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CONDITIONS OF BUSINESS
1. Definitions
1.1 The “Buyer” shall mean the corporate entity firm
or person seeking to purchase the services and materials from the
company.
1.2 The “Company” shall mean Safeheat (Torbay) Ltd
1.3 The “Contract” shall mean any contract for Good and Services made
between the Company and the Buyer
1.4 The “Goods” shall mean the products articles or things used by the
Company in the course of its services
1.5 An “Insolvency Event” shall mean
1.5.1 (where the Buyer is a company) the Buyer convenes a meeting of it
creditors or a proposal is made for a voluntary arrangement within Part
1 of the Insolvency Act 1986 or a proposal is made for a composition,
scheme or arrangement with ( or assignment for the benefit of) its
creditors or if the Buyer is unable to pay it debts within the meaning
of Section 123 of the Insolvency Act 1986 or a trustee, receiver,
administrative receiver or a similar officer is appointed in respect of
all or a part of the business or assets of the Buyer or a petition is
presented or a meeting is convened for the purpose of considering a
resolution or other steps are taken for the winding up of the Buyer or
for the making of an administration order;
1.5.2 (where the Buyer is a individual or partnership) the Buyer (or in the
case of a partnership any of the partners) dies or is made bankrupt or
is unable to pay his or her debts within the meaning of Section 123 of
the Insolvency Act 1986 or a proposal is made for a composition scheme
or an arrangement is made with (or an assignment for the benefit of)
his or her creditors
1.6 The “Services” shall mean any services provided by the Company to the
Buyer
1.7 The headings to the clauses shall not affect the construction of these
conditions;
1.8 The use of the plural shall include the singular and the use of the
singular shall include the plural; and
1.9 References to the masculine, feminine or neuter genders shall include
each and every gender. 2. The Contract
2.1 These conditions shall be incorporated into each and every contract
made between the Company and the Buyer and
2.1.1 shall apply to the exclusion
of any terms and conditions put forward by or on behalf of the Buyer;
and
2.1.2 shall not create any agency or partnership between the Company and the
Buyer or any third party
2.2 No variation or waiver of or addition to these conditions, whether
written or oral, shall have effect unless and until authorised in
writing by a manager of the Company
2.3 Quotations and Estimates, whether written or oral, submitted by the
Company shall be deemed to be an invitation to treat and not an offer
2.4 Any order given in respect of a quotation or estimate must state the
date, the reference of that quotation or estimate and address for
works.
2.5 Where Goods and Services are provided by the Company in circumstances
which would give rise to a Construction Contract within the meaning set
out in Part II of the Housing Grants Construction Regeneration Act 1996
then in the event of a conflict of terms the provision of that act and
the regulations made thereunder shall prevail over the conditions set
out there in to the extent necessary to give effect to that Act but not
further or otherwise.
2.6 For the purpose of The Contract (Rights of Third Parties) Act 1999,
these conditions do not create any right or remedy enforceable by any
person other than the Buyer and the Company. This condition does not
affect any right or remedy of a third party that exists or is available
from that Act.
2.7 Any Original Equipment Manufacturer (OEM) part numbers provided by the
Company are given as a reference only, and no inference or implication
beyond that of a useful reference tool should be taken nor is
intended
3. Time Limits
Any
time or date quoted by the Company for the performance of any Services
is an estimate only, and the Company shall not be liable for any
failure to meet any such estimate nor for any loss, whether financial
or otherwise resulting directly or indirectly therefrom. Time is not
and shall not be of the essence in relation to this condition or the
performance by the Company of its obligations under the Contract
4. Price
4.1 Any price quoted by the Company is based upon current
price ruling as at the date appearing on the quotation, but the actual
price to be charged to the Buyer under the Contract shall be based upon
such ruling price (less any discount allowed by the Company) current as
at the date of invoice. In accordance with the terms of this condition,
the Company shall be entitled at any time up to the date of the invoice
to vary the price quoted to the Buyer.
4.2 Unless otherwise expressly
stated in writing, all prices are exclusive of, and therefore subject
to the addition of VAT.
5. Date for Payment
5.1 The Buyer shall make payment in full within seven days from the
date of the invoice. The Company understands and will exercise is
statutory rights to claim interest and compensation for debt recovery
costs under the late payment legislation if we are not paid according
to agreed credit limits.
5.2 Any delay or default by the Buyer in making
payment in accordance with condition 8.1 shall render al sums owing to
the Company on any account whatsoever including the costs of recover of
such sums, due and payable forthwith without requirement for any notice
to be given to the Buyer, and interest will be charged in accordance
with condition 8.1 with immediate effect until the date of actual
payment.
