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1. Definitions
1.1 “Business Customer” means a customer who is not a Consumer.
1.2 “Consumer” means an individual who is not acting for the purposes of his or her business or profession.
1.3 “Customer” includes both “”Business Customer” and “Consumer” and “you”
1.4 “Thermmark” means Thermmark Limited, Registered in England and Wales (Reg no 5101708), whose registered office in Unit 7&8 Greenfield Industrial Estate, Congleton, Cheshire CW12 4TU, UK; also referred to as “we” or “us” in these terms and conditions.
1.5 “catalogue” means the catalogue of products and services offered by Thermmark.
1.6 “Force Majeure” means any cause affecting the performance by Thermmark of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including (but not limited to) governmental regulations, fire, flood or any disaster or industrial dispute affecting a third party.
1.7 “Normal Working Hours” means 9 am to 5 pm on a Working Day.
1.8 “Working days” means Monday to Friday, excluding Bank or other Public holidays.
1.9 Please note special terms apply to Consumers, which prevail over the other provisions of these terms and conditions. Consumers are referered to Clause 13.
2. General
2.1 All orders for products and services on the Thermmark web site are accepted by Thermmark Limited (‘Thermmark’) subject to these terms and conditions of sale. No other terms will apply to the supply of products and services by Thermmark unless agreed in writing by an authorised signatory of Thermmark.
2.2 All descriptions of the products and services contained on the Thermmark website or otherwise communicated to the Customer are Approx.imate only and shall not form any part of the contract between Thermmark and the Customer. Thermmark may correct any errors in its website without liability to the Customer. The advertising of products and services in the Thermmark website merely constitutes an invitation by Thermmark for the Customer to make an offer to purchase products and services
2.3 Thermmark website is intended for sales to the United Kingdom and Ireland only. These terms and conditions do not apply to transactions carried outside these territories with, to which separate terms and conditions of sale apply.
2.4 Please note, Thermmark may record and / or monitor inbound and outbound calls and electronic traffic for training purposes.
3. Orders
3.1 All contracts of sale made by Thermmark shall be deemed to incorporate these terms and conditions, which shall prevail over any other terms from the party (“the Customer”) with whom Thermmark is dealing. Cancellation of orders by business to business customers is not accepted. Cancellation of orders by Consumers will be accepted in accordance with the Consumer Protection (Distance Selling) Regulations 2000. Nothing in these terms and conditions is intended to impinge upon a Consumer’s statutory or contractual rights to reject faulty goods.
3.2 All orders are subject to acceptance and to availability of the goods ordered: Thermmark reserves the right to decline to trade with any company or person. In addition, Thermmark may decline to accept any order, whether or not payment has been received, by giving notice of non-acceptance to the Customer by telephone or facsimile within a reasonable period of receipt by Thermmark of the order.
3.3 You undertake that:
3.4 Please note, Thermmark may record and / or monitor inbound and outbound calls and electronic traffic for training purposes.
4. Prices
4.1 Goods and services, are invoiced at the price prevailing at time of order.
4.2 Prices are quoted in British Pounds (GBP) and exclude VAT, shipping charges and other taxes which, where applicable must be paid by you in addition to the price and which will be listed with the total cost of your order
4.3 Thermmark reserves the right to modify the prices from time to time.
5. Delivery, Title and Risk
5.1 Unless otherwise agreed in writing by the Seller, the Seller shall deliver the Goods by the means most convenient to the Seller to the address or addresses specified by the Buyer at the time of placing his order or (in the event that the Buyer fails so to specify an address) to any address at which the Buyer resides or carries on business. The Seller shall be entitled to add to the contract price a reasonable charge for packaging and delivery. Off-loading shall be at the Buyer’s expense and the Buyer shall provide appropriate equipment and manual labour for such off-loading. The Buyer shall provide all requisite instructions, documents, licences and authorisations required for or relevant to the delivery of the Goods and/or the Services to enable delivery to take place. The Seller shall not be liable for any failure or delay in delivery as a result of the Buyer failing to comply with this condition or any other condition.
