TERMS AND CONDITIONS OF SALE
These Terms and Conditions shall apply to the purchase of the Goods and Services by you (“the Customer”) from us (“the Supplier”). Please read these terms and conditions carefully before ordering any Goods or Services. You should understand that by ordering any of our Goods or Services, you agree to be bound by these terms and conditions. No other terms and conditions shall apply to the sale of the Goods or Services unless agreed upon in writing between us.
1. DEFINITIONS AND INTERPRETATION
In these Terms and Conditions the following terms shall have the following meanings:
“Calendar Day” | means any day of the year; |
“Commencement Date” | means the commencement date for the Contract as set out in the accepted order; |
“Confidential Information” | means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such); |
“Cancellation Form” | means the cancellation form provided by us when you place an order (copies are available on request); |
“Cancellation Notice” | means the notice to cancel using the Cancellation Form or any other written document containing the same information, produced by the Customer; |
“Contract” | means the contract for the purchase and sale of the Goods and supply of the Services under these Terms and Conditions; |
“Contract Price” | means the price stated in the Contract payable for the Goods; |
“Customer” | means you, the individual purchasing the Goods and Services from us, as identified in the Order; |
“Delivery Date” | means the date on which the Goods are to be delivered as stipulated in the Customer’s order and accepted by the Supplier; |
“Goods” | means the goods which we are to supply in accordance with these Terms and Conditions which shall be installed as part of the Services; |
“Month” | means a calendar month; |
“Spare Parts Goods” | means a specific subset of Goods which are supplied in accordance with these Terms and Conditions and have specific payment terms which differ from Goods; |
“Order” | means your completed order for the purchase and provision of Goods and Services; |
“Payment Information” | means all information required to take the required payments from you and includes, but is not limited to, credit/debit card and address details; |
“Sales Literature” | means any and all brochures, catalogues, leaflets, Sales Literatures and other documents providing details and pricing information of Goods and Services available; |
“Services” | means the services which we are to provide as purchased by you and in accordance with the Order, these Terms and Conditions and any specific terms agreed; |
“Supplier” | means us, UK Service Lifts Ltd, a company registered in England and Wales under 06902737 whose registered office is at 1 Nene Court, Enterprise Way, Enterprise Park, Yaxley, Peterborough PE7 3TJ; |
“Tender” | means formal offer to supply goods or perform a specific service, accompanied by a statement of the price charged by us, UK Service Lifts Ltd; |
“Works” | means the effort, tasks or labour done by us, UK Service Lifts Ltd, in delivering a good and or a service to you. |
1.2 Each reference in these Terms and Conditions to:
a) “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
b) a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
c) “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
d) a Schedule is a schedule to these Terms and Conditions; and
e) a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
f) a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
1.3 The headings used in these Terms and Conditions are for convenience only and shall not effect their interpretation.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
2. BASIS OF SALE AND SERVICE
2.1 The Supplier’s employees or agents are not authorised to make any representations concerning the Goods and/or Services unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.2 No variation to these Terms and Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Supplier.
2.3 Sales Literatures and other documents issued by the Supplier in relation to the Goods and Services are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods and Services shall be binding on the Supplier unless the Supplier has issued a quotation which is expressed to be an offer to sell the Goods and Services or has accepted an order placed by the Customer by whichever is the earlier of:
a) the Supplier’s written acceptance;
b) delivery of the Goods;
c) provision of the Services; or
d) the Supplier’s invoice.
2.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, Sales Literature, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
3. THE GOODS
3.1 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in writing by the Supplier’s authorised representative.
3.2 The specification for the Goods shall be that set out in the Supplier’s sales documentation unless varied expressly in the Customer’s order (if such variations is/are accepted by the Supplier). The Goods will only be supplied in the minimum units thereof stated in the Supplier’s Sales Literature or in multiples of those units. Orders received for quantities other than these will be adjusted accordingly.
3.3 Illustrations, photographs or descriptions whether in catalogues, brochures, Sales Literatures or other documents issued by the Supplier are intended as a guide only and shall not be binding on the Supplier.
3.4 The Supplier reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
3.5 No Order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of such cancellation.
4. THE SERVICES
4.1 With effect from the Commencement Date the Supplier shall, in consideration of the price being paid in accordance with Clauses 6 and 7 will provide the Services expressly identified in the Order.
4.2 The Supplier will use reasonable care and skill to perform the Services identified in the Order.
4.3 The Supplier shall use its reasonable endeavours to complete its obligations under the Contract, but time will not be of the essence in the performance of such obligations.
5. PRICE
5.1 The price of the Goods and Services shall be the price in the Supplier’s Sales Literature current at the date of acceptance of the Customer’s Order or such other price as may be agreed in writing by the Supplier and the Customer.
5.2 Where the Supplier has quoted a price for the Goods other than in accordance with the Supplier’s published Sales Literature the price quoted shall be valid for 30 days only or such lesser time as the Supplier may specify.
5.3 Where a site survey is required, the tender may be subject to change to incorporate information gathered during the survey, this may lead to the price and extra overs being amended, a new tender revision will be issued which will need to be confirmed acceptable before proceeding.
5.4 The Supplier reserves the right, by giving written notice to the Customer at any time before delivery or provision, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
5.5 Except as otherwise stated under the terms of any quotation or in any Sales Literature of the Supplier, and unless otherwise agreed in writing between the Customer and the Supplier, all prices are inclusive of the Supplier’s charges for packaging and transport.
5.6 The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and Services, which the Customer shall be additionally liable to pay to the Supplier.
5.7 The reverse charge mechanism applies to certain construction services. Under this scheme, the responsibility for accounting for VAT shifts from the supplier to the customer.
6. QUOTATION, ORDERS AND SPECIFICATIONS
6.1 Our quotation is based on the information provided to us at the time of preparing the quotation. We reserve the right to make adjustments to the quotation if any errors are found or changes are required which affect our order value.
6.2 The Customer is responsible for obtaining any necessary consents or licences, for example from landlords or building control.
6.3 Our quotation is provided on the basis that your lift shaft and surrounding structure is sound and suitable for the installation.
6.4 Where we offer to provide a power supply for the Goods, this is subject to the satisfactory condition of the existing wiring in the property. The offer may be revoked if this is found to not be the case.
6.5 Orders placed by you will only be deemed to be accepted when confirmed by us in writing.
6.6 The specification for the Goods and Services will be as set out in our quotation and/or Sales Literature unless otherwise expressly stated in your Order (if accepted by us as above).
6.7 We reserve the right to make any changes in the specification of the Goods and Services which are required to conform with any safety, statutory or regulatory requirements. When conforming to the specification, we also reserve the right to make any changes, provided the changes do not materially affect their quality or performance.
6.8 We will endeavour to deliver the Goods in full in one single delivery. However, if this is not possible, orders may be dispatched in separate shipments at our discretion.
6.9 No Order which has been accepted by us may be cancelled by the Customer except in accordance with the procedure set out in Clause 9 below.
7. TERMS OF PAYMENT
7.1 Our usual payment terms for Goods which are not Spare Parts Goods are as follows:
a) Payment terms for Goods offered are subject to a satisfactory credit check.
b) A non-refundable deposit of 30% of contract value, is to accompany the order, unless otherwise specified in writing by us. Furthermore, unless otherwise agreed, we shall not commence the works without this payment having been made.
c) 60% on notification that manufacture of the Goods is complete and prior to delivery of materials to site.
d) 10%, The balance is due on the day of completion of the commissioning.
7.2 The Goods and the manuals, documentation, keys etc. may not be handed over until such time as this final payment is received.
7.3 If through no fault of UK Service Lifts Ltd final adjustments cannot be made when installation is otherwise complete, payment shall nevertheless become due as though such final adjustments had been made.
7.4 Payment terms for Spare Parts Goods offered are 100% upon receipt of the Good by the Customer.
7.5 If payment is not made in accordance with these terms, we shall be entitled to stop work immediately and for the time that the payments are in arrears, we will add this amount of time to the contract period.
7.6 All payments made to the Supplier must be made in Pounds Sterling unless otherwise stated in writing.
7.7 In the event that UK Service Lifts Ltd has exercised its right under Section 112 of The Housing Grants, Construction and Regeneration Act 1996 to suspend performance of its obligations under this contract, the Customer shall reimburse UK Service Lifts Ltd in respect of any loss and/or expense incurred by UK Service Lifts Ltd during the period of the suspension including the cost of re-mobilisation on the lifting of the suspension.
7.8 The due dates and the final date for payment set out in sub-clauses 7.1 and 7.4 shall remain in place notwithstanding that the Customer does not accept delivery of any Goods comprised in the Order or allow commencement or completion of the Works in circumstances where UK Service Lifts Ltd is ready to deliver such Goods and/or commence or complete the Works.
7.9 In circumstances where more than one lift is provided by UK Service Lifts Ltd, the terms of payment set out above shall apply in respect of the provision of each lift.
7.10 Interest shall be paid by the Customer on all overdue amounts from the date when payment was due until actually made in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 at the rate in force from time to time.
7.11 Notwithstanding any other provision of this contract UK Service Lifts Ltd may at its discretion require full payment with order or against pro-forma invoices.
8. PRICE VARIATIONS AND ADDITIONAL WORKS
8.1 The price quoted is based on materials and wage rates applicable at the date of the tender or quotation and shall be subject to adjustment in accordance with any price increases likely to be incurred by UK Service Lifts Ltd should the commencement of the Works be in excess of 12 weeks from the point of order. If a fixed price is given it is done so on the understanding that the installation will be completed within the period stated. Should completion be delayed for any reason beyond the agreed date UK Service Lifts Ltd reserves the right to adjust the Contract price in accordance with any price variations incurred.
8.2 All prices shall be subject to further variation in respect of any additional costs arising by virtue of any statute, regulations or orders issued by any Government Department or other duly constituted authority.
8.3 Any adjustment or variation made in accordance with clauses 8.1 and 8.2 respectively may be invoiced immediately the amount of such adjustment and/or variation has been ascertained and shall be payable by the Customer immediately upon receipt by it of a notice from UK Service Lifts Ltd outlining the amount of the adjustment or variation as the case may be.
8.4 UK Service Lifts Ltd shall be under no obligation to accept additional instructions from the Customer without a signed instruction from a duly authorised representative of the Customer.
9. DELIVERY AND PERFORMANCE: SERVICES
9.1 We will supply the Services identified in the Order, in accordance with these Terms and Conditions, any specific terms relating to the Services, and any additional terms as specified in the Order.
9.2 We will use reasonable care and skill to perform the Services identified in the Order.
9.3 With effect from the Commencement Date the Supplier shall, in consideration of the price being paid in accordance with these Terms and Conditions and the Order provide the Services expressly identified in the Order with reasonable care and skill.
9.4 Whilst every care will be taken to avoid damage to carpets and decoration, these may have to be disturbed in the course of our works and some damage due to their condition, age or make up, may be unavoidable. We shall not accept any liability for any such damage and will not be responsible for the repair or replacement of such carpets and decoration should damage occur.
9.5 We will use all reasonable endeavours to complete our obligations under the Order, but time will not be of the essence in providing the Services.
9.6 If the Customer requires any extra work, this request must be made in writing before we proceed with the works. Any extra sums due as a result shall become due for payment to us in accordance with the payment terms above.
10. DELIVERY AND PERFORMANCE: GOODS
10.1 Delivery to site and installation cannot commence until confirmed in writing that the site is ready to receive the goods and installation can commence.
10.2 The Goods may be delivered by us in advance of the Delivery Date, provided we give you, the Customer, reasonable notice of this.
10.3 Delivery of the Goods shall be made by the Supplier delivering the Goods to the place in the United Kingdom specified in the Order or, if no place of delivery is so specified, by the Customer collecting the Goods at the Supplier’s premises at any time after the Supplier has notified the Customer that the Goods are ready for collection.
10.4 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Supplier in writing. The Goods may be delivered by the Supplier in advance of the Delivery Date upon giving reasonable notice to the Customer.
10.5 If the Customer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Supplier shall be entitled upon giving written notice to the Customer to store or arrange for the storage of the Goods and then notwithstanding the provisions of sub-Clause 10.1 risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Supplier all costs and expenses including storage and insurance charges arising from such failure.
10.6 Unless specifically stated to the contrary in writing, the delivery and installation will be carried out during ordinary working hours. Any extra cost incurred by us due to any cause outside our control, including delays, storage, non-productive visits to site and extra work, shall be added to the contract price.
10.7 Unless agreed in writing the Customer shall allow UK Service Lifts Ltd to install the Goods in one continuous operation. The shaft, motor room or any other preparatory building works (if applicable) shall be handed over to UK Service Lifts Ltd properly completed, with the appropriate power supplies and weather tight.
10.8 If we are delayed and the Goods are placed into storage, the responsibility for protection and insurance of the goods passes to you. Ownership of the goods will remain with us, whether the Goods are awaiting despatch, have been delivered or are installed (in part or in full) until we are paid in full.
10.9 The works shall be considered complete on our notification to you that its installation has been successfully completed.
10.10 The Customer shall not use the Goods before the installation has been completed and handed over by us and in the event of any such unauthorised use we shall not be liable for any loss or damage arising therefrom.
10.11 UK Service Lifts Ltd shall inspect these works prior to hand over for reasons of access only. UK Service Lifts Ltd rely upon the skill and knowledge of the Customer or their appointed third party to design and set out these works to the correct vertical and horizontal tolerances and specifications. The inspection by UK Service Lifts Ltd is in no way verification that the building Works are to the required standard and no reliance shall be placed on such inspection.
10.12 Any extra cost incurred due to a suspension of the Works as a result of instructions received from the Customer or the lack of such instructions, interruptions, delays, overtime, unusual working hours, and additional work or variations or work for which UK Service Lifts Ltd is not responsible or mistakes or any other causes outside UK Service Lifts Ltd’s control, shall be added to the contract price and paid by the Customer in accordance with clause 8. Any such charges shall be based upon UK Service Lifts Ltd’s normal rates and shall include outworking and lodging allowances where appropriate. If suitable lodgings are not available at these rates due to circumstances beyond UK Service Lifts Ltd’s control the difference in cost including any extra fares incurred shall be added to the contract price and paid by the Customer.
11. TESTING, ACCEPTANCE AND COMPLETION
11.1 The Works shall be considered complete on notification by UK Service Lifts Ltd to the Customer that its tests have been successfully completed and all builders work including any items are complete and signed off to UK Service Lifts Ltd’s satisfaction.
11.2 If any lift supplied under the Contract is not taken into normal service at this time it shall be shut down, and UK Service Lifts Ltd shall be entitled to additional payment at current rates from the Customer for such servicing, cleaning, lubricating or other work as may be necessary to ensure its satisfactory condition when taken into normal service by the Customer.
11.3 If the Customer requests beneficial use of a lift then that shall be subject to a separate contract between the parties and subject to the client’s consent governing such use.
12. MAINTENANCE
12.1 UK Service Lifts Ltd recommend a contract including a minimum of 2 service visits per year, this is not included in the Tender/Order. Upon request a contract of service can be sent to you for your consideration. Any maintenance contract would take effect from the date of completion of our Works unless otherwise agreed between the parties in writing. If this maintenance is to take effect from practical completion of the main contract works, caretaker maintenance will be needed to ensure that the lift remains in good working order for the period between completion of our subcontract Works and practical completion of the main contract. Costs for this service are in addition to the contract sum.
13. NON-DELIVERY OF GOODS AND SERVICES
13.1 If the Supplier fails to deliver the Goods or provide the Services or any of them on the Delivery Date (or Commencement Date, as appropriate) other than for reasons outside the Supplier’s reasonable control or the Customer’s or its carrier’s fault:
a) if the Supplier delivers the Goods and/or provides the Services at any time thereafter the Supplier shall have no liability in respect of such late delivery; or
b) if the Customer gives written notice to the Supplier within 30 Business Days after the Delivery Date (or Commencement Date, as appropriate) and the Supplier fails to deliver the Goods and/or Services within 60 Business Days after receiving such notice the Customer may cancel the order and the Supplier’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods or services to those not delivered or provided over the price of the Goods or Services not delivered or provided.
14. RISK AND RETENTION OF TITLE
14.1 Risk of damage to or loss of the Goods shall pass to the Customer at:
a) in the case of Goods to be delivered at the Supplier’s premises, the time when the Supplier notifies the Customer that the Goods are available for collection;
b) in the case of Goods to be delivered otherwise than at the Supplier’s premises, the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods; or
c) in the case of Goods being installed by the Supplier, the time that the Supplier notifies the Customer that the installation is complete.