5.3 The Buyer shall not be entitled to withhold payment of any
amount payable to the Company by reason of any dispute or claim by the
Buyer (whether or not the Goods or Services are to be provided by
instalments and in such case each instalment is deemed to constitute a
separate and distinct contract).
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| | | 6. Disputes and Set-Off
Any liability of the Company under the Contract shall be subject to and
conditional upon the due performance and observance by the Buyer of all
its obligations under these conditions, and subject to these
conditions, the Buyer shall not be entitled to withhold or delay
payment or exercise any right of set off whatsoever and howsoever
arising or arisen which might otherwise be available to it.
7. Title
7.1 Until payment shall have been made to the Company of all sums due to it
under the Contract and/or under any other Contract between the Buyer
and the Company on any account whatsoever, property in and beneficial
title to the Goods shall remain in the Company; and
7.2 The Buyer shall
store the Goods separately from all other goods and products and in
such a way that they can be readily identified as being the property of
the Company and
7.3 The Company shall at any time be entitled to
appropriate any payment made by the Buyer in respect of any Goods and
Services in settlement of such invoices or accounts in respect of such
goods as the Company may in its absolute discretion think fit
notwithstanding any purported appropriation to the contrary by the Buyer
8. Termination and Suspension
Without prejudice to any rights and remedies available to it, whether
under the Contract or otherwise, the Company shall be entitled in its
absolute discretion and upon giving to the Buyer written notice of its
intention to do so, wither to terminate wholly or in part the Contract
and/or any other contract with the Buyer or to withhold, vary or
suspend performance of all or any of its obligations under the Contract
or any other Contract in any one or more of the following events:-
8.1 If any sum owing to the Company from the Buyer on any account whatsoever shall be unpaid after the due date for payment
8.2 If an insolvency Event Occurs
8.3 If the Buyer shall commit any breach of any Contract with the Company
8.4 If the Company in good faith shall have doubts as to the solvency of the Buyer
8.5 If the Buyer shall
exceed the credit limit agreed between it and the Company from time to
time on any account. The Company shall be entitled to require as a
condition of resuming performance under the Contract in such
circumstances, the payment of such proportion of the sums or sum
outstanding on any such account by the Buyer or such further sums as
the company sees fit in its absolute discretion to bring the Buyer back
within its agreed credit limit
8.6 If the Buyer
refuses to permit or hinders performance of Services The Company shall
be entitled to exercise its rights of termination or suspension
hereunder at anytime during which the event giving rise thereto shall
not have ceased or been remedied, and in the circumstances of any such
suspension, the Company shall be entitled to require as a condition of
resuming performance under the Contract, pre-payment of or such
security as it may stipulate for the payment of any sum or sums die or
to become due to it. Upon any such event happening the Company shall
also have a general lien over all monies and property of the Buyer in
its possession for any sums due to the Company.
9 Warranty and Liability
The liability of the Company is subject to compliance by the Buyer with all terms contained in this clause 9
9.1 The Company shall
make good by reimbursement of the whole or part of the price (and,
where relevant, as a deduction from any part of the price remaining
unpaid) or at its option by repair or by replacement any defect
developing under normal use in the Goods and due solely to faulty
design (except where the design is supplied by or on behalf of the
Buyer), faulty materials or faulty workmanship provided that:-
9.2
the Buyer shall be responsible for ensuring that Goods are fit for the
purpose for which it wishes o use them and the Company gives no
warranty (and none shall be implied) that the Goods are fit for any
particular purpose; and
9.3
the defect in question shall have appeared within 12 months (or such
longer time period (if any) as may be provided for in any guarantee
given by or on behalf of the manufacturer of the goods) after the buyer
shall have taken possession of the Goods or performance or Services has
been completed and shall have been thereupon promptly notified in
writing to the Company; and
9.3.1
any goods alleged to be defective shall be stored in a safe place by
the Buyer until such time as the Company authorises their disposal in
writing and
9.3.2 any
Goods alleged to be defective shall, if so required by the Company, be
promptly returned at the Buyer’s risk and expense to the Company’s
works for inspection, and the company shall in its reasonable opinion
consider them to be defective solely by reason of faulty design
materials or workmanship; and
9.3.3 no attempt shall
have been made by the Buyer or by any third party to remedy any defect
before, if so required by the Company, the Goods in question shall have
been returned to the Company for inspection; and
9.3.4 the Goods
in question shall have been serviced and maintained properly and in
accordance with the Company’s recommendations and shall not have been
fitted with any parts, components or accessories other than those
manufactured or recommended by the Company
9.4
Apart from such reimbursement repair or replacement the Company, its
employees and agents shall be under no liability to the Buyer or to any
third party for any injury, loss or damage of any kind whatsoever,
howsoever and wheresoever arising or arisen, and whether direct or
indirect, including without limitation any injury, loss or damage
arising out of or incidental to:
9.4.1
any negligence of the Company or of any of its employees or agents
(except insofar as such negligence may result in death or personal
injury);or
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| | | 9.4.2 the Company’s performance of or failure to perform or breach of any of
its obligations, whether express or implied under the Contract or
otherwise; or
9.4.3 the supply, installation, repair or maintenance of any of the Goods; or
9.4.4 any defect in any of the Goods;
9.4.5 any advice given or representation made by the Company or on its
behalf;
9.5.6 any performance of any Services
9.5 Save as set out in Clause 9.1 the liability of the Company arising
from all and any claims relating to any single Contract shall be
limited to a maximum sum of £50 in total or such amount (less the costs
of recovery incurred by the Company) as the Company receives from the
manufacturer of the Goods giving rise to the claim from the Buyer
9.6 The Company shall not be liable for any claim relating to any breach of
warranty, express or implied, brought after the expiry of the period of
twelve months from the date on which the Contract was made (or, in the
case of Goods, after the expiry of such longer period (if any) as may
be provided for by or on behalf of the manufacturer of those Goods).