5.2 If the Contract requires the Buyer to take delivery of the Goods at the Seller’s premises the Seller shall notify the Buyer of the collection date (being the date on which the Goods are or will be ready for delivery) and the Buyer shall take delivery of the Goods within 7 days of the collection date. Loading of the Goods shall be at the Buyer’s expense.
5.3 Should the Seller be delayed in or prevented from making delivery of the Goods or carrying out the Services due to any cause whatsoever beyond the reasonable control of the Seller the Seller shall be at liberty to terminate the Contract or suspend the order placed by the Buyer without incurring any liability for any loss or damage arising therefrom, but without prejudice in any such case to rights accrued to the Seller in respect of deliveries already made.
5.4 While the Seller will endeavour to deliver the Goods or complete the Services by any date or within any period agreed upon, such dates and periods are estimates only given in good faith and the Seller will not be liable for any failure to deliver the Goods or carry out the Services by such a date or within such a period. Time for delivery shall not be of the essence of the Contract. Moreover, the Seller shall be entitled to defer delivery until any monies due from the Buyer have been received.
5.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalment shall not entitle the Buyer to treat the Contract as a whole as repudiated.
5.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may at its option; (i) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage or; (ii) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract. The Buyer shall pay such shortfall to the Seller within 28 days of the date of the Seller’s demand therefor.
5.7 If no person is available at the Buyer’s address to take delivery and the products cannot be posted through a letterbox, the Seller or its agent shall leave instructions informing the Buyer of how to rearrange delivery or collect the products from a local branch. If the Buyer does not collect the products from the Seller as arranged or if, after a failed delivery to the Buyer, the Buyer does not re-arrange delivery or collect them from a delivery branch, the Seller shall contact the Buyer for further instructions and may charge the Buyer for storage costs and any further delivery costs. If, despite the Seller’s reasonable efforts, the Seller is unable to contact the Buyer or re-arrange delivery or collection, the Seller may terminate the Contract.
5.8 Any liability of the Seller for non-delivery of the Goods shall be limited to replacing within a reasonable time, or issuing a credit note against any invoice raised for, any such Goods that were not delivered.
5.9 All deliveries by the seller will be carried out by third party agents and as such any liability for damage or loss to property during any such delivery should be communicated to the seller and the distributing agent as soon as any perceived loss has arisen.
5.10 For courier shipments only: Upon delivery of the goods, the Customer will be asked to sign a Proof of Delivery to acknowledge safe receipt. It is the responsibility of the Customer to ensure that the number of packages delivered corresponds with the number stated on the delivery note. Where a discrepancy occurs or where there is evident damage to the packaging, this should be noted on the Proof of Delivery. Thermmark shall not be liable for discrepancies or damage evident on delivery where the Customer accepts delivery and signs the Proof of Delivery without amendment.
5.11 Where the Customer requests goods to be sent by Royal Mail or expressly instructs Thermmark to leave goods without requiring Thermmark to obtain a Proof of Delivery, delivery shall be deemed to have been successfully completed on despatch by Thermmark
5.12 Free Delivery is available only for orders between £10 and £15. Within this price range free delivery is only available for orders which have a total weight of less than 2KG.
6. Payment
6.1 Payment is due on shipment unless a Customer has been approved for credit. Thermmark’s standard credit terms require payment within 30 days from the date of the invoice, except in the case of transactions where different terms are agreed in writing.
