CONDITIONS OF SUPPLY
1. DEFINITIONS AND INTERPRETATION
1.1 The following terms as used herein shall have the meaning as stated:
“Company” means Auto Gates North West Limited;
“Conditions” means these Conditions of Supply;
“Confidential Information” means any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential; “Contract” means any contract between the Company and the Customer for the supply of any Goods and/or Services, incorporating these Conditions;
“Customer” means any person, firm, company or other organisation who is the addressee of the Company’s quotation or acceptance of order issued by the Company;
“Goods” means any goods or materials agreed in the Contract to be supplied by the Company to the Customer (including any part or parts of them), including any goods agreed to be supplied with, or in relation to, any Services;
“Input Material” means any documents, plans, specifications, drawings, designs or other materials, and any data or other information provided by the Customer to the Company relating to the Goods and/or Services;
“Intellectual Property Rights” means any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered;
“Output Material” means any documents, plans, drawings, designs or other materials, and any data or other information provided by the Company to the Customer relating to the Goods and/or Services;
“Services” means any services agreed in the Contract to be performed by the Company for the Customer (including any part or parts of them) including, but not limited to, any installation work to be undertaken in relation to any Goods;
“Site” means the premises at which the delivery of any Goods and/or the performance of any Services shall take place, including, but not limited to, the Customer’s place of business;
“Supplies” means the Goods and/or the Services, depending on the context.
1.2 A reference to a Condition is to a clause of these Conditions.
1.3 Clause headings shall not affect the interpretation of these Conditions.
1.4 Any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly.
1.5 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 Words in the singular include the plural and in the plural include the singular.
1.7 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
1.8 The Company shall be entitled at its discretion to perform any of the obligations assumed by it and to exercise any of its rights granted to it under the Contract through any other company or entity.
2. APPLICATION OF CONDITIONS
2.1 All quotations are made and all orders are accepted by the Company subject only to these Conditions, which shall prevail notwithstanding any other terms and conditions which the Customer shall bring to the Company’s notice.
2.2 Any quotation is given on the basis that no Contract shall come into existence until the Company accepts the Customer’s order in accordance with the provisions of Condition 2.3. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.3 The placing of an order following any quotation or other indication of price and delivery shall not be binding on the Company unless and until accepted by the Company in writing.
2.4 The Company reserves the right to amend any accidental error or omission on quotations, order acknowledgments or invoices without any liability on the part of the Company.
2.5 Any descriptions, technical data and illustrations contained in any Company publications are published for information only and shall not be incorporated into the Contract.
2.6 No variation to these Conditions shall be binding except by specific written agreement of the Company. The Company’s employees or agents are not authorised to make any representations concerning the Supplies or the Contract unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
2.7 The following Conditions 2.8-2.13 shall apply if and only if the Customer enters into a Contract with the Company as a consumer – that is, as an individual acting wholly or mainly outside the Customer’s trade, business, craft or profession – where the Contract is a distance contract or off-premises contract within the meaning of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
2.8 The Customer may cancel a Contract entered into with the Company at any time within the period:
(a) beginning when the Contract was entered into; and
(b) ending at the end of 14 days after the day on which the Contract was entered into.
The Customer does not have to give any reason for the cancellation.
2.9 The Customer agrees that the Company may begin the provision of the Services before the expiry of the period referred to in Condition 2.8 (b), and the Customer acknowledges that, if the Company does begin the provision of the Services before the end of that period, then:
(a) if the Services are fully performed, the Customer will lose the right to cancel referred to in Condition 2.8;
(b) if the Services are partially performed at the time of cancellation, the Customer must pay to the Company an amount proportional to the Services supplied or the Company may deduct such amount from any refund due to the Customer in accordance with the exercise of the right to cancel referred to in Condition 2.8.
2.10 In order to cancel a Contract on the basis described in Condition 2.8, the Customer must inform the Company of the Customer’s decision to cancel. The Customer may inform the Company by means of any clear statement setting out the decision. To meet the cancellation
deadline, it is sufficient for the Customer to send its communication concerning the exercise of the right to cancel before the cancellation period has expired.
2.11 If the Customer cancels a Contract on the basis described in Condition 2.8, the Customer will receive a full refund of any amount the Customer paid to the Company in respect of the Contract, less the amount of any deposit payment and subject to the requirements of Condition 2.9.
2.12 The Company will refund money using the same method used to make the payment, unless the Customer has expressly agreed otherwise. In any case, the Customer will not incur any fees as a result of the refund.
