Terms and Conditions
1 INTERPRETATION
1.1 In these Conditions, the following
definitions apply:
Business Day: A day other than a
Saturday, Sunday or a bank or public
holiday.
Conditions: These terms and conditions,
as amended from time to time, in
accordance with clause 13.7.
Contract: The contract between the
Supplier and the Customer for the supply
of Goods and/or Services in accordance
with the Order and these Conditions.
Customer: The person who purchases
Goods and/or Services from the Supplier.
Customer Default: Has the meaning set
out in clause 5.2.
Force Majeure Event: Has the meaning
set out in clause 12.1.
Goods: The equipment or other goods
stated in the Order.
Order: The Customer’s order for Goods
and/or Services as set out in the
Customer’s purchase order form or in the
Customer’s written acceptance of the
Supplier’s quotation.
Services: The services to be supplied by
the Supplier to the Customer as stated in
the Order.
Specification: The description or
specification of the Goods and/or
Services including without limitation,
designs, product information and
installation services as set out in the
Order or in any separate document
issued by the Supplier and referred to in
the Order.
Supplier: Home Fires Limited, registered
in England and Wales with company
number 07565090, whose registered
office is at Avon Cottage, Lower
Woodford, Salisbury, Wiltshire, SP4
6NQ.
Supplier Materials: Has the meaning set
out in clause 5.1.7.
VAT: Has the meaning set out in clause
8.5.
Warranty Period: Has the meaning set
out in clause 6.2.
1.2 In these Conditions, the following rules
apply:
1.2.1 A person includes a natural
person, corporate or
unincorporated body (whether or
not having separate legal
personality);
1.2.2 A reference to a statute or
statutory provision is a reference
to such statute or statutory
provision as amended or reenacted.
A reference to a statute
or statutory provision includes any
subordinate legislation made
under that statute or statutory
provision, as amended or reenacted;
1.2.3 Any phrase introduced by the
terms including, include, in
particular or any similar
expression, shall be construed as
illustrative and shall not limit the
sense of the words preceding
those terms.
2 BASIS OF CONTRACT
2.1 The Order constitutes an offer by the
Customer to purchase Goods and/or
Services in accordance with these
Conditions.
2.2 The Order shall only be deemed to be
accepted when the Supplier issues
written acceptance of the Order or signs
the Order at which point and on which
date the Contract shall come into
existence.
2.3 The Contract constitutes the entire
agreement between the parties. The
Customer acknowledges that it has not
relied on any statement, promise or
representation made or given by or on
behalf of the Supplier which is not set out
in the Contract.
2.4 Any samples, drawings, descriptive
matter or advertising issued by the
Supplier, and any descriptions or
illustrations contained in the Supplier’s
catalogues or brochures, are issued or
published for the sole purpose of giving
an approximate idea of the Goods and/or
Services described in them. They shall
not form part of the Contract or have any
contractual force.
2.5 These Conditions apply to the Contract to
the exclusion of any other terms that the
Customer seeks to impose or
incorporate, or which are implied by
trade, custom, practice or course of
dealing.
2.6 Any quotation given by the Supplier for
the Goods and/or Services shall not
constitute an offer, and is only valid for a
period of 20 Business Days from its date
of issue.
2.7 Any dates quoted for delivery of Goods
or for performance of Services are
approximate and time shall not be of the
essence with respect to such delivery or
performance. The Supplier shall not be
liable for any delay or failure to deliver
the Goods and/or perform the Services
that is caused by a Force Majeure Event
or the Customer’s failure to provide the
Supplier with adequate delivery
instructions or any other instructions that
are relevant to the supply of the Goods
and/or Services.
3 GOODS
3.1 Delivery of the Goods shall be as
specified in the Order, but if no provision
is made then the Customer shall collect
the Goods from the Supplier’s premises
at 23 South Lawn Terrace, Exeter, EX1
2SW, within three (3) Business Days of
the Supplier notifying the Customer that
the Goods are ready. The Customer
shall be responsible for the safe loading
of such Goods made available at the
Supplier’s premises and the use of
appropriate packaging materials to
ensure safe transit of such Goods.