6.2 Payment may be made by BACS transfer, cash, cheque, Visa, MasterCard, Solo and Maestro. Handling charges for cash payments may apply. If any sum is not paid on the due date for payment then, without prejudice to any other right or remedy: All sums then outstanding from the Customer will immediately become due and payable notwithstanding that such sums would not otherwise be due until a later date, and Thermmark may apply a compensation charge to the Customer of £40 for outstanding sums up to £999.99: £70 for outstanding sums between £1,000 and £9,999.99 and £100 for outstanding sums of £10,000 or more. Thermmark may also charge the Customer interest from the due date until payment is made in full (both before and after any judgement) on the amount unpaid at a rate which is 8 per cent per annum above the Bank of England base rate as set at 31 December for the period 1 January to 30 June inclusive in the following year and as set at 30 June for the period 1 July to 31 December inclusive, compounded monthly.
6.3 Should Thermmark need to take legal recourse to recover the funds due to it, any legal costs the former may incur as a result of breach of this agreement (including non-payment) will be payable by the customer.
7. Product specifications
7.1 Thermmark makes every effort to supply the goods as advertised but reserves the right to supply the goods subject to minor variations in actual dimensions and specifications. Where these dimensions are critical to the application and use of product customer is advised to get them confirmed in writing by fax or e-mail from us.
7.2 Thermmark has made every effort to ensure that the colours of the products are displayed online as accurately as possible. However since presentation of colour varies with type of monitor settings and slightly from batch to batch during production, Thermmark can not guarantee that the colours accurately reflect the colour of the product on delivery. Customers are strongly advised to ask for samples before ordering to ascertain suitability Thermmark will take every care and effort to ensure that product descriptions, sizes and prices are displayed correctly at the time of entering the relevant information onto the system. However, Thermmark reserves the right to refuse any orders where the information/sizes and prices are published incorrectly (this includes promotions).
7.3 If Thermmark cannot supply the goods ordered by the Customer, Thermmark reserves the right to offer goods of equal or superior quality at no extra cost. In such a case, if the Customer does not wish to accept the alternative goods offered, he or she may cancel the order and require the refund of any money paid to Thermmark in respect of that order, including carriage charges. This shall be the sole remedy of the Customer in these circumstances.
7.4 Thermmark has to adhere to the manufacturer’s guidelines stipulating that a given defect(s) that are deemed acceptable before an item is accepted for replacement on grounds of fault. All commercial rubber products unless specified (Including flooring products) are made to a ±5% manufacturing tolerance. Precision made molded products are generally made to a ISO 3302 M3 C tolerance , extruded products to BS 3715 E2 tolerance and sponge products to BS 3715 E3 tolerance
7.5 Each user bears the full responsibility for making its own determination as to the suitability of Thermmark´s materials, products, services, recommendations or advice for its own particular purpose. Each user must identify and perform tests and analyses sufficient to assure it that its finished parts will be safe and suitable for use under end-use conditions. Because actual use of products by the user is beyond the control of Thermmark, such use is within the exclusive responsibility of the user, and Thermmark cannot be held responsible for any loss incurred through incorrect or faulty use of the products. Further, no statement contained herein concerning a possible or suggested use of any material, product, service or design is intended or should be construed to grant any license under any patent or other intellectual property right of Thermmark or any of its subsidiaries or affiliated companies, or as a recommendation for the use of such material, product, service or design in the infringement of any patent or other intellectual property right.
8. Trade names & Trade Marks and Rights
8.1 Trade names and marks (other than Thermmark’s) are not always indications of the actual manufacturer of a particular product and may rather be indicative of general use systems and machines associated with such products.
8.2 Thermmark acknowledges the intellectual property rights of suppliers and manufacturers of the products appearing Thermmark’s sales literature and on Thermmark’s website. The Customer acknowledges that Thermmark and its licensors own the intellectual property rights in the catalogues, the website content and the stock numbers, and that their whole or partial reproduction without Thermmark’s prior written consent is prohibited.
9. Warranties & Returns
Please note that special terms apply to Consumers who wish to return goods, which prevail over the provisions of this Clause 9. Customers who are Consumers are referered to Clause 14.
