Terms & Conditions
NB CENTRALHEAT Terms and Conditions of Trade
1. GENERAL
(a)
In these conditions “we” means NB CENTRALHEAT and “you” means person/company
who agrees to buy or does buy goods from us. “Us”, “our”, “you” and “your”
shall be construed accordingly.
(b) Any sale of goods from us to you will take
place subject tothe terms and conditions hereintogether with, or as varied by,
any special written terms agreed and signed by one of our partners.
(c)
Our terms and conditions of sale shall apply to all contracts with us to the
exclusion of all other terms and conditions (including any terms or conditions
which you may purport to apply under any purchase order, confirmation of order
or any other document) without theprior written consent (signed by one of our
partners) that any other term is to take precedence over these terms and conditions.
(d)
Any variation to or exclusion of these terms and conditions shall be
inapplicable without prior written consent signed by one of our partners.
(e)
Nothing in any contract with us should be taken as providing that a third party
may in his own right enforce any term of such a contract, nor shall any terms
of any contract with us purport to confer any benefit upon any third party
unless the contrary is clearly and expresslyagreed in writing signed by one of
our partners.
(f)
You may not assign or novate any contract with us or any part of it without our
prior written consent signed by one of our partners. Neither you nor any other
party may infer our consent to a novation of any contract merely from our
conduct or silence or oralrepresentations.
(g)
No terms or conditions of any main building contract or sub-contract or other
contract of any kind shall be implied into any contract with us whether or not
we have notice of them, without our prior written consent signed by one of our
partners.
(h)
If any provision or part of a provision of the contract is found by any court,
or other body of competent jurisdiction, to be wholly or partly illegal,
invalid, void, voidable or unenforceable then to the extent it is found to be
illegal, invalid, void, voidable or unenforceable, it shallbe severable and the
remaining provisions of the contract (and the remainder of such provision if
appropriate) shall continue in full force and effect.
(i)
The headings in these terms and conditions are included for reference only and
are not intended to affect or limit the interpretation and effect thereof.
2. QUOTATIONS, OFFERS, ORDERS AND ACCEPTANCE
(a)
Our quotations shall be read by you as invitations to treat and not offers.
(b)
Any obvious typographical mistake or omission in any of our sales literature,
quotations, price lists, acceptances of offer, invoices or any other document
or any other information given by us shall be subject (at any time, whether we
or you first notice the mistake or omission) to correction and no liability
shall arise from such a mistake or omission.
(c)
We may withdraw or amend any quotation or change the price of any goods for any
reason and at any time prior to your acceptance of any order or offer.
(d)
All orders by you for goods shall be deemed to be an offer by you to purchase
such goods pursuant to these terms and conditions. We may then accept or
decline your offer.
(e)
Acceptance of your order will take place when we issue a written
acknowledgement to you or otherwise communicate our acceptance to you, in
writing, by letter or e-mail or verbal acceptance.
3. DESCRIPTION, QUANTITIES AND FITNESS FOR PURPOSE
(a)
The quantity and description of the goods which you agree to buy from us shall
be as set out in our written acknowledgement of your order, and if indicated in
the acknowledgement, in your order as accepted.
(b)
We warrant that the goods will at the time of delivery to you correspond to the
description given by us.
(c)
Except where you are dealing as a consumer (as defined in the Unfair Contracts
Terms Act 1977, Section 12) all other warranties, terms and conditions relating
to fitness for purpose, merchantability or condition of the goods and whether
implied by statute or common lawor otherwise are excluded. The rest of this
clause is without prejudice to the generality of this exclusion.
(d)
Any estimate given to you by us for goods requested is given without any
intention to make such an estimate a term or condition of any contract with us,
or to enter into a collateral contract in relation to that estimate. You agree
that we may give you suchestimates without liability for errors in such
estimates.
