Sales Terms and Conditions
1 Definitions and Interpretation
1.1 In this document the following words and terms shall have the following meanings:
1.1.1 “Business Day” means any day other than a Saturday or Sunday or public holiday in the United Kingdom;
1.1.2 “Contract” means the contract between you and us for the supply of Equipment and/or services by us to you and comprising of the Quotation (if any), Order Form and the Order Confirmation (if any) and these Terms and Conditions;
1.1.3 “Delivery Date” means the date specified in the Order Form (as may be amended by the Order Confirmation or otherwise notified to you by us or the OEM);
1.1.4 “Delivery Location” means the location or address specified in the Order Form;
1.1.5 “Equipment” means the goods (and, where relevant, any associated services) identified in the Quotation, Order Form or Order Confirmation as the case may be provided that in the event of any inconsistency between the three documents the following order of precedence shall apply: (a) Order Confirmation; (b) Quotation; and (c) Order Form;
1.1.6 “OEM” means the original equipment manufacturer, which may be Heizomat Geratebau-Energiesysteme GmbH, Maicha 21, 91710 Gunzenhausen or such other person who manufactures the particular equipment to be provided by us;
1.1.7 “Order Confirmation” means confirmation in writing (which may include email), issued by us to you in response to our receipt of an Order Form, that confirms our acceptance of the Order Form;
1.1.8 “Order Form” means an order for goods or services submitted by you in accordance with Clause 2;
1.1.9 “Price” means the price for the Equipment as set out in the Quotation (unless varied by the Order Confirmation) excluding (unless specified in the Order Confirmation) any costs of delivery, licence, permit and insurance costs, overheads, packaging, packing, loading, carriage and all taxes and duties of any kind;
1.1.10 “Quotation” means a quotation for goods and/or services issued by us to you;
1.1.11 “Specification” means, if any, the specification for the Equipment as set out in, detailed in or appended to the Quotation, Order Form or Order Confirmation;
1.1.12 “Terms and Conditions” means these terms and conditions;
1.1.13 “us” or “we” means HeizomatGB Limited, a company incorporated in Scotland with Company Number SC570192 and having a place of business at Braco Castle Farms, Dunblane, FK15 9LA and “our” shall be interpreted accordingly;
1.1.14 “VAT” means value added tax chargeable under the Value Added Tax Act 1994 or any superseding VAT legislation and any similar additional tax or any other similar turnover, sales or purchase tax or duty levied in any other jurisdiction;
1.1.15 “you” means the buyer or person the Quotation or Order Confirmation is addressed to, or which the Order Form is received from and “your” shall be interpreted accordingly.
1.2 Unless the context requires a different interpretation, the following rules shall be used to interpret these Terms and Conditions: (a) the word “including” means “including but not only”; (b) a reference to a “Clause” is to the relevant Clause of these Terms and Conditions, unless otherwise stated; (c) the headings in these Terms and Conditions do not affect the meaning of the Clauses.
1.3 In the event of any conflict or inconsistency between them, the terms of these Terms and Conditions will take precedence over any other terms and conditions purported to apply to the Contract and shall, for the avoidance of doubt take precedence over any terms and conditions set out in any Order Form or any other document purported by you to apply.
1.4 Any references to any Scottish legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court official or any legal concept or thing shall in respect of any jurisdiction other than Scotland be deemed to include what most nearly approximates in that jurisdiction to the Scottish legal term.
2 Orders
2.1 Any Quotation in whatever form provided by us (whether provided in writing or given verbally and confirmed in writing including by email) is provided subject to these Terms and Conditions, shall be deemed an invitation to treat and shall not constitute an offer to sell Equipment.
2.2 Quotations shall be open for acceptance for the period specified as such in the Quotation and failing any time period being specified it shall be deemed to be thirty (30) days from the date of the Quotation.
2.3 Any prices contained within the Quotation are indicative and shall be deemed to be as such and not binding on us. To the extent that we afford you any discounts on the Price, these will be applicable where set out in the Quotation or Order Confirmation as detailed in Clause 2.5.
2.4 Where you decide to accept a Quotation you shall issue us with an Order Form (which shall either be a formal purchase order or document sent by you to an address specified by us) which includes express reference to the Quotation and including or providing (as the case may be) the following: (a) details of the type and quantity of Equipment required; (b) the date by which the Equipment is requested to be delivered by which you acknowledge is only a request and cannot be guaranteed; (c) details of the delivery location to which delivery is requested to be made; (d) the Specification (if any) that is necessary for production of the Equipment and to which you require Equipment to be manufactured in accordance with; (e) details of free issue materials (if any) which we would reasonably require to enable us to determine whether to accept that Order Form; (f) a VG-number or where not available boiler serial number for reference and identification; and (g) shall have attached a duly completed warranty claim form (in the form provided by us) in circumstances where a warranty claim is being made by you with the OEM.