9.1 Thermmark is committed to providing our customers with the highest quality products and service. However, on rare occasions, products may be found to be faulty or defective. In such cases we offer the returns facilities described below.
9.2 If you are not a Consumer, subject to the other provisions of these terms and conditions, Thermmark warrants that upon delivery and for a period of 3 months from the date of delivery the products will be of satisfactory quality within the meaning of Sales of Goods Act 1979. These warranties shall not apply to any defect which arises from improper use, failure to follow the product instructions, or any repair or modification made without the consent of Thermmark.
9.3 If you purchase goods in the course of your business, the following provisions of this Clause shall apply. Other than the express provisions set out in these terms and conditions, all other terms and the implied terms or warranties relating to the supply of goods are excluded to the fullest extent permitted by law. Goods are not tested or sold as being fit for any particular application or for use under specific conditions, unless expressly agreed in writing.
9.4 Subject to the right of Consumers to return goods for refund under The Consumer Protection (Distance Selling) Regulations 2000 (see Clause 13), Thermmark does not sell products on a trial basis. Customers are strongly advised to check suitability and specifications of products before ordering. In some instances, Customers may benefit from special price discounts. Such goods are not returnable and may not be sold to other customers. Accordingly, orders for such goods can not be cancelled and Thermmark can only return or repair Goods where they prove to be defective and the Goods are returned for repair or replacement.
9.5 In the event that Thermmark, at its discretion (unless the Consumer Protection (Distance Selling) Regulations 2000 apply, see Clause 13), agrees to accept the return for credit of unwanted products, the goods must be returned with Thermmark’s prior written agreement within 14 days of delivery. The goods must be unopened and in perfect re-saleable condition All goods returned in these circumstances (except where the Consumer Protection (Distance Selling) Regulations 2000 apply, see Clause 13) will be subject to a 25% re-stocking fee of Thermmark’s sale price for the goods in addition to two way carriage costs (subject to a minimum of £10). Please ensure that the product(s) you have purchased are to your specification prior to breaking the manufacturers seals. This will avoid disappointment and the product(s) being rejected, should you wish to return them.
9.6 No contract shall be cancelled once accepted by Thermmark nor shall any Goods which are delivered in accordance with the contract be returned without prior written approval of Thermmark and on terms to be determined at the absolute discretion of Thermmark.
10. Thermmark’s liability
10.1 In its dealings with Business Customers, Thermmark shall under no circumstances be liable for any consequential or indirect damage or loss, however caused, including (but not restricted to) loss of business or profits, loss of goodwill, damage to trading relationships loss of data and other financial loss. (“Financial loss” in this sense does not refer to the price you have paid for the goods, which we may be liable to refund to you, in whole or in part, if the goods are faulty or do not comply with their description). Subject to and without prejudice Thermmark’s liability in respect of all other losses shall be limited to the invoiced amount of the relevant order.
10.2 Nothing in this agreement shall limit Thermmark’s liability for death or personal injury caused by its negligence.
11. Health & Safety
11.1 Thermmark confirms that the goods it supplies as a distributor do not present a hazard to health and safety
12. Force Majeure
12.1 Thermmark shall not be liable to the Business Customer/Consumer or be deemed to be in breach of the contract by reason of any delay in performing or any failure to perform any of Thermmark’s obligations in respect of the Goods, if the delay or failure was due to any cause beyond Thermmark’s reasonable control (force majeure). Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Thermmark’s reasonable control:
12.2 If we are unable to provide you with your Goods within a reasonable time due to circumstances outside our control, we shall either agree a new timescale with you for the delivery of the Goods or either of us may decide to terminate the contract in which case we will return any prepayments that you have made in full or cancel the whole or any part of these terms and conditions of sale, without any liability to the Business Customer or consumer
13. Reduced price offer & Liquidation Products
13.1 Goods sold on “Reduced price offer” or “Liquidation Stock” are downgraded goods that Thermmark is able to offer at a discount on the normal catalogue price. Stocks of goods offered as above are limited and such goods are sold subject to the following special rules. These special rules apply in addition to, and in the event of any conflict override, all of Thermmark’s other terms and conditions, except those terms and conditions specifically covering Consumers.
