TERMS AND CONDITIONS OF SALE – BUSINESS CUSTOMERS
IMPORTANT – PLEASE READ THESE TERMS BEFORE PLACING AN ORDER
These Terms apply exclusively to business-to-business transactions and form part of every Contract entered into. By submitting an Order, accepting a quotation, making payment, accepting delivery of Goods or instructing the Company to commence Services, the Buyer confirms that it is acting wholly or mainly for purposes relating to its trade, business, craft or profession and agrees to be bound by these Terms.
The Buyer's attention is particularly drawn to Section 3 (Description and Buyer Verification), Section 4 (Delivery), Section 5 (Installation), Section 8 (Cancellation and Returns), Section 10 (Risk and Title), Section 13 (Warranties) and Section 14 (Limitation of Liability).
These Terms contain important provisions concerning the Buyer's responsibility for checking dimensions, specifications, Site suitability and access; delivery and installation requirements; cancellation and returns; warranties; and limitations and exclusions of liability.
Definitions
Terms And Conditions
Application Of Terms
Description
Delivery
Installation
Warehouse And Collection
Non-Delivery
Cancellation
Leasing
Risk And Title
Price
Terms Of Payment
Warranties
Limitation Of Liability
Force Majeure
General
UK WEEE Regulations
Communications
Definitions
The following definitions apply to these Terms:
"Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
"Buyer", "Customer", "you" and "your" means the person, firm, company, partnership, public authority, charity or other organisation purchasing Goods and/or Services from the Company wholly or mainly for purposes relating to its trade, business, craft or profession.
"Company", "we", "us" and "our" means Zebmak International Limited trading as The Modular Coldroom Company ("TMCC").
"Contract" means the contract between the Company and the Buyer for the sale and purchase of Goods and/or supply of Services incorporating these Terms.
"Delivery Location" means the location stated in the Order or Order Acceptance or such other location as the Company may expressly agree in writing.
"Goods" means the goods, equipment, machinery, components, materials or other items, or any part of them, specified in the Order.
"Order" means the Buyer's order for Goods and/or Services submitted through the Site, by telephone, email, purchase order or other method accepted by the Company.
"Order Acceptance" means the Company's written acceptance or confirmation of an Order.
"Services" means any installation, assembly, commissioning, survey, design, maintenance, repair or other services which the Company expressly agrees to provide.
"Site" means www.modularcoldrooms.co.uk, www.modularcoldrooms.com and any replacement website operated by the Company.
"Specification" means any specification, quotation, drawing, technical data, dimensions, schedule or other written description of the Goods and/or Services expressly incorporated into the Contract.
"Terms" means these Terms and Conditions of Sale as applicable to the Contract.
Any words following "including", "include", "in particular", "for example" or similar expressions are illustrative only and shall not limit the words preceding them.
A reference to "writing" or "written" includes email.
References to legislation include that legislation as amended, extended, consolidated, re-enacted or replaced from time to time and any subordinate legislation made under it.
Headings are for convenience only and shall not affect interpretation.
Words in the singular include the plural and vice versa where the context requires.
1. Terms And Conditions
1.1. In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statue or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.2. In these Conditions references to the masculine includes the feminine and the neuter and to the singular includes the plural and vice versa as the context admits or requires.
1.3. In these Conditions headings will not affect the construction of these Conditions.
1.4 These Terms apply exclusively to Business Customers. By requesting a quotation, placing an Order, making payment or accepting delivery, the Buyer represents and warrants that it is acting wholly or mainly for purposes relating to its trade, business, craft or profession and is not acting as a consumer.
1.5 These Terms apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, or practice. The person placing the Order warrants that they have authority to bind the Buyer to the Contract
1.6 The Buyer acknowledges that these Terms govern a business-to-business transaction and that no contractual cooling-off or change-of-mind cancellation right applies except where expressly agreed by the Company in writing.
2. Application Of Terms
2.1. Subject to any variation under conditions 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2. These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a Director of this Company.
2.3. An Order submitted by the Buyer constitutes an offer by the Buyer to purchase the Goods and/or Services in accordance with these Terms.
2.4. Any automated acknowledgement, payment receipt or acknowledgement of an Order does not constitute acceptance of that Order.
2.5. A Contract shall come into existence when the Company issues written Order Acceptance, expressly confirms that the Order is accepted or, where no separate written acceptance is issued, when the Company commences manufacture, procurement or performance of the Order or dispatches the Goods, whichever occurs first.
2.6. The Company may decline or cancel an Order prior to acceptance, including where Goods are unavailable, incorrectly priced, incorrectly described, affected by supplier error or where the Company reasonably considers that it cannot fulfil the Order. Any payment already received in respect of an Order which is declined shall be refunded.
2.7. The Buyer is responsible for ensuring that its Order, Specification, dimensions, quantities and requirements are complete and accurate before the Order is accepted.
3. Description
3.1 Product photographs, illustrations and marketing materials are intended as a general representation of the Goods only.
3.2 Where the Company provides the Buyer with a Specification, technical data sheet, drawing, dimensions or manufacturer's literature before the Order is placed, the Buyer is responsible for reviewing that information and satisfying itself that the Goods are suitable for its requirements and Site.
3.3 By placing the Order after receiving such information, the Buyer confirms that it has checked and accepted the material dimensions and specifications provided.
3.4 Dimensions may be subject to reasonable manufacturing tolerances and manufacturers may make minor changes to specifications, appearance or construction which do not materially affect the performance or intended function of the Goods.
3.5 The Buyer must inform the Company in writing before ordering if any particular dimension, capacity, performance requirement or specification is critical to its intended use.
3.6 Unless expressly stated in writing by the Company, the Company does not warrant that Goods will fit into or through the Buyer's premises or be suitable for a particular Site.
3.7 Buyer Verification
Before placing an Order, the Buyer is responsible for checking all information material to its requirements, including dimensions, capacity, electrical supply, voltage, phase, drainage, ventilation, clearances, access, doorways and installation requirements.
The Company shall be entitled to rely upon measurements, specifications, photographs, drawings, descriptions and other information supplied by or on behalf of the Buyer.
Where the Company makes a recommendation based upon information supplied by the Buyer, that recommendation is conditional upon such information being accurate and complete.
Unless the Company expressly agrees in writing to undertake responsibility for Site suitability or measurement, the Buyer remains responsible for satisfying itself that the Goods are suitable for the intended Site and purpose.
Where the Company provides a drawing, layout, Specification or other document to the Buyer for approval, the Buyer is responsible for checking it before approval. The Buyer's written approval shall constitute confirmation that the Buyer accepts the dimensions, layout, configuration and other information shown, except for any matter which the Company has expressly agreed in writing remains subject to verification.
4. Delivery
4.1 Delivery Location and Completion
Delivery shall be made to the Delivery Location specified in the Order or to such other location as the Company may expressly agree in writing.
Delivery shall be deemed completed when the Goods are delivered to the Delivery Location or, where the Buyer collects the Goods or arranges its own carrier, when the Goods are made available for collection and collected by or on behalf of the Buyer.
4.2 Delivery Dates
Any delivery date, lead time or timescale quoted or otherwise stated by the Company is an estimate only unless the Company expressly agrees in writing that a particular delivery date is guaranteed. Time for delivery shall not be of the essence.
The Company shall use reasonable endeavours to meet estimated delivery dates but shall not be liable for delay resulting from circumstances outside its reasonable control, including delays or failures by manufacturers, suppliers, carriers, subcontractors or other third parties.
No delay in delivery shall entitle the Buyer to refuse delivery, cancel the Contract or claim compensation except where the Buyer has a right to do so which cannot lawfully be excluded or restricted.
4.3 Delivery by Instalments
The Company may deliver the Goods in one or more instalments and may invoice each instalment separately.
Each invoice shall be payable in accordance with these Terms.
Delay in or failure to deliver any instalment shall not entitle the Buyer to cancel any other instalment or terminate the Contract as a whole unless the circumstances amount to a right of termination which cannot lawfully be excluded.
4.4 Kerbside Delivery
Unless expressly agreed otherwise in writing, delivery shall be kerbside delivery to a ground-floor location reasonably accessible by the carrier's normal delivery vehicle.
Delivery does not include unpacking, removal or disposal of packaging, positioning, carrying Goods into or through premises, negotiating steps, stairs or lifts, assembly, installation, commissioning or connection.
The Buyer shall be responsible for ensuring that sufficient personnel and, where appropriate, suitable lifting or mechanical handling equipment are available to safely receive, unload and move the Goods.
Where specialist unloading equipment, additional personnel or other services are requested from the Company, these shall be chargeable unless expressly included in the Contract price.
4.5 Access and Delivery Requirements
The Buyer is responsible for ensuring that the Delivery Location and all relevant access routes are suitable for delivery of the Goods ordered.
Before placing the Order, the Buyer shall disclose any circumstances which may affect delivery, including restricted vehicle access, narrow roads, pedestrianised areas, weight or height restrictions, loading restrictions, timed access, parking restrictions, stairs, lifts, restricted entrances or doorways, loading docks or any requirement for specialist vehicles, lifting equipment or delivery arrangements.
Unless the Company has expressly undertaken a Site survey and accepted responsibility for delivery access in writing, the Company shall be entitled to rely upon the information supplied by the Buyer and shall not be responsible for determining whether the Goods or delivery vehicle can access the Delivery Location.
Any reasonable additional transport, handling, storage, waiting, aborted delivery, redelivery or other costs arising from inaccurate or incomplete information supplied by the Buyer, unsuitable access or undisclosed restrictions shall be payable by the Buyer.
4.6 Failed, Refused or Postponed Delivery
Where:
(a) the Buyer fails or refuses to accept delivery;
(b) the Buyer requests postponement after the Goods have become available for delivery;
(c) no authorised person is available to accept delivery;
(d) the Delivery Location cannot reasonably be accessed;
(e) suitable unloading facilities, personnel or equipment are not available; or
(f) delivery cannot be completed because of any other act or omission of the Buyer or anyone acting on its behalf,
the Company may return, retain, store or arrange storage of the Goods and subsequently arrange redelivery.
The Buyer shall be responsible for all reasonable additional costs incurred as a consequence, including aborted delivery, waiting time, storage, insurance, handling, administration, return transport and redelivery charges.
Failure or refusal by the Buyer to accept delivery shall not relieve the Buyer of its obligation to pay for the Goods in accordance with the Contract.
4.7 Inspection on Delivery and Apparent Transit Damage
The Buyer shall ensure that the Goods and their external packaging are inspected as soon as reasonably practicable upon delivery.
Any shortage or transit damage which is reasonably apparent upon delivery must be clearly recorded on the carrier's delivery note, electronic device or other delivery record and notified to the Company in writing within 24 hours of delivery.
The Buyer should not sign a delivery record confirming that Goods have been received in good condition where reasonably apparent damage exists.
Signing a delivery record as "unchecked" shall not constitute notification that the Goods are damaged.
The Buyer shall provide photographs showing the Goods, packaging and alleged damage, together with the delivery documentation and such other reasonable evidence as the Company may require to investigate the claim.
4.8 Concealed Transit Damage
Where transit damage could not reasonably have been discovered upon delivery because it was concealed by packaging or was otherwise not reasonably apparent, the Buyer shall notify the Company in writing as soon as reasonably practicable following discovery and, where reasonably practicable, within 24 hours of discovery.
The Buyer shall retain the Goods, original packaging, pallet and other relevant packing materials and shall provide such photographs and evidence as the Company may reasonably require.
4.9 Preservation of Evidence and Damaged Goods
Where transit damage is alleged, the Buyer shall take reasonable steps to preserve the Goods and evidence of the alleged damage and shall provide the Company, manufacturer, supplier or carrier with a reasonable opportunity to inspect the Goods where requested.
The Buyer shall not, without the Company's prior agreement, install, assemble, commission, use, modify, repair or materially relocate Goods which the Buyer alleges were delivered damaged where doing so could reasonably prejudice investigation of the claim or the Company's ability to pursue the carrier or supplier.
The Company may reject a claim for apparent transit damage where the Buyer's failure to comply with clauses 4.7 to 4.9 has materially prejudiced the Company's ability to establish when or how the damage occurred or to pursue recovery from the relevant carrier or supplier.
Nothing in clauses 4.7 to 4.9 excludes or restricts liability which cannot lawfully be excluded or restricted.
4.10 Delivery Delays and Consequential Costs
Subject always to Section 14, the Company shall not be liable for loss of profit, revenue, production, business, contracts, anticipated savings, opportunity, goodwill or use, business interruption or any indirect or consequential loss arising from delayed delivery.
The Buyer is advised not to arrange engineers, installers, contractors, removal of existing equipment, closure of premises, loss of trading time or other works or expenditure dependent upon delivery until the Goods have been delivered and inspected.
Where the Buyer elects to incur such costs before delivery and inspection of the Goods, it does so at its own commercial risk.
4.11 Delivery to a Third Party or Nominated Site
Where the Buyer instructs the Company to deliver Goods to the Buyer's customer, employee, contractor, agent, premises, project site or any other nominated person or location, delivery to that person or location shall constitute delivery to the Buyer for the purposes of the Contract.
Any person who accepts delivery at the Delivery Location shall be treated as authorised by the Buyer to accept delivery unless the Company has been notified otherwise in writing before dispatch.
The Buyer is responsible for ensuring that any person accepting delivery on its behalf is aware of the inspection, damage reporting and preservation requirements contained in these Terms.
Failure by the Buyer's nominated recipient to inspect or report damage in accordance with these Terms shall be treated in the same manner as a failure by the Buyer itself.
4.12 Incorrect Delivery Information
The Company shall be entitled to rely upon the delivery address, postcode, contact details, opening hours, access information and delivery instructions supplied by the Buyer.
The Buyer shall check the delivery information contained in the Order Acceptance and notify the Company promptly of any error.
The Buyer shall be responsible for reasonable additional costs arising from incorrect, incomplete or subsequently changed delivery information where the Company or its carrier has already incurred costs or commenced delivery arrangements.
4.13 Remote, Offshore and Restricted Locations
Additional delivery charges may apply to Northern Ireland, the Scottish Highlands and Islands, Isle of Man, Isle of Wight, Channel Islands and any other offshore, remote or restricted delivery location.