2.13 The Company will process the refund due to the Customer as a result of a cancellation on the basis described in Condition 2.8 without undue delay and, in any case, within the period of 14 days after the day on which the Company is informed of the cancellation.
2.14 Unless the Customer is contracting with the Company at a distance or off-premises as a consumer and the Customer cancels the Contract on the basis described in Condition 2.8, the Contract may not be cancelled by the Customer without the Company’s written consent and subject to the payment to the Company of all costs, charges and expenses incurred by the Company in connection with the Contract.
2.15 The Customer shall ensure that the terms of its order and any Input Material are complete and accurate. The Customer must ensure that any specification provided to the Company conforms to their specific requirements and intended usage.
2.16 The Company has no obligation to accept any variation to the Contract requested by the Customer, whether by addition, substitution or omission (or, without limitation, to the Goods/and or Services to be provided under the Contract) and no such request shall be deemed to be accepted in the absence of the Company’s written agreement to the variation. Payment for any variation which has been agreed in writing by the Company pursuant to this Condition 2.16 shall be made in accordance with the provisions of Condition 7.
2.17 Output Material issued free of charge includes mark-up drawings of draft quality only and does not include any tracing or copies, for which an additional charge shall be payable. Output Material issued with or pursuant to the Company’s acceptance of the Customer’s order in accordance with Condition 2.3 shall constitute the full and final embodiment of all dimensions and requirements for the installation of the Goods and any changes requested by the Customer shall be governed by the requirements of Condition 2.16.
2.18 Subject to the provisions of Condition 9.1(b), the Customer shall be solely responsible for ensuring the suitability of the Goods for any specific purpose and also for ascertaining the compatibility of the Goods with any other goods.
2.19 The Customer shall ensure that any specification submitted by the Customer does not contravene any applicable safety or other statutory or regulatory requirement.
3. OBLIGATIONS OF THE CUSTOMER
3.1 The Customer shall:
(a) provide the Company with all information, co-operation and support that may be required to enable the Company to carry out its obligations to the Customer;
(b) provide or procure (at its own cost) adequate facilities to enable the Company to perform the Services at the Site (together with access to and provision of all
utilities, including but not limited to water and electricity services) and further to allow full, complete, uninterrupted and unimpeded access to the Site;
(c) take all steps to ensure the health and safety of the personnel of the Company whilst they are in attendance at the Site in connection with the performance of the Services and shall be solely responsible for ensuring the safety of any and all other persons who are or may be present at the Site during the performance of the Services, including but not limited to restricting access to those areas of the Site where the Services are or are to be performed to those individuals engaged in performing the Services, or providing assistance to those so engaged;
(d) provide safe, dry and suitable storage for all Goods, materials and tools at the Site until completion of performance of the Services and the Customer (but not the Company) shall be liable for any loss, damage or defect arising directly or indirectly from the storage of the aforesaid items at the Site and for any delay or expenses resulting therefrom;
(e) obtain and maintain (at its own cost) all necessary and appropriate licences, consents, permits and approvals and comply with all relevant legislation, standards or requirements in relation to the provision of the Services at the Site, in all cases before the date on which the provision of the Services is to commence; and
(f) effect and maintain appropriate insurance at the Site on an all risks basis and in an adequate amount.
4.1 Prior to performance of the Services, the Customer shall remove from the Site any item that could pose an obstacle to the performance of the Services. The Customer shall clear the area of the floor at the Site which is to be subject to the works prior to the commencement of the works. The Customer shall incur additional charges if the Company has to remove, dismantle and/or dispose of any item at the Site. Without limitation, the Customer acknowledges that no clean-up work will be carried out by the Company; any waste material arising from the performance of the Services shall be removed by the Customer at the Customer’s cost and the Customer shall comply with all applicable laws and regulations relating to such waste material. The Customer shall provide skips for the removal of debris at the Site. If the Company discovers or is notified of, before or during the performance of the Services, any problem, condition or hazard at the Site which materially affects the Company’s ability to perform the Services in accordance with the Company’s standards at the price quoted, it shall be free to vary the Contract price, notwithstanding that the problem may have existed prior to acceptance of the Customer’s order or may have arisen subsequently. Without limitation, any additional costs caused by any delay in the performance of the Services, or any suspension of performance, at the Site for reasons beyond the control of the Company, e.g. industrial action, shall be treated as a variation to the Customer’s original order and the Customer shall be liable for any such additional costs.Prices for the Supplies, howsoever given, are based on conditions ruling on the date of their giving and are subject to change. The effective price for the Supplies shall be the price confirmed by the Company in its written notification of acceptance of the Customer’s order pursuant to Condition 2.3.
