“CUSTOMER” means the person who accepts Expert Gate’s quotation or estimate for the sale of the Goods and/or the supply of Services or whose order for the Goods and/or the Services is accepted by Expert Gate;
“GOODS” means the goods (including any instalment of the goods or any parts for them and whether sold separately or in connection with the supply of any Services) which Expert Gate is to supply in accordance with these Terms;
“Expert Gate” means The Expert Gate Company Limited (registered in England and Wales under number 12742019);
“SERVICES” means the services, including the installation of the Goods (whether supplied separately or in connection with the sale of any Goods) which Expert Gate is to supply in accordance with these Terms;
“CONTRACT” means the Contract for the sale and purchase of the Goods and/or the supply of Services;
“TERMS” means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Customer and Expert Gate;
“WRITING”, and any similar expression, includes facsimile transmission, e-mail and comparable means of electronic communication.
A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
The headings in these Terms are for convenience only and shall not affect their interpretation.
Basis of the Sale
Expert Gate shall sell the Goods and/or supply the Services. The Customer shall purchase the Goods and/or Services in accordance with Expert Gate’s quotation or estimate (if accepted by the Customer), or the Customer’s order (if accepted by Expert Gate), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation or estimate is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
No variation to these Terms shall be binding unless agreed in Writing between the authorised representatives of the Customer and Expert Gate.
Expert Gate’s employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by Expert Gate in Writing. In entering into the Contract, the Customer acknowledges that it does not rely on any such representations that are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
Any advice or recommendation given by Expert Gate or its employees or agents to the Customer or its employees or agents as to the storage, application, maintenance, or use of the Goods that is not confirmed in Writing by Expert Gate is followed or acted upon entirely at the Customer’s own risk, and accordingly, Expert Gate shall not be liable for any such advice or recommendation that is not so confirmed.
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Expert Gate shall be subject to correction without any liability on the part of Expert Gate.
Orders and specifications
No order submitted by the Customer shall be deemed accepted by Expert Gate unless and until confirmed by Expert Gate’s authorised representative.
The Customer shall be responsible to Expert Gate for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving Expert Gate any necessary information relating to the Goods and the Services within a sufficient time to enable Expert Gate to perform the Contract in accordance with its terms.
Subject to these Terms:
The quantity of the Goods shall be as set out in Expert Gate quotation or estimate (if accepted by the Customer) or the Customer’s order (if accepted by Expert Gate);
Unless otherwise agreed in writing by Expert Gate, the quality and description of the Goods and any specification for them shall be:
in the case of Goods manufactured by Expert Gate, as set out in Expert Gate’s current catalogue or literature relating to the Goods and
in the case of all other Goods, as set out in the current catalogue or literature for the same issued by the relevant manufacturer of the Goods; and 3.3.3 any Services shall, unless otherwise agreed in writing by Expert Gate be provided in accordance with Expert Gate’s current catalogue or literature relating to the Services from time to time. Further details about the Services not given in Expert Gate’s current literature may be made available on request, subject to any qualifications or representations in any such catalogues or literature in each case.
If the goods are to be manufactured or any process is to be applied to the good by Expert Gate, or any Services or other work is to be undertaken in accordance with a specification submitted by the Customer, the Customer shall indemnify Expert Gate against
all loss, damages, costs and expenses awarded against or incurred by Expert Gate in connection with, or paid or agreed to be paid by Expert Gate in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, if any, which results from Expert Gate’s use of the Customer’s specification; and
all loss, damages, costs and expenses awarded against or incurred by Expert Gate in connection with, or paid or agreed to be paid by Expert Gate in settlement of, any claim which results from Expert Gate’s reliance on the Customer’s specification.
Expert Gate reserves the right to make any changes to the Goods and/or Services that are necessary or required to conform or comply with any applicable statutory or E.U. requirements or that do not materially affect the nature, quality, or performance of the Goods and/or the Services at any time and without notifying the Customer.
The Customer may not cancel the Contract except with the agreement in Writing of Expert Gate and on terms that the Customer shall indemnify Expert Gate in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Expert Gate as a result of cancellation.
Price of the goods and/or charges for Services
The price of the Goods and/or charges for the Services shall be Expert Gate’s quoted price and/or charges or, where no price or charge has been quoted or where a price or quoted charge has only been estimated or where a quoted price is no longer valid, the price of Goods shall be Expert Gate’s standard price for such Goods, or, as the case may be, the relevant manufacturer’s then-current retail price list for the same and the charges for the Services shall be Expert Gate’s then-current standard charges for the same.
All prices quoted are valid for 14 days unless specified otherwise in the quotation (or estimate), only or until earlier acceptance by the Customer. After this time, they may be altered by Expert Gate without giving notice to the Customer.
Expert Gate reserves the right, by giving notice to the Customer at any time before the delivery of the Goods or the completion of the performance of the Services, to increase the price of the Goods or the charge for the Services to reflect any increase in the cost to Expert Gate which is due to:
any factor beyond the control of Expert Gate (such as, without limitation, any significant increase in the costs of labour, parts or materials or other costs of manufacture) and/or
any change in delivery dates, quantities or specifications for the Goods or any change in the timing nature or extent of or specifications for the Services which the Customer requests; and/or
any delay caused by the Customer’s instructions or failure to give Expert Gate adequate information or instructions.
Where clause 4.3.1 applies, and the Customer is dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), Expert Gate shall inform the Customer of any such increase in the price and/or charges and shall offer the Customer the opportunity to cancel the Contract or the relevant part of it to which the price increase relates. If such a Customer cancels the Contract or the relevant part of it, then such Customer shall be liable to pay for any parts or materials or Goods supplied or Services or work undertaken by Expert Gate before the cancellation of the Contract or the relevant part of it on the basis set out in clause 4.1.
Where only part of the Contract is cancelled, the Customer’s liability to pay for the remainder of the Goods and Services (pursuant to the remaining part or parts of the Contract) shall be unaffected.
Except as otherwise stated in Expert Gate’s quotation or estimate or any price list of Expert Gate, and unless otherwise agreed in Writing between the Customer and Expert Gate, all prices and charges given by Expert Gate are included in Expert Gate’s quote or estimate.
The price of the Goods and the charge for Services is exclusive of any applicable value-added tax, which the Customer shall be additionally liable to pay to Expert Gate.
Terms of payment
Subject to any special terms agreed in Writing between the Customer and Expert Gate:
Expert Gate may invoice the Customer for the price of the Goods on or at any time after the delivery of the Goods, unless the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, in which event Expert Gate shall be entitled to recover the price from the Customer and invoice the Customer for the price at any time after Expert Gate has notified the Customer that the Goods are ready for collection or (as the case may be) Expert Gate has tendered delivery of the Goods; 5.1.2 Expert Gate may invoice the Customer for the charges for the Services on or at any time after Expert Gate has notified the Customer that the Services have been completed, unless the Customer wrongfully fails to allow completion of the Services, in which event Expert Gate shall be entitled to recover the charges from the Customer and invoice the Customer for the charges at any time after Expert Gate has notified the Customer that it is ready and willing to complete the Services in accordance with the Contract; and
Expert Gate reserves the right to call for up to a 30% deposit or prepayment on account of the quoted or estimated price of the Goods and/or the quoted or estimated charges for the Services, notwithstanding that the same has not yet been delivered or provided. Expert Gate shall not be obliged to deliver the Goods and/or provide the Services until such deposit or prepayment has been made using cleared funds. Where the Contract is cancelled and, after setting off any amount payable to Expert Gate under clauses 3.4, 4.3 and/or 4.5, any deposit or prepayment or any part thereof is due and payable to the Customer, Expert Gate shall repay the amount due to the Customer accordingly
The deposit amounts may vary as indicated on Expert Gate’s quote or estimate
The Customer shall pay the price of the Goods and Services on immediate receipt of invoice or within seven days of the date of Expert Gate’s invoice if the invoice states and Expert Gate shall be entitled to recover the price, notwithstanding that delivery may not have taken place. The property in the Goods has not been passed to the Customer. The time of payment of the price shall be the essence of the Contract. Payment receipts will be issued only upon request.
