Terms and Conditions
1 DEFINITIONS AND INTERPRETATION
1.1 In these Conditions unless the context otherwise requires the following words shall have the following meanings:
- Acknowledgement means the Company’s acknowledgement of order;
- Buyer means the buyer named in the Quotation;
- Company means Aquacare;
- Contract means the contract for the purchase and sale of the Goods and Services;
- Conditions means the conditions of sale set out in this document and any special conditions set out on the Quotation;
- Force Majeure means any cause preventing the Company from performing any or all of its obligations under the Contract which arises from or is attributable to acts, events, omissions or accidents beyond the Company’s reasonable control including, without limitation, strikes, lockouts or other industrial disputes (whether involving the workforce of the Company or any other person) act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of the Company’s suppliers or subcontractors;
- Goods means the goods the quantity and description of which are set out in the Quotation;
- Quotation means the Company’s quotation;
- Services means the services set out in the Quotation.
- In these Conditions unless the context otherwise requires headings shall not affect the interpretation of these conditions.
2 BASIS OF SALE
2.1 These Conditions shall govern the Contract and all other terms and conditions are excluded. No variation to these Conditions shall be binding unless expressly agreed in writing by the Company.
2.2 The Company’s employees or agents are not authorised to make any representations or recommendations or give any advice concerning the Goods or Services unless expressly confirmed by the Company in writing.
2.3 All drawings, descriptive matter, specifications 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 or Services described in them. They will not form part of this Contract.
2.4 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3 PRICE OF GOODS AND SERVICES
3.1 The price for Goods and Services is set out in our quotation. All prices are given on the basis that work will be carried out during normal working hours, i.e. Monday to Friday, 8 till 5.30 exclusive of Bank Holidays and with uninterrupted access to the premises.
3.2 The price quoted is only for Goods and Services set out on the quotation form.
3.3 The price is exclusive of any value added tax and any other duties or taxes, which the Buyer shall be additionally liable to pay to the Company at the same time as and as part of the price to which they relate.
3.4 The price excludes all costs and expenses other than those specifically referred to in the Quotation as included in the price of the Goods and Services.
3.5 The Company reserves the right, by giving written notice to the Buyer at any time to increase the price of the Goods or Services to reflect:
3.5.1 any increase in the cost to the Company which is due to any factor beyond the control of the Company (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture);
3.5.2 any change in delivery dates or quantities which is requested by the Buyer; or
3.5.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions.
3.6 If reasonably possible the Company will notify the Buyer of any increase in price before it carries out the additional services or supplies additional goods.
3.7 If the Company is unable to complete the Supply of the Goods or Services for any reason or the Buyer requests that the Supply is stopped the Company will charge the Buyer for:
(a) all the Goods that have ordered to supply to the Buyer at the manufacturer’s recommended
(b) all Services carried out and charges incurred on the Buyer’s behalf;
(c) all or any of the Services that have not been completed where the Company is able to prove a loss including but not limited to being unable to reassign the employees or contractors that would have carried out such Services to another contract.
3.8 The quotation is valid for three months from the date it is given.
4 BUYER’S OBLIGATIONS
4.1 The Buyer must allow the Company’s representative onto its property at the times agreed with
4.2 The Buyer must :
4.2.1 ensure all information given to the Company is correct;
4.2.2 comply with all advice, instructions and recommendations of the Company which are made either verbally or in writing; and
4.2.3 ensure that the property where the Company’s employees or agents carry out the work is safe and that no action or failure to act on the Buyer’s part causes injury to any person or loss or damage to the Company.
4.3 The Buyer will indemnify the Company against any injury, loss or damage caused to the Company, its employees, agents or property by any actions or any failure on the part of the Buyer to act.
4.4 The Buyer acknowledges that the completeness and accuracy of information and instructions given by the Company is dependent upon the information supplied by the Buyer. The Company will not be responsible for any loss or damage caused to the Buyer where such loss or damage is as a result of the Buyer failing to give the Company complete and accurate information.
5 PAYMENT TERMS
5.1 The Buyer shall pay the price of the Goods and Services within 30 days of the date of the Company’s invoice
5.2 The Buyer shall make all payments due under a Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
5.3 The Company shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
5.4 No payment shall be deemed received until the Company has received cleared funds.
5.5 In the event of late payment, without limiting any other right or remedy available to the Company, the Company may:
5.5.1 cancel the contract and/or suspend any further deliveries to the Buyer [or the Buyer’s nominated third parties]; and/or
5.5.2 charge the Buyer the costs of recovering the payment (including legal costs) and interest at 1% above the base rate of Lloyds TSB Bank or the rate under the Late Payment of Commercial Debts (Interest) Act, whichever is the greater from the date on which the payment was due until it is paid; and/or
5.5.3 demand full payment of any other amounts owing from the Buyer whether they are due or not, and upon such a demand all such amounts will become immediately due for payment.
6 RIGHTS OVER GOODS INSTALLED
6.1 The Goods are at the risk of the Buyer from the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, at the time of deemed delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Company shall be entitled at any time to require the Buyer to deliver up the Goods to the Company and, if the Buyer fails to do so immediately, to enter on any premises of or under the control of the Buyer where the Goods are stored and repossess the Goods.
7 WARRANTIES AND LIABILITY
7.1 The Company warrants that (subject to the other provisions of these Conditions) the Goods and Services will be free from defects in material and workmanship for a period of 12 months from delivery.
7.2 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.
7.3 The Company shall not be liable for a breach of the warranty in condition 7.1:
7.3.1 if the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
7.3.2 if the Buyer alters or repairs the Goods without the written consent of the Company; or
7.3.3 if the defect arises from fair wear and tear, wilful damage, negligence, abnormal working conditions or misuse; or
7.3.4 if the defect arises through any failure of the Buyer to meet its obligations under these terms.
7.4 Subject to conditions 7.3 and 7.5, if any of the Goods or Services do not conform with the warranty in condition 7.1 the Company’s liability shall be limited (at the Company’s option) to the repair or replacement of such Goods (or the defective part) or repeating the Services or the refund of the price of such Goods and Services.
7.5 If the Company so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the defective part to the Company. Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 12 month period.
7.6 Subject to condition 7.4:
7.6.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the sum recoverable under the Company’s then current insurances; and
7.6.2 the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
7.7 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence, or for fraudulent misrepresentation.
8 FORCE MAJEURE
8.1 The Company shall not be liable for any failure to perform or delay in performance of its obligations under the Contract due to any event of Force Majeure. If any event of Force Majeure delays or prevents the Company’s performance of its obligations for a continuous period of 3 months then either party may, at its discretion terminate the Contract by written notice at the end of this period.
9.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
9.2 The Company may assign the Contract or any part of it to any person, firm or company.
10.1 No variation of the Contract shall be valid unless made in writing and signed by or on behalf of each of the parties.
10.2 If any provision of the Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Contract which shall remain in full force and effect.
10.3 For the purposes of the Contracts (Rights of Third Parties) Act 1999 the parties do not intend any person other than a party to the Contract to be able to enforce any term of the Contract (save where may be expressly stated otherwise in the Contract).
10.4 All notices under the Contract shall be:
10.4.1 in writing and addressed to the recipient at the address set out in the Quotation;
10.4.2 deemed to have been duly given when delivered, if delivered by messenger during normal business hours of the recipient; or on the second business day following mailing, if sent by first class pre paid recorded delivery post; or at the time of transmission if sent by fax (provided that a copy of the fax is put in the post to the recipient by first class recorded delivery post within 24 hours of the transmission).
10.5 English law governs the Contract and the parties irrevocably submit to the exclusive jurisdiction of the English Courts.