Delivery of the Goods to any location
other than the Supplier’s premises shall
be completed on the Goods’ arrival at the
relevant delivery location.
3.2 If the Supplier fails to deliver the Goods,
its liability in respect of such Goods shall
be limited to the costs and expenses
incurred by the Customer in obtaining
replacement goods of similar description
and quality in the cheapest market
available, less the price of the Goods.
3.3 Where the Goods are to be delivered in
instalments which are invoiced and paid
for separately, each delivery shall
constitute a separate Contract and a
failure by the Supplier to deliver any one
or more of the instalments in accordance
with this Contract or any defects in
respect of any instalment shall not entitle
the Customer to cancel any other
instalment or to treat the Contract as a
whole to be cancelled.
3.4 If the Customer fails to take or, in the
case of delivery to a location other than
the Supplier’s premises, accept delivery
of the Goods within three (3) Business
Days of the Supplier notifying the
Customer that the Goods are ready,
then, except where such failure or delay
is caused by a Force Majeure Event or
the Supplier’s failure to comply with its
obligations under the Contract, the
Supplier shall be deemed to have
performed its delivery obligations under
the Contract and the Supplier shall store
the Goods until delivery takes place and
charge the Customer for all related costs
and expenses (including insurance).
3.5 If ten (10) Business Days after the
Supplier notified the Customer that the
Goods were ready for delivery the
Customer has not taken or accepted
delivery of them, then, without prejudice
to any other right or remedy available to
the Supplier and save in the case where
such failure or delay is caused by a
Force Majeure Event or the Supplier’s
failure to comply with its obligations
under the Contract, the Supplier shall be
entitled to:
3.5.1 Continue to store the Goods until
actual delivery and charge the
Customer for the reasonable
costs of storage; and/or
3.5.2 Sell the Goods at the best price
readily obtainable and (after
deducting all reasonable storage
and selling expenses) charge the
Customer for any shortfall below
the price for such Goods under
the Contract.
own risk, maintain the Supplier
Materials in good condition until
returned to the Supplier, and not
dispose of or use the Supplier
Materials other than in
accordance with the Supplier’s
written instructions or
authorisation.
by the Supplier) returns such
Goods to the Supplier’s place of
business at the Customer’s cost,
The Supplier shall, at its option,
repair or replace any defective
Goods, or refund the price of any
defective Goods and the Customer’s
costs of return of such Goods in full.
4 SUPPLY OF SERVICES
4.1 The Supplier shall supply the Services to
the Customer in accordance with the
Order and any Specification in all
material respects.
4.2 The Supplier shall have the right to make
any changes to the Services which are
necessary to comply with any applicable
law or safety requirement, or which do
not materially affect the nature or quality
of the Services, and the Supplier shall
notify the Customer in any such event.
5 CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
5.1.1 Ensure that the terms of the Order
and any information it provides in
relation to any Specification are
complete and accurate;
5.1.2 Co-operate with the Supplier in all
matters relating to the Services;
5.1.3 Provide the Supplier, its
employees, agents, consultants
and subcontractors, with access
to the Customer’s premises, office
accommodation and other
facilities as reasonably required
by the Supplier;
5.1.4 Prepare the Customer’s premises
for the delivery of Goods and/or
the supply of the Services
including (without limitation)
ensuring that all staircases,
doorways, windows, lifts at the
premises and means of access to
and exit from the premises as
may be necessary to perform the
Services are free from obstruction
and ensuring that the premises
enjoy suitable and practicable
road access and parking free from
obstruction for the Supplier’s or its
sub-contractors’ vehicles;
5.1.5 Provide the Supplier with such
information and materials as the
Supplier may reasonably require
in order to supply the Services,
and ensure that such information
is accurate in all material
respects;
5.1.6 Obtain and maintain all necessary
licences, permissions and
consents which may be required
before the date on which the
Services are to start including
(without limitation) the permission
of any landlord in respect of the
premises where the Services are
to be performed; and
5.1.7 Keep and maintain all materials,
equipment, documents and other
property of the Supplier (Supplier
Materials) at the Customer’s
premises in safe custody at its
6 WARRANTY
6.1 The Supplier warrants that the Services
will be provided using reasonable care
and skill.
