1.    General

Every quotation program, invoice, price list catalogue, advertisement or other similar document made by Schiedel Chimney Systems Limited (referred to as “The Company” or “Company” from now on) is made or issued subject to these conditions and nothing contain therein nor any representation assurance or other statement made or sworn by any of the Company’s representatives shall be construed as enlarging, varying or overriding any of these conditions it is an express condition of any offer and order against the same following our receiving such conditions. No person in the employment or acting otherwise as agents of the Company or purporting so to do has authority to accept order supply goods on any other conditions or to vary these terms in any way whatsoever. Neither the intending Purchaser nor the company shall be bound by any variation waiver or addition to these conditions unless such variation waiver or addition is agreed in writing. Previous dealings between the Company and any customer shall not vary or replace these terms or be deemed in any circumstances whatsoever so to do Acceptance of goods from the Company shall be conclusive evidence for any court or arbitrator that these terms apply.

 

2.    Documentation

Particulars relating to our questions such as illustrations, drawings, weight, specifications, weighting shall be deemed to approximate unless otherwise confirmed by us. All estimates, drawings, documents and the copyright therein remains our property and must not be made available or accessible to any third party.

 

3.    Prices

The price of the goods (“The Contract Price”) shall be subject to variation by the Company in the event of an increase after the Company’s acceptance of the order of the production costs due to a rise in price of any material or the cost of labour or transport charges or due to any other cause. In such event the Contract Price shall be that ruling that the date of despatch of the goods increase or imposition of taxes, duties, public dues, freight or insurance which occur or come into force after the company’s acceptance of the order shall be for the intending Purchasers account. The Contract Price is exclusive of VAT unless otherwise stated. Costs incurred by us in working any overtime required and authorised by you shall be borne by you. Where fixed prices are quoted these will be subject to increase of the period quoted by us for completion of the Contract is exceeded for any reason or cause beyond our control. Storage and warehousing charges incurred by us while waiting on your despatch instructions after notification of completion at our works will be charged extra. We reserve the right to increase the Contract Price in the event that after we have made an offer or entered into a contract with the intending Purchaser, the intending Purchaser requests changes in the method of payment or where financing of any is to be made through a third party.

 

4.    Payment

(a)             All orders are subject to credit approval before acceptance. Payments shall be made in cash by the end of the month next following the date of invoice without any deductions and the time within which the intending Purchaser is to pay for the goods shall be of the essence of the contract. The Company reserves the right to make deliveries subject to immediate cash payments.

(b)             Bills of exchange bank drafts and letters of credit shall be accepted only by prior agreement in writing and the intending Purchaser will be liable for any discounting or bank charges incurred.

(c)             If the intending Purchaser is in default of making payment the Company may decline to make further deliveries without in any way affecting its rights under or repudiating the contract. If despite any default by the intending Purchaser the Company continues to supply goods such action shall not constitute a waiver or in any way prejudice the Company’s legal remedies for any default.

(d)             If the intending Purchaser is in default of making payment the Company shall without special notice and without prejudice to its right to claim further damages be entitled to charge compound interest at the rate of 2% per calender month for the period the payment is overdue or interest rate of 3% per annum above National Westminster Bank PLC base lending rate from time to time whichever shall be the greater.

(e)             Should in the reasonable opinion of the Company the financial position of the intending Purchaser deteriorate significantly before payment is due the Company shall be entitled to demand immediate payment or security from intending Purchaser. The financial position of the intending Purchaser shall be deemed to have deteriorated significantly if, but only if, any distress or execution shall be levied upon the intending Purchaser his property or assets or if the intending Purchaser shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be made against him or if any distrainment order be made against him or if the intending Purchaser should be a limited company any resolution or petition to wind up the intending Purchaser’s business shall b e presented otherwise than for its reconstruction or amalgamation whilst solvent or if a receiver of the intending Purchasers undertaking or assets or any substantial part thereof shall be appointed or if any deed of assignment of a significant portion of the intending Purchasers assets is entered into or if the intending Purchaser shall become insolvent or become unable to pay its debts as defined by Section 518 of the Companies Act 1985.