(e)
Any advice or recommendation as to the suitability or fitness of any goods for
any purpose given by us is given without liability for error on our part. If
you are a consumer, and you require advice as to suitability or fitness of any
goods, then you should seek advice froman appropriate builder, surveyor,
architect or other third party before ordering goods from us.
4. PRICE
(a)
The price payable for the goods sold to you shall be the price in our written
acknowledgement of your order, or (if and to the extent indicated and thereby
incorporated in the acknowledgement) in our quotation to you or your order.
(b)
If there is no price indicated in any of the above documents, then the price
shall be the price for the goods set out in any of our current published sales
literature (including any flyers) as most recently published (whether generally
or to you) before you made your order.
(c)
Unless we otherwise agree in writing all prices shall be deemed to be exclusive
of Value Added Tax which shall be payable in addition by you at the applicable
rate at the date of the invoice.
(d)
Unless otherwise agreed in writing with one of our partners, we reserve the
right to charge you the reasonable cost of transportation (usually, but not
exclusively, by road) of the goods to the destination requested by you.
5. TERMS OF PAYMENT AND ACCOUNT FACILITY
(a)
We may offer you anAccount Facility in our absolute discretion. The extent of
an Account Facility offered by us to you will be assessed entirely at our
discretion. Please ask us if you wish to apply for an Account Facility.
(b)
For all other sales (or when your Account Facility has been suspended or
closed, or its limit reached or exceeded) payment shall be made with the order
in cash or by debit or credit card. If payment is not made with any order, we
have the right to require paymenton delivery and to refuse to deliver those or
any other goods (whether actually paid for or not) until payment is received.
If we have reason to suspect that a
debit or credit card offered for payment is unlikely to be honoured or to be
good for payment or otherwiseunauthorised by the apparent payer or card holder,
we may require payment in cash.
(c)
Payment for goods and /or services purchased using an Account Facility is due
by the 25th day of the calendar month following date of supply of
the goods and/or services or immediately when the limit of facility is reached.(d)Whether
or not you have an Account Facility, you may not withhold or set off (against
any amount you owe us) any sums, whether in respect of a claim by you relating
to goods supplied by us or on any other contract between you and us or
howsoever arising forany reason, whether
in debt, damages or otherwise, unless such sum is not contested by us and we
have agreed in writing that you may so withhold or set off such sums.
(e)
If you fail to make any payment on the due date (by means of an account
facility or otherwise) then, without prejudice to any other right or remedy
available to us, we shall be entitled to:
(i)
terminate any contract between you and us by written or oral notice and/or suspend
further deliveries of goods to you;
(ii)
appropriate any payment made by you to us (or any goods supplied to us) under
any other contract between you and us as we choose (and notwithstanding any
purported appropriation by you);
(iii)
charge interest at the rate of 2% per month on the unpaid balance. This
interest accrues on a day to day basis from the due date for payment until
receipt by us of the full amount whether before or after judgment; and
(iv)
be indemnified by you against all costs and expenses (including legal costs and
expenses on a full indemnity basis) incurred by us in recovering sums due or in
exercising our rights pursuant to this clause 5.
6. COLLECTION AND DELIVERY
(a)
Unless otherwise agreed, you will collect the goods from us within 7 days of
our acknowledgement of your order.
(b)
If we have agreed to deliver goods to you then delivery shall be made to the
address which you shall give us (whether your address or that of a third
party).
(c)
We shall not be liable to you for any loss you may suffer as a result of a
failure to deliver on any particular date, or at any particular time, nor shall
time be of the essence in relation to the delivery of any goods sold under any
contract with us.
(d)
If agreed, the goods will be tendered to you for delivery at the address noted
at 6(b) above
(e)
Where we agree to deliver your goods, you warrant that there will be suitable
access for the delivery vehicle at the requested delivery address. If you are
in any doubt as to access, you must adviceus well before the time arranged for
delivery. If nosuitable road exists, the goods will be tendered for delivery at
the nearest place to which, in the opinion of the driver, his vehicle can
safely proceed and stop for unloading or (at his or our choice) the goods will
be returned to us for you to collect.
