If you are a consumer (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) we recognise that you may have additional rights under statute if we fail to carry out our obligations to you and for the return of defective goods and confirm your statutory rights are not affected by these terms.
1. Definitions and Interpretations
1.1 In these terms “we” or “us” means the member company of aquatherm UK Ltd specified in the contract for the sale of goods and/or services to you; “you” means the person, firm or company who purchases the goods and/or services from us; and “our” and “your” shall be construed accordingly and “contract” means any order which has been accepted by us.
1.2 References to any statutory provision shall include (i) any subordinate legislation made under it (ii) any provision which it has modified or re- enacted and (iii) any provision which subsequently supersedes it or re-enacts it.
2. Application of Terms
2.1 These terms apply to all sales of goods and/or services by us to the exclusion of all other terms (including any which you purport to apply) unless expressly agreed in writing in advance by one of our Directors.
2.2 Each order or acceptance of a quotation for goods and/or services by you shall be deemed to be an offer by you to buy goods and/or services subject to these terms. No order or acceptance of a quotation by you shall be deemed to be accepted by us until written confirmation of order is issued by us or (if earlier) we begin to process your order. We shall be entitled to withdraw any quotation at any time (whether or not already accepted by you).
2.3 You acknowledge that you have not relied on any statement or representation made or given on our behalf. Any estimate of quantities needed, advice as to the suitability of any goods for a particular purpose and any plan or measurement given by us is given for guidance only (based on your information) and without liability on our part. No allowance is made by us for additional materials, wastage or installation. You must satisfy yourself that all goods and/ or services ordered are correct.
2.4 Any typographical error or clerical omission in any sales literature, quotation, price list or other document issued by us may be corrected without liability on our part.
2.5 Information about how we use and store your personal information, and your rights, can be found in the Privacy Policy available on our website and as updated from time to time.
3. Description of Goods
3.1 The quantity and description of the goods are set out in our quotation or confirmation of order. We may supply goods in either metric or imperial sizes in the nearest equivalent measure and goods may be charged in metric allowing for conversion.
3.2 All samples, drawings, descriptive matter, specifications and advertising are issued or published for the sole purpose of giving an approximate idea of the described goods. They shall not form part of the contract and this is not a sale by sample. Each order shall be considered a separate order and we are unable to guarantee that further orders for the same goods will match the previous order.
3.3 Where fine or special tolerances are required in the goods supplied beyond those generally accepted in the building trade, no liability shall attach to us unless such tolerances are notified in writing to us at the time of order and we have acknowledged in writing that we are prepared to accept such order.
4. Delivery of Goods
4.1 Unless otherwise agreed by us, delivery of the goods shall take place at our place of business. Collection of goods is only agreed under special arrangements and as per your account terms. Delivery shall occur when you take possession of the goods at our premises or (where we agree to deliver) when the goods are ready for unloading at the delivery address.
4.2 Any dates and times we specify for delivery of the goods are an estimate. We shall not be liable to you if we do not deliver on or at any particular date or time. Time for delivery shall not be made of the essence by notice.
4.3 If 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 appropriate instructions, documents or consents, we shall be entitled to immediate full payment and risk in the goods shall pass to you. We may store such goods until delivery and you shall be liable for all related costs and expenses arising from such non delivery including transport and storage costs. If you fail to accept delivery of the goods within 6 months of the date of contract, we may sell or dispose of those goods (whether or not you have paid for them). Storage or disposal costs shall be recoverable from you. Any net proceeds of any sale shall be held on trust for you.
4.4 We will deliver to site provided that there is a suitable road to the point where delivery is requested. If no such road exists, delivery will be made to the nearest point at which, in the driver’s opinion, the vehicle can safely and lawfully unload. Except where we use a vehicle- mounted crane/fork truck, you shall be responsible for safely and lawfully unloading the goods and shall provide all necessary labour and equipment. We may charge you an additional fee if you delay in taking delivery of the goods when tendered. If any goods, packaging or container has been delivered and deposited, whether on the public highway or elsewhere, you shall be responsible for all steps that need to be taken for the protection of persons or property in relation to such goods, packaging or containers and shall indemnify us in respect of all or any costs, claims, losses or expenses which we may incur as a result of such delivery.
4.5 We shall not be liable for any shortages in quantity delivered unless you give written notice to us of such shortages within 72 hours of delivery. In any event our liability shall be limited to making good the shortfall or (at our option) issuing a credit note or refund at the pro rata contract rate against any invoice raised for such goods.
4.6 We may deliver the goods by separate instalments. Each instalment shall be a separate contract and cancellation or termination of one instalment shall not entitle you to cancel any other instalment.
4.7 Any query about delivery shall be made as soon as possible and in any event within 28 days of the date when the goods would in the ordinary course of events have been delivered else the goods shall be deemed to have been delivered in accordance with the contract. We are not obliged to provide proof of delivery and / or collection after a period of 28 days.
4.8 We shall not be responsible for taking back any non-chargeable packaging/pallets.
4.9 The cost of any testing of the goods that we deem is necessary whether or not in your presence, will be charged to you, unless prior written agreement has been obtained from us. If you (or your representative) delay in attending such tests, after seven days’ notice of the place and time of such tests, the tests will proceed in your absence and shall be deemed to have been carried out in your presence.
5. Risk and Ownership of Goods
5.1 The goods are at your risk from the time of delivery or deemed delivery.
5.2 Ownership of the goods shall not pass to you until we have received in full (in cleared funds) all sums due to us in respect of the goods and all other sums which are or become due to us from you on any account or (if later) the time of delivery.
5.3 Until ownership of the goods has passed to you, you shall hold the goods on a fiduciary basis as our bailee and store the goods (at no cost to us) in satisfactory condition and in such a way that they remain readily identifiable as our property and you shall tell us immediately where the goods are situated.
5.4 Subject to 5.5, you may resell the goods before ownership has passed to you provided that any sale shall be effected in the ordinary course of your business at full market value and you shall deal as principal; you shall hold all proceeds of sale on trust for us and assign to us all rights and claims which you may have against your customer arising from such sales until full payment is made.
5.6 Your right to possession of, and authority to sell, the goods shall terminate immediately (and you shall immediately deliver the goods to us at your cost and risk) if we notify you to such effect or on the happening of any event set out in 10.3(a)-(i) (whichever is earlier) and you shall immediately notify us in writing upon the happening of any such event.
5.7 You grant to us and our agents an irrevocable licence at any time to enter any premises (with and without vehicles) where the goods are or may be stored in order to inspect them or, where your right to possession has terminated, to recover them.
5.8 Where we are unable to determine whether any goods are the goods in respect of which your right to possession has terminated, you shall be deemed to have sold all goods of the kind sold by us to you in the order in which they were invoiced to you.
6. Provision of Services
6.1 Where the goods supplied include services by us, our agents or subcontractors, you shall (where necessary) allow us safe and reasonable access to the site within our normal working hours to carry out the services.
6.2 The price quoted for such services assumes that: (a) the site is ready and suitable for the services to commence at the agreed time; (b) the services are to be carried out within our normal working hours; (c) suitable site access is available at all times; and (d) adequate mechanical lifting equipment is provided by you in the event that the services are to be carried out above ground level. If any of these assumptions proves incorrect, we shall be entitled to vary the price.
6.3 You shall provide a safe environment and all necessary consents, information, and resources for us, our agents and subcontractors to carry out the services.
6.4 In relation to any installation services, you are responsible for insuring the goods (whether before or after installation) and shall notify your insurers that we will be carrying out such services on site. You must protect carpets, furniture and all other items.
6.5 Any dates and times we specify for commencement and completion of the services are an estimate. We shall not be liable if we do not carry out the services on or at any particular date or time. Time for performance shall not be made of the essence by notice.