Where an additional delivery charge applies which was not included in the original Order, the Company shall notify the Buyer and may require payment of that additional charge before dispatch.
4.14 Carrier's Delivery Procedures
The use by the Company of a third-party carrier shall not make that carrier the Buyer's agent. Any delivery times, tracking information or delivery notifications supplied directly by a carrier are subject to the carrier's operational procedures and shall not constitute a variation of the Contract or a guaranteed delivery time unless expressly confirmed as such by the Company in writing.
4.15 No Waiver by Acceptance of Delivery
Acceptance of delivery shall not prevent the Buyer from notifying the Company of a defect which could not reasonably have been identified upon delivery, subject to the warranty, notification and other provisions of these Terms.
5. Installation
5.1 Scope of Services
Where the Company agrees to provide installation or other Services, the scope of those Services shall be limited to the work expressly stated in the Company's quotation, Order Acceptance or other written agreement.
Unless expressly included in writing, installation does not include electrical works, plumbing, drainage, builders' works, structural alterations, decorating, making good, fire stopping, specialist lifting equipment, scaffolding or other works or materials not expressly identified as being provided by the Company.
Unless the Company expressly states otherwise in writing, any quotation, estimate or indication relating to installation is based upon the information, measurements, photographs, drawings, descriptions and other Site information available to the Company at the time the quotation or estimate is prepared.
The provision of an installation quotation or estimate does not constitute confirmation that the Company has inspected or surveyed the Site, verified measurements or access, or confirmed that the Goods can be installed without additional works, equipment, labour or alterations.
Where the Company has not undertaken a Site survey, the Buyer remains responsible for verifying Site dimensions, access, structural suitability, clearances, utilities and all other matters necessary to permit safe delivery and installation.
Any statement concerning the anticipated ease, method or duration of installation shall be an estimate based upon the information then available to the Company and shall not constitute a guarantee as to installation time, Site suitability or the absence of additional works.
If installation requires additional labour, equipment, materials, attendance or works because Site conditions differ materially from the information supplied to or reasonably available to the Company, the Company may charge the Buyer the reasonable additional costs incurred, subject to notifying the Buyer as soon as reasonably practicable.
5.2 Standard of Services
The Company shall perform Services with reasonable care and skill and shall use appropriately competent personnel having regard to the nature of the work being undertaken.
Any dates stated for commencement or completion of Services are estimates unless expressly agreed otherwise in writing. Time for performance of Services shall not be of the essence.
5.3 Buyer's Site Responsibilities
The Buyer shall ensure before installation commences that:
(a) the Site is safe, accessible, cleared and ready for the Services;
(b) all necessary permissions, consents, licences and approvals have been obtained;
(c) adequate access and working space are available;
(d) floors, walls, ceilings and structures are suitable for the Goods and proposed installation;
(e) suitable electrical supplies, water supplies, drainage, ventilation and other required services are available at the correct locations and specifications;
(f) the Company is informed of any known hazards, asbestos, concealed services, structural restrictions or other Site conditions which may affect the work; and
(g) any works to be undertaken by the Buyer or third-party contractors which are necessary before installation have been properly completed.
Unless the Company has expressly undertaken a Site survey and accepted responsibility for a particular Site condition in writing, the Company shall be entitled to rely upon information supplied by the Buyer.
5.4 Site Information and Measurements
Where the Buyer supplies measurements, drawings, photographs, plans, specifications or other Site information, the Company shall be entitled to rely upon that information as accurate and complete.
The Buyer shall be responsible for reasonable additional costs and delays resulting from inaccurate, incomplete or misleading information supplied by or on behalf of the Buyer.
A Site survey undertaken by the Company shall relate only to matters reasonably apparent and within the agreed scope of that survey and shall not make the Company responsible for concealed, inaccessible or undisclosed Site conditions. A Site survey does not constitute a structural survey and does not include investigation of concealed services, asbestos, structural defects, underground services or other matters which are not reasonably visible or accessible at the time of the survey unless expressly included within the agreed scope of the survey.
5.5 Site Not Ready / Abortive Attendance
Where installation or Services cannot commence or continue because the Site is not ready, safe or accessible, required utilities or facilities are unavailable, other contractors have not completed necessary work, or because of any other act or omission of the Buyer or a third party for whom the Company is not responsible, the Company may suspend the Services.
The Buyer shall pay the Company's reasonable additional costs resulting from such circumstances, including additional labour, waiting time, travel, accommodation, storage, plant hire, aborted attendance and return visits.
Any estimated completion date shall be extended by a reasonable period to reflect the resulting delay.
5.6 Third-Party Works
The Company shall not be responsible for faults, damage, delay or additional costs caused by work undertaken by the Buyer or any third party not appointed by the Company.
Where the Buyer or its contractor alters, relocates, connects, disconnects, dismantles or modifies Goods supplied or installed by the Company, the Buyer shall be responsible for any resulting fault or damage to the extent caused or contributed to by that work.
5.7 Electrical, Refrigeration and Specialist Work
Where the Contract requires electrical, refrigeration, gas, plumbing or other regulated or specialist work, such work must be undertaken by appropriately qualified and competent persons.
Where such work is not included within the Company's agreed Services, responsibility for arranging and paying for it rests with the Buyer.
5.8 Protection of Goods at Site
Following delivery, the Buyer shall take reasonable steps to protect the Goods against theft, vandalism, accidental damage, fire, water, weather and interference by third parties.
Where Goods or materials are damaged, destroyed or stolen following delivery and before completion of installation for reasons not caused by the Company's breach of Contract or negligence, the Buyer shall be responsible for the reasonable cost of replacement and any additional work required.
5.9 Variations
The Buyer shall not instruct the Company's employees, engineers or subcontractors to undertake additional or different work from that specified in the Contract without the Company's agreement.
Any agreed variation may result in an adjustment to the Contract price and estimated completion date.
5.10 Testing and Completion
Where applicable, the Company shall carry out such testing or commissioning as is included within the agreed Services.
Minor defects or outstanding items which do not materially prevent the Goods from being safely used for their intended purpose shall not, by themselves, constitute grounds for the Buyer to refuse completion of the Services.
The Company shall be given a reasonable opportunity to remedy any installation defect for which it is responsible.
5.11 Completion and Acceptance
Where the Company notifies the Buyer that installation, commissioning or Services have been completed, the Buyer shall inspect the work as soon as reasonably practicable and notify the Company promptly in writing of any apparent defect or outstanding item.
Signing a completion, commissioning or handover document shall constitute evidence that the Services have been completed, subject to any defects or outstanding items recorded on that document and any latent defect which could not reasonably have been identified at the time.
The Buyer's use of the Goods following completion or commissioning shall constitute evidence that the Goods have been accepted for operational use, but shall not prevent the Buyer from subsequently notifying the Company of a latent defect or valid warranty claim in accordance with these Terms.
Minor defects or outstanding items which do not materially prevent safe and reasonable use of the Goods shall not entitle the Buyer to withhold the whole of any payment properly due.
5.12 Installation by Others
Where installation is not undertaken by the Company, the Buyer is responsible for ensuring that the Goods are installed, commissioned and connected correctly and in accordance with applicable legislation, manufacturer requirements and recognised industry practice.