2.5 Notwithstanding Clauses 2.1 to 2.4, you may also place an order for goods with us, where no prior Quotation has been provided by us, by submitting an Order Form to us including the details contained in Clauses 2.4 (a) to (g). In such cases any prices applicable shall be as confirmed by us verbally or in writing in prior to the Order Confirmation being issued to you, and where relevant any discounts that we have agreed verbally are applicable. We will also include in our Order Confirmation details where any deposit of the Price is payable by you and you shall make payment of the same promptly following acceptance by us of your Order Form.
2.6 Where we have received an Order Form from you either under Clause 2.4 or 2.5, we may either accept or reject that Order Form. In the event that we accept an Order Form we shall issue an Order Confirmation (in such terms as we deem fit including any departure from the Quotation resulting from our inspection of the Specification or free issue materials provided by you). Where we decline an Order Form we will endeavour to notify you in writing (which may include by email). The issue of an Order Confirmation by us shall constitute an “Order” for the purposes of these Terms and Conditions.
2.7 Once an Order Confirmation is issued, we agree to sell and you agree to buy the Equipment for the Price and on the payment terms set out in these Terms and Conditions. Where any deposit of the Price is payable by you, you shall make payment of the same promptly, following issue by us of the Order Confirmation.
2.8 We do not enter into contracts for the supply of goods and equipment on terms other than these Terms and Conditions and, unless otherwise expressly agreed to in writing by two of our directors, these Terms and Conditions are the only terms and conditions upon which we will provide the Equipment.
2.9 When we have received an Order Form, have issued an Order Confirmation and have received the relevant deposit (if any), we will place an order for the Equipment with the OEM. We will thereafter endeavour to confirm with you the estimated dispatch date from the OEM, the estimated delivery date and the total value of the Order and all such details shall form part of the Order.
2.10 All boiler orders will require deposit payments per boiler in the amounts stated in clause 2.10.1 to 2.10.2 (or such other amount as set out in the Order Form) to be paid at the point of Order. The receipt of the deposit funds in our account will constitute alongside our Order Confirmation a confirmed order. All deposit amounts are non-refundable.
2.10.1 ≤ 165kW: £5,000.00 excl. VAT
2.10.2 198kW to 500kW: £10,000.00 excl. VAT
2.10.3 650kW to 800kW: £15,000.00 excl. VAT
2.10.4 ≥ 1MW: £20,000.00 excl. VAT
2.11 All spare part orders of ≥ £5,000 list-price (exclusive of VAT) will require a 50% pre-payment before production begins. In the instance that an order is cancelled in accordance with these Terms and Conditions after the Order Confirmation has been issued, a £50 administration fee may apply, a restocking charge and any other charges incurred by us with the OEM or any other third party will be payable by you.
2.12 For all orders subject to clause 2.10 and 2.11, we will issue a corresponding invoice for the goods, and for the cost of delivery if known at date of the invoice unless the goods ordered are claimed under warranty and are accompanied by a warranty form.
2.13 All goods referred to in clause 2.10 or 2.11 must be paid for by you in full before delivery, otherwise an invoice will be rendered as soon as reasonably practicable following delivery and you shall be liable to make payment in full within [30] days of the date of our invoice unless otherwise specified in writing by us.
3 Delivery
3.1 We will endeavour to deliver the Equipment to the requested delivery location on the estimated Delivery Date or before: (a) during normal business hours on a Business Day; (b) or where set out in an Order Confirmation, at such times and dates as specified therein.
3.2 We will endeavour to complete all deliveries on or before the relevant Delivery Date(s) taking account of any deliveries which are to be completed by instalments or desired delivery dates. You acknowledge and agree however that we cannot guarantee that any particular delivery will be made by or on any particular Delivery Date.
3.3 Where Equipment is to be collected by you, we will notify you before the Delivery Date as to when the Equipment is ready for collection and will provide you with the VG-number for the Equipment as the collection reference number. You shall use the VG-number as a collection reference and shall collect on the relevant Delivery Date(s) or promptly thereafter in case of failed uplift. Any costs incurred by us with either the OEM or any third party pertaining to failed uplift or delivery will be payable by you. Where you engage any third party to collect Equipment on your behalf, you acknowledge and agree that such collection is at your cost, expense and risk and we shall (to the fullest extent permitted by applicable law) have no liability to you or any such third party for any loss, cost, damage, expenses, claims, actions or proceedings that may arise.
