Thermmark Ltd – Terms & Conditions

These conditions form an integral part of every contract or agreement (the Contract) for the sale and/or supply of goods and/or services (the Goods) by Thermmark Ltd (the Company) to the Customer. Any Contract between the Company and the Customer shall be for the sale and purchase of Goods incorporating these Conditions. Unless specific alterations or deletions are expressly agreed in Writing on behalf of the Company, these conditions shall apply in their entirety to all quotations made and all orders accepted on behalf of the company. Except as provided above no servant or agent of the Company has any authority to vary these terms or accept other terms proposed by a Customer which are inconsistent with these conditions. Any advice or recommendation given by the Company to the Customer as to the application or use of the Goods which is not confirmed in Writing by the Company is followed or acted upon entirely at the Customer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.

1. Availability
   1. All orders are accepted subject to the Goods being available.
2. Quotations
   1. A quotation by the Company does not constitute an offer and the Company reserves the right to withdraw or revise a quotation at any time.
3. Orders and Specifications
   1. No order shall be deemed to be accepted by the Company unless and until confirmed in Writing by the Company’s authorised representative.
   2. No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in Writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
4. Price of the Goods
   1. The price of the Goods shall be the Company’s quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Customer, after which time they may be altered by the Company without giving notice to the Customer.
   2. The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost price of the Goods to the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
   3. Unless otherwise agreed in Writing, all prices are given by the Company on an ex works basis. Where the Company agrees to deliver the Goods the Customer shall be liable to pay the Company’s charges for transport, packaging and insurance.
   4. All prices quoted are exclusive of any value added tax which the Customer shall be additionally liable to pay to the Company.
5. Terms of Payment
   1. The Company shall be entitled to invoice the Customer for the price of the Goods on or at any time after delivery of the Goods. If the Customer fails to take delivery of the Goods the Company shall be entitled to invoice the Customer for the Goods and their storage until delivery is made after the Company has notified the Customer that the Goods are ready for collection or the Company has tendered delivery of the Goods.
   2. The Customer shall unless stated by the Company otherwise pay the price of the Goods as per the terms stated on the invoice, and the Company shall be entitled to recover the price notwithstanding that the property in the Goods has not passed to the Customer.
   3. No payment shall be deemed to have been received until the Company has received cleared funds.
   4. The time of payment of the price shall be of the essence of the Contract.
   5. Receipts for payment will be issued only upon request.
   6. If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
      • cancel the contract or suspend any further deliveries to the Customer
      • appropriate any payment made by the Customer of the Goods or the goods supplied under any other Contract between the Customer and the Company as the Company may think fit
      • charge the Customer interest from the date when payment was due on the amount unpaid, at the rate of 6 per cent per annum above RBS base rate from time to time calculated on a daily basis, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest). The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
   7. In the event that the Company owes money to the Customer under any contract or other arrangement entered into between the Company and the Customer the Company shall be entitled to set off such sums owed by the Company to the Customer against any sums which the Customer shall owe to the Company pursuant to this Contract.
   8. The Customer shall not be entitled to withhold any payments of an amount payable by the Customer to the Company because of any claim of the Customer in respect of any alleged breach of contract.
   9. In the event that the Customer tries to cancel any Order the Customer shall be liable to pay the Company the full agreed Contract price for all Goods under the Contract whether or not those Goods are delivered.
6. Delivery
   1. Delivery of the Goods shall be made by the Customer collecting the Goods at the Company’s premises at any time after the Company has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place.
   2. Any dates quoted for delivery of the Goods are intended to be an estimate and the time for delivery shall not be made the essence by notice. If no date is specified delivery shall be within a reasonable time. The Company shall not be liable for any delay in delivery of the Goods howsoever caused.
   3. Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
   4. Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Company to delivery any one or more of the installments in accordance with these Conditions or any claim by the Customer in respect of any one or more installments shall not entitle the Customer to treat the Contract as a whole as repudiated.
   5. If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
      • assign the risk in the Goods to the Customer (including for loss or damage caused by the Company’s negligence)
      • deem the Goods to have been delivered; and
      • store the Goods until delivery, whereupon the Customer shall be liable for all
      • related costs and expenses (including, without limitation, storage and insurance); or
      • sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
   6. The Customer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for unloading the Goods.
7. Non-delivery
   1. The quantity and or quality of any consignment of Goods as recorded by the Company upon dispatch from the Company’s place of business shall be conclusive evidence of the quantity and or quality of the Goods received by the Customer on delivery unless the Customer complies with this condition 8 and can also provide conclusive evidence proving the contrary.
   2. The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non-delivery within 5 days of the date when the Goods would in the ordinary course of events have been received.