13.2 Upon receipt of an order, Thermmark will check stock availability. Until stock availability is confirmed to the customer, a contract for sale will not be created and no payment will be debited from the customer.
13.3 All goods sold by Thermmark as Reduced price offer & Liquidation Products are sold subject to the following special rules that apply in addition to Thermmark’s other terms and conditions.
13.4 Products are non-returnable unless we have made an error or the goods are faulty;
13.5 Prices are not subject to value, cash or volume discounts.
14. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
14.1 Contracts for the purchase of goods by a Consumer not acting in the course of a business and made over the telephone or through the Thermmark website, or by mail order, are, with the exception of certain excepted contracts, subject to The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, (‘the Regulations’). If you are a Consumer, Thermmark warrants that upon delivery and for a period of 3 months from the date of delivery the products shall be of satisfactory quality and fit for purpose within the meaning of the Sale of Goods Act 1979 (subject to the provisions of these term and conditions.)
14.2 If the Regulations apply, Consumers may cancel goods purchased from Thermmark by sending a written notice of cancellation by post or hand delivery addressed to Sales at Thermmark, Building 91D, Whitehill & Bordon Enterprise Park, Budds Lane, Bordon, GU35 0FJ or by e-mail to sales@Thermmark.co.uk. Please include your name, full address and date of order or invoice number.
14.3 The notice of cancellation must be delivered no later than 14 days after the date of delivery of the goods.
14.4 The Consumer will be responsible for the cost of returning the goods which must then be done within 14 days of the notice given to Thermmark of the cancellation of the order.
14.5 If the Consumer wishes Thermmark to arrange the collection to return the goods then, this can be arranged and the cost of collection will be agreed and borne by the Consumer who is under a duty to make the goods available for collection during normal working hours from the address to which they were delivered (unless special arrangements are agreed in writing.) The Consumer is under a duty to retain possession of the goods whilst awaiting their collection/return to Thermmark and to take reasonable care of them during this period. The Consumer will be liable for any loss of or damage to the goods if he or she fails to comply with this obligation.
14.6 Once Thermmark has received the goods back then any refund of monies due will be arranged within 14 days including any outgoing basic delivery charge only. (So if for example the consumer requested a special service such as a timed delivery, then this part of the delivery charge would be excluded from the refund.)
15. Errors & Omissions
15.1 Thermmark makes every effort to ensure that all prices and descriptions quoted in its catalogue and on its website are correct and accurate. However, the frenetic tempo of e-commerce makes it inevitable that mistakes will occasionally occur. In the case of a manifest error or omission, Thermmark will be entitled to rescind the contract, notwithstanding that it has already accepted the Customer’s order and/or received payment from the Customer. Thermmark’s liability in that event will be limited to the return of any money the Customer has paid in respect of the order. In the case of a manifest error in relation to price, the Customer will be entitled to purchase the goods by paying the difference between the quoted price and the correct price, as confirmed in writing by Thermmark after the manifest error has been discovered.
15.2 A ‘manifest error’, as the term is used in sub-paragraph (1) above, means, in relation to an incorrect price, a price quoted in error by Thermmark which is more than 10% less than the price that would have been quoted had the mistake not been made.
16. Security of transactions and data protection
16.1 Website Security Thermmark does not collect or store customer payment details, but uses HSBC plc to conduct card processing facility for it. Provided the Business Customer/Consumer is using an SSL-compliant browser such as Netscape’s Navigator v 4.79 or above, Microsoft’s Internet Explorer v 5.01 or above, the Business Customer/Consumer is able to conduct encrypted transactions without fear of an intermediary obtaining the Business Customer/Consumers credit card information.