6.2 The Supplier warrants that on delivery,
and for a period of twelve (12) months
from the date of delivery (Warranty
Period), the Goods shall:
6.2.1 Conform with their description in
the Order and any applicable
Specification;
6.2.2 Be free from material defects in
design, material and
workmanship; and
6.2.3 Be of satisfactory quality and be fit
for any purpose held out by the
Supplier (within the meaning of
the Sale of Goods Act 1979).
6.3 Subject to clause 6.4, if:
6.3.1 The Customer gives notice in
writing to the Supplier during the
Warranty Period within a
reasonable time of discovery that
some or all of the Goods do not
comply with the warranties set out
in clause 6.2;
6.3.2 The Supplier is given a
reasonable opportunity of
examining such Goods; and
6.3.3 The Customer (if asked to do so). 6.4 The Supplier shall not be liable for
Goods’ failure to comply with the
warranties set out in clause 6.2 if:
6.4.1 The Customer makes any further
use of such Goods after giving
notice in accordance with clause
6.3;
6.4.2 The defect arises because the
Customer failed to follow the
Supplier’s oral or written
instructions as to the storage,
commissioning, installation, use
and maintenance of the Goods or
(if there are none) good trade
practice;
6.4.3 The defect arises as a result of
the Supplier following any
drawing, design or specification
supplied by the Customer;
6.4.4 The Customer alters or repairs
such Goods without the written
consent of the Supplier; or
6.4.5 The defect arises as a result of
fair wear and tear, wilful damage,
negligence, or abnormal storage
or working conditions.
6.5 These Conditions shall also apply to any
repaired or replacement Goods supplied
by the Supplier.
7 RISK AND PROPERTY
7.1 The risk in the Goods shall pass to the
Customer on completion of delivery:
7.1.1 In the case of the Goods to be
delivered at the Supplier’s
premises, at the time such Goods
are available for collection as
notified by the Supplier to the
Customer; or
7.1.2 In the case of the Goods to be
delivered otherwise than at the
Supplier’s premises, at the time of
delivery or, if the Customer fails to
take delivery of the Goods, at the
time the Supplier tendered
delivery of the Goods.
7.2 Notwithstanding delivery and the passing
of risk in the Goods, title to the Goods
shall not pass to the Customer until the
Supplier has received payment in full (in
cash or cleared funds) for the Goods.
7.3 Until title to the Goods has passed to the
Customer, the Customer shall:
7.3.1 Hold the Goods on a fiduciary
basis as the Supplier’s bailee;
7.3.2 Store the Goods separately from
all other goods held by the
Customer so that they remain
readily identifiable as the
Supplier’s property;
7.3.3 Not remove, deface or obscure
any identifying mark or packaging
on or relating to the Goods; and
7.3.4 Maintain the Goods in satisfactory
condition and keep them insured
against all risks for their full price from the date of delivery.
7.4 The Customer shall not be entitled to
pledge or in any way charge by way of
security for any indebtedness any of the
Goods which remain the property of the
Supplier. If the Customer does to pledge
or in any way charge by way of security
for any indebtedness any of the Goods,
all monies owing by the Customer to the
Supplier shall (without prejudice to any
other right or remedy of the Supplier)
become immediately due and payable.
