In these Conditions the following expressions shall have the meanings sat opposite them.
the Company Passenger Lift Solutions Limited
the Customer the person, firm or company to whom a quotation, offer or tender is addressed or whose order is accepted by the Company including (where the context so requires) any architect, engineer or other professional or authority employed by the Customer to whose instructions the Goods are supplied or related services are carried out.
the Goods to include goods and/or related services (whether of installation or otherwise) or any part or section thereof of any description to be supplied or performed under the Contract
the Order the order or orders placed by the Customer upon the Company
the Contract the contract between the Company and the Customer arising on acceptance of the Order subject to these Conditions of Sale
1. Formation of Contract
1.1. All quotations, offers and lenders are made and all Orders are accepted subject to the following Conditions. Subject only to Condition 1.2 all other terms, conditions or warranties whatsoever are excluded from any contract between the Company and any Customer or any variation thereof unless expressly accepted in writing by a director or other authorised representative of the Company.
1.2. In the event of a conflict between these Conditions and the Company’s express terms of any quotation or acknowledgement of Order then such express terms shall prevail.
1.3. Quotations, offers and tenders issued by the Company are for the whole of the Goods referred to in them and the Company reserves the right to refuse acceptance of any Order which relates to only part of the Goods forming the subject of a quotation, offer or tender.
1.4. Quotations shall be available for acceptance for a maximum period of 30 days from date of issue and may be withdrawn by the Company at any time prior to the Customer’ acceptance by written or oral notice.
1.5. If any statement or representation has been made to the Customer by the Company, or to its employees or agents upon which the Customer relies (other than in the document(s) enclosed with the Company’s quotation or acknowledgment of Order), then the Customer must set out that statement or representation in a document to be attached to or endorsed on the Order and in any such case the Customer may confirm, reject or clarify the point and submit a new quotation. Linder no circumstances shall the Company be responsible for, or be held liable to respect of, any statement or representation relied upon by the Customer which is not attached to or endorsed on the Order and subsequently confirmed in writing by the Company
1.6. Unless otherwise agreed in writing all trade terms shall be interpreted in accordance with INCOTERMS current at the time the Order is accepted.
2. Prices
2.1. Unless otherwise agreed in writing all prices are quoted net ex works exclusive of VAT, carriage, packing, materials and labour.
2.2. Where the Company delivers the Goods the Customer shall be liable to the Company for carriage costs and any demurrage costs incurred by the Company in the event of vehicles being unduly delayed at the designated point of delivery.
2.3. Quoted prices are subject to fluctuation in the event of any increase in the cost of labour or in the cost of materials and/or overheads. Any increase in such costs during the period of the Contract may be added to the quoted price.
3. Payment
3.1. Domestic sales:
3.1.1. Non-account Customers must send with the Order or otherwise prior to delivery, a remittance to cover the charge for the Goods and, if required, the cost of packing, carriage and insurance together with any VAT thereon.
3.2. Export sales:
3.2.1. Non-account Customers must either:
3.2.1.1. Send with Order or otherwise prior to delivery a remittance to cover the quoted price of the Goods and, if required, the cost of packing, carriage and insurance together with a certificate or origin, or
3.2.1.2. Effect payment by means of a confirmed irrevocable letter of credit opened in the Company’s name before the date specified for delivery with the Natwest Bank, 34 High Street, Smethwick, Birmingham, West Midlands, B66 1DU (or any Bank which the Company may specify).
3.3. Credit accounts:
3.3.1. Customers wishing to open an account with the Company must furnish British trade and bank references. Credit accounts shall be entitled net seven (7) / fourteen (14) / thirty (30) days after the date of invoice, as specified at the creation of an account.
3.4. Pro-forma accounts:
3.4.1. On receipt of the pro-forma invoice, the customer will be required to pay the invoice prior to the release of goods.
3.5. Bills:
3.5.1. Where the Company agrees that payment may be made by bill then, unless otherwise agreed in writing, the bill will be drawn for payment at sight upon presentation by banker’s agent, documents against payment.
3.6. Unless otherwise agreed in writing where Goods are delivered by instalments and/or services performed in sections payments for each instalment and/or section shall be made separately and the Customer shall affect payment in accordance with these Conditions.
