POLYCOTE UK STANDARD TERMS AND CONDITIONS OF SALES
The definitions and rules of interpretation in this condition apply in these conditions:
Buyer: The person, firm or company who purchases the Goods from the Seller.
Seller: Polycote UK, Centre Point, Wolseley Road, Kempston, Bedford, MK42 7EF
Contract: Any contract between the Seller and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
Delivery: The place of delivery of Goods is to take place under Condition 7.
Goods: Any goods or services agreed in the Contract to be supplied to the Buyer by the Seller (including any part or parts of them).
Legalities: A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
Words: Singular words include the plural and plural words include the singular.
Gender: A reference to one gender includes a reference to the other gender.
Headings: Condition headings do not affect the interpretation of these conditions
2.1 Subject to any variation under Condition 2.3 the Contract shall be on these conditions to the exclusion of all other Terms and Conditions (including any Terms or Conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No Terms or Conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Seller's sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a Senior Partner of the Seller. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller's liability for fraudulent misrepresentation.
2.4 From the date as marked at the end of these Terms and Conditions, these Conditions supersede and replace all previous Conditions of the Seller, excluding the Sellers Standard Terms & Conditions of Website Sales.
3. OFFERS FOR SALE
3.1 Each order or acceptance of a quotation for Goods or Services by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
3.2 No order placed by the Buyer shall be deemed to be accepted by the Seller until a written acknowledgement of the order is issued by the Seller or (if earlier) the Seller delivers the Goods to the Buyer.
3.3 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
3.4 Unless stated in writing in the quotation, any quotation is given on the basis that no Contract shall come into existence until the Seller despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Seller has not previously withdrawn it.
3.5 Statements in the Seller's price lists, catalogues and advertisements shall not constitute an offer to sell.
3.6 The quantity and description of the Goods shall be as set out in the Seller's quotation or acknowledgement of order.
3.7 All samples, drawings, descriptive matter, specifications, coverage and advertising issued by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3.8 Products may vary slightly from those depicted or described, and specification or prices may change at any time without prior notice.
3.9 All pictures are for illustrative purposes only and should only be taken as being representative of the location, product or service described and may not show the actual product or service being described or sold.
3.10 No picture or colour chart should be deemed accurate in terms of colour shade due to technological differences/limitations.
4.1 Unless otherwise agreed by the Seller in writing, the price for the Goods shall be the price set out in the Seller's quotation.
4.2 The price for the Goods or Services shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
4.3 The Buyer shall not be entitled to make any deduction from the price of the Goods in respect of any set-off or counterclaim (including areas of measurement) or return of excess materials, unless both the validity and the amount thereof have been expressly admitted by the Seller in writing.
4.4 The Seller reserves the right to supply goods to their customers, suppliers and staff, at prices they themselves (the Seller) may deem appropriate in return for their services rendered and targets achieved in any trading year.
4.5 The Seller also reserves the right at any time to make combined promotional offers of both products and goods at special prices at their own absolute discretion.
5.1 Subject to Condition 5.5, and unless otherwise agreed in writing or unless the Buyer has an account with the Seller, the price of the Goods and any additional charges will be paid in full, before delivery.
5.2 Where the Buyer has an account with the Seller, the price of the Goods and any additional charges will be paid in full in accordance with the payment terms as specified in the quotation and/or as detailed on the invoice. Should a specific date not be stated, any such amount will be paid in full within 30 days following the date of invoice.
5.3 No payment shall be deemed to have been received until the Seller has received cleared funds.
5.4 All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.
5.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement, alteration of measurement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
5.6 If for any reason the Buyer fails to pay the Seller any sum due pursuant to the contract or invoice in full and in accordance with the payment terms as specified on the contract or invoice for any reason whatsoever:
5.6(a) the Buyer shall be liable to pay interest to the Seller on such sum from the due date for payment at 5% per month or part thereof, accruing on a monthly basis until payment is made, whether before or after any judgement. The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.6(b) the Seller shall be entitled to refuse to deliver any Goods or Services ordered by the Buyer whether under the same or any other contract with the Seller, without incurring any liability whatsoever to the Buyer, until payment in full of all sums due from the Buyer to the Seller has been received by the Seller.
