Terms of Business
1. About us
1.1 Etex Building Performance Limited (company number: 02163844) a company registered in England and Wales whose registered office is at Gordano House, Marsh Lane, Easton-In-Gordano, Bristol, BS20 0NE ("Etex") operates the websites www.promat-direct.co.uk aand www.siniat-direct.co.uk.
1.2 To contact Etex, email the customer service team at firstname.lastname@example.org. How to give Etex formal notice of any matter under the Contract is set out in clause 13.1 below.
2.1 These terms and conditions (“Conditions”) apply to the order by you, the customer ("Customer") for the supply of goods by Etex to the Customer ("Contract"). All Goods supplied by Etex are supplied on these Conditions and no variation of these Conditions shall have effect unless expressly accepted by a Director of Etex in writing.
2.2 No other terms are implied by trade, custom, practice or course of dealing. The Contract is the entire agreement between Etex and the Customer in relation to its subject matter and the Customer acknowledges that it has not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
2.3 If there is any inconsistency between these Conditions and any other terms and conditions subject to which an order is made or purported to be made by the Customer then these Conditions shall prevail.
2.4 Etex only intends to supply goods to Customers in a business to business context and not to consumers. If the Customer is a consumer (being an individual acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession) then it must not proceed to place an order for goods or to form a Contract with Etex. The Customer warrants that it is not a consumer and that it is acting solely for purposes relating to the Customer's trade, business, craft or profession, whether acting personally or through another person acting in the Customer's name or on the Customer's behalf. Etex reserves the right to cancel any order for Goods where Etex identifies that the order has been placed by a consumer and not in a business to business context.
3. Orders and cancellation
3.1 The Customer should follow the onscreen prompts to place an order. Each order is an offer by the Customer to buy the goods specified in the order ("Goods") subject to these Conditions.
3.2 Etex's order process allows the Customer to check and amend any errors before submitting the Customer's order to Etex. The Customer should carefully check the order before confirming it. The Customer shall be responsible for ensuring the accuracy of any order it submits to Etex. The quantity, quality, description and any specification of the Goods shall, subject to clause 3.5, be as set out in the Customer’s order.
3.3 After the Customer places an order, the Customer will receive an email from Etex acknowledging receipt of the order, but this does not mean that the order has been accepted by Etex. Etex's acceptance of the Customer's order will take place as described in clause 3.4 below.
3.4 Etex's acceptance of the Customer's order takes place when Etex sends the email to the Customer confirming that the relevant Goods have been dispatched, at which point the Contract between Etex and the Customer comes into existence.
3.5 Etex reserves the right at any time to make changes to the specification of the Goods which are required to conform with any applicable safety or other statutory requirements.
3.6 Returns are not accepted.
4.1 The price of the Goods shall be the price as quoted on Etex's site at the time that the Customer submits its order, regardless of any previous price quoted (the “Price”). Any quoted prices are for a specific quantity of Goods and may not apply accordingly to different quantities.
4.2 Etex takes all reasonable care to ensure that the prices are correct at the time when the relevant information was entered onto the system. However, it is always possible that, despite Etex's reasonable efforts, some of the Goods on Etex's site may be incorrectly priced. Etex will normally check prices as part of Etex's dispatch procedures so that:
(a) where the Goods' correct price is less than the price stated on Etex's site, Etex will charge the lower amount when dispatching the Goods to the Customer; and
(b) if the Goods' correct price is higher than the price stated on Etex's site, Etex will contact the Customer as soon as reasonably possible to inform the Customer of this error and will give the Customer the option of continuing to purchase the Goods at the correct price or cancelling the relevant order. Etex will not process the Customer's order until it has the Customer's instructions. If Etex is unable to contact the Customer using the contact details provided during the order process, Etex shall treat the order as cancelled and will notify the Customer in writing. However, if Etex mistakenly accepts and processes the Customer's order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by the Customer as a mispricing, Etex may cancel the supply of Goods and refund the Customer any sums already paid.
4.3 The Price is subject to increase or decrease upon notice to the Customer in the event of: any change to Etex in the cost of supplying the Goods to the Customer (including without limitation, any change in the cost of raw materials, labour or supplies); any change required by the Customer to the delivery dates, quantity or specification of the Goods; or any failure by the Customer to provide Etex with accurate information or instructions. The Price is fixed only where specifically stated in writing by Etex and for the period stated. The price of Goods may change from time to time, but changes will not affect any order the Customer has already placed.
4.4 Unless otherwise agreed in writing, the Price is on an ex-works basis and does not include delivery charges. Etex's delivery charges are as advised to the Customer during the check-out process, before the Customer confirms its order. The Customer shall pay to Etex the costs specified in clauses 1, 6 and 1.1 of these Conditions in addition to the Price.
4.5 The Price is exclusive of Value Added Tax (where applicable), which shall be paid by the Customer in addition to the Price in accordance with clause 10 of these Conditions.
4.6 The Customer can only pay for Goods using a debit card or credit card. Etex accept the following cards: Visa, Mastercard and Maestro. Payment for the Goods and all applicable delivery charges is in advance. Etex will charge the Customer's debit or credit card at the time that the Order is placed on the website by the Customer and will endeavour to dispatch the Goods on the same day. The Customer will only be able place an Order for the relevant Goods if stock is available.
5. Accuracy and description of goods
5.1 Any descriptions, specifications, drawings, price lists, samples, dimensions or other information contained in advertising or other materials produced by or on behalf of Etex (“Information”) are approximate and are intended merely to present a general idea of the Goods. The images of the Goods on Etex's site are for illustrative purposes only. Although Etex has made every effort to display the colours accurately, Etex cannot guarantee that the Customer's display of the colours accurately reflects the colour of the Goods. The colour of the Customer's goods may vary slightly from those images. The Customer shall not be entitled to rely on the Information and the Information shall not constitute any representation by Etex or form part of the Contract and shall not give rise to any independent or collateral liability upon Etex.
5.2 The packaging of the Goods may vary from that shown on images on Etex's site.
5.3 Any advice or recommendation given by Etex or any of its employees, agents or sub-contractors is for general information only and Customer shall not rely on any such advice or recommendation.
6.1 Unless otherwise agreed, delivery of the Goods shall be made by Etex delivering the Goods to the delivery location as set out in the Customer's Order. Deliveries may require a recipient of the consignment to sign an ESCD as proof of delivery. Any damages or shortages must be marked on the delivery note upon delivery. We currently only deliver to the UK and Northern Ireland (Excludes Channel Islands and Isle of Man). Free delivery excluded from some remote areas as shown at checkout.
6.2 Etex shall use all reasonable efforts to deliver the Goods by the agreed delivery date but any such delivery date is approximate only and time for delivery is not of the essence. Etex shall not be liable for any losses including loss of profit, costs, charges, expenses or damages howsoever caused and incurred by the Customer as a consequence of late delivery. The date for delivery shall be extended for a reasonable period if there is any delay in delivery due to any Event of Force Majeure (as defined in clause 11 of these Conditions).
6.3 If the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Etex to deliver any individual instalment shall not entitle the Customer to cancel the entire Contract or treat it as cancelled.
6.4 Delivery is completed once the Goods have been unloaded at the address for delivery set out in the Customer's order.
6.5 If the Customer fails to take delivery of the Goods, Etex shall be entitled to: (a) store the Goods until the Customer takes delivery of them and to charge the Customer for all reasonable costs of storage (including insurance during storage); or (b) sell the Goods at the best price reasonably obtainable and to charge the Customer any shortfall between the Price and the amount received by Etex upon sale.
6.6 The delivery price shall be as specified in the Order and will depend on the quantity of the Goods ordered and the location of the Customer's delivery address. Section 32(2) of the Sale of Goods Act 1979 shall not apply. Etex is not required to give the Customer the notice specified in section 32(3) of the Act.
6.7 Etex reserves the right to increase the delivery price if at any time the cost to Etex of delivering the Goods increases for any reason, including, without limitation: any increase in the cost of fuel, road tax, tolls or similar or increase in the haulage costs of the appointed carrier; any closure, partial closure or other factor which renders any applicable road unsuitable for transporting the Goods; any change in the quantity or specification of the Goods, the proposed delivery date or address for delivery; or any failure by the Customer to provide Etex with accurate delivery information.
6.8 Etex shall not be liable to the Customer for any failure to deliver or any delay in delivering Goods to any site where access cannot be obtained by the relevant delivery vehicles.
6.9 Unless otherwise agreed in writing, Etex is responsible for loading and unloading the Goods. Delays in loading or unloading caused by the Customer may involve Etex levying additional charges on the Customer.
7. Passing of risk
7.1 Risk of loss of or damage to the Goods shall pass to the Customer upon the completion of unloading of the Goods at the delivery address.
8.1 Etex warrants that it has exercised reasonable skill and care in the design and manufacture of the Goods and that on delivery the Goods shall (subject to clause 5) conform in all material respects with their description, but no representation or warranty is given by Etex as to the suitability or fitness of the Goods for any or any particular purpose whether made known to Etex or not and the Customer shall satisfy itself in this respect.
8.2 Except as expressly stated in these Conditions, Etex does not give any representations, warranties or undertakings in relation to the Goods. Any representation, condition or warranty which might be implied or incorporated into these Conditions by statute, common law or otherwise is excluded to the fullest extent permitted by law.
8.3 The Goods are intended for use only in the UK and Ireland. Etex does not warrant that the Goods comply with the laws, regulations or standards outside the UK and Ireland.
9. Limitation of liability
9.1 Any claim relating to the quality, quantity or non-receipt of Goods must be noted on the consignment note (proof of delivery) at the time of delivery and notified in writing via email to Etex within two days of delivery. Claims will not be accepted if Goods are not checked by the Customer at the time of delivery. In the case of defect which was not apparent on reasonable inspection, this must be notified in writing within 7 days of discovery of the defect. In the absence of receipt of such notice, and save as provided for below, the customer shall not be entitled to reject the Goods and Etex shall be discharged from all liability or responsibility to the Customer whatsoever in respect of the quality or quantity of Goods ordered by the Customer.
9.2 Etex shall be under no liability to the Customer in respect of any defect in the Goods:
(a) arising as a result of any fair wear and tear, or any repair, alteration, abnormal use, misuse, neglect, wilful damage, or any failure by the Customer to follow Etex's instructions in relation to the use or installation of the Goods; or
(b) if Etex has not been given a reasonable opportunity to inspect the Goods following discovery of the defect; or
(c) if the total price of the Goods has not been paid by the due date for payment; or
(d) if the Customer alters or repairs the Goods without the prior written consent of Etex; or
(e) if the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory requirements.
9.3 Save as herein specially provided and save to the extent that the same cannot by law be excluded, all conditions, warranties or representations, whether express or implied, statutory or otherwise in relation to the Goods are hereby excluded. Etex will only be liable for the Goods' failure to comply with the warranty as set out in clause 8.1 to the extent as set out in this clause 9.
9.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9.5 Subject to clause 9.2, where it can be shown to the reasonable satisfaction of Etex that the Goods are defective, and if the Customer gives Etex a reasonable opportunity to examine the Goods and (if requested to do so) returns the Goods to Etex at the Customer's cost, Etex shall at its sole discretion either replace the defective Goods in question or refund the Price paid by the Customer in respect of the defective Goods and Etex shall have no further liability to the Customer in respect of those defective Goods.
9.6 Save as provided for in clause 9.7 of these Conditions, Etex will under no circumstances be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profit, revenue or business;
(b) loss or corruption of data, information or software;
(c) loss of contract, production or opportunity;
(d) loss of anticipated savings
(e) loss of goodwill; or
(f) any indirect or consequential loss.