7.5 If, before title to the Goods passes to the
Customer, the Customer becomes
subject to any of the events listed in
clauses 10.1.2 or 10.1.3 or the Supplier
reasonably believes that any such event
is about to happen it shall notify the
Supplier immediately and, without limiting
any other right or remedy the Supplier
may have, the Customer agrees that the
Supplier may at any time require the
Customer to deliver up the Goods and, if
the Customer fails to do so promptly,
enter any premises of the Customer or of
any third party where the Goods are
stored in order to recover them.
8 CHARGES AND PAYMENT
8.1 Subject to clause 8.2, the price of the
Goods and/or Services shall be the price
set out in the Order.
8.2 The Supplier may, by giving notice to the
Customer at any time before delivery,
increase the price of the Goods and/or
Services to reflect any increase in the
cost of the Goods that is due to:
8.2.1 Any factor beyond the Supplier’s
control (including foreign
exchange fluctuations, increases
in taxes and duties, and increases
in labour, materials and other
manufacturing costs);
8.2.2 Any request by the Customer to
change the performance dates in
respect of Services, the delivery
date(s) in respect of the Goods,
quantities or types of Goods
ordered, or the Specification in
each case that is accepted by the
Supplier;
8.2.3 Any delay caused by any
instructions of the Customer or
failure of the Customer to give the
Supplier adequate or accurate
information or instructions;
8.2.4 Any special access equipment is
required at the location at which
Services are to be performed or
Goods delivered which were not
otherwise specified in the Order;
or
8.2.5 Utilities and on-site services
(including, without limitation, water
and electricity) are not available or
are inaccessible for the purposes of the performance of the
Services.
8.3 Unless otherwise agreed in writing in the
Order, the price for any Goods and
Services shall be payable in advance on
entering into this Contract. Unless
otherwise agreed by the Customer,
payment shall be made in cleared funds
to a bank account nominated in writing by
the Supplier or by cash or credit or debit
card and the Supplier will not accept
payment by cheque.
8.4 Where the Supplier agrees that payment
can be made after entering into this
Contract, the Customer shall pay any
invoice submitted by the Supplier within
30 days of the date of the invoice and in
full and time for payment is of the
essence.
8.5 All amounts payable by the Customer
under the Contract are exclusive of
amounts in respect of value added tax
chargeable for the time being (VAT). The
Customer shall, on receipt of a valid VAT
invoice from the Supplier, pay to the
Supplier such additional amounts in
respect of VAT as are chargeable on the
supply of the Goods and/or Services.
8.6 Without limiting any other right or remedy
of the Supplier, if the Customer fails to
make any payment due to the Supplier
under the Contract by the due date for
payment, the Supplier shall have the right
to charge interest on the overdue amount
at the rate set out in the Late Payment of
Commercial Debts (Interest) Act 1988
accruing on a daily basis from the due
date for payment until the date of actual
payment of the overdue amount, whether
before or after judgment. The Customer
shall pay the interest together with the
overdue amount.
8.7 The Customer shall pay all amounts due
under the Contract in full without any
deduction or withholding except as
required by law and the Customer shall
not be entitled to assert any credit, set-off
or counterclaim against the Supplier in
order to justify withholding payment of
any such amount in whole or in part. The
Supplier may, without limiting its other
rights or remedies, set off any amount
owing to it by the Customer against any
amount payable by the Supplier to the
Customer.
9 LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or
exclude the Supplier’s liability for:
9.1.1 Death or personal injury caused
by its negligence, or the
negligence of its employees,
agents or subcontractors;
9.1.2 Fraud or fraudulent
misrepresentation; or
9.1.3 Breach of the terms implied by
section 2 of the Supply of Goods
and Services Act 1982 (title and
quiet possession).
9.2 Subject to clause 9.1:
9.2.1 The Supplier shall not be liable to the Customer, whether in
contract, tort (including
negligence), breach of statutory
duty, or otherwise, for any loss
that could not have been
reasonably expected by the
Customer and the Supplier at the
time of entering into this Contract
or for any loss of income,
business or profits; and
9.2.2 The Supplier’s total liability to the
Customer in respect of all other
losses arising under or in
connection with the Contract,
whether in contract, tort (including
negligence), breach of statutory
duty, or otherwise, including
losses caused by a deliberate
breach of the Contract by the
Supplier, its employees, agents or
subcontractors shall not exceed
[£30,000].