If the Customer fails to make any payment on the due date, then, without limiting any other right or remedy available to Expert Gate, Expert Gate may:
cancel the Contract or suspend delivery or supply (or any further deliveries or supplies) of Goods and/or Services to the Customer;
appropriate any payment made by the Customer to such of the Goods and/or Services (or the goods or services supplied under any other contract between the Customer and Expert Gate) as Expert Gate may think fit (notwithstanding any purported appropriation by the Customer); and
charge the Customer interest (both before and after any judgment) on the amount unpaid under the Late Payment of Commercial Debts (Interest) Act 1998, being currently a rate of 8% per annum above The Bank of England base rate from time to time, until payment in full is made.
Delivery of Goods
Delivery of the goods shall be made by Expert Gate delivering the goods to the delivery premises agreed between the Customer and Expert Gate, or, where no delivery premises has been agreed, by the Customer collecting the Goods at Expert Gate’s premises at any time after Expert Gate has notified the Customer that the Goods are ready for collection.
Any dates quoted for delivery of the Goods are approximate only, and Expert Gate shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by Expert Gate in Writing. Expert Gate may deliver the Goods before the quoted delivery date on giving reasonable notice to the Customer.
Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract, and Expert Gate’s failure to deliver any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
If Expert Gate fails to deliver the Goods (or any instalment) for any reason other than any cause beyond Expert Gate’s reasonable control or the Customer’s fault, and Expert Gate is accordingly liable to the Customer, Expert Gate’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
If the Customer fails to take delivery of the Goods or fails to give Expert Gate adequate delivery instructions at the time stated for delivery (otherwise than because of any cause beyond the Customer’s reasonable control or because of Expert Gate’s fault) then without limiting any other right or remedy available to Expert Gate, Expert Gate may:
store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage or
sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract or
where the Goods are not readily resalable for any reason, dispose of them and charge the Customer for the price of the Goods under the Contract.
Installation of the Goods and Completion of the Services
Where Expert Gate has agreed in writing to install the Goods:
Before the agreed delivery date, the Customer must;
inform Expert Gate of any problems Expert Gate or its agents may encounter in gaining access to the premises or any part of the premises in which the Goods are to be installed;
provide Expert Gate with all information Expert Gate requires in relation to the fabric and structure of the premises (or part thereof) in which or to which the Goods are to be installed;
ensure that part of the premises in or on which the Goods are to be installed are clear, clean and fully accessible to carry out the Services (including, without limitation, any removal of the Customer’s goods in accordance with clause 7.3 below and the installation of the Goods); and
ensure Expert Gate has access to a safe electricity supply sufficient for Expert Gate’s purposes. Expert Gate reserves the right to recover from the Customer all costs and expenses incurred by Expert Gate as a result of the Customer’s failure to comply with these obligations.
If Expert Gate encounters any conditions at the premises which the Customer has not informed Expert Gate about or which were not immediately apparent when Expert Gate inspected the premises before commencing installation of the Goods, Expert Gate shall be entitled to change the design and/or specification of the Goods and/or any specifications in the Services in accordance with clauses 4.3 to 4.5 inclusive above.
Unless otherwise agreed in writing between the authorised representatives of the Customer and Expert Gate, if any goods or assets of the Customer are to be removed or replaced by or in the course of installation of the Goods, such goods or assets shall upon removal or replacement belong to and be the absolute property of Expert Gate who shall be free to use or dispose of the same as Expert Gate sees fit.
Expert Gate accepts no responsibility for any inevitable damage caused by the proper installation of the Goods, and the Customer shall, unless otherwise agreed in writing by Expert Gate, be responsible for all works of making good and redecoration required upon completion of such installation.
Any dates quoted for completion of the Services are approximate only, and Expert Gate shall not be liable for any delay in completion of the Services however caused. Time for completion shall not be of the essence of the Contract unless previously agreed by Expert Gate in Writing. Expert Gate may provide the Services before the quoted date upon giving reasonable notice to the Customer.
