Conditions of Sale
1. Definitions and Interpretation
1.1 In these Conditions, unless the context otherwise requires, the following expressions have the following meanings:
Agents – a party’s staff, employees, agents or contractors.
AquaVeil Proposal – the customer proposal document provided to the Customer, detailing the Unit and the services to be provided by TIL.
Assumptions – the assumptions and deviations set out in the AquaVeil Proposal.
CDM Regulations – the Construction (Design and Management) Regulations 2015 (and CDM Regulation shall be construed accordingly).
Contract – the contract between TIL and the Customer for the Contract Works, comprising these Conditions and those sections of the AquaVeil Proposal referred to in it.
Contract Price – the price specified in the AquaVeil Proposal for the supply of the Unit and the Installation Services.
Contract Works – means the design and supply and delivery of the Unit and (where applicable) the performance of the Installation Services.
Customer, “you” “your” – means the person detailed as the Customer as set out in the AquaVeil Proposal
Customer’s Group – any subsidiary undertaking of the Customer, any parent undertaking of the Customer, and any subsidiary undertaking of such parent undertaking (as such terms are defined in s1162 Companies Act 2006).
Design Document – the detailed drawings and designs for the Unit prepared by TIL for the Customer’s approval.
Due Date – has the meaning given in clause 9.3.
Force Majeure – has the meaning given in clause 20.
Insolvency Event – any one or more of the following events in any jurisdiction in relation to a party: suspending or threatening to suspend payment of its debts or being unable or deemed unable to pay its debts as they fall due; commencing negotiations with any of its creditors to reschedule its debts or making a proposal to compromise its debts; the filing of a bankruptcy petition or application, or making an application for an Individual Voluntary Arrangement; the filing of a petition, making of an application, or passing of a resolution for the winding up of the party or for the appointment of an administrator liquidator receiver or trustee in bankruptcy; the taking of any steps by any person to enforce any security over the assets of the party; any person becoming entitled to appoint a receiver or administrative receiver over some or all of the assets of the party; any event analogous or which has an effect equivalent or similar to any of the foregoing.
Installation Services – the installation of the Unit to and at the Property, which shall include those works described in the sections “What we Supply” and “Comments, Deviations and Assumptions” of the AquaVeil Proposal and and excluding those works nd products described in the section “What you Supply” of the AquaVeil Proposal.
Permissions – all planning permissions, building regulation consents, environmental consents, rights and permits to access neighbouring land, and all other permissions, licences, permits and consents that may be needed for the provision, installation and use of the Unit and the Installation Services.
Property – The property at which the Unit is to be installed, as detailed in the AquaVeil Proposal.
TIL, “we” “us” “our” – Tills Innovations Limited, incorporated in England and Wales with company number 06342215.
Timetable – means the indicative timetable for supply and installation of the Unit, as set out in the AquaVeil Proposal.
Unit – the AquaVeil water wall feature unit as described in the AquaVeil Proposal, together with the fixings, mechanics and additional items detailed as being supplied in the AquaVeil Proposal.
1.2 A consumer customer means a Customer who is an individual and who is entering this Contract wholly or mainly for their personal use (and not for use in connection with their trade, business, craft or profession).
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a party includes its personal representatives, successors and permitted assigns.
1.5 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative. and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.7 A reference to writing or written includes fax and email.
2. The Contract
2.1 These Conditions, together with the sections of the AquaVeil Proposal referred to in them, constitute the entire agreement between TIL and the Customer in relation to the Contract Works. No other terms or conditions shall apply to the Contract, unless agreed in writing by TIL.
2.2 You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these Conditions, and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
2.3 If you are a consumer customer, these terms do not affect any of your legal rights. Any part of these terms which would otherwise exclude or restrict your rights as a consumer will, to that extent have no force or effect.
2.4 The Contract shall become binding on TIL and the Customer when TIL receives a written purchase order, instruction to proceed or signed AquaVeil Proposal from the Customer, and TIL then confirms in writing that the Customer’s order, instructions or AquaVeil Proposal is accepted.
3. Supply of the Unit and Installation Services
3.1 TIL shall design, manufacture and supply the Unit to the Customer.
3.2 TIL shall either deliver the Unit to the Property or make the Unit available for collection TIL’s premises, as agreed with the Customer. Delivery of the Unit shall be complete when the Unit is unloaded at the Property, or when the Customer is notified that the Unit is ready for collection (as applicable). Unless TIL is providing Installation Services, it is the Customer’s responsibility to unpack and carry out the full installation of the Unit at the installation location.
3.3 The Unit shall be delivered in component form.
3.4 The Unit shall comply with the specification detailed in the AquaVeil Proposal and Design Document, as such specification is modified by any subsequent amendments agreed in writing between the Customer and TIL.
3.5 Where the Contract Works include the Installation Services, TIL shall carry out the Installation Services using reasonable skill and care.
4. Specification and Drawings
4.1 It is your responsibility to ensure that the Unit is suitable for your purposes, and for the location and environment into which it is to be installed. It is your responsibility to ensure that the use of the Unit at the Property is safe and complies with all health and safety requirements.
4.2 It is your responsibility to ensure that the specifications and measurements for the Unit are correct, and that the dimensions of the Unit are suitable for the Property, before you approve the Design Documents. We shall have no liability to you if the Unit is incorrectly sized for your requirements where the Unit has been supplied in accordance with the Design Documents approved by you.
4.3 The details in the AquaVeil Proposal are not final drawings or designs. We reserve the right without notice to make such changes to the Unit and its installation as we think reasonable and desirable, including to improve the effect of the Unit.
4.4 We are not responsible for any work or designs prepared by you or your Agents, and shall not be responsible for checking the accuracy, quality or suitability of such work and designs.
4.5 Except where stated in the Design Documents, the Unit shall be prepared to TIL’s standard design specifications.
5. Delivery and Supply
5.1 The Timetable is only an indication of the timetable for delivery and supply of the Unit and the dates within it are not binding. We will. use reasonable endeavours to supply the Unit and provide the Installation Services (if any) in accordance with the Timetable, but time shall not be of the essence.
5.2 We shall have no liability for failure to meet any date specified in the Timetable, or for any failure to deliver the Unit, or complete the Installation Services, by the date(s) specified in the Timetable.
5.3 We shall have no liability for any delay in supplying the Unit or completing the Installation Services to the extent caused by:
(a) a Customer Default, as defined in clause 6.7;
(b) us complying with your instructions (or those of your Agents);
(c) any error in, or change required to be made to, the design of the Unit after the Design Document has been approved by you, other than to the extent caused by our negligence;
(d) any event of Force Majeure.
5.4 If you do not allow us access to the Property to deliver the Unit on the agreed date for delivery to the Property, or do not collect the Unit from our premises on the date agreed, then:
(a) you shall pay for the cost of failed delivery, and also any later delivery, together with storage costs, insurance costs and all other costs and expenses we incur as a result of the delay, postponement or cancellation of delivery;
(b) if, despite our reasonable efforts, we are unable to agree a new date for delivery to the Property within 2 months of the original date of delivery, we may terminate the Contract and clause 13.2 shall apply.
6. Customer’s Obligations
6.1 You shall provide all reasonable assistance and co-operation requested by us in connection with the Contract Works
6.2 You shall:
(a) provide us with all information we reasonably request in connection with the Contract Works. We shall not be responsible for any delays in delivery caused by your failure to provide such information promptly when requested;
(b) provide us and our Agents with suitable access to the Property in order to deliver the Unit and perform the Installation Services;
(c) comply with all applicable laws and statutory requirements, in respect of the installation of the Unit and performance of the Installation Services;
(d) check that the Assumptions are correct, and advise us of any that are incorrect prior to signing the AquaVeil Proposal. You shall also comply (where applicable) with the Assumptions.
6.3 The AquaVeil Proposal sets out details of the items and services you must provide (in the section “What you Supply”) at your cost. You must fulfil the requirements of this section of the AquaVeil Proposal in a timely manner.
6.4 You are responsible for preparing the location for installation of the Unit prior to the date for installation of the Unit.
6.5 You are responsible for obtaining all Permissions. You shall provide us with a copy of any or all of the Permissions on request, and shall promptly notify us of any variation to the Permissions.
6.6 You will ensure that your Agents and other persons working at the Property will not interfere with the Contract Works, and will cooperate with us as reasonably required in connection with the delivery of the Unit and performance of the Installation Services.
6.7 If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or your Agents, or failure by you to perform any of your obligations under this Contract (Customer Default), then:
(a) without limiting or affecting any other right or remedy available to us, we shall have the right to suspend delivery of the Unit and/or performance of the Contract Works until you remedy the Customer Default;
(b) we shall not be required to perform any of our obligations in each to the extent the Customer Default prevents or delays us from doing so; and
(c) we shall not be liable for any costs or losses you sustain or incur arising directly or indirectly from your failure or delay to perform any of your obligations as set out in this clause 6 or elsewhere in these Conditions.
