Mercuri (Architectural Sales) Ltd.

Terms & Conditions

1. Definitions

In these Conditions, unless the context requires otherwise:

‘Buyer’ refers to the person or company who buys or agrees to buy the Goods from the Seller.

‘Seller’ refers to Mercuri (Architectural Sales) Ltd.

‘Conditions’ refers to the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller.

‘Delivery Date’ refers to the date when the Goods are due to be delivered, as specified by the Seller.

‘Installation Date’ refers to the date when the Goods are scheduled to be installed on site by the Seller or their employees or appointed agents.

‘Goods’ refers to the articles which the Buyer agrees to buy from the Seller.

‘Price’ refers to the price for the Goods including installation (where applicable) but excludes VAT.

‘In writing’ refers to any form of written communication, including but not limited to email.

2. Conditions Applicable

2.1. These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions, including any terms or conditions which the Buyer may

purport to apply under any purchase order, Confirmation of Order or similar document.

2.2. All orders for Goods accepted in writing by the Seller shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.

2.3. Following acceptance of an order for Goods by the Seller, the Seller will issue to the Buyer a written Confirmation of Order. The Buyer must notify the Seller within 48 hours of the date contained in the

Confirmation of Order of any alterations or variations to the order as shown in the Confirmation of Order. Failure to do so will result in the Confirmation of Order taking precedence. No alterations or variations to any order accepted by the Seller will be allowed after the expiry of this time period unless agreed in writing by the Seller. No contractual documentation received after the 48 hour time period specified above will be accepted by the Seller unless agreed in writing by both the Seller and the Buyer.

2.4. Acceptance of these terms shall be deemed conclusive upon the Buyer’s receipt and acceptance of the Seller’s issued Confirmation of Order.

2.5. Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.

3. Design

3.1. Unless a variation is agreed with the Seller in writing, all products will be manufactured as the Seller’s or their manufacturing partners’ own design. It is the sole responsibility of the Buyer to notify the Seller in writing of any change to the specification and/or design required prior to the Confirmation of Order and approval drawings being received by the Seller.

3.2. The scope and the extent of any design work to be undertaken by the Seller or their manufacturing partners must be expressly stated in the documentation to the Seller.

3.3. Although all design work undertaken by the Seller or their manufacturing partner is carried out with reasonable skill and care, such design in no way implies a fitness for purpose liability.

4. Goods

4.1. The quantity and description of the Goods shall be as shown in the Seller’s quotation.

4.2. The images of the products on our site and other sources are for illustrative purposes only and shall not form part of the contract nor have any contractual force. Although we have made every effort to

display the colours accurately, we cannot guarantee that your computer's display of the colours accurately reflect the colour of the products, therefore your products may vary slightly from those images.

4.3. All products shown on our site are subject to availability. We will inform you by email as soon as possible if the product you have ordered is not available.

4.4. If the Buyer chooses to cancel their order at any time and the Seller or one of their manufacturing partners has already started to process the order, the Seller will either invoice the Buyer for the work

previously undertaken and any Goods fully or partially manufactured (the determination of how much of the contract has been completed to be solely at the discretion of the Seller) or where a deposit has been paid, make an appropriate deduction from the deposit in respect of any fees and costs incurred by us in fulfilling the original order.

4.5. The Seller’s policy is one of continuous improvement and therefore they reserve the right at any time to make any required changes in the type, size, colour, design or materials to the specifications that they deem necessary, or to select suitable alternatives if the Buyer’s original order and specifications prove to be impossible to manufacture. The Buyer accepts that all additional costs incurred by any such

amendments are the total responsibility of the Buyer.

4.6. Following the pre-installation site survey, in the event that the Seller or one of their manufacturing partners deem it necessary to make a variation to the customer’s order, in order for the product to be

installed, the Seller reserves the right to amend the price of the goods and without prior notice to the Buyer.

4.7. The Seller reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements. The Buyer shall have no cause of action in respect of any such change.

5. Site Surveys

5.1. The Seller reserves the right, at their sole discretion, to undertake site surveys. If a survey takes place it is the Buyer’s responsibility to ensure safe and reasonable access to the installation site, athough the Seller or their employee or agent shall be free to consider the installation site inaccessible at their own volition. The Buyer shall provide and be liable for all costs associated with the provision of any access

equipment or special arrangements required for the Seller to undertake a site survey, including but not limited to ladders, scaffolding, working platforms and cherry pickers.

5.2. The Buyer accepts and agrees that any survey which has to be aborted or abandoned due to the Seller not being able to gain proper access to the site may be charged at an appropriate day rate, which is to be solely determined by the Seller.