Where the Services are to be provided in instalments, each provision shall constitute a separate contract, and Expert Gate’s failure to deliver any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
Completion of the Services shall be made by Expert Gate providing the Services in accordance with clause 3.3.3 above.
Once the installation of the Goods is completed;
Expert Gate will leave the site and the premises clear of all rubbish and unused materials which had been brought to the site by Expert Gate or its agents, employees or subcontractors; and
the Customer will be asked to sign an acceptance form to confirm its acceptance of Expert Gate’s obligation to install the Goods being fulfilled. The Customer must inspect the Goods thoroughly and test any fittings and fixtures to ensure that it is satisfied with them. If the Customer finds any faults, they must be noted on the acceptance form.
If Expert Gate fails to complete the Services (or any instalment) for any reason other than any cause beyond Expert Gate’s reasonable control or the Customer’s fault, and Expert Gate is accordingly liable to the Customer, Expert Gate’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar services to replace those not provided over the price of the Services.
Risk and property
Risk of damage to or loss of the Goods shall pass to the Customer:
in the case of Goods to be delivered at Expert Gate’s premises, at the time when Expert Gate notifies the Customer that the Goods are available for collection; or
in the case of Goods to be delivered and installed by Expert Gate, on the completion of the installation of the Goods, or if the Customer wrongfully fails to allow completion of the installation of the Goods, the time of delivery in accordance with clause 8.1.3; or
in the case of any other Goods to be delivered other than at Expert Gate’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Expert Gate has tendered delivery of the Goods.
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Customer until Expert Gate has received in cash or cleared funds payment in full of the price of the Goods and the Services and all other goods agreed to be sold or services agreed to be supplied by Expert Gate to the Customer for which payment is then due.
Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as Expert Gate’s fiduciary agent and bailee. The Customer shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as Expert Gate’s property, but the Customer may resell or use the Goods in the ordinary course of its business.
Until the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), Expert Gate may at any time require the Customer to deliver up the Goods to Expert Gate and, if the Customer fails to do so immediately, enter on any premises of the Customer or any third party where the Goods are stored and remove and repossess the Goods or any part thereof.
Where Goods have been removed according to clause 8.4 above, Expert Gate will not be liable to fill any hole(s) in the wall(s) of the premises which have been made as a necessary result of proper removal of the Goods or the fixings attached to the premises.
The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness of any of the Goods which remain the property of Expert Gate, but if the Customer does so, all money owing by the Customer to Expert Gate shall (without limiting any other right or remedy of Expert Gate) immediately become due and payable.
Warranties and liability
Subject to the following provisions, Expert Gate warrants that;
all Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire
all Services will be carried out with reasonable care and skill.
The above warranties are given by Expert Gate subject to the following conditions:
Expert Gate shall be under no liability in respect of any defect in the Goods or Services arising from any drawing, design or specification supplied by the Customer;
Expert Gate shall be under no liability in respect of any defect arising from fair wear and tear misuse (including without limitation any use which is likely to place undue strain on any part of the Goods or use otherwise than as recommended by Expert Gate), wilful damage, negligence, damage caused by abnormal weather conditions including floods and storms, failure to follow Expert Gate’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods or the fixings to which the Goods are attached without Expert Gate’s approval;
Expert Gate shall be under no liability under the above warranties (or any other warranty, condition or guarantee) if the total price for the Goods and Services has not been paid by the due date for payment;
The Warranty in clause 9.1.1 does not extend to Goods, parts, materials or equipment not manufactured by Expert Gate, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee (and for the period of the same) as is given by the manufacturer to Expert Gate;
Expert Gate shall be under no liability under the warranty in clause 9.1.1 unless the claim is notified to Expert Gate within the period of the warranty or guarantee given by Expert Gate in respect of the goods;
Expert Gate shall be under no liability under the warranty in clause 9.1.2 unless the claim is notified to Expert Gate within 30 days from the date the alleged breach of the warranty in clause 9.1.2 has occurred.