9.7 Nothing in these Conditions limits or excludes Etex's liability for:
(a) any death or personal injury caused by its negligence; or
(b) any breach of its obligations implied by Section 12, Sale of Goods Act 1979; or
(c) any fraud or fraudulent representation; or
(d) any other liability that cannot be limited or excluded liability by law.
9.8 Save as provided for in clause 9.7 of these Conditions, Etex's total liability to the Customer for all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed 100% of the price of the relevant Goods.
9.9 In the event that the Customer or any third party alters or modifies the Goods without Etex’s prior written consent and any claims are asserted against Etex by reason of such alteration or modification, the Customer shall indemnify Etex against any resulting damages, liabilities, expenses and costs suffered or incurred by Etex.
9.10 These Conditions also apply to any repaired or replacement Goods supplied to the Customer by Etex.
10.1 The Customer must pay the Price and any costs payable under clauses 1, 6 and 1.1 of these Conditions in advance together with any value added tax payable by the Customer in respect of the Goods. Time for payment of the Price shall be of the essence of the Contract. All payments shall be made in full without deduction or withholding whether in respect of any credit, setoff, counterclaim or otherwise.
10.2 The Customer shall own the Goods once Etex has received the Price in full, including of all applicable delivery charges.
11. Force majeure
11.1 Etex shall not be liable whether in contract, tort (including negligence) or otherwise to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of its obligations in relation to the Goods if the failure was due to any act or event beyond Etex's reasonable control (an “Event of Force Majeure”). Where Etex is affected by an Event of Force Majeure, it shall be entitled at its option either to cancel the Contract or to extend the time of its performance by a period equivalent to that during which its performance has been prevented by the Event of Force Majeure.
11.2 The Customer may cancel the Contract affected by an Event of Force Majeure which has continued for more than 30 days. To cancel please contact Etex. If the Customer opts to cancel, the Customer will have to return (at Etex's cost) any relevant Goods the Customer has already received and Etex will refund the price the Customer has paid, including any delivery charges.
a) the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or becomes bankrupt or goes into liquidation;
(b) or an encumbrancer takes possession of the whole or any part of the Customer’s property or assets;
(c) the Customer ceases or threatens to cease to trade; or
(d) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of the Customer being notified in writing to do so, then, without prejudice to any other right or remedy available to Etex, Etex shall be entitled without notice to suspend or cancel the Contract or the delivery of the whole or any part of the Customer’s order for Goods and if any Goods have been delivered but not paid for, the Price in respect of those Goods, shall become immediately due and payable.
12.2 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of this Contract, shall remain in full force and effect.
13.1 Any notice given by either party shall be in writing and delivered to the other party at its registered office, principal place of business or such other address as has been notified to the party giving the notice. A notice shall be deemed to have been served at the time of delivery if delivered personally, 48 hours after posting for a UK address, 96 hours after posting for an overseas address, and if sent by email, at 9.00 am the next working day after transmission.
13.2 When we refer to "in writing" in these Terms, this includes email.
13.3 Any variation of the Contract only has effect if it is in writing and signed by both the Etex and the Customer.
13.4 If any provision of these Conditions is found by any court to be invalid or unenforceable in whole or part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
13.5 Etex may, in whole or part, release, compound, compromise, waive or postpone, in its absolute discretion, any liability owed to it or right granted to it under these Conditions without in any way prejudicing or affecting its rights in respect of any other right or liability.
13.6 No term of these Conditions or a Contract shall be enforceable pursuant to the Contracts (Rights of Third Parties Act) 1999 or otherwise by any person not a party to them.
13.7 Etex may assign or transfer its rights and obligations under the Contract to another entity. The Customer may only assign or transfer its rights and obligations under the Contract with Etex's prior written consent.
13.8 A reference to a statutory provision includes a reference to the statutory provision as modified or re-enacted or both from time to time and any subordinate legislation made under the statutory provision.
13.9 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales, and each party irrevocably agreed that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.