4 Acceptance and warranty
4.1 The Equipment supplied by us under the Contract shall: (a) comply with the Specification (if any); (b) be of satisfactory quality; and (c) comply with any legislation and regulations applicable to the Equipment.
4.2 Unless otherwise specified in writing, to the extent that we are permitted to do so, we will make available the benefit of and provide details (where we have them) of any warranty in respect of the Equipment as provided by the OEM. You acknowledge that as far as we are aware, the OEM warranty is limited as follows: (a) to a period of five (5) years from the date of dispatch, for boiler bodies; (b) to a period of two (2) years from date of dispatch for turning and electric parts which form part of the Equipment, on a parts only basis; and (c) for the purpose of these Terms and Conditions excludes (i) any consumables, (ii) fair wear and tear or damage to any Equipment resulting from improper use or installation by you, or resulting from influences outwith your control (including, without limitation, fire, water, lightning, over voltage or calcification) or your own negligence, or deliberate acts of omissions, (iii) any claim made by you where any non-OEM parts have been used by you with a Heizomat system (iv) any claims made for compensation for damages. In addition, any alteration to any Equipment parts made by you or any third party may void the CE marking or UKCA marking of Equipment.
4.3 All goods need to be checked by you immediately on receipt for damage caused in transit and any damage has to be marked on the delivery note when signing to acknowledge receipt. You will thereafter have a period of three (3) Business Days from the Delivery Date (or date of actual delivery, if earlier) to inspect and check the compliance of the Equipment with the terms of Clause 4.1 and notify us of any defects therein (the “Inspection Period”).
4.4 Any Equipment which does not conform to the terms of Clause 4.1 may be rejected by you by giving your written notice of the same to us within the Inspection Period and such Equipment shall be deemed “Rejected Equipment”.
4.5 If you have not notified us of your rejection of the Equipment within the Inspection Period then the Equipment shall be deemed to have been accepted by you.
4.6 In the event that you identify any Rejected Equipment and have notified us of the same then we may (at our option and discretion) either: (a) provide you with replacement Equipment for the Rejected Equipment; or (b) issue you with a refund or credit note in respect of that Rejected Equipment; or (c) obtain alternative Equipment for you from another seller and bear the costs related to that supply. The remedies under this Clause shall be your sole rights in relation to the Rejected Equipment.
4.7 You shall be responsible for returning any Rejected Equipment to us, however in circumstances where we exercise our own absolute discretion to collect Rejected Equipment from you, you will allow us (or our representative) to collect any Rejected Equipment from your premises (or you will ensure that we shall be entitled to and permitted access to collect them from any relevant customer’s premises) on such dates and times as we notify you.
4.8 Where any Equipment is the subject of a warranty claim made by you pursuant to Clause 4.2, you shall be responsible for ensuring that the Equipment which is the subject of such warranty claim is returned to us by you within 28 days of the date on which we receive notice of such warranty claim from you. You undertake to consult with us in advance to agree prior to returning such Equipment whether the return of that Equipment should be returned directly to the OEM (for larger items of Equipment) or to us (for smaller items of Equipment).
4.9 The Contract sets forth the full extent of our obligations and liabilities in respect of the Equipment and in particular we hereby exclude any conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, as being binding on us except as specifically stated in these Terms and Conditions. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within the Agreement, whether by statute, common law or otherwise, is expressly excluded.
5 Variation and/or cancellation of an Order
5.1 We shall have no obligation whatsoever to accept any variation or cancellation of an Order once that Order has been accepted by us. Orders for custom-built goods cannot be cancelled after production has begun and all charges, costs and expenses incurred by us up to the point of the attempted cancellation (including without limitation those set out in Clause 2) will be payable by you.
5.2 Notwithstanding Clause 5.1, we may at our discretion agree to accept (whether in whole or in part) any variation or cancellation of an Order as proposed by you in writing and in which cases we may apply charges as we see fit, acting reasonably to compensate us for any loss incurred by us for work done or materials acquired in relation to the Order to date of acceptance of such variation or cancellation (as the case may be).
6 Title and risk
6.1 Risk in the Equipment shall pass to you on delivery (whether that is delivery by us to the Delivery Location or collection by you or your nominated representative or carrier).
6.2 Ownership in any of the Equipment shall not pass to you until all amounts due and payable to us in respect of the Equipment has been paid to us in full.