5.6(c) the Seller shall be entitled to recover all costs and expenses incurred by the Seller in the collection or recovery of sums due and the Buyer hereby agrees to indemnify the Seller in respect of all such costs and expenses.
5.6(d) any product or service guarantee or warranty offered, implied or given by the seller shall become null and void.
5.6(e) the Seller shall be entitled to close any account, at any time, at its sole discretion. In that event, the balance of the account shall be payable forthwith.
6. PROPERTY AND RISK
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to the Seller from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall hold; the Goods on a fiduciary basis for the Seller and store the Goods (at no cost to the Seller) separately from other goods of the Buyer or any 3rd party in a way that they remain readily identifiable as the Seller's property without destroying, defacing or obscuring any identity mark or packaging relating to the Goods; maintain the Goods in suitable condition; are stored in accordance with the Storage instructions expressly shown on the relevant product Technical Data Sheet; and keep them insured on the Seller's behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions: any sale shall be effected in the ordinary course of the Buyer's business at full market value (and the Buyer shall hold such part of the proceeds of sale as representing the amount owed by the Buyer to the Seller on behalf of the Seller and the Buyer shall account to the Seller accordingly) and any such sale shall be a sale of the Seller's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer's right to possession of the Goods shall terminate immediately if the Buyer 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 Buyer or notice of intention to appoint an administrator is given by the Buyer 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 Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer or the Buyer 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 Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade or the Buyer encumbers or in any way charges any of the Goods.
6.6 The Seller shall be entitled to recover payment for the Goods not withstanding that ownership of any of the Goods has not passed from the Seller.
6.7 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored or used in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
6.8 Where the Seller is unable to determine whether any Goods are the goods of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold or used all goods of the kind sold by the Seller or other goods to an equal value to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, the Seller's (but not the Buyer's) rights contained in this condition 6 shall remain in effect.
6.10 The Buyer shall have no power to create any charge, lien or other encumbrance whatsoever on the Goods or any part thereof so long as the property of and legal ownership of the same remains with the Seller
7.1 Any dates specified by the Seller for delivery of Goods or Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
7.2 Subject to the other provisions of these conditions the Seller shall not be liable for any direct, indirect or consequential loss (all three of being 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 or Service (even if caused by the Seller's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
7.3 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations: Risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller's negligence); The Goods shall be deemed to have been delivered; and The Seller may store the Goods until delivery and the Buyer shall be liable for all related costs and expenses arising from such delay (including, without limitation, storage and insurance), and if the delay continues in excess of 3 months the Seller shall be entitled to continue to store and/or cancel the Contract and resell the Goods.
7.4 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods.
7.5 If the Seller delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by the Seller, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay pro rata for such goods.
7.6 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
7.7 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
7.8 Non-delivery or damaged goods:
7.8(a) The quantity of any consignment of Goods as recorded by the Seller on despatch from the Seller's place of business shall be conclusive evidence of the quantity received by the Buyer in delivery unless the Buyer can provide conclusive evidence proving the contrary, by marking the delivering carrier’s ticket with “SHORTAGE” and the quantity missing.
7.8(b) The quality of any consignment of Goods as recorded by the Seller on despatch from the Seller's place of business shall be conclusive evidence of the quality received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary, by marking the delivering carriers ticket with “DAMAGED” and the quality issue.
7.8(c) The Seller shall not be liable for any non-delivery or damaged of Goods (even if caused by the Seller's negligence) unless the Buyer gives written notice to the Seller (otherwise than on a consignment or delivery note or carriers ticket) of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
7.8(d) The Seller shall not be liable for any late delivery, non-delivery or damage of Goods wherein the Seller has contracted the use of a subcontract delivery company to deliver its goods or for any other reason(s) whereby the reason for such issues are outside the control of the Seller.
7.8(e) Any liability of the Seller for non-delivery or damage of Goods shall be limited to replacing the Goods within a reasonable period of time or issuing a credit note at the pro rata Contract rate for such Goods.
8. RETURN OF GOODS
8.1 The Seller does not trade on a ‘sale or return’ basis. All sales are considered as final and the Sellers invoice remains as proof of purchase.
8.2 The return of Goods purchased will therefore only be considered by the Seller subject to the following conditions:
8.2(a) a copy of the relevant Sellers invoice and despatch note is presented as proof of purchase.
8.2(b) a returns authorisation note is obtained from the Seller prior to the return of Goods.
8.3 The Seller reserves the right to levy a 35% re-stocking charge on goods supplied in accordance with the Buyer’s order, subject to the goods not being a powdered product as per Condition 8.11 below or a product classed either as a non-standard item or special colour as per Condition 8.12 below.
8.4 All Goods must be returned in good condition, unused, not damaged and in the original unopened packaging.
8.5 The Seller retains the right to refuse goods should they on receipt be deemed unsuitable for resale and the return of these goods.
8.6 It remains the responsibility of the Buyer to return the goods to the Seller, at the Buyers expense.
8.7 Should the Buyer request the Seller to arrange the collection and return of goods, this will only be accepted at the discretion of the Seller and all expenses incurred will be the responsibility of the Buyer.
8.8 Goods which are specially ordered non-stock items, or made to order, or personalised, items correctly supplied as per the Buyer’s order will not be acceptable for return under any circumstances.
8.9 Should the Seller arrange collection of goods for return and on arrival the Goods be unavailable, a surcharge will become payable.
8.10 Goods will not be accepted for return after 14 days from the date of purchase stated on the Sellers invoice due to the nature and shelf life of the products.
8.11 Powdered products cannot be returned under any circumstances due to the nature of the products.
8.12 Any Non-Standard Item or Special Colour is a product that has been supplied to meet a customer’s specific requirements and will be marked clearly on the invoice as a Non-Standard Item or Special Colour. Such products cannot be returned to the Seller under any circumstances.
9.1 The Seller warrants that on delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979, be reasonably fit for their purpose; and be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Seller in writing and the Seller has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Seller.
9.2 The Seller shall not be liable for a breach of the warranty in condition 9.1 unless the Buyer gives written notice of any defect to the Seller within 5 days of receipt of Goods and the Seller is given a reasonable opportunity after receiving the notice of examining such Goods. The Buyer is responsible to return such Goods to the Seller's (if asked to do so by the Seller) at the Buyer's cost for the examination to take place there.
9.3 Upon signing the Sellers Completion of Works Approval Form, the Buyer will be deemed to have unequivocally accepted all products and services.
9.4 The Seller shall not be liable for a breach of the warranty in condition 9.2 if the Buyer makes any further use of such Goods after giving such notice or the defect arises because the Buyer failed to follow the Seller'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 or the Buyer alters or repairs such Goods without written consent of the Seller.
9.5 Subject to the aforementioned Conditions in Condition 9 above, the Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Seller so requests, the Buyer shall, at the Seller's expense, return the Goods or part of such Goods which is defective, to the Seller.
9.6 If the Seller complies with Condition 9.5 it shall have no further liability for a breach of (the warranty OR any of the warranties) as mentioned in Conditions 10.1 and 10.2 in respect of such Goods.
9.7 In any event, (other than what is apparent on delivery) the Seller shall be under no obligation to replace any Goods or refund the Contract price or any other obligation whatsoever in respect thereof, unless advised of the defect within 14 days of delivery. All other warranties or conditions as to quality or description (statutory or otherwise) are excluded except insofar as such exclusion is prevented by law.
9.8 The Seller, its servants or agents shall be under no liability whatsoever to the Buyer, whether in contract, tort or otherwise howsoever, (including any liability for consequential injury, loss or damage of any nature whatsoever) for or arising out of or in connection with any defect in, failure of, or unsuitability for any purpose, failure to conform with description or sample of the Goods of any part thereof whether the same be due to any act, omission or negligence on the part of the Seller, its servants or agents, or any act, omission, negligence or wilful default on the part of its suppliers or the manufacturers of the Goods, or any other cause whatsoever, and all conditions, warranties and other terms whether expressed or implied, statutory or otherwise, inconsistent with the provisions of this term are hereby excluded.
9.9 In any case and notwithstanding any of the conditions raised in section 9 hereof, the Seller will not be held liable for any guarantee or warrantee whether for product or service unless such a guarantee or warrantee be expressly confirmed in writing from one of the Sellers Partners, prior to the delivery of goods and/or commencement of service.
9.10 In cases where the Seller exercises its option to replace defective Goods, the replacement Goods shall be supplied subject to these same Terms & Conditions of Sale.
10. LIMITATION OF LIABILITY
10.1 Any advice or recommendation given by the Seller as to the storage, installation, application or use of the goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
10.2 If, notwithstanding the other provisions hereof, the Seller shall be held to be under any liability (whether in contract, tort or otherwise howsoever and whether or not due to any negligence on the part of the Seller its servants or agents), without prejudice to the other provisions hereof such liability shall not exceed the sum of £25,000 in respect of any claim, save, where an absolute legal prohibition against exclusion or restriction of liability applies.
11. FORCE MAJEURE
11.1 The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, trade disputes, breakdown, embargo, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. It shall be under no liability whatsoever whether in contract, tort or otherwise howsoever, to the Buyer and shall be entitled at its option, to notify in writing to the Buyer, either to cancel the contract or, without any liability, to extend the time for such performance by a period at least equivalent to that during which performance has been prevented, hindered or delayed, as aforesaid.
12.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
12.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
12.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
12.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
12.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.6 This 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 by and construed in accordance with English law, whereby the parties will submit to the exclusive jurisdiction of the English court, which shall in turn be commenced and conducted in the Bedford County Court.
12.7 The Buyer shall indemnify the Seller against all costs, claims, demands, expenses and liabilities whatsoever made by third parties, caused in whole or in part or arising out of or in connection with any act or omission of the Buyer in connection with the Goods.
12.8 Save where an absolute legal prohibition against exclusion and restriction of liability applies, the Seller, its servants and agents shall be under no liability whatsoever to the Buyer, whether in contract, tort or otherwise howsoever (including any liability for consequential injury, loss or damage of any nature whatsoever) for or arising out of any advice, information, opinion or statement given or made by the Seller, its servants or agents, and other terms whether expressed or implied, statutory or otherwise, inconsistent with the provision of this sub-paragraph are hereby excluded.
12.9 It is the responsibility of the Buyer to determine whether the Goods ordered are fit for any purpose for which they may be required, and all conditions, warranties and other terms whether expressed or implied, statutory or otherwise, inconsistent with the provisions of this sub-paragraph are hereby excluded, except insofar as such exclusion is prevented by law.
12.10 The Seller has available information and literature concerning the storage, safety and disposal of Goods supplied and their safe use. If the Buyer is not already in possession of literature such as, but not limited to, the Product Data Sheet and the Product Safety Data Sheet, the Buyer should immediately contact the Seller. In any case, the Buyer should be in possession with such literature prior to the opening / use of any product.
12.11 It is the responsibility of the Buyer to pass on to its customers any relevant instructions, literature and warnings given by the Seller.
12.12 All such information and warnings are given subject to Condition 12.8 and 12.9 hereof.
13. PATENTS, LICENSING, TRADE MARKS ETC
13.1 The Buyer shall indemnify the Seller against all loss, damages, costs and expenses suffered by the Seller or to which the Seller may become liable as a result of any work done in accordance with the Buyer's specification which involves infringement or alleged infringement of a patent, registered design, trade mark, copyright or any other right in property.
