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Trade Account Terms and Conditions

  1. INTERPRETATION
    1. In these Conditions, the following definitions apply:
      Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
      Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
      Contract: the contract between Emplas and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
      Customer: the person or firm who purchases the Goods from Emplas.
      Emplas: Emplas Window Systems Limited (registered in England and Wales with company number 01882731).
      Force Majeure Event: has the meaning given in clause 10.
      Goods: the goods (or any part of them) set out in the Order.
      Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, as submitted by the Customer through the Emplas customer portal or the Customer’s written acceptance of Emplas’ quotation, as the case may be.
      Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Emplas.
    2. In these Conditions, the following rules apply:
      (a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
      (b) A reference to a party includes its personal representatives, successors or permitted assigns.
      (c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes
      any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
      (d) 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.
      (e) A reference to writing or written includes faxes and e-mails.
  2. BASIS OF CONTRACT
    1. 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. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
    3. The Order shall only be deemed to be accepted when Emplas issues a written acceptance of the Order, at which point the Contract shall come into existence.
    4. 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 Emplas which is not set out in writing in the Contract.
    5. Any samples, drawings, descriptive matter, or advertising produced by Emplas and any descriptions or illustrations contained in Emplas’ catalogues or brochures are
      produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
    6. A quotation for the Goods given by Emplas shall not constitute an offer and any price quoted may be changed prior to a contract coming into existence in accordance with clause 2.3.
  3. GOODS
    1. The Goods are described in Emplas’ catalogue as modified by any applicable Specification.
    2. To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Emplas against all liabilities, costs, expenses, damages and losses (including any direct or indirect losses, loss of profit, loss of reputation and all interest, penalties and legal and other
      professional costs and expenses) suffered or incurred by Emplas in connection with any claim made against Emplas for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Emplas’ use of the Specification. This clause 3.2 shall survive termination of the Contract.
    3. Emplas reserves the right to amend the specification of the Goods (including by reference to the Specification) if required by any applicable statutory or regulatory
    4. The images of the Goods on Emplas’ website or in its catalogue or brochure are for illustrative purposes only. Emplas does not guarantee that such images accurately reflect the colour of the Goods and all sizes, weights, capacities, dimensions and measurements indicated on the website, in the catalogue or brochure or as set out in any Specification have a 2% tolerance.
  4. DELIVERY
    1. Emplas shall ensure that:
      (a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
      (b) if Emplas requires the Customer to return any packaging materials to Emplas, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Emplas shall reasonably request. Returns of packaging materials shall be at Emplas’ expense.
      (c) Stillages – When the Customer is supplied with goods on Stillages, these stillages remain the property of Emplas Window Systems Ltd. and must be kept in good condition until such time they are returned. Failure to return these when requested, or returning them damaged, will result in a charge being raised to the Customer for the repair or replacement of the damaged/missing stillages. Return of stillages shall be arranged with the Customer, by Emplas and at Emplas’ expense.
    2. Emplas shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location) at any time after Emplas notifies the Customer that the Goods are ready.
    3. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
    4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Emplas shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Emplas with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
    5. If Emplas fails to deliver the Goods, its liability 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. Emplas shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Emplas with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
    6. If the Customer fails to take delivery of the Goods within three Business Days of Emplas notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Emplas’ failure to comply with its obligations under the Contract:
      (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Emplas notified the Customer that the Goods were ready; and
      (b) Emplas shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
    7. If 10 Business Days after the day on which Emplas notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, Emplas may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
    8. Emplas may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
  5. QUALITY
    1. Emplas warrants that on delivery the Goods shall:
      (a) conform in all material respects with their description and any applicable Specification;
      (b) be free from material defects in design, material and workmanship; and
      (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
    2. Emplas further warrants that for a period of 10 years form the date of delivery of the Goods, that the materials used in the manufacture of the Goods shall be free from any material defect.
      3 Subject to clause 5.4, if:
    3. (a) the Customer gives notice in writing to Emplas as soon as reasonably practicable and in any event within 5 days of actual discovery, or 5 days of such time as discovery should reasonably have been made, that some or all of the Goods do not comply with the warranties set out in clause 5.1 or 5.2;
      (b) Emplas is given a reasonable opportunity (being no longer than 90 days) of examining such Goods; and
      (c) the Customer (if asked to do so by Emplas) returns such Goods to Emplas’ place of business. Emplas shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
    4. Emplas shall not be liable for Goods’ failure to comply with the warranties set out in clauses 5.1 or 5.2 in any of the following events:
      (a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;
      (b) the defect arises because the Customer failed to follow Emplas’ oral or written instructions as to the storage, commissioning, installation, use and
      maintenance of the Goods or (if there are none) good trade practice regarding the same;
      (c) the defect arises as a resolt of Emplas following any drawing, design or Specification supplied by the Customer;
      (d) the Customer alters or repairs such Goods without the written consent of Emplas;
      (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
      (f) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
    5. Except as provided in this clause 5, Emplas shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranties set out in clause 5.1 or 5.2.