7. Property Matters
7.1 You are responsible for ensuring the health and safety of our Agents at the Property, and for ensuring that the Property is suitable and safe for us to deliver the Unit and perform the Installation Services.
7.2 We will not act as Principal Contractor for the purpose of the CDM Regulations. You must appoint a suitably experienced Principal Contractor in respect of the Property and the works being carried out.
7.3 You are responsible for maintaining the safety and security of the Property, the Unit (once delivery is complete), and of our tools and equipment at the Property, including protecting the Unit against damage.
7.4 You are responsible for ensuring that we have access to water, electricity and waste disposal at the Property for use when performing the Installation Services.
8. Contract Price
8.1 You shall pay the Contract Price in consideration for us performing the Contract Works.
8.2 The Contract Price is agreed on the basis that the Assumptions are correct and will be complied with.
8.3 The Contract Price is exclusive of VAT and all other taxes charges and levies (including customs tariffs), which shall be payable by you in addition at the rate then in force.
8.4 We may increase the Contract Price to reflect the following matters:
(a) any variation agreed under clause 11;
(b) the extra cost incurred by us as a result of any changes to the Assumptions or the Assumptions being incorrect;
(c) any variation to the Design Document after it has been approved by the Customer;
(d) where the requirements of the Customer, as included within the final Design Document, are materially different to those set out in the AquaVeil Proposal;
(e) any additional costs incurred by us which were excluded from the scope of the Contract Works;
(f) any failure by the Customer to comply with its obligations under these Conditions, including a failure by the Customer to prepare the Property for installation of the Unit in the manner set out in the AquaVeil Proposal and/or agreed with us;
(g) any Force Majeure event;
(h) adverse weather conditions, or adverse conditions at the Property;
(i) any request by the Customer to change the Timetable, and
(j) any delay caused by any instructions of the Customer or its Agents, or any act error or omission of the Customer or its Agents.
8.5 Any increases to the Contract Price pursuant to clause 8.4 shall include (but are not limited to) all materials costs and other expenses incurred, and an amount in respect of additional time spent by TIL in providing the Contract Works (all as determined by TIL acting reasonably).
8.6 Where TIL is entitled to increase the Contract Price pursuant to clause 8.4, it may (but is not required to) require the Customer to approve the increase in Contract Price in advance, and may suspend that part of the Contract Works affected until the Customer approves such increase in the Contract Price. Such approval given by the Customer shall be a binding variation to the Contract Price.
9.1 This clause 9 applies in all cases except where the Customer is a consumer customer, and/or where we are only supplying the Unit and is not providing Installation Services. In those cases, clause 10 shall apply.
9.2 The Customer shall pay the initial payment identified in the AquaVeil Proposal (the Initial Payment) on signing of the AquaVeil Proposal. TIL is under no obligation to commence the design of the Unit until payment of the Initial Payment is received in full in cleared funds.
9.3 Up to completion of the Contract Works (subject to the sole discretion of TIL thereafter unless otherwise stated in these terms), TIL shall be entitled to interim payments. Unless otherwise agreed between the parties, the due dates for such interim payments shall be the dates for payment specified in the AquaVeil Proposal (each being a Due Date).
9.4 TIL shall submit an invoice for payment on or before each Due Date identifying the amount due up to the relevant Due Date.
9.5 Within 7 days of each Due Date the Customer shall give a payment notice in writing to TIL specifying the amount of the interim payment to be made and about the basis on which such amount is calculated (a Payment Notice). If the Customer fails to give a Payment Notice, then subject to clause 9.7, the amount due to TIL will be the amount stated in TIL’s invoice.
9.6 The final date for payment shall be 14 days after the Due Date.
9.7 If the Customer intends to pay less than the sum stated in the Payment Notice or invoice, as the case may be, he shall not later than 7 days before the final date for payment give TIL notice of that intention (a Pay Less Notice). Where a Pay Less Notice is given, the payment to be made on or before the final date for payment shall not be less than the amount stated as due in the Pay Less Notice.
9.8 If any sum payable under the Contract is not paid by the final date for payment then, without prejudice to TIL’s other rights under the Contract or otherwise, that sum shall bear interest from the final date for payment until payment is made in full, both before and after any judgment, at 8% per cent per annum in excess of the Bank of England base rate from time to time, or, if higher and applicable, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended.