 

5.    Delivery

 

(a)             Delivery dates are given in good faith but are not guaranteed and no liability will be accepted for any loss whatsoever suffered or caused through delay late delivery or non delivery or the consequence of delay, late delivery or non delivery.

(b)             The intending Purchaser shall be bound to accept delivery of the goods by installments and shall not be entitled to reject delivery or part delivery of the goods ordered. Defects in quality or dimensions of all or any part of the goods in any installment shall not be a ground for cancellation of the remainder of the order. If the contract calls for the delivery of goods by installments each installment shall be deemed to be a separate contract and default by the Company with regard to any installment shall not entitle the intending Purchaser to cancel the contract with regard to any installment remaining to be delivered.

(c)             No order accepted by the Company can be cancelled or suspended by the intending Purchaser except with the consent of the Company in writing. The Company shall have no liability for any consequential loss caused by any cancellation of suspension of an order.

(d)             Should delay in delivery be caused by the intending Purchaser the Company may store goods at the sole risk and expense of the intending Purchaser and payment for the goods may at the Company’s discretion be due on the date on which the consignment was ready for delivery.

(e)             Unless acceptable specific instructions are received from the intending Purchaser the Company shall select a suitable carrier for the goods. Delivery of the goods in good condition to such carrier shall constitute delivery to the intending Purchaser and the risk in the goods shall pass to the intending Purchaser at this point. Any mis-delivery breakage or other damage shall thereupon be the responsibility of the intending Purchaser who may also be responsible for obtaining and paying for insurance and carrying out negotiations in the event of loss mis-delivery, breakage or other damage regardless of the fact that insurance may have been secured by the Company.

 

6.    Warranties

 

(a)             The company accepts no liability for the suitability or performance of the goods offered for any particular applications or use unless defined by us in our contract. Except in the case of personal injury or death resulting from breach of duty (as defined in Section 25 of the Unfair Contract Terms Act 1977) by us or our employees we expressly exclude liability for any form of consequential damages and losses.

(b)             Subject to paragraph (c) and (d) of this clause the Company warrants that the goods shall at delivery in all material respects conform as to quality and description with the Company’s specification and be of sound materials and workmanship. We undertake at our option either to rectify or supply replacements for any defective goods when such defects are proved to have arisen from faulty materials workmanship or design or (at the Company’s option) to return to the intending Purchaser of the purchase money paid in respect of the Goods. Our Guarantee Period is 12 months and the Guarantee Period commences from the passing over of risk or arrival at our contracted point of delivery (whichever shall be the earlier) or in the event of our being contracted by erection/installation from completion of the same in the event of despatch or installation of the goods being delayed through no fault of ours the Guarantee Period shall have been deemed to have commenced fourteen days after notification by us that the goods are ready for despatch. The Company’s liability under guarantee is conditional upon the intending Purchaser inspecting the goods immediately on arrival thereof and giving notice to the Company of any alleged defects in the goods within fourteen days of their arrival or any other matter by reason whereof he alleges that the goods are not in accordance within the contract and that the good have been properly maintained and not misused or modified in any way nor shall the Guarantee extend to defects caused by incorrect or inappropriate use or handling of the goods nor to any goods which have been repaired or in any way altered without the consent of the Company in writing nor to any consequential loss or damage or expense howsoever arising. Defective goods must be returned to us promptly carriage paid to our works unless otherwise agreed by us. As to any goods not installed by us no liability will be accepted for installation and performance goods supplied by us which are not of our manufacture shall carry only the guarantee of warranty of the original manufacturers. Where the performance goods supplied by us which are not of our manufacture shall carry only the guarantee of warranty of the original manufactures. Where the goods are installed outside the United Kingdom the parts replaced under guarantee will be delivered within the UK to the consignment address or F.O.B. UK Port. Our guarantee is conditional upon your fulfilling all obligations under our contract. All warranties guarantees and conditions other than those herein expressed or specifically referred to whether implied by statute or custom of the trade or otherwise are hereby expressly excluded. We reserve the right to make any modifications in design or manufacture that we consider necessary for the improvement of the equipment.

(c)             The warranty contained in paragraph (b) of this clause is given in lieu and to the exclusion of all other representations conditions or warranties whatsoever whether as to the quality of the goods or their fitness for any particular purpose or their compliance with description or sample or otherwise howsoever whether such representations conditions or warranties are expressed or implied statutory or otherwise and the Company’s liability in respect of any such representations conditions or warranties as hereby expressly concluded.

(d)             Without prejudice the generality of the exclusions contained in this clause the Company’s goods are liable to be affected by atmospheric conditions and no responsibility can be accepted for material stored under abnormal conditions.

 

7.    Property

 

(a)             The intending purchaser acknowledges that before entering into an agreement for the purchase of any goods from the Company it has expressly represented and warranted that it is not insolvent and it has not committed any act of bankruptcy or being a company with limited or unlimited liability knows of no circumstances which would entitle any debenture or secured creditor to appoint a receiver or to petition for its winding up or to exercise any other rights over or against the Company’s assets and is not insolvent within the meaning of Section 518 of the Company Act 1985.

(b)             Goods the subject of any agreement by the Company to sell shall remain the sole and absolute property of the Company as legal and equitable owner until such time as the intending Purchaser shall have paid to the Company the agreed price together with the full price of any other goods the subject of any other contract with the company.

(c)             The intending Purchaser acknowledges that he is in possession of the goods solely as badge for the company until such times as the full price thereof is paid to the Company together with the full price of any other goods the subject of any other contract with the Company.

(d)             Until such time as the intending Purchaser becomes the owner of goods he will store them on his premises separately from his own goods or those of any other person and in manner which makes them readily identifiable as the goods of the Company.

(e)             The intending Purchasers right to possession of the goods shall cease if he not being a company commits an available act of bankruptcy or if being a company does anything or fails to do anything which would entitle a receiver to take possession of any assets or which would entitle any person to present hereby irrevocably authorised by the intending Purchaser to enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.

(f)              Until the company is paid in full for all the goods the relationship of the intending Purchaser to the Company shall be fiduciary in respect of the goods or other goods in which they are incorporated or used and if the same is sold by the intending Purchaser the Company shall have the right to trace the proceeds thereof according to the principles in Re: Hallets Estate (1880) 13 ChD 696, (1874-80) All ER rep 793. Alike right for the Company shall apply where the intending Purchaser uses the goods in any way as to be entitled to payment from a third party.

(g)             Subject to the terms hereof the intending purchaser is licensed by the Company to agree to sell on the Company’s goods subject to the express condition that such an agreement to sell shall take place as agents (save that the intending Purchaser shall not hold himself out as such) and Bailees for the company whether the intending purchaser sells on his own account and that the entire proceeds thereof are held in trust for the Company and are not mingled with other monies or paid into any overdrawn bank account and shall be at all times identifiable as the Companies monies.

(h)             If the intending Purchaser has not received the proceeds of any such sale he will if called upon to do so by the Company within seven days thereof assign to the Company all rights against the person or persons to whom he has supplied any product or chattel made from or with the Company’s goods.

(i)              The licence in sub-paragraph (g) above shall forthwith terminate both the intending Purchaser being in breach of any of the terms hereof or any other contract between the intending Purchaser and the Company or any other events occurring referred to in sub-clause (a) hereof or being in arrears with any sum due from it hereunder or on any account whatsoever and in any such event the Company shall without prejudice to any other rights to which it shall then be entitled be entitle to cancel the contract without notice and in the event of any such cancellation any deposit paid by the intending Purchaser to the Company shall thereupon be forfeited.

