1.1 The following shall have the following meanings:
Business Days a day other than a Saturday or Sunday or public holiday in England and Wales;
Buyer the person who requires or accepts a quotation of the Seller for the sale of the Goods and/or Services or the person whose order for the Goods and/or Services is accepted by the Seller;
Contract each binding agreement for the supply of Goods and/or Services;
Goods the goods and/or Services described in the Contract and where the context requires the equipment referred to in clause 5;
Insolvency Event(s) if the Buyer becomes insolvent, is unable to pay its debts, ceases to trade, has a receiver appointed over the whole or any part of its assets, has an administrator appointed, enters into any composition with creditors generally, is wound up (other than for the purpose of a bona fide scheme of solvent reconstruction), or any step is taken, whether by the Buyer or any other person, towards any of the foregoing events;
Quotation the Seller's quotation for the sale of Goods and/or Services as referred to in clause 2, which is subject to these terms;
Seller PPK Services Limited (registered number 03751561) whose registered office is at Hookstile Trading Estate, Firgrove Hill, Farnham, Surrey GU9 8LG;
Services the services (if any) (including any instalment of them or any part of them) described overleaf or in the Contract or provided as ancillary to the sale of the Goods;
Specification the specification of the Goods and/or Services set out in writing and agreed between the parties
and the words defined in the Quotation shall have the same meaning as in these terms.
1.2 References to legislation shall be construed to include references to future re-enactments and modifications from time to time.
1.3 Headings to clauses shall not affect their meaning.
1.4 Words and phrases like “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words.
2 QUOTATIONS, ORDERS AND CONTRACTS
2.1 Quotations are subject to withdrawal and alteration at any time before acceptance in writing by the Buyer and are automatically withdrawn unless a relevant order is placed by the Buyer no later than 30 days after the date of the Quotation.
2.2 These terms shall apply to all supplies of Goods and/or Services by the Seller to the Buyer and shall apply to all subsequent orders. Save in respect of Quotations, no order of the Buyer shall be binding and no Contract shall arise until the Buyer’s order is accepted by the Seller expressly or by the Seller despatching any of the Goods.
2.3 Each Contract shall comprise these terms, any attached terms, the Quotation and any additional terms that are agreed as applicable. The Seller reserves the right to refuse to accept orders.
2.4 If any Contract contains provisions which conflict with these terms, those provisions of the Contract will prevail to that extent, except nothing shall prevail over the exclusions and limitations of the Seller’s liability in these terms unless the provision expressly refers to those exclusions and states that it prevails over them.
3.1 The price of the Goods and/or Services shall be as agreed or, if not so agreed, at the Seller’s published price list current at the date of the Contract.
3.2 The price excludes packing and delivery charges, which shall be payable in addition.
3.3 The price and other sums payable shall be exclusive of any applicable VAT or other taxes and duties, which shall be payable in addition.
3.4 Payment shall be made in pounds sterling and is due without any set off, withholding, deduction, abatement or counter-claim.
3.5 The Buyer reserves the right to require payment in advance. Except where required in advance, payment shall be due no later than 30 days from the end of the month following the date of the invoice (despite ownership of the Goods not having passed to the Buyer).
3.6 Where the Seller has undertaken to arrange for carriage it shall do so as agent for the Buyer and shall charge for delivery and any transit insurance.
3.7 Any invoice queries shall be made in writing within seven (7) Business Days from the invoice date. The Seller reserves the right to refuse to deal with claims or queries which are not notified in writing within the specified period.
3.8 Notwithstanding clauses 3.4 and 3.5 or any other arrangements for provision of credit which the Seller may have agreed with the Buyer in respect of the Contract, the whole price of all Goods and/or Services bought or agreed to be bought by the Buyer shall be immediately payable without demand in any circumstances entitling the Seller to terminate the Contract including pursuant to clause 6.5.