9.7 The Company shall in no circumstances be liable to the Buyer for any
economic loss, loss of profit, loss of business or like loss.
9.8 The terms of this condition replace all conditions, warranty,
representations, statements, liabilities and other terms whatsoever
implied by common law, statute or otherwise, all of which shall
accordingly be excluded to the extent allowed by law, and the Company
shall in relation to the Goods and Services have no obligation to the
Buyer, either arising by statute or in a tort or in Contract and
whether arising our of any negligence of the company or any of its
employees or agents (and whether under the Contract or under any other
Contract), other than the express obligations contained in the
conditions or in any other document expressly incorporated in wiring
into the Contract. Accordingly it shall be for the Buyer to insure
against any liability arising from the performance of the Service and
from its use of the Goods.
9.9 The Company shall use its reasonable endeavours to transfer to the
Buyer the benefit of any guarantee in respect of the Goods available
fro the manufacturer provided that the Company may in its discretion,
elect to do so only at the cost of the Buyer
9.10 Notwithstanding anything to the contrary herein contained the Company’s
liability to the Buyer for:-
9.10.1 Death or personal injury resulting from the negligence of the Company,
its employees or agents
9.10.2 Damage suffered by the Buyer as a result of a breach by the Company of
the condition as to title or the warranty as to quiet possession
implied by Section 12 of the Sale of Goods Act 1982; and
9.10.3 Damage for which the Company is liable to the Buyer under Part 1 of the
Consumer Protection Act 1987; shall not be limited save that nothing in
this clause 13 shall confer a right or remedy upon the Buyer to which
the Buyer would not otherwise be entitled
9.11 The provisions of this clause 9 shall survive any termination of the
Contract
9.12 The exclusions from and limitations of liability set out in this clause
9 shall be considered severably. The validity or unenforceability of
any one clause, paragraph or sub-paragraph of this clause 9 shall not
affect the validity or enforceability of any other part of this clause 9
10. Indemnity
10.1 If any process is to be applied to the Goods or the Services by the
Company in accordance with a specification or direction (as the case
may be) submitted by the Buyer, the Buyer shall indemnify and hold
harmless the Company from and against all loss, damages, costs and
expenses awarded against or incurred by the Company in connection with
or paid or agreed to be paid by the Company in settlement of any claim
for infringement or alleged infringement of any intellectual property
rights of any other person which results from the Company’s use of the
Buyer’s specification or from the Company complying with the Buyer’s
direction as the case may be.
10.2 Where the Buyer uses the Goods or Services:-
10.2.1 in the manufacture, supply or distribution of any other goods;
10.2.2 in the provision of a service;then the Buyer shall indemnify and hold harmless the Company from and
against all loss, damages, costs and expenses awarded against or
incurred by the Company in respect of such use by the Buyer arising out
of a manufacture, supply or distribution of those other goods or the
provision of that service.
10.3 The Buyer shall indemnify and hold harmless the company from and
against all loss, damages, costs and expenses awarded against or
incurred by the Company in respect of:-
10.3.1 any liability which the Company may incur as a result of a claim
against the Company by a third party under Part 1 of the Consumer
Protection Act, 1987;
10.3.2 any warranty howsoever given by the Buyer to a third party
10.3.3 any loss caused by the Goods during transit
11. Force Majeure
The Company shall have no liability whatsoever for any failure to
perform, or for any delay in the performance of any of its obligations
under the Contract arising wholly or in part by reason of any factor
beyond its direct control.
12. Notices
Any notice required to be given in writing under the Contract shall be
given either by telex or facsimile or by first class post addressed to
the registered office of the party for which it is intended
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