9.9 Should the Customer fail to pay any invoice by the final date for payment TIL may, upon giving written notice to the Customer:
(a) suspend all or part or the Contract Works. Upon the ending of a suspension the Customer shall pay TIL’s reasonable costs of the suspension and shall grant TIL an extension of time for the period of the suspension; and/or
(b) suspend performance of any other contract it has with the Customer; and/or
(c) terminate the Contract in accordance with clause 12.
9.10 Notwithstanding the foregoing, and any Due Date for payment, TIL shall not be required to deliver the Unit to the Property (or make the Unit available for collection) or commence the Installation Services unless and until all sums due in respect of Due Dates falling before the proposed delivery date for the Unit have been paid in full.
9.11 The Customer shall pay the sums due without any set-off, deduction, counterclaim or other withholding.
10. Payment – Supply Only and Consumers
10.1 This clause 10 applies where the Customer is a consumer, and/or TIL is supplying only the Unit and is not providing Installation Services.
10.2 You shall pay the initial payment identified in the AquaVeil Proposal (the Initial Payment) on signing of the AquaVeil Proposal. We shall have no obligation to commence the design of the Unit until payment of the Initial Payment is received in full in cleared funds.
10.3 We shall issue an invoice for each instalment of the Contract Price at the times specified in the AquaVeil Proposal. All invoices shall be payable in full in cleared funds within 14 days of the date of the invoice.
10.4 If you do not pay any sums when due, clauses 9.8, 9.9 and 9.10 shall apply.
10.5 You shall pay the sums due without any set-off, deduction, counterclaim or other withholding.
11. Variation and Cancellation
11.1 If you wish to vary any details of the Contract, the Unit or the Contract Works (including the design of the Unit), you must notify us in writing as soon as possible.
11.2 We will notify you of any change to the Contract Price and/or the Timetable required as a result of the proposed variation to the Contract, the Unit or the Contract Works. We will not be required to comply with any request to make a variation until the relevant adjustments to the Contract Price and/or Timetable have been agreed between you and us in writing.
11.3 If you cancel the Contract Works before they are completed, then:
(a) we shall retain all elements of the Contract Price already paid to us, and you shall not be entitled to receive any refund of the Contract Price already paid;
(b) in addition, you shall pay to us within 14 days of cancellation of the Contract Works:
(i) the costs we have incurred for all materials in respect of or in connection with the design and manufacture of the Unit(s);
(ii) the amount of all outstanding invoices;
(iii) the cost of removing all our equipment and materials from the Property (where applicable); and
(iv) a sum in respect of the time spent by us in performing the Contract Works since the last payment milestone or Due Date, calculated using our standard daily rates in force at that time; and
(c) you shall pay to us our direct loss and expense, and loss of profit, in respect of the cancelled Contract Works (to the extent not already paid to us under sub-clause (b)).
12. Cancellation Rights for Consumer Customers
12.2 If you are a consumer customer, and you made your order online, by email or telephone, or away from our premises, you may have a legal right to change your mind within 14 days and receive a refund. These rights, under the Consumer Contracts Regulations 2013, are explained in more detail in these terms.
12.3 Your right to change your mind does not apply in respect of:
(a) Units that are made to your specifications or are personalised for you; or
(b) any other element of the Contract Works which have been performed in full (including the Installation Services).
12.4 The period you have to change your mind is 14 days after the day the Unit is delivered to the Property. However,
(a) once we have completed the Contract Works, you cannot change your mind in respect of the services element of the Contract Works (including the Installation Services), even if the cancellation period is still running; and
(b) if you cancel after we have started performing the Contract Works, you must pay us for the Contract Works performed up until the time you tell us that you have changed your mind.
12.5 You can cancel the Contract in one of the following ways:
(a) contacting us by email at the address given in the AquaVeil Proposal;
(b) by post, by writing to us at the address given in the AquaVeil Proposal; or
(c) by completing the cancellation form at the end of these terms, and either scanning or posting it to us at one of the above addresses.
12.6 Most Units will be bespoke as they are made to your specifications, meaning you are unable to change your mind (see clause 12.3 above). But if you are entitled to change your mind and do so after the Unit has been delivered to the Property, you must either return the Unit to us or allow us to collect it. You must contact us to arrange collection or delivery within 14 days of telling us you wish to end the Contract.
