1. GENERAL
Goods are sold by Penmann Climatic Systems Ltd. (hereinafter called the Company) solely on the following terms and conditions or as may be amended from time to time. Any provisions in the Purchaser’s order form or other documents which conflict with or modify or are in addition to the Company’s terms and conditions current at the date of acceptance of the customer’s order shall be excluded from the Contract unless expressly agreed by the Company in writing.
2. QUOTATIONS
Unless previously withdrawn quotations and tenders are open for acceptance for the period stated therein or if no period is stated within 30 days from the date thereof. Acceptance must be in writing and must be accompanied by sufficient information to enable the Company to proceed without delay with the execution of the order. Acceptance includes our terms and conditions of sale.
3. DELIVERY
Delivery terms are quoted without guarantee or penalty and time for delivery shall run from the date the order is received or the tender or quotation accepted or the date on which sufficient information is received from the purchaser to enable the Company to proceed with the execution thereof, whichever is the later. Where any subsequent deviation from these terms is made at the request of the purchaser any additional cost incurred will be charged to the purchaser. No responsibility is accepted by the Company for loss or damage arising out of the failure to supply or delay in supplying. Each delivery shall be considered to be the subject of a separate contract which shall be subject to these terms and conditions and failure to make any one delivery shall not vitiate the contract as to others. The risk in the goods passes to the purchaser upon delivery (and the purchaser, therefore should insure accordingly).
4. PRICES
(a) All prices included in our quotations and tenders are provisional and are subject to alteration upwards or downwards without notice according to our prices ruling at the date of delivery of the goods.
(b) If the Company on the purchaser’s request shall agree to cancel or suspend any order or part thereof without prejudice to any other rights the Company may have the purchaser shall be liable to reimburse the Company for any costs or expenses incurred by the Company as a result of such cancellation or suspension.
5. INSTALLATION
The purchaser shall ensure that a clear and suitable site is available and ready for the Installation of equipment and that the site is readily accessible to normal transport. Quotations including the cost of fixing and erecting materials are based on the work being carried out during ordinary working hours. If unable to proceed without interruption due to causes beyond its control the Company reserves the right to charge for all additional costs involved.
6. SPECIFICATION, DRAWINGS, ETC
Except in quotations or tenders against purchaser’s detailed drawings, statements of weights and dimensions submitted with any quotations or tenders are approximate only and the descriptions and illustrations and other advertising matter are intended to present a general idea only of the goods described therein and none of these shall form a part of any Contract. All quotations, drawings and descriptive matter whatsoever are copyright and remain the property of the Company and are returnable on request. They must be treated as confidential and must in no circumstances be communicated to other persons, firms or companies unless the written consent of the Company has first been obtained, nor must they be otherwise used in any way against the interest of the Company.
7. TERMS OF PAYMENT
A 40% deposit to be paid within 7 days of receipt of Application for Payment/Invoice. Then unless progress payments are applied for the balance of payment shall be made upon completion of the installation in accordance with the Company’s previously submitted Application for Payments/Invoices. If progress payments are applied for, payments shall be made in 7 days of the date of the Application for Payment/Invoice and no retention of any part of such payment shall be allowed unless agreed in writing by the Company when accepting the order. If a purchaser fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to charge the purchaser:
(a) Interest (both before and after judgement) on the amount unpaid, at the rate of 2% per month (a part of a month being treated as a full month) from the due date until the date payment is received.
(b) An administration fee of £20 per month (a part of a month being treated as a full month)
(c) The amount of any legal costs incurred by the Company in connection with the recovery or attempted recovery of the whole or part of the payment (on a full indemnity basis) whether or not proceedings are commenced or costs can be awarded by the Court.
8. TITLE OF GOODS
Not withstanding any agreed terms of payment the property of any goods sold or supplied by the Company shall not pass to the purchaser until the whole of the purchase price shall have been paid. Without prejudice to any other rights or recourse open to it the Company shall be at liberty to cancel the Contract and forthwith to enter upon the premises of the purchaser or any third party where the said goods or any of them are stored and repossess the said goods or any part of them if the price is not paid at the time and in the manner stipulated. Any installments of purchase money paid the Company shall be retained by it for its own use. In reselling these goods and/or incorporating these in any other products and/or systems the purchaser acts as a trustee or agent for the Company until the Company receives payment in full.
9. DAMAGE OR LOSS IN TRANSIT
When goods are damaged or lost in transit the Company will as appropriate in its sole discretion repair or replace them free of charge provided that:-
(a) In the case of damage, loss or non-delivery of any separate part of a consignment, the carriers receipt is signed “unexamined” and the Company and carrier receive written notification from the purchaser within 3 days of the date of the delivery of the consignment or part of consignment.
(b) In the case of non-delivery of the whole consignment the Company and the carrier receive written notification within 10 days of the date of despatch as shown on the relative advice note. Goods alleged to have been damaged before delivery will under no circumstances be replaced or repaired from of charge after their unqualified acceptance by the purchaser.
10. STORAGE
If forwarding instructions are not received within seven days after the date of notification that the goods are ready for despatch, the purchaser shall take delivery or arrange for storage. If the Company agrees to store it will be on the strict understanding that the goods are held at the purchaser’s risk, that a charge will be made until the goods are despatched and that the goods are paid for as if they had been despatched. Any charges for storage or demurrage must also be paid for by the purchaser.
11. LIMITS OF CONTRACT
Quotations or tenders include only such goods and work as are specified therein. Each order will be deemed a separate Contract to which the terms hereof apply and no liability can be accepted by the Company for the working in combination of machinery whether wholly of the Company’s manufacture or otherwise which has been ordered in separate parts and at different times.
12. GUARANTEE
Except as stated below the Company guarantees at its option to make good or replace free of charge an defects or defective parts in any goods supplied by it which are shown to be the Company’s reasonable satisfaction to have proved defective under proper use and maintenance within the guarantee period. The guarantee period shall be 12 months from the date of delivery to site or into storage or from the date of commissioning whichever is the sooner. The defective parts or goods shall be returned to the Company carriage paid if so required by the Company. The opinion of the Company as to whether such goods or parts are defective in manufacture shall be final and the Company’s liability in respect of or consequent upon any such defects whether in original or replacement goods shall be limited as herein provided. Liability is also expressly excluded in respect of:-
(a) Any part not manufactured by the Company which is incorporated in the said goods except that any benefit obtainable or enforceable by the Company from or against the manufacturer of the said part without legal or other expenses whatsoever shall be passed to the purchaser.
(b) Any defect caused by accident, misuse, neglect, tampering with or unauthorised modification of the goods or any attempt at internal adjustment or repair by any person not authorised by the Company.
(c) Any defect found after the expiry date of 12 months from the date of delivery of the goods by the Company to site or into storage.
(d) Any other expenses incurred or any consequential damages or any loss of profit or any other loss or damage whatsoever caused. No condition or warranty contained in any purchaser’s order form or made orally by the Company’s employees shall be considered as varying or over-riding the above. Any defective parts replaced shall be the property of the Company.
13. INSURANCE
The following levels of insurance are included, Employer Liability £10 million any one event, Public Liability £5 million any one occurrence, Products Liability £5 million any one occurrence and in the aggregate and Professional Indemnity £1M in the aggregate. Should insurances levels in excess of these values be required these can be provided but would be chargeable.
14. THIRD PARTY LIABILITY
The purchaser shall indemnify the Company against all and any claims, demands, liabilities and costs whatsoever, howsoever arising, other than those arising by virtue of the negligence of the Company and its employees.
15. PATENTS
The Company will indemnify the purchaser against any claims for alleged Infringement of any patents by the normal use or possession of any part of the goods provided that the purchaser shall make no admissions in respect thereof, but shall notify the Company immediately and the Company shall be at liberty with the purchaser’s assistance, if necessary, but at the Company’s expense, to conduct all negotiations for the settlement of the same or any litigation that may arise therefrom, subject to that the alleged infringement does not arise from the Company’s following any instruction given by or on behalf of the purchaser and is not based upon the use of the goods in combination with any goods not made by the Company. If in such an event, a final injunction is obtained in any such claim, the Company shall, at its option procure for the Purchaser the right to continue to use the goods or modify the goods so that it becomes non-infringing.
16. PERFORMANCE
Whilst the Company will make its best endeavours to fulfil its contractual obligations if the Contract shall become impossible of performance or shall otherwise become frustrated the customer shall be liable to pay to the Company all costs which the Company shall have incurred directly or indirectly and any pre-payments which may have been made to the Company under the Contract shall be applied towards satisfaction of such terms.
17. TAXES
The amount of any and all present of future taxes or other government charges upon the production, shipment, installation or sale of the goods shall be added to the price and paid by the purchaser.
18. ARBITRATION
If at any time any questions, dispute or difference whatsoever shall arise between the purchaser and the Company upon or in relation to or in connection with any Contract which is subject to these terms and conditions either party may give to the other notice in writing of the existence of such a question, dispute or difference and the same shall be referred to the arbitration of a person to be mutually agreed upon. The submission shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act 1950 or any statutory modification or re-enactment thereof.
19. LEGAL CONSTRUCTION
Any contract entered into between the Company and the purchaser shall in all respects be subject to the laws of England and Wales.
20. TERMINATION
The Company may cancel any contract between the Company and the Purchaser if:-
(a) The purchaser commits any breach of the terms of Contract;
(b) Any money payable by the purchaser is overdue;
(c) The Company receives what it considers to be an adverse credit reference on the purchaser;
(d) The purchaser becomes insolvent and the Company reasonably apprehends that the purchaser may become insolvent.
On cancellation the purchaser shall be liable to pay the Company for all work carried out by the Company to the date of cancellation.