3.9 If the Buyer fails to make any payment when due, without affecting any other rights which it may have, the Seller shall be entitled to exercise all or any of the following rights:
3.9.1 suspend production and/or deliveries of Goods and/or performance of Services until paid;
3.9.2 deduct outstanding sums from any sums owed by the Seller to the Buyer under the Contract or otherwise;
3.9.3 require the Buyer to pay any costs of storage (or a reasonable charge for storage) of undelivered Goods and materials;
3.9.4 be paid compensation and charge interest on the overdue amount at the statutory rate and otherwise in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), or at the Seller’s election or where such Act is not applicable, charge interest on the overdue amount at a rate of 3% above the sterling base rate from time to time of Barclays Bank plc, which shall accrue from day to day (both before and after any judgment) from the due date until payment in full is received by the Seller and shall be compounded monthly;
3.9.5 resell any Goods not yet delivered to the Buyer;
3.9.6 retain any sums paid as deposit for the Goods and/or Services;
3.9.7 demand the return of the Goods in accordance with the provisions of clause 6.4;
3.9.8 appropriate any payment made by the Buyer to such of the Goods and/or Services (or the Goods and/or Services supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer).
3.10 The Seller shall have an action for the price and any other sums due from the Buyer notwithstanding that property in the Goods has not passed to the Buyer.
4 DELIVERY, ACCEPTANCE AND FAILURE TO COLLECT
4.1 Times for delivery or performance by the Seller are estimates only and, except by operation of law or as otherwise agreed, time shall not be of the essence.
4.2 The Buyer shall be deemed to have accepted Goods and/or Services five (5) Business Days after their delivery. After acceptance the Buyer shall not be entitled to reject Goods and/or Services which are not in accordance with the Contract.
4.3 Where equipment is brought in for the purposes of the Buyer obtaining a Quotation and the Buyer fails to collect the same within 60 days of being required to do so, the Seller shall be deemed to be an involuntary bailee of the equipment, which shall be at the sole risk of the Buyer and the Seller may dispose of the equipment in such manner as the Seller in its absolute discretion determines including destruction of the same. Without prejudice to such discretion, the Seller may charge the reasonable costs of storage and/or destruction thereof.
Where the Seller undertakes repairs, the following provisions shall in addition apply:
5.1 The Seller shall use reasonable endeavours to effect any such repairs but if the Seller reasonably considers that it is not practicable or economic to do so the Seller will inform the Buyer accordingly and in such case if the Seller has dismantled the equipment it shall not be liable to reassemble it;
5.2 The Seller may at its discretion refuse to accept equipment for repair or service;
5.3 Unless otherwise agreed in writing the Services shall be carried out at the Seller's premises during normal working hours.
5.4 All spare parts and replacement components supplied by the Seller shall become part of the equipment and any parts and components accordingly removed from it shall become the property of the Seller.
5.5 Quotations requested for repair work will only be given after examination of the equipment by the Seller. The Seller reserves the right to make a charge in respect of the costs of the examination plus value added tax.
6 RISK , PROPERTY, SUSPENSION, TERMINATION
6.1 Risk of loss or damage to the Goods shall pass to the Buyer at the time of delivery of the Goods.
6.2 Property in the Goods shall pass to the Buyer on receipt by the Seller in full of:
6.2.1 the price (and VAT) for those Goods under the Contract; and
6.2.2 all other sums due from the Buyer under the Contract; and
6.2.3 all sums due from the Buyer under any other contracts, agreements or arrangements between the Buyer and the Seller.
6.3 Until such time as the property in the Goods has passed to the Buyer under clause 6.2 the Buyer shall:
6.3.1 hold such Goods as a fiduciary of the Seller and shall insure them as the Seller’s property and shall store and mark them in such a way that they are readily identifiable as the Seller’s property and shall not mix them with any other goods;
6.3.2 not pledge or allow any encumbrance, lien, charge or other interest to arise or be created over the Goods;
6.3.3 not dispose of or deal with the Goods or any documents of title relating to them or any interest in them, except that the Buyer may without prejudice to clause 6.3.1 on its own account use and sell the Goods in the ordinary course of its business.
6.4.1 payment becomes overdue; or
6.4.2 the Buyer is in breach of any of its obligations under clause 6.3;
6.4.3 the Seller exercises any right to terminate the Contract; or
6.4.4 any of the Insolvency Event(s) arises or the Seller reasonably expects any such event,
then without prