Terms of Service
1. Definitions and Interpretation
The following Terms and Conditions of Sale, hereinafter called "T&Cs", apply to the sale or loan of Goods supplied by Formm Ltd, hereinafter called "The Company". These T&Cs supersede any previous T&Cs of sale issued by The Company to their client, hereinafter called the "Buyer". No alteration, addition or variation to these T&Cs, in part or the whole, shall be applicable unless agreed in writing by a Director of The Company. The word "Goods" shall include any product or bespoke product or service supplied by The Company in part or the whole. The word "Contract" shall mean the Contract between The Company and the Buyer for the sale and purchase of Goods in accordance with these T&Cs and the Contract constitutes the entire agreement between The Company and the Buyer and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them , whether written or oral, relating to it's subject matter.
2. Estimates and Quotations
Estimate: An Estimate, or Estimation, is a formal document issued by The Company to a Buyer within a hard copy or electronic document and headed "Estimate" or "Estimation". It is a preliminary indication of the cost of Goods and is subject to variation. It is not a Quotation and cannot be relied on as such.
Quotation: a Quotation is a formal offer document issued by The Company to a Buyer within a hard copy or electronic document and headed "Quotation". It is a defined statement of cost to be charged by The Company to the Buyer for the supply of Goods to an agreed and stated specification including, but not limited to, design, dimension, material and finish, quantity, delivery and installation. Prices quoted will be valid for 1 calendar month from the date of the Quotation and thereafter may be subject to revision and alteration of cost unless otherwise specified. In the event of unforseen difficulties arising, or any other circumstantial changes, the Quotation price may be revised to reflect the situation at hand before or after commencement of work. All changes must be approved by the Buyer prior to any changes being implemented.
Quotations are calculated on the basis of free access and unimpeded working during normal working hours. Normal working hours are defined as 08:00 - 18:00hrs Monday to Friday excluding Bank Holidays unless otherwise agreed in writing.
3. Description and Definition of Goods
a] Bespoke Goods: Bespoke Goods are those subject to individual design and manufacture and can include fixed or loose architectural and/or supporting structures, furniture, fixtures and fittings. The Buyer, the Buyer's architect or agent is entirely responsible for any such bespoke design or associated scheme. Further to a request from the Buyer for an estimate, estimation or quotation, The Company will make a request for the Buyer's design requirements including, but not limited to, architectural or other design requirements, style, proportions, measurements, required materials [whether they match an existing design or otherwise], specification and texture of textiles, locking, latching, fastening, bolting mechanisms etc of windows, doors, hatches and roof lights,. colour, finish, glazing styles and glazing specifications, details of floor and carpet design, paint and varnish specifications etc. The Buyer will be entirely responsible for their own design requirements and design specifications in terms of performance, workability and fitness for purpose.The Company can assist in the process of design by sharing of experience and the like without responsibility and liability for the performance, workability and fitness for purpose or any other eventuality concerning the end design unless such design is expressley stated in the scope of works of a design and build Contract accepted by The Company.
b] Goods manufactured by others: Goods manufactured by others includes bespoke and standard production architectural structures, fixed and loose furniture, fixtures and fittings and is subject to approval by the Buyer. Inclusion of Goods manufactured by others on a quotation issued by The Company is on the understanding that the Buyer is satisfied as to the performance, workability and fitness for purpose of them. The Goods manufactured by others are subject to revision by the manufacturer without notice and without affecting the validity of these T&Cs in terms of change in fabric, dimensions and design as it thinks reasonable and desirable.
c] Any samples, drawings or advertising produced by the Company and any descriptions or illustrations contained in The Company's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any Contractual force.
d] Replication of existing design. If a Buyer makes a request for a new product to match an existing or original design, we will endeavour to match the specifications of the original design [like for like] at the sole risk of the Buyer. When matching an existing or original design, the source or original design may have unknown flaws that could render the product and any duplication of the product unfit in terms of performance, workability and fitness for purpose. The production and supply of Goods of unproven design will be at the sole risk of the Buyer and The Company will bear no responsibilty for it in terms of performance, workability and fitness for purpose.
e] It is the responsibility of the Buyer to examine the Goods for defects in materials and/or workmanship which would indicate the likelihood of the Goods causing danger or damage.
4. Buyer's Order
a] An "Order" shall mean the Buyer's order for the Goods, whether oral or in writing as set out in the Buyer's Purchase Order form or in the Buyer's written acceptance of The Company's written estimate, estimation or quotation. "Specification" shall mean any specification for the Goods, including any related plans and drawings, that is agreed by the Buyer and The Company.
b] The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these T&Cs. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate and must notify The Company immediately of any discrepancies in The Company's written acceptance of the order.
c] The Order, with or without accompanying deposit, shall only be deemed to be accepted when The Company issues a written acceptance of the Order at which point the Contract shall come into existence and these T&Cs will come into effect.
d] Once the Order is received and a Contract is in force, any additional Goods found necessary or desirable would be subject to a separate or revised or "Extra to Contract" Quotation and approval by the Buyer and The Company and subsequent Order issued by the Buyer and accepted by The Company.
5. The Contract
a] These T&Cs apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
b] A Contract with The Company constitutes an offer by the Buyer to purchase Goods in accordance with these T&Cs.. The Buyer is deemed to have read and satisfied themselves of the accuracy and content of the Contract offer in terms of specification, charges, price and meaning of terms and descriptions as outlined in a document headed and conspicuously identified as "Quotation" supplied by The Company. The Buyer acknowledges that they have not relied on any statement, promise, representation, assurance, warranty or offer which is not set out in a document headed and conspicuously identified as "Estimate", "Estimation" or "Quotation" supplied by The Company. Any verbal estimate given to the Buyer by The Company will always be supported by a written Estimate, Estimation or Quotation.
c] Once in place, the Contract cannot be superseded by any other agreement or Contract either written or verbal, signed or unsigned, as this instrument contains the entire agreement of The Company and the Buyer with respect to the subject matter hereof and there is no other promise, representation, warranty, usage or course of dealing affecting it. To this end any 'previous agreements clause' of any subsequent contractual document, whether signed as part of a later written Contract with the Buyer or not will not be accepted as a variation in or to this original Contractual agreement.
d] Contract Duration: An approximate duration time for work to be carried out can be found on our quotation or outline programme. The 'Contract Duration' is to be used as a guide only and will not affect the agreed Contract price i.e. if a Contract takes longer than expected no extra charges will be levied unless previously agreed and conversely if good progress is made and a Contract takes less time to complete than expected, the Buyer will not expect to receive a discount.
6. Termination
a] Without limiting it's other rights or remedies, The Company may terminate the Contract with immediate effect by giving written notice to the Buyer if:
i] the Buyer commits a material breach of any term of the Contract and [if such a breach is remediable] fails to remedy that breach within 30 days of the Buyer being notified in writing to do so;
ii] the Buyer takes any step or action in connection with it's entering administration, provisional liquidation or any composition or arrangementwith it's creditors [other than in relation to a solvent restructuring], being wound up [whether voluntarily or by order of the court, unless for the purpose of a solvent re-structuring], having a receiver appointed to any of it's assets or ceasing to carry on business or, if the step is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
iii] the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of it's business, or;
iv] if the Buyer's financial position deteriorates to such an extent that in The Company's opinion the Buyer's capability to adequately fulfill it's obligations under the Contract has been placed in jeapordy.
b] Without limiting it's other rights or remedies, The Company may suspend provision of the Goods under the Contract or any other Contract between the Buyer and The Company if the Buyer becomes subject to any of the events listed in clause 6(a) (i) to (iv), or The Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
c] Without limiting it's other rights or remedies, The Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
d] On termination of the Contract for any reason the Buyer shall immediately pay to The Company all of the Company’s outstanding unpaid invoices and interest.
e] Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
f] Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
g] The Buyer or The Company may withdraw from the Quotation offer prior to commencement of works without sanction or penalty however any deposit paid by the Buyer will be used to pay for any bespoke materials ordered on the Buyer's behalf and any bespoke materials under these circumstances will be forwarded to the Buyer to include delivery costs. Any document produced by The Company without the heading "Quotation" will not be recognised or accepted as a valid offer of quotation and will not form a Contract.
7. Price, Payment and Taxes
a] The Company reserves the right to carry out all necessary credit checks into the credit worthiness of the Buyer prior to opening a credit account. Where the Buyer has a credit account with The Company, payment for Goods supplied by The Company shall be made not later than 30 days from the agreed valuation or invoice date unless otherwise agreed in writing. If payment is not received by the end of the 30 day period, The Company shall be entitled to charge interest on the sum outstanding at the rate of 3% per month or part thereof and suspend any further orders or performance of services to the Buyer. The Company may close the Buyer's account and cease to provide credit at any time at it's own discretion without giving reason for doing so.
b] Where the Buyer does not hold a credit account with The Company, The Company may, at it's sole discretion, demand whole or part payment prior to any Goods being supplied or bespoke materials being ordered from manufacturers.
c] Discounts and Retentions: prices are based on the understanding that no retentions are held unless previously arranged and authorised by The Company. No Main Contractor or Sub-Contractor discounts are given unless agreed and confirmed by The Company in writing.
d] Deposit payments, part and interim payments will be agreed prior to the commencement of works or during the Contract duration. The Company will issue a deposit invoice in circumstances including, but not limited to, the procurement of high value materials. Interim payments and final payment on completion of a Contract is not reliant on presentation of third party completion certificates with respect to NICEIC, Gas Safe or Building Control that are subject to remote administration. If full payment is not received in accordance with an agreed payment schedule Formm Ltd reserves the right to terminate the Contract and will recover all monies and costs owed by the Buyer.
e] All orders are subject to payment by the Buyer for any taxes or levies imposed by any Government or Authority applicable at the time and place of delivery. Such charges shall be paid in addition to the Nett amount of The Company’s invoice and The Company reserves the right to hold delivery until such charges are paid. This provision includes VAT applicable in the UK.
8. Delivery
a) The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after The Company notifies the Buyer that the Goods are ready. Any Delivery Location outside the UK must be agreed with The Company prior to placing an Order.
b) Free access is required at the Delivery Location for the delivery of building materials, plant, machinery, skips etc as and when necessary to complete the Contract within the programme. Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
c) Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by force majeure or the Buyer’s failure to provide The Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
d) If The Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement Goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by force majeure or the Buyer’s failure to provide The Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
e) If the Buyer fails to accept delivery of the Goods within three business days of The Company notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by force majeure or The Company’s failure to comply with it's obligations under the Contract:
(i) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third business day after the day on which the Company notified the Buyer that the Goods were ready; and
(ii) the Company shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
f) If ten business days after the day on which The Company notified the Buyer that the Goods were ready for delivery the Buyer has not accepted delivery of them, The Company may resell or otherwise dispose of part or all of the Goods.
g) If the Company delivers up to and including 5% more or less than the quantity of Goods ordered the Buyer may not reject them.
h) Claims for damage in transit or storage of an order must be specifically noted on the delivery receipt at the time of delivery. If any damage/loss or suspicion of damage/loss is noticed it must be noted as this will then become the prima facie evidence that the Goods were damaged in transit. Following this, notification must be made in writing within 1 working day of receipt of Goods, to both the carrier and The Company, followed by a complete claim in writing to the carrier and to The Company within 3 working days of receipt of the Goods.
9. Faulty, Damaged, Incorrect or Cancelled Goods
The Company may at its sole discretion accept the return of Goods within 10 days of delivery provided that all returned Goods are in perfect, re- saleable condition and are returned in their original packaging. All returned Goods are subject to a 20% restocking charge of the Nett value of the Goods. Original carriage charges are non-refundable. On The Company’s receipt and acceptance of Goods, The Company will arrange a credit to be sent to the Buyer. If the Buyer requires the returned Goods to be collected, these will be subject to a separate collection charge (by quotation).
Defects in quality and/or discrepancy of dimensions in any delivery shall not be grounds for cancellation of the remainder of the Order or Contract, which are of satisfactory quality and fit for the purpose.
10. Returning Goods If You Change Your Mind/ Charges
The Company will not accept the cancellation of any Order except at its sole discretion. Where cancellations are accepted the Buyer will be charged for any materials purchased specifically to complete the order and for any work carried out on the order and for any supplementary work and/or materials necessary to convert the order into Goods acceptable to an alternative Buyer. For the avoidance of doubt, where the Goods to be supplied are products which are bespoke or made to order, The Company will not accept the cancellation of the Order or the return of any Goods.
11. Legal ownership and Risk of Goods
a) The property rights vested in the Goods shall only pass to the Buyer, notwithstanding physical delivery, when payment for them is made in full by the Buyer. Until such time as payment in full is made to The Company in accordance with these T&Cs and title to the Goods has passed to the Buyer, the Buyer shall hold the Goods as trustee, but not as agent, for The Company and shall ensure that the Goods shall be stored separately from any other property of the Buyer or from any property belonging to a third party and held by the Buyer and shall be clearly identifiable as the property of The Company.
At any time prior to title to the Goods passing from The Company in accordance with these T&Cs, The Company shall be entitled on demand to recover possession of the Goods or any of them (without prejudice to any other rights or remedies of The Company) and, for this purpose, shall be entitled to enter upon the Buyer’s premises (or any other premises where the Goods are stored) during normal business hours for the purpose of removing such Goods and to remove such Goods from the premises.
These T&Cs constitute an authority for any third party authorised by The Company to exercise the Company’s rights and remedies hereunder. The Buyer shall only be at liberty to re-sell the Goods purchased from The Company prior to the passing of title on the understanding that if it does re- sell the Goods then it will hold on trust for The Company monies to the value necessary to discharge payment in full to the Company.
b) Notwithstanding the retention of title described in clause 11(a) all risk passes to the Buyer at time of delivery.
c] The Company retains access to and collection of used or unused materials, equipment and plant until full and cleared payment is received.
