(a) In these Conditions: “Customer” means the Customer indicated on the Order; “Consumer” means a customer purchasing Products for personal use at a domestic premises; “Contract” means any contract between Customer and MaxKote for the sale and purchase of Products incorporating these Conditions; “Fire Protection Products” means Products intended to help protect against fire; “Price” means the price of the Products as may be amended at any time before a Contract is formed; “Products” means the coatings and other products shown on the Order to be supplied by MaxKote Ltd; “Order” means an order for Products submitted to MaxKote Ltd (i) either online through the Site, or (ii) by email or telephone; “MaxKote“, “we”, “us” who’s office is at Tower Court, York, YO30 4XL; “Product Data Sheet” means all documents issued by a manufacturer containing details of the safe supply, handling and use of a Product, including but not limited to technical data sheets safety data sheet and application guides; “Site” means the MaxKote website; and “Trader” means a Customer who is not a Consumer.
(b) These Conditions supersede all prior representations or arrangements, and contain the entire agreement between the parties in connection with the Products. All other terms and conditions are excluded, including any that Customer may purport to apply, any implied by law, previous course of trading and/or trade custom.
(c) None of MaxKote’s’ employees or agents has authority to modify or supplement these Conditions.
(d) Words in the singular include the plural and in the plural include the singular.
(e) A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.
NOTICE TO CONSUMERS
Most Products are intended for commercial use only and require a good knowledge and understanding of specialised paint products and how to apply them. Consumers may submit an Order for Products, but in doing so, Consumers expressly acknowledge and agree that:
(a) we do not provide small test pots for the Products
(b) certain Products cannot be returned for reasons of health protection;
(c) certain Products cannot be returned by Royal Mail or may only be returned by Royal Mail subject to certain packaging requirements; and
(d) most Products are for professional use only as determined by the manufacturer of the Product and as indicated in the Product Data Sheet. In accordance with the guidance issued by the British Coatings Federation, we cannot sell to Consumers any Products that are professional use only. If you order a Product described as professional use only, you shall be liable to us for any costs, claims, damages, liabilities, penalties and/or fines we incur as a result.
(a) All Orders, however placed, are subject to these Conditions.
(b) Customer or Customer’s representative may only place an Order if they are at least 18 years old and the delivery address is in the United Kingdom. At our request, you shall provide evidence of your age.
(c) For all Orders placed by telephone or email, we shall promptly send Customer a written Order acknowledgment. Customer shall carefully check the Order to ensure that the Products set out on the Order acknowledgment accurately reflect Customer’s requirements. If there are any changes required to the Order, Customer shall notify MaxKote by email within 1 hour of receipt of the Order acknowledgment, and MaxKote, shall amend the Order accordingly which may for the avoidance of doubt include an amendment to the Price. If Customer does not notify MaxKote of any change to the Order within 1 hour of receipt, then Customer shall be deemed to have accepted the terms of the Order and these Conditions.
(d) If an Order contains Fire Protection Products, then on receipt of an Order, MaxKote may contact the Customer to ensure a valid, written job specification is in place for the use of the Fire Protection Products. Notwithstanding any other provision of these Conditions, no Order for Fire Protection Products shall be accepted by MaxKote unless and until sufficient information has been provided on the use of the Fire Protection Products. The Customer shall read and understand the relevant Product Data Sheets and shall have all necessary approvals from all relevant authorities for use of the Fire Protection Products. The Customer shall have the necessary expertise and experience to use such Products. Customer acknowledges that such confirmation shall be relied upon by MaxKote in relation to the Contract. MaxKote, have the right not to supply any Customer with Fire Protection Products at its sole discretion.
(e) Unless otherwise agreed in writing by MaxKote, and subject to Condition 2(c), a legally binding Contract between Customer and MaxKote shall come into existence only if (i) MaxKote receives the full fee or the first instalment of the fee if we agree to payment by instalment; and/or (ii) MaxKote delivers the Products.
(f) When a legally binding Contract has come into existence, we acknowledge that we are under a legal duty to supply the Products in conformity with these Conditions.
