All quotations are made and all orders are accepted subject to the following terms and conditions notwithstanding anything to the contrary contained in any order or other form used by the Customer or in correspondence and no variation or alteration of these terms and conditions shall have any effect unless expressly agreed to in writing by the Company named above or overleaf (“the Company”).
1.1 If these terms and conditions are inconsistent with any terms or conditions stipulated by the
Customer these terms and conditions shall prevail.
1.2 Unless previously withdrawn, all quotations are open for acceptance within 30 days only fromthe date thereof and are subject to confirmation in writing by the Company at the time of such acceptance.
1.3 The Company reserves the right to accept or refuse any order and to cancel any uncompleted order or to suspend delivery if the Customer fails to observe or perform any term.
1.4 Unless otherwise agreed in writing any descriptions and illustrations in the Company’s sales literature or samples are intended merely to present a general idea and there shall not be constituted thereby a sale by description or sample nor shall they be deemed to constitute representations. The Company reserves the right to correct any typographical or clerical errors appearing in the confirmation of order.
1.5 The Company’s employees or agents are not authorised to make any representations or advice concerning the goods unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not and shall not rely on and waives any claim for breach of any such representations which are not so confirmed.
1.6 ”Service” means any service or workmanship provided by the Company in relation to the Customer’s goods and “Servicing” and “Serviced” shall be construed accordingly.
1.7 “Goods” means the Customer’s goods to be serviced or as the case may be goods agreed to be sold by the Company to the Customer.
2 Sale and/or services
2.1 The Company shall sell the Goods to the Customer and/or carry out the fitting of the Goods in accordance with the Company’s written quotation.
2.2 All drawings supplied by the Company or by its servants and/or agents are copyright and the property of the Company.
3 Price and Payment
3.1 Subject as provided in Clause 3.2. the price of the service and/or goods shall be the Company’s written quotation or where no price has been quoted (or a quoted price is no longer valid) the price listed in the Company’s published price list current at the date the contract is made.
3.2 The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the services or the Goods to reflect any increase in the cost to the Company of labour, materials or other overheads, any governmental legislation, any changes in taxation or excise duty, any fluctuations in currency exchange rates, any change in delivery dates which is requested by the Customer or any delay caused by any instructions of the Customer or any failure of the Customer to give the Company adequate information or instructions.
3.3 The price and any other sums due are exclusive of any applicable value added tax, or similar tax which the Customer shall be additionally liable to pay to the Company together with the charge or sum in question.
3.4 Subject to any special terms agreed in writing between the parties, the Company shall be entitled to invoice the Customer for the price at any time after the Company has notified the Customer that the Goods are ready for collection or (as the case may be) the Company has despatched and delivered the Goods or the servicing to the Goods has been completed to the Company’s satisfaction whichever is the latest in time.
3.5 The customer shall pay the price within 28 days after the end of the month in which the Company becomes entitled to invoice the Customer notwithstanding that the invoice may not have been delivered, the Goods and/or Servicesmay not have been delivered and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the contract.
3.6 Payment shall not be delayed if the Goods are not used nor shall payment be delayed pending settlement of any claim against the Company and accordingly the Customer shall not be entitled to any right of set off against the price quoted.
3.7 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
3.8.1 terminate or suspend the Contract.
3.8.2 require payment in advance; and/or
3.8.3 charge the Customer interest (after as well as before any Judgement) on the amount unpaid at the rate of 8%per month or part month above the Base Rate for Barclays Bank Plc until payment in full is made.
3.8.4 In the event of a dispute or difference arising under or in connection with this contract, the seller may refer the dispute or difference for Adjudication under a procedure complying with “The Scheme for Construction Contracts” (whether or not this contract is a construction contract), and the Adjudicator will be appointed by the Academy of Construction Adjudicators, or in default any other AdjudicationNominating Body (ANB).
3.8.5 Any guarantee that may be given by the Company to the Customer in respect of Services provided by the Company and the benefit of any manufacturer’s warranty or guarantee assigned by the Company in respect of Goods supplied by the Company to the Customer shall only be capable of enforcement by the Customer after the Customer has paid in full the price due to the Company inrespect of the relevant Goods and Services.
