Terms of Trade - CBD Windows & Doors Ltd
Terms of Trade
1.1 “CBD Windows and Doors Ltd” shall mean CBD Windows and Doors Ltd Ltd its agents or employees thereof.
1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from CBD Windows and Doors Ltd.
1.3 “Goods” shall mean:
1.3.1 all Goods of the general description specified on the front of this agreement and supplied by CBD Windows and Doors Ltd to the Customer; and
1.3.2 all Goods supplied by CBD Windows and Doors Ltd to the Customer; and
1.3.3 all inventory of the Customer that is supplied by CBD Windows and Doors Ltd; and
1.3.4 all Goods supplied by CBD Windows and Doors Ltd and further identified in any invoice issued by CBD Windows and Doors Ltd to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Goods that are marked as having been supplied by CBD Windows and Doors Ltd or that are stored by the Customer in a manner that enables them to be identified as having been supplied by CBD Windows and Doors Ltd; and
1.3.6 all of the Customer’s present and after-acquired Goods that CBD Windows and Doors Ltd has performed work on or to or in which goods or materials supplied or financed by CBD Windows and Doors Ltd have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Goods and Services” shall mean all goods, products, services and advice provided by CBD Windows and Doors Ltd to the Customer and shall include without limitation the sale of labour, Installation, Design service, consultancy, windows, doors, hire charges, insurance charges, or any fee or charge associated with the supply of Goods and Services by CBD Windows and Doors Ltd to the Customer.
1.5 “Price” shall mean the cost of the Goods and Services as agreed between CBD Windows and Doors Ltd and the Customer and includes all disbursements eg charges CBD Windows and Doors Ltd pay to others on the Customer's behalf subject to clause 4 of this contract.
2. ACCEPTANCE
2.1 Any instructions, verbal or written received by CBD Windows and Doors Ltd from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises CBD Windows and Doors Ltd to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Goods and Services provided by CBD Windows and Doors Ltd to any other party.
3.2 The Customer authorises CBD Windows and Doors Ltd to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4. PRICE
4.1 Where no price is stated in writing or agreed to orally the Goods and Services shall be deemed to be sold at the current amount as such Goods and Services are sold by CBD Windows and Doors Ltd at the time of the contract.
4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the control of CBD Windows and Doors Ltd between the date of the contract and delivery of the Goods and Services.
5. PAYMENT
5.1 Unless otherwise agreed or stated at the time of entering the contract, Invoice is payable on being presented, and or before delivery of goods and services.
5.2 If Customer is holding a credit account and terms have been agreed to be paid on progress claims, in such case Claimed Payment for Goods and Services shall be made in full on or before the 20th day of the month following the date of the invoice
(“the due date”).
5.3 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
5.4 Any expenses, disbursements and legal costs incurred by CBD Windows and Doors Ltd in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
5.5 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.6 A deposit may be required.
6. QUOTATION
6.1 Where a quotation is given by CBD Windows and Doors Ltd for Goods and Services:
6.1.1Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and 6.1.2The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.1.3CBD Windows and Doors Ltd reserve the right to alter the quotation because of circumstances beyond its control. 6.2Where Goods and Services are required in addition to the quotation the Customer agrees to pay for the additional cost of such Goods and Services.
6.3 Cost Fluctuations:- For Ongoing Projects which have end date more than of 90 Days from Date of acceptance, Cost Fluctuations of The Original Contract Price shall be adjusted for any increase in the cost of Labour, subcontractors or materials that could not reasonably have been foreseen by the CBD Windows & Doors at the time this Contract is signed by the Parties, and which would otherwise have the effect of eroding the CBD Windows’s profit margin. The CBD WD must be able to substantiate the increase by reference to written evidence such as quotations or invoices, both of the subcontractor or supplier pricing that formed the basis of the Original Contract Price, and the increased price of the same item.
7. RISK
7.1 The Goods and Services remain at CBD Windows and Doors Ltd risk until delivery to the Customer.
7.2 Delivery of Goods and Services shall be deemed complete when CBD Windows and Doors Ltd gives possession of the Goods and Services directly to the Customer or possession of the Goods and Services is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
7.3 The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to CBD Windows and Doors Ltd making time of the essence.
7.4 Where CBD Windows and Doors Ltd delivers Goods and Services to the Customer by instalments and CBD Windows and Doors Ltd fails to deliver or supply one or more instalments the Customer shall not have the right to cancel the contract but shall have the right to claim compensation as a severable breach.
8. AGENCY
8.1 The Customer authorises CBD Windows and Doors Ltd to contract either as principal or agent for the provision of Goods and Services that are the matter of this contract.
8.2 Where CBD Windows and Doors Ltd enters into a contract of the type referred to in clause 17.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
9. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
9.1 Title in any Goods and Services supplied by CBD Windows and Doors Ltd passes to the Customer only when the Customer has made payment in full for all Goods and Services provided by CBD Windows and Doors Ltd and of all other sums due to CBD Windows and Doors Ltd by the Customer on any account whatsoever. Until all sums due to CBD Windows and Doors Ltd by the Customer have been paid in full, CBD Windows and Doors Ltd has a security interest in all Goods and Services.
9.2 If the Goods and Services are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods and Services shall remain with CBD Windows and Doors Ltd until the Customer has made payment for all Goods and Services, and where those Goods and Services are mixed with other property so as to be part of or a constituent of any new Goods and Services, title to these new Goods and Services shall deemed to be assigned to CBD Windows and Doors Ltd as security for the full satisfaction by the Customer of the full amount owing between CBD Windows and Doors Ltd and Customer.