16.2 Information Automatically Logged Thermmark uses your IP (Internet Protocol) address to help diagnose problems with Thermmark’s server and to administer Thermmark’s website. The Business Customer/Consumer’s IP address is also used to help gather broad demographic information. A disk-based cookie (non session) is used to identify the Business Customer/Consumer.
16.3 Registration and data sharing Thermmark’s site registration and order form requires users to give Thermmark contact information (such as name, email, and postal address), unique identifiers (such as username and password), demographic information (such as postcode), and financial information (such as account or credit card numbers). This data (other than financial information) is stored for use in all Thermmark’s marketing communications and analysis.
16.4 Thermmark may share a Business Customer/Consumer’s information with other companies in the group and other third parties. The Business Customer/Consumer may be contacted or sent information in respect of further goods and services available and should inform Thermmark in writing in the event that the Business Customer/Consumer does not wish to receive this.
16.5 Thermmark routinely records and monitors calls for training and quality purposes.
17. General terms of business
17.1 Nothing in these terms and conditions affects your statutory rights as a Consumer.
17.2 If any provision in this Agreement is held to be invalid or unenforceable by any court, tribunal or administrative body, it shall be deemed severed from the Agreement and this shall not affect the validity or enforceability of the remaining provisions.
17.3 Any waiver of a breach of this Agreement must be in writing.
17.4 Any variation of this Agreement must be in writing and signed by a duly authorised Thermmark official.
17.5 The headings are for convenience only and shall not affect the interpretation of this Agreement.
17.6 Assignment. You must not transfer any contract made with us under these Conditions, as it is personal to you, without written authority from us. This authority will not be refused without good reason.
17.7 Insolvency
17.8 Customer Service queries Thermmark shall make every reasonable effort to resolve or acknowledge by post, telephone or email any queries which the Business Customer/Consumer has made within 48 hours of receipt of any such query. Thermmark shall make every reasonable endeavour to respond to complaints within 5 working days and keep the Business Customer/Consumer reasonably notified of any progress thereafter. Telephone calls made to Thermmark may be recorded for training purposes.
17.9 Third Party (Rights) Act 1999 No third party shall be allowed to enforce any rights under this contract. The parties hereby exclude the application of the Contracts (rights of Third Parties) Act 1999 to each and every contract made under these Conditions.
17.10 No Waiver Thermmark’s failure to insist upon strict performance of any provision of these Conditions shall not be deemed a waiver of its rights or remedies in respect of any present or future default of the Business Customer/Consumer in performance or compliance with any of these Conditions.
17.11 Notice Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice. Notice shall be delivered personally or sent by first class prepaid recorded delivery of by registered post (airmail if overseas) or by facsimile transmission and shall be deemed to be given in the case of delivery personally on delivery and in the case of posting (in the absence of evidence of earlier receipt) 48 hours after posting (six days if sent by airmail) and in the case of facsimile transmission on completion of the transmission provided that the sender shall have received printed confirmation of transmission.
17.12 Enforceability If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provision of these Conditions and the remainder of the provision in question shall not be affected.
17.13 Dispute In the event of a dispute between the Business Customer/Consumer and Thermmark, should Thermmark in writing require, the Business Customer/Consumer agrees to submit to the jurisdiction in accordance with the Arbitration Act 1996 for the time being in force as a legally binding alternative to court action.
17.14 Jurisdiction The contract shall be governed by the laws of England & Wales and the Business Customer/Consumer agrees to submit to the non-exclusive jurisdiction of the English courts.
17.15 Images Product images are provided for illustrative purposes only and the actual product you receive may differ from the image displayed in the catalogue or on our website, especially with generic products.
18. All return shipments must be returned to our registered business address marked FAO Refund/Return
Thermmark / Thermmark Ltd Unit 7&8 Greenfield Industrial Estate, Congleton, Cheshire CW12 4TU, UK |
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