(f)
Unless we agree with you in advance of delivery, our vehicle will not be
equipped with a crane or machinery for unloading and you will make all
arrangements for suitable labour and equipment to unload the goods promptly.
Under no circumstances will our driver oremployees or agents be responsible for
unloading your goods when they are tendered for delivery.
(g)
If you refuse or fail to take delivery of goods tendered in accordance with the
contract we shall nevertheless be entitled to full payment for the goods so
tendered. We shall also be entitled to store at your risk and cost any goods of
which you refuse or fail to take delivery. In that case you will also be liable
for any additional costs of carriage incurred as a result of your refusal or
failure to accept goods tendered for delivery.
(h)
Whether we store your goods or not, we will be entitled to terminate the
contract for sale of the goods to you and then be free to sell the goods to any
other party if you show no serious intention to collect them or to accept
delivery of them within 14 days from the date of the contract. In
thosecircumstances, you will not be entitled to repayment of the price you paid
for the goods and agree that you will have no claim for damages or breach of
contract against us.
(i)
At your request, we will within 3 months of delivery provide evidence of
delivery of goods ordered in the form of acopy of a delivery note or other
suitable document. If you do not raise any query about delivery within such
period, the goods shall be deemed to havebeen delivered in accordance with your
order.
7. ACCEPTANCE OF THE GOODS
(a)
You shall be deemed to have accepted the goods 2 working days after delivery to
you.
(b)
You shall make a suitable inspection of the goods on delivery.
(c)
You should confirm to your own satisfaction that the goods delivered correspond
with the goods ordered.
(d)
You shall be deemed to have accepted the goods 2 working days after delivery to
you. Following your actual or your deemed acceptance of the goods, you will not
be entitled to reject the goods.
8. RISK
The
risk in the goods shall pass to you upon delivery, that is when you take
possession of them at our premises, or when they are tendered to you for
delivery at the place specified by you. For the avoidance of doubt, the risk in
the goods is yours while you unload them from our vehicle.
9. TITLE TO GOODS
(a)
Regardless of delivery having been made, property in the goods shall not pass
from us to you until:
(i)
we have received payment of all sums due to us in respect of goods sold to you
together (where applicable) with VAT and the cost of packaging and delivery
plus any interest and charges due thereon;
(ii)
no other payments costs or expenses are due from you to us.
(b)
Until property in the goods passes to you in accordance with the preceding sub-clause,
you shall hold the goods on a fiduciary basis as baileefor us. You will store
the goods (at no cost to us) separately from all other goods in your possession
and marked in such a way that theyare clearly identified as our property.
(c)
Notwithstanding that the goods or any of them remain our property, you may sell
or use the goods in the ordinary course of your business at full market value
for our account. Any such sale or dealing shallbe a sale or use of our property
by you on your own behalf andyou shall deal as principal when making such sales
or dealings. Until property in the goods passes from us the entire proceeds of
sale or otherwise of the goods shall be held in trust for us and shall not be
mixed with other moneys or paid into any overdrawn bank accountand shall at all material times be identified as our
monies.
(d)
We will be entitled to recover the price (plus VAT and any other associated
charges and interest) notwithstanding that property in any of the goods has not
passed from us.
(e)
Until such time as property in the goods passes from us in accordance with your
acceptance of these terms and conditions,
you shall upon request deliver up such goods as have not ceased to be in
existence or resold, to us. If you fail to do so, we may enter upon any
premises owned, occupied or controlled by you where the goods aresituated and
repossess the goods. On the making of such a request your rights under sub-clause
9(c) shall cease.
(f)
You shall not pledge or in any way charge by way of security for any
indebtedness any of the goods which are our property. Without prejudice to our
other rights, if you do so, all sums whatsoever owing by you to us shall
forthwith become due and payable.