13.2 If the Buyer uses or sells the Goods, the Seller shall not be responsible for such infringement or alleged infringement of a patent, registered design, trade mark, copyright or any other right in property and the Buyer agrees to indemnify the Seller from and against all liability arising therefrom.
14.1 All communications between from the Buyer about the Contract shall be in writing, marked for the attention of the Partners of Polycote UK and delivered by hand or sent by pre-paid first class post or sent by fax to Centre Point, Wolseley Road, Bedford, Bedfordshire, MK42 7EF, UK or such changed address as shall be notified to the Buyer by the Seller.
14.2 All telephone calls to and from the Sellers office are recorded and the Seller reserves the right to use/send such a recording to any person as factual evidence of a verbal agreement or statement made by either the Seller or the Buyer.
15. WEBSITE & DIGITAL MEDIA
15.1 In addition to all such information or warnings mentioned heretofore, the following terms and conditions will also apply:
15.2 Unless otherwise agreed in writing between Polycote UK and the Buyer all goods supplied by Polycote UK are on an ex works basis.
15.3 Once an official order has been received via our online order system, a contract is deemed to have been entered into between Polycote UK and the Buyer. Cancellation of the contract will be at the discretion of Polycote UK.
15.4 In addition to Condition 4 hereof, unless otherwise agreed by the Seller in writing, the price for the Goods, purchased on our Website, shall be the price set out in our Website and may not be influenced or altered by any other pricing.
15.5 In the absence of a price set out in our Website, or if the price set out is £0: the price payable by the Buyer to the Seller must be set out in a quotation from the Seller, prior to any Contract being made. If an order is placed or a Contract is made on our Website prior to a quotation being given by the Seller and subsequently accepted by the Buyer, the Contract shall be null and void.
16. SITE INSPECTIONS / VISUAL INSPECTIONS
16.1 All site / photographic inspections by Polycote UK are classed as a Visual Inspection.
16.2 Anything other than a Visual Inspection must be discussed and agreed in writing prior to our visit. A full written quotation will be given upon request and will be dependent upon and subject to costs and/or conditions imposed by the sub-contract surveyor/company used to complete such an inspection.
16.3 Should any samples be taken from the substrate either by way of an existing covering or from the substrate itself, any reinstatement/repairs required remains wholly the responsibility of the Buyer.
16.4 Further to a Visual Inspection, we wish to make it clear that we only recommend the preparation processes and coatings to be used. The Buyer remains responsible for the suitability of any such suggestion from the Seller.
16.5 When a visual inspection is conducted, the Seller will not be responsible for any repairs or materials (extra to those already agreed prior to commencement of the contract) that may become necessary after the preparation process, particularly when requiring mechanical equipment such as grinders or shotblasters. Should the preparation process reveal the need of a change of specification and or the need of material extra to any amount agreed prior to the commencement of the contract, this will be wholly the responsibility of the Buyer.
16.6 Should any such sub-standard / unstable material become apparent during any preparation process such as adhesives, previous repairs or indeed the screed itself, any further/extra work/investment amounts needed will be wholly the responsibility of the Buyer.
16.7 The Seller is not responsible for issues caused by rising damp and/or any such contamination or for the removal of contaminated waste, whether known or unknown, unless by written agreement prior to commencement of the contract.
17. CONDITIONS OF SUBSTRATE
17.1 Condition / Stability of Substrate:
Should the Seller offer or be requested by the Buyer to make an inspection of the area of concern, the Buyer will remain wholly responsible for the conditions of the substrate and the suitability of the product or service. The Seller will not be held responsible for the condition of the substrate whether seen or unseen unless such a responsibility be confirmed in writing by one of the Sellers Partners before the delivery of product or commencement of service.
17.2 Adhesion Strengths:
Should the Seller be expected to advise on the adhesion strength of their product to the substrate, it is the Buyers responsibility to complete the necessary core tests to establish the strength and porosity of the substrate itself. Furthermore, should they need a product to meet certain criteria, it is the Buyers responsibility to put this in writing prior to the ordering of the product.
17.3 Contamination / Damp:
The Buyer is wholly responsible to make known to the Seller anything that may influence the successful outcome of any application. It is the Buyers responsibility to establish the stability of the substrate and to make known to the Seller (in writing) the presence of contamination both on and/or within the substrate. Furthermore, it is the Buyers responsibility to establish the presence and worthiness of a Damp Proof Membrane and to establish the highest level of the water table in or around the site.
18. PREPARATION AND APPLICATION OF SUBSTRATE
18.1 The Buyer is wholly responsible to ensure there is sufficient power on site in order to operate any machinery as quoted by the Seller and that any such power supplies are tested and meet all lawful and electrical safety regulations.
18.2 It is the Buyers responsibility to ensure the areas are free of all moveable items and that any such item left within the site area will be worked around.
18.3 The Buyer is wholly responsible to ensure that all bolts and protrusions have either been removed or are clearly marked out. Any damage to either Bolts, Protrusions and or machinery, belonging to the Seller or the Buyer will be wholly the responsibility of the Buyer.
18.4 Unless core tests have been carried out and a full report presented in writing to the Seller prior to the quotation of the supply of any goods, machinery or service, whether requested or not by the Seller, the Seller shall assume no liability for any consequential loss or damage of any nature whatsoever.
18.5 It remains the responsibility of the Buyer to determine whether the preparation methods ordered are fit for any purpose for which they may be required, and all conditions, warranties and other terms whether expressed or implied, statutory or otherwise, inconsistent with the provisions of this sub-paragraph are hereby excluded, except insofar as such exclusion is prevented by law.
18.6 In addition to the Terms and Conditions as expressed within this document, the Buyer is also responsible to obtain and acquaint themselves with a further document ‘Polycote UK Preparation & Application Terms & Conditions’.
18.7 Save where an absolute legal prohibition against exclusion and restriction of liability applies, the Seller, its servants and agents shall be under no liability whatsoever to the Buyer, whether in contract, tort or otherwise howsoever (including any liability for consequential loss or damage of any nature whatsoever) for or arising out of any advice, information, opinion or statement given or made by the Seller, its servants or agents, and other terms whether expressed or implied, statutory or otherwise, inconsistent with the provision of this sub-paragraph are hereby excluded.
19. SURFACE FINISH
19.1(a) The Seller does not guarantee any specific shade of colour unless confirmed in writing by the Buyer, prior to the Sellers acceptance and/or fulfilment of an order. It is accepted by the Buyer that the Seller cannot supply the same shade of colour between differing batches of material.
19.1(b) Any colour chart, dry sample or picture, given, depicted or displayed by the Seller should not be deemed as an exact shade of material or finish to be supplied by the Seller. The Buyer accepts that the colour/finish is only indicative and that the colour/finish supplied will be different when applying to a substrate or profile different to the sample base material.
19.1(c) The Seller reserves the right to alter manufacturing processes and or the raw materials included within a formulation at any time and cannot therefore guarantee the continuation of an exact product or shade of colour.
19.2 Bubbling and/or pinholing. Should any such reactions occur either during or after the application process, the investigation and remedy of such activity, including the need of extra materials or labour will wholly remain the responsibility of the Buyer.
19.3 Cementitious screeds and repair products are susceptible to damage from chemical attack (including water) and should therefore be sealed prior to the use of any chemicals or liquid. The only exception is Easiscreed External which is resistant to ‘normal’ external weathering and rain. Whilst the Seller will be happy to give general advice should they receive such a request from the Buyer, the decision to seal and with what type of sealer remains the responsibility of the buyer.
20. PROTECTION OF STOCK, EQUIPMENT, PREMISES AND PERSONNEL
20.1 The Buyer is wholly responsible to cover/seal any item left within the working environment such as but not limited to, machinery, equipment, food and stock. Reason; to protect from any dust, fumes or damaged caused during the use of any product or equipment as used by the Seller.