9.3 The Customer gives irrevocable authority to CBD Windows and Doors Ltd to enter any premises occupied by the Customer or on which Goods and Services are situated at any reasonable time after default by the Customer or before default if CBD Windows and Doors Ltd believes a default is likely and to remove and repossess any Goods and Services and any other property to which Goods and Services are attached or in which Goods and Services are incorporated. CBD Windows and Doors Ltd shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. CBD Windows and Doors Ltd may either resell any repossessed Goods and Services and credit the
Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and Services and credit the Customer’s account with the invoice value thereof less such sum as CBD Windows and Doors Ltd reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.Where Goods and Services are retained by CBD Windows and Doors Ltd pursuant to clause 9.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
9.4 The following shall constitute defaults by the Customer:
9.4.1 Non payment of any sum by the due date.
9.4.2 The Customer intimates that it will not pay any sum by the due date.
9.4.3 Any Goods and Services are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods and Services.
9.4.4 Any Goods and Services in the possession of the Customer are materially damaged while any sum due from the Customer to CBD Windows and Doors Ltd remains unpaid.
9.4.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distains against any of the Customer’s assets.
9.4.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
9.4.7 Any material adverse change in the financial position of the Customer.
9.5 If the Credit Repossession Act applies to any transaction between the Customer and CBD Windows and Doors Ltd, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
10. PAYMENT ALLOCATION
10.1 CBD Windows and Doors Ltd may in its discretion allocate any payment received from the Customer towards any invoice that CBD Windows and Doors Ltd determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by CBD Windows and Doors Ltd, payment shall be deemed to be allocated in such manner as preserves the maximum value of CBD Windows and Doors Ltd purchase money security interest in the Goods and Services.
11. DISPUTES AND RETURN OF GOODS
11.1 No claim relating to the Goods and Services will be considered unless made within seven (7) days of delivery.
11.2 No Goods will be accepted for return without prior approval of CBD Windows and Doors Ltd. Any Goods considered for return must be unused, undamaged and still in original unopened packaging. A 15% restocking fee applies. The Customer is liable for all costs associated with returns.
11.3 There will be no returns or credit for Custom made, Site Specific, or special orders.
11.4 Final Site Measures and Quotes will be send to Customer, it is customer’s responsibility to check and confirm the sizes and designs, any changes post production will incur remaking cost, which will be invoiced to client and will be payable.
12. LIABILITY
12.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon CBD Windows and Doors Ltd which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on CBD Windows and Doors Ltd, CBD Windows and Doors Ltd liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
12.2 Except as otherwise provided by clause 12.1 CBD Windows and Doors Ltd shall not be liable for:
12.2.1 Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by CBD Windows and Doors Ltd to the Customer; and
12.2.2 The Customer shall indemnify CBD Windows and Doors Ltd against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of CBD Windows and Doors Ltd or otherwise, brought by any person in connection with any matter, act, omission, or error by CBD Windows and Doors Ltd its agents or employees in connection with the Goods and Services.
13. WARRANTY
13.1 Standard Warranty of Joinery applicable from date of Supply :-
i) Glass Manufacture’s Warranty 10 Years
ii) Glazing 5 Years
iii) Aluminium Extrusion 10 Years
iv) Powder Coat Finish 10 Years -15 Years ( Depending on Finish Selected at the time of Quoting)
v) Hardware 2 Years ( Client Supplied hardware carries no warranty)
vi) Workmanship 5 Years
13.2 Any written warranty that CBD Windows and Doors Ltd provide to the Customer will also form part of these terms and conditions of trade.
13.3 No representation, condition, warranty or premise expressed or implied by law or otherwise applies to the Goods and Services except where goods are supplied or services provided pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in this contract.
13.4 CBD Windows and Doors Ltd does not provide any warranty that the Goods and Services are fit and suitable for the purpose for which they are required by the Customer and shall not be liable if they are not.
13.5 Manufacturer’s warranty terms and conditions applies where applicable.
14. CONSUMER GUARANTEES ACT
14.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and Services from CBD Windows and Doors Ltd for the purposes of a business in terms of section 2 and 43 of that Act.
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for CBD Windows and Doors Ltd agreeing to supply Goods and Services and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to CBD Windows and Doors Ltd the payment of any and all monies now or hereafter owed by the Customer to CBD Windows and Doors Ltd and indemnify CBD Windows and Doors Ltd against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
16. CANCELLATION
16.1 CBD Windows and Doors Ltd shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Goods and Services to the Customer if the Customer fails to pay any money owing after the due date or the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.
16.2 Any cancellation or suspension of this agreement shall not affect CBD Windows and Doors Ltd claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to CBD Windows and Doors Ltd under this contract.
17. COPYING AND SAMPLES
17.1 Samples shown to the Customer may vary from the Goods supplied.
18. MISCELLANEOUS
18.1 CBD Windows and Doors Ltd shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
18.2 Failure by CBD Windows and Doors Ltd to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations CBD Windows and Doors Ltd has under this contract.
18.3 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.4 The client shall not assign all or any of its rights or obligations under this contract without the written consent of CBD Windows and Doors Ltd.
18.5 Unless CBD Windows and Doors Ltd elects otherwise, any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996.
19. Construction Contracts Act 2002
19 .1 Goods and Quotation are supplied under the terms of The Construction Contracts Act 2002