   3. Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
8. Inspection
   1. The Customer will inspect the Goods immediately they are delivered and the signature of the Customer or of any person acting on its behalf on the delivery note will be deemed to be an acknowledgement by the Customer that the Goods are of satisfactory quality, undamaged and in accordance with the Contract and the Company will not replace the Goods nor be under any liability to deliver any missing item, unless the Customer:
      • states on the delivery note that the Goods or part of them are either damaged or missing; and
      • notifies the Company in Writing within 3 working days of delivery of the Goods of the extent to which the Goods do not conform with the Contract, are damaged and/or missing;
      • in the case of latent or hidden defects which could not reasonably be revealed on the delivery inspection such notification must be made within, whichever is the earlier, 3 working days of the date of discovery of latent or hidden defect or within 7 days of delivery;
      • preserves the Goods intact as delivered for a period of 28 days from notification of the claim within which time the Company and/or any person nominated by the Company shall have the right to attend the Customer’s premises or wherever the Goods are stored to investigate the Customer’s complaint.
   2. If the Company has agreed to transport the Goods the Company’s liability for Goods lost or damaged in transit shall in all circumstances be limited to (at the Company’s option) the repair or replacement of the Goods or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
   3. The Company may make good any shortages and defects notified to it in accordance with condition 9.1 above if the Company is satisfied that the complaint and notification are genuine and correct. The Company shall not be liable for any other loss whatsoever arising from any non-conformity, shortage or defects.
   4. If the Company disagrees with the Customer that the Goods are damaged or defective then the dispute shall be referred to an independent third party appointed jointly by the Company and the Customer or, failing agreement within 7 days, by a party appointed, on the application of either the Company or the Customer, by the President for the time being of Institute of Chartered Accountants. Such independent third party shall act as an expert and not as an arbiter and his decision shall be final and binding on, and his costs and expenses shall be borne equally by, the Company and the Customer.
   5. The Company shall have no liability to the Customer in respect of damaged or defective Goods (and the Customer shall be required to pay the full contract price) where:-
      • any claim made by the Customer is not in accordance with these Conditions;
      • damage has been sustained after delivery of the Goods to the Customer, or its agents;
      • defects are caused by installation, operation or maintenance carried out other than in accordance with any instructions supplied orally or in Writing with the Goods or by wear and tear, accident or misuse, improper operation or neglect or if any adjustment, alteration or other work has been performed on the Goods by any person other than the Company or its employees or agents; or
      • a receipt has been obtained by the Company, duly signed by the Customer or one of its employees or agents, confirming that the Goods have been delivered in a satisfactory condition.
9. Risk and Property
   1. Risk of damages to or loss of the Goods shall pass to the Customer:
      • in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection; or
      • in the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
   2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds, payment in full of the price of the Goods and all other goods agreed to be sold by the Company to the Customer for which payment is then due.
   3. Until such time as the property in the Goods passes to the Customer the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, the Customer irrevocably authorises the Company and its agents and employees to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
   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 Company, but if the Customer does so all moneys owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
   5. The Customer’s right to possession of the Goods shall terminate immediately if:
      • the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate)convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
      • the Customer encumbers or in any way charges any of the Goods.
   6. Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
   7. Free issue materials are processed entirely at the Customer’s risk. All property supplied to the Company by or on behalf of the Customer shall be held entirely at the Customer’s risk.
10. Warranties and Liabilities
    1. Subject to the conditions set out below the Company warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 3 months from the date of delivery.
    2. The above warranty is given by the Company subject to the following conditions:
       • the Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer;
       • the Customer makes any further use of such Goods after giving such notice;
       • the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Company’s written approval;
       • the Company shall be under no liability under the above warranty if the Customer alters or repairs such Goods without the written consent of the Company
       • the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the price due for the Goods has not been paid;
       • the above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
    3. The Company shall not be liable for a breach of any of the warranties in condition 11.1 unless:
       • the Customer gives written notice of the defect to the Company within 7 days of the time when the Customer discovers or ought to have discovered the defect; and
       • the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.
    4. If the Company agrees that it is or (as the case may be) it is found to be liable under the provisions of clause 11.2 above, then the Company’s entire liability to the Customer shall be limited, at the option of the Company, to repairing or replacing the Goods or refunding the purchase price (or a proportionate part thereof) for them.
    5. Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
    6. Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) order 1976) the statutory rights of the Customer are not affected by these Conditions.
    7. Nothing in these Conditions is intended to exclude or limit the liability of the Company to the Customer for the following matters:
       • death or personal injury caused by the Company’s negligence;
       • failure to give good title to the Goods.
       • However, save for these matters and save for the liability accepted by the Company under clauses 7.3 and 11.4 the Company shall have no liability of any nature whatsoever to the Customer whether for breach of contract, any act or omission (including negligence), breach of any statutory duty, breach of any warranty, condition or other term implied by law, misrepresentation (unless fraudulent) or in any other manner whatsoever. Under no circumstances shall the Company be liable to the Customer for any loss of profits, loss of contracts, loss of goodwill, administration and management expenses, or any consequential loss or damage of any nature even if any of these matters were reasonably foreseeable.
