Definitions
1.1 “Seller” shall mean SweepSmart, its successors and assigns or any person acting on behalf of and with the authority of SweepSmart.
1.2 “Buyer” shall mean the person or entity described as such on the invoices, application for credit, quotation, work authorisation or any other forms to which these terms and conditions apply, and shall include any person acting on behalf of and with the authority of such person or entity.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Buyer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Buyer.
1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this
contract.
2. Application of these terms and conditions to consumers
2.1 Where the Buyer buys Goods as a consumer these terms and conditions (in particular clauses relating to Risk, Disclaimer, Defects, Returns, Warranties, and Limitation of Liability) shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3. Acceptance
3.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be amended with the written consent of the Seller.
3.4 The Buyer undertakes to give the Seller at least fourteen (14) days notice of any change in the Buyer’s name, address and/or any other change in the Buyer’s details.
4. Price And Payment
4.1 The Price shall be the Seller’s quoted Price (subject to clause 4.2) which shall be binding upon the Seller.
4.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.
4.3 At the Seller’s sole discretion a deposit may be required.
4.4 Time for payment for either Goods or Services shall be of the essence. 100% payable 14 days after completion.
4.5 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit.
4.6 VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Goods
5.1 Delivery of the Goods shall take place when the Buyer takes possession of the Goods at the Buyer’s address or other address nominated by the Buyer (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier).
5.2 Delivery costs will be quoted separately if delivery is required.
5.3 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
5.5 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.6 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6. Risk
6.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7. Title
7.1 It is the intention of the Seller and agreed by the Buyer that ownership of the Goods shall not pass until:
(a) the Buyer has paid all amounts owing for the particular Goods; and
(b) the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer.
7.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Buyer are met; and
(b) until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made;
(d) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods; and
(e) the Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller; and
(f) the Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller;
(g) the Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller; and
(h) the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership
of the Goods may not have passed to the Buyer; and
(i) until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products.
8. Defects
8.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.
8.2 No Goods shall be accepted for return except in accordance with 8.1 above.
9. Returns
9.1 Returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of clause 8.1; and
(b) the Seller has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date; and
(d) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 The Seller may (at its discretion) accept the return of non-defective Goods for credit or refund but this may incur a handling fee of at least 30% of the value of the returned Goods plus any freight.
10. Warranty
10.1 Subject to the conditions of warranty set out in Clause 10.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery (time being of the essence), then the Seller will either (at the Seller’s sole discretion) repair the defect or remedy the workmanship.
10.2 The conditions applicable to the warranty given by Clause 10.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) Failure on the part of the Buyer to properly maintain any Goods e.g. abide by required service intervals; or
(ii) Failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or
(iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) Fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
(c) In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Buyer’s claim.
10.3 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. Whilst the Seller shall honour such warranty the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
11. Sale of Goods Act 1979 and Supply of Goods and Services Act 1982
11.1 This agreement is subject to the provisions of the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 (or any replacement or re-enactment thereof) in all cases except where the Buyer is contracting within the terms of a trade/business (which cases are specifically excluded).
11.2 Notwithstanding clause 11.1 nothing in this agreement is intended to have the effect of contracting out of any applicable provisions the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 or any laws or legislation governing the rights of consumers, except to the extent permitted by those Acts, laws or legislation.
12. Intellectual Property
12.1 The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Buyer’s order.
13. Default & Consequences of Default
13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
13.2 The Seller may charge interest on overdue invoices in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
13.3 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
13.4 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
13.5 If any account remains overdue after thirty (30) days then an amount of ₤20.00 shall be levied as an administration fee and shall be levied for each month that the account remains overdue, which sums shall become immediately due and payable.
13.6 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
13.7 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) The Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.7.
14. Cancellation
14.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice, the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
14.2 In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Just prior to installation or fitting, the Seller prepares the materials, tools and labour required. It is not possible to reschedule this process less than (7) seven working days in advance of fitting without incurring costs. Cancellation after this deadline will result in financial charges for the Buyer and Clause 15.2 will apply.