3.7. No disputes arising under the Contract nor delays beyond the reasonable control of the Company shall interfere with prompt payment in full by the Customer.
3.8. In the event of default in payment by the Customer the Company shall be entitled, without prejudice to any other right or remedy:
3.8.1. To suspend all further deliveries and/or the performance of services on this Contract and on any other contract or contracts between the Company and the Customer than current without notice, and
3.8.2. To charge interest on any amount outstanding at the rate of 8% per annum of the Base Rate of the Bank of England such interest being charged as a separate, continuing obligation not merging with any judgement, and/or
3.8.3. To serve notice on the Customer requiring immediate payment for all Goods and/or services supplied or performed by the Company under this and all other contracts with the Customer whether or not payment is otherwise due or invoiced.
4. Delivery
4.1. Time for delivery and/or completion of services is given as accurately as possible but is not guaranteed. The Customer shall have no right to damages or to cancel the Contract for failure for any cause to meet any delivery and/or completion time stated
4.2. The date of delivery and/or completion of services shall in every case be dependent upon prompt receipt of all necessary information, final instruction or approvals from the Customer. Any delays or alterations by the Customer in design or specifications required may result in delay in delivery and/or completion.
4.3. Failure by the Customer to take delivery of or make payment in respect of any one or more instalments of Goods delivered or section of services performed under the Contract shall entitle the Company to treat the Contract as repudiated by the Customer either in whole or in part.
4.4. The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery or completion of services but shall be under no obligations to do so. Where delivery or completion is postponed, otherwise than due to the default by the Company, the Customer shall pay all costs and expenses, including a reasonable charge for storage, insurance and transportation so occasioned, and payment for the Goods and/or the services shall be made in accordance with these Conditions.
5. Packing
5.1. Unless otherwise agreed in writing, cases and other packing materials, when charged for, will be credited if returned to the Company’s works within three months of the date of invoice, carriage paid and in good Condition.)
5.2. Any packaging supplied by the Company, unless otherwise expressly agreed in writing, is intended to provide adequate protection in normal conditions of transit of usual duration.
6. Risk and Title
6.1. Risk shall pass to the Customer at the time when the goods leave the premises of the Company so that the Customer is responsible thereafter for all loss, damage or deterioration to the Goods in all circumstances and irrespective of whether the Company has contracted to install.
6.2. Title to the Goods shall only pass to the Customer upon the happening of any one of the following events:
6.2.1.1. The Customer has paid to the Company all sums (including any default interest) due from it to the Company under this Contract and under all other contracts between the Company and the Customer including (for the avoidance of doubt) any sums due under contracts made after this Contract whether or not the same are immediately payable, or
6.2.1.2. When the Company serves on the Customer notice in writing specifying that title in the Goods has passed.
6.3. The Company may recover Goods in respect of which title has not passed to the Customer at any time and the Customer hereby licenses the Company, its officers, employees and agents to enter upon any premises of the Customer for the purpose either of satisfying itself that condition 6.4 below is being complied with by the Customer or of recovering any Goods in respect of which title has not passed to the Customer
6.4. Until title to the Goods has passed to the Customer pursuant to these Conditions it shall possess the Goods as fiduciary agent and bailee of the Company. If the Company as required, the Customer shall store the Goods separately from other goods and shall ensure that they are clearly identifiable as belonging to the Company.
7. Cancellation
7.1. Cancellation will only be agreed to by the Company on condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage resulting to the Company by reason of such cancellation will be paid forthwith by the Customer to the Company.
7.2. Goods returned to the Company without the Company’s written consent will under no circumstances be accepted for credit.
8. Variation
8.1. All variations required by the Customer and accepted by the Company shall be agreed in writing and the price, if not agreed prior to the manufacture or delivery of the Goods or commencement of performances of the services, shall be based on the original contract price plus escalation in respect of inflation and increased costs of materials and labour.
8.2. If the Company agrees to any variation any date quoted for delivery and/or completion of services shall be extended accordingly.
9. Specification
9.1. The Company reserves the right to alter or change dimensions or composition of the goods to be supplied to conform to applicable standard or laws or otherwise within reasonable limits having regard to the nature of the goods but if such rights be exercised no variation to the price shall be made, save with the customer’s consent, and delivery shall not be unreasonably delayed
9.2. The information contained in the advertising, sales and technical literature issued by the Company may be relied upon to be accurate in the exact circumstances in which is expressed, otherwise any illustrations, performance details, examples of installations and methods of assembly and all other technical data in such literature are based on experience and upon trials under test conditions and are provided for general guidance only. No such information or data shall form part of the Contract unless the Customer shall have complied with Condition 1.5 relating to statements and representations.
10. Shortages and defects apparent on inspection
10.1. The Customer shall have no claim for shortages or defects in the Goods supplied apparent on visual inspections unless:
10.1.1. The Customer inspects the Goods within three (3) working days of their arrival at its premises or other agreed destination, and
10.1.2. A written complaint specifying the shortage or defect is made to the Company and to the carrier within seven (7) days of delivery in the event of shortage, defect, or non-delivery of any separate part of a consignment, or within fourteen (14) working days of the notified date of despatch in the event of non-delivery of whole consignment, or in either event, within such shorter period as the carrier’s conditions (if applicable) require, and
10.1.3. The Company is given an opportunity to inspect the Goods and investigate any complaint before any use of or alteration to or interference with the Goods.
10.2. The Customer shall have no claim in respect of defects apparent on visual inspection of services performed by the Company unless a written complaint is made by the Customer within seven (7) working days of completion of performance of the services and the Company is given the opportunity to inspect the services performed and to investigate the complaint.
10.3. If a complaint is not made to the Company as provided in this Condition 10 then the Goods and/or services shall be deemed to be in all respects in accordance with the Contract and the Customer shall be bound to pay for the same accordingly. 10.4 Defects in quality or dimension in any instalment delivery or in the performance of any section of the services shall not be a ground for cancellation of the remainder of the Contract.
11. Defects not apparent on inspection
11.1. The Customer shall have no claim in respect of defect in the Goods supplied and services performed which are not apparent on visual inspection at the time of delivery or completion of performance unless:
11.1.1. A written complaint is sent to the Company as soon as reasonably practicable after the defect is discovered and no use is made of the Goods thereafter and no alteration made thereto or interference made therewith before the Company is given an opportunity to inspect the Goods and services performed in accordance with the Condition, and
11.1.2. The complaint is sent within twelve (12) months of the date of delivery of the Goods or completion of the performance of the services or, in the case of an item not manufactured by the Company, within the guarantee period specified by the manufacture of such item.
11.2. The Customer shall not be entitled to any claim in respect of any repairs or alterations undertaken by the Customer without the prior specific written consent of the Company nor in respect of any defect arising by reason of fair wear and tear or damage due to accident, neglect or misuse nor in respect of any Goods to which alterations have been made without such consent or to which replacement parts not supplied by the Company have been fitted.
11.3. The Company shall not be liable for (and the Customer shall indemnify the Company against claims arising therefrom) loss or damage suffered by reason of use of the Goods after the Customer becomes aware of a defect or after circumstances which should reasonably have indicated to the Customer the existence of a defect.
11.4. The Company may within fifteen (15) days of receiving a written complaint (or twenty-eight (28) days where the Goods are situated outside the United Kingdom) inspect the Good and the Customer, if so, required by the Company, shall take all steps necessary to enable the Company to do so.
12. Guarantee condition
12.1. Save as otherwise provided by the other Conditions of these Conditions Sections 13 to 15 of the Sale of Goods Act 1979 and Sections 3 to 5 of the Supply of Goods and Services Act 1982 are to be implied into the Contract.
12.2. In the event of the condition of the Goods or the performance of the services being such as might or would (subject to these Conditions) entitle the Customer to claim damages, to repudiate the Contract and/or reject the Goods or services the Customer shall not then do so but shall first ask the Company to repair or supply satisfactory substitute Goods or rectify the services and the Company shall thereupon be entitled at its option to repair or take back the defective Goods and to supply satisfactory substitute Goods or perform works of rectification free of cost and within a reasonable time or to repay the price of the Goods and/or services in respect of which the complaint is made.
12.3. If the Company does so repair the Goods or supply satisfactory substitute Goods or effect repayment or rectification pursuant to Condition 12.2 above the Customer shall be bound to accept such repaired or substituted Goods, repayment or rectification and the Company shall be under no liability in respect if any loss or damage whatsoever arising from the initial delivery of the defective Goods or from the delay before the defective Goods are repaired or the substitute Goods are delivered or the repayment or rectification is affected.
12.4. In the case of Goods not manufactured by the Company: –
12.4.1. The Company gives no assurance or guarantee whatsoever that the sale or use of such Goods will not infringe the patent, copyright or other industrial property rights of any other persons, firm or company, and
12.4.2. The guarantee will be limited to the guarantee (if any) which the Company receives from the manufacturer or supplier of such Goods.
13. Liability
13.1. The Company shall not be liable:
13.1.1. In respect of claims arising by reason of death or personal injury unless the Company is shown to have failed to exercise reasonable care in the performance of the Contract and/or the Company is adjudged to be responsible for defective Goods pursuant to Part 1 of the Consumer Protection Act 1989, or
13.1.2. In respect of claims arising through damage to property unless the Company is adjudged to be responsible for defective Goods pursuant to Part 1 of the Consumer Protection Act 1987.
13.2. Further, under no circumstances whatsoever shall the Company be liable for consequential loss (including removal or rectification work required in connection with the installation of repaired or substitute Goods) loss of profits, damage to property or wasted expenditure.
13.3. Without prejudice to Condition 13.2 where Goods are supplied for the purpose of a business the Company’s liability, whether in respect of one claim or the aggregate of various claims (other than claims for death or personal injury or claims pursuant to Part 1 of the Consumer Protection Act 1987) shall not exceed (£) and the Customer agrees to insure adequately to cover claims in excess of such amount).
14. Confidential information and intellectual property rights
14.1. All drawings, documents, confidential records, computer software and other information supplied by the Company are supplied on the express understanding that copyright is reserved to the Company and that the Customer will not, without the written consent of the Company, either give away, loan, exhibit or sell any such drawings, documents, records, software or other information or extracts therefrom or copies thereof or use them in any way except in connection with the Goods in respect of which they are issued.
14.2. Subject to Conditions 12.4 and 14.2.1 the Company shall indemnify the Customer against any liability to the proprietor of a valid patent in the UK which may incur by reason that its use or sale of the Goods infringes any such patent provided that the Customer notifies the Company forthwith of any claim of infringement made against it and at the Company’s request and expense cooperate in settling any such claim and does not without the Company’s prior written consent compromise any such claim or trust with the Claimant.
14.2.1. This indemnity shall not apply:
14.2.1.1. If the infringement is caused by the Company following a design or specification supplied by the Customer or on its behalf.
14.2.1.2. If the infringement is caused solely by the use or sale of the Goods in combination with other goods.
14.2.1.3. If the relevant sale or use of the Goods would not have constituted infringement at the date of their delivery by the Company, or
14.2.1.4. If the Customer is under an obligation which prevents it from contesting the validity or scope of any relevant patent.
14.3. The Customer shall not do in relation to the Goods any act to which Section 6 of the Trade Marks Act 1938 applies.
15. Customers Drawings
15.1. The Customer shall be solely responsible for ensuring that all drawings, information, advice and recommendation given the Company, either directly or indirectly by the Customer or by the Customer’s officers, employees, agents, consultants or advisers, are accurate, correct and suitable. Examination or considerations by the Company of such drawings, information, advice or recommendations shall in no way limit the Customer’s responsibility hereunder unless the Company under the hand of a director or other authorised representative specifically agrees in writing to accept responsibility.
15.2. The Customer shall indemnify the Company from and against all actions, claims, costs and proceedings which arise due to the manufacture of Goods or performance of services to the drawings or specifications of the Customer where such drawings or specifications are at fault or where it is alleged that they involve an infringement of a patent, copyright, registered design right or design copyright or other exclusive right.
16. Insolvency
16.1. If the Customer that becomes bankrupt, or under the provisions of Section 123 of the Insolvency Act 1986 is deemed to be unable to pay its debts, or compounds with creditors or in the event of a resolution being passed or proceedings commenced for the administration or liquidation of the Customers (other than for a voluntary solvent winding up for the purposes of reconstruction or amalgamation), or if a Receiver or Manager is appointed of all or any part of its assets or undertaking, the Company shall be entitled to cancel the Contract in whole or in part by notice in writing without prejudice to any other right or remedy accrued or accruing to the Company.
