INDUSTRIAL AIR POWER LIMITED
TERMS AND CONDITIONS OF SALE
The customer's attention is drawn in particular to the provisions of clause 8
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods and/or the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Deliverables: all Documents, products and materials developed by the Supplier or its agents, sub-contractors, consultants and employees in relation to the Services in any form.
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or recording embodying the information in any form.
Force Majeure Event: has the meaning given in clause 9.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's purchase order for the Goods and Services or the Customer acceptance of a quotation for the Goods and Services by the Supplier, as set out overleaf.
Services: the services (if any) of any part of them as set out in the Order.
Service Location: the premise or premises at which the Services are to be performed.
Specification: any specification for the Goods and/or Services, including any related plans and drawings, that is supplied to the Supplier by the Customer, or produced by the Supplier and agreed in writing by the Customer.
Supplier: Industrial Air Power Limited (registered in England and Wales with company number 01978604).
Warranty Period: the relevant manufacturer’s warranty period (if any) for Goods as supplied to the Supplier details of which can be obtained from the Supplier and will vary with different Goods.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods and Services in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the sale of the Goods and/or the supply of Services.
2.5 A quotation for the Goods and/or Services given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
2.6 Nothing in the Contract shall affect the statutory rights of a consumer. When Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1996) the statutory rights of the Customer are not affected by these Conditions.
3. DELIVERY
3.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered
3.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
3.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
3.4 Any dates quoted for delivery of Goods and/or performance of Services are approximate only, and the time of delivery and performance is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods and/or performance of the Services that is caused by a Force Majeure event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods and/or Services.
3.5 If the Supplier fails to deliver the Goods and/or perform the Services, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods and/or services of similar description and quality in the cheapest market available, less the price of the Goods which were not delivered and/or Services which were not performed. The Supplier shall have no liability for any failure to deliver the Goods and/or performance of the Services to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods and/or performance of the Services.
3.6 If the Customer fails to accept delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.7 If 10 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
3.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4. QUALITY
4.1 The Supplier warrants that on delivery, and for the Warranty Period, the Goods shall:
(a) conform in all material respects with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
4.2 Subject to clause 4.3, if:
(a) the Customer gives notice in writing to the Supplier during the warranty period and within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1; and
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
4.3 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 4.1 if:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 4.2; or
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice; or
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer; or
(d) the Customer alters or repairs such Goods without the written consent of the Supplier; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the defect arises as a result of the Goods not being compatible with or suitable for use with the Customer’s existing equipment or systems;
(g) the defect is not covered by a valid warranty given by the manufacturer of the defective Goods in favour of the Supplier.
4.4 Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 4.1.
4.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
4.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5. TITLE AND RISK
5.1 The risk in the Goods shall pass to the Customer on completion of delivery.
5.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Goods and the Services; and
(b) all other sums which are or which become due to the Supplier for sales of the Goods and/or the supply of the Services or any other products to the Customer.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier'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;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause Error! Reference source not found.; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause Error! Reference source not found., or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6. PRICE AND PAYMENT
6.1 The price of the Goods and Services shall be the price set out in the written acceptance of Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
6.2 The Supplier may, by giving notice to the Customer at any time up to 3 Business Days before delivery, increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods and/or Services that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
6.3 The price of the Goods and the Services is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
6.4 Subject to clause 6.8 the Supplier may invoice the Customer for the Goods and Services on or at any time after the completion of delivery of the Goods.
6.5 Subject to clause 6.8 the Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
6.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 5% per annum above Barclays Bank plc's base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6.8 The Supplier reserves the right at any time to invoice the Customer for the Goods and Services and to demand payment for the Goods and Services in advance of delivery of the Goods or prior to performance of the Services and shall notify the Customer in writing if it requires payment before delivery or performance.
7. CUSTOMER'S INSOLVENCY
7.1 This clause 7 applies if:-
(a) The Customer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters into administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or a moratorium comes into force in respect of the Customer (within the meaning of the Insolvency Act 1986); or
(b) An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer, or
(c) The Customer ceases, or threatens to cease, to carry on business; or
(d) The Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
7.2 If this clause applies, then without limiting any other right or remedy available to the Supplier, it may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
8. LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or by section 2 of the Supply of Goods & Services Act 1982; or
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.2 Subject to clause 8.1:
(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors); and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors shall not exceed the price of the Goods and Services.
