of the relevant Goods (except where We are the installer or conduct the relevant service / repair / maintenance); or
7.4.11 defects caused by and / or attributable to accidents, fire, liquids (in the case of electrical componentry only), chemicals and other similar substances, flooding, vibrations, excessive heat, power surges, excess or incorrect supply or input voltage, radiation, electrostatic discharges including lightning or external forces and impacts.
7.5 The time for making all claims under the warranties provided in clause 7.1 is of the essence.
7.6 You shall give Us a fair opportunity to investigate any claims under the warranties provided at clause 7.1 which may include (but not be limited to) Us taking a sample of the Goods and having access to Your premises.
7.7 If as a result of a claim under the warranties provided in clause 7.1 the relevant Goods (or any of them) are found not to be in compliance with such warranties (following Our investigations), and provided (i) You are not in breach of clause 7.4, (ii) none of the circumstances in clause 7.3 apply and (iii) You have complied with 7.6 (as appropriate) in full, We will (at Our option) either (a) repair the Goods, (b) replace the Goods or (c) refund the price You paid for the relevant Goods.
7.8 All single point extract ventilation fans returned under warranty as ‘faulty’ will be subject to testing and inspection before a credit can be issued. Where no fault on the product(s) can be determined, or the failure of the product is attributed to factors specifically excluded under the warranty conditions, customers will be notified giving the reason for rejecting the claim. The product(s) may then either be returned to sender on payment of a delivery charge or disposed of by ourselves and no credit will apply. If no instruction is received within 10 working days of notification of rejection under warranty, the products will be disposed of.
Please note that all product warranties are valid from the date of delivery from ourselves. Where this cannot be accurately established, we will allow a 6-month grace period from the date of manufacture of the product as determined by the serial number printed on the product. Any product outside of this period will not be covered by the manufacturer’s warranty.
7.9Neither We nor any member of Our Group shall be liable (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for any:
7.9.1 special, indirect or consequential loss and / or damage; or
7.9.2 loss of profits; or
7.9.3 loss of use
In each case arising out of and / or in connection with the Contract (including without limitation the supply of Goods and their use).
7.10 Subject to clauses 7.9, 7.11 and 7.12, the total maximum aggregate liability of Us and Our Group, collectively, to You (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) arising out of and / or in connection with the Contract (including without limitation the supply and use of the Goods) is limited to 150% of the total Contract price, being the price payable for the Goods ordered under the Contract less any discounts and rebates, plus any delivery charges and VAT.
7.11 Subject to clause 7.12, We and Our Group hereby exclude any and all liability (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) arising out of and / or in connection with:
7.11.1 any indicative system design suggestions and system layout drawings created and / or provided by Us or on Our behalf – please see clause 8.7 for further details;
7.11.2 any failure of the Goods to comply with some or all of the warranties in clause 7.1 where such failure is caused by and / or attributable to:
126.96.36.199 the Goods having been integrated, combined or used with other systems, system components or products not provided by Us or on Our behalf;
188.8.131.52 system control conditions and / or system design; or
184.108.40.206 the Goods not being in every way similar to Goods of the same type previously supplied to You, unless We specifically guaranteed this to You in writing in respect of the relevant Goods.
7.12 Nothing in these terms restricts or limits Our liability or that of any member of Our Group for death or personal injury resulting from Our negligence or that of any member of Our Group or that of our respective employees, officers or subcontractors, for fraudulent misrepresentation, or for any other matter in respect of which it would be unlawful for Us or any member of Our Group to exclude or limit liability.
7.13 You h e r e b y a g r e e to indemnify Us and each member of Our Group in full against and hold Us and each member of Our Group harmless from all:
7.13.2 costs (including without limitation financing costs and legal costs on a full indemnity basis);
7.13.6 expenses; and
which We and / or any member of Our Group may suffer and / or incur (directly and / or indirectly) as a result of and / or in connection with:
7.13.8 any breach by You of any of Your obligations under these terms; and / or
7.13.9 any failure by You to use and / or install the Goods in accordance with Our instructions.
7.14 You hereby warrant to Us and each member of Our Group that You shall incorporate in to any agreement or arrangement under which the Goods are resold or provided to a third party limitation of liability provisions equivalent to and no less protective of Us and Our Group as those contained in clauses 7.9 – 7.12 inclusive.
9 Return of Goods
9.1 This clause 9 does not apply to claims under the warranties in clause 7 or in respect of Goods which are damaged on delivery, to which clauses 7 and clauses 3.9 – 3.12 shall respectively apply.
