(1) Alan Joy Windows Limited (Company Number 03761837) whose registered office is 541 Outmarsh, Semington, Trowbridge, Wiltshire BA14 6JX (“the Company” or “we, us or our”); and
(2) The “Customer” or “you/your” as specified in the Order Form.
YOUR ATTENTION IS DRAWN TO CLAUSE 6 (LIMITATION OF LIABILITY)
1.1 The submission by you of the Order Form shall be deemed to be an offer (or Order) by you to purchase the Goods and Services from us subject to the terms of the Agreement.
1.2 The Order Form is accepted by us and becomes a legally binding contract on the terms set out therein together with the Schedule and these terms and conditions:
1.2.1 if you sign the Order Form in person (other than by means of ‘distance’ communication e.g. telephone/email/facsimile) when our agent or representative signs the Order Form and it is received by us; or
1.2.2 if you submit your signed Order Form by means of a ‘distance’ communication and we confirm the terms of your Order in writing or otherwise.
1.3 If your Order is placed exclusively by means of distance communication, subject to the following terms of this clause 1.3, under the Consumer Contracts (Information, Cancellation and additional charges) Regulations 2013 you have the right to cancel this Agreement by sending, faxing or delivering to us written confirmation of your cancellation (although we may in our discretion be willing to accept a verbal confirmations but we are not obliged to). In such circumstances, we shall refund any sums paid by you and received by us under this Agreement:
1.3.1 In respect of Services, you may cancel the Agreement without reason or penalty within 14 working days of the date when the Agreement becomes a legally binding contract. However, if you agree to the work commencing within those 14 days you will lose your right to cancel the Agreement;
1.3.2 In respect of Goods ordered, the 14 day period during which you may cancel the Agreement without reason or penalty starts on the date you receive the Goods;
1.3.3 You will lose your right to cancel the Agreement after the relevant 14-day period referred to in clause 1.3.1 or 1.3.2 (as the case may be) has expired subject to clauses 1.4, 1.5 and 1.6;
1.3.4 If you wish to return the Goods, you must send them to us or alternatively we may collect the Goods from you. We reserve the right not to cover the cost of returning the Goods to us;
1.3.5 The right to cancel under this clause 1.3 does not apply to Goods that have been made to your bespoke specification.
1.4 The Order Form and the Schedule is based on our preliminary assessment and is subject to change depending on the result of the survey report by our Technical Surveyor and clauses 1.5 and 1.6. If the survey report reveals any problems:
1.4.1 We may be able to absorb any additional costs and not pass these onto you if such costs are nominal; or
1.4.2 We reserve the right to increase the Contract Price by a material amount if the problems are more substantial. If so we will notify you of the revised price and you will have the choice to proceed at the revised price or to cancel the Agreement and obtain a full refund of any monies already paid by you; or
1.4.3 We reserve the right to cancel the Agreement without any liability to you save for providing a full refund should the survey report reveal that the proposed works cannot reasonably be carried out or are of a type materially different from that indicated by the preliminary assessment. We will endeavour to provide you with written details of our reasons although we may need to make a reasonable charge for this service if you require a detailed report.
1.5 If any rotten wood, structural defects (including dead plasterwork, brickwork, lintels, broken damp course etc) or other significant problems are found during the course of carrying out the work, unless such work is specified in the Schedule, if any such work is found to be necessary we will inform you of this and provide you with an estimate for the necessary works to be carried out. If you do not agree to the estimate and/or that works are required then we reserve our right to cancel this Agreement without any liability to you and to recover from you any costs or expenses we have incurred and make a reasonable pro-rata charge for our work undertaken up to that date.
1.6 If you refuse to consent to making any necessary application for Planning Permission, Listed Building Consent or equivalent permission/consent or if any such permission/consent is refused then either party may cancel the Agreement. In such circumstances we reserve the right to make a reasonable charge for any costs or expenses we have incurred up to that date.
2.1 Delivery and installation is subject to:
2.1.1 a satisfactory survey report. We will use all reasonable endeavours to arrange for a survey to be carried out within 14 days of this Agreement being entered into; and
2.1.2 the granting of any Planning Permission, Listed Building Consent or equivalent required. Our Technical Surveyor will enquire as to whether such permissions or consents are required and handle any application process.
2.2 Delivery and installation will take place at your address as detailed on the Order Form.
2.3 We aim to deliver the Goods within 21 to 28 days of the date of the Agreement with installation taking place within 10 days of delivery. Delivery and installation forecasts are quoted in good faith in accordance with the situation at the date of Order. They are not guaranteed and are not of the essence of the Agreement, but we will make all reasonable efforts to complete as forecast.
2.4 The quantity and description of the Goods shall be as set out in the signed Order Form or as otherwise confirmed by us as the case may be. All samples, drawings, descriptive matter, specifications and advertising issued us and any descriptions or illustrations contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Agreement and this is not a sale by sample.
2.5 You agree to permit access to us, our servants and workmen (including sub-contractors) to the installation address at all reasonable times in order that we may carry out the Services and you agree to do all that is reasonably required to provide a safe working environment. You must allow installation to start within 28 days of being informed by us that the Goods are ready. If by this time you have not permitted installation to start, we reserve the right to require payment from you at this time to cover our costs incurred to-date up to 60% of the Contract Price (with the balance of the Contract Price being payable once the installation is complete).
3.1 We endeavour to source all Goods we supply to you from reputable manufacturers including doing we all can to source glass of a first class standard. We will rectify faults developing due to defective Goods within the guarantee period in accordance with the terms of the attached Guarantee.
3.2 We shall use all reasonable skill and care in the provision of the Services for you. All our Services are guaranteed by us within the guarantee period in accordance with the terms of the attached Guarantee.