(g)
You shall insure and keep insured the goods to the full price (as agreed in the
contract for sale of the goods) against all risks to our reasonable
satisfaction until the property in the goods passes to you and shall whenever requested
by us, produce a copy of the policy of insurance.Without prejudice to our other
rights, if you fail to insure all sums
whatsoever owing by you to us shall forthwith become due and payable.
(h)
You shall promptly deliver such prescribed particulars of this contract to the
Registrar of Companies as required by and in accordance with Part XII of the
Companies Act 1985 as amended or in accordance with any substantial
re-enactment thereof. Without prejudice to our other rights,if you fail to do
so all sums whatsoever owing by you to us shall forthwith become due and
payable.
(i)
The authority given to you pursuant to sub-clause 9(c) will continue until
otherwise notified to you by us or until the happening of any of the following
events (whichever is earlier):
(i)
any notice to you that an administrative receiver or receiver or manager is
about to be or has been appointed over your undertaking or a material part
thereof;
(ii)
any petition to wind you up has been presented against you or you have proposed
or know of any proposal to pass a resolution to wind up the company.
(iii)
a decision by you to make a voluntary arrangement or composition with your
creditors or receipt of a notice from any of your creditors which is about to
make a proposal for the same;
(iv)
you becoming unable to pay your debts as defined by the Insolvency Act 1986; or
(v)
any notice to you that a petition for an administration order has been
presented against you or is about to be presented or an administration order
has been ordered against you.
And
further you shall immediately notify us in writing upon the happening of any
suchevent.
(j)
On receipt of written notice from us or on the happening of any of the events
set out in the preceding sub-clause,
your authority to sell our goods shall immediately be withdrawn and all such
goods and
products which you have not paid for in full shall be delivered
back to us forthwithat your cost and risk together with all things made
entirely therefrom.
10. LIABILITY
(a)
You acknowledge that you do not rely on, and waive any claim for breach of any
representations made by our directors, employees or agents.
(b)
In the case of any defect:
(i)
discoverable upon reasonable examination, we will make good by repair or
replacement (at our option) any defects in the goods due solely to defective
workmanship or materials as are notified to us before deemed acceptance of the
goods;
(ii)
not discoverable upon reasonable examination, provided that you notify us
within 2 working days of the date that you discover such defect, we will make
good by repair or replacement (at our option) any defects in the goods due
solely to defective workmanship ormaterials. This clause takes effect subject
to the specific exclusions set out at
clause 13 post
(c)
In the case of any mis-description on the container or packaging of any goods
purchased from us, provided that you notify us of the mis-description within 2
working days of the date when you discover the mis-description and provided
also that you return the mis-described goodsto us in the same condition as sold
to you, we will replace them with goods corresponding to the description on the
container and/or package or (in our sole discretion) offer you a refund.
(d)
provided always (in the case of each of 10(b)(i) and (ii) and 10(c) above)
that:
(i)
our above obligations shall not extend to defects caused by wilful damage,
negligence (other than by us or our employees or agents), fair wear and tear,
alteration or repair of the goods without our prior written approval, incorrect storage, application, movementor
installation or the continued use thereof after they have been found to be defective
or mis-described or (if earlier) could reasonably have been so found;
(ii)
we shall not be responsible either for the cost of removing any defective (or
wrong) goods from any place where they are installed or affixed (or making good
the place after removal) or for the cost of installing or affixing in such
place any repaired or replacementgoods unless the same has been previously
agreed in writing by one of our partners.
(e)
We will not accept liability for shortages in quantities delivered unless you
notify us of any claim in respect of short delivery of the goods within 2
working days of delivery. In those circumstances our liability shall be limited
to making good the shortage to you within a reasonable time.
(f)
Save as set out in these conditions and save for liability for death or
personal injury resulting from our negligence and save for breach of our
undertakings as to title implied by statute, all express or implied conditions,
representations or warranties as to description, quality or fitness of the
goods or otherwise are expressly excluded. We shall not be liable for any
consequential, indirect or economic loss or for any loss or depletion of profits,
business, revenue, goodwill or anticipated savings,(whether arising from breach
of contract, tort (includingbreach of statutory duty and negligence), misrepresentation
or otherwise).