9.3 Except as set out in these Conditions, all
warranties, conditions and other terms
implied by statute or common law are, to
the fullest extent permitted by law,
excluded from the Contract.
9.4 This clause 9 shall survive termination of
the Contract.
10 TERMINATION
10.1 Without limiting its other rights or
remedies, each party may terminate the
Contract with immediate effect by giving
written notice to the other party if:
10.1.1 The other party commits a
material breach of the Contract
and (if such a breach is
remediable) fails to remedy that
breach within 30 days of that party
being notified in writing of the
breach;
10.1.2 The other party suspends, or
threatens to suspend, payment of
its debts or is unable to pay its
debts as they fall due or admits
inability to pay its debts or (being
a company) is deemed unable to
pay its debts within the meaning
of section 123 of the Insolvency
Act 1986 or (being an individual)
is deemed either unable to pay its
debts or as having no reasonable
prospect of so doing, in either
case, within the meaning of
section 268 of the Insolvency Act
1986 or (being a partnership) has
any partner to whom any of the
foregoing apply or if the other
party has a receiver or
administrative receiver or
administrator appointed over it or
any part of its undertaking or
assets or passes a resolution for
winding up (otherwise than for the
purpose of a bona fide scheme of
solvent amalgamation or
reconstruction) or if a court of
competent jurisdiction shall make
an order to that effect or if it
becomes subject to an
administration order or enters into
a voluntary arrangement with its
creditors or ceases or threatens to cease to carry on business or that
other party is presented with a
bankruptcy petition; or
10.1.3 The other party takes or suffers
any similar or analogous action in
any jurisdiction.
10.2 Without limiting its other rights or
remedies, the Supplier may terminate the
Contract with immediate effect by giving
written notice to the Customer if the
Customer fails to pay any amount due
under this Contract on the due date for
payment.
10.3 Without limiting its other rights or
remedies, the Supplier shall have the
right to suspend provision of the Services
under the Contract or any other contract
between the Customer and the Supplier if
the Customer becomes subject to any of
the events listed in clauses 10.1.2 or
10.1.3 or the Supplier reasonably
believes that the Customer is about to
become subject to any of them, or if the
Customer fails to pay any amount due
under this Contract on the due date for
payment.
11 CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract for any
reason:
11.1.1 The Customer shall immediately
pay to the Supplier all of the
Supplier’s outstanding unpaid
invoices and interest and, in
respect of Services supplied but
for which no invoice has been
submitted, the Supplier shall
submit an invoice, which shall be
payable by the Customer
immediately on receipt;
11.1.2 The Customer shall return all of
the Supplier Materials and any
Goods that have not been fully
paid for. If the Customer fails to
do so, then the Supplier may
enter the Customer’s premises
and take possession of them.
Until they have been returned, the
Customer shall be solely
responsible for their safe keeping
and will not use them for any
purpose not connected with this
Contract;
11.1.3 the accrued rights, remedies,
obligations and liabilities of the
parties as at expiry or termination
shall not be affected, including the
right to claim damages in respect
of any breach of the Contract
which existed at or before the
date of termination or expiry; and
11.1.4 Clauses, which expressly or by
implication have effect after
termination, shall continue in full
force and effect.
12 FORCE MAJEURE
12.1 For the purposes of this Contract, Force
Majeure Event means an event beyond
the reasonable control of the Supplier
including but not limited to strikes, lockouts
or other industrial disputes (whether
involving the workforce of the Supplier or any other party), failure of a utility service
or transport network, act of God, war,
riot, civil commotion, malicious damage,
compliance with any law or governmental
order, rule, regulation or direction,
accident, breakdown of plant or
machinery, fire, flood, storm or default of
suppliers or subcontractors.