6. Delivery

6.1. The Goods will be delivered to the Buyer’s address as shown on the order confirmation. The Goods may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Buyer.

The Buyer shall make all arrangements to take delivery of the Goods whenever they are due for delivery and ensure that they have sufficient manpower or suitable lifting equipment to safely offload the Goods from the vehicle. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.

6.2. Any dates quoted for delivery of the Goods shall be approximate only and the Seller shall not be liable for any loss arising from any delay in the delivery of the Goods. The Seller will use their best endeavours to comply with any delivery dates, however any failure shall not constitute breach of contract or entitle the Buyer to treat the contract as repudiated or to rescind it either in whole or in part or to claim damages for any such failure.

6.3. The Price does not include the costs of offloading, removal or storage and this is to be arranged by the Buyer at their own expense and risk.

6.4. It is the Buyer’s responsibility to provide, as necessary, any labour, craneage, hoistage, lifting machinery or any other equipment required to offload the Goods delivered by the Seller and to ensure that the necessary Health and Safety and Risk Assessments are carried out. In addition, the Buyer must ensure there is sufficient access to the site for the Seller’s delivery vehicle and any anticipated difficulties or special arrangements must be advised by the Buyer at least two days prior to the day of delivery. The Seller accepts no responsibility for offloading of the Goods.

6.5. If the Buyer fails to take delivery of the Goods or fails to provide the Seller with adequate delivery instructions to enable delivery to be made, the Seller may store the Goods until such time delivery is made and charge the Buyer for the costs of storage including insurance in addition to the Price of the Goods. In such circumstances the Seller is entitled to submit the invoice for the Goods and to expect full payment from the Buyer on the due date.

6.6. The Seller shall not be liable to the Buyer for late delivery or short delivery of the Goods.

7. Supply and Installation

7.1. Unless otherwise agreed in writing by the Seller, the Price is for supply and delivery of the Goods only. It does not include any attendances by the Seller including scaffolding, roof protection, edge protection, internal boarding, hoistage, cranage, any electrical work or removing or making good of any existing structure. This list is not intended to be exhaustive. Such items are the sole responsibility of the Buyer.

7.2. Unless otherwise agreed in writing by the Seller, the Seller will not be liable or responsible for, nor pay any costs incurred when a contract overruns its expected completion date.

7.3. If asbestos has had to be managed or removed from site, then prior to any installation work commencing, the Seller or anyone employed by them who has need to, will require to see certified proof that all work areas have been safely cleared of asbestos, prior to the installation team arriving on site. If at a later time asbestos is then discovered, it must be immediately notified, in writing, to the Seller (to allow

production and installation times to be rescheduled) before being safely removed from site, by others, before any installation work can continue. Although the Seller will do their best to reschedule the installation work within the value of the original order, they will not be responsible for any financial loss, due to the discovery of or removal from site of asbestos.

7.4. The Buyer acknowledges and accepts that the Seller employs the services of different specialist installers for some of its products and that subsequently day rates and rates for loss of time will vary according to the glazing system to be installed. The Seller reserves the sole right to set said rates and to advise the Buyer of them on an individual project basis.

8. Electrical Components

The Seller does not provide for any onsite electrical work unless otherwise agreed in writing. It is the responsibility of the Buyer to ensure that all wiring and electrical components are checked and tested by a qualified electrician. All electrical components supplied by the Seller are factory tested before dispatch and are in good working order. Any damage to these components resulting from incorrect or faulty wiring or misuse of handling will be the sole responsibility of the Buyer as will be the cost of any replacement.

9. Ownership of Goods

Ownership of the Goods passes to the Buyer upon delivery, providing that payment has been made in full (including any and all delivery charges). The Seller reserves the right to dispose of the Goods until

payment is made in full.

10. Title and Risk

10.1. Risk in the Goods will pass to the Buyer upon delivery. The Seller will not be liable for any loss, damage or destruction whatsoever of the Goods occurring after they are delivered to the Buyer. If the Buyer collects the Goods or arranges collection or delivery by any means other than by delivery by the Seller, the risk shall pass to the Buyer as soon as the Goods leave the premises of the Seller or their manufacturing partners.

10.2. Where the Seller delivers the Goods, the Seller agrees at their sole discretion to replace or to repair free of charge any Goods damaged in transit. In such circumstances, the time for delivery of the Goods shall be extended for such period the Seller reasonably requires for any such replacement or repair. It is required that:

10.2.1 The Buyer shall provide to the Seller written notice of such damage in transit with full details within 2 days of receipt of the Goods;

10.2.2. If requested by the Seller, The Buyer will, unless otherwise agreed in writing, return all damaged goods to the Seller within 14 days of receipt;

10.2.3. The Buyer will indemnify the Seller against any claims made against them in respect of any injury or damage to any person or property respectively arising from any defect in the Goods or any matter relating to their delivery where such delivery is affected by the Seller, including any such injury or damage caused by the negligence of the Seller, its employees, servants or agents.

10.3. If payment is overdue in whole or in part, the Seller, its employees, servants or agents may, without prejudice to any of their rights, recover or resell the Goods or any part thereof and may enter the Buyer’s premises for that purpose. Such payment will become due immediately upon the commencement or any act or proceedings in which the solvency of the Buyer is involved.

10.4. If the Buyer rejects any Goods, the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such Goods or the failure by the Seller to supply Goods which conform to the contract of sale.

10.5. Until ownership of the Goods has passed to the Buyer, the Buyer will:

10.5.1. As far as practicable keep the Goods separate from other goods at the premises where they are located so that they are readily identifiable as the Goods of the Seller;

10.5.2. Take all reasonable care of the Goods and keep them in reasonable condition;

10.5.3. Insure the Goods: (i) with a reputable insurer; (ii) from the date of delivery; (iii) against all risks; and (iv) for an amount at least equal to the Price;

10.5.4. Provide the Seller with such information concerning the Goods as they may reasonably request from time to time.

10.6. If, at any time before ownership of the Goods has passed to the Buyer, the Seller is informed of or reasonably believes that the Buyer is or is likely to become subject to any insolvency or similar

proceedings, the Seller may:

10.6.1. Require the Buyer at the Buyer’s expense to return the Goods to the Seller and;

10.6.2. If the Buyer fails to do so promptly, enter any premises where the Goods are stored and repossess them.

11. Price and Terms of Payment

11.1 The Price shall be the Seller’s price ruling at the date of dispatch of the Goods. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the costs to the Buyer which is due to any factor beyond the control of the Seller.

11.2. The Price of the Goods is exclusive of VAT, which is shown separately and is payable at the current rate.

11.3. Full payment of the Price and VAT shall be due as stated in the Seller’s invoice.

11.4. Time for payment shall be of the essence.

11.5. If the Buyer fails to pay the required amount by the due date, or any sum is overdue to the Seller, then the Seller without limitation of any other right or remedy, may demand that all additional payments due within the terms of the contract be paid in full immediately and/or cancel all outstanding orders and decline to make further deliveries except upon receipt of cash. In addition the Seller may, at their discretion, charge the Buyer interest commencing on the first working day after the due date (as stated in the Seller’s invoice), at a rate of 5% per annum above the current base lending rate of HSBC Bank.

11.6. The setting off or withholding of payment by the Buyer in respect of any claim shall not be allowed unless expressly agreed by the Seller in writing.

11.7. Where site work is applicable, failure to make payment in accordance with paragraph 11.5. or in accordance with any other terms for payment as agreed in writing by the Seller may result in operatives of the Seller, their manufacturing partners or agents being withdrawn from the site. No further goods will be delivered to the site and any ongoing projects will be stopped until such time that all payments owed within the contract are paid in full to the Seller together with all accrued interest. In addition, the Seller also reserves the right to reclaim any additional costs and charges they incur as a result of the Buyer’s

failure to pay for the Goods on the due date.

11.8. Delivery will be charged at such rates which the Seller (at its sole discretion) considers fair and reasonable in respect of that delivery and can (also at the Seller’s discretion) be included within the Price of the Goods. Additional charges may be incurred at rates current at the time of dispatch of the Goods if any special delivery arrangements are required.

11.9. The Seller accepts no liability under any circumstances for any costs, fees, charges or any other financial loss or penalties which may be incurred by the Buyer in respect of other current orders and ongoing or future projects which result from non-payment or late payment by the Buyer to the Seller.

11.10. We take great care in making sure that the prices in our quotations are accurate, but we reserve the right to amend any quotation when an error has been made.

11.11. The Seller will only accept cash, cheque or bank transfer as methods of payment.

11.12. No retentions to be deducted unless by the Seller’s prior written agreement.

12. Warranty and Liability

12.1. The Seller warrants that the Goods supplied will at the time of delivery correspond to the description given by the Seller. All other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise, are excluded to the fullest extent permitted by law.

12.2. The Seller shall have no liability in respect of any defect in the Goods arising from any drawing, design or other specification supplied by the Buyer.