6.3 Prior to receipt by us of all amounts due and payable to us in respect of the Equipment, and where we have expressly given our consent to the same to you, you shall be entitled to use the Equipment in the normal course of your business or to resell the Equipment (or part thereof) to third parties in the normal course of your business on the condition that the Equipment (or any articles manufactured from or incorporating the Equipment) and any amounts received from third parties for the Equipment or said articles are held by you as trustee for us pending payment of the Price in full to us. For the avoidance of doubt, until such times ownership of the Equipment passes to you in terms of Clause 6.2, you shall hold that Equipment on trust for us and not create any lien, encumbrance, charge or other security whatsoever over the Equipment. Any resale of Equipment permitted under and subject to this Clause 6.3 shall be effected by you as principal and not as agent for us.
7 Services
Where reasonably requested and subject to resource and capacity, we may provide you with advice, support and assistance in respect of the technical layout and design of boiler systems both at planning of installation stage and post installation as an after sales’ service. Such advice, support and assistance may be provided at our discretion and we offer no warranty in respect thereof. To the extent that we do so provide any such advice, support and assistance, we may do this in person, by email or by phone and we shall be entitled to charge you for such services at such rate as may be agreed with you prior to any such services being provided, which shall be payable by you upon receipt of an invoice issued by us and which we may require to be prepaid.
8 Price and payment
8.1 Unless otherwise specified in the Order Confirmation, the Price shall be due and payable by you in accordance with the terms of Clause 2.13. We shall advise you of the date on which the OEM has completed construction of the Equipment and of the proposed date of dispatch and we shall endeavour to issue you with an invoice for the Price at least two weeks prior to dispatch.
8.2 When we issue you with an invoice it shall be for the Price plus any VAT payable thereon and any applicable costs of delivery, licences, permits and insurance costs, overheads, packaging, packing, loading, carriage and all taxes and duties and any discounts applicable to the Order shall be included (an “Invoice”).
8.3 Where payment in advance is required in respect of Equipment supplied pursuant to Clause 2.10 or 2.11, you acknowledge that it is your responsibility to ensure that payment of the Invoice is made in full before the date of despatch and that failure to so make the payment in full shall permit us to store the Equipment at your cost at a daily rate set out in the Order Confirmation or otherwise confirmed in writing by us or the OEM to you and which shall apply until such times as payment is made.
8.4 In the event that you fail to make payment of any Invoice as specified in this Clause 8 we may, at our discretion, and without prejudice to any other rights which we may have: (a) suspend all future deliveries and supplies to you under the Contract, without any liability upon our part; (b) require payment in advance for any future deliveries under the Contract or any other contract with you; (c) charge interest calculated at a daily rate of three (3) per cent above the Bank of England base rate from time to time up to the maximum amount permitted by applicable law from the date when the amount first became overdue, until the date on which you receive payment of that amount from you and whether before or after judgement.
8.5 Unless other terms are agreed in writing by us, in the event that you engage with a third-party to provide finance for the Price or to meet any financial commitment which you have assumed in respect of the Order, you acknowledge and agree that it is your responsibility to ensure payment of the same on your behalf and that payments are made in accordance with these Terms and Conditions and on time. You shall, as between you and us, at all times remain fully responsible for all such financial payments and liabilities irrespective of your engagement of, or agreement with, such third-party finance providers.
9 Termination
9.1 The Contract may be terminated by us immediately by giving written notice to you, if you commit a material breach of the Contract. However, where a breach is capable of being remedied, the Contract may be terminated where you are in breach of and have failed to remedy that breach within seven (7) days of your receipt of a notice from us, describing the breach and requesting that it be remedied.
9.2 We will be entitled to terminate the Contract immediately (and have no further obligation to supply you with Equipment) in the event that you suffer an insolvency event: which may include a situation where: (a) you suspend or threaten to suspend payment of your debts or are unable to pay your debts as they fall due or, being a company, are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986; (b) 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 your company (other than for the sole purpose of a scheme for a solvent amalgamation of your company with one or more other companies or the solvent reconstruction of your company); (c) an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over your company; (d) a person becomes entitled to appoint a receiver over the assets of your company or a receiver is appointed over the assets of your company; or (e) you cease (or threaten to cease) for any reason to carry on all or a substantial part of your business or take or suffer any similar action which in our opinion means that you may be unable to pay your debts.
9.3 The expiry or termination of the Contract (for any reason) will not affect: (a) any rights or obligations of either Party that have accrued prior to such expiry or termination; or (b) any provision of the Contract which is expressly or by implication intended to come into or to continue in force on or after such expiry or termination.
10 Intellectual Property
10.1 Nothing in the Contract is intended to grant to you any rights in or licence to any intellectual property rights (to the extent that there are any) in or applying to the Equipment or any other property provided by us, other than a right to use same if and to the extent necessary for using the Equipment and in accordance with any restrictions or instructions issued to you by us from time to time.
10.2 Where you provide us with any Specifications, you hereby grant us a non-exclusive, worldwide, royalty free, sub-licensable licence to use any intellectual property rights in and to the Specification (if any) for the purposes of performing our obligations under the Contract and providing you with the Equipment and you hereby warrant that you have all necessary rights, permissions, licences, approvals and consents to enable you to so grant the foregoing licence to us. You shall indemnify and hold us harmless against all liabilities, costs, expenses, damages and losses suffered or incurred by us arising out of or in connection with any claim brought against us arising from your breach of this Clause.
10.3 You agree not to copy the Equipment or to manufacture your own versions of the Equipment nor shall you authorise any third party to do so.
10.4 You may only sell any Heizomat OEM products supplied to you under these Terms and Conditions as original Heizomat products, and not in association with any other trade mark, brand or trade name.
10.5 You are prohibited from distributing technical data, technical know-how, price lists, price structures, or other information subject to non-disclosure either through yourself or through third parties.
10.6 You agree to keep confidential all our operational and business secrets learned while working with us including without limitation all confidential information which is not in the public domain and which relates to prices, technical data, sale, assembly, servicing training and technical knowledge corresponding to our products and internal processes, as well as how they are manufactured and function.
10.7 If you violate any of the provisions of this clause 10, you shall fully indemnify us in respect of any and all losses, damages and fines incurred by us whether to the OEM or any other third party as a result of your non-compliance.
11 Liability
11.1 Nothing in the Contract shall exclude our liability for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation, or any other liability which may not be excluded by applicable law.
11.2 Subject to Clause 11.1 and save as otherwise provided in these Terms and Conditions, we shall not be liable to you for: (a) loss of profits; (b) loss of business; (c) depletion of goodwill or similar losses; (d) loss of anticipated savings; (e) loss of use; (f) loss or corruption of data or information; or (g) any form of indirect, special or consequential loss.
11.3 Subject to Clauses 11.1 and 11.2, our entire liability under or in connection the Contract shall be limited to an amount equivalent to the Price.
11.4 Subject to Clause 11.1, we shall have no liability in respect of any defect in the Equipment arising from any Specification supplied by you.
12 Force Majeure
12.1 We shall not be liable for any delay in performing our obligations under the Contract where such delay is directly caused by circumstances beyond our reasonable control. We will endeavour to notify you on becoming aware that the force majeure event will affect our ability to comply with our obligations under the Contract and we will endeavour to re-commence performance of our obligations hereunder where we are no longer affected by the force majeure event. If we suffer a force majeure event and are delayed from performing our obligations under the Contract for a continuous period of three (3) months or more, you will have the right to terminate the Contract immediately by notice in writing.
13 Notices
13.1 Any communication to be made under or in connection with the Contract shall be made (in English) in writing and, unless otherwise stated, may be made by email or letter.
13.2 Any notice to be given to us shall be sent to HeizomatGB Limited whose details are contained at the beginning of these Terms and Conditions or such other person or address as we may notify to you from time to time.
13.3 Any notice to be given to you will be sent to the address and/or email address stated on the Order Form (if any) or the last known address and email address which we have on record for you, subject to you having in notified us of any update or changes to such information.
13.4 Any notice or other communication given to a party shall be deemed to have been received: (a) if sent by facsimile, with a confirmed receipt of transmission from the receiving machine, on the day on which transmitted; (b) in the case of a written notice given by hand, on the day of actual delivery; and (c) if posted, on the second Business Day following the day on which it was despatched by first class mail postage prepared following the date of despatch by prepaid first class postage, provided that a notice given in accordance with the above but received on a day which is not a Business Day or after normal business hours in the place of receipt shall only be deemed to have been received on the next Business Day.
14 Governing law and Jurisdiction
14.1 Where the delivery location for the Equipment is in Scotland, 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 and construed in all respects in accordance with Scots Law and Parties hereby agree that the Scottish Courts will have the exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
14.2 Where the delivery location for the Equipment is in England or Wales, 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 and construed in all respects in accordance with the law of England and Wales and Parties hereby agree that the English Courts will have the exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).