14.4 Buyers may cancel Goods which are stock items within 7 days of ordering them without financial penalty apart from any credit card processing fees where relevant.
14.5 Bespoke (made-to-measure) Goods ordered for the Buyer cannot be cancelled and Clause 15.2 will apply.
14.6 Sweeping appointments may be cancelled at no charge if cancellation notice is given outside of 48hrs prior to the agreed appoontment. If cancellation is given within 48hrs there will be a £40.00 fee – this fee is also applied if it is not possible to gain access to the property on the day of visit arranged.
14.7 Pressure test/ CCTV inspection appointments may be cancelled at no charge if cancellation notice is given outside of 48hrs prior to the agreed appointment. If cancellation is given within 48hrs a £50.00 fee is applied. An £80.00 fee is applied if it is not possible to gain access to the property on the day of visit arranged.
14.8 If the chimney cannot be swept/tested or inspected through no fault of SweepSmart due to pre-existing defects blockages or dangerous occurrences – SweepSmart reserve to right to charge the full agreed fee.
14.8 The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller to:
(a) collect, retain and use any information about the Buyer, for the purpose of assessing the Buyer’s creditworthiness or marketing products and services to the Buyer; and
(b) to disclose information about the Buyer, whether collected by the Seller from the Buyer directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing a default by the Buyer on publicly accessible credit reporting databases.
14.9 The Seller may also use information about the Buyer to monitor and analyse its business. In this connection the Buyer authorises the Seller to disclose personal information to agents or third parties engaged by the Seller.
14.10 The Buyer consents to the transfer of information outside of the European Economic Area for the purposes listed above.
14.11 Where the Buyer is an individual the authorities under (clause 14.6) are authorities or consents for the purposes of the Data Protection Act 1998.
14.12 The Buyer shall have the right to request the Seller for a copy of the information about the Buyer retained by the Seller and the right to request the Seller to correct any incorrect information about the Buyer held by the Seller.
15. Limitation of Liability
15.1 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit or goodwill) suffered by the Buyer or any third party arising out of a breach by the Seller of these terms and conditions.
15.2 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages and the Seller’s liability (if any) whether in contract, tort or otherwise in respect of any defect in the Goods, or for any breach of these terms and conditions, or of any duty owed to the Buyer in connection with them shall be limited to the amount of the Price.
15.3 For the avoidance of doubt, nothing in these terms and conditions shall exclude or restrict the Seller’s liability to any person for death or personal injury to that person resulting from the Seller’s negligence.
16. Buyer’s Disclaimer
16.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Buyer by the Seller and the Buyer acknowledges that the Goods are bought relying solely upon the Buyer’s skill and judgment.
17. Accessibility
17.1 The Seller requires that prior to installation work, the Buyer rolls back carpeting from the fireplace and that the immediate area is cleared of furniture and electrical equipment.
17.2 Subsequent re-fitting of the carpet after completion of works is at the Buyer’s expense.
17.3 If new or replacement gas piping is required, unhindered access should be allowed to the nearest meter point.
18. Use of 3rd party suppliers
18.1 If the Buyer purchases any materials or equipment from a third party for installation, it is the Buyer’s responsibility to ensure that these items are suitable and meet all necessary specifications and regulations. If we are unable to carry out the installation due to the unsuitability of third-party purchased items, non-compliance with safety standards, or any other reasons beyond our control, the pre-agreed labour charge for the day will still be applied.
18.2 Buyer’s chimney must be swept and tested prior to installation of any Goods. The Seller normally does this as part of their survey.
18.3 If the Buyer prefers to use his own chimney sweep, the 3rd party supplier must issue a BS 6461 sweeping certificate from the Guild of Master Chimney Sweeps or NACS to share with the Seller.
18.4 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.5 These terms and conditions and any contract to which they apply shall be governed by the laws of England and Wales and are subject to the jurisdiction of the courts.
18.6 The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Buyer by the Seller.
18.7 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
18.8 The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Buyer of such change. Except where the Seller supplies further Goods to the Buyer and the Buyer accepts such Goods, the Buyer shall be under no obligation to accept such changes.