6.6 If we provide design services, all copyright and other intellectual property rights created, developed or used shall remain the sole property of us or our licensors.
7. Price and Additional Charges
7.1 Unless we otherwise agree in writing, the price payable for the goods and/or services shall be the price applicable on the date of delivery or deemed delivery for goods and the date the services are carried out for services.
7.2 The price for the goods and/or services shall be exclusive of any value added tax, which shall be payable by you at the rate applicable at the tax point.
7.3 We may at any time after acceptance of an order, but prior to delivery, revise the price payable for the goods and/or services to take account of increases in costs including, without limitation, costs of any goods or materials, carriage, labour or overheads, the increase or imposition of any tax duty or other levy and variation in exchange rate.
7.4 Unless we otherwise agree in writing, we may charge you the cost of delivering the goods to you.
7.5 We may charge for any special packaging to cover the cost of labour and materials.
8. Payment and Interest
8.1 Payment for goods and/or services supplied during a month on a credit account shall be due and paid in full in one payment not later than the last day of the month following the month of delivery or deemed delivery of the goods and/or services. If you default in making payment, the entire balance of your account shall be payable immediately and we may charge interest together with costs and expenses in accordance with 8.4.
8.2 For non credit account purchases, payment shall be with the order or, at our discretion, on delivery or deemed delivery.
8.3 Time for payment shall be of the essence. You shall make all payments in pounds sterling and in full without any deduction.
8.4 If you fail to pay us any sum due (and whether or not any part of your account is subject to query), we may, in addition to our rights under 10.2, appropriate any payment made by you to such of the goods and/or services (or such goods or services supplied under any other contract between you and us) as we may think fit; and you shall be liable to pay us interest on such sum at the annual rate of 4% above the base lending rate, accruing on a daily basis, or, at our option, interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002) from the due date for payment until payment is made in full, whether before or after any judgment, together with all costs and expenses incurred by us in recovering sums due or exercising our rights under this provision, including our debt recovery fees at a rate of 6% of the total amount outstanding.
8.5 Credit accounts are opened at our discretion and are subject to satisfactory references. We will set a maximum amount of credit allowable upon each account and withdraw credit facilities at any time without explanation. Payments made to an account may at our discretion restore your ability to borrow again (in which case it shall be up to the limit). You agree that we may obtain, retain, and provide to third parties, references as to your financial standing. Any change in the constitution of your organisation must be notified to us in writing prior to it occurring in order that credit facilities to the reconstituted organisation may be put in place, subject always to our discretion and our confirmation in writing. Until new credit facilities are agreed, the existing entity and any new entity shall be jointly and severally liable for any debt due to us.
9. Liability for defects / warranty / extended warranty / compensation for damages on account of being at fault
9.1 Supplied items are to be inspected carefully straight away once they have been delivered to you or to a specified third party. They shall be regarded as having been approved if we do not receive written notification of manifest defects or other defects, which would have been identified during a thorough inspection conducted straight away upon delivery, and within 7 working days from the delivery of the supplied items. At our request, the supplied item about which a complaint has been made is to be returned to us carriage-free for us. If the notified defect is justified, we shall reimburse the costs of the cheapest method of dispatch. This arrangement shall not apply if the costs of carriage increase because of the supplied item being at a location other than the original place of delivery.
9.2 If the supplied items have quality defects, you shall be entitled to demand subsequent fulfilment. If this should be unsuccessful, i.e., should a repair be impossible, unreasonable, the seller refuses to carry out a repair, or if there is an unreasonable delay in carrying out a repair or supplying a spare part, you may withdraw from the contract or reduce the purchase price as appropriate. A repair shall be regarded as having been unsuccessful after a second attempt has been unsuccessful, unless there are extenuating factors arising due to the nature of the thing, the defect in particular, or to other circumstances.