4.2 The Company reserves the right, by giving notice to the Customer at any time before provision of the Supplies, to increase the price of the Supplies to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as,
without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, any increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Supplies which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate, accurate or complete information or instructions.
4.3 Unless otherwise stated the price quoted will be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date of dispatch of the Goods.
4.4 Unless otherwise agreed in writing between the Customer and the Company, all prices are given by the Company on an ex works basis and the Customer shall be liable to pay the Company’s charges for transport, packaging and insurance.
4.5 The Contract price does not allow for any retentions being held against the Company.
4.6 The Contract price is based on the assumption that the works can be completed in an uninterrupted and continuous manner between the hours of 9:00 am and 5:00 pm excluding weekends and public holidays, unless otherwise agreed by the Company in writing.
4.7 The Contract price is based on the assumption that ready access and suitable parking will be provided for lorries, vans and plant.
4.8 The Company reserves the right to charge the Customer for any standing time or abortive visits to the Site and the Customer shall be liable for any associated labour costs and travelling expenses.
5. DELIVERY AND PERFORMANCE
5.1 Whilst the Company will use its best endeavours to provide the Supplies in accordance with the Customer’s requirements, the Company will not be liable for any consequences of any delay in the provision of the Supplies, howsoever caused.
5.2 Any time or date given by the Company for delivery is intended as an estimate only. No delay or failure in respect of delivery or part delivery shall entitle the Customer to treat the Contract as repudiated. The Goods may be delivered by the Company in advance of any quoted delivery date upon giving notice to the Customer.
5.3 The Company may make partial delivery of any order or deliver any order by instalments and these Conditions shall apply to each. Each delivery shall be deemed to be a separate contract.
5.4 Delivery of the Goods shall be made by the Company delivering the Goods to the Site and performance of the Services shall take place at the Site.
5.5 If for any reason the Customer fails to take or accept delivery of any of the Goods, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations: (i) risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company’s negligence); (ii) the Goods shall be deemed to have been delivered; and (iii) the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); or (iv) the Company may sell the Goods at the best price readily obtainable and (after deducting any reasonable costs and expenses in connection with the storage and expedited sale of the Goods), charge the Customer for any shortfall below the price for the Goods.
5.6 If delivery involves difficult access to or at the Site and/or the point of access to the Site is located at an unreasonable distance from any feasible vehicular access point, the Company reserves the right to levy an extra delivery charge.
5.7 The Customer shall provide at the Site and at its expense adequate and appropriate equipment and manual labour for unloading and loading the Goods.
5.8 The Company shall not be liable for any non-delivery of the Goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non- delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
5.9 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.
5.10 Prior to supplying the Services to the Customer, the Company may undertake a preliminary survey of the Site, although the Company shall not be obliged to do so. The Customer acknowledges and agrees that the Company shall be entitled to rely upon the results of any such preliminary survey in determining the Company’s obligations pursuant to Condition 5.1 above and that any conditions (or variations thereto) at the Site which were not reasonably apparent to the Company at the time of the preliminary survey (or which occur or manifest themselves thereafter), shall be treated as a variation to the Customer’s order for which the Customer agrees to assume sole liability, including but not limited to any and all liability for any additional costs, charges or expenses.
5.11 Without limiting the generality of Condition 5.10 above, the Customer will be liable for any additional costs, charges or expenses which arise from any conditions at the Site being at variance with any conditions notified to the Company.
5.12 The Company shall not be responsible for loss or damage to items left at the Site by the Customer which the Customer could have removed or secured.
5.13 The Company shall not be liable for any loss or damage due to unsatisfactory workmanship undertaken by any other party.
5.14 Unless otherwise agreed in writing by the Company, the Services shall not include any builders’ works, redecoration, making good, or cabling. Where cables are to be provided by others for use by the Company, the Customer shall be solely responsible for ensuring their suitability.
5.15 Where the Company agrees in writing to undertake any cabling, all cable routes will follow a path determined by the Company’s engineers and if the Customer requires any cable run to follow a preferred route, the Customer must notify the Company’s engineers prior to the commencement of any works. Where cable runs are to be provided by others for use by the Company, the Customer shall be solely responsible for ensuring their suitability so as to ensure a fault-free run.