8.3 The Supplier shall not be responsible for and shall not be liable to the Customer for the suitability and/or compatibility of the Goods and Services with the Customer’s existing systems and equipment or the suitability and/or compatibility of the Goods for use at the Delivery Location and/or the Service Location.
9. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
10. INSTALLATION/CONTRACT WORK
10.1 The price for the Goods and Services does not include or provide for the unloading of Goods upon arrival at the Service Location. The Customer is expected to have suitable unloading equipment including all necessary lifting equipment and labour. The Customer will reimburse the Supplier for any loss or damage suffered as a result of the Customer’s failure to comply with this condition.
10.2 If interruptions in the provision of the Services are experienced then the Supplier will charge for the additional journeys to and from the Service Location at normal day work rates to include labour, mileage, accommodation and plant hire, plus any other loss, damage or expenses incurred as a result of interruption.
10.3 The Supplier shall not be liable for any loss, damage or expense suffered by the Customer if any Service is not completed within the time provided in the Contract.
10.4 The Supplier will not perform any services in addition to the Services unless the Customer gives a variation order in writing to cover the charges for such services and undertakes to pay for such additional services.
10.5 The Supplier does not accept responsibility for gaining access to the working area at the Service Location except as regards obstructions specifically brought to the Supplier’s attention by the Customer and specifically noted in the Order. If access to the working area at the Service Location is blocked or prevented by any means not specifically mentioned in the Order the Supplier will provide such necessary equipment and additional labour to obtain access upon the receipt of a written variation order from the Customer to pay for such additional work.
10.6 The Customer shall be liable for and shall indemnify the Supplier against any expense, liability, loss, claim or proceedings whatsoever arising under any statute or at common law in respect of any personal injury to or the death of any person whomsoever arising out of or in the course of or caused by the carrying out of the Services at the Service Location by the Supplier unless due to any act or neglect of the Supplier or of any person for whom the Supplier is responsible.
10.7 The Customer shall be liable for and shall indemnify the Supplier against any expense, liability, loss, claim or proceedings in respect of any damage whatsoever to any property real or personal arising out of or in the course of or by reason of the carrying out of the Services at the Service Location unless the same shall be due to any act or neglect of the Supplier or of any person for whom the Supplier is responsible.
10.8 Without prejudice to the Customer’s liability to indemnify the Supplier pursuant to clauses 10.6 and 10.7 the Customer shall maintain and shall cause any contractor to maintain such insurances as are necessary to cover the liability of the Customer and any contractor in respect of personal injuries or death or damage to property real or personal arising out of or in the course of or caused by the carrying out of the Services for which the Customer is liable pursuant to this clause 10 and further the Customer hereby warrants that the Service Location shall be fully compliant with the provisions of all applicable statutes, regulations, statutory instruments, codes of practice or other provisions whatsoever. The Customer shall indemnify the Supplier against any expense, liability, loss, claim or proceedings arising from a breach of this condition.
10.9 The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Service Locations that have been communicated to it under clause 10.10, provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
10.10 The Customer shall:-
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier, its agents, sub-contractors, consultants and employees, in a timely manner and at no charge, with access to the Service Location and other facilities as reasonably required by the Suppler;
(c) be responsible (at its own cost) for preparing and maintaining the Service Location for the supply of the Services, including identifying, monitoring and removing and disposing of any hazardous materials from the Service Location in accordance with all applicable laws, before and during the supply of the Services at those premises and informing the Supplier of all of the Customer’s obligations and actions under this clause;
(d) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Service Location;
(e) ensure that all the equipment situate at the Service Location is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements;
(f) supply the Supplier with all necessary Documents or other materials and all necessary data or other information to enable the Supplier to provide the Services.
10.11 If the Supplier’s performance of its obligations under the Contract are prevented or delayed by any act or omission of the Customer, its agents, sub-contractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
11. GENERAL
11.1 Assignment and subcontracting.
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or principle place of business (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3 Severance.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.6 Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Customer.
11.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
11.8 Intellectual Property Rights. As between the Customer and the Supplier all intellectual property rights and all other rights in the Deliverables shall be owned by the Supplier.