1. All orders based upon this quotation and specification shall be executed on the understanding that the placing of an order constitutes the acceptance of these Conditions of Sale to the exclusion of all other conditions in any purchase order, acceptance or quotation or otherwise brought to our attention. Any acceptance by us of any order shall be conditional upon receipt of any official license or permit which may be required to authorize the purchase, sale or export of the goods or the performance of the work or to obtain the supply of any materials.
2. No other agreement, representation, promise, undertaking or understanding of any kind unless expressly accepted in writing by us shall altar, vary, supersede or operate as a waiver of these Terms and Conditions. All details, drawings, specifications and other descriptions issued by us in connection with goods are approximate only. The description and illustrations contained in our catalogues, price lists and other advertisement matter are intended only to present a’ general idea of the goods described therein and none of these shall form part of the contract based upon this quotation and specification.
3. The prices quoted in this quotation and specification are based upon the costs of labour, materials, components, insurance, statutory obligations, transport and, in the case of goods to be imported by us, upon the exchange rate prevailing at the date of the quotation and specification. If between that date and the date upon which goods are supplied or work is completed under a contract based on this quotation and specification there is any increase or decrease in these costs or in any of them or in the exchange rate then and in any such case we shall be entitled without notice to adjust the price or prices to be paid to us in accordance with the BEAMA (Mechanical) Contracts Price Adjustments Formula so as reasonably to provide for such increase or decrease and the new price will be deemed to be a part of this contract. The prices quoted are exclusive of any present or future sales, value added, service, excise or other similar tax with respect to any machinery or material or service covered by such contract and any such tax shall be paid in addition to the contract price.
4. Payment must be made in full on completion of the contract as defined in the quotation and specification or otherwise in accordance with the terms of payment applicable to this Order. Completion of the contract shall mean:
i. Where the goods covered by this Quotation and specification are to be supplied and installed by us, completion shall take place when the said goods have been installed and commissioned.
ii. Where the goods are to be supplied only, completion shall take place when delivery is deemed to take place. Our liability as to fulfilment of the contract is subject to the various payments being made as specified herein. Failure by you to make punctual payment under this or any other contract between you and us shall entitle us:
a. To charge interest from the date of payment on all outstanding sums due to us at an annual rate 3% above the Bank of Scotland bank base rate as then in force,
b. To suspend any outstanding deliveries or to cancel the contract at our option and to demand immediate payment of all sums owing to us, all without prejudice to our rights to damages.
c. To suspend work on any other contract which we have with you or to cancel such contract at our option and to demand immediate payment of all sums owing to us thereunder without prejudice to our rights to damages.
5. Unless otherwise specifically provided for in our quotation and specification the price or prices quoted are ex-works and do not include the cost of freight, insurance or packing. Your special packing requirements will be carried out where possible and on written request and you will be charged separately for special packing. Where the transport of the goods from our premises is not provided by us ‘delivery” of the goods shall be deemed to take place at the moment of the commencement of loading the goods on to your own or carriers transport at our works. In cases where in our quotation and specification the prices quoted include transportation of the goods to your premises (or as close thereto as shall be reasonably practicable for suitable road vehicles if within the United Kingdom “delivery” shall be deemed to take place at the commencement of offloading of the goods from our own or carriers transport. In no case shall our prices include the cost of offloading and positioning, which will be carried out by you and at your expense. On ‘delivery” of any goods as herein before defined you shall be responsible for and assume the risk of loss or destruction to or of damage to the goods. Any times quoted for delivery or completion date from the receipt by us of a written order to proceed and of all necessary information and drawings to enable us to put the work in hand. The times quoted for dispatch, delivery or completion are given in good faith but are not guaranteed. Every effort will be made to comply with the times given but we shall not be liable for any loss or damage sustained as a result of failure to comply with such times. If work is suspended or delivery delayed because of your instructions, lack of instructions or failure to supply specifications or parts, additional charges may be made. We shall be under no liability whatsoever for any delay in delivery or performance of any order by reason or in consequence of force majeure as referred to below. We shall have the right to dispatch and/or erect any portion of the goods ordered and shall be entitled to invoice you for such dispatched and/or erected portion so that for the purpose of payment each portion shall be deemed to be a separate contract and may be invoiced separately.
6. We reserve the right to modify, without notice, any specifications under which goods are sold if such modification is made necessary by statutory restrictions on the use of materials or for any reason whatsoever beyond our control, If materials are not available as specified we reserve the right without notice to substitute other materials, provided we are of the opinion that such substitute materials are suitable; and we reserve the right to amend the prices quoted to meet any increase or decrease in cost occasioned by such substitution. When your existing materials are to be used in connection with a contract based on this quotation and specification they must be in good condition and suitable for the use for which they are intended. Any replacement found necessary after inspection and/or testing by us will be charged as an addition to the quotation and our decision with regard to the necessity for a replacement will be final. No liability shall be incurred by us if and to the extent to which the fulfilment of our obligations under a contract based on this quotation and specification is prevented, frustrated or directly or indirectly impeded as a consequence of conforming to any statutory rules and regulations and orders made thereunder or by strikes, lockouts, labour troubles or shortage of labour, riots, act of God, acts of Queen’s enemies, force majeure or by breakdown or damage to our plant (however caused) or by shortage of materials, fuel or transport or by fire (however caused) or by flood or
tempest or by defective materials or by any other cause whatsoever beyond our reasonable control. If a party is rendered unable wholly or in part by force majeure substantially to carry out its obligations under this contract for a period of one year or more, then either of us may declare the contract to be discharged forthwith by written notice to the other to that effect. Any goods delivered or any work performed before the date of such discharge shall be deemed payable under the terms of the contract based on this quotation and specification.
7. When the contract based on this quotation and specification provides for delivery to your premises in the United Kingdom we will repair or at our option, replace free of charge goods or parts thereof damaged or lost in transit provided that:
i. In the case of damage, the carriers and we receive written notice of such damage and particulars thereof within seven days of delivery and you return the goods in question to us (carriage paid) and,
ii. In the case of non-receipt, you notify us within seven days of the date of notification of dispatch.
8. Risk in the goods shall pass to you upon the earlier of delivery (as defined above) or the time when such goods are tendered for delivery. Property and title to the goods shall not pass to you until payment of the price has been made in full to us and until such time you shall hold the goods as bailee for us and shall store them in such manner that they can be identified as our property. In the event of your insolvency or your failure to pay any amount due to us in respect of the goods you shall, upon our demand, forthwith return such goods to us at your expense and in the event of your failure to do so we are expressly and irrevocably authorized by you to enter onto your premises and to re-take possession of any goods upon which payment remains due and has not been received.
After the passing of risk, we shall be entitled to store the goods either at our own premises or elsewhere at your expense in the following circumstances:
a. Where you fail to take delivery as such term is defined above on the tender of delivery to you: or
b. By agreement.
After the passing of risk, you will pay all costs of further carriage, storage and insurance or other expenses which may arise in connection with the goods and you will indemnify us against any expenses we may reasonably incur in that behalf.
All damage or destruction to or loss of the goods on your premises occasioned directly or indirectly by fire or otherwise shall be borne by you (whether the goods be wholly or partly erected or be lying unerected) notwithstanding anything contained in the specification with regard to the terms of erection and the value of any such goods lost or damaged and of any erection work completed shall be paid by you in accordance with these Conditions of Sale. The replacement value of the goods and erection work or such proportion of it that may be so damaged, lost or destroyed (including the cost of delivery and the cost of making good the same damage or destruction) shall be paid by you to us within one calendar month from the making good of such damage or destruction. No remedial action will be undertaken by us without your written instruction to proceed.
9. Where our specification includes the erection, the following conditions will apply unless otherwise agreed:
i. All coal, coke, gas, fuel, oil, electricity, power, lighting and water required during erection and starting are to be provided to us free of charge.
ii. All foundations, supports, fixings, lifting tackle and scaffolding and all masons’, bricklayers’, excavators’, builders’, electricians’, carpenters’ and plumbers’ work of any kind whatsoever and all labour in unloading, positioning and erection other than specified are to be provided to us free of charge.
iii. The time of completion and prices quoted are given on the understanding that all the above work to be executed or provided should be ready and free for use in good time before erection work is to start so as to ensure safe working conditions for erection personnel and so as to render the premises fit in every way for the reception, erection and working of the goods and that satisfactory and continuous means of access to the site with clear passage for all parts is provided together with adequate protection for all materials from the time of delivery on the site and also be responsible for taking any such measures required to safeguard the premises where the goods are being erected throughout the period of erection including the necessary protection of the building against damage during the course of erection of the plant.
iv. Should we incur extra costs during erection owing to suspension of or delays in work due to causes over which we have no control such extra cost shall be added to the contract price and become liable.
v. If through no fault of ours the goods cannot be set to work on completion of erection, we reserve the right to withdraw our erection staff and to make a charge for the traveling time and expenses if we are called upon at a subsequent date to return to the site to set the plant to work.
vi. Our erection allowance is based on the work on site taking place during the mechanics’ normal working hours. Any overtime and/or weekend work carried out at your request will be charged as an extra to the contract price.
vii. You shall indemnify us in respect of all costs and liabilities of whatever nature incurred by third parties as a result of service, erection or maintenance work and agree to hold us blameless in respect thereof (save only in the case of our own negligence).
viii. We shall be entitled to be paid for work done to date notwithstanding the fact that we are unable to complete our contract for whatever reason.
10. Any materials required for production tests (whether in our works or on your premises) or for commissioning shall be supplied at your cost. All costs of tests required other than our normal tests shall be become liable.
11. Representations as to performance, relate to what we would expect to obtain upon tests but since our goods are employed in many trades and for many purposes under varying conditions of operation, we cannot accept liability for failure to obtain any state of performance unless an express guarantee is given. Where a guarantee so given is not fulfilled reasonable time and opportunity shall be given to us to comply with the terms of the guarantee. If we fail to do so you may return the goods which fail to comply with the guarantee but in the case of a plant consisting of several units such right of return shall only extend to the units which have proved to be defective. We will repay the purchase price of the goods so returned to us and our liability shall be fully discharged by such payment.