9.3 If we are to blame for a defect, you may demand compensation for damages subject to the preconditions specified.
9.4 The warranty period is 1 year from supply.
9.5 Liability for compensation for damages on account of being at fault
9.6 Our liability to pay compensation for damages, regardless of whatever legal reasons upon which they are based, in particular on account of impossibility, default, the supply of defective or incorrect goods, breach of contract, breach of duties during contractual negotiations and unlawful acts, shall be limited in accordance with this.
9.7 We shall not be liable:
In the event that the executive bodies, legal representatives, salaried staff, or other assistants are guilty of ordinary negligence.
In the event that the non-senior salaried staff, or other assistants are guilty of gross negligence, provided that the fault does not concern the breach of essential contractual duties.
Those obligations to supply fault-free goods on time, as well as the duties to provide advice, protection and to exercise proper care the objective of which is to make it possible for the customer to use the supplied items in accordance with the contract, or to protect the life and limb of the customer’s staff from considerable damage, shall be regarded as being essential contractual duties.
9.8 In so far as we are liable to pay compensation for damages in accordance with the reason in Number 9.2, this liability shall be limited to damages which we foresaw when entering the contract as a possible consequence of a breach of contract, or in consideration of the facts of which we were aware, or must have known, or must have foreseen when applying due diligence. Besides, we shall only have to pay compensation for indirect damage and consequential damage, which are the result of defects in the supplied items to the extent that such damage is typically to be expected when the supplied item is used as intended.
9.9 In the event of liability for ordinary negligence in cases in which damages are caused by default, the customer’s right to compensation for damages shall be limited to default compensation amounting to 3% of the invoiced amount for the goods and services affected by the default for each full week of default, and up to a maximum of 15% of the value of the relevant sum invoiced.
9.10 The above exclusions and limitations of liability shall apply to the same extent for the benefit of our executive bodies, the legal representatives, employees, and other assistants.
9.11 In so far as we provide technical information or act as a consultant, and the information we provide are not covered by the contractually agreed scope of performance owed by us, such information shall be passed over free of charge and exclude all liability.
9.12 The limitations in this Number 9 shall not apply for our liability on account of willful conduct, of guaranteed characteristics, of loss of life, personal injury, physical harm, or in accordance with the Product Liability Act.
9.13 Extended aquatherm warranty
9.14 In addition to the rights and claims based on quality defects in accordance with Number 9, we shall furnish a warranty for a period of 10 years beginning with the date of manufacture, marking, or stamping for plastic pipes and fittings manufactured or distributed by us in accordance with the following warranty terms and conditions.
9.15 The written guarantee shall cover quality defects which are proven to be attributable to material defects in the plastic pipes and / or fittings. Any sealing elements used in the product lines manufactured by aquatherm, as well as tools required for processing our products, shall not be covered by the warranty.
9.16 The precondition for a warranty based upon a written guarantee is:
Compliance with the generally accepted rules of technology, in particular the guidelines for the installation of the respective systems.
We are allowed an opportunity to inspect / rectify the damage within 8 days from the damage occurring.
The plastic pipes and / or fittings are used in those installations in which “water” is the flow medium, having the composition as defined by the “Regulations governing the quality of water for human consumption” – Drinking water regulation 2000.
We have authorised application clearance regarding the flow media and / or the operating conditions.
9.17 Under the written guarantee, we shall replace the plastic pipes and / or fittings free of charge and reimburse the third-party expenses incurred in the rectification, removal and unearthing of the faulty products, as well as for the installation, mounting, laying and acceptance of fault-free products. We shall pay compensation for damages in so far as third- party property is damaged as a result of defective plastic pipes and / or fittings.
9.18 Our obligation to pay compensation for damages shall however be limited by the level of cover in our current liability insurance policy, which provides cover for up to 15 million Euros for all inclusive damages to property, personal injuries, and financial losses. No other claims will be admitted, regardless of the reason for them.
10. Returns and Cancellations
10.1 Aquatherm operate a no returns policy except where goods supplied are incorrect or fault or agreed otherwise by both parties.
10.2 We shall be entitled to cancel or suspend a contract if you fail to pay us any sum due pursuant to the contract (whether or not any part of your account is subject to query) or any of the following events occurs or we believe is likely to occur: (a) you have a bankruptcy order made against you or make an arrangement or composition with your creditors, or otherwise take a benefit for the relief of insolvent debtors; or (b) you convene a meeting of creditors or enter into liquidation; or (c) you have a receiver and/or manager, administrator or administrative receiver appointed over your undertakings or any part; (d) a resolution is passed or a petition presented to any court for your winding-up or for the granting of an administration order in your respect, or any proceedings are commenced relating to your insolvency or possible insolvency; or (e) you suffer or allow any execution, whether legal or equitable, to be levied on your property or obtained against you, or (f) you are unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or you cease to trade; or (g) any event similar to the above occurs; or (h) you fail to observe or perform any of your obligations under the contract or any other contract between us and you; or (i) you encumber or in any way charge any of the goods.
11. Health and Safety
11.1 Certain goods supplied by us could, if incorrectly used, give rise to risks to health and safety. Information in respect of such goods is available from us. You undertake that you will ensure compliance by your employees, agents and customers with any instructions given by us or the manufacturer or our supplier and will take any other steps or precautions, having regard to the nature of the goods, as are necessary to preserve the health and safety of any person handling, using or disposing of them.
12. Waste
12.1 You will be responsible for the disposal of any waste arising from the goods and will comply with all applicable laws, regulations and waste management licences relating to such waste, including the appropriate disposal by you of any goods marked with a crossed out wheelie bin symbol, save where you are a consumer and it is our responsibility at law. You will indemnify us against all costs, claims, liabilities and expenses arising from any breach by you of this provision.
13. Force Majeure
We may defer the date of delivery, cancel the contract or reduce the volume of the goods and/or services ordered by you (without liability to you) if we are unable to deliver or supply due to any cause beyond our reasonable control (including the acts or omissions of our suppliers and subcontractors).
14. Export / Overseas Contracts (if applicable)
14.1 In relation to goods sold outside the UK, the Channel Islands and the Isle of Man, risk in the goods shall pass to you when they leave our premises. Shipping and insurance shall be payable by you unless otherwise agreed. You are responsible at your own expense for obtaining any licence and complying with any export or import regulations in force within the UK and any country for which the goods are destined. We reserve the right not to supply certain customers or countries and to require from you full details of the end use and final destination of the goods.
15. Compliance with Bribery Legislation
15.1 You agree that you will not, in connection with the goods or services to be supplied under this contract, bribe or attempt to bribe us, or any of our employees, agents or affiliates nor cause us to be in violation of any applicable bribery or anti money laundering laws. We may terminate the contract in the event of your breach of this clause. You shall indemnify us against all liabilities, costs, expenses, damages, claims, demands and losses suffered or incurred by us arising out of or in connection with any breach of this clause, whether or not the contract has been terminated.
16. General
16.1 Any notices given pursuant to or in relation to the contract shall be in writing and addressed to the party concerned at its principal place of business or last known address. Any notice shall be deemed delivered two days after posting or on the next working day after fax transmission.
16.2 Any provision of the contract found to be invalid or unenforceable shall, to such extent, be deemed severable and the remaining provisions of the contract shall continue in full force and effect.
16.3 Failure or delay by us in enforcing any contract term shall not be construed as a waiver of any of our rights under the contract.
16.4 You shall not be entitled to assign or subcontract any of your rights or obligations under the contract.
16.5 Save for any member company of aquatherm UK Ltd who shall be entitled to enforce any provision of the contract, no person who is not a party to the contract shall have a right to enforce any term of the contract which expressly or by implication confers a benefit on that person.
16.6 Any dispute or claim arising in connection with the contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts, save that if you are domiciled in Scotland (within the meaning of the Civil Jurisdiction and Judgments Act 1982) then the contract shall be construed in accordance with Scottish law and shall be subject to the exclusive jurisdiction of the Scottish courts.
February 2024