(g) Traders are responsible for all Orders placed by their employees. Traders may not withhold or set off any payment due to us against any amount due to the Trader.
DESCRIPTION OF THE PRODUCTS AND PRODUCT DATA SHEETS
(a) Colour reproduction of the Products on the Site is limited by the technology used to deliver web pages and by the colour representation of Customer’s own monitor and computer set-up. We have made every effort to display as accurately as possible the colours of our Products but we cannot guarantee that the colour shown on Customer’s monitor’s display will accurately reflect the colour of the Product on delivery. We recommend that Customer first purchases the smallest Product available or access an industry standard colour chart in person (and not digitally) to ensure that the colour is acceptable for its purposes.
(b) Customer agrees that before placing an Order, Customer has read and understood the most up to date Product Data Sheet for the Product. Where we have access to the Product Data Sheet from the manufacturer, we will either provide a copy on request, or include a link to the Product Data Sheet available on the manufacturer’s website.
(c) All Products are subject to availability. We will notify Customer if all or part of an Order is out of stock, and Customer can either cancel the Products that are out of stock and we shall refund Customer accordingly, or Customer can select alternative Products, subject to any appropriate adjustment to the Fee.
(d) We ALWAYS recommend a trial area is coated to ensure the Product meets Customer’s requirements before use of all of the Product ordered.
(a) Delivery and timescales (if any) set out in a Order or otherwise requested by Customer or given by MaxKote are given or accepted by MaxKote in good faith but are not guaranteed. However, Customer shall promptly notify MaxKote if it has not received all of the Products that are subject to the Order by the stated delivery date. If Customer is a Consumer, we shall deliver the Products or make the Produce available for collection within 30 days of the Contract.
(b) Delivery shall be made to the delivery address set out in the Order
(c) Customer shall take delivery of the Products and delivery shall be effective when the Products are unloaded at the delivery address. If we are unable to make a delivery as a result of Customer’s act or omission, we reserve the right to cancel the Order, refund the Price paid, less a reasonable amount for additional delivery costs and all storage costs and any other costs incurred by MaxKote as a result of Customer’s failure to take delivery of the Products.
(d) If Customer has notified MaxKote that it intends to collect the Products, Customer shall collect the Products within 5 days of a notice to do so. If the Customer does not collect the Products within such 5 day period, we reserve the right to cancel the Order, refund the Price paid, less a reasonable amount for all storage costs and any other costs incurred by MaxKote as a result of Customer’s failure to collect the Products.
(e) MaxKote may deliver the Products or make the Products available for collection by instalments.
(a) Prices are exclusive of VAT.
(b) For telephone, email and Orders, all sums due to MaxKote shall be paid to the account stated on the Order or by PayPal.
(c) For online Orders, we accept payment by most major credit and debit cards and by PayPal.
(d) The full amount of the Price and all delivery costs for an Order is due in advance of delivery or collection as the case may be unless otherwise agreed by MaxKote.
(e) If Customer fails to pay any sum by the due date, in addition to the rights and remedies set out in these Conditions, MaxKote, shall be entitled to (i) suspend delivery or collection as the case may be of the Products until payment is made; (ii) claim costs and interest under the Late Payment of Commercial Debts (Interest) Act 1998; (iii) terminate the Contract.
(a) If the Customer is a Trader, the Customer agrees that once the Contract has come into existence it may not be cancelled by the Customer. If, notwithstanding the provisions of this Condition 7(a), MaxKote agrees as a gesture of goodwill or otherwise to a cancellation of a Contract by a Trader, the Trader must (i) not have opened the Products; (ii) obtain written approval of MaxKote; and (iii) within 14 days of date of delivery or collection as the case may be, return the Products to MaxKote in the original packaging and at the Trader’s own cost and risk. If MaxKote determines at its sole discretion that the Products are fit for re-sale as new, MaxKote shall refund the Fee paid for the returned Products less a 20% re-stocking fee. No delivery costs or costs of collection shall be refunded.