12. In lieu of any warranty or condition, express or implied, statutory or otherwise (save for the implied warranties in S.12 of the Sale of Goods Act 1979) or any other liability of whatsoever kind our liability in respect of any defect in or failure of the goods or for any loss, injury or damage attributable thereto whether direct or consequential and irrespective of whether there shall have been negligence on our part or on the part of our agents or servants is (subject as hereinafter provided) limited to making good by repair or replacement in the United Kingdom goods of our own manufacture which within the period of 12 calendar months after the Relevant Date (as defined below) shall to our satisfaction appear defective (fair
wear and tear excepted) provided that they form part of a plant which to our satisfaction has been properly erected, maintained and operated with approved refrigerant and oil in conjunction with suitable ancillary equipment (proper erection being assumed if it has been carried out under the supervision of or by LIGHTFOOT DEFENCE).
We shall not be liable for any expenses (whether in respect of repairs, replacements or otherwise) paid or incurred without our authority. Where goods are supplied outside the United Kingdom the period of our liability will be up to 12 months from the date of initial operation of the goods or 15 months from the dispatch of the goods from our works whichever is the earlier.
In the case of goods not of our manufacture the guarantee shall be limited to such guarantee as we receive from the manufacturers.
Except as provided above of this Clause, we accept no liability for loss and/or damage whatsoever arising from any breach of the contract based on this quotation and Specification and any express or implied condition, statement or warranty, statutory or otherwise as to description quality or fitness is hereby excluded.
For the purpose of this Clause above, ‘Relevant Date’ shall mean:
a. In the case of goods supplied, installed and commissioned by us, the date on which such goods have been commissioned.
b. In the case of other goods, the date on which such goods are dispatched from our works.
It shall be a condition of your reliance on this Clause that you return to us the defective goods (carriage paid).
Nothing contained in these Conditions shall exclude or restrict our liability for death or personal injury resulting from our negligence.
The cost of labour, shipping, transport of any other kind and refrigerant arising out of or in connection with the repair or replacement of defective items pursuant to the Guarantee given above of this Clause shall be borne by you.
13. You will, on or before delivery of the goods as herein provided, if we so request enter into a written undertaking to take such steps as we may specify to you relating to the safe and proper use of the goods without risk to health and we shall not in any circumstances whatsoever be liable in contract or in tort or otherwise for any consequential or indirect damage or loss resulting from a breach of such undertaking.
14. If any suit or proceeding is brought against you based on a claim that any goods or any part thereof furnished under this contract constitutes an infringement of any United Kingdom patent, and if you notify us promptly in writing and give us authority, information and assistance for the defence of the same, we will defend the same and pay all expenses and costs which may be awarded therein against you. In such suit, in the event that you have complied with the conditions above stated and use of the goods or any part thereof is held to constitute infringement and its use is enjoined we will in lieu of all other liability except as above stated, at our own expense, either: procure for you the right to continue using the said apparatus; or replace same with non-infringing equipment; or modify it so it becomes non-infringing or remove the said goods and refund the purchase price and the transportation and installation costs thereof, but our liability shall in no case exceed the purchase price of the said infringing goods.
Notwithstanding the provisions above you shall indemnify us against all claims, demands, damages, penalties, costs, expenses or liability in respect of the infringement of any letters patent, registered design, design copyright or other industrial property right where such infringement results from our compliance with or implementation of any instructions, designs or specifications furnished by you.
15. All proposals, drawings, illustrations and specifications remain our property and must not be communicated to a third party without our previous written permission neither has the prospective purchaser the right to disclose any information contained therein to a third party without our previous written consent.
16. If you enter into a need of arrangement or compound with your creditors or if a receiving order is made against you or (if a company) an order for winding up is made or a resolution for winding up is passed or if a receiver is appointed or if you become otherwise insolvent we may stop any goods in transit, retain any advance or progress payments and suspend further deliveries and may determine any contract based on this Tender and Specification. Nothing in this Clause shall prejudice any other of our rights.
Upon termination of the contract by us, we shall have a general lien over all materials and property belonging to you which are in our possession for any sum due under or in connection with this Contract or any other contract. We shall be entitled to sell such materials or property and to re-sell the goods, upon giving 14 days’ notice to you that we intend to do so.
17. If any of these Conditions or any part of one of these Conditions is rendered void by any legislation to which it is subject it shall be void to that extent and no further. If any one of these Conditions or any part of one of these Conditions is rendered unenforceable by any legislation to which it is subject it shall be unenforceable to the extent that it is not fair or reasonable to allow reliance on such a condition or part thereof, but no further.
A waiver by either party of any of the terms and conditions of this contract and/or any breach thereof shall apply only to the particular instance or instances in which such waiver occurs and shall not affect or impair the further continuance in force of such terms and conditions, or the right of either party to avail itself of such terms and conditions upon any subsequent breach or breaches thereof.
18. This contract shall be governed by and construed in accordance with the Laws of England.