14.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title to the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods.
14.3 Until payment has been made to the Supplier in accordance with these Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailee for the Supplier and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Supplier and shall insure the Goods against all reasonable risks.
14.4 In the event that the Customer sells or transfers the Goods to a third party before legal and beneficial title has passed to him under these Terms and Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to the Supplier) shall be held by the Customer on behalf of the Supplier. The Customer shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds, and that all moneys held on the Supplier’s behalf are identified as such.
14.5 If the Goods are manufactured into another form or are used in the process of manufacturing other goods, the Supplier shall acquire legal and beneficial title to the resulting goods, or a proportion of the title equal to the contribution made to the resulting goods by the Goods.
14.6 The Supplier may, in accordance with the provisions of the Companies Act 2006, register any charge created by these Conditions.
14.7 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
14.8 The Supplier reserves the right to repossess any Goods in which the Supplier retains title without notice. The Customer irrevocably authorises the Supplier to enter the Customer’s premises during normal business hours for the purpose of repossessing the Goods in which the Supplier retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause 12.3.
14.9 The Customer’s right to possession of the Goods in which the Supplier maintains legal and beneficial title shall terminate if:
a) the Customer commits or permits any material breach of his obligations under these Conditions;
b) The Customer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors;
c) the Customer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
d) the Customer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Customer, notice of intention to appoint an administrator is given by the Customer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer.
15. ASSIGNMENT
15.1 The Supplier may assign the Contract or any part of it to any person, firm or company without the prior written consent of the Customer.
15.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
16. IMPORTED MATERIALS
16.1 The price stated in the Tender, where appropriate, allows for the cost of importing materials based upon the rates of exchange, tax or duty prevailing at the date of the Tender. In the event of any adjustment in such rates, between the date of the Tender and 14 days after receipt of sufficient payment to settle the overseas debt UK Service Lifts Ltd reserves the right to make an appropriate adjustment to the Contract price.
17. DEFECTIVE GOODS
17.1 If on delivery any of the Goods are defective in any material respect and either the Customer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery as “condition and contents unknown” the Customer gives written notice of such defect to the Supplier within 15 Business Days of such delivery, the Supplier shall at its option:
a) replace the defective Goods within 60 Business Days of receiving the Customer’s notice; or
b) refund to the Customer the price for those Goods (of parts thereof, as appropriate) which are defective;
17.2 but the Supplier shall have no further liability to the Customer in respect thereof and the Customer may not reject the Goods if delivery is not refused or notice given by the Customer as set out.
17.3 No Goods may be returned to the Supplier without the prior agreement in writing of the Supplier. Subject thereto any Goods returned which the Supplier is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Supplier’s sole discretion the Supplier shall refund or credit to the Customer the price of such defective Goods but the Supplier shall have no further liability to the Customer.
17.4 The Supplier shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Supplier’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Supplier’s prior approval, or any other act or omission on the part of the Customer, its employees or agents or any third party.
17.5 Goods, other than defective Goods returned under sub-Clauses 15.1 or 15.2, returned by the Customer and accepted by the Supplier may be credited to the Customer at the Supplier’s sole discretion and without any obligation on the part of the Supplier.
17.6 Subject as expressly provided in these Terms and Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
17.7 The Customer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Customer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Customer is carried out in accordance with directions given by the Supplier or any competent governmental or regulatory authority and the Customer will indemnify the Supplier against any liability loss or damage which the Supplier might suffer as a result of the Customer’s failure to comply with this condition.
18. CUSTOMER’S DEFAULT
18.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
a) cancel the order or suspend any further deliveries or provision of Goods and Services to the Customer;
b) appropriate any payment made by the Customer to such of the Goods and/or Services (or the goods and/or services supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and
c) charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 8% per annum above the Bank of England base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
18.2 This condition applies if:
a) the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
b) the Customer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
c) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
d) the Customer ceases, or threatens to cease, to carry on business; or
e) the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
18.3 If sub-Clause 18.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
19. LIABILITY
19.1 The Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of the Contract (or these Terms and Conditions), be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) which arise out of or in connection with the supply of the Goods and Services.