(g)
Where fine or special tolerances or particular specifications are required in
the goods supplied beyond those generally accepted in the building trade, we
shall not be liable if such goods do not fit your particular requirements unless
such tolerances or specifications havebeen clearly and expressly notified to us
in writing at the time of your order and we have acknowledged in writing that
we are prepared to accept such an order and to supply goods with such
tolerances and specifications.
(h)
Where the goods are sold under a consumer sale your statutory rights are not
affected by these conditions.
(i)
On request, we will provide information about any guarantee offered by a
manufacturer and available to you in respect of the goods.
11. CANCELLATIONS OF ORDERS
(a)
If you wish to cancel your order after we have accepted it, we may (but are not
obliged to) agree to cancel the contract. We will not cancel any contract for
goods which are specially ordered by us after we have accepted an order of
yours nor will any refund be offered to you in respect of such goods where they
are subsequently returned.
(b)
Notwithstanding the preceding sub-clause, if you are a “consumer” under a
“distance contract” (as defined in the Consumer Protection (Distance Selling)
Regulations 2000) you have the right to cancel your contract with us within 7
working days after the day after the goods aredelivered. You must then either
return the goods to the branch from which they were delivered or request us to
collect the goods; in the latter case you will be liable to pay our costs of
collection.
(c)
Even as a consumer, you will not have a right of cancellation under the
preceding sub-clause where the goods are made to your specification or are
personalised or are liable to deteriorate or expire rapidly.
12. RETURN OF GOODS AND BOILERS, SHOWERS AND SHOWER BOOSTER
PUMPS
(a)
If you want to return goods bought from us and delivered to you because you
made a mistake in ordering them from us (or have changed your mind), we may in
our absolute discretion accept the return of such goods provided they are in
original packaging and subject to deduction of a handling charge of 20% of the
contract price. If we decide to accept the return of such goods, suchacceptance
shall be upon such terms as we may determine and in particular we reserve the
right to charge for the carriage and handling of such goods before refunding to
you the contract price less the 20% handling charge. We will not accept the
return of goods which are liable to deteriorateor expire rapidly. If we do
agree to accept the goods, they must be returned within 14 days of the delivery
date stated on the invoice or the date when we agree to accept them, whichever
is later or as otherwise specifically agreed with you in writing.
(b)
We are not responsible for the manufacture of boilers, thermostatic shower
cartridges with associated equipment, boiler pumps and shower booster pumps.
Without prejudice to your statutory rights, we suggest that you contact the
manufacturer directly for technical assistance, engineering or other specific
advice if you experience difficulty installing these items or claim they are faulty
We can only assist by helping you contact the manufacturer to obtain such
advice .
(c)
If we incur any costs as a result of the negligent or incorrect installation,
fitting or removal by you or your agent(s) of any boiler, shower or shower pump
(whether faulty or not), then you agree to reimburse us for those costs in
full.
13. FORCE MAJEURE
We
shall be under no liability for any loss, damage, delay or expenses caused
wholly or in part by Act of God, outbreak of war, civil commotion, governmental
policies or restrictions or control, including restrictions of export or import
or other licences, trade or industrial disputesof whatever nature, whether or
not such dispute involves us, our employees or agents, or by any other event
whatsoever which is beyond our control, and in any such circumstance, we may
omit goods from, or cancel your order, or postpone delivery of the goods
ordered.