(b) Subject to Condition 7(c) below, if the Customer is a Consumer, the Customer shall be entitled to cancel a Contract up to 14 days of the date the Products are delivered or collection as the case may be. If a Consumer wishes to exercise its rights under this Condition 7(b), it shall contact MaxKote in writing and take reasonable care of the Products while they are in its possession. Within 14 days of the notice to cancel, the Consumer must send the Products back to MaxKote at the Consumer’s own cost and risk and subject to the requirements of the delivery company it engages to return the Products. MaxKote shall refund any sums paid for the Products returned and, if the Consumer returns the whole (not part) of the Order, MaxKote will refund the delivery costs paid up to the price of standard delivery. MaxKote shall be entitled to deduct from the amount to be refunded the direct costs of recovering the Products or to reflect the loss or damage to the Products if (i) the Consumer does not return all of the Products that have been cancelled; (ii) the Customer does not pay the costs of returning them; and/or (iii) the Products are damaged during the course of the return.
(c) A Consumer may not cancel a Contract (i) if the Products have been made to the Customer’s specifications for example following a particular colour specification; (ii) for Fire Protection Products for health protection reasons; (iii) for any other sealed Products have been opened for health protection reasons; and/or (iv) the Customer has used the Product at all. The provisions of this Condition do not affect a Consumer’s statutory rights
(d) We reserve the right to cancel the Contract if (i) we have insufficient stock to deliver the Products; (ii) we do not deliver Products to Customer’s delivery address; (iii) Customer has failed to pay the Price due in full; (iv) we cannot verify that Customer or Customer’s representative is aged 18 or over; and/or (v) one or more of the Products ordered was listed at an incorrect Price due to a typographical error or an error in the pricing information received from our suppliers. If we do cancel the Contract we will notify Customer by e-mail and will refund Customer all sums paid within 30 days of the date of receipt of the Order. We will not be obliged to offer any additional compensation for disappointment suffered or for wasted expenditure or any other loss suffered or cost expended.
DEFECTIVE OR MISSING PRODUCTS
(a) If Customer is a Consumer, MaxKote warrants that the Products are of satisfactory quality and fit for purpose. If Customer is a Trader MaxKote shall use reasonable endeavours to ensure that the Products are of a satisfactory quality and fit for purpose.
(b) Customer shall inspect the Products immediately on receipt. Unless Customer is a Consumer, Customer shall be deemed to have accepted the Products as being in conformity with the Contract unless written notice of rejection on the basis of non-conformity with the Contract is received in writing by MaxKote within 24 hours days of the date of delivery or collection as the case may be, or (where the defect was not apparent on reasonable inspection) within 7 days after discovery of the defect. If Customer is a Consumer, MaxKote requests that Customer notifies MaxKote promptly in respect of any defect in a Product or missing Products.
(c) If, after a valid notice of rejection has been given to MaxKote in accordance with these Conditions, the conduct of Customer is inconsistent with such rejection, including where Customer has used the Product, Customer shall be deemed to have accepted them.
(d) If it is shown to MaxKote’ reasonable satisfaction that a Product is defective or missing, MaxKote will either refund the purchase price or replace the Product within a reasonable time, free of charge. IF CUSTOMER IS A TRADER, SUCH REFUND OR REPLACEMENT SHALL BE MAXKOTES’ SOLE LIABILITY IN RELATION TO ANY DEFECT. Replacement Products are covered by these Conditions. Products which are alleged not to comply with the Contract shall as far as possible be preserved for inspection by MaxKote and where the MaxKote agrees to replace the Products, the defective Product shall be made available for collection by MaxKote or its nominated carrier.
(e) MaxKote does not exclude any liability that cannot be excluded as between Customer, including a Consumer, and MaxKote under any provision of applicable law.
MaxKote shall have no liability to Customer for:
(a) any loss or damage to property or personal injury caused by the negligence of the Customer, including but not limited to failure by the Customer to use the Products in accordance with the Product Data Sheet, failure to wear appropriate protective clothing and/or failure to adequately ventilate the site being painted.
(b) any information provided in respect of the Products by MaxKote that is inconsistent with the Product Data Sheet; and/or
(c) any errors in coverage rates quoted or otherwise supplied. Customer agrees that coverage depends on the condition of the substrate, surface absorption, texture and application method.
(a) MaxKote shall not be liable for any failure to comply with the Contract related to any circumstances whatever (whether or not involving MaxKotes’ negligence) which are beyond MaxKotes’ reasonable control and which prevent or restrict MaxKote from complying with the Contract.
(b) MaxKote may where reasonable in all the circumstances (whether or not involving MaxKotes’ negligence) without liability suspend or terminate (in whole or in part) its obligations under the Contract, if MaxKotes’ ability to manufacture, supply, deliver or acquire materials for the production of the Products by MaxKotes’ normal means is materially impaired.
MaxKote may (without prejudice to its other rights or remedies) terminate or suspend MaxKotes’ performance of the whole or any outstanding part of the Contract if:
(a) Customer breaches any term of any Contract with MaxKote including but not limited to a failure to pay sums due by the due date;
(b) Customer becomes bankrupt or insolvent or if a receiver or encumbrancer takes possession of any material part of Customer’s assets; or
(c) MaxKote has reasonable grounds for suspecting that an event in Condition 11(b) will occur, or that Customer will not pay sums due by the due date.
RISK AND TITLE
(a) Risk in the Products shall pass to Customer upon delivery or collection as the case may be as delivery/collection is determined in accordance with these Conditions.
(b) Title to the Products shall pass to Customer on receipt by MaxKote of the full Price due under the Contract. Until such time as title passes, Customer shall (i) not use the Products and shall store the Products separately from all other goods and in such a way that they remain readily identifiable as MaxKots’ property; and (ii) store the Products in satisfactory condition and in accordance with any instructions or requirements of the relevant Product Data Sheet. Customer grants to MaxKote and its agents an irrevocable licence at any time to enter any premises where the Products are stored to recover the Products if Customer fails to make payment of the price for Products by the due date, or if MaxKote has reasonable grounds for suspecting that an event in Condition 11(b) will occur
13. LIMITATION OF LIABILITY
(a) MaxKote shall have no liability to a Consumer in excess of a refund of the Price paid under a Contract, unless the Consumer can evidence that any other loss is reasonably foreseeable and arises as a direct result of a breach of the Contract by MaxKote. MaxKote shall have no liability to a Consumer for wasted expenditure, including the costs or contractors engaged to use the Products and/or any loss caused as a result of failure to handle, use or transport the Products appropriately or in accordance with the Product Data Sheet.
(b) MaxKote shall have no liability to a Trader (i) in excess of a refund of the Price paid under a Contract; (ii) for any loss of goodwill, loss of profit, loss of business, loss of anticipated savings) loss of use, or wasted expenditure in connection with the Contract; and/or (iii) for any indirect or consequential loss whether or not advised of the possibility of such loss.
(c) Nothing in these Conditions excludes or limits the liability of MaxKote for death or personal injury cause by MaxKotes’ negligence or fraudulent misrepresentation.
(a) The Contract may not be assigned by Customer without MaxKotes’ prior written consent.
(b) Notices must be in writing to MaxKote or Customer’s address on the Order and are deemed delivered on the first working day after sending by hand or on the third working day after being placed prepaid in the first class post to Customer’s or MaxKotes’ address.
(c) No failure by MaxKote to enforce any provision of the Contract shall be construed as a release of its rights relating thereto or to sanction any further breach.
(d) If any provision of the Contract is found to be invalid or unenforceable it shall have effect to the maximum extent permitted by law, or, if not so permitted, shall be deemed deleted.
(e) The provisions of Conditions 9, 12, 13 and 14 shall survive any termination of the Contract.
(f) The Contract shall be governed by and construed in accordance with the laws of England and the courts of England and Wales shall have exclusive jurisdiction in relation to the Contract.