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Terms and Conditions

The Customer’s attention is particularly drawn to the provisions of clause 11.

  1. INTERPRETATION

1.1 The following definitions and rules of interpretation apply in this agreement. Business Day
a day other than a Saturday, Sunday or public holiday in England.

Commencement Date
has the meaning given in clause 2.2.

Conditions
these terms and conditions as amended from time to time in accordance with clause 15.8.

Contract
the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

Customer
the person or firm who purchases the Goods and/or Services from the Supplier.

Data Controller
has the meaning set out in section 1(1) of the Data Protection Act 1998.

Force Majeure Event
has the meaning given to it in clause 14.

Goods
the goods (or any part of them) set out in the Order.

Goods Specification
any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.

Order
the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s written acceptance of the Supplier’s quotation.

Personal Data
has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing services under the Contract.

Processing and process
have the meaning set out in section 1(1) of the Data Protection Act 1998.

Services
the services supplied by the Supplier to the Customer as set out in the Service Specification.

Service Specification
the description or specification for the Services provided in writing by the Supplier to the Customer.

Supplier
ToolMonkey Limited (trading as Window Monkey) registered in England and Wales with company number 02884925.

Supplier Materials has the meaning given in clause 8.1.8.

1.2 Interpretation:

1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.

1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.2.5 A reference to writing or written includes faxes and emails.

  1. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when the Customer issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.

2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

  1. GOODS

3.1 The Goods are described in the Goods Specification.

3.2 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.

3.3 The Buyer reserves the right for its employees or representatives to visit the Seller’s premises to verify at source that the Goods conform to specification. The Seller shall provide the Buyer with all facilities reasonably required for inspection and testing. Such inspection and testing shall not absolve the Seller from liability or responsibility under these Terms and Conditions nor imply acceptance of any of the Goods.

3.4 You will receive a sign off sheet to check & sign before work commences on a job. Please make sure that the details of your order are correct before signing & instructing work to go ahead. This will be the final sign off once agreed and will be manufactured to these sizes, colours, opening direction etc. Any discussion or information provided prior to the sign off is superseded by this document. Please check through carefully, upon confirmation you will also agree to waive any cooling off period, this is due to the custom nature of the work.

3.4(a) Our Experience in the industry has identified several areas which are commonly overlooked (if applicable), such as: Handing viewed from the outside & styles/layouts; Open in/out; Compliance to any building regulations; Colours selected included variance between suppliers/materials; Profile/Mouldings; Glass Types/Obscurity/Ratings; Bar Layouts; Details from past conversations (especially with multiple staff members); Values or selections that vary from the most common settings.

  1. DELIVERY OF GOODS

4.1 Where, pursuant to the Order, the Supplier is to provide Goods only, the Customer shall collect the Goods from the Supplier’s premises at Unit 9 Clipstone Brook, Cherrycourt way, Leighton Buzzard, Bedfordshire, LU7 4GP (Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready.

4.2 Where requested by the Customer, the Supplier may deliver the Goods to an alternative location, provided that such delivery is subject to the Customer paying such delivery charge as is notified to the Customer by the Supplier.

4.3 Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location or (where relevant) the unloading of the Goods at the nearest possible point, i.e. outside kerb, at the alternative delivery location (pursuant to clause 4.2).

4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence.

4.4.1 The Supplier is unable to accept any liability for delays in delivery or manufacture that are outside of their control.

(a) The Customer must not undertake any work until all necessary parts have been received and inspected.

4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

4.6 If the Customer fails to take or accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:

4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and

4.6.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7 If ten Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

  1. QUALITY OF GOODS

5.1 Notwithstanding any relevant manufacturer guarantee provided with the Goods the Supplier warrants that on delivery, and for a period of 10 years from the date of delivery (warranty period), the Goods shall:

5.1.1 conform in all material respects with the Goods Specification;

5.1.2 be free from material defects in design, material and workmanship; and

5.1.3 be fit for any purpose held out by the Supplier.

5.2 Subject to clause

5.3, the Supplier shall, at its option, replace the defective Goods, if:

5.2.1 the Customer gives notice in writing during the warranty period (as relevant) that some or all of the Goods do not comply with the warranty set out in clause 5.1 as soon as reasonably practicable and, in any event, within 5 Business Days of discovery;

5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and

5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost.

