TERMS & CONDITIONS OF SALE
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10.4
1.1 In these conditions the following words have the following meanings:
the Buyer: the person(s), firm or company who purchases the Goods from the Company;
the Company: SYSTEMAIR LIMITED,
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
Delivery Point: the place where delivery of the Goods is to take place under condition 4;
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
Intellectual Property Rights: all patents, registered designs, trade marks and service marks (whether registered or not), copyright, moral rights, design rights, and all similar property rights, including those subsisting (in any part of the world) in inventions, designs, drawings, performances, computer programs, database rights, semiconductor topographies, plant varieties, confidential information, know-how, business or brand names, domain names, goodwill or the style of presentation of goods or services, in each case whether registered or unregistered including applications and rights to apply for protection and all extensions and renewals thereof.
1.2 References to statutes or statutory provisions shall, unless the context otherwise requires, be construed as a reference to such statute or statutory provision as amended, consolidated, extended, re-enacted or replaced.
1.3 References to the masculine include the feminine and the neuter and to the
singular include the plural and vice versa as the context admits or requires.
1.4 Headings do not affect the construction of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to variations carried out under this clause, the Contract will be on these conditions to the exclusion of all other terms and conditions. These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorised representative of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company not set out in the contract.
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 Orders or acceptances of quotations for Goods by the Buyer from the Company are deemed to be an offer by the Buyer to purchase Goods subject to these conditions.
2.4 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.5 The Buyer must ensure that all orders and applicable specifications are complete and accurate.
2.6 Any quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Buyer. Quotations remain valid for 30 days unless previously withdrawn.
2.7 No Order may be cancelled by the Buyer if the Goods are in production, or if the Company has incurred expenses or costs in connection with any such Order.
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are only issued or published for the purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract and this is not a sale by sample.
4.1 Unless otherwise agreed in writing, delivery shall take place within 14 days of the Company giving it notice that the Goods are ready for delivery.
4.2 Dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.3 Subject to the other provisions of these conditions the Company will not be liable for any direct, indirect or consequential loss (which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if
caused by the Company’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.4 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations: (a) risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence); (b) the Goods will be deemed to have been delivered; and (c) the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.5 The Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for unloading the Goods.
4.6 If the Company delivers to the Buyer Goods of up to 2% more or less than the quantity accepted by the Company the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.7 The Company may deliver the goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with the Contract.
4.8 Each instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment will entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any Goods as recorded by the Company upon despatch from the Company shall be conclusive evidence of the quantity received by the Buyer unless the Buyer can provide conclusive evidence to the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within 5 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has
received in full all sums due to it in respect of the Goods and all other sums
which are or become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must (a) hold the Goods on a fiduciary basis as the Company’s bailee; (b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party so that they remain identifiable as the Company’s property; (c) not destroy or deface any identifying mark or packaging on or relating to the Goods; and (d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company.
6.4 The Buyer’s right to possession of the Goods shall terminate immediately if the Buyer makes a voluntary arrangement with creditors, or (being an individual or firm) becomes bankrupt, or (being a company) becomes subject to an administration order, enters liquidation (other than for a solvent reconstruction or amalgamation), suffers the appointment of a receiver of any of its property, ceases or threatens to cease to carry on business or the Buyer encumbers or in any way charges any of the Goods.
6.5 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.6 The Buyer grants the Company, its agents and employees a licence to enter any premises where the Goods are stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.7 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer will be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.8 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 will remain in effect.
7.1 Unless otherwise agreed by the Company in writing the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
8.1 Subject to condition 8.4, unless otherwise agreed in writing payment of the price for the Goods is due in pounds sterling on the last working day of the month following the month in which the Goods are delivered or deemed to be delivered. The Company reserves the right to ask for payment of the price for the Goods on account.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has
received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment.
9.1 Where the Company is not the manufacturer of the Goods, the Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery, and for a period of 18 months from the date of delivery, the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
9.3 The Company shall not be liable for a breach of any of the warranties in condition 9.2 unless: (a) the Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and (b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there.
9.4 The Company shall not be liable for a breach of any of the warranties in condition 9.2 if: (a) the Buyer makes any further use of such Goods after giving such notice; or (b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or (c) the Buyer alters or repairs such Goods without the written consent of the Company.
9.5 Subject to conditions 9.3 and 9.4, if any of the Goods do not conform with any of the warranties in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company.
9.6 If the Company complies with condition 9.5 it shall have no further liability for a breach of any of the warranties in condition 9.2 in respect of such Goods.
9.7 Any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 18 month period.
10. LIMITATION OF LIABILITY AND LIABILITY OF THE BUYER
10.1 Subject to conditions 4, 5 and 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: (a) any breach of these conditions; (b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and (c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company: (a) for death or personal injury caused by the Company’s negligence; (b) under section 2(3) Consumer Protection Act 1987; (c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or (d) for fraud or fraudulent misrepresentation.
10.4 Subject to conditions 10.2 and 10.3, the Company’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 this Contract shall not exceed the contract price, and the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
10.5 The Buyer undertakes to indemnify the Company against all actions, proceedings, claims, damages, direct and indirect losses, costs, expenses and demands which may be brought or made against or suffered or incurred by the Company in connection with an infringement or alleged infringement of the Intellectual Property Rights by the Buyer.
11.1 The Buyer may not assign the Contract or any part of it without the prior written consent of the Company.
11.2 The Company may assign the Contract or any part of it to any person, firm or company.
12. FORCE MAJEURE
The Company may defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision of the Contract is found by any court of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.4 Any waiver by the Company of any breach of or any default under any provision of the Contract by the Buyer shall not be a waiver of any further breach or default and in no way affect other terms of the Contract.
13.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.6 The Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
14.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission: (a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or (b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
14.2 Communications shall be deemed to have been received: (a) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); (b) if delivered by hand, on the day of delivery; (c) if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
14.3 Communications addressed to the Company shall be marked for the attention of Mr Colin McSwiney, Managing Director