Terms and Conditions

EcoHeatCool Limited Terms and Conditions of Sale

Definitions

“Acknowledgement of Order” means the written acknowledgement of the Order sent by the Seller to the Buyer

“Buyer” means the person whose name appears on the Order as the buyer

“Completion of the Installation Services” means completion by the Seller of the installation of the Goods at the premises in accordance with the Quotation and the terms of this Contract

“Contract” means the contract between the Buyer and Seller which shall come into effect when the Seller accepts the Order by sending to the Buyer an Acknowledgement of Order

“Delivery” in relation to a Contract for the sale of Goods only, shall take place at the point either of the collection by the Buyer of the Goods from the premises of the Seller set out in the Quotation/Acknowledgement of Order, the loading of the Goods to be carried out by the Buyer or at the point of the delivery by the Seller of the Goods to the Premises the unloading of the Goods to be carried out by the Buyer. In relation to a Contract for the sale of Goods and provision of Installation Services, delivery shall take place when the Seller delivers the Goods to the Premises and unloads the Goods (provided that insulation items shall be sent to the Premises in advance and shall be unloaded by the Buyer)

“Delivery Date” means the date suggested for delivery of the Goods by the Seller in the Acknowledgement of Order or such other date agreed in writing by the Buyer and the Seller

“Deposit” means 50% of the Price or otherwise as set out in the Quotation to be paid by the Buyer at least 21 days prior to the Delivery Date

“Goods” means the goods referred to in the Quotation and each and every part thereof

“Installation Date” means the suggested date on which the Installation Services should commence as set out by the Seller in the Acknowledgement of Order or such other date agreed in writing by the Buyer and the Seller. The Installation Date shall on no account be before the end of the cancellation period for the Goods as set out in clause 9.1

“Installation Services” means the provision by the Seller to the Buyer of installation services in relation to the Goods which shall not include plumbing, electrical or other services

“Invoice” means the written invoice for the Price issued by the Seller in accordance with these Terms

“Order” means the acceptance by the Buyer of the Quotation by the Buyer sending the Order form (which will be sent by post to the Buyer) to the Seller by post, fax, or e-mail for the purchase of the Goods or the Goods and Installation Services on these Terms and including all the details and information set out in the Quotation. No information contained in an order which is not identical to the information in the Quotation shall be deemed included in the order and no order shall be valid unless sent on the Order form

“Premises” means the premises of the Buyer as set out in the Quotation

“Price” means the price for the Goods or the Goods and Installation Services as set out in the Quotation and the costs of Delivery which shall be set out separately on the Quotation both of which shall include VAT where applicable. The Price shall not include the cost of plumbing, electrical works or other services as listed in the exclusions in the Quotation which the Buyer must arrange, be responsible for and bear the cost of

“Quotation” means the quotation and technical specification provided by the Seller to the Buyer based on the Request for Quotation supplied to the Seller by the Buyer

“Request for Quotation” means the request by the Buyer for a Quotation which must be made on the Request for Quotation form (which will be sent by post to the Buyer) with accompanying drawings or by submission of those details electronically on the Request for Quotation form on the Seller’s website also with accompanying electronic drawings and which in both cases provides all the necessary information and detail required by the Seller to provide a Quotation

“Seller” means EcoHeatCool Limited of Unit 1, Babsham Farm, Chichester Road, Bognor Regis, West Sussex, PO21 5EL, England

“Terms” means these terms and conditions of sale

“Third Party Installer” means any third party used by the Buyer to install the Goods or to provide plumbing, electrical or other services

1. Seller’s Terms and Conditions

These Terms:

1.1. form part of every Contract for the sale of Goods or the sale of Goods and Installation Services between the Seller and the Buyer and apply to all dealings between the Seller and the Buyer to the exclusion of all other terms and conditions;

1.2. supersede all previous statements which may have been made; and

1.3. exclude any and all terms or conditions which the Buyer attempts to apply under any other document; and

1.4. may only be amended or added to with the specific written consent of a person duly authorised by the Seller and by the Buyer.

2. Requests for Quotations, Quotations, Orders and Cancellation

2.1. Unless withdrawn by the Seller, or otherwise agreed in writing, Quotations are valid for 90 days from the date of the Quotation following which time the Quotation shall be deemed withdrawn.

2.2. No Order placed by the Buyer shall be deemed to be accepted by the Seller until a written Acknowledgment of Order is issued by the Seller.

2.3. The Buyer must ensure that the information and details contained in the Request for Quotation are complete and accurate.

2.4. Orders may not be cancelled by the Buyer once they have been accepted by Seller.

2.5. If the Seller becomes aware at any time, before the Seller sends an Acknowledgement of Order, that the information provided by the Buyer to the Seller in the Request for Quotation is incorrect or incomplete in any way, then the Seller shall be entitled to send an amended Quotation (which might include an amended Price) to the Buyer and any Order placed by the Buyer following receipt of the amended Quotation shall be deemed to be on the basis of the amended Quotation and the previous Order shall be void.

2.6. If the Seller becomes aware at any time, after the Seller has sent an Acknowledgement of Order, that the information provided by the Buyer in the Request for Quotation is incorrect or incomplete, then the Seller shall be entitled to cancel the Contract and send a new Quotation (which might include a new Price) to the Buyer based on the correct information. If the Seller has already delivered the Goods to the Buyer then the Buyer shall be responsible for all Seller’s costs involved in collecting Goods and/or delivering new Goods. If the Installation Services have commenced, the Buyer shall be responsible for all costs incurred by the Seller in remedying the situation based on the new information available.

2.7. The Buyer shall pay a Deposit by the date set out in the Quotation which shall be at least 21 days prior to the Delivery Date. The Seller shall not be obliged to deliver the Goods until the Deposit is received in cleared funds by the Seller.

2.8. If any details in the Order are not identical to the details in the Quotation the Seller shall not accept the Order.

3. Quantity and Description

3.1. The quantity and description of the Goods to be delivered are as set out in the Quotation.

3.2. All samples, drawings, descriptions, specifications and advertising issued by the Seller and any descriptions or illustrations 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 and, to the extent permitted by law, do not form part of this Contract.

4. Price

4.1. The Price for the Goods or the Goods and Installation Services is as set out in the Quotation.

4.2. Before the Goods are delivered, the Seller may vary the Price reasonably to reflect increases beyond its control in the cost of supplying the Goods or the Goods and Installation Services provided that if the Seller so increases the Price the Seller shall notify the Buyer in writing of such increase and the Buyer shall be entitled to terminate the Contract and receive a refund of all monies paid by the Buyer.

4.3. The Seller shall provide the Invoice for the Goods to the Buyer on, or prior to Delivery. Subsequent Invoices for Installation Services will be submitted at relevant intervals as set out in the Acknowledgement of Order.

5. Payment

5.1. The Buyer shall pay the Deposit on the date set out in the Quotation which shall be at least 21 days prior to the Delivery Date. If the Contract is for the supply of Goods only the Buyer shall pay the balance of the Price on, or prior to Delivery as set out in the Quotation. If the Contract is for the Supply of Goods and Installation Services, the Buyer shall pay the balance of the Price at pre-determined staged payment dates during the Contract, or as otherwise set out in the Acknowledgement of Order with the final payment on Completion of the Installation Services.

5.2. Payments by cheque or credit card are not deemed to have been received by the Seller until the Seller has received cleared funds.

5.3. If the Buyer fails to make any payment when due then, without affecting any other rights which it may have, the Seller may:

5.3.1. suspend any or all deliveries of the Goods and provision of the Installation Services until paid; and/or

5.3.2. require the Buyer to pay any costs of storage and re-delivery of the Goods; and/or

5.3.3. charge the Buyer interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate then in force, calculated on a daily basis for the period from the due date to the date when payment in full is actually received (whether before or after any judgment); and/or

5.3.4. resell any Goods not yet delivered to the Buyer; and/or

5.3.5. retain any Deposit paid by the Buyer.

5.5 If the Seller wrongfully cancels the Contract the Buyer shall be entitled to a refund of all monies paid by the Buyer plus an amount equal to the Deposit.

6. Delivery

6.1. The Seller shall be responsible for insurance of the Goods up to and including Delivery. Risk in the Goods shall pass to the Buyer on Delivery and the Buyer shall be responsible for insuring the Goods after Delivery which shall include the unloading of the Goods at the Premises or loading of the Goods at the Seller’s premises whichever is appropriate. Title to the Goods shall remain with the Seller until payment in full of the Price is received by the Seller.

6.2. The Buyer shall ensure that it is available to accept delivery of the Goods at the Premises or the Seller’s premises whichever is appropriate on the Delivery Date and the Buyer shall give to the Seller all reasonable assistance in relation to Delivery.

6.3. If for any reason the Buyer fails to accept delivery of all or any of the Goods when the Seller attempts to deliver them, or the Seller is unable to deliver the Goods on time as a result of any variation or delay in delivery caused by any act or default of the Buyer, the Seller may store the Goods until delivery is effected, and the Buyer will be liable for all related costs and expenses (including, without limitation, storage costs, insurance and re-delivery charges, costs of the Seller’s employees’ wasted time on an hourly basis which shall be invoiced by the Seller to the Buyer separately).

6.4. If for any reason the Buyer fails to accept delivery of all of any of the Goods when the Seller attempts to deliver for a second or subsequent time, then, without prejudice to any other rights the Seller may have, the Seller shall be entitled to cancel the Contract and retain the Deposit and shall be entitled to require the Buyer to reimburse the Seller all related costs and expenses (including, without limitation, storage costs, insurance and re-delivery charges, costs the Seller’s employees’ wasted time on an hourly basis which shall be invoiced by the Seller to the Buyer separately.

6.5. Any Delivery Date is an estimate only and time for delivery shall not be of the essence or made of the essence by notice.

7. Risk and Title

7.1. Risk in the Goods passes to the Buyer on Delivery.

7.2. Legal and beneficial title to the Goods passes to the Buyer on receipt by the Seller (in full and in cleared funds) of:

7.2.1. the Price; and

7.2.2. all other sums due from the Buyer under this Contract.

7.3. The Seller is entitled to recover any sum outstanding under this Contract even if title to the Goods has not passed to the Buyer.

7.4. Until the Goods have been paid for in full by the Buyer the Goods remain the property of the Seller with the intent that the whole legal and beneficial title shall remain with the Seller.

7.5. If the Buyer becomes insolvent or has a receiver appointed or passes a resolution of winding up or has a receiving order made against him then the Seller shall be entitled to remove and repossess the Goods.

7.6. No provision of this Contract shall be deemed to cause a mortgage or charge over the property or undertaking of the Buyer to have been created by the Buyer in favour of the Seller.

7.7. Until the property in the Goods passes to the Buyer the Buyer shall be the baillee of the Goods for the Seller and shall store the Goods securely, safely and separately from the Buyer’s own goods or the goods of any third party and in a manner which makes them readily identifiable as the Goods of the Seller. The Buyer shall not pledge or allow any lien, charge or other interest to arise over the Goods.

8. Consumer’s Right to Cancel

8.1 If the Buyer is contracting as a consumer for Goods, and the Goods have not been customised to the specification of the Buyer, the Buyer may cancel the Contract at any time within seven working days of Delivery. Subject to clause 8.4, where the Buyer so cancels the Contract the Buyer shall receive a full refund of the Price.

8.2 If the Buyer is contracting as a consumer for Installation Services, the Buyer may cancel the Contract at any time within seven working days of the date the Contract is concluded. Subject to clause 8.4, where the buyer so cancels the Contract, the Buyer shall receive a full refund of the Price. The Installation Services shall not in any event commence until the end of the cancellation period referred to in clause 8.1 above.

8.3 To cancel the Contract the Buyer must give the Seller notice in writing in accordance with clause 15.1 or by email within the time limits referred to in clauses 8.1 and 8.2. Any notice given by the Buyer after the time limits shall not be effective to entitle the Buyer to return the Goods or receive a refund of the Price.

8.4 The Buyer must take reasonable care of the Goods while they are in the Buyer’s possession and return the Goods to the Seller at its own expense. If the Buyer does not return the Goods on cancellation then the Seller shall be entitled to organise for collection of the Goods and shall be entitled to deduct its direct costs of doing so from the refund of the Price.

8.5 If the Seller collects the Goods, the Seller shall inform the Buyer of the date when it will do so and the Buyer must make the Goods ready for collection.

8.6 Subject to clause 8.4, the Buyer shall receive a refund of the Price as soon as possible after and in any event within 30 days of, the Seller receiving written notice of the Buyer’s intention to cancel.

9. Installation and Inspection

9.1. If the Contract is for the provision of Installation Services, the Seller shall provide the Installation Services on the Installation Date with reasonable skill and care. The Installation Date is an estimate only and time shall not be of the essence or made of the essence by notice.

9.2. If the Seller or its employees or contractors cause any damage to the Premises during the provision of the Installation Services the Buyer shall notify the Seller immediately and the Seller shall be given the opportunity to rectify such damage.

9.3. The Buyer shall give all reasonable assistance required by the Seller to enable the Seller to provide the Installation Services including obtaining all Building Regulation Approvals, Planning consents or other legal or statutory requirements, ensuring that the relevant part of the Premises is empty and floors have been swept and all wall and floor openings are in place or clearly marked

9.4. In the event of installation by a Third Party Installer, the Buyer and any Third Party Installer must inspect the Goods immediately on Delivery and the Buyer shall make any Third Party Installer fully aware of these Terms.

9.5. Where the Buyer is not a consumer, the Buyer must notify the Seller of any defect which would be apparent from a reasonable inspection of the Goods in accordance with clause 9.4 within 14 days after Delivery and in any event before the Goods are installed by any Third Party Installer. Where the Buyer is a consumer, the Buyer must use reasonable endeavours to notify the Seller of any defect which would be apparent from a reasonable inspection of the Goods in accordance with clause 9.4 within 14 days after Delivery and in any event before the Goods are installed by any Third Party Installer.

9.6. In the case of a defect notified in accordance with clause 9.5, the Seller shall, at the Buyer’s option, repair or replace the defective Goods within a reasonable time of notification of the defect by the Buyer.

9.7. In the case of any claim by the Buyer in relation to defects in the Goods which were not reasonably apparent on inspection as set out in clause 9.5, the Buyer shall notify the Seller and any Third Party Installer of any claim immediately it becomes aware of the defect. The Buyer shall allow the Seller access to the Premises in order for the Seller to inspect the Goods.

9.8. If the Seller considers that the Seller is responsible for the defect in the Goods notified under clause 9.7 then the Seller shall repair or replace the Goods as soon as reasonably practicable.

9.9. The Seller is not liable to the Buyer in respect of any damage caused, whether to the Goods or otherwise, by the installation of the Goods by the Third Party Installer.

10. Warranty and Limitation of Liability

10.1. Subject to clause 9, the Seller warrants that, on Delivery, the Goods shall be of satisfactory quality and reasonably free from defects in materials and workmanship and the Installation Services shall be provided with reasonable skill and care.

10.2. In addition, the Seller warrants that the following items shall be free from defects in materials and workmanship for the following periods:

– 50 years for synthetic tubes. During the first 10 years of this warranty period the Seller will also bear the cost of installing replacement synthetic tubes where a synthetic tube proves to be defective and any costs of removing and replacing the flooring in the particular enclosed area concerned and shall use reasonable efforts to match the replacement flooring as closely as possible to the original flooring in the particular enclosed area. The Seller shall also bear the associated direct costs of making good any damage to doors, door frames, skirting boards and walls damaged by the Seller during the repair work carried out by the Seller. During the last 40 years of this warranty period the Seller shall only be obliged to deliver replacement synthetic tubes where a synthetic tube proves to be defective but shall not be liable for installation or costs related to removing or replacing floors

– 5 years for the manifold housing. During this period the Seller shall deliver replacement manifold housing where manifold housing proves to be defective but shall not be obliged to install or bear any related costs.

– 2 years for repair couplings (which are situated in the cement). The Seller shall deliver a replacement repair coupling where a repair coupling proves to be defective and shall install such replacement repair coupling and shall bear any costs of removing and replacing the flooring in the particular enclosed area and shall use reasonable efforts to match the replacement flooring as closely as possible to the original flooring in the particular enclosed area.

– 2 years for mechanical defects in all appendages such as pumps, thermometers, pressure gauges, valves, valve regulators and couplings (other than repair couplings referred to above). During this period the Seller shall deliver replacement parts where a part proves to be defective but shall not be obliged to install or bear any related costs.

– 1 year in relation to actuators, and other electrical components or such period as provided by the manufacturer of such items if that period is longer. During this period the Seller shall deliver replacement parts where a part proves to be defective but shall not be obliged to install or bear any related costs.

10.3. The Seller shall not be liable for a breach of the warranty in clause 10.2 unless:

10.3.1. the Buyer gives written notice to the Seller of any defect in the Goods promptly they become apparent and, in any event, within 14 days after such defect becoming apparent; and

10.3.2. the Seller is given a reasonable opportunity, after receiving such notification, to examine the Goods.

10.4. Unless otherwise expressly stated in these Terms, all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from this Contract.

10.5. Nothing in these Terms excludes or limits the liability of the Seller:

10.5.1. for death or personal injury caused by the Seller’s negligence; or

10.5.2. where the Buyer is a consumer, under Part I of the Consumer Protection Act 1987 or in respect of any liability which arises under any safety regulation made under section 10 of the Consumer Protection Act 1987; or

10.5.3. under section 5 of the Unfair Contract Terms Act 1977; or

10.5.4. for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or

10.5.5. for fraud or fraudulent misrepresentation.

10.6. NOTHING IN THESE TERMS AFFECTS A CONSUMER’S STATUTORY RIGHTS.

10.7. Subject to clauses 10.5 and 10.6 of these Terms:

10.7.1. the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract is limited to £200,000.

10.7.2. the Seller is not liable to the Buyer for any costs, expenses, damages, losses, claims or demands arising as a result of relocation, storage or removal, any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for indirect or consequential loss or compensation whatsoever (howsoever caused) which arise out of or in connection with this Contract;

10.7.3. the Seller is not liable to the Buyer for any costs, expenses, damages, losses, claims or demands arising directly or indirectly as a result of any misuse of the Goods or use of the Goods for purposes other than heating; use, without the prior written approval of the Seller, of chemicals or other substances with the Goods , incorrect installation by a Third Party Installer, maintenance, repair or treatment by a third party (including but not limited to plumbers and electricians), any treatment or handling which is not in complete accordance with any installation instructions, manuals or other relevant literature issued with and concerning the Goods or use of materials not supplied by the Seller; and

10.7.4. the warranties in clauses 10.2 shall not apply to synthetic pipes if they are used other than for heating purposes with a maximum water temperature of 60 degrees centigrade (70 degrees centigrade for PE-RT synthetic tube) and an internal pressure of not more than 4 bars or if chemicals or other additives not approved by the Seller are used in the heating system or if the synthetic pipes are not connected to a WTH distribution manifold.

10.8. Subject to clauses 10.3, 10.4 and 10.7 of these Terms, if any of the Goods do not conform with the warranties in clauses 10.1 and 10.2 of these Terms, the Seller shall at the Buyer’s option repair or replace such Goods (or the defective part).

11. Intellectual Property Rights

All intellectual property rights in all illustrations, drawings, schemes, brochures, publications and designs provided by the Seller shall remain at all times owned by the Seller and shall not be reproduced by the Buyer or any third party for any purpose other than installation of the Goods by a Third Party Installer.

12. Termination

12.1. Without affecting any other rights and remedies it may have, the Seller may immediately terminate this Contract if:

12.1.1. the Buyer breaches any terms of, or purports to cancel, the Contract with the Seller;

12.1.2. any step, application, order, proceeding or appointment is taken or made by or in respect of the Buyer for distress, execution, composition or arrangement with creditors, winding up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or the Buyer being unable to pay his debts or dying or suffering mental disorder within the meaning of the Mental Health Act 1983.

12.2. If the Seller terminates this Contract under clause 12.1 then, without affecting any other rights and remedies it may have:

12.2.1. all sums due from the Buyer under this Contract will be immediately due and payable;

12.2.2. the Seller may dispose of any Goods as it wishes; and

12.2.3. the Buyer must reimburse the Seller for any loss or expenses incurred by the Seller in connection with the Contract.

13. Force Majeure

Subject to clause 10.5, the Seller is not liable in any way for loss, damage, costs or expenses arising directly or indirectly from any failure or delay in performing any obligation under this Contract caused by any circumstance beyond its control, including, without limitation, war or other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, break down or damage to machinery or equipment, fire, flood, acts of God, strike, lock-out or other industrial disputes (whether or not involving employees of the Seller), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, legislative or administrative interference. On the occurrence of any such event, the Seller may, at its discretion, perform, suspend performance of, or terminate this Contract.

14. Assignment and Sub-contracting

The Buyer is not entitled to assign and/or sub-contract this Contract (or any part of it) including, without limitation, the benefit of any warranties and indemnities, without the prior written consent of the Seller.

15. Notices

15.1. All notices to be given to the Seller in relation to this Contract must be in writing and must be delivered by hand, sent by pre-paid first class post or sent by fax to the Seller’s address set out above (or such other address as may be notified to the Buyer by the Seller from time to time).

15.2. Notices are deemed to have been received:

15.2.1. if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or

15.2.2. if delivered by hand, on the day of delivery; or

15.2.3. if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.

16. General

16.1. If any term or provision of this Contract is held to be illegal, invalid or otherwise unenforceable, in whole or in part, under any enactment or rule of law, that term or provision will to that extent be deemed not to form part of this Contract, but the enforceability of the remainder of such term or provision (and of the Contract) will not be affected. NOTHING IN THESE TERMS SHALL AFFECT THE STATUTORY RIGHTS OF A CONSUMER.

16.2. No failure or delay by the Seller in exercising any right, remedy, power or privilege under this Contract will be or be deemed to be a waiver or in any way prejudice any such right, remedy, power or privilege. No single or partial exercise of any right, remedy, power or privilege will preclude or restrict the further exercise or enforcement of any such right, remedy, power or privilege.

16.3. No waiver by either party will be valid unless in writing and signed by a duly authorised representative of the party giving the waiver.

16.4. This Contract is not intended to create and shall not create any rights, entitlements, claims or benefits enforceable by any person who is not a party to this Contract by virtue of the Contracts (Rights of Third Parties) Act 1999.

17. Governing Law

This Contract is governed, construed and interpreted in accordance with English law and is subject to the exclusive jurisdiction of the courts of England and Wales.