    6. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
    7. Any testing or inspection of the Goods over and above those set out in the Specification shall be carried out at Emplas’ discretion and only where the Customer pays
      Emplas in advance in respect of any costs involved in such testing or inspection.
    8. These Conditions shall apply to any repaired or replacement Goods supplied by Emplas.
  6. TITLE AND RISK
    1. Save as set out at clause 6.2, the risk in the Goods shall pass to the Customer on completion of delivery.
    2. Title to the Goods shall not pass to the Customer until Emplas has received payment in full (in cash or cleared funds) for:
      (a) the Goods; and
      (b) any other goods or services that Emplas has supplied to the Customer in respect of which payment has become due.
    3. Until title to the Goods has passed to the Customer, the Customer shall:
      (a) hold the Goods on a fiduciary basis as Emplas’ bailee;
      (b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Emplas’ property;
      (c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
      (d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
      (e) notify Emplas immediately if it becomes subject to any of the events listed in clause 8.2; and
      (f) give Emplas such information relating to the Goods as Emplas may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
    4. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or Emplas reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Emplas may have, Emplas 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.
  7. PRICE AND PAYMENT
    1. The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Emplas’ published price list in force as at the date of delivery.
    2. Emplas may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
      (a) any factor beyond Emplas’ control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
      (b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
      (c) any delay caused by any instructions of the Customer or failure of the Customer to give Emplas adequate or accurate information or instructions.
    3. Emplas may in certain circumstances need to charge for packaging, insurance and transport of the Goods. Where this is the case these charges will be notified to the Customer in advance of Emplas accepting the Order. The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer where applicable.
    4. The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from Emplas, pay to Emplas such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
    5. Emplas may invoice the Customer for the Goods on or at any time after the completion of delivery and may require payment for the Goods in part or in full ahead of
      commencing the manufacture of such Goods.
    6. The customer shall pay the invoice in full and in cleared funds within the terms agreed in writing with Emplas. Our preferred method of payment is by BACS transfer to the account nominated in writing by Emplas. These details also appear on our invoices. Please be aware that we do not accept cash as a form of payment. Time of payment is of the essence.
    7. If the Customer fails to make any payment due to Emplas under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date 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. 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 Emplas in order to justify withholding payment of any such amount in whole or in part. Emplas may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Emplas to the Customer.
  8. CUSTOMER’S INSOLVENCY OR INCAPACITY
    1. If the Customer becomes subject to any of the events listed in clause 8.2, or Emplas reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Emplas, Emplas may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Emplas without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
    2. For the purposes of clause 8.1, the relevant events are:
      (a) the Customer 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;
      (b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any
      compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
      (c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
      (d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
      (e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
      (f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
      (g) (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
      (h) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
      (i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a)to clause 8.2(h) (inclusive);
      (j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
      (k) the Customer’s financial position deteriorates to such an extent that in Emplas’ opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
      (l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
    3. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
  9. LIMITATION OF LIABILITY
    1. Nothing in these Conditions shall limit or exclude Emplas’ liability for:
      (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
      (b) fraud or fraudulent misrepresentation;
      (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
      (d) defective products under the Consumer Protection Act 1987.
    2. Subject to clause 9.1:
      (a) Emplas shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory
      duty, or otherwise, for any loss of profit, or any indirect loss arising under or in connection with the Contract; and
      (b) Emplas’ 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, shall in no circumstances exceed the price of the Goods.
  10. FORCE MAJEURE
    Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure
    A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport
    network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
  11. GENERAL
    1. Assignment and subcontracting.
      (a) Emplas may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
      (b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Emplas.
    2. (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
      (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; 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 or e-mail, one Business Day after transmission.
      (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
    3. (a) If any court or 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 to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
      (b) If any invalid, unenforceable or illegal provision of the Contract woold 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.
    4. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No
      failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.
    5. Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
    6. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when
      agreed in writing and signed by Emplas.
    7. Governing law and jurisdiction. The 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

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