The Company shall not be liable for any fault, damage or loss to the extent caused or contributed to by incorrect installation, commissioning, connection, modification or repair undertaken by the Buyer or a third party.
5.13 Contents and Stock
The Buyer should not place temperature-sensitive, perishable or valuable stock into refrigeration or temperature-controlled equipment until the equipment has been properly commissioned, has achieved and maintained the required operating temperature and the Buyer has satisfied itself that it is operating correctly.
Liability for loss or deterioration of stock shall be subject to Sections 13 and 14.
6. Warehouse And Collection
6.1 Where the Buyer collects Goods from the Company, manufacturer, supplier, warehouse or other nominated collection point, the Buyer is responsible for providing a suitable vehicle, appropriate securing equipment and competent personnel to safely collect and transport the Goods.
6.2 Where the Buyer or its appointed carrier collects the Goods, collection shall be deemed completed when the Goods have been handed over to the Buyer or its carrier at the nominated collection point.
6.3 Risk shall pass in accordance with Section 10.
6.4 Where Goods are available for collection and the Buyer fails to collect them at the agreed time, the Company may store the Goods and charge the Buyer reasonable storage, handling, administration and associated costs resulting from the delay.
7. Non-Delivery
7.1 The Buyer shall notify the Company in writing promptly after becoming aware that Goods have not been delivered when reasonably expected.
7.2 Where Goods shown as delivered by a carrier have not been received, the Buyer shall notify the Company as soon as reasonably practicable and provide such information as the Company reasonably requires to investigate the alleged non-delivery.
7.3 Where only part of an Order has been delivered, the Buyer shall notify the Company promptly and provide reasonable details of the alleged shortage.
7.4 The Company's dispatch and carrier records shall constitute evidence of dispatch and delivery but shall not prevent the Buyer from providing reasonable evidence to the contrary.
7.5 Where the Company accepts that Goods have been lost in transit or have not been delivered due to a matter for which the Company is responsible, the Company shall, subject to Section 14, either:
(a) deliver replacement Goods within a reasonable period; or
(b) refund or credit the price paid or payable for the undelivered Goods.
7.6 The Company shall not be responsible for alleged non-delivery where the Goods were delivered in accordance with the Buyer's instructions to the Delivery Location or to a person reasonably appearing to be authorised to receive them, unless the Buyer provides reasonable evidence to the contrary.
7.7 Failed delivery caused by the Buyer shall be dealt with in accordance with Section 4.6.
8. Cancellation
8.1 Because the Company contracts with Business Customers only, there is no contractual cooling-off period or automatic right to cancel an Order or return conforming Goods because the Buyer has changed its mind, incorrectly ordered the Goods or no longer requires them.
8.2 Following acceptance of an Order, the Buyer may only cancel it with the Company's prior written agreement.
8.3 The Company may make its agreement to cancellation conditional upon payment by the Buyer of costs and losses reasonably incurred as a consequence of the cancellation, including supplier cancellation charges, transport, administration, storage and committed manufacturing or procurement costs.
8.4 The Company is under no obligation to accept the return of correctly supplied conforming Goods
8.5 Where the Company agrees to accept a discretionary return, a Return Authorisation must first be obtained. Unauthorised returns may be refused.
8.6 Unless otherwise agreed, returned Goods must be unused, uninstalled, complete, resaleable and returned with all original packaging, protective film, manuals, accessories and pallets.
8.7 The Buyer shall bear the cost and risk of returning Goods unless the Company agrees otherwise in writing.
8.8 Where the Company agrees to accept a return of correctly supplied Goods, the Company may deduct a restocking and administration charge of 25% of the net purchase price together with applicable collection or transport costs.
8.9 Where Goods are returned without original packaging, damaged, incomplete or otherwise reduced in resale value, the Company may refuse the return or make an additional reasonable deduction reflecting the reduction in value and costs incurred.
8.10 No credit or refund shall become due until the Goods have been received and inspected by the Company or its nominated supplier.
8.11 Bespoke, Made-to-Order and Specifically Procured Goods
Goods which are bespoke, made-to-order, manufactured, assembled, configured, modified, reserved, ordered or otherwise procured by the Company from a manufacturer, distributor, supplier or third party specifically in reliance upon and for the purpose of fulfilling the Buyer's Order ("Specifically Procured Goods") may not be cancelled or returned following acceptance of the Order except with the Company's prior written agreement.
This includes, without limitation, bespoke coldrooms, custom panels and doors, refrigeration systems, equipment manufactured or configured to the Buyer's requirements and Goods ordered or procured by the Company specifically to fulfil the Buyer's Order.
Once the Company has placed an order with a manufacturer or supplier, commenced manufacture, reserved stock or otherwise incurred or committed costs in connection with Specifically Procured Goods, the Buyer shall have no contractual right to cancel the Order or return those Goods because they are no longer required, were incorrectly ordered by the Buyer or because the Buyer has changed its mind.
Where the Company nevertheless agrees in writing to cancellation or return, the Company may make that agreement conditional upon the Buyer paying all reasonable costs, charges and losses incurred or committed by the Company as a consequence, including manufacturer or supplier cancellation or restocking charges, manufacturing costs, transport, handling, storage and administration costs.
Nothing in this clause affects any right or remedy which cannot lawfully be excluded or restricted
8.12 Changes to Orders
Following acceptance of an Order, the Buyer may not change the quantity, specification, dimensions, configuration, delivery requirements or other material details of the Order without the Company's prior written agreement.
Where the Company agrees to a requested change, the Buyer shall be responsible for any reasonable additional costs, charges or losses resulting from that change and the Company may revise the price and estimated delivery date accordingly.
The Company shall not be obliged to accept a requested change where manufacture, procurement, allocation, preparation or dispatch of the Goods has commenced or where the Company has incurred or committed costs in reliance upon the original Order.
9. Leasing
9.1. At our discretion, and subject to certain criterion, we may be willing to allow the payment of the Goods to be funded through a Lease Company or other payment provider. Our agreement to this will be strictly on the basis that you agree to the terms within this section9.
9.2 We only act as an introducer to the Lease Company or other payment provider and are independent of it and not in any way connected to the same.
9.3 You acknowledge that you have not relied upon any advice or representations from us in respect of whether or not you should use this method of payment.
9.4 You understand that the arrangements with the Lease Company or other payment provider are a separate contract and not part of any contract with us, and you accept all responsibility in this regard.
9.5 You warrant that you shall ensure that all documentation and information required by the Lease Company to process the Order shall be completed no later than 7 Business Days from receipt of the same. Failure to comply with this provision will lead to delayed delivery.
9.6 Any information displayed on our Site regarding leasing or financing options is based on information from the Lease Company or other payment provider and is for assistance only and is not in any way a substitute for advice required from the Lease Company itself or legal advice (where applicable). We therefore do not accept any liability in respect of this information. By agreeing to their services, you are also bound by their Terms and Conditions in addition to the Terms and Conditions of our company
10. Risk And Title
10.1 Risk
Risk in the Goods shall pass to the Buyer upon completion of delivery in accordance with Section 4 or, where the Buyer or its appointed carrier collects the Goods, upon completion of collection in accordance with Section 6.
10.2 Retention of Title
Title to the Goods shall not pass to the Buyer until the Company has received in cleared funds payment in full for:
(a) the Goods; and
(b) all other sums which are due and payable by the Buyer to the Company.
10.3 Buyer's Obligations Before Title Passes
Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods as bailee for the Company;
(b) store the Goods separately from other goods where reasonably practicable so that they remain readily identifiable as the Company's property;
(c) not remove, deface or obscure any serial number, identifying mark or packaging relating to the Goods;
(d) maintain the Goods in satisfactory condition;
(e) keep the Goods appropriately insured against loss or damage for their full replacement value from the date risk passes;
(f) notify the Company promptly if the Buyer becomes subject to insolvency proceedings, administration, liquidation, bankruptcy or any analogous event; and
(g) provide the Company with such information concerning the location and condition of the Goods as the Company may reasonably request.
10.4 Resale in Ordinary Course
Subject to clause 10.5, the Buyer may resell or use the Goods in the ordinary course of its business before title passes.
Where the Buyer resells the Goods before title passes, title to those Goods shall pass to the Buyer immediately before the time at which the resale occurs.
10.5 Termination of Right to Possession
The Buyer's right to possess, use or resell Goods to which the Company retains title shall terminate immediately if:
(a) any amount properly due to the Company remains unpaid after its due date and the Company gives written notice terminating that right; or
(b) the Buyer becomes subject to administration, liquidation, bankruptcy or any other insolvency event, to the extent permitted by law.
10.6 Recovery of Goods
Where the Buyer's right to possession has terminated and title remains with the Company, the Buyer shall make the relevant Goods available for collection by the Company.
To the extent permitted by law, the Buyer shall grant the Company and its authorised representatives reasonable access during normal business hours to premises controlled by the Buyer where the Goods are reasonably believed to be located for the purpose of identifying and recovering Goods to which the Company retains title.
The Company shall take reasonable care when exercising any right of recovery.
10.7 Recovery of Goods shall not, by itself, extinguish the Buyer's liability for sums properly due to the Company, subject to appropriate credit being given for any amount recovered through resale or other disposal of the recovered Goods.
11. Price
11.1 Advertised Prices
Prices displayed on the Site, in catalogues, advertisements or other marketing materials may be changed by the Company at any time before a Contract is formed.
An advertised price does not constitute an offer by the Company to sell Goods at that price.
11.2 Contract Price
The price payable by the Buyer shall be the price stated in the Company's Order Acceptance or, where no separate Order Acceptance is issued, the price expressly agreed by the Company in writing and applicable when the Contract is formed.
Unless expressly stated otherwise, all prices are exclusive of VAT, delivery, installation, commissioning and any other applicable taxes, duties or charges.
VAT shall be payable at the applicable rate.
11.3 Pricing Errors
The Company takes reasonable care to ensure that prices are accurate. Where an obvious pricing, typographical, administrative or system error is identified before acceptance of an Order, the Company may correct the error and offer the Buyer the opportunity to proceed at the correct price.
Where an obvious pricing error is discovered after acceptance, and the Buyer knew or ought reasonably to have known that the price was incorrect, the Company may notify the Buyer and seek to agree the appropriate correction or, where legally entitled to do so, cancel the affected part of the Contract and refund any corresponding amount paid.
11.4 Quotations
Unless otherwise stated in writing, a quotation is not an offer capable of acceptance and may be withdrawn or amended by the Company at any time before a Contract is formed.
Any quotation shall remain valid only for the period stated in it or, where no period is stated, for 30 days from its date, subject to availability and any qualifications stated in the quotation.
11.5 Variations Requested by the Buyer
Any alteration to the Specification, dimensions, quantities, configuration, delivery arrangements, installation requirements or other Contract requirements requested by the Buyer after formation of the Contract shall be subject to the Company's prior written agreement.
The Company may adjust the Contract price and estimated delivery or completion date to reflect any agreed variation and any additional costs reasonably resulting from it.
11.6 Additional Site and Installation Costs
Where the Company is providing installation or Services, the Buyer shall be responsible for reasonable additional costs arising from circumstances for which the Buyer is responsible, including inaccurate Site information, unsuitable or inaccessible Site conditions, incomplete preparatory works, unavailable utilities, waiting time, aborted attendance, additional labour, specialist lifting or access equipment, storage or return visits.
11.7 Taxes and Duties
The Buyer shall pay VAT and any other tax, duty, levy or governmental charge properly payable in connection with the supply of the Goods or Services, except taxes imposed upon the Company's income or profits.
11.8 Delivery and Other Charges
Delivery, installation, commissioning, lifting, positioning, disposal and other services are chargeable unless expressly stated as included in the Contract price.
Where additional charges arise because of inaccurate information, changed instructions or circumstances attributable to the Buyer, the Buyer shall pay the reasonable additional costs incurred by the Company.
11.9 WEEE
Any obligations relating to waste electrical and electronic equipment shall be dealt with in accordance with Section 17.
12. Terms Of Payment
12.1 Payment Terms
Unless the Company has expressly approved credit facilities in writing, payment shall be made in full in cleared funds before manufacture, procurement, dispatch, delivery or performance of Services, as applicable.
Approved account customers shall pay invoices within 30 days from the date of invoice unless different payment terms are expressly agreed in writing.
12.2 Cleared Funds
Payment shall not be treated as received until the Company has received cleared funds.
12.3 No Set-Off
The Buyer shall pay all amounts properly due under the Contract in full without set-off, counterclaim, deduction or withholding except where required by law.
12.4 Time for Payment
Time for payment shall be of the essence.
12.5 Late Payment
Where any amount properly due under the Contract is not paid by its due date, the Company may exercise its rights under the Late Payment of Commercial Debts (Interest) Act 1998, including the right, where applicable, to statutory interest, fixed compensation and reasonable debt recovery costs, together with any other rights or remedies available to the Company.
12.6 Suspension for Non-Payment
Where any amount properly due to the Company remains unpaid after its due date, the Company may, upon giving notice to the Buyer, suspend manufacture, procurement, dispatch, delivery, installation, warranty services or any other Services until all overdue amounts have been paid in cleared funds, except to the extent that suspension would be unlawful.
Any resulting delivery or completion dates shall be extended by a reasonable period and the Buyer shall be responsible for reasonable additional costs incurred by the Company as a result of the suspension.
12.7 Credit Facilities
Any credit facility is granted at the Company's discretion and may be reduced, suspended or withdrawn where the Company reasonably considers that the Buyer's creditworthiness, payment history or financial circumstances justify doing so.
Withdrawal of a credit facility shall not affect payment terms which have already accrued unless otherwise permitted by the Contract or law.
12.8 Credit Risk and Security
Where, after formation of the Contract, the Company reasonably believes that the Buyer's ability to pay has materially deteriorated or that payment is otherwise at material risk, the Company may require reasonable security, a deposit or payment in cleared funds before continuing manufacture, procurement, dispatch, delivery or Services.
12.9 Insolvency
To the extent permitted by law, the Company may exercise any applicable contractual or statutory rights where the Buyer becomes insolvent, enters liquidation, administration or bankruptcy, proposes an arrangement with creditors, ceases or threatens to cease trading, or becomes subject to any analogous event.
Nothing in these Terms shall permit the Company to terminate or otherwise exercise a right where doing so is prohibited by applicable insolvency law.
12.10 Returned Payments
Where a cheque, direct debit or other payment is dishonoured, reversed or returned unpaid, the Buyer shall remain liable for the underlying amount properly due together with any reasonable bank or administration costs incurred by the Company, to the extent recoverable by law.
12.11 Chargebacks and Payment Disputes
A card chargeback, payment-provider dispute, payment reversal or similar claim shall not of itself extinguish or determine the Buyer's underlying contractual liability.
Where payment is reversed, withheld or reclaimed but sums remain properly due under the Contract, the Company may recover those sums together with applicable interest, statutory compensation and reasonable debt recovery costs.
12.12 Allocation of Payments
Where the Buyer owes the Company amounts under more than one invoice or Contract, the Company may allocate payments received against outstanding amounts in such reasonable manner as it determines, unless the law requires otherwise.
12.13 Deposits and Stage Payments
Where the Contract requires a deposit, advance payment or stage payment, that payment shall become due at the time specified in the Company's quotation, Order Acceptance or invoice.
Unless expressly agreed otherwise in writing, a deposit or advance payment relating to bespoke, made-to-order or Specifically Procured Goods is paid on account of the Contract price and does not give the Buyer a right to cancel the Contract.
Where the Buyer cancels or seeks to cancel a Contract in circumstances where it has no contractual right to do so, the Company's entitlement to retain or apply any deposit or advance payment shall be determined by the Company's actual and reasonably incurred or committed costs, charges and losses arising from the cancellation, subject to the Company's duty to mitigate its loss and applicable law.
Where a stage payment becomes overdue, the Company may suspend further manufacture, procurement, delivery, installation or Services in accordance with clause 12.6.
12.14 Retention of Title
Ownership of Goods shall be governed exclusively by Section 10.
13. Warranties
13.1 Unless otherwise expressly stated in the Company's quotation, Order Acceptance or invoice, Goods supplied by the Company shall have the benefit of the applicable manufacturer's warranty, subject to that manufacturer's warranty terms, conditions, limitations and exclusions.
Where the Company administers or facilitates a manufacturer's warranty claim on behalf of the Buyer, it does so in accordance with this Section 13 and the applicable manufacturer's warranty procedures.
A manufacturer's warranty is additional to, and does not exclude or replace, any obligation or liability of the Company which cannot lawfully be excluded or restricted.
Unless expressly agreed otherwise in writing, warranties apply to Goods installed and operated within UK Mainland only and do not apply to Goods exported to, installed in or operated outside UK Mainland.
The Company may suspend performance of its contractual warranty obligations while sums properly due in respect of the relevant Goods remain overdue, except to the extent that such suspension would be unlawful.
13.2 Warranty Period. The applicable warranty type and warranty period shall be as stated in the Company’s quotation, Order Acceptance, invoice, product description or other written confirmation. Unless expressly stated otherwise, the warranty period shall commence on the date of the Company’s invoice. A repaired or replacement part or item shall be covered for the remainder of the original warranty period and shall not commence a new warranty period.
13.3 Notification of Faults. Any fault or suspected defect must be notified to the Company in writing promptly following discovery and within the applicable warranty period.
The Buyer shall provide such information as the Company reasonably requires to assess the claim, which may include photographs, videos, serial numbers, proof of purchase, installation or commissioning records, error codes, maintenance records and a description of the fault.
The Buyer shall provide reasonable assistance with diagnostic procedures requested by the Company or manufacturer.
13.4 Warranty Exclusions - Unless expressly agreed otherwise in writing, a warranty shall not cover any fault, damage or failure arising from or contributed to by:
(a) fair wear and tear;
(b) accidental or deliberate damage;
(c) misuse, abuse, negligence, overloading or abnormal use;
(d) failure to operate the Goods in accordance with the manufacturer’s or Company’s instructions;
(e) incorrect installation, commissioning, positioning or connection where such work was not undertaken by the Company;
(f) installation or repair by an unauthorised or insufficiently qualified person;
(g) alteration, modification, dismantling or attempted repair without the Company’s prior written authorisation;
(h) unsuitable electrical supply, incorrect voltage, phase or electrical connection;
(i) inadequate ventilation, drainage, water supply, environmental conditions or other unsuitable Site conditions;
(j) fire, flood, water damage, smoke, impact or other external causes;
(k) failure to clean, service, maintain, descale or otherwise care for the Goods in accordance with the manufacturer’s recommendations or good commercial practice;
(l) removal, alteration or tampering with serial numbers, identification labels or seals; or
(m) use of the Goods for a purpose or in conditions for which they were not designed.
13.5 Excluded and Consumable Items - Unless expressly included in the applicable manufacturer’s warranty, warranties do not cover consumable items or items subject to normal wear, including bulbs, lamps, door seals, gaskets, handles, feet, hinges and similar components.
Grade B, clearance, ex-display and second-hand Goods shall only carry such warranty, if any, as is expressly stated in writing by the Company at the time of sale.
13.6.1 Refrigeration, Temperature-Controlled Goods and Stock Loss
The Buyer acknowledges that refrigeration, freezer and other temperature-controlled equipment may be subject to mechanical, electrical, refrigerant, power-supply or other failure. The Buyer is responsible for maintaining appropriate insurance against loss, deterioration or spoilage of stock and, where commercially appropriate, suitable independent temperature monitoring, alarm and contingency arrangements.
Subject to Section 14 and to the fullest extent permitted by law, the Company shall not be liable for the loss, deterioration or spoilage of food, drink, pharmaceuticals, ingredients, materials or any other products or contents stored in, processed by or otherwise dependent upon the Goods.
The Buyer shall take reasonable steps to minimise any loss following discovery of a fault, including where appropriate relocating stock to suitable alternative storage.
13.6.2 Refrigeration Performance and Operating Conditions
Any stated refrigeration capacity, operating temperature, pull-down time or performance figure is subject to the operating conditions, ambient temperature, product load, door-opening frequency, ventilation, installation conditions and other assumptions specified by the manufacturer or Company.
The Buyer shall ensure that refrigeration and temperature-controlled equipment is operated within its specified design and environmental conditions.
The Company shall not be responsible for failure to achieve or maintain a particular temperature or performance level to the extent caused or contributed to by excessive product loading, loading of products at temperatures outside the equipment's design conditions, excessive or prolonged door opening, inadequate ventilation, abnormal ambient temperatures, obstruction of airflow, unsuitable Site conditions, incorrect settings or operation, failure of external utilities or any other circumstance outside the Company's reasonable control.
13.7 Parts Only Warranty
Where a Parts Only Warranty applies, the Company’s warranty obligation shall be limited to supplying a replacement part for a qualifying defective part.
A Parts Only Warranty does not include diagnosis, engineer attendance, labour, travel, accommodation, removal of the defective part, installation of the replacement part, refrigerant, consumables or other associated costs unless expressly agreed otherwise in writing.
The Company may require the defective part to be returned for examination at the Buyer’s cost.
Where a replacement part has been supplied and the Buyer fails to return the defective part within 14 days after being requested to do so, the Company reserves the right to charge the Buyer for the replacement part. The Company may require a reasonable deposit or payment security before dispatching a replacement part, which shall be dealt with following determination of the warranty claim.
13.8 Back-to-Base Warranty
Where a Back-to-Base Warranty applies, the Buyer shall be responsible for arranging and paying for the safe removal, packaging and transportation of the Goods to the workshop or other location nominated by the Company.
The Goods shall remain at the Buyer’s risk while in transit to the nominated location.
The Company shall inspect and, where the warranty claim is valid, repair or replace the Goods in accordance with the applicable warranty.
If inspection establishes that the fault is not covered by warranty, the Company may charge the Buyer reasonable inspection, diagnosis, repair, parts and associated costs. No chargeable repair shall be undertaken without the Buyer’s authorisation where the Buyer will incur additional repair charges.
13.9 Parts and Labour Warranty
Where a Parts and Labour Warranty applies, qualifying warranty repairs shall be carried out by an engineer appointed or authorised by the Company or manufacturer.
The Buyer must not appoint its own engineer, undertake repairs or incur repair costs and subsequently seek reimbursement from the Company unless the Company has authorised the proposed work and cost in writing beforehand.
Warranty call-outs are accepted subject to subsequent diagnosis confirming that the fault is covered by the applicable warranty.
Where an engineer attends and determines that the fault is not covered by warranty, the Buyer shall be responsible for reasonable call-out, labour, travel, diagnosis, parts and associated charges.
This includes, without limitation, faults arising from incorrect installation by others, misuse, lack of maintenance, unsuitable Site conditions, incorrect electrical supply, blocked drains, failure to clean or descale, operator error or other matters excluded under clause 13.4.
13.10 Installation Requirements
Where Goods require professional installation or commissioning, the Buyer shall ensure that such work is carried out by a suitably qualified and competent person unless installation is being undertaken by the Company.
The Company may require reasonable evidence of correct installation, commissioning, servicing or maintenance before accepting a warranty claim.
Where applicable, installation must comply with all relevant legislation, regulations, manufacturer requirements and recognised industry standards.
13.11 Warranty Call-Out Deposits
The Company may require a reasonable deposit or payment authorisation before arranging an engineer attendance where the cause of the reported fault has not yet been established.
Where the engineer confirms that the fault constitutes a valid warranty claim, the applicable deposit shall be refunded.
Where the engineer determines that the fault is not covered by warranty, the Company may deduct the reasonable charges incurred from the deposit and shall refund any remaining balance. If the charges exceed the deposit, the Buyer shall pay the outstanding balance.
13.12 Defective and Replaced Parts
Any defective Goods or parts replaced by the Company or manufacturer under warranty shall, where requested, become the property of the Company or manufacturer and must be made available for collection or return.
Failure to make a defective part available where reasonably requested may result in the replacement becoming chargeable.
13.13 Limitation of Warranty
The warranty provisions contained in this Section 13 describe the Company's contractual warranty arrangements and the procedures applicable to warranty claims.
They do not exclude or restrict any term, right, remedy or liability which cannot lawfully be excluded or restricted.
Any exclusion or restriction of terms implied by statute or common law shall apply only to the extent expressly stated in these Terms and to the extent permitted by applicable law.
The limitations and exclusions of liability contained in Section 14 apply to warranty claims and other claims arising out of or in connection with the Contract.
13.14 Manufacturer Warranty
Where the Company facilitates a claim under a manufacturer’s warranty, the Buyer acknowledges that the manufacturer may require reasonable diagnostic information, inspection, return of parts or compliance with its warranty procedures before approving the claim.
The Company shall use reasonable endeavours to administer valid manufacturer warranty claims but shall not be required to provide warranty benefits beyond those expressly applicable to the Goods unless the Company has separately agreed to do so in writing.
14. Limitation Of Liability
THE BUYER'S ATTENTION IS PARTICULARLY DRAWN TO THIS SECTION.
14.1 References in this Section to liability include every kind of liability arising under or in connection with the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution or breach of statutory duty.
14.2 Liability Which Is Not Excluded
Nothing in these Terms shall exclude or limit the Company's liability for:
(a) death or personal injury caused by the negligence of the Company, its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms as to title implied by section 12 of the Sale of Goods Act 1979;
(d) liability which cannot be excluded or limited under section 7 of the Consumer Protection Act 1987; or
(e) any other liability which cannot lawfully be excluded or limited.
14.3 Excluded Categories of Loss
Subject to clause 14.2, the Company shall not be liable for:
(a) loss of profit;
(b) loss of revenue;
(c) loss of sales or business;
(d) loss of production;
(e) loss of agreements or contracts;
(f) loss of anticipated savings;
(g) loss of business opportunity;
(h) loss of or damage to goodwill;
(i) loss of use;
(j) loss or corruption of data or information;
(k) business interruption;
(l) loss, deterioration or spoilage of stock, food, drink, ingredients, pharmaceuticals, materials or other contents; or
(m) any indirect or consequential loss,
arising out of or in connection with the Contract.
14.4 Aggregate Liability Cap
Subject always to clause 14.2 and to the fullest extent permitted by law, the Company's total aggregate liability arising out of or in connection with a Contract, whether arising in contract, tort (including negligence), misrepresentation, restitution, breach of statutory duty or otherwise, shall not exceed the net price paid or payable by the Buyer for the particular Goods and/or Services giving rise to the claim.
The limitations and exclusions contained in this Section 14 are intended to allocate commercial risk between the parties having regard to the nature and value of the Goods and Services supplied, the availability of insurance and the Buyer's ability to insure against business interruption, stock loss and other commercial risks.
Nothing in this clause shall operate to limit any liability identified in clause 14.2 or any liability to the extent that it cannot lawfully be limited.
14.5 Goods Selected by the Buyer
Subject to clause 14.2, the Company shall not be liable for loss arising solely because Goods correctly supplied in accordance with the Contract are unsuitable for a particular purpose, location or Site where:
(a) the Buyer selected the Goods without relying upon a written recommendation by the Company for that specific purpose; or
(b) the Buyer failed to provide the Company with material information reasonably necessary to assess suitability.
14.6 Information and Recommendations
Where the Company provides technical information or recommendations based upon measurements, specifications, photographs, drawings, descriptions or other information supplied by the Buyer, the Company shall not be responsible for loss to the extent caused by that information being inaccurate, incomplete or misleading.
14.7 Mitigation
The Buyer shall take reasonable steps to minimise any loss or damage arising from a breach of Contract or fault affecting the Goods, including where appropriate ceasing use of unsafe or defective equipment and protecting or relocating vulnerable stock.
14.8 Third-Party Repairs and Costs
Except in an emergency involving an immediate risk to health, safety or property, the Buyer shall give the Company a reasonable opportunity to investigate and, where appropriate, remedy a matter for which the Company may be responsible before instructing a third party to undertake remedial work at the Company's expense.
The Company shall not be liable for third-party repair, engineer or contractor costs which the Buyer incurs without the Company's prior written authorisation unless it was unreasonable in the circumstances for the Buyer to obtain such authorisation.