20.2 It is the Buyers responsibility to cover all fixed areas such as, but not limited to walls, ceilings, floors, windows, doors, sufficient to protect such from the use of and product or equipment as supplied by the Seller.
20.3 Should the Buyer request the Seller to arrange the removal of any item whatsoever, the re-installation of any item and/or the, this will only be accepted at the discretion of the Seller and will have been agreed and accepted in writing prior to the commencement of the contract. All expenses incurred will be the responsibility of the Buyer. Furthermore, the Seller will accept no responsibility for any damage caused whatsoever to either the item or its surroundings in either the removal, the storage or in the re-installation process.
20.4 It is the Buyers responsibility to request from the Seller the levels of dust, contamination, noise or fumes likely to be caused by the product and/or equipment. Should there be any restrictions or regulations imposed whatsoever, these must be made implicitly clear and in writing prior to the quotation of any said works. The Seller shall accept no responsibility or liability for any consequential complaint, loss or damage of any nature whatsoever should such issues be raised by any person after the supply and/or commencement of contract. Should any such exclusion / prevention of product or equipment be demanded by any person and/or restricted by law, the Buyer agrees to indemnify the Seller from and against all liability arising therefrom and the cost of cancellation of product or equipment and/or the replacement of alternative product or equipment will be wholly the responsibility of the Buyer.
21. SPECIFIC REQUIREMENTS
21.1(a) Slip Resistance: Should the Buyer require a slip resistant floor, it will wholly be the Buyers responsibility to establish any legal requirements and to state the level of slip resistance (PTV) required in writing and prior to the ordering of any Goods or Service. Any such results can then be measured using a calibrated Pendulum Slip Tester in order to establish the Co-efficiency of Friction. Should the Buyer not specify the level of slip resistance required, the quantity, size and type of aggregate used will therefore be left to the discretion of the Seller. However, the Buyer will remain wholly responsible to determine whether the intended products will provide level of slip resistance required and as to whether they are fit for the Intended purpose.
21.1(b) Chemical Resistance: Should the Buyer require a chemical resistant floor, it is the Buyers responsibility to state clearly the types of chemicals the coating is to be exposed to, the level of exposure and to establish any legal requirements. Furthermore, it must be made clear, the strengths of the chemical(s) and whether any two or more chemicals are likely to mix. Should the Seller suggest they can provide a product, there will be no guarantee or warrantee implied or given unless expressly declared in writing by one of the Seller’s Partners before the product is ordered.
21.2 Should any specific requirements be required by the Buyer such as but not limited to, Slip Resistance or Chemical Resistance, it is not the responsibility of the Seller to raise the matter with the Buyer. It remains wholly the Buyers responsibility to make clear in writing their requirements before the quotation of the said products or works. The Buyer will in any case remain responsible for the Conditions as clearly expressed in, but not limited to, Conditions 9.8 and 9.9 above.
21.3 Save where an absolute legal prohibition against exclusion and restriction of liability applies, the Seller, its servants and agents shall be under no liability whatsoever to the Buyer, whether in contract, tort or otherwise howsoever (including any liability for consequential injury, loss or damage of any nature whatsoever) for or arising out of any advice, information, opinion or statement given or made by the Seller, its servants or agents, and other terms whether expressed or implied, statutory or otherwise, inconsistent with the provision of this sub-paragraph are hereby excluded.
21.4 It is the responsibility of the Buyer to determine whether the Goods ordered are fit for any purpose for which they may be required, and all conditions, warranties and other terms whether expressed or implied, statutory or otherwise, inconsistent with the provisions of this sub-paragraph are hereby excluded, except insofar as such exclusion is prevented by law.
22. GUARANTEE / WARRANTY
22.1 No guarantee or warranty whatsoever is valid for any product or installation from the Seller under any circumstances unless expressly confirmed in writing by a Senior Partner of the Seller to the Buyer prior to an order being accepted by the Seller.
23.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.