1.1. Unless the context so otherwise requires in these Conditions, the following definitions shall apply:
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.8;
Contract: the contract between the Supplier and the Customer for the supply of Goods in accordance with these Conditions;
Customer: the person or firm who purchases the Goods from the Supplier;
Delivery Location: such location as the parties may agree;
Goods: the goods (or any part of them) set out in the Order;
Order: the Customer's order for the supply of Goods, as set out the Customer's purchase order form; and
Supplier: Lifting Systems Ltd a company registered in England and Wales with company number 02995141.
1.2. Unless the context so otherwise requires in these Conditions, the following rules apply: a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted from time to time and a reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted from time to time; any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. BASIS OF CONTRACT
2.1. The Order constitutes an offer by the Customer to purchase Goods in accordance with these Conditions. The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.2. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.3. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods contained in the Supplier's catalogues or brochures or specifications 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 or have any contractual force.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5. Any quotation given by the Supplier shall not constitute an offer, may be withdrawn at any time and is only valid for a period of 30 days from the date of issue.
3.1 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall notify the Customer once the Goods are ready for delivery at the Delivery Location.
3.2 The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. The Customer shall have no right to cancel or repudiate the contract for any delay in delivery or performance of the Order.
3.3 If the Customer fails to accept or take delivery of the Goods on the delivery date as quoted, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance, transport, loading and unloading and demurrage).
4 QUALITY OF GOODS
4.1 The Supplier warrants that for the period of 12 months from the date of delivery (the Warranty Period) the goods will be free from material defects in design, material and workmanship.
4.2 Subject to clauses 4.3:
4.2.1 the Customer gives notice in writing during the Warranty Period and within 7 days of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1;
4.2.2 the Supplier is given a reasonable opportunity of examining such Goods;
4.2.3 the Goods have been operated within the classification for which they were designed; and
4.2.4 the Customer returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option and within a reasonable period of time of the Goods being returned to the Supplier and the Supplier being satisfied that the circumstances set out in clause 4.3 do not apply, repair or replace the defective Goods.
4.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 4.1 if:
4.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 4.2;
4.3.2 the defect arises because the Customer failed to follow the Supplier'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;
4.3.3 the Customer alters or repairs such Goods without the written consent of the Supplier;
4.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
4.3.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
4.4 Notwithstanding clause 4.2 if the defective parts are not manufactured by the Supplier then there is no obligation for the Supplier to replace or repair the defective goods but only to confer on the Customer the benefit of any rights that the Supplier may have against the supplier of the defective parts.
4.5 Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 4.1.
4.6 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 4.2.
5 TITLE AND RISK
5.1 The risk in the Goods shall pass to the Customer from despatch and the Customer shall arrange for the Goods to be insured with a reputable insurance provided and arrange for the Supplier’s interest in the Goods to be noted on any such insurance policy.
5.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
5.3 Until title to the Goods has passed to the Customer, the Customer shall from the date of delivery:
5.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
5.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods and maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
5.3.3 notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.2.2 to clause 12.2.13; and
5.3.4 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.2.2 to clause 12.2.13, then, without limiting any other right or remedy the Supplier may at any time:
5.4.1 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
5.4.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
5.5 If any inspection or testing is required prior to despatch, other than the Supplier’s standard works inspection or tests, or if inspection or testing is required in the presence of the Customer’s representative, the Supplier will carry out such inspections, or testing or provide the facilities for the same, but the requirements of such inspections or tests shall be notified at the time of placing the Order and shall be paid for by the Customer and in addition to the quote.
5.6 Where the Customer requires the equipment to be inspected or tested in the presence of its representative, the Supplier will notify the Customer that the Goods are ready for inspection and testing and the Customer’s representative shall attend for such inspection and testing within 7 days of the date of notification otherwise the Supplier will carry out the inspection and testing and such inspection or testing shall be deemed to have been made in the presence of the Customer’s representative.
6 COMPLIANCE WITH LOCAL LAWS
The Supplier does not accept responsibility for civil works or foundations or for compliance with statutory regulations or local by-laws or for the fulfilment of any special requirements binding upon the Customer. When the Goods are supplied for use in conjunction with equipment and/or structures, which are not supplied by the Supplier, the Customer shall be solely responsible for ensuring that such equipment and/or structures are in all respects suitable and adequate for the purpose, and are properly installed. The Supplier shall not be liable for any adaptation of the Supplier’s design or manufactures made by someone other than the Supplier to suit the Customer’s own circumstances.
The Customer is responsible for procuring an adequate import licence and shall be responsible for any fees or charges levied by the issuing authority.
7 ERECTION OF MACHINARY
7.1 The Supplier shall be entitled to employ or engage members of any signatory Trade Unions to the Mechanical Construction Engineering Agreement on any site work.
7.2 When the erection has been completed, the Customer will be notified by the Supplier accordingly and will be asked to provide a witness to attend the commissioning of the equipment and to sign the handing over’ Standard Acceptance Certificate. In the event that the Customer does not provide such a witness, the equipment will nevertheless be commissioned and if found satisfactory by the Supplier will be deemed to have been handed over and a certificate to that effect will be issued and will be deemed to have been given to the Customer.
7.3 For the purposes of clause 7.2 the erection shall be deemed to be complete if the equipment is fit for commercial use notwithstanding minor omissions or defects which do not materially affect commercial use of the erection.
7.4 Where the Supplier is only responsible for supervision of the erection, the Customer shall supply suitable labour and tackle to carry out the erection of the equipment under the supervision of the Supplier’s foreman erectors.
The Customer shall ensure that any building in which the machinery is to be erected shall be sufficiently completed to give protection from the elements to both the machinery and the Supplier’s personnel from the time of arrival on site.
Where the Customer requires special safety precautions when the Supplier’s contractors are working on site including but not limited to provision of a temporary traffic control system, flagmen and warning lamps, such requirements shall be provided free of charge by the Customer.
The Customer shall be responsible for:
any additional costs and/or expenses incurred by the Supplier if erection of any machinery is prevented, delayed, impeded or otherwise rendered more expensive by any act or omission of the Customer including failure to advise the Supplier of any special local conditions; and
any alteration by the Customer in the design, quantities or specifications.
The Customer shall indemnify the Supplier on a full indemnity basis against any losses, liabilities, claims, costs or expenses including legal fees or any other professional expenses arising out of the death or personal injury to any persons or any damage to any property caused by any defect, suitability of any tackle or apparatus provided by the Customer except for any liabilities arising from the negligence of the Supplier or its servants or agents.
8 CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
8.1.1 ensure that the terms of the Order are complete and accurate;
8.1.2 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises including a flat and level surface for lay-out purposes and a suitable local power supply adjacent to any point of work both for the operation of the equipment and for portable electric tools all necessary weights, slings, access equipment and measuring instruments, office accommodation and other facilities as reasonably required by the Supplier to deliver the Goods;
8.1.3 ensure that where a mobile crane is required for erection purposes the Supplier has free and clear access to the site and will be able to operate and unload directly under the erection point;
8.1.4 be responsible for all building and civil work including but not limited to foundations, brick work, cutting away, grouting and making good; and
8.2 Notwithstanding any other clause of these Conditions in the event that the Customer fails to comply with clause 8.1 the Supplier may:
8.2.1 terminate the Contract with immediate effect; or
8.2.2 delay or postpone delivery of the Goods and the Customer shall be liable for any expenses, costs or liabilities, including for the avoidance of doubt loss of profits, legal and other professional expenses, incurred by the Supplier as a result of the Customer’s failure to comply with clause 8.1.
9 CHARGES AND PAYMENT
9.1 Subject to clause 9.2.4 the price for Goods shall be the price set out in the Order (Purchase Price). The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.
9.2 The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
9.2.1 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
9.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered;
9.2.3 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods; and
9.2.4 increase the price of the Goods, by giving notice to the Customer at any time before delivery, in accordance with the British Electrical and Allied Manufacturers Association Contract Price-Adjustment formula and the BEAMA CPA Classes and Formula for contracts, including erection, as applicable.
9.3 The Supplier shall invoice the Customer on or at any time after completion of delivery. The Customer shall pay each invoice submitted by the Supplier within 30 days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by the Supplier. Time for payment shall be of the essence of the Contract.
9.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the Goods.
9.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then:
9.5.1 the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Lloyds Bank plc's base rate from time to time such interest accruing on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
9.5.2 the Supplier shall have the right to cease Delivery of the Goods or suspend performance of the Contract until all debts due to the Supplier have been satisfied.
9.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed by the Supplier, its employees, agents or subcontractors, and any other confidential information concerning the Supplier’s business, its products and services which the receiving party may obtain. The Customer shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 10 shall survive termination of the Contract.
11 LIMITATION OF LIABILITY
11.1 The Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
11.2 The Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to repair or replacement of the Goods/in no circumstances exceed the Purchase Price.
11.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
11.4 The Customer shall indemnify the Supplier on a full indemnity basis against any losses, liabilities, claims, costs or expenses including legal fees or any other professional expenses arising from damage or injury to persons or property arising out of or in connection with the execution of the Contract and any claims arising under the Consumer Protection Act 1987 caused by or related to the improper use, incorporation, assembly, processing, storage or handling of the Goods by the Purchaser.
11.5 This clause 11 shall survive termination of the Contract.
12.1 Without limiting its other rights or remedies the Supplier may terminate the Contract by giving the Customer not less than 1 months' written notice.
12.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
12.2.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
12.2.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
12.2.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
12.2.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
12.2.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
12.2.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
12.2.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
12.2.8 the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
12.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
12.2.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.2 to clause 12.2.9 (inclusive);
12.2.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
12.2.12 the other party's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
12.2.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
12.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
12.4 Without limiting its other rights or remedies, the Supplier may suspend further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.2.2 to clause 12.2.13, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
12.5 On termination of the Contract for any reason the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry and clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13 FORCE MAJEURE
13.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to 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 subcontractors.
13.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents the Supplier from delivering the Goods for more than 12 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
14.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
14.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
14.3 Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax, or email. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.3; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or if sent by fax or email, one Business Day after transmission.
14.4 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
14.5 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.6 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
14.7 A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.8 Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier. The costs associated with any variation to these Conditions, including for the avoidance of doubt any legal or professional expenses incurred by the Supplier, made in accordance with Clause 14.8 shall be borne by the Customer.
14.9 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction.