TERMS AND CONDITIONS
(SALE OF GOODS AND SERVICES)
THE CUSTOMERS ATTENTION IS PARTICULARLY DRAWN TO CLAUSES 6 AND 8
1. Definitions
1.1 In these Terms and Conditions the following words shall have the following meaning:
Company means Custom Lifts Ltd (Company Number 13980195) (Auto-Lift UK is a trading style of Custom Lift Ltd);
Goods means the subject matter of the Contract including the raw materials, finished or semi-finished materials or articles and any goods supplied in substitution for or in replacement of or in addition thereto;
Services means the services (if any) connected with the sale of the Goods as described in the order including (without limitation) the installation of the Goods or in any specification of the Customer whichever shall be accepted by the Company.
Contract means an agreement between the Company and the Customer of which these Terms and Conditions shall form part.
Customer means the individual firm partnership company or other body howsoever constituted acting as the buyer of the Goods to be supplied either directly or indirectly or otherwise by any Company.
1.2 In these Terms and Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Terms and Conditions headings will not affect the construction of these Terms and Conditions.
2. Contract
2.1 Any order issued by the Customer is subject to acceptance by the Company and a Contract will only be formed once the customer is notified that goods have been shipped
2.2 All orders are placed under these Terms and Conditions alone which exclude any other terms and conditions inconsistent therewith which a Customer might seek to impose whether delivered or contained in the customers order confirmation, specification or other document.
2.3 Any variation to these Terms and Conditions and any representations made about the Goods shall have no affect unless expressly agreed in writing and signed by the Company.
3. Designs and Drawings
3.1 Where the Company prepares designs descriptions or drawings (“the Specifications”) at the request of the Customer:
3.1.1 The Customer shall approve such Specifications in writing and until such approval has been received the Company shall be under no liability to the Customer and any time for delivery shall not begin to run;
3.1.2 Although the Company shall warrant as to the correct functioning of the Goods no warranty is given as to the product for which the Goods are designed to manufacture.
3.2 In respect of any third parties receiving or dealing with the Goods at the Customer’s request or, otherwise upon the instructions of the Customer the Customer shall be responsible and undertake that the Goods are safe and without risk to health when properly used and comply in all respects with all relevant statutes regulations bye-laws and standards in force at the date of delivery including without prejudice to the generality of the foregoing the Factories Act 1961 and the Health and Safety at Work Act 1974 and the Customer shall supply in respect of the Goods such information about the use of them as complies with the Health and Safety at Work Act 1974 or any amendments made thereto or changes or variations thereto at the date of these Terms and Conditions and proper evidence of all tests and examinations and research made in compliance with the provisions of that Act.
3.3 The Customer’s order must be accompanied by sufficient detailed technical information and (where applicable) correct Specifications to enable the Company to proceed with the order forthwith and in any event within the time period agreed.
3.4 The Company is entitled to assume that all Specifications and other information supplied by the Customer to the Company whether written or verbal is in all respects completely accurate and provided that the Goods or materials supplied are in all material respects in accordance with the Customer’s Specifications the Company shall not be responsible or liable for the suitability or quality of the Goods or their ability to correctly function.
3.5 All drawings, descriptive matter, specification and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods described. They will not form part of this Contract.
4. Prices
4.1 Unless otherwise stated all prices quoted are based on current material costs and operating costs (including wages) at the date of quotation but the Company reserves the right upon reasonable notice at any time prior to the delivery of the Goods or provision of the Services to adjust the price to take account of any increase in the cost of raw materials labour services or any currency fluctuations affecting the cost of imported materials.
4.2 There shall be added to the price for the Goods or Services any value added tax and any other tax or duty relating to the manufacture transportation export import sale provision or delivery of the Goods or Services (whether initially charged on or payable by the Company or the Customer).
4.3 The price does not include packing and delivery nor insurance which shall be charged separately and quotations in respect of packing delivery and insurance can be obtained on request from the Company.
4.4 In the event of the alteration, variation or amendment of the Contract by the Customer the Company may increase the price quoted therein to cover any increase in costs that such alteration, variation or amendment may incur and may amend the delivery date.
4.5 Any additional charges incurred under paragraph 4.4 shall be paid by the Customer to the Company on demand at the due date on the invoice.
5. Terms of Payment
5.1 Unless otherwise agreed in writing by the parties all sums become due and payable in accordance with the Contract thirty days after the month in which an invoice is rendered by the Company. All monies should be paid in cash or cleared funds.
5.2 When deliveries of the Goods or provision of the Services are spread over a period each consignment or job will be treated as a separate account and be payable accordingly.
5.3 Time for payment shall be of the essence.
5.4 The Company reserves the right to charge interest at 4% over National Westminster Bank Plc base rate (applying at the time) on all overdue accounts such interest being deemed to accrue on a day to day basis from the due date for payment. In the alternative the Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.5 The Company also reserves the right where reasonable doubts arise as to a Customer’s financial position or in the case of failure to pay for any Goods or Services or any delivery or instalment as aforesaid to suspend delivery of any order or any part or instalment or job without liability until payment in cash or cleared funds or satisfactory security for payment has been received.
5.6 The Company reserves the right at any time at its discretion to demand security for payment before continuing with or delivering any order.
5.7 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
6. Delivery or Completion
6.1 The delivery or completion date specified in the Contract is approximate only and unless otherwise expressly stated in writing time is not of the essence for delivery or completion.
6.2 The Company will use all reasonable endeavours to deliver the Goods or complete the Services by the date or dates agreed between the parties but the Customer shall not be entitled to refuse delivery or terminate the Contract on account of any delays.
6.3 The Company shall not be liable for any loss damage or shortage on delivered orders unless informed within five working days of the date of delivery.
6.4 Deviations in quantity of the Goods delivered (representing no more than 10% by value) from that stated in the Contract shall not give the Customer any right to repudiate the Contract or to claim damages and the Customer shall be obliged to accept and pay at the Contract rate for the quantity of the Goods delivered and for the balance of the Goods which are delivered subsequently.
6.5 The Company reserves the right to make delivery by instalments and to tender a separate invoice in respect of each instalment. Each delivery shall be considered a separate transaction and any failure to effect one delivery shall not affect the due performance of the Contract as regards other deliveries.
6.6 Should the Customer postpone delivery of any item of the Goods or if delivery instructions are delayed then the Company may arrange storage of the Goods and the Customer shall be liable to the Company for the reasonable costs (including insurance) of such storage which will be payable in accordance with clause 4 hereof.
6.7 Without prejudice to any other right which the Company may have in respect of the Customer’s failure to take delivery of the Goods if the Customer delays delivery for a period in excess of 30 days then the Company shall be entitled to serve written notice upon the Customer of its intention to dispose of the Goods and seven days after deemed receipt by the Customer of such notice the Company shall be entitled but not obliged at the Company’s option either to:
6.7.1 deliver the Goods to the Customer; or
6.7.2 dispose of the Goods at the best price reasonably obtainable but if the Goods are not easily realisable then in any other way.
6.8 If the Customer wishes to postpone the commencement of the Services a new date for commencement must be agreed in writing with the Company which is mutually acceptable for both sides. Any delay in reaching such agreement shall not preclude the Company from sending an invoice for the Goods, to be paid in accordance with clause 5, which have not been installed because the Customer has postponed the commencement of the Services.
6.9 Time of delivery dates from acceptance of order shall be extended in the event of late delivery if any late delivery is due to changes in any technical information, Specifications or models by the Customer or any alteration in the Goods requested by the Customer or upon the delay by the Customer in paying any installation of purchase price to the Company.
6.10 Where the Contract includes delivery:
6.10.1 Any claim for non-delivery must be made in writing to both the carriers and the Seller within ten days of advice note or within such period as may be specified by the carrier, whichever is the shorter;
6.10.2 Any claims in respect of Goods damaged in transit or shortages in delivery must be made to both the carriers and the Seller within three days of delivery.
If the Customer fails to comply with any of the requirements of this paragraph or to do all things necessary to assist with and further any claim which the Company may have against the carrier or does anything which adversely affects or invalidates such claim, then the Company shall not be liable to the Customer for any non-delivery damage in transit or shortages in delivery. The Company’s liability shall be limited to the replacement or repair within a reasonable time or the issuing of a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.11 Nothing in this paragraph shall make the Company liable for any direct, indirect, special or consequential loss or damage (whether due to loss of profit, loss of business, depletion of goodwill or otherwise) and/or any claims for costs, expenses or other claims for consequential compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) even if such loss was reasonably foreseeable or the Company was advised of the possibility of the Customer incurring the same and any liability which arises due to any delay or shortage in the delivery of the Goods shall be limited as provided in paragraph 6.10.
7. Title to Goods
7.1 Risk in the Goods shall pass to the Customer on delivery to the Customer or to its agent or other person to whom the Company has been authorised by the Customer to deliver the Goods or immediately prior to loading where the Goods are being collected by the Customer its servants or agents from the Company’s premises. If the Goods are appropriated to the Customer but kept at the Company’s premises at the Customer’s request then the Company shall have no responsibility in respect of the safety of the Goods thereafter and accordingly the Customer should insure the Goods thereafter against such risks (if any) as it thinks appropriate.
7.2 Notwithstanding sub clause 7.1 above ownership of the Goods shall remain with the Company until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
7.2.1 the Goods; and
7.2.2 all other sums which are or which become due to the Company from the Customer on any account.
7.3 Until ownership of the Goods has passed to the Customer the Customer shall:
7.3.1 hold them as bailee for and on behalf of the Company and in a fiduciary capacity;
7.3.2 the Goods shall be stored in a safe and proper manner and in such a way as to be readily identifiable as being Company property;
7.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.4 maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company; and
7.3.5 hold the proceeds of the insurance referred to in clause 7.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
7.4 As long as title to the Goods remains with the Company the Customer may not encumber them or purport to transfer title to them for security purposes. The Customer shall immediately notify the Company by registered or recorded delivery letter if a third party attempts to seize or exercise any lien over the Goods. The Customer shall bear the cost of any action resulting from such attempt seizure or lien.
7.5 The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
7.5.1 any sale shall be affected in the ordinary course of the Customer’s business at full market value; and
7.5.2 any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principle when making such sale.
7.6 The Customer grants the Company it agents and employees an irrevocable licence at any time giving access to its premises and to the Goods and to enable the Company to retake possession thereof (where the Customer’s rights to possession have terminated) and to notify any keeper where the Goods are stored that the Company is authorised and entitled to give instructions for their removal.
7.7 The Company agrees only to exercise its rights under this clause in the event of the Customer defaulting on a payment or payments or any of the events in sub-clause 7.9;
7.8 Nothing in this clause shall in any way limit or modify the Customer’s obligation to pay for the Goods in cash or cleared funds on the due date.
7.9 The Customer’s right to possession of the Goods shall terminate immediately if:
7.9.1 the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any act for the time being in force for the relief of insolvent debtors or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof or a resolution is passed or a petition presented to any court for winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
7.9.2 the Customer suffers or allows any execution whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract and any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
7.9.3 the Customer encumbers or in any way charges any of the Goods.
7.10 Each paragraph of this Clause shall be constituted as a separate clause to the intent that the invalidity of any one or more shall not affect the validity or enforceability of any other paragraph.
8. Liability
8.1 The Company warrants in relation to the Goods manufactured by the Company that it will (at the Company’s option) either repair or supply a replacement for, or refund the full purchase price of any Goods which are found within a period of:
8.1.1 5 working days from despatch of such Goods from the Company’s works to have a patent defect or
8.1.2 6 months from despatch of such Goods from the Company’s works to have a latent defect or not to be in accordance with the Contract or any express description or representation given or made in writing by the Company in respect of such Goods.
8.2 In relation to Goods not manufactured by the Company (including but not limited to parts and components supplied by others for Goods manufactured by the Company) the Company shall so far as it is able to do so give the Customer the benefit of any express guarantee or warranty by the manufacturer or supplier of such Goods and of any other rights which the Company has against the manufacturer or supplier.
8.3 Additionally in the event of any claim under any of the foregoing warranties or under any condition or warranty implied by law or under any other express or implied warranty or guarantee (not excluded by this clause) the following provisions shall apply:
8.3.1 the Customer must not have fitted fixed painted or in any way altered, or repaired the Goods; or
8.3.2 the Customer must have complied with all oral or written recommendations or instructions as to storage, installation, commissioning, use or maintenance of the Goods or (if none) good trade practice relating to the Goods; or
8.3.3 the Goods to be repaired or replaced shall be made available for collection by the Company at the original point of delivery and the expenses of redelivery shall also be the Company’s expense; and
8.3.4 exchanged Goods will become the property of the Company.
8.4 Save as provided in clauses 8.8 and 8.9 in no circumstances shall the Company’s liability for any loss or damage howsoever caused whether arising in breach of an express or implied term of the Contract or due to any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract, exceed the invoice value of the Goods.
8.5 The Customer shall be responsible for ensuring the safety of any premises in its ownership or control to which the Company is given access to execute the Contract except to the extent that the Company accepts responsibility for the following:
8.5.1 the Services including plant tools and equipment necessary to carry out the Contract which are provided by the Company or its authorised sub-contractors
8.5.2 the Services executed in accordance with the Contract.
8.6 The Company and its authorised sub-contractors will insure themselves severally in the sum specified in the Contract (or otherwise for £1 million) against the acts or defaults of their respective employees in connection with the Contract.
8.7 The Customer will ensure that the Company is given full and proper access to the site and premises specified in the Contract in order that the Company may use all necessary plant tools and equipment to carry out the Contract and bring the Goods onto the site without hindrance or interference.
8.8 Save as otherwise provided in this clause all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by Section 12 of the Sale of Goods Act 1979) are to the fullest extent permitted by law excluded from the Contract.
8.9 Nothing in these Terms and Conditions excludes or limits the liability of the Company for damages or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
8.10 Subject to clauses 8.8 and 8.9 the Company shall not be liable to the Customer in connection with the Contract for any direct, indirect, special or consequential loss or damage (whether due to loss of profits, loss of business, depreciation of goodwill or otherwise) and/or any claims for costs, expenses or other claims for consequential compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) even if such loss was reasonably foreseeable or the Company was advised of the possibility of the Customer incurring the same and the liability of the Company shall be limited as provided in this clause 8.
9. Customer’s Material
The Company shall not be liable for any faults or defects in the Goods arising out of the use of the Customer’s materials. No guarantee or warranty is given but subject to the availability of capacity and facilities the Company will endeavour to correct any faults or defects of the Customer at the Customer’s expense and risk.
10. Drawings and Information
10.1 Unless otherwise agreed in writing any copyright or other industrial or intellectual property rights in all specifications drawings or other technical information supplied to the Customer shall remain the property of the Company and shall not form part of the Contract. The Customer shall not publish or communicate with a third party the content thereof nor any particulars of the Goods supplied by the Company without the previous consent in writing of the Company.
10.2 In the event of it coming to the notice of the Company that any Services or any Goods manufactured or supplied under this Contract to the Specification of the Customer infringe or are alleged to infringe any patent registered design copyright or other intellectual property rights of a third party the Company shall have the right to cease the manufacture of these Goods or to be bound by the Contract and the Customer shall indemnify the Company against all claims, costs, and expenses that might be incurred by the Company due to such infringement or alleged infringement or for royalties and against all costs expenses or other payments arising therefrom and shall pay to the Company the value of the work done on and used in the manufacture of the Goods or the provision of Services in full in cash or cleared funds prior to such cessation of manufacture.
11. Entitlement to Assign and Waiver
11.1 The Company shall be entitled to assign or sub-contract this Contract or any part thereof. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
11.2 Failure by the Company to enforce any of these Terms and Conditions shall not be construed as a waiver of any of its rights hereunder.
12. Jurisdiction
The validity construction and performance of this Contract shall be governed by the laws of England and Wales and the Customer and the Company submit to the exclusive jurisdiction of the English Court.
13. General
13.1 The Customer must within 14 days advise the Company of any change of address. Any notice hereunder sent by the Company to the Customer shall be deemed served within 48 hours of posting to the last known address of the Customer.
13.2 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy whether under the Contract or otherwise.
13.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provisions shall continue in full force and effect.
14. Cancellation
Orders accepted by the Company cannot be cancelled or suspended by the Customer except by agreement with the Company upon terms which indemnify the Company against all losses, claims, expenses or damages incurred by the Company as a direct or indirect result of such cancellation
15. Force Majeure
The Vendor reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period on excess of 3 months, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