9.2 We will only accept the return of Goods from You in exceptional circumstances and where the Goods are part of Our stock range. We cannot accept the return of non-stock Goods (as identified as such in Our brochure for the relevant brand which was in circulation at the date You placed the relevant Order).
9.3 Returns of stock Goods will only be accepted:
9.3.1 by prior arrangement (confirmed by Us in writing) within (i) 6 months in respect of any Greenwood Airvac branded products, (ii) 8 weeks in respect of any other Goods, or (iii) such longer period as We may agree on a case by case basis, in each case (i) – (iii) calculated with effect from the date of delivery of the relevant Goods as determined in accordance with clause 4.2;
9.3.2 on payment of the charges detailed in clause 9.5 (unless the Goods were defective when delivered); and
9.3.3 where the Goods are as fit for sale on their return as they were on delivery.
9.4 Where We accept the return of Goods from You, We will issue You with a credit note to the value of the relevant Goods, subject to any deductions We may make in respect of the charges described in clause 9.5.
9.5 Where You return any Goods to Us in circumstances other than those described in clause 9.1 and:
9.5.1 You do not order any replacement goods from Us at the same time as making the relevant return, We will charge You a restocking fee of 25% of the price paid for the returned Goods plus (i) for Greenwood Air Vac products a handling charge equivalent to 50% of the price paid for the relevant Goods and (ii) for all other products, a £10 administration fee; or 9.5.2 You do order replacement goods from Us at the same time as making the relevant return, the restocking fee will be the lesser of £25 or 25% of the price paid for the relevant Goods and (i) for Greenwood Air Vac products only, the handling charge shall be reduced to the lesser of £25 or 15% of the value of the relevant Greenwood Air Vac branded products returned only where such return is accompanied by an Order for Greenwood Air Vac products the value of which is not less than 150% of the price paid for the relevant Greenwood Air Vac products returned and (ii) for all other products We will not charge the £10 administration fee.
You agree that We may deduct any sums due from You under this clause from any credit note that We may issue for the relevant Goods.
9.6 If You install the relevant Goods You will be deemed to accept that the model, colour and finish correspond with the model, colour and finish stated in the Order and such Goods will not be returnable or refundable for failure to comply with such attributes. This does not affect the rights provided to You under clause 7.
10 Export terms
10.1 Where the Goods are supplied by Us to You by way of export from the United Kingdom this clause 10 of these terms applies (except to the extent that it is inconsistent with any other written agreement between us).
10.2 The ‘Incoterms’ of the International Chamber of Commerce which are in force at the time when the Contract comes in to effect apply to exports, but the terms of this Contract prevail to the extent that there is any inconsistency.
10.3 Unless otherwise agreed, the Goods are supplied ex works Our place of manufacture.
10.4 Where the Goods are to be sent by Us to You by a route involving sea transport We are under no obligation to give a notice under section 32(3) of the Sale of Goods Act 1979.
10.5 If Your place of business or habitual residence is in a different State (within the meaning of s.26 (3) (b) Unfair Contract Terms Act 1977) to Us, neither We nor any member of Our Group shall be liable for death or personal injury arising from the use of any Goods delivered in the territory of another State.
11 Cancellation & Variation of Orders
11.1 Subject to clause 3.2, You may not vary and / or cancel an Order which has been accepted by Us unless We agree in writing (and clauses 3.2.2 and 11.3 then apply).
11.2 Orders for non-stock items (as identified as such in Our brochure for the relevant brand which was in circulation at the date You placed the relevant Order) which We have accepted cannot be varied and / or cancelled once manufacturing has begun or special materials and/or equipment has been ordered by Us.
11.3 If an Order is varied and / or cancelled by You (for any reason) after We have accepted it, You shall pay Us for all stock (finished or unfinished) that We may then hold (or to which We are committed) for the Order.
11.4 We may suspend or cancel the Contract, by written notice if:
11.4.1 You fail to pay Us any money when due (whether under the Contract or otherwise);
11.4.2 being a company, You become insolvent (as determined by Us in accordance with clause 15.4), call any meeting of Your creditors, or appoint a receiver or administrator;
11.4.3 being an individual, You die or become bankrupt or enter into a voluntary arrangement;
11.4.4 You compound or negotiate for any composition with Your creditors; or
11.4.5 You fail to honour Your obligations under these terms.
11.5 If We decide to cancel the Contract We may repossess any Goods in respect of which title has not passed to You in accordance with clause 6 and We may also demand immediate payment of any sums due to Us by You under this or any other contract You have with Us.
