Terms and Conditions of Sale |Complete Cooling Systems Ltd
In these Conditions the following words shall have the following meanings:
“Buyer” means the person, firm or company who accepts, and whose name/address appears on, the Order.
“Company” means Complete Cooling Systems Limited, a company registered in England and Wales under company no. 01795088 having its registered office at 19 King Street, West Malling, Kent, ME19 6QT.
“Goods” means the parts, products, services, labour and charges (including any instalment of the Goods or any parts for them) which the Company is to supply in accordance with these Conditions. The Company provides products from manufacturers who have policies of continuous technical improvement and accordingly reserves the right to make minor modifications to the technical specifications and design of the Goods. Catalogues and technical information provided is an approximate guide and the Company has no liability for any deviations from or mistakes in such information or for any errors in interpretation.
“Conditions” means the standard terms and conditions set out in this document.
“Contract” means the Contract between the Company/Buyer for the sale/purchase of the Goods.
“Force Majeure” means, including but not limited to, any act, event, non-happening, omission or accident beyond reasonable control and includes (without limitation) Strikes, lock-outs or other industrial action, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport, impossibility of the use of public or private telecommunications networks, the acts, decrees, legislation, regulations or restrictions of any government.
“Interest” means Interest at 8% p.a. above Barclays Bank Plc base rate from time to time.
“Order” means any Order of the Buyer for the Goods.
“Site” means such place to which the Buyer shall request the Company to make delivery and/or installation.
“Writing” includes email, letter, facsimile transmission and comparable means of communication.
In these Conditions and unless the context otherwise requires:
2.1 The paragraph headings are inserted for reference purposes only and shall not affect interpretation;
2.2 References to a person include his, her, their, or its successors in title, or permitted assignees;
2.3 Words importing the singular include the plural and vice versa;
2.4 References to a person include an individual, firm, company, corporation, unincorporated body of persons and any government entity and his, her, their or its permitted assignees, and permitted transferees;
2.5 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
3. FORMATION AND INCORPORATION
3.1 No terms and/or conditions endorsed upon, delivered with or contained in the Company’s quotation, specification or similar document will form part of the Contract and the Buyer waives any right, which it otherwise might have to rely on such terms and/or conditions.
3.2 Each Order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods on these Conditions, and no Order shall be accepted until the Company either, by giving notice of acceptance or by fulfilling the Order, accepts the offer.
3.3 Any variation to the Order or these Conditions shall have no effect unless expressly agreed in Writing, and signed by an authorised signatory of the Buyer and the Company.
3.4 Placing an Order presumes knowledge and acceptance of these conditions.
4.1 The Goods shall be delivered to the Buyer as stated on the Order, or at some other place of delivery agreed in Writing by both parties.
4.2 The Company shall use its reasonable endeavours to deliver and/or install the Goods on the dates, or within the periods specified in the Order. Time for delivery and/or installation shall not be of the essence. Failure by the Company to make delivery on a particular date shall not entitle the Buyer to cancel the order or the delivery or repudiate this contract or to claim for any expenses loss of profit or any other consequential losses.
4.3 Where access to any premises is necessary in connection with delivery and/or insllation, the Buyer, its sub-contractors, agents or employees shall at all times comply with the reasonable requirements of the Company.
4.4 Where more than one item of Goods is involved in the Order, the Company may deliver by instalments. The Contract shall be construed as a single contract in respect of all the instalments. Delay in delivering any instalments shall not entitle the Buyer to treat the Contract as repudiated.
4.5 In the event that Delivery is delayed as a result of the Buyer or any third party actions or default or delay the Company reserves the right to charge the Buyer for any loss it may incur as a result of such delay.
5.1 Risk in the Goods shall pass to the Buyer upon the Goods being delivered to the Buyer’s premises. The Buyer shall examine the Goods on delivery and the Company shall not accept any liability for any damage or fault in the Goods unless the Buyer advises the Company in writing within 48 hours of delivery or installation of the Goods (subject to any warranty thereon). If the Buyer fails to comply with this clause the Goods shall be deemed to be in accordance with the contract.
5.2 The Company’s liability in the event of damage or fault shall be limited to repair or replacement of the Goods which prove to be defective, the choice of remedy to be at the discretion of the Company. Such action shall be taken as soon as practically possible by the Company and shall be free of charge.
5.3 Notwithstanding the passing of risk to the Buyer, the Company shall retain ownership of the Goods and the Buyer shall keep any Goods delivered or installed as bailee on behalf of the Company until the Company has received full payment. Until such time the Buyer shall keep and retain the Goods free from any charge lien or other encumbrance and shall insure them for their full replacement value against any loss or damage.
5.4 For the avoidance of doubt, if the Buyer does not pay any invoice as required under these Conditions, the Buyer hereby irrevocably authorises the Company to enter the Buyer’s premises to repossess the Goods.
6. PRICE AND VARIATION
6.1 The price payable for the Goods shall be stated in the Order and, unless otherwise agreed in Writing by both parties, shall be inclusive of all charges including, delivery of the Goods to the delivery address, and any duties levies or taxes, other than Value Added Tax; and, fixed for the duration of the Contract. Any quotation provided by the Company shall only be valid for 30 days and is subject to the Company’s acceptance of the Buyers order.
6.2 The Buyer shall make a full disclosure of all relevant information in connection with the Goods and installation thereof. The Company shall be entitled to rely on the accuracy of any drawings data information and statements made by the Buyer or its third parties.
6.3 The Buyer shall provide all relevant information relating to Site conditions especially those which may be considered prejudicial to safe working practices including information concerning pipe work cables drains or other service media. Without prejudice to the foregoing the Buyer shall ensure that conditions of work on Site are such as to enable the Company its employees and sub-contractors to carry out their work and in particular without injury to any person or loss or damage to any property. The Company reserves the right to amend the Price in the event that conditions at the Site are found to be substantially different to that envisaged by the Company at the date of formation of the agreement.
7.1 The Buyer shall pay a deposit when placing an Order for the Goods with the Company.
7.2 The deposit shall be non-refundable, and shall be offset against the first invoice to be rendered by the Company to the Buyer, whereupon the Company shall account to the Buyer for any credit due.
7.3 The Company shall invoice the Buyer monthly for the Goods supplied in the preceding calendar month.
7.4 The Buyer shall pay, within 30 days of the date of the invoice, the full amount as stated on the invoice.
7.5 In the event the Buyer does not pay any monies due to the Company on or before the due date:
7.5.1 The Buyer shall pay to the Company Interest, on the full outstanding amount as at the invoice date
7.5.2 The Company may stop any work it is undertaking for the Buyer;
7.5.3 The Company may take legal steps against the Buyer for recovery, and the Buyer agrees to pay the Company any legal fees incurred thereof;
7.5.4 The Company will not be obliged to continue, finalise, or complete any unfinished work.
7.6 The Buyer shall not be entitled to offset any monies owing to the Company, without the prior consent of the Company in Writing.
8. WARRANTIES INDEMNITIES AND LIABILITIES
8.1 The Buyer warrants to the Company to:
8.1.1 Provide evidence that the Goods have been maintained in accordance with the instructions of the manufacturer and/or the Company, and that any defect in the Goods has not been caused by neglect or default of the Buyer and that the Goods have not been used in abnormal working conditions and have not been modified in any way in relation to any claim under warranty.
8.1.2 Indemnify and keep indemnified the Company, from and against all direct, indirect, or consequential liability, loss, damages, injury, costs and expenses (including legal expenses) awarded against, incurred or paid by the Company, as a result of the Buyers failure to maintain the Goods.
8.2 The Company and the Buyer agree that any warranty provided under the Contract shall not be assignable by the Buyer to any third party. The Company will pass on the manufacturer’s warranty to the Buyer but no separate warranty shall be given by the Company to the Buyer.
8.3 Save for liability for death or personal injury due to the negligence of the Company and liability under the Consumer Protection Act 1987, the Company shall not be liable to the Buyer:
a) For any damage to persons or property, however arising;
b) For defects, in or in any way connected with the Goods, party, wear and tear or abnormal working conditions;
c) For any remedial work in respect of the Goods, carried out by third parties instructed by the Buyer without the prior written approval of the Company including, but not limited to, servicing, alteration and repair of the Goods;
d) For claims if the Company’s installation and operation instructions (if any) and any instructions issued by the manufacturer, are not followed. The Company reserves the right to charge for remedial works in these circumstances.
e) For any other defects in the Goods not falling within paragraphs (a) ot (d) of this clause, unless notified to the Company by the earlier of 14 days of delivery of the Goods or installation of the Goods or latent defects; and
f) For any special, indirect, consequential or economic loss (howsoever arising) including, but not limited to, loss of profit, loss of production, loss of business.
8.4 Save for liability for death or personal injury due to the negligence of the Company and liability under the Consumer Protection Act 1987, the Company’s aggregate liability to the Buyer in respect of any occurrence or series of occurrences attributable to the same cause, whether for negligence, breach of contract, misrepresentation or otherwise, shall in no circumstances exceed the price paid by the Buyer to the Company in respect of the Goods in question.