19.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 15 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
19.3 The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by the supplier, arising from loss or damage to any equipment (including that of third parties) caused by the Customer, its agents or employees.
19.4 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
19.5 The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
19.6 Nothing in these Terms and Conditions excludes or limits the liability of the Supplier:
a) for death or personal injury caused by the Supplier’s negligence;
b) for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
c) for fraud or fraudulent misrepresentation.
19.7 Subject to the remaining provisions of this Clause 14:
a) 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 Contract Price; and
b) the Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
20. PREVENTION OR FRUSTRATION
20.1 If the contract becomes impossible to perform or is otherwise frustrated. The Customer shall be liable to pay UK Service Lifts Ltd all costs, expenses, overheads and any loss of profit which UK Service Lifts Ltd, its suppliers or sub-contractors incur as a result of such frustration or impossibility of performance.
20.2 Any pre-payments which may have been made to UK Service Lifts Ltd under the contract shall be applied towards satisfaction of such sum as may become due to him under the foregoing provisions, and the excess (if any) of such pre-payments will be refunded to the Contractor.
21. CONFIDENTIALITY
21.1 Each Party undertakes that, except as provided by sub-Clause 21.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Contract and for 1 year after its termination:
a) keep confidential all Confidential Information;
b) not disclose any Confidential Information to any other person;
c) not use any Confidential Information for any purpose other than as contemplated by and subject to these Terms and Conditions and the Contract;
d) not make any copies of, record in any way or part with possession of any Confidential Information; and
e) ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses 21.1.a) to 21.1.d) above.
21.2 Either Party may disclose any Confidential Information to:
a) any sub-contractor or supplier of that Party;
b) any governmental or other authority or regulatory body; or
c) any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
21.3 to such extent only as is necessary for the purposes contemplated by these Terms and Conditions and the Contract, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 21.2.b) above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause 21, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
21.4 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Contract, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.
21.5 The provisions of this Clause 21 shall continue in force in accordance with their terms, notwithstanding the termination of the Contract for any reason.
22. COMMUNICATION
22.1 All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
22.2 Notices shall be deemed to have been duly given:
a) when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
b) when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
c) on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
d) on the tenth business day following mailing, if mailed by airmail, postage prepaid.
22.3 All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
23. FORCE MAJEURE
23.1 Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
24. WAIVER
24.1 The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
25. SEVERANCE
25.1 The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
26. INTELLECTUAL PROPERTY RIGHTS
26.1 UK Service Lifts Ltd retains all IP rights and does not pass to the Customer any patent, trademark or copyright in the Goods or any associated drawings or materials but will provide to the Customer an unconditional licence to use the same for the Works upon request.
26.2 The Customer warrants that any design or instruction furnished or given by him shall not cause UK Service Lifts Ltd to infringe any later patent, registered design or trademark in the execution of the Works.
27. THIRD PARTY RIGHTS
27.1 A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
28. LAW AND JURISDICTION
28.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
28.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
29. ADJUDICATION
29.1 Both the Customer and UK Service Lifts Ltd shall be entitled to refer any dispute or difference arising under this contract to adjudication at any time. The adjudication shall be conducted in accordance with the provisions of Part 1 of the Schedule to The Scheme for Construction Contracts (England and Wales) Regulations 1998.
30. TERMINATION
30.1 UK Service Lifts Ltd may terminate this contract immediately:
a) If the Customer commits a material breach of this contract and fails to remedy the breach to the satisfaction of UK Service Lifts Ltd within 10 working days of UK Service Lifts Ltd providing written notification of the breach, or
b) Customer makes a voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation or an encumbrance takes possession of, or a receiver or manager is appointed over, all or any property or assets of the Customer or the Customer ceases or threatens to cease to carry on business or the Customer generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986.
30.2 Where the Customer is in material breach of this Contract, UK Service Lifts Ltd may at its discretion suspend performance of the Contract until such time as the breach is remedied and such action shall not affect the Customer’s obligation to pay for work executed up to the point of suspension. Where the breach is a failure to pay any part of the contract value UK Service Lifts Ltd shall be at liberty to demand security for payment before performing or completing the Contract.