Subject as expressly provided in these terms, and except where the goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
Where the goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statement) Order 1976), the consumer’s statutory rights are unaffected by these Terms.
Where a valid claim regarding any of the goods and/or services under the warranties in clause 9.1 is notified to Expert Gate following these terms. Expert Gate may repair or replace the goods (or part in question) or rectify the services free of charge or, at Expert Gate’s sole discretion, refund to the Customer the price of the goods (or a proportionate part of the price) or the charge for the services (or a proportionate part of the charge) in which case Expert Gate shall have no further liability to the Customer.
Except in respect of death or personal injury caused by Expert Gate’s negligence or liability for defective products under the Consumer Protection Act 1987, Expert Gate shall not be liable to the Customer because of any representation (unless fraudulent) or any implied warranty, condition or other term or any duty at common law, or under the express terms of the Contract, for loss of profit or any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by negligence of Expert Gate, its employees or agents or otherwise) which arise out of or in connection with the supply of goods and/or services following the Contract or at all) or their use or resale by the Customer and the entire liability of Expert Gate under or in connection with the Contract shall not exceed the aggregate price of the goods and the charge of the services, except as expressly provided in these terms.
Expert Gate shall have no liability to the Customer for any loss, damage, costs, expenses, or other claims for compensation arising from any incomplete, incorrect, or inaccurate information or instructions supplied by the Customer.
Expert Gate shall not be liable to the Customer or deemed to be in breach of the Contract because of any delay in performing, or any failure to perform, any of Expert Gate’s obligations in relation to the goods or services, if the delay or failure was due to any cause beyond Expert Gate’s reasonable control. Without limiting the preceding, the following shall be regarded as causes beyond Expert Gate’s reasonable control:
Act of God, explosion, flood, storm, fire or accident;
War or threat of war, sabotage, insurrection, civil distribution or requisition;
acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any government, parliamentary or local authority
import or export regulations or embargoes;
strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Expert Gate or the Customer or a third party);
difficulties in obtaining raw materials, labour, fuel, parts or machinery;
power failure or breakdown in machinery
Indemnity
If a claim is made against the Customer that the goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of a drawing, design or specification supplied by the Customer, Expert Gate shall indemnify the Customer against all loss, damages, costs and expenses awarded against or incurred by the Customer in connection with the claim, or paid or agreed to be paid by the Customer in settlement of the claim, provided that:
Expert Gate is given complete control of any proceedings or negotiations in connection with the claim;
the Customer shall give Expert Gate all reasonable assistance for any such proceedings or negotiations;
except according to a final award, the Customer shall not pay or accept the claim or compromise any such proceedings without the consent of Expert Gate (which shall not be unreasonably withheld);
the Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover that the Customer may have about such infringement, and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
Expert Gate shall be entitled to the benefit of, and the Customer shall accordingly account to Expert Gate for, all damages and costs (if any) awarded in favour of the Customer which are payable by, or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
without limiting any duty of the Customer at common law, Expert Gate may require the Customer to take such steps as Expert Gate may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which Expert Gate is liable to indemnify the Customer under this clause
Insolvency of Customer
This clause 11 applies if:
The Customer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters into administration or goes into liquidation (otherwise than for amalgamation or reconstruction), or a moratorium comes into force in respect of the Customer (within the meaning of the Insolvency Act 1986); or
an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
the Customer ceases or threatens to cease, to carry on business; or
Expert Gate reasonably apprehends that any of the events mentioned above is about to occur to the Customer accordingly
If this clause applies, then, without limiting any other right or remedy available to Expert Gate, Expert Gate may cancel the Contract or suspend any further deliveries of goods and/or further performance of services under the Contract without any liability to the Customer, and if the goods have been delivered or the services (or part thereof) have been supplied but not paid for the price (or the price for the goods (or the parts thereof) supplied) shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
General
A notice required or permitted to be given by either party to the other under these terms shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified under this provision to the party giving the notice.
No waiver by Expert Gate of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision
If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected
The laws of England shall govern the Contract, and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts
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