AGREED TERMS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).
Client: the person, firm or company who purchases Goods and or Services from the Supplier.
Client's Equipment: any equipment, systems, cabling or facilities provided by the Client and used directly or indirectly in the supply of the Services.
Contract: the quotation and the Supplier's acceptance of it.
Goods: any goods agreed in the Contract to be supplied to the Client by the Supplier (including any part or parts of them).
Services: the services to be provided by the Supplier under the Contract as set out in the attached quotation, together with any other services which the Supplier provides or agrees to provide to the Client.
Supplier: Peter Jenkins trading as aac air conditioning of 40 Park Lane, Kidderminster, Worcestershire DY11 6TG.
Supplier's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Client.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Condition and paragraph headings shall not affect the interpretation of these conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 A reference to writing or written includes faxes but not e-mail.
1.7 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them.
1.8 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in any documentation issued by the Client or implied by law, trade custom, practice or course of dealing.
2.2 The acceptance of a quotation for Goods and/or Services by the Supplier, constitutes an offer by the Client to purchase the Goods and/or Services specified in it on these Conditions. No offer placed by the Client shall be accepted by the Supplier other than:
(a) by an acknowledgement of order being issued by the Supplier; or
(b) (if earlier) by the Supplier delivering the Goods or starting to provide the Services,
when a contract for the supply and purchase of those Goods and/or Services on these Conditions will be established.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
3. COMMENCEMENT AND DURATION OF PROVISION OF GOODS AND/OR SERVICES
3.1 The Goods and/or Services supplied under the Contract shall be provided by the Supplier to the Client on or from the dates specified by the Supplier and in respect of the Services, will be continued to be supplied until the Supplier confirms that the Services are complete, unless the Contract is terminated in accordance with condition 4..
4. SUPPLIER'S SERVICE OBLIGATIONS
4.1 The Supplier shall use reasonable endeavours to provide the Services to the Client, in accordance in all material respects with the quotation.
4.2 The Supplier shall use reasonable endeavours to meet any performance dates specified by the Supplier, but any such dates shall be estimates only and subject to the other provisions of these conditions the Supplier shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss) costs, damages, charges or expenses caused directly or indirectly by any delay in the provision of the Services beyond the dates specified (even if caused by the Supplier's negligence) and time shall not be of the essence of the Contract in this respect.
5. CLIENT'S OBLIGATIONS
5.1 The Client shall:
(a) co-operate with the Supplier in all matters relating to the Goods and Services;
(b) provide, for the Supplier, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Client's premises, office accommodation, data and other facilities as requested by the Supplier;
(c) provide, in a timely manner, such information as the Supplier may request and ensure that it is accurate in all material respects;
(d) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Goods and/or Services;
(e) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client's premises;
(f) ensure that all Client's Equipment is in good working order and suitable for the purposes for which it is used;
(g) obtain and maintain all necessary licences, consents or wayleaves and comply with all relevant legislation in relation to the Goods and/or Services in all cases before the date on which the Goods are to be delivered or the Services are to start; and
(h) notify the Supplier of any changes to the Client's premises which shall effect the provision of Services.
5.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
5.3 The Client shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract.
5.4 The Client shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the last date of supply of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier in the provision of the Services.
6. DESCRIPTION OF GOODS
6.1 The quantity and description of the Goods shall be as set out in the quotation.
6.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's or the manufacturer of the Goods' catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
6.3 Where the Client specifies the Goods it requires against the advice of the Supplier, the Supplier accepts no liability in respect of the suitability of those Goods for any purpose made known to the Supplier.
7. DELIVERY OF GOODS
7.1 Unless otherwise agreed in writing by the Supplier, delivery of the Goods shall take place at the Supplier's address.
7.2 The Client shall take delivery of the Goods on the date that the Supplier notifies the Client that the Goods are ready for delivery.
7.3 Any dates specified by the Supplier for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
7.4 Subject to the other provisions of these conditions the Supplier shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Supplier's negligence), nor shall any delay entitle the Client to terminate or rescind the Contract.
7.5 If for any reason the Client fails to accept delivery of any of the Goods when they are ready for delivery, or the Supplier is unable to deliver the Goods on time because the Client has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Client (including for loss or damage caused by the Supplier's negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Supplier may store the Goods until delivery, whereupon the Client shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
7.6 The Client shall provide at its expense adequate and appropriate equipment and manual labour for loading the Goods.
7.7 The Supplier may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
7.8 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Client to repudiate or cancel any other Contract or instalment.
8. NON-DELIVERY OF GOODS
8.1 The quantity of any consignment of Goods as recorded by the Supplier upon despatch from the Supplier's place of business shall be conclusive evidence of the quantity received by the Client on delivery unless the Client can provide conclusive evidence proving the contrary.
8.2 Any liability of the Supplier for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
9. RISK/TITLE
9.1 The Goods are at the risk of the Client from the time of delivery to the Client's premises, or where condition 7.5 applies, from the time of attempted delivery.
9.2 Ownership of the Goods shall not pass to the Client until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Supplier from the Client on any account.
9.3 Until ownership of the Goods has passed to the Client, the Client shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods (at no cost to the Supplier) separately from all other goods of the Client or any third party in such a way that they remain readily identifiable as the Supplier's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Supplier's behalf for their full price against all risks to the reasonable satisfaction of the Supplier. On request the Client shall produce the policy of insurance to the Supplier.
9.4 The Client's right to possession of the Goods shall terminate immediately if:
(a) the Client has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Client or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Client or for the grant­ing of an administration order in respect of the Client, or any proceedings are commenced relating to the insolvency or possible insolvency of the Client; or
(b) the Client suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Supplier and the Client, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Client ceases to trade; or
(c) the Client encumbers or in any way charges any of the Goods.
9.5 The Supplier shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Supplier.
9.6 The Client grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Client's right to possession has terminated, to recover them.
9.7 On termination of the Contract, howsoever caused, the Supplier's (but not the Client's) rights contained in this condition 9 shall remain in effect.
10. CHANGES TO THE GOODS AND SERVICES
10.1 The Supplier may, from time to time and without notice, change the Goods or Services, provided that such changes do not materially affect the nature, scope of, or the charges for the Goods or Services.
11. CHARGES AND PAYMENT
11.1 The total price for the Goods and/or Services shall be the amount set out in the quotation payable by cash, cheque or BACS payment only.
11.2 The total price for the Goods and/or Services is due in pounds sterling on the date of the invoice.
11.3 All amounts due under the Contract shall be paid in full without any retention, deduction or withholding other than as required by law. The Client shall not be entitled to assert any retention, credit, set off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.
11.4 Any fixed price contained in the quotation excludes packaging, loading, unloading, carriage, insurance and VAT (unless expressly stated otherwise) which the Supplier may add to its invoices at the appropriate rate.
11.5 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier on the due date, the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
11.6 Time for payment shall be of the essence.
11.7 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 11.7 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
11.8 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Client to the Supplier against any liability of the Supplier to the Client.
12. QUALITY
12.1 The Supplier is not the manufacturer of the Goods, however, where the Client takes out a service contract (as specified in the quotation) the Supplier shall endeavour to transfer to the Client the benefit of the 3 year parts and labour warranty issued by the manufacturer in respect of the Goods.
12.2 The Supplier shall not be liable for a breach of any warranty implied into the Contract unless:
(a) the Client gives written notice of the defect to the Supplier, and, if the defect is as a result of damage in transit to the carrier, within 2 days of the time when the Client discovers or ought to have discovered the defect; and
(b) the Supplier is given a reasonable opportunity after receiving the notice of examining such Goods and the Client (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business for the examination to take place there.
12.3 The Supplier shall not be liable for a breach of any warranty implied into the Contract if:
(a) the Client makes any further use of such Goods after realising that they are defective ; or
(b) the defect arises because the Client failed to follow the Supplier's or the manufacturer's oral or written instructions as to the storage, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Client alters or repairs such Goods without the written consent of the Supplier.
12.4 Subject to condition 12.2 and condition 12.3, if any of the Goods and/or Services do not conform with any warranty implied into the Contract the Supplier shall at its option repair or replace such Goods (or the defective part).
12.5 If the Supplier complies with condition 12.4 it shall have no further liability for a breach of any warranty implied into the Contract in respect of such Goods and/or Services.
13. LIMITATION OF LIABILITY - THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
13.1 This condition 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of the Contract;
(b) any use made by the Client of the Goods and/or Services; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
13.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
13.3 Nothing in these Conditions limits or excludes the liability of the Supplier which cannot be limited or excluded by law, and the provisions of these Conditions do not affect the Client's statutory rights.
13.4 Subject to condition 13.2 and condition 13.3
(a) the Supplier shall not be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier'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 the Contract shall be limited to the price paid for the Goods and/or Services.
14. TERMINATION
14.1 The Supplier may terminate the Contract upon seven days' notice in writing to the Client.
14.2 Without prejudice to any other rights or remedies which the Supplier may have, the Supplier may terminate the Contract without liability to the Client immediately on giving notice to the Client if:
(a) the Client commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of the Client being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the Client, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the Client; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the Client, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Client, or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the Client's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Client, or if any other person takes possession of or sells the Client's assets; or
(e) the Client makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the Client ceases, or threatens to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
14.3 On termination of the Contract for any reason:
(a) the Client shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; and
(b) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
15. FORCE MAJEURE
The Supplier shall have no liability to the Client under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including but not limited to the acts or omissions of any subcontractors engaged by the Supplier to provide the Goods and/or Services, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, 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 suppliers or sub-contractors.
16. VARIATION
Subject to condition 10, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless agreed by the Supplier.
17. WAIVER
17.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
17.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
18. SEVERANCE
18.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
19. STATUS OF PRE-CONTRACTUAL STATEMENTS
The Client acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
20. ASSIGNMENT
20.1 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
20.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
21. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. RIGHTS OF THIRD PARTIES
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
23. NOTICES
Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number, given in the Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 23 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
24. GOVERNING LAW AND JURISDICTION
24.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
24.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.