 

8.    Packaging

 

Specification for packing the goods shall be entirely at the discretion of the Company who shall have the right to pack all goods in such manner and in such materials and in such quantities as it in its absolute discretion thinks fit and shall not be obliged to comply with any packaging instructions or requests or requests of the intending Purchaser.

 

9.    Transit

 

Damage or loss in transit must be notified to the Company and the Carriers within twenty-four hours of receipt otherwise claims cannot be considered.

 

10.  Inspection and Testing

 

Where there is a statutory requirement on us an appropriate test certificate in respect of goods will be supplied without charge. If the intending Purchaser wishes the Companies goods to be passed by an insurance company or other inspector he must stipulate this at the time of placing his order when at a reasonable additional charge the Company will submit drawings and specifications for approval. Any requirements for testing in the presence of the intending Purchaser’s representatives must be agreed. In advance and will be the subject of extra charge. The intending Purchaser will on reasonable notice be at liberty to inspect the equipment at the Company’s premises prior to despatch.

 

11.  Access to the Site

 

The site and access thereto shall be fully available to the Company and any other person, firm or company on its behalf at all times when required by the Company in connection with the supply.

 

12.  Site Conditions, etc

 

(a)             The consent of any government local or other authority necessary to fulfil the execution of any contract shall be obtained by the intending Purchaser.

(b)             Where the company erects any of its goods on site structures and foundations must be suitable and have adequate strength to bear the loadings advised by the Company and or resulting from the use of installation of the goods.

(c)             The suitability of all goods supplied by the Company for combination with other plant and machinery shall be the responsibility of the intending Purchaser. The Company will advise and accept responsibility for confirmed dimensions weights ratings and capacities of its equipment but shall have no liability in connection with the fitting or use of its goods with the machinery plant or equipment of the intending Purchaser or others.

 

13.  Installation Projects

 

(a)             The Company Products: Specifications and installation of the Company products will be in accordance with that detailed in the appropriate product manual unless otherwise stated in writing. Details available on application.

(b)             Free Standing Systems: All types of supporting structures are designed and constructed in accordance with BS 4076 1978 specification for steel chimneys and BS 449 Part 1/2, whichever is applicable.

(c)             Quotations (Inclusions):

Standard Company installation quotations include the following:-

i)                   Supply, delivery and erection of specified materials

ii)                 Supply, delivery and installation of standard support bracketry and fixings, as detailed in the appropriate Company product manual (unless otherwise stated).

iii)              Upon receipt of an order, one site visit and subsequent preparation of working drawings.

 

Quotations (Exclusions):

Standard The Company installation quotations. DO NOT INCLUDE for the following:-

i)                   Builders work (i.e. cutting holes, foundations, making good etc).

ii)                 Scaffolding.

iii)              Dismantling and removal from site of existing flue, installation etc.

 

The above are not included unless specifically stated in writing. Liquidated

damages are not accepted unless specifically agreed in writing prior to the

contract being placed.

 

(d)             Contract Procedures

Upon receipt of an official order, and any relevant information, a site survey will be arranged at a mutually convenient time. It is the customer’s responsibility to ensure that:-

 

i)                   The boilers must be fixed in position.

ii)                 Unobstructed access is given for the Company surveyor to take all necessary dimensions.

iii)              Any items likely to obstruct the route of the chimney must be insitu at the time of the site survey. Failure to do this could necessitate additional charges for extra materials and installation times.

iv)              The Company cannot be held responsible for delays on site not of our making and outside of our control.

 

(e)             Site Variations

Should actual site conditions vary from those originally indicated on the drawings and information supplied from which the original quotation was based then the Company reserves the right to amend the contract price accordingly. Any revisions to the contract price would be advised in writing by the Company and the client’s acceptance of the revised contract price would be required prior to contract commencement. Failure to comply with conditions 4 and 5 above causing the need for additional site survey, or additional items will be regarded as chargeable extras.