12.3. The Seller shall have no liability in respect of any defect arising from but not limited to fair wear and tear, wilful damage, negligence, abnormal conditions, misuse, alteration or repair of the Goods without approval by the Seller or by failure to follow an instruction whether written or oral from the Seller.

12.4. The Seller shall have no liability under the above warranty (or any warranty, condition or guarantee) if the total Price for the Goods has not been paid by the Buyer by the date due for payment.

12.5. The above warranty does not extend to any parts, materials or equipment not supplied by the Seller or their manufacturing partners unless otherwise agreed in writing. The Buyer shall only be entitled to the benefit of any such warranty or guarantee given to the Seller by the manufacturers.

12.6. Any claim by the Buyer based upon any defect in the quality or condition of the Goods or their failure to correspond with the specification shall be notified to the Seller within 7 days after discovery of the defect or failure.

12.7. Where the Buyer has a valid claim in respect of the Goods for any defect in the quality or condition or failure to correspond with the specification and the problem has been notified to the Seller as per paragraph 12.6. above and these terms and conditions, the Seller may replace the Goods or any part in question free of charge or at the Seller’s sole discretion, refund to the Buyer the Price of the Goods or a proportion thereof following which the Seller shall have no further liability to the Buyer.

12.8. Any replacement or refund offered by the Seller under paragraph 12.7. specifically excludes any other claims, costs, losses or damages and will exclude the cost of or the provision of any other services by the Seller including the costs of any refitting of the Goods or any equipment required to do so.

12.9. Any guarantee offered by the Seller is subject to all payment terms of the contract being fully adhered to as well as the provisions laid out in clause 12.

13. Limitations of Liability

13.1. The Seller accepts no liability for any costs, expenses, loss or damage, including any loss (including consequential loss) or damage whether direct or indirect however incurred by the Buyer, save as provided in these Conditions and provided that nothing in these Conditions shall restrict or exclude liability for the following:

13.1.1. Death or personal injury caused by the Seller’s negligence;

13.1.2. The statutory rights of any person dealing as a consumer;

13.1.3. Fraud or fraudulent misrepresentation;

13.1.4. Breach of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);

13.1.5. Breach of the terms implied by sections 13, 14 and 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 (description, satisfactory quality, fitness for purpose and samples) and defective products under the Consumer Protection Act 1987.

13.2. Any advice or recommendation as to the storage, application or use of the Goods given to the Buyer but not confirmed in writing by the Seller, their employees or agents is entirely at the Buyer’s own risk. The Seller will not be liable for any such advice or recommendation if followed or acted upon by the Buyer, their employees or agents.

14. Buyer’s Responsibility

14.1. It shall be the sole responsibility of the Buyer to satisfy themselves that the Goods are suitable for the particular purpose for which they are required, notwithstanding that the Buyer may make known such

purposes to the Seller and the Buyer shall not in this respect rely upon the Seller’s skill or judgement or any advice it may give. The Seller shall not be liable to the Buyer for damages in negligence in respect of any such advice or for failure to exercise proper skill and judgement.

14.2. It shall be the sole responsibility of the Buyer to ensure that all required and agreed preparatory site work and support structures shall be completed to the correct and required standards, designs and

dimensions and that they are capable of withstanding all dead and live loads that may be imposed upon them by the Goods.

14.3. In addition, where the contract includes for supply and installation, the Buyer will be responsible for all costs (including but not limited to time lost, travel and subsistence) incurred by the Seller as a

consequence of the Buyer failing to satisfactorily complete the preparatory measures as described above before the Installation Date. The Seller agrees to use their best endeavours to keep the cost of

reimbursement for time lost to an amount no greater than the original cost of installation of the product. In addition to the applicable day rate, the Buyer accepts that the Seller retains sole right to determine the amount of travel and subsistence costs to be reimbursed.

15. Force Majeure

The Seller shall not be liable for any failure on its part to perform any part of the contract arising from any cause outside of its control including but not limited to; an act of God, explosion, war, strike, lock out or other industrial dispute, fire, flood, loss of power, shortages of material or breakdown of machinery and/or plant, accident, illness or injury and in these circumstances, the Seller expressly reserves the right to cancel or suspend the whole or part of any delivery until such time that the Force Majeure event has ceased.

16. Proper Law of Contract

This contract is subject to the law of England and Wales. If any provision or clause is deemed by a Court or relevant authority to be unenforceable either in whole or in part, this will not affect the validity of any of the other clauses or provisions.

April 2020

©  Mercuri (Architectural Sales) Ltd. March 2020                                                Registered Office: 15 Olympic Court, Boardmans Way, Blackpool, FY4 5GU                                Registered No. 07059142                                                   VAT No. 109 3299 09