Terms and Conditions - Contract Support Agreement and Claims Rebate
The purpose of these Terms and Conditions are to set out the terms upon which contract support can be claimed from Vaillant Group.
Definitions:
Claim: A claim for Contract Support against a valid Contract Agreement accompanied by the necessary supporting evidence;
Claimant: the name of the customer listed in the Contract Agreement and making the Claim;
Claims Portal: online system operated through Smartsheet or such other claims system as notified by Vaillant to the Claimant from time to time;
Conditions of Sale: the standard Vaillant terms that govern the relationship between Vaillant and a purchaser for the sale and purchase of Products, as notified to the purchaser from time to time;
Contract Agreement: The letter which sets out the details of support, with formal notification of agreement number. For the avoidance of doubt a cover letter marked “Draft”/ “Unapproved”/”Quotation” is not a Contract Agreement.
Contract Quotation: Non-binding written or verbal proposal for Contract Support;
Contract Support: Payments made to the Claimant subject to the terms of the Contract Agreement
Independent Merchant: a merchant that purchases Products via wholesale distributors for the purposes of reselling the Products into the market;
Installer: a Claimant who in the course of their business, fits Products to end-users properties and connect or adjust for use and as specifically confirmed in the Contract Agreement;
Products: Boilers or such other ancillary goods sold by Vaillant and specifically listed on the Contract Agreement;
Vaillant: shall mean Vaillant Group UK Limited (company number: 00294316) whose registered office is at Nottingham Road, Belper, Derbyshire DE56 1JT or such other Vaillant Group Company and/or specific brands as may be identified on the Contract Agreement; and
Vaillant Group Company: In relation to Vaillant, any member of its Group, which shall mean that company, any subsidiary or holding company as defined in the Companies Act 2006.
Introduction:
1. These Terms and Conditions are supplementary to Vaillant’s Conditions of Sale. In the event of a conflict between Vaillant’s Conditions of Sale and these Terms and Conditions then these Terms and Conditions will take precedence.
2. These Terms and Conditions are specific to the Claimant to whom a Contract Agreement has been issued and any benefits hereunder may not be assigned or transferred to any third party.
3. The Claimant warrants and undertakes to act and exercise its duties under the Contract Agreement and Terms and Conditions with the utmost good faith. The Claimant shall adhere to the spirit of the Contract Agreement, to observe reasonable commercial standards of fair dealing, to be faithful to the agreed common purpose, and to act consistently with the justified expectations of Vaillant.
Contract Support Claim Guidelines and Restrictions:
4. A valid Claim can only be made between the Start Date and the End Date, as specified in the Contract Agreement. Contract Agreements shall not be automatically renewed upon expiry.
5. Contract Support is offered at the sole discretion of Vaillant. Vaillant reserves the right to cancel or vary the Contract Agreement at any time without notice.
6. Vaillant’s Contract Support payment is only payable to the Claimant and is specific to the Contract Agreement issued for the Products. If the Claimant makes a Claim for a Product that is not listed in the Contract Agreement it shall not be eligible for a Claim or Contract Support.
7. Claims made against a Contract Quotation will not be accepted. Please note that the Contract Quotation is not legally binding or a formal offer, it is an indication of a price until accepted and signed by both parties.
8. The Contract Agreement states the maximum volume for which Contract Support can be Claimed. Any Claims above this amount will be rejected.
9. Each individual Claim is applicable and only valid in respect of a single Contract Agreement Number. If multiple Contract Agreements exist with Vaillant, each individual Claim must be made against each Contract Agreement. Mixed Claims will be rejected and will need to be resubmitted singularly.
10. Vaillant accepts no responsibility for tax liabilities (if any) arising from Contract Support paid to the Claimant under the Contract Agreement and the Claimant is advised to take professional advice on the accounting and tax treatment of any Contract Support payments paid or payable hereunder.