4.1 Delivery and installation dates are estimates only and the time of delivery and installation shall not be of the essence of the Contract. The Company shall not in any event be liable to compensate the Customer in damages or otherwise for any non-delivery or late delivery of Goods or for any loss consequential or otherwise arising therefrom.
4.2 The Goods shall be collected by the Customer at the Company’s premises at any time after the Company has notified the Customer that the Goods are ready for collection or the Goods and/or Services shall be delivered as otherwise stipulated in the Company’s quotation.
4.3 Where it is agreed that the Goods shall be delivered by instalments each delivery shall be treated as a separate contract and if the Customer neglects or refuses to take delivery of or pay for more installments the Company shall be entitled to treat such breach of contract as a repudiation of the whole Contract but if the Company shall make any defective delivery in respect of one or more instalments the Customer shall not be entitled to treat such breach of contract as a severable breach giving rise to a claim for compensation.
4.4 The Company does not undertake to deliver or collect any Goods over roads or ground which it in its discretion considers to be unsuitable. If a vehicle used for performing the Contract with any Customer delivers or collects a load to or from a place situate off the public highway, the Customer shall be solely responsible for any injury, damage or accident occasioned by reason of such delivery or collection whether to the Goods or the Company’s employee or property and shall indemnify the Company in respect thereof.
4. 5 In the event of any Goods or any packing or container being delivered and deposited whether on the
public highway or elsewhere the Customer shall be responsible for compliance with all regulations
and for all steps which need to be taken for the protection of persons or property in relation to such Goods packing or container and shall indemnify the Company in respect of all or any costs claims losses or expenses which it may incur as a result of such delivery as aforesaid.
5 Risk and Passing of Property
5.1 The Goods are at the entire risk of the Customer from the time the Company notifies it that they are available for collection or in the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Company tenders delivery of the Goods.
5.2.1 Notwithstanding delivery and the passing of risk in the Goods, the property of all goods supplied shall not pass to the Customer until the Company receives payment in full of the price of the Goods and all other sums then due from the Customer.
5.2.2 Until such time as the property in the Goods passes the Customer shall hold them as the Company’s fiduciary agent and bailee, and shall keep them separate from others and properly stored, insured and identified as the Company’s property. The Customer shall be entitled, however, to resell or use the Goods in the ordinary course of its business but shall hold as the Company’s fiduciary agent and bailee, and account to the Company for, the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds and shall keep all such proceeds separate from any other monies or property and identified as the Company’s property.
5.2.3 Until such time as the property in the Goods passes (and provided they have not been resold), the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, it the Customer fails to do so forthwith, to enter upon any premises where the Goods are stored and repossess them.
5.2.4 The Customer shall not be entitled to pledge or in any way encumber any of the Goods which remain the Company’s property.
6 Warranties, exclusions, etc.
6.1 The suitability of the Goods is for the Customer to determine.
6.2 The Customer shall inspect the Goods immediately on delivery thereof and shall within 24 hours from such delivery give notice to the Company in writing of any shortage on delivery or damage in transit or any matter or thing by reason whereof the Customer may allege that the Goods are not in accordance with the order. If the Customer shall fail to give such notice the Goods shall be deemed to be in all respects in accordance with the contract and the Customer shall be deemed to have accepted the Goods accordingly.
6.3 Any claim by the Customer which is based on any defect or condition of the Goods shall be notified in writing to the Company within 7 days from the date of delivery or tender of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure but in any event within one month of such date failing which the Company shall have no liability for such defect and the Customer shall be bound to pay the price in accordance with the Contract.
6.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods is notified to the Company in accordance with these Conditions, the Customer shall return the Goods to the Company’s premises for inspection and if the claim is valid the Company shall be entitled at its sole discretion to remedy the Goods; obtain for or assign to the Customer the benefit of any relevant supplier’s guarantee; or refund to the Customer that part of the price attributable to those Goods but the Company shall have no further liability to the Customer.
6.5 The Company shall have no liability to the Customer to the extent that any defect arises as a result of the Customer requiring the Services and/or Goods to comply with the Customer’s specification and the Company shall also be under no liability in respect of any defect arising from fair wear and tear accidental or wilful damage negligence abnormal working conditions failure to follow the Company’s or any manufacturer’s instructions misuse or alteration.
6.6 The Company shall not be liable to the Customer by reason of any advice representation or any implied warranty condition or other termor any duty at common law or under the express terms of the contract
for any indirect or consequential loss or damage (whether loss of profit or otherwise and whether caused by the negligence of the Company its employees or agents or otherwise and even if the Company isadvised of the possibility of any such loss) which arise out of or in connection with the Contract or its breach or the supply of the Services or Goods except as expressly provided in these conditions.
6.7 The Company shall not be liable to the Customer or be deemed to be in breach of Contract by reasons of any delay in performing, or any failure to perform, any of the Company’s obligations if the delay or failure was due to any cause beyond the Company’s reasonable control.Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control; industrial action or trade disputes (whether or not involving employees of the Company) difficulties in obtaining rawmaterials labour fuel parts ormachinery or breakdown inmachinery.
6.8 These conditions are in substitution for and exclude to the fullest extent permitted by law all and any express and implied statutory and other warranties guarantees representations conditions and liabilities provided that the Company’s liability for death or personal injury caused by negligence shall not be limited to the extent prohibited by the Unfair Contract Terms Act 1977.Without prejudice to the foregoing the Company shall have no liability if the Services or Goods are not suitable for a particular purpose or particular requirements of the Customer whether or not any particular purpose or requirements of the Customer are made known to the Company.
6.9 If notwithstanding the foregoing provisions the Company is found liable for any loss or damage in no event shall the Company’s total liability for any damages or losses in all actions whether arising under
contract or arising in tort or negligence or otherwise in connection with or arising out of the supply of the Services or Goods exceed the price payable therefore even if the Company shall have been advised of the possibility of further potential loss or damage.
6.10 The Customer shall indemnify the Company against any liability which the Company may incur as a result of a claimfromany third party in relation to any defect or alleged defect in the Services or theGoods.
6.11 Where the Consumer Transactions (Restrictions on Statements) Order 1976 has application to the Contract the statutory rights (as defined in that Order) of a consumer (as defined in that Order) are and shall be unaffected by these conditions in any event.
7 Insolvency of Customer
7.1 If the Customer shall make default in or commit a material breach of the Contract or of any other of its obligations to the Company or any distress or execution shall be levied upon the Customer’s property or assets or if the Customer shall make or offer to make any arrangement or composition with creditors or is deemed unable to pay his debts within the meaning of the Insolvency Act 1986 or if any petition for a bankruptcy order or receiving order in bankruptcy shall be presented or made against him or if the Customer is a limited company and any resolution or petition to wind up such Company’s business shall be passed or presented or if a receiver or administrative receiver of such company’s undertaking property or assets or any part thereof shall be appointed or an administration order be made or such Company becomes unable to pay its debts as they fall due or is deemed to be unable to pay its debts within the meaning of the Insolvency Act 1986 the Company shall have the right forthwith to determine any Contract then subsisting and upon written notice of such determination being posted to the Customer’s last known address any subsisting Contract shall be deemed to have been determined without prejudice to any claimor right the Companymayotherwisemake or exercise.
7.2 In the event of insolvency or administration of the company the directors partners and shareholders shall be jointly and severally held personally liable to re-imburse the Company.
8 Patents etc.
8.1 If the Company is to follow a specification submitted by the Customer, then the Customer shall be liable to indemnify the Company against all loss damages costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for any resultant infringement of third party intellectual property rights.
8.2 The Company reserves the right to make any changes in the specification of the Services or Goods which are required to avoid any such infringement or to conform with any applicable safety or other statutory requirements or which do not materially affect their quality or performance.
8.3 The Company accepts no responsibility for use of the Goods where they or the Services infringe any patents which may be applicable thereto.
No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used) damages charges and expenses incurred by the Company as a result of cancellation.
Variations in the Goods and for Services described in the quotation or specification will only be undertaken upon instructions confirmed in writing by the Customer. Oral instructions will not be accepted without confirmation. Site personnel have no authority to alter the Contract in any way. The price of the additional Goods or Services will be based upon costs prevailing on the date of instruction.
11.1 The Company shall be entitled without prior written consent of the Customer to assign, transfer, sub-contract or in anymannermake over to any third party the benefit and/or burden of the Contract.
11.2 The Customer shall not be entitled without prior written consent of the Company, to assign, transfer, subcontract or in any manner make over to any third party the Contract.