    8. The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:
       • act of God, explosion, flood, tempest, fire or accident;
       • war or threat of war, sabotage, insurrection, civil disturbance or requisition
       • acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
       • import or export regulations or embargoes;
       • strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
       • difficulties in obtaining raw materials, labour, fuel, parts or machinery;
       • power failure or breakdown in machinery.
    9. These Conditions do not create any right enforceable by any person not a party to it except that a person who is the permitted successor to or assignee of the Company is deemed to have the benefit of all rights of the Company.
11. Export Terms
    1. In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
    2. Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 12 shall (subject to any special terms agreed in Writing between the Customer and the Company) apply notwithstanding any other provision of these Conditions.
    3. The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
    4. Unless otherwise agreed in Writing between the Customer and the Company, the Goods shall be delivered fob the air or sea port of shipment and the Company shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.
    5. The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
    6. Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer at Customer’s expense in favour of the Company and confirmed by a recognised European Bank acceptable to the Company or, if the Company has agreed in Writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to the Company of a bill of exchange drawn on the Customer payable 60 days after sight to the order of the Company at such branch of RBS Bank in England as may be specified in the bill of exchange.
    7. The Customer undertakes not to offer the Goods for resale in any country unless specifically agreed with the Company, or to sell the Goods to any person if the Customer knows or has reason to believe that that person intends to resell the Goods in any such country.
12. Cancellation
    1. The Contract is a legally binding agreement and is not cancellable by the Customer without prior written consent of a Director of the Company. If the Company does agree at their absolute discretion to cancel the Contract then a cancellation charge determinable by the Company will be payable. The Company will not in any event consent to cancellation of Order’s for Goods made to the Customer’s specific requirements.
13. General
    1. Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
    2. No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
    3. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
    4. The Contract shall be governed by the laws of England and Wales. In the event of any dispute or difference arising between the parties which cannot be resolved through negotiation, the parties shall attempt to resolve the same in accordance with the Guidelines for Conciliation and Mediation or the Guidelines for Supervised Settlement Procedure (“Mini Trail”) of the Chartered Institute of Arbitrators.
       • If such dispute or difference is not resolved by one of these procedures within 28 days of the parties entering into it, or if either party refuses to participate in it, the same shall be referred to a single arbitrator to be agreed upon by the parties pursuant to section 16(3) of the Arbitration Act 1996 (“the Act”) or in default of agreement, to be appointed by the President or Vice President for the time being of the Chartered Institute of Arbitrators. In this clause 14.4, “dispute or difference” does not include a claim for the price of the Goods by the Company from the Customer. The Arbitration shall be regarded as commenced for the purposes set out in section 14(1) of the Act when one party sends to the other a notice to concur in the appointment of an Arbitrator. The seat of the arbitration shall be in Cardiff. The Arbitrator shall determine the dispute or difference in accordance with the Law of the Contract.
    5. The Company reserves the right to charge for conceptual work.
14. Credit Search
    1. The Company may make a search with a credit reference agency, and will keep a record of that search and may share that information with other businesses. In some instances the Company may also make a search on the personal credit file of principal directors of the Customer. Should it become necessary to review an account, then again a credit reference may be sought and a record kept. The Customer acknowledges that the Company may monitor and record information relating to the trade performance of the Customer and such records will be available to Credit Reference Agencies who will share that information with other businesses when assessing applications for credit and fraud prevention.
15. Guarantee of Credit Account
    1. The unconditional and irrevocable guarantee for payment of all the financial obligations of the Customer to the Company granted by the representatives and or directors of the Customer in consideration of the Company opening and making available to the Customer a ‘credit account’ (‘the Guarantee’) shall be a continuing security and shall not be discharged by any intermediate settlement of the credit account.
    2. The Guarantee shall ensure for the benefit of the Company, its successors and assigns and can be assigned in whole or in part by the Company without notice.
    3. Where the Guarantee has been granted by the Company the obligations of the Guarantee shall take effect as joint and several obligations and the Guarantee shall not be revoked or impaired as to any guarantors by the death, incapacity or insolvency of the other.
    4. The Company may at its sole discretion release or discharge any of the guarantors of their obligations under the Guarantee or accept any composition from or make any other arrangements with any of the guarantors without releasing or discharging the other(s) or without prejudice or affecting the Company’s rights and remedies against the other.
16. Installation
    1. Upon the day of installation, an inspection by the installation team will take place. If the installation cannot be carried out through no fault of Thermmark Ltd, then we reserve the right to make a charge of upto 25% of the total invoice value. We also reserve the right to make additional charges for services that may include cleaning or ground preparation.
    2. Underground services – We must be made aware prior to installation of any known underground services that may hamper installation. We will not be held responsible for the disruption of these services, if we have not been notified of there existence prior to installation.
17. Website Content & Imagery
    1. The content of this website is for general information only and is subject to change without notice
    2. No guarantee or warranty will be given as to the accuracy, completeness or suitability of the information and materials found on this website.
    3. This website contains material which is owned by or licensed to us. Reproduction is prohibited unless approved by the completion of a confidentiality agreement.
    4. No links are permitted to this website