14.9 Implied Terms
Except as expressly provided in the Contract and subject always to clause 14.2, all warranties, conditions and other terms implied by statute, common law or otherwise are excluded from the Contract to the fullest extent permitted by law.
In particular, to the fullest extent permitted by law, the Company excludes the terms implied by sections 13, 14 and 15 of the Sale of Goods Act 1979, except to the extent that any such term cannot lawfully be excluded or restricted.
Where the Buyer has made a particular purpose or requirement known to the Company, the Buyer acknowledges that the Company may rely upon the information, measurements, specifications, drawings, photographs and other details supplied by or on behalf of the Buyer. Unless the Company expressly confirms in writing that it accepts responsibility for determining suitability for that particular purpose or Site, the Buyer remains responsible for satisfying itself that the Goods are suitable for its intended purpose, location and operating conditions.
Nothing in this clause shall exclude or restrict the terms as to title implied by section 12 of the Sale of Goods Act 1979 or any other liability which cannot lawfully be excluded or restricted.
14.10 This Section 14 shall survive completion, cancellation or termination of the Contract.
15. Force Majeure
15.1 Neither party shall be liable for delay or failure to perform its obligations under the Contract to the extent caused by an event or circumstance beyond its reasonable control ("Force Majeure Event").
A Force Majeure Event may include natural disaster, flood, fire, epidemic, pandemic, war, terrorism, civil disturbance, governmental action, embargo, industrial dispute, interruption or failure of utilities or transport networks, port disruption, material shortage, cyber incident, breakdown of plant or machinery, or failure or delay by a manufacturer, supplier, carrier or subcontractor caused by circumstances beyond the affected party's reasonable control.
15.2 The affected party shall use reasonable endeavours to minimise the effect of the Force Majeure Event upon performance of the Contract.
15.3 Any time for performance affected by a Force Majeure Event shall be extended by a reasonable period having regard to the duration and effect of the event.
15.4 Where a Force Majeure Event prevents substantially all performance of the Contract for a continuous period exceeding 90 days, either party may terminate the affected part of the Contract by written notice.
Termination under this clause shall not affect rights or liabilities accrued before termination and the Buyer shall pay for Goods and Services already supplied and reasonable non-cancellable costs properly incurred by the Company in performing the Contract before termination.
16. General
16.1 Entire Agreement
The Contract constitutes the entire agreement between the Company and the Buyer in relation to its subject matter and supersedes any previous agreement, assurance, statement, representation or understanding relating to that subject matter.
The Buyer acknowledges that, in entering into the Contract, it does not rely upon any statement, representation, assurance or warranty which is not expressly set out in the Contract.
Nothing in this clause excludes or limits liability for fraud or fraudulent misrepresentation.
16.2 Order of Precedence
If there is any inconsistency between documents forming the Contract, the following order of precedence shall apply:
(a) any specific written variation expressly agreed by an authorised representative of the Company;
(b) the Order Acceptance;
(c) the Company's quotation and any Specification expressly incorporated into the Contract;
(d) these Terms; and
(e) any other document expressly forming part of the Contract.
The Buyer's purchase order, confirmation, specification or other document shall not override or amend these Terms merely because it contains inconsistent or additional terms.
16.3 Authority and Communications
The Company shall be entitled to rely upon instructions, approvals, specifications, measurements, delivery instructions and other communications received from a person who reasonably appears to the Company to be authorised to act on behalf of the Buyer.
The Buyer is responsible for ensuring that persons placing Orders, approving Specifications, requesting variations or otherwise communicating instructions to the Company have appropriate authority to do so.
16.4 No Oral Variation
No oral statement, instruction, representation, assurance or agreement shall vary the Contract.
No variation of the Contract shall be effective unless agreed in writing by an authorised representative of the Company.
16.5 Subcontracting
The Company may appoint subcontractors, engineers, manufacturers, suppliers, carriers or other third parties to perform any part of its obligations under the Contract.
The appointment of a subcontractor shall not relieve the Company of responsibility for those contractual obligations which remain the responsibility of the Company.
16.6 Assignment
The Buyer shall not assign, transfer, charge, subcontract or otherwise deal with any of its rights or obligations under the Contract without the Company's prior written consent.
The Company may assign or transfer its rights under the Contract and may subcontract performance of its obligations, subject to applicable law.
16.7 Errors and Omissions
Any clerical, typographical, administrative, transcription or system error or omission contained in a quotation, Order Acceptance, invoice, acknowledgement, Specification or other document issued by the Company may be corrected upon discovery.
An obvious error shall not bind the Company where the Buyer knew or ought reasonably to have known that an error had occurred.
Nothing in this clause permits the Company to make a material alteration to an agreed Contract merely by describing that alteration as the correction of an error.
16.8 Rights and Remedies
Except where expressly stated otherwise, the rights and remedies provided under the Contract are cumulative and are in addition to any rights and remedies provided by law.
The exercise of one right or remedy shall not prevent the exercise of any other available right or remedy.
16.9 Notices
Any formal notice given under or in connection with the Contract shall be in writing.
A notice may be delivered by hand, sent by pre-paid first-class post or other next-working-day delivery service to the registered office or principal place of business of the receiving party, or sent by email to an email address notified by that party for contractual communications.
This clause does not apply to the service of legal proceedings or other documents in legal proceedings.
16.10 Severance
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be treated as modified to the minimum extent necessary to make it valid, legal and enforceable.
If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
Any modification or deletion shall not affect the validity or enforceability of the remainder of the Contract.
16.11 Waiver
A failure or delay by either party to exercise any right or remedy under the Contract or by law shall not constitute a waiver of that or any other right or remedy.
A waiver of any particular right, breach or default shall not constitute a waiver of any subsequent right, breach or default.
16.12 Third-Party Rights
Unless expressly stated otherwise, a person who is not a party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
16.13 Governing Law
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 the law of England and Wales.
16.14 Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation, including non-contractual disputes or claims.
17. UK WEEE Regulations
17.1 The Company and the Buyer shall comply with their respective obligations under the Waste Electrical and Electronic Equipment Regulations 2013, as amended from time to time.
17.2 Where the Regulations permit responsibility for financing the collection, treatment, recovery and environmentally sound disposal of business WEEE to be allocated to the Buyer, and the parties agree that allocation, the agreement shall be recorded in the applicable Order, quotation or Contract documentation.
17.3 Nothing in these Terms shall operate to transfer or exclude a statutory WEEE obligation where such obligation cannot lawfully be transferred or excluded.
18. Communications
18.1 The Company may communicate with the Buyer by telephone, email or other contact details supplied by or on behalf of the Buyer.
The Buyer shall ensure that its contact details are accurate and shall notify the Company promptly of any material change to those details.
The Company's entitlement to rely upon instructions and communications received from persons reasonably appearing to be authorised by the Buyer is governed by clause 16.3.
18.2 Recording and Monitoring
The Company may monitor, record and retain telephone calls, emails and other communications where permitted by applicable law for the purposes of verifying instructions and transactions, training, quality assurance, fraud and crime prevention, dispute resolution and customer service.
Any personal data obtained through such communications shall be processed in accordance with applicable data protection law and the Company's Privacy Notice.