12.2 The Supplier shall not be liable to the
Customer as a result of any delay or
failure to perform its obligations under
this Contract as a result of a Force
Majeure Event.
12.3 If the Force Majeure Event prevents the
Supplier from providing any of the
Services for more than 90 days, the
Supplier or the Customer shall, without
limiting its other rights or remedies, have
the right to terminate this Contract
immediately by giving written notice to
the other party.
13 GENERAL
13.1 Assignment and subcontracting:
13.1.1 The Supplier may at any time
assign, transfer, charge,
subcontract or deal in any other
manner with all or any of its rights
under the Contract and may
subcontract or delegate in any
manner any or all of its obligations
under the Contract to any third
party or agent.
13.1.2 The Customer shall not, without
the prior written consent of the
Supplier, assign, transfer, charge,
subcontract or deal in any other
manner with all or any of its rights
or obligations under the Contract.
13.2 Notices:
13.2.1 Any notice or other
communication required to be
given to a party under or in
connection with this Contract shall
be in writing and shall be
delivered to the other party
personally or sent by prepaid firstclass
post, recorded delivery or by
commercial courier, at its
registered office (if a company) or
(in any other case) its principal
place of business, or sent by fax
to the other party’s main fax
number.
13.2.2 Any notice or other
communication shall be deemed
to have been duly received if
delivered personally, when left at
the address referred to above or,
if sent by pre-paid first-class post
or recorded delivery, at 9.00 am
on the second Business Day after
posting, or if delivered by
commercial courier, on the date
and at the time that the courier’s
delivery receipt is signed, or if
sent by fax, on the next Business
Day after transmission.
13.2.3 This clause 13.2 shall not apply to
the service of any proceedings or
other documents in any legal
action. For the purposes of this clause, “writing” shall not include
e-mails and for the avoidance of
doubt notice given under this
Contract shall not be validly
served if sent by e-mail.
13.3 Waiver:
13.3.1 A waiver of any right under the
Contract is only effective if it is in
writing and shall not be deemed to
be a waiver of any subsequent
breach or default. No failure or
delay by a party in exercising any
right or remedy under the
Contract or by law shall constitute
a waiver of that or any other right
or remedy, nor preclude or restrict
its further exercise. No single or
partial exercise of such right or
remedy shall preclude or restrict
the further exercise of that or any
other right or remedy.
13.3.2 Unless specifically provided
otherwise, rights arising under the
Contract are cumulative and do
not exclude rights provided by
law.
13.4 Severance:
13.4.1 If a court or any other competent
authority finds that any provision
of the Contract (or part of any
provision) is invalid, illegal or
unenforceable, that provision or
part-provision shall, to the extent
required, be deemed deleted, and
the validity and enforceability of
the other provisions of the
Contract shall not be affected.
13.4.2 If any invalid, unenforceable or
illegal provision of the Contract
would be valid, enforceable and
legal if some part of it were
deleted, the provision shall apply
with the minimum modification
necessary to make it legal, valid
and enforceable.
13.5 Nothing in the Contract is intended to, or
shall be deemed to, constitute a
partnership or joint venture of any kind
between any of the parties, nor constitute
any party the agent of another party for
any purpose. No party shall have
authority to act as agent for, or to bind,
the other party in any way.
13.6 A person who is not a party to the
Contract shall not have any rights under
or in connection with it.
13.7 Except as set out in these Conditions,
any variation, including the introduction of
any additional terms and conditions, to
the Contract, shall only be binding when
agreed in writing and signed by the
Supplier.
13.8 This Contract, and any dispute or claim
arising out of or in connection with it or its
subject matter or formation (including
non-contractual disputes or claims), shall
be governed by, and construed in
accordance with, English law, and the
parties irrevocably submit to the
exclusive jurisdiction of the courts of
England and Wales.