11.6 Our right to suspend or cancel a Contract is without prejudice to any other rights We may have.
12 Waiver and variations
12.1 Any waiver or variation of these terms shall not bind Us unless it is:
12.1.1 made (or recorded) in writing;
12.1.2 signed on behalf of each party; and
12.1.3 expressly stating an intention to vary these terms.
12.2 By submitting an Order to Us, You are expressly waiving any terms You may use (including without limitation any terms contained in and / or referred to in any Order) and / or which may otherwise be implied by trade, custom, practice or course of dealing and, You agree that, the terms of the Contract take precedence over any other terms, communications and negotiations between You and Us.
13 Health and Safety at Work
13.1 You shall abide by any health and safety instructions We issue to You in respect of the Goods and / or their installation (copies are available on request).
14 Force majeure
14.1 If We are unable to perform Our obligations to You (or We are only able to perform them at unreasonable cost) because of circumstances beyond Our control, We may cancel or suspend any of Our obligations to You, without liability.
14.2 Examples of those circumstances include act of God, accident, explosion, war, terrorism, fire, flood, transport delays, strikes and other industrial disputes and difficulty in obtaining supplies.
15.1 English law is applicable to any contract made under these terms. The English courts have exclusive jurisdiction.
15.2 If You are more than one person, each of You has joint and several obligations under these terms. A ‘person’ includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
15.3 If any provision or part-provision of these terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part- provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these terms.
15.4 We may treat You as insolvent if:
15.4.1 You are unable to pay Your debts as they fall due; or
15.4.2 You (or any item of Your property) become the subject of:
220.127.116.11 any formal insolvency procedure (examples of which include receivership, liquidation, administration, voluntary arrangements (for example a moratorium) or bankruptcy);
18.104.22.168 any application or proposal for any formal insolvency procedure; or
22.214.171.124 any application, procedure or proposal overseas with similar effect or purpose.
15.5 Sav e as expressly stated in clause 7.1.2, all information contained on and / or in (as appropriate):
15.5.1 Brochures; 15.5.2 Catalogues;
15.5.3 Our keycards; 15.5.4 Our memory sticks; 15.5.5 Our websites; 15.5.6 Any other website which displays Our products and / or offers Our products for sale; and 15.5.7 Any other promotional materials
is to be treated as illustrative only and is produced for the sole purpose of giving an approximate idea of the Goods described in it. Such information forms no part of any contract between Us and You should not rely on it in entering into any contract with Us.
15.6 Any typographical, clerical or other error or omission in any literature, quotation, price list, or other document or correspondence issued by Us will be subject to correction without liability being incurred by Us.
15.7 Any notice to be given under the Contract by either Us or You shall be in writing and shall be served by sending it by recorded delivery or by first class post to the other’s registered office address (for incorporated persons) or principal place of business (for all other persons), or by leaving such notice at such address. A notice served in accordance with this clause 15.7 shall be deemed to have been received: if delivered personally, when left at the address referred to in this clause 15.7 or if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Working Day after posting. This clause does not apply to the service of any proceedings or other documents in any legal action. A notice given under this agreement is not valid if sent by email.
15.8 Except for clauses 3.1, 7.8 – 7.13, 8.1.3, 8.2, 8.6, 8.7, 10.5 and this clause 15.8 which are made for the benefit of and shall be enforceable by each member of Our Group, a person other than Us and You shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Contract. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any other person.
15.9 The Contract constitutes the entire agreement between Us and You. In the event of any conflict, ambiguity or inconsistency between the components of the Contract, the components shall prevail in the following order of precedence: any written statements of the type referred to in clause 7.1.5, the Order Confirmation (if any), these terms and conditions, the aspects of the Order incorporated in to this Contract by reference under clause 1.2. The only statements, promises, representations, warranties, conditions and assurances upon which You may rely in relation to the Goods are those contained in the Contract.
15.10 You shall not, without Our prior written consent assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of Your rights or obligations under the Contract.
16. Prize Draw for Fortnum & Mason Hamper Competition
- Two prize draws per calendar year. Draws will be made on 1st June 2017 (closing date for entries 31st May) and 30th November 2017 (closing date for entries 29th November).
- Winners will be selected at random and notified via e-mail within 1 week of the draw.
- Hamper is the Grosvenor Hamper. If this is unavailable a Fortnum’s hamper of similar value (£100) will be sent instead.
- Competition not open to employees or family members of Zehnder Group UK Ltd