17. Vis Major
17.1. In the event of the performance of any obligation accepted by the Company being prevented, delayed, or in any way interfered with by:
17.1.1. Direction of government, war, industrial dispute, strike, breakdown of machinery or plant, accident, fire or by any other cause beyond the Company’s control, or
17.1.2. Non-delivery by the Company’s suppliers or damage to or destruction of the whole or part of the Goods, the Company may at its option suspend performance or cancel its obligations under the Contract without liability for any damage or consequential loss resulting there from such suspension or cancellation being without prejudice to the Company’s right to recover all sums owing to it in respect of consignments delivered, and/or services performed, and costs incurred prior to the date of suspension or cancellation.
18. Consumer Protection Act 1987 (“the act”)
18.1. In circumstances where the Company supplies parts or products to the Customer for incorporation with, or use ancillary to, any composite or other products to be produced, manufactured, processed or supplied by the Customer then:
18.1.1. The Customer shall forthwith on demand produce for inspection by the Company copies of all written instructions, information and warnings to be supplied by the Customer in relation to the said composite or other products, provided nevertheless that such inspection or right to inspect shall not of itself constitute acceptance or approval on the part of the Company of such instructions, information or warnings, and
18.1.2. The Customer shall indemnify, reimburse and compensate the Company for all losses and damages (including costs, expenses and charges for legal actions in which the Company may be involved) that the Company may incur, or has to bear. In the event that any claim or claims are made against the Company pursuant to the Act or otherwise relating to the said composite or other products of the Customer in circumstances in which the part or product supplied by the Company was either (i) not the defective part of the said composite product, or (ii) was only rendered the defective part or became a defective product by reason of actions or omissions of the Customer (including without limitation the supply of defective free issue materials), or (iii) was only rendered the defective part or became a defective product by reason of instructions or warnings given by the Customer or other supplier of the said composite or other products or (iv) supplied in accordance with a specification and/or drawings furnished by, or on behalf of, the Customer.
18.1.3. For the purposes of this Condition only the word “defective” shall be interpreted in accordance with the definition of “defect” contained in Part 1 of the Act.
18.2. The Customer hereby acknowledges that it is under a duty to pass on to its customers (where appropriate) all instructions, information and warnings supplied to it by the Company with the Goods.
19. Exhibition
19.1. The Customer shall not at any time without the Company’s prior consent in writing:
19.1.1. Exhibit any of the Goods sold by the Company at any exhibition (within the United Kingdom)
19.1.2. Taken part, assist at, support or be concerned with any such exhibition or any competition or competitive trials (in the United Kingdom) of or relating to such Goods, or
19.1.3. Publish or distribute or cause or assist in the publication or distribution of, any literature relating to any such exhibition or competition or competitive trials or the results thereof,
20. Tools, etc.
20.1. All tools, drawings and specifications involved in the manufacture of the Goods shall remain the Company’s property unless specifically agreed in writing.
21. Assessments
21.1. The Contract is between the Company and the Customer as principals and under no circumstances shall the Customer assign the benefits or burden of it without the prior written consent of the Company. The Company shall be entitled to assign or sub-contract the whole or part of its obligations under the Contract.
22. Severability
22.1. In the event of any provision of these Conditions being or becoming void in whole or in part the other provisions of these Conditions shall remain fully valid and enforceable and void provisions shall, where appropriate, be replaced in accordance with the meaning and purpose of these Conditions.
23. Installations
23.1. Where the terms of quotation include installation to be affected by the Company on the Customer’s premises or on a third party’s premises, the Customer shall indemnify the Company against all liability for the breach of any duty imposed (whether by statute, order, regulation, bye law or common law) upon the occupier of the premises, or upon persons employed on the premises, in respect of:
23.1.1. The condition of such premises,
23.1.2. The means of access to any place of work,
23.1.3. The suitability and condition of any plant, equipment or appliance used on such premises and not provided by the Company, provided that this indemnity shall not extend to liability, directly resulting from the act or default of any person employed by the Company.
24. Territorial restrictions
24.1. If you reside inside the European Economic Community, you will not, without previous written consent, sell the Goods, or knowingly sell them for resale outside the countries comprising the European Economic Community.
24.2. If you reside outside the European Economic Community, you will not, without our previous written consent, sell the Goods, or knowingly sell them for resale outside the country in which you reside.