 

(f)              Procedure Prior To manufacture

Upon completion of site survey, working drawings will be prepared together with any calculations for structure (where applicable) and submitted to the client for approval in writing. It is only upon receipt of written approval that manufacture of chimney components will be scheduled and installation programme arranged. Upon receipt of written approval confirmation will be given to the client of anticipated completion date.

 

(g)             Installation

The following site conditions for successful installation to be completed by the Company:-

 

i)                   The installation to be carried out in one continuous site visit.

ii)                 The customer to accept delivery of materials if required.

iii)              The access to the area where the chimneys are to be erected should provide working space unimpeded by pipework, overhead wires or other obstruction.

iv)              It is the customer’s responsibility to ensure that walls or ceilings to which support bracketry of any kind is to be secured, be suitable and capable of taking the loads imposed upon them and that the method of bolting and fixing is suitable. Unless otherwise agreed we have not included for fixing to or for cutting apertures through any decorative fixing or cladding, be it brickwork or any other materials.

v)                 It is the customer’s responsibility to ensure suitable access, offloading and parking facilities are available at all times.

 

Should any of the above conditions not be met, this could result in additional charges and delay in completion.

 

(h)             Special Notes For Free Standing Chimneys

As indicated above, all freestanding structures are designed fully in accordance with BS 4076 1978. These will be in general, produced in mild stainless steel not less than 6mm thick rolled to a suitable diameter in suitable flanged lengths. Free standing Open Masts to be designed in accordance to BS 449 Part 2 and BS 5950 Part 5:1987.

 

After completion of the contract, a Satisfaction Note is required to be signed by a duly authorised representative of the customers. Any additional work requested of the Company to carry out must be covered by an authorised Extra Charge Note before any work is carried out, and signed by a duly authorised representative of the customer. This representative must be in attendance on site at completion, otherwise waiting time will be charged as necessary.

 

(i)              Installation Of Freestanding Chimneys

It is important to not the following:-

 

i)                   The Company quotation is based on there being clear access over firm and level ground to the area where the chimneys and masts are to be installed by our transport and crane. Unless otherwise stated in writing, we have allowed for a crane with a ‘maximum jib radius of 40 feet (12.5m)’.

ii)                 The Company would supply, included in the price of contract, holding down bolts and template for setting into foundation provide by others. It is our customer’s responsibility to ensure that these bolts are cast accurately in position to ensure sufficient time has been allowed for the curing of the concrete foundations.

iii)              Unless otherwise agreed, all freestanding will be prepared to the necessary British Standard specification. Included in the price are, base plate, holding down bolts, support plates, hoop bands and base template. Paint finish and treatment to The Company standard specification (details on application). Special finishes such as grit blasting, spraying and galvanising etc are usually carried out prior to delivery to site and therefore liable to receive damage in handling, transit and erection. The usual method of rectifying such damage on site is by hand and it therefore, cannot be guarantee that shading or texture of such remedial work will be consistent with the original finish.

 

(j)              COSHH

The client must inform the Company in writing of any hazardous substances that may affect personal working on the premises. If special protective clothing respiratory equipment or any other special safety equipment is required, this will be charged for, if required the client must carry out air monitoring trials to ensure the work area is safe for Company personnel.

 

14.  Sub-Contracting

The company shall be entitled to sub-contract all or any of its obligations relating to the Supply Installation.

 

15.  Cancellation

The order once placed and accepted cannot be cancelled except with the Company’s consent and on terms which will indemnify the Company against any loss incurred thereby. Where the goods are returned by the intending Purchaser without the Company’s consent other than under the provisions of these conditions they will not be accepted for credit. The Company will make a 35% re-stocking charge for goods returned by consent.