3.3 The Guarantee is given in addition to and not in substitution for all your rights under common law and statute however the Guarantee is ineffective until such time as the Contract Price has been received in full from you. Where possible and if necessary we will assign the benefit of any guarantee from a manufacturer to you.
3.4 It may be necessary for us to subcontract parts of the Services to independent sub-contractors and you hereby agree to us so doing. Notwithstanding that the Services may be carried out by a third party we will remain responsible for the proper performance of the Services.
4.1 The Contract Price plus any applicable VAT is as specified on the Order Form. We may need to vary the Contract Price in accordance with the rest of clause 4.
4.2 We may need to make additional charges where:
4.2.1 Any of the problems referred to in clause 1.5 are found and remedial work is necessary in order for us to complete our work;
4.2.2 New timber has been specified in the Schedule, the Contract Price shall include the cost of priming the surface of the new wood but not any other painting;
4.2.3 There are costs associated in making any applications for Planning Permission, Listed Building Consent or similar.
4.3 It may be necessary for you to pay a deposit where we need to make advance payments to sub-contractors and/or the manufacturers of the Goods or other good reason. Where a deposit is paid and we have incurred irrecoverable costs with a third party then we reserve the right to retain the deposit even if you cancel the Agreement (except under clause 1.3).
4.4 Payment of the Contract Price shall be made in accordance with the terms of the Order Form.
4.5 You may not cancel the Agreement other than in accordance with Clause 1 unless we agree to such cancellation in our discretion in which case we reserve the right to charge you for any costs or expenses we have incurred together with a reasonable pro rata sum in respect of any work undertaken up to that time. In particular, but without limiting the foregoing, we may need to charge you if we have ordered bespoke Goods to your specification and we are unable to return them to the manufacturer and recover our costs.
4.6 If you fail to pay us any sum due pursuant to the Agreement, then we reserve the right to charge you interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made.
5.1 Ownership of the Goods shall not pass to you until we have received in full (in cash or cleared funds) the Contract Price and all other sums due to us from you.
5.2 Once the Goods have been delivered you are responsible for their safekeeping until the work is complete and ownership of them has passed to you under clause 5.1 above.
6.1 Subject to the express terms herein, the following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
(a) any breach of this Agreement; and
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.
6.2 All warranties, conditions and other terms implied by statute or common law (save as is not permitted by section 16 of the Supply of Goods and Services Act 1982 or otherwise) are, to the fullest extent permitted by law, excluded from the Agreement.
6.3 Nothing in this Agreement excludes or limits our liability for death or personal injury caused our negligence, or for fraud or fraudulent misrepresentation, or for any matter which it would be illegal for us to exclude or limit or attempt to exclude or limit its liability.
6.4 Subject to clause 6.2 and clause 6.3:
(a) Our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the amount recoverable from our insurers under our indemnity insurance or if no amount is recoverable, no more than £20,000; and
(b) We shall not be liable to you in the following circumstances:
if you fail to adhere to the Care and Maintenance Instructions provided with the Goods;
any imperfection inherent in the glass making process;
any damage caused to your property (including any redecoration required) other than as a result of our negligence or wilful default (including of our employees, agents and subcontractors);
any loss or damage caused by us, our employees, agents or sub-contractors in circumstances where loss or damage is caused as a result of pre-existing structural defects;
any condensation caused by or in relation to the Goods due to atmospheric conditions or other matters beyond our control; and
any indirect or consequential loss, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Agreement.
7.1 We are a member of the Fenestration Self Assessment Scheme (FENSA) and as such are required to provide details of the Goods and Services and your name and address to FENSA following completion of the works. By entering into this Agreement you agree to us providing FENSA with your details.
7.2 You agree to us providing your details to third parties (e.g. subcontractors, deliverymen etc) in order to supply the Goods and carry out the Services under this Agreement.
8.1 No work other than specified in the Agreement will be carried out and this Agreement contains all the terms and conditions agreed by both parties.
8.2 Each right or remedy of either party under the Agreement is without prejudice to any other right or remedy of that party whether under the Agreement or not.
8.3 If any provision of the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.
8.4 Failure or delay by either party in enforcing or partially enforcing any provision of the Agreement shall not be construed as a waiver of any of its rights under the Agreement.
8.5 Any waiver by either party of any breach of, or any default under, any provision of the Agreement by the other shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Agreement.
8.6 The formation, existence, construction, performance, validity and all aspects of the Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
8.7 A person who is not a party to this Agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
8.8 If either party is prevented from or delayed in the carrying out of its obligations under this Agreement due to circumstances or events beyond the reasonable control of that party including without limitation acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to our workforce), restraints or delays affecting carriers or defaults of sub-contractors THEN if the circumstances or event in question continues for a continuous period in excess of 90 days, either party shall be entitled to give 7 days prior notice in writing to the other party to cancel the Agreement in which case neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.
“Agreement” means the agreement between us whereby we provide you with the Goods and Services hereunder in accordance with the Order Form, Schedule, Agreement to Pay Installers/Builder Direct (if applicable) and these Terms and Conditions;
“Guarantee” means the guarantee provided by us in relation to Goods and Services and attached hereto;
“Order Form” means the order form as attached to these terms and conditions;
“Contract Price” means the price for the Goods and Services as set out in the Order Form or as otherwise amended under this Agreement;
“Goods” means the goods specified on the Order Form or any other goods supplied by us to you;
“Schedule” means the schedule detailing the Goods and Services to be provided as attached to the Order Form;
“Services” means the installation and other services specified on the Order Form or any other services performed by us for you.