12. Events Outside of Our Control [Force Majeure]
The Company shall not be liable or responsible for any failure to perform in whole or in part or for any delay in performing any of its obligations under these T&Cs caused by act of God, war, insurrection, government regulations, embargoes, strikes or walk-outs, illness, flood, fire, explosion, cyber-attack, terrorism or equipment breakdown or any other cause beyond the control of the Company and any reference to “force majeure” in these T&Cs shall mean the circumstances listed in this clause. Should any such event occur, the Company shall notify the Buyer and use reasonable endeavours to rearrange delivery and/or partially perform its obligations under these T&Cs so far as it can reasonably do so.
13. Limitation of Liability
a) The Company does not exclude its liability:
(i) for death or personal injury caused by its negligence, or
(ii) for breach of the terms implied by s 12 of the Sale of Goods Act 1979 and by s 2 of the Supply of Goods and Services Act 1982,
(iii) for fraud or fraudulent misrepresentation.
b) Subject to clause 13(a), The Company shall under no circumstances whatsoever be liable to the Buyer, whether in Contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
c) Subject to clause 13(a), The Company’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in Contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
14. Sub-Contracting
The Company may employ both direct and sub-Contract labour to work on site. Each individual Contractor will take full responsibility for their own third party liability. The Company will oversee all works to completion and takes overall responsibility for the full duration of the Contract. The Buyer will be notified of and must approve of any sub-Contractors prior to commencement of work.
15. Guarantees
The Company will guarantee it's workmanship for a period of 12 months following completion of a new build Contract. Unless otherwise agreed in writing prior to the commencement of a Contract. This guarantee does not apply to repair work, renovations, restorations, refurbishments or alterations to existing buildings, roofs or infrastucture or related materials or their integrity. New build structures only [roofs, flashings to new roofs, new virtical brickwork joints to existing masonry] are covered by our guarantee against water ingress. Ingress of water through existing structures is not covered by this guarantee.
Subsidence [sinkage below slabs, below new or existing foundations or floors etc] is not covered by this guarantee.
Remedial works to issues not covered by this guarantee will be subject to quotation and Contract including for the [detected or undetected at the time of Contract] presence of perished, infested or rotten timbers [or any other perished, rusty, infested or rotten materials] in existing structures.
Furniture, fixtures and equipment [FF&E] shall be covered by the original manufacturer's guarantee and subject to their Terms and Conditions.
16. How We Use Your Personal Information [Data Protection]
In the event that The Company processes any personal data of the Buyer or of any of its employees, representatives etc, all processing shall be carried out in accordance with the Data Protection Act 2018.
17. Other Important Terms
Builder's Waste: Builder's waste is deemed to be waste generated by The Company during the completion of a Contract and includes materials taken down or demolished by The Company. This material can be re-used by The Company as appropriate for the completion of the Contract. Example; old masonry reused as hardcore or infil if appropriate. All onsite or roadside skip contents remain the property of Formm Ltd until collection by the supplying skip company.
Building Control: Notwithstanding 7d above, local authority Building Control inspections managed by The Company as part of the Contract will not cause delays in payments against any agreed payment schedule pending receipt of appropriate completion certificates that are subject to 3rd party administration.
18. Severability
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
19. Frustration
If The Company’s performance of its obligations under these T&Cs shall become impossible or otherwise frustrated The Company shall be entitled to reasonable remuneration for work done until the date of such frustration.
20. Set-Off
The Buyer hereby waives any and all existing or future claims for compensation or set-off against any payments due by the Buyer to The Company under these T&Cs and the Buyer shall pay to The Company the amounts payable to The Company under these T&Cs and any order confirmation on the due date or dates for payment thereof regardless of any compensation, set-off or counter claim on the part of the Buyer against The Company.
21. Remedies
a) No right, power or remedy conferred upon or reserved to The Company in these T&Cs is exclusive of any other right, power or remedy in these T&Cs or by law provided, permitted or conferred to or upon The Company but each such right, power or remedy shall be cumulative of every other right, power or remedy permitted or conferred to or upon The Company.
b) Any neglect, delay or forfeiture on the part of The Company in enforcing or implementing, or in seeking to enforce or implement, these T&Cs shall not be deemed to be or act as, a waiver, surrender or release of any of these T&Cs.
22. Governing Law and Jurisdiction
These T&Cs and any Contract between the Buyer and The Company shall be construed in accordance with English law and The Company and the Buyer submit to the exclusive jurisdiction of the English Courts (save that The Company shall not be limited in its right to raise or commence proceedings in any other jurisdiction which The Company may consider appropriate).