12.7 If you are exercising your right to change your mind, you must:
(a) pay for the costs of return or, where we agreed to collect the Unit, the costs of collection. The costs of collection will be the direct cost to us of collection; and
(b) pay for the cost of any work we carry out to remove or uninstall the Unit.
12.8 If you change your mind and are entitled to a refund, we will refund you the price you paid for the Contract Services. However, we may make the following deductions from the price (or if we have already refunded you, you will repay the following amounts):
(a) any reduction in the value of the Unit, if this has been caused by your handling or use of them that would not be permitted at a showroom or shop;
(b) an amount for the other Contract Works (including the Installation Services) for the period for which those Contract Works were provided, ending with the time when you told us you had changed your mind. The amount will be in proportion to what has been supplied, in comparison with the full coverage of the Contract.
12.9 We will refund you by the method you used for payment. Your refund will be made within 14 days of your telling us you have changed your mind, unless you, unless you are returning the Unit to us yourself, in which case it will be made within 14 days from the day on which we receive the Unit back from you or, if earlier, the day on which you provide us with evidence that you have sent the Unit back to us.
12.10 Even after you have cancelled your Contract, you have a legal obligation to keep the Unit in your possession and to take reasonable care of the Unit whilst it is in your possession.
12.11 As a consumer, you will always have legal rights in relation to goods or services that are faulty or not as described. These legal rights are not affected by the returns policy in this clause 12.
13.1 TIL may terminate the Contract and cease the Contract Works immediately by notice in writing to the Customer if:
(a) the Customer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing to do so;
(b) the Customer repeatedly breaches the terms of the Contract such that TIL reasonably determines the Customer is unwilling or unable to comply with the terms of the Contract,
(c) the Customer, or any member of the Customer’s Group, fails to pay any amount due under the Contract or any other contract on the due date for payment;
(d) the Customer becomes subject to an Insolvency Event;
(e) continuing the Contract Works would be a breach of any Permission or law or statutory requirement;
(f) any change of control of the Customer (and “control” has the meaning given in section 1124 of the Corporation Tax Act 2010);
(g) the Customer’s financial position deteriorates to such an extent that in the opinion of TIL, the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.2 In the event of termination under clause 13.1, clause 11.3 shall apply as if it were a cancellation by the Customer. Such payment shall be made following an application for payment by TIL.
13.3 Following termination, you shall be responsible for the safe keeping of all our materials and equipment at the Property until they are returned to us.
13.4 Termination shall not affect the accrued rights and remedies of the parties as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry of the Contract.
13.5 Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14.1 We may assign, transfer, charge or sub-contract any or all of its rights and obligations under the Contract without your consent.
14.2 You shall not assign, transfer, charge, declare a trust over or deal in any other manner with any or all of your rights and obligations under the Contract without our prior written consent.
15. Liability and Indemnity
15.1 Nothing in this clause or these Conditions shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence (or that of our Agents);
(b) fraud or fraudulent misrepresentation.
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
(d) any other liability which cannot be limited or excluded by law.
15.2 If you are a consumer customer:
(a) we only provide the Contract Works to you for domestic and private use. If you use the Contract Works for any commercial or business purpose our liability to you will be limited as if you are a business customer;
(b) it is your responsibility to ensure that the Unit is suitable and safe for use at your Property;
(c) we do not limit our liability to you in any way which is not permitted by law, and clauses 15.3 and 15.4 shall not apply.
15.3 Subject to clause 15.1, we shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract or the Contract Works for the following types or heads of loss:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) any indirect, special or consequential losses;
(g) liability to any end customer of yours, or for breach of contract by you (including liability for liquidated damages);
(h) losses or damage or expenses arising from the use of a defective Unit after a defect has become apparent or suspected or should reasonably have become apparent to you or your Agents;
(i) loss arising directly or indirectly from your failure to comply with any of the terms of these Conditions.
15.4 Subject to clause 15.1, our maximum liability whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract or the Contract Works shall be limited to the Contract Price actually paid to us.
15.5 You shall indemnify us against all damages, claims, proceedings, actions, awards, expenses, costs (including but without limitation all legal costs and disbursements) and any other losses or liabilities suffered or incurred by us arising from or related to:
(a) loss or damage to any equipment (including that of third parties) caused by you or your Agents or your (or your Agents’) negligence;
(b) loss or personal injury suffered by any of our Agents; or
(c) any failure by you to comply with your obligations under clause 5.4(a) (Customer’s Obligations) or clause 7 (Property Matters).
15.6 This clause shall survive termination of the Contract.
16.1 We warrant that during the period of 12 months from the date of completion of installation of the Unit (if we provide the Installation Services) or from completion of delivery (if we do not provide Installation Services) (the Warranty Period), the Unit will be free from defects in materials and workmanship under normal operating conditions (Defects) and shall comply with the specification in the Design Documents (as such specification is modified by any subsequent amendments agreed in writing between the Customer and TIL) (the Defect Warranty).
16.2 Any Defect that occurs within the Warranty Period shall be covered by the Defect Warranty, provided it is notified to us within 7 days of the end of the Warranty Period.
16.3 Within 28 days of receipt of written notice of Defects, we shall deliver a notice to you describing the remedial actions to be taken to remedy the Defects including a reasonable time schedule for such remediation (the Defects Remedy Notice).
16.4 We shall remedy the Defects at our own cost and expense, within the time schedule specified in the Defects Remedy Notice.
16.5 If we require the services of third parties to remedy the Defects (such as scaffolding, electricians, or building works to make good ground around the Unit), we will notify you of this in the Defects Remedy Notice, and you must ensure such services are provided at your cost at the times to allow us to carry out our work.
16.6 If we fail to deliver a Defects Remedy Notice, or fail to complete any necessary works within the time period specified in the Defects Remedy Notice, you may serve written notice on us, requiring us to do so. If we still fail to deliver the Defects Remedy Notice within 14 days of your notice, or fail to complete the necessary works within a reasonable period, you will be entitled to perform such works directly or through third parties, and to recover your reasonable costs and expenses incurred in doing so from us.
16.7 All other provisions of these Conditions shall apply to the works to be conducted by us to remedy any Defects, including clauses 5.3, 6.7 and 20 (Force Majeure).
16.8 We shall not be responsible for remedying any Defects to the extent:
(a) you make any further use of the Unit after becoming aware of the Defects;
(b) the Defect arises because you failed to follow our oral or written instructions as to the use and maintenance of the Unit or (if there are none) good trade practice regarding the same;
(c) the Defect arises as a result of us following any drawing, design or specification you supplied to us;
(d) you alter or repair the Unit without our prior written consent;
(e) the Defect arises as a result of fair wear and tear, wear of consumables, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Unit or Contract Works differ from their description or the Design Document as a result of changes made to ensure they comply with any legal requirements.
16.9 You shall be responsible for all costs and expenses incurred by us (including a reasonable amount in respect of time spent) in carrying out any maintenance and repair works to the Unit which are not Defects for which we are responsible under the Defects Warranty.
16.10 Except as provided in this clause 16, we shall have no liability to you in respect of any Defects. 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.
16.11 All repairs to and replacements of the Unit or components of it shall be covered by the Defect Warranty.
16.12 If you are a consumer customer we are under a legal duty to supply goods and perform services that are in conformity with this Contract. Nothing in these terms will limit, exclude or affect your legal rights under the Consumer Rights Act 2015 or otherwise in respect of faulty goods or services supplied by us.
17. Title and RisK
17.1 The insurance risk in the Unit shall pass to you on completion of delivery. The risk on the Contract Works shall be with you.
17.2 Title to the Unit and the Contract Works shall not pass to you until we have received (in cleared funds) payment in full of all sums due from you under the Contract and under any other contract or agreement we have with you.
17.3 If before title to the Unit passes to you, you become subject to an Insolvency Event, or we reasonably believe that any such event is about to happen and notifies you accordingly, then, provided that the Unit has not been irrevocably incorporated into the Property, and without limiting any other right or remedy we may have, we may at any time enter the Property in order to recover the Unit, and you hereby give us permission to detach the Unit from the Property.
18. Dispute Resolution
18.1 If any dispute or difference concerning the Contract Works shall arise between the Customer and TIL, such dispute or difference may be referred to adjudication to be conducted in accordance with the Scheme for Construction Contracts Regulations (England and Wales) 1998 (as amended). For the purposes of such adjudication the parties agree that the nominating body for appointment of the adjudicator shall be the President or Vice President of the Royal Institute of Chartered Surveyors.
18.2 This clause shall not apply where the Customer is a consumer, and/or TIL is supplying only the Unit and is not providing Installation Services.
19. Copyright and Intellectual Property Rights
19.1 We retain copyright and other intellectual property rights in all drawings, reports, specifications, schedules, electronic media information, Design Documents and other information (the Documents) provided further to this Contract, but you may copy and use the Documents for any purpose related to the Contract Works and provided that we are not liable for the use of the Documents for any purpose other than that for which they were prepared.
19.2 We may suspend further use of the licence set out in clause 19.1 on the giving of seven days’ notice if you fails to pay any sum due to us by their due date.
19.3 Subject to clauses 19.1 and 19.2, we will give copies of the Documents to you when requested subject to you paying reasonable copying charges.
19.4 Neither party may give any person details of (or let them use any of the Documents, any photographs or any other confidential information relating to) the Contract Works without the other’s permission, unless necessary to carry out the Contract Works or as required by law.
19.5 At any time after the date upon which this Contract becomes binding on you, you shall not (directly or indirectly, or in conjunction with any third party) design or manufacture for sale any water feature which is of the same, or similar, design to the Unit.
20. Force Majeure
20.1 A Force Majeure Event means any event beyond the reasonable control of the affected party, including:
(a) acts of God;
(b) adverse weather conditions;
(c) epidemic or pandemic (including any outbreak of the covid-19 virus);
(d) unavailability or shortages of materials or energy necessary to produce and/or deliver the Materials by usual modes of transportation;
(e) shortages of materials or suppliers;
(f) fire, flood, wars, embargo, strikes, labour disputes, explosions, riots;
(g) laws, rules, regulations, restrictions or orders of any governmental or regulatory authority, whether or not legally binding, and including any such laws, rules, regulations, restrictions or orders taken in response to or as a result of, any of the other events listed in this clause 20.1;
(h) delays and failures by sub-contractors or suppliers caused by any of the matters listed above (but not in the case of the Customer).
20.2 If the performance of the Contract by either party is delayed, hindered or prevented or is otherwise frustrated directly or indirectly by reason of a Force Majeure Event, the Contract shall remain in full force and effect, but save as otherwise provided herein both parties’ obligations (other than any obligation as to payment of the Contract Price) shall be suspended without liability for a period equal to the circumstance of force majeure, provided that:
(a) the non-performing party gives the other party prompt notice describing the circumstance of the Force Majeure Event and its expected duration and where reasonably practicable continues to furnish regular reports with respect thereto during the period of force majeure;
(b) the suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure Event;
(c) no obligations of either party that arose before the Force Majeure Event causing the suspension of performance are excused as a result of the Force Majeure Event; and
(d) the non-performing party uses all reasonable endeavours to remedy its inability to perform.
20.3 In the event that the circumstance of force majeure persists for greater than 30 days, we may terminate the Contract by written notice without any liability in respect of the termination other than the payment of charges due and owing attaching to either party.
20.4 On termination pursuant to clause 20.3, then:
(a) we will be entitled to retain all elements of the Contract Price already paid to us, and you shall not be entitled to receive any refund;
(b) in addition, you shall pay to us:
(i) the costs we have incurred for all materials in respect of or in connection with the design and manufacture of the Unit(s);
(ii) the amount of all outstanding invoices;
(iii) the cost of removing all our equipment and materials from the Property (where applicable); and
(iv) a sum in respect of the time spent by us in performing the Contract Works since the last payment milestone or Due Date, calculated using our standard daily rates in force at that time.
20.6 Waiver. No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.7 Severance. If any provision or part-provision of these Conditions 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 these Conditions.
(a) Any notice to be given or made under the Contract shall be in writing and shall be delivered by hand, post or email to TIL or Customer at their registered office address or (if not a company) the address set out in the AquaVeil Proposal or at such other address as the relevant party may specify from time to time by notice in writing to the other.
(b) Notices shall be deemed to have been received:
(i) in the case of delivery by hand, when delivered;
(ii) in the case of pre-paid post, two days after the date of posting; and
(iii) in the case of email, one hour after transmission, provided that if this falls outside of normal business hours, receipt shall be deemed to take place at the start of the next normal business hour. For this clause, normal business hours means 9am – 5pm Monday to Friday, excluding any public or bank holiday.
20.9 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
20.10 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
20.11 Law. This Contract and any dispute or claim arising out of it shall be governed by the law of England and Wales.
20.12 Jurisdiction. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this letter or its subject matter or formation (including non-contractual disputes or claims).
20.13 Third Party Rights. Nothing in the Contract confers or purports to confer on any