14. BANKRUPTCY OR INSOLVENCY
If,
(a)
(being a company) you make a proposal for or enter into a scheme of arrangement
or a composition with your creditors or fail to comply with a statutory demand
or become insolvent or pass a resolution for your winding- up or a petition for
your winding - up is presentedor you are wound up (otherwise than for the
purpose of amalgamation or reconstruction), or
(b)
(being a company) a petition for an administration order is presented against
you or a receiver or administrative receiver is appointed over any of your
assets or undertaking or circumstances arise which would entitle the court or a
creditor to appoint a receiver oradministrative receiver over your undertaking
or any material part thereof, or
(c)
(being an individual, sole trader or a partner in a partnership) you are or
become insolvent or an application is made to the court under Part VIII of the
Insolvency Act 1986 for an interim order for the purpose of a voluntary
arrangement or an order is made for theadministration of your estate pursuant
to Part VI of the County Courts Act 1984 or a bankruptcy petition is presented
by or against you or you are adjudged or declared bankrupt, or
(d)
(whether you are a company, a partnership or an individual) you take or suffer
any similar action in consequence of debt.
Then
we may forthwith stop any goods in transit and/or suspend furtherdeliveries
and/or terminate all contracts with you without prejudice to thecontinuation of
all our rights hereunder and to any existingclaims. Where goods have been
delivered but not paid for, the price shall become immediately due and payable.
15. NON-WAIVER OF RIGHTS
The
failure by either you or us to exercise or enforce any rights conferred by the
contract shall not be deemed to be a waiver of any such right nor operate so as
to bar the exercise or enforcement of such right at any time thereafter.
16. HEALTH & SAFETY
(a)
Certain products supplied by us could if incorrectly used, give rise to risks
to health and safety concerns. Information in respect of such products is
available from us on request. You undertake to us that you will ensure
compliance so far as is reasonably practicable by your employees,agents,
licensees and customers with any instructions given by us or the manufacturer
or by law for the purpose of ensuring that such goods will be safe and without
risk to health when properly used and will take any other steps or precautions,
having regard to the natureof the goods, as are necessary to preserve the
health and safety of person handling, using or disposing of them.
(b)
You also agree that we have no liability to you (or any person to whom you
permit access to the goods) for any use or abuse of any goods we sell you if
they are used without due care and without regard to both sensible practices
and any warning or instructions availableto you from us or from the container
or packaging on the goods.
17. DATA PROTECTION
(a)
All your personal data which we hold will be obtained and processed lawfully
and fairly for the purposes of (i) processing your orders (both present and
anticipated), (ii) checking your credit status, if you seek or wish to have or
do have an account facility with us and (iii)notifying you of any special
offers which we believe may be of interest to you (unless you ask us not to
notify you of such offers, in which case the data will not be held for that
purpose).
(b)
On written request made by you at any time, we will remove all or any of your
personal details held on our computer system. If this is done, we may forthwith
cancel or suspend your account facility.
(c)
None of your personal data will be disclosed to any third party or used for any
other purpose than those set out above unless ordered by a Court or we are
otherwise obliged by law to do so. We will not keep or seek or retain data
irrelevant to those purposes. You acceptthat we may be obliged by law or order
to pass on to third parties information for the prevention of fraud, crime,
money-laundering and the good administration of justice without your consent or
knowledge.
(d)
We will strive to ensure that your personal data which we keep is accurate and
up to date and we will not keep it for longer than is necessary.
(e)
We will take appropriate security measures against unauthorised access to,
alteration, disclosure and destruction and against accidental loss or
destruction of your personal data.
(f)
We acknowledge and recognise your rights under the Data Protection Act 1988 for
information from us.
18. NOTICES
(a)
Any notices given under or pursuant to any term or condition of any sale of
goods from us to you shall be in permanent readable form and shall be deemed
properly delivered if addressed to the party concerned at its principal place
of business or last known address or registered office. Any notice hereunder
shall be deemed to have been delivered, if sent by First-class post, 2 days
after posting.
(b)
Notwithstanding the terms of the
preceding sub-clause, we may by e-mail accept or confirm your orders.
19. APPLICABLE LAW AND JURISDICTION
Any contract with
us shall be governed by and construed in accordance with English law and each
party agrees to submit to the exclusive jurisdiction of the English courts as regards
any claim or matter arising under the contract.