5.16 The Customer shall be solely responsible for assessing and clearing or alleviating any ground level or underground obstructions at the Site.
5.17 The Company shall not be liable for any damage to or destruction of any foliage or vegetation at the Site whilst undertaking the works and the Customer shall be solely responsible for removing or diminishing any such foliage or vegetation which could obstruct the performance of the works.
5.18 The Customer shall be solely responsible for notifying the Company of any changes to the landscape of the Site which could affect the performance of the Services, or the proper functioning of the Goods following installation.
5.19 Vehicle and pedestrian traffic management during performance of the Services shall be the Customer’s sole responsibility and the Customer shall be solely liable for any additional costs, charges and expenses arising from any delay occasioned to the installation works by vehicular or pedestrian traffic.
5.20 If the dimensions of any openings do not correspond to any sizes required for proper installation of the Goods, the Goods may need to be modified and/or structural adjustments may be necessary and the Customer will indemnify the Company for all costs, expenses and charges incurred thereby and for any associated charges, including those arising from any additional Site visits.
5.21 Unless otherwise agreed in writing by the Company, the Services shall not include the repair or replacement of any existing support structures.
5.22 If so indicated in the Company’s acceptance of the Customer’s order issued in accordance with Condition 2.3, inductive vehicle loops will be installed under the road surface and operate by detecting the presence of metallic mass over the loop. The standard loop pattern is set to operate with cars and small commercial vehicles. The Company must be notified prior to the commencement of the works if any motorcycles, vehicles towing caravans, trailers, buses or HGV’s are to pass over the loop so that alternative loop configurations may be considered.
5.23 If an extra visit to the Site is necessary to carry out commissioning of the installation works, charges will be made in accordance with the Company’s current call-out charge scale.
5.24 The Customer shall be solely responsible for ensuring that adequate drainage exists at the Site in order to avoid the occurrence of flood damage to the Goods following installation.
5.25 The Customer shall be solely responsible for affixing pedestrian warning signs and advisory signs to the Goods following installation.
6. INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY AND DATA PROTECTION
6.1 Any and all Intellectual Property Rights (howsoever arising), in relation to the Supplies and any Output Material shall at all times vest in and belong solely to the Company.
6.2 If the Goods are to be designed, built or configured or any process is to be applied to the Goods by the Company in accordance with any express or implied instructions of the Customer (including but not limited to any Input Material submitted by the Customer), the Customer shall hold the Company harmless and shall fully and promptly 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 infringement of any Intellectual Property Rights of any other person which directly or indirectly results from the Customer’s instructions.
6.3 The Customer acknowledges the Company’s ownership of any Intellectual Property Rights in any Output Material and in any Goods and/or Services provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. Without limitation, the Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any
licence or grant of rights therein. The Customer further acknowledges that, without limitation, any and all Intellectual Property Rights developed by the Company in performing any Services or providing any Goods shall become vested and shall vest in the Company absolutely and shall also be subject to the other provisions of this Condition 6.3.
6.4 The Customer and the Company agree that in the course of the Company providing Goods and/or Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party.
6.5 The Customer acknowledges and agrees that any personal data contained in any information provided to the Company may be processed by and on behalf of the Company in connection with the provision of any Supplies.
7.1 Subject only to any special terms agreed in writing between the Company and the Customer, the Company shall be entitled to invoice the Customer for the price of the Supplies on or at any time after acceptance of the Customer’s order. Provided that the Customer has produced references which in the Company’s opinion are satisfactory, then settlement terms will be net 30 days from the invoice date. In all other case payments shall be made in advance upon submission by the Company of a pro-forma invoice.
7.2 The time of payment of the price shall be of the essence of the Contract.
7.3 Without prejudice to Condition 7.1, a non-refundable deposit payment of 50 % of the Contract price shall be payable upon issuance of the Company’s written acceptance of the Customer’s order pursuant to Condition 2.3 (unless otherwise stipulated or agreed by the Company in writing in advance) and any stage payments which are to be made under the Contract shall be made at the times and in the amounts stipulated.
7.4 All payments due to the Company shall be made without any deduction, withholding or set-off.
7.5 Failure by the Customer to pay any invoice by its due date shall entitle the Company to:
(a) at its option, to charge interest at the rate of eight percent (8%) per annum above HSBC Bank plc’s base lending rate from time to time calculated on a daily basis (whether before or after any judgment) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);
(b) to charge the Customer with any costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer;
(c) suspend any warranty for the Supplies or any other goods or services supplied by the Company to the Customer, whether or not they have been paid for;
(d) set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever;
(e) suspend or cancel any future delivery of Goods and/or performance of Services; and
(f) cancel any discount or price reduction (if any) offered to the Customer.