8.5 The Company’s prices are determined on the basis of the limits of liability. The Buyer may by written notice to the Company request the Company to agree a higher limit of liability.
8.6 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute, common law, custom of the trade, course of dealing or otherwise, including, for the avoidance of doubt, all warranties implied by the Sale of Goods Act 1979, are excluded to the fullest extent permitted by law.
8.7 The Buyer’s remedy in respect of any claim for which the Company is liable in terms hereof shall be limited to, at the sole option of the Company, repair or replacement of the item in question or refund of the purchase price (if paid).
8.8 The Buyer shall not be entitled to exercise a right of retention, or withhold payment of any amount payable under the contract to the Company because of any disputed claim of the Buyer in respect of the Goods or any other alleged breach of the contract, or to set-off any amount payable under the contract to the Company against any monies not then presently payable by the Company or for which the Company disputes liability, or to return Goods to the Company unless authorised in writing by a director of the Company.
8.9 The Company shall not be liable to the Buyer (including, but without limitation, in negligence) or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control.
8.10 The Buyer shall indemnify the Company against all claims (including the cost of any legal proceedings) for the death of or injury to any person or for the damage to or loss of any property made by any person against the Company either under any statute or at common law which may arise out of or be in any way connected with the execution of the contracted works or the installation, operation or use of the Goods except where the same is due to the negligence, omission or default of the Company.
9. FORCE MAJEURE
9.1 Neither the Company nor the Buyer shall be liable for any failure to perform their obligations hereunder, if such failure results from a Force Majeure.
9.2 In the event of a Force Majeure, the Company’s performance under the Contract is deemed to be suspended for the period that the Force Majeure event continues, and the Company will have an extension of time for the duration of that period.
9.3 The Company and the Buyer will use their reasonable endeavours to bring the Force Majeure event to a close, or to find a solution by which the Company and the Buyer’s obligations under the Contract may be performed, despite the Force Majeure event.
10.1 The Company may at any time, by giving notice in Writing, terminate the Contract with the Buyer, if:
10.1.1 The Buyer commits a breach of any of the these Conditions;
10.1.2 Any distress, execution, or other legal process is levied upon any of the assets of the Buyer;
10.1.3 The buyer enters into any arrangement or composition with its creditors, commits any act of bankruptcy, or (being a corporation) if an order is made or an effective resolution is passed for its winding up (except for the purpose of amalgamation or reconstruction), or if a petition is presented to the court, or if a receiver, administrative receiver, or administrator is appointed in respect of the whole, or any part of, the Buyer’s undertaking or assets;
10.1.4 In the case of a company the Buyer ceases, or threatens to cease, to carry on its business;
10.1.5 The financial position of the Buyer deteriorates to such an extent, that in the opinion of the Company, the capability of the Buyer adequately to fulfil its obligations under these Conditions, has been placed in jeopardy;
10.1.6 The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer;
10.1.7 The Buyer does not pay any money due from it to the Company, on or before the due date;
10.1.8 There is any breach by the Buyer of these Conditions (other than the non payment of money), and the Buyer is unable to remedy the breach within 14 days notice, in Writing, by the Company to the Buyer;
10.1.9 By reason of an event of Force Majeure, either party is materially prevented from performing its obligations for a period of 3 consecutive calendar months.
A waiver by the Company of any default shall not constitute a waiver of any subsequent default, and no waiver of any of these Conditions shall be effective, unless it is expressly stated to be a waiver by the Company to the Buyer in Writing.
Any notice to be served hereunder shall be in Writing, and shall be deemed given when personally delivered, when sent by fax if confirmation of delivery is available, when sent by email if a delivery or read receipt is obtained, or 3 days after being sent by pre-paid First Class post to a corporate party’s registered office, or a non-corporate party’s last known business address, or such other address as a party last provided to the other given in accordance with the provisions of this Clause.
The Company may transfer, assign, charge, sub-contract the Company’s rights and obligations under these conditions, whereas, the Buyer may not transfer, assign, charge or sub-contract any rights or obligations hereunder.
14. ENTIRE AGREEMENT
These Conditions, and the Contract referred to herein, represent the entire agreement between the Company and the Buyer, and supersede any prior agreement, understanding, or arrangement between the parties, whether oral or in Writing.
14.1 If any provision contained in these Conditions is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, that provision shall be severed from these Conditions, and the remaining provisions shall continue in full force and effect.
15. GOVERNING LAW AND JURISDICTION
These Conditions shall be governed by, and construed in accordance with, English law. Disputes arising in connection with these Conditions shall be subject to the exclusive jurisdiction of the English courts.