11. Any changes required to the Contract Agreement, including (but not limited to) Product type, volume and value, must be raised with your Vaillant Sales Manager and a valid Claim may only be made upon receipt of an updated Contract Agreement signed by both parties. Vaillant is not obliged to accept requested changes to an existing Contract Agreement.
12. It is the responsibility of the Claimant to notify Vaillant of changes of any particulars listed on the Contract Agreement relating to the Claimant within the Contract Agreement. Notification of changes must be provided by the Claimant in writing on company letter headed paper.
13. These Contract Support terms replace all previous Contract Support terms offered to the Claimant. A Claim for Contract Support shall be invalid where support is offered by Vaillant under any other schemes, loyalty schemes or payment offers, including pricing promotions and/or boiler and flue pack offers through merchants. Only one Claim can be made per individual boiler and not more than once under different schemes (including loyalty schemes) that Vaillant may operate from time to time. Vaillant shall have sole discretion as to whether Contract Support is due and payable under this paragraph 13.
14. Failure to comply with any of these Terms and Conditions will result in a Claim being rejected in full or in part in Vaillant’s sole discretion.
Independent Merchant Specific Terms
15. Where the Claimant is an Independent Merchant, Contract Support shall only be provided as per the terms of this Agreement where the Products are resold in ‘over-the-counter’ sales only. Where the Independent Merchant resells the Product either online or via other such method of sale, Contract Support cannot be Claimed unless otherwise expressly agreed in a written Contract Support agreement.
Installer Specific Terms
16. Where Contract Support is offered to an Installer, a Claim shall only be valid if the Product is installed by the Installer and not resold into the market. A failure to install the Product and reselling into the market will enable Vaillant to recover or set-off the Contract Support from the Installer.
17. Where an Installer utilises a sub-contractor in the provision of installation of the Products:
i) Additional evidence may be requested in relation to each Claim and in conjunction with paragraph 20 below; and
ii) Sub-contractors must not register their own Contract Support Claim for Products installed or seek to claim under other schemes, including loyalty schemes, (in accordance with paragraph 13 above);
and it is the Installers responsibility to inform the sub-contractor of this clause 17 and ensure compliance.
Process for making a Claim
18. Claims for Contract Support may only be submitted on the Claims Portal or in accordance with such other process as may be stipulated by Vaillant, from time to time.
19. A valid Contract Agreement number must always be quoted with any Claim. Please note the Contract Agreement number is valid only for the dates shown on the issued Contract Agreement. Claims made without a valid Contract Agreement Number will be rejected.
20. In order to verify that a Claim is being legitimately made, Vaillant requires the Claimant (including sub-contractors) to provide the following supporting evidence and documentation, including, but not limited to, the following:
iii) valid Contract Agreement number;
iv) proof of purchase;
v) proof of sale;
vi) serial numbers for each Product;
vii) proof of installation (where applicable);
viii) installation address;
ix) benchmark book;
x) serial number sticker; or
xi) proof of specification.
21. The list of documentation and supporting evidence referred to above is not exhaustive and Vaillant reserves the right in its sole discretion to vary the evidence required or request additional documentation at any time. Failure to provide the required evidence may result in a Claim being rejected. Failure to provide the details requested by Vaillant within 3 months of request, in accordance with clause 20 above, will render that Claim invalid.
22. Failure to provide the information required within paragraph 20 above may lead to payment delays and / or rejection of the Claim.
23. In all cases the supporting documentation specified will be used solely to verify that purchases and/or sales are made in accordance with the Claim and that such purchases and/or sales were in compliance with the Terms and Conditions.
24. Prior to submitting any documentation or evidence to Vaillant, in accordance with paragraph 20 above, the Claimant must delete or redact (in any way that ensures such information is not visible) all competitor information (e.g. about Product, volume, or price).
25. All Claims must be submitted within 90 days of the date of Product purchase, with the exception of November and December purchases which must be claimed by the 31st of January of the following year. Any Claims submitted after these deadlines will be automatically rejected.
26. Payment shall be made by Vaillant by bank transfer to the business back account in the name of the Claimant and nominated in writing by the Claimant. Payment cannot and will not be made by Vaillant by cash or cheque or to a personal bank account.
27. Vaillant shall make reasonable endeavours to ensure that all payments of Contract Support that are due and payable will be made within thirty days from the end of the month following receipt by Vaillant of a valid Claim (including all requested supportive documentation as Vaillant deems necessary). All monies will be paid with VAT added where applicable therefore it is not necessary to raise a VAT invoice.
28. If Vaillant fails to make any payment due to the Claimant by the due date for payment, then Vaillant shall pay interest on the overdue amount at the rate of 2% per annum above the Bank of England's base rate from time to time.
Rejected Claims
29. Where Vaillant considers that a Claimant has not provided sufficient evidence to validate a Claim, it is entitled at its absolute sole discretion to reject the Claim and not make payment for Contract Support.
30. Where a Claim is rejected in accordance with paragraph 29 above, Vaillant reserves the right to terminate the entire Contract Agreement with immediate effect.
31. Vaillant reserves the right to start legal proceedings for the recovery of monies wrongfully paid by Vaillant pursuant to this Contract Agreement and/or damages as may be appropriate.
General
32. A person who is not a party to these Terms and Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term or condition of these Terms and Conditions, but this does not affect any right or remedy of a third party which is available apart from pursuant to such Act nor any right of enforcement which is expressly granted in these Terms and Conditions.
33. The Claimant agrees to keep the terms of the Contract Agreement confidential and not disclose the content to any third party.
34. Nothing in these Terms and Conditions is intended to or shall operate to create a partnership or joint venture of any kind between the parties.
35. If any provision of these Terms and Conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of that provision shall not affect the other provisions of these Terms and Conditions and all provisions not affected by the invalidity or unenforceability shall remain in full force and effect
36. These Terms and Conditions and the Contract Agreement contain the entire agreement between the parties in respect of its subject matter and supersedes all previous agreements and understandings between them. Each party acknowledges and confirms that it does not enter into these Terms and Conditions in reliance upon any representation or warranty not fully reflected in the terms of these Terms and Conditions.
37. Neither party shall have any liability in respect of warranties, representations or other undertakings made prior to the date of this Contract Agreement unless such warranty, representation or undertaking was made fraudulently or unless there has been any fraudulent concealment.
38. The Claimant shall keep Vaillant indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Vaillant as a result of or in connection with any Claim made against Vaillant by a third party arising out of, or in connection with the Contract Agreement, to the extent that such Claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
39. Vaillant’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance of these Terms and Conditions shall be limited to the greater of (i) £100,000; or (ii) a sum equal to the total of Contract Support paid by Vaillant to the Claimant under these Terms and Conditions in the 12 months preceding the date on which a claim arose.
40. No variation to these Terms and Conditions is effective unless communicated in writing and signed by duly authorised representatives of Vaillant.
41. Where a Claimant is liable to Vaillant under these Terms and Conditions, it shall not be entitled to set off any sums owed in connection with other sums it may owe or may claim are owed to it by Vaillant unless otherwise agreed by Vaillant.
42. Vaillant may at any time, without notice to the Claimant set off any liability of Vaillant to the Claimant against any liability of the Claimant to Vaillant, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Contract Agreement.
43. In instances where Vaillant makes an overpayment to the Claimant over and above the level of Contract Support it is entitled to, the Claimant will repay such sums immediately upon request from Vaillant.
44. Vaillant may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under these Terms and Conditions. The Claimant shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under these Terms and Conditions without the prior written consent of Vaillant.
45. No failure or delay by Vaillant to exercise any right or remedy provided under this Contract Agreement 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.
46. The construction, validity and performance of these Terms and Conditions shall be governed by the law of England and Wales the Parties submit to the exclusive jurisdiction of the courts of England and Wales.
Version January 2020