The intending Purchaser warrants that any design instructions furnished or given by it to the Company whether or not in the order or the specification shall not be such as will cause the Company in the performance of the contract to infringe any letters patent registered design trade mark trade name or any other right belonging to a third party. If any dispute or claim shall arise in connection with any such rights the Company shall be entitled to cancel the contract and the intending Purchaser shall be liable for all loss caused thereby and shall indemnify the Company on demand against such claim.

 

16.  Specifications, Drawings, Tests Etc

Except in quotations or tenders against the Purchaser’s detailed drawings of weight and dimensions submitted with any quotation or tender are approximately only and the description and illustrations in any of the Company’s catalogues, price lists or other advertising matter are intended to present only a general idea of the goods therein and none of these shall form a part of any contract. All quotations, drawings and descriptive matter whatsoever are copyright and remain the property of the Company and are returnable on request. These must be treated as confidential and must on no circumstances be communicated to other persons or companies unless written consent of the company has first been obtained, nor must they be otherwise used in any way against the interest of the Company. The Company does not accept responsibility for any drawings, designs or specifications not prepared by it and submission of the tender or quotation does not constitute or any warranty guarantee representation or opinion of the practicality of construction or the efficiency or safety or otherwise of materials to be supplied or work to be executed by the Company accordingly. Additional work caused by defects in any such drawings, designs or specifications shall be chargeable as an extra cost.

 

If special tests or test in the presence of the Purchaser or the Purchaser’s representative are required either on site or at the Purchaser’s premises these will be chargeable unless otherwise specified. In the event of delay on the Purchaser’s part in attending such tests after receiving prior notification of seven days the tests will proceed in the absence of the Purchaser and shall be deemed to have been made in the Purchaser’s presence.

 

17.  Partial Invalidity

If and to the extent that any clause of these items and conditions shall prove invalid the remaining provisions and the contract shall remain valid and binding. Any invalid clauses shall be re-negotiated with the intention of replacing such clauses by new provisions with similar economic implications. Such substituted provision shall be binding on both parties.

 

18.  Assignment

The intending Purchaser’s shall not assign any rights or delegate any duties under the contract.

 

19.  Waiver

The failure of the Company to insist upon strict performance in any of the terms and conditions stated herein shall not be considered a continuing waiver of any such term or condition or any of the other terms and conditions hereof.

 

20.  Force Majeure

The Company shall not be liable for any failure to perform its obligations hereunder which may be due in any circumstances beyond its reasonable control including strike riot lockout acts of war sabotage insurrection civil or other disorder labour disputes and shortages accidents fire flood explosion short tempest or other acts of God lack of fuel or lack of or breakdown of machinery or technical breakdown act or omissions of government or other authorities or judicial action acts of an enemy state or unavailability of transportation.

 

21.  Proper Law

The contract shall in all respects be construed and operated in accordance with English Law and the intending Purchaser hereby submit to the non-exclusive jurisdiction of the English courts.

 

22.  Copyright

(1)             Any know-how, information designs or drawings connected with the Supply and provided by or on behalf of the Company are confidential and shall remain the property of the Company (together with) all copyright and other rights relating thereto) and the Customer shall not copy use or disclose such know-how, information, designs or drawings without the prior written consent of the Company.

(2)             The customer shall indemnify the Company against any claims, demands, costs, expenses or other liability incurred by the Company relating to the drawings, specifications, dimensions and other written or oral information.

 

23.  Notices

Any notices to be given under these terms shall be valid if and only if in writing at the addresses of the Company and the Customer mentioned on this form and may be given by first class post or by telex. Notices given by first class post shall be deemed served the next working day after having been posted.

 

24.  Headings

Headings given to these do not form part of the terms and are for ease of reference only.

 

25.  Choice of Law and Jurisdiction

These terms and any other obligations relating to the Supply shall be governed by English law and the English Courts shall have exclusive jurisdiction over any disputes relating hereto.