5.3 The Supplier shall not be liable for the Goods – failure to comply with the warranty in clause 5.1 if:

5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;

5.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

5.3.3 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer; 5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;

5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or

5.3.6 the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods – failure to comply with the warranty set out in clause 5.1.

5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

5.6 Should any faults or defects be discovered, the correct process must be followed by the Customer as laid out in 5.2.1;

5.6.1 The Supplier, if possible, will be required to provide replacement parts to resolve any faults or defects;

5.6.2 The Supplier cannot be held liable for any fitting costs incurred by the Customer to replace any faulty or defective parts, unless otherwise agreed in Writing between the Customer and the Seller.

  1. TITLE AND RISK

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods in respect of which payment has become due.

  1. CHARGES AND PAYMENT

7.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of the order.

7.2 The charges for Services shall be calculated on a time and materials basis:

7.2.1 the charges shall be calculated in accordance with the Supplier’s standard fee rates as set out in the Order; and

7.2.2 the Supplier shall be entitled to charge an overtime rate of 25% of the daily fee rate (£200 + VAT per individual) on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours from 8.00 am to 5.00 pm on Business Days.

7.3 The Supplier reserves the right to:

7.3.1 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:

(a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or

(c) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.

7.4 In respect of:

7.4.1 the provision of Goods for delivery to site, the Customer shall pay for the Goods at the time of the Order.

7.4.2 the provision of Goods for delivery to the Supplier’s Premises (details of which in Clause 4.1), the Customer shall pay a deposit of 50% of the total value of Goods, then the remainder on collection.

(a) Should the Goods not be collected within 14 days of collection the customer will be required to pay the remainder.

7.5 The Customer shall make all relevant payments in full and in cleared funds to a bank account nominated in writing by the Supplier.

7.5.1 All invoices will be issued after the date with which the goods are delivered and no earlier.

7.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

7.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 12 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time.

7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7.9 The Supplier invoices accounts upon delivery of goods, whether to site or to the Supplier’s Premises (details of which in Clause 4.1), and no later.

  1. DATA PROTECTION AND DATA PROCESSING

9.1 The Customer and the Supplier acknowledge that for the purposes of the Data Protection Act 1998, the Customer is the Data Controller and the Supplier is the data processor in respect of any Personal Data.

9.2 The Supplier shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Customer.

9.3 The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.

9.4 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

9.5 The Supplier warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:

9.5.1 take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to: (a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and (b) the nature of the data to be protected; and

9.5.2 take reasonable steps to ensure compliance with those measures.

9.6 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 9.

  1. CONFIDENTIALITY

10.1 Each party undertakes that it shall not at any time, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.

10.2 Each party may disclose the other party’s confidential information:

10.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and

10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

  1. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

11.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

11.1.2 fraud or fraudulent misrepresentation;

11.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);

11.1.4 breach of the terms implied by section 11 of the Sale of Goods Act 1979 (title and quiet possession); or 11.1.5 defective products under the Consumer Protection Act 1987.

11.2 Subject to clause 11.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

11.2.1 loss of profits;

11.2.2 loss of sales or business;

11.2.3 loss of agreements or contracts;

11.2.4 loss of anticipated savings;

11.2.5 loss of use or corruption of software, data or information;

11.2.6 loss of or damage to goodwill; and

11.2.7 any indirect or consequential loss.

11.3 Subject to clause

11.1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to 50% of the total charges paid under the Contract.

11.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract. 11.5 This clause 11 shall survive termination of the Contract.

  1. TERMINATION

12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

12.1.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 10 days after receipt of notice in writing to do so;

12.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

12.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

12.1.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

12.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

12.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.

  1. CONSEQUENCES OF TERMINATION

13.1 On termination of the Contract the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid sums and interest (if any) in respect of the Services and/or Goods supplied

13.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

13.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

  1. FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

  1. GENERAL

15.1 Assignment and other dealings

15.1.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

15.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

15.2 Notices.

15.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service to the Supplier at its registered office (if a company) or to the Customer at its principal address (specified in the Order); or sent by fax to its main fax number or sent by email to the address specified in the Order.

15.2.2 Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.

15.2.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

15.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

15.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

15.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

15.6 Entire agreement.

15.6.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

15.6.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.

15.6.3 Nothing in this clause shall limit or exclude any liability for fraud.

15.7 Third parties rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

15.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

15.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

15.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.