7.6 The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7.7 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
7.8 The Company is not obliged to accept orders from any Customer who has not supplied the Company with references satisfactory to the Company; if at any time the Company is not satisfied as to the creditworthiness of the Customer it may give notice in writing to the Customer that no further credit will be allowed to the Customer.
8. FORCE MAJEURE
8.1 The Company reserves the right to defer the date of provision of the Supplies, or to cancel the Contract or reduce the volume of the Supplies ordered by the Customer (without liability to the Customer) if it is prevented from, or delayed in, the carrying on of its business (wholly or in part) 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, pandemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers, or adverse weather conditions, or any inability or delay in obtaining supplies of adequate or suitable materials, or the failure or demise of any source of supply.
9.1 The Company will endeavour to transfer to the Customer the benefit of any manufacturer’s warranty or guarantee given to the Company and the Company warrants (subject to the other provisions of these Conditions) that:
(a) on delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
(b) if the Customer has made it expressly known to the Company in the Customer’s order that the Goods shall be suitable for a particular purpose and the Company has expressly stated in its written acceptance of the Customer’s order that it will supply Goods suitable for that purpose, then the Goods shall be reasonably fit for the purpose so stated; and
(c) the Services will be performed with reasonable skill and care.
9.2 The Company’s liability pursuant to Condition 9.1 shall be limited: a) for Goods, to the replacement of any part of the Goods found to be defective and notified to the Company within the period set forth in Condition 9.3; and b) for Services, to re-performing those Services found not to have been performed with reasonable skill and care and notified to the Company within the period set forth in Condition 9.3.
9.3 Any defect or deficiency in, or shortage or failure to correspond to specification of the Supplies shall be notified to the Company within 7 days from delivery of the Goods or performance of the Services; otherwise, the Supplies shall be deemed to be satisfactory and a charge will be made for additional rectification work.
9.4 Subject to and without limiting the generality of any of the provisions of this Condition 9, additional individual warranties may apply to certain Goods and/or Services. The terms of any such warranty (including the warranty period) may be obtained from the Company upon request.
9.5 The Company shall not be liable for any breach of any warranty in Condition 9.1 (or for any breach of any warranty referred to in Condition 9.4), if:
(a) the Customer makes any further use of any Goods which the Customer has alleged to be defective after giving notice of any such defect;
(b) the Customer modifies, adjusts, alters or repairs the Goods without the prior written consent of the Company;
(c) the defect arises because the Customer failed to follow any oral or written instructions as to the use or maintenance of the Goods or (if there are none) good trade practice;
(d) the defect arises from any Input Material supplied by the Customer, or from fair wear and tear, wilful damage, negligence, abnormal working conditions, misuse of the Goods or from any other cause which is not due to the neglect or default of the Company;
(e) the defect relates to any work external to the Goods, or arises by virtue of any act or omission of the Customer relating to the use of the Goods, or by subjecting the Goods to any unusual physical or other stress or adverse environmental conditions;
(f) the full price for the Supplies has not been paid by the time for payment stipulated in Condition 7.1, or in accordance with Condition 7.3; or
(g) the defect is of a type specifically excluded by the Company by notice in writing.
9.6 If upon investigation, the Company reasonably determines that any failure or malfunction of or defect in the Supplies is a result of, or is excused by, any of the matters referred to in Condition 9.5, the Customer shall be liable for all costs reasonably incurred by the Company in investigating the same and determining the cause.
9.7 Where the Goods are timber products, the Customer acknowledges that timber is a natural product and that warping, twisting, splitting and discolouration cannot be guaranteed not to occur. All timber products are supplied untreated and (without prejudice to any of the provisions of Conditions 9.2, 9.3, 9.5 or 9.6), it shall be the Customer’s sole responsibility to ensure that such Goods are suitably treated within 14 days of installation in order for the Company to consider a claim against any warranty under Condition 9.1 or, if applicable, Condition 9.4.
10. EXCLUSION OF LIABILITY
10.1 Other than as provided in Condition 9 above and in Section 12 of the Sale of Goods Act 1979 and save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982, all conditions, warranties and liabilities whatsoever whether express or implied, statutory or otherwise, are hereby expressly excluded and the Company shall be under no liability whatsoever for any loss or damage of whatsoever kind, howsoever caused or arising, including but without being limited to any direct, indirect or consequential loss or damage, lost profits, loss of use or other economic loss, provided that nothing herein contained shall be construed so as to exclude or limit the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence;
(b) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(c) for fraud or fraudulent misrepresentation.
10.2 Subject to the provisions of Condition 10.1, 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 the Contract shall be limited to the Contract price. The Company’s liability pursuant to Condition 9 shall be limited: a) for Goods, to the replacement of the Goods (or any part thereof) found to be defective and notified to the Company within the period set forth in Condition 9.3 (or within the warranty period of any relevant warranty referred to in Condition 9.4), as applicable; and b) for Services, to re-performing those Services found not to have been performed with reasonable skill and care and notified to the Company within the period set forth in Condition 9.3 (or within the warranty period of any relevant warranty referred to in Condition 9.4), as applicable. The Company may in either event but at its sole discretion, alternatively refund to the Customer the price (or part thereof) of the Goods and/or Services.
10.3 The Customer shall hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
WHERE THE CONTRACT IS WITH A CONSUMER, NOTHING IN THIS CONDITION 10 SHALL OPERATE TO EXCLUDE OR LIMIT ANY LIABILITY THAT THE COMPANY MAY HAVE TO THE CUSTOMER (IF ANY) UNDER THE CONSUMER RIGHTS ACT 2015.
11.1 The Company reserves the right without prior approval from or notice to the Customer to make changes to the Supplies or their specification in order to meet any statutory or other requirement, or which do not materially affect the nature or quality of the Supplies. Without limitation, the Company shall not be held responsible for minor departures from the Contract specification made necessary by Site conditions or unforeseen circumstances.
12. RISK AND TITLE
12.1 Risk of damage to or loss of the Goods shall pass to the Customer at the time of delivery of the Goods to the Site.
12.2 Title to the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Customer on any account.
CONDITIONS 12.3 AND 12.4 SHALL APPLY TO BUSINESS CUSTOMERS ONLY, AND NOT TO CONSUMERS
12.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery and indemnify the Company against all loss or damage of whatsoever nature affecting the Goods;
(e) notify the Company immediately if it becomes subject to any of the events listed in Conditions 13.1 (d) to 13.1 (j) inclusive;
(f) not assign to any other person any rights arising from a sale of the Goods without the Company’s written consent (and then only subject to a set of terms and conditions containing a Risk and Title clause which is at least as onerous as this Condition 12); and
(g) give the Company such information relating to the Goods as the Company may require from time to time, but the Customer may resell the Goods in the ordinary course of its business, provided that it shall hold the entire proceeds of any such resale upon trust for the Company until the Goods have been paid for in full and shall keep all such trust monies in a separate bank account which shall not be overdrawn and in which such trust monies are not mingled with its own or any other monies. The Customer acknowledges and agrees that a sale by an administrator or liquidator as part of or in connection with the sale of the assets or part of the assets of the Customer is not in the ordinary course of the Customer’s business.
(a) the Customer is late in paying for the Goods; or
(b) the Customer is late in paying for any other goods or services supplied by the Company; or if
(c) before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Conditions 13.1 (d) to 13.1 (j) inclusive or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then:
(d) without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, the Company may enter any premises of the Customer or of any third party where the Goods are stored or kept in order to recover them. The Customer shall not keep the Goods at any premises other than such premises as shall be specified in writing by the Customer to the Company prior to the dispatch of Goods to the Customer, or at any premises at which the Customer does not have the right to grant access to the Company.
13.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a Company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
(h) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Conditions (c) (i) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(m) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
13.2 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of any Goods and/or Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt; and
(b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
14.1 No forbearance or indulgence granted by the Company to the Customer shall in any way limit the rights of the Company under these Conditions.
14.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business.
14.3 Neither the Company nor the Customer intends that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
14.5 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.
14.6 Any dispute arising under or in connection with the Contract shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application by either party to the President for the time being of the Law Society whose decision as to the type, qualifications and experience of such arbitrator shall be final and binding on the parties.
14.7 The costs of the arbitrator shall be borne by the parties as he directs and his decision on the issue in dispute shall be final.
14.8 These Conditions shall be subject to and construed under English Law and the parties hereby submit to the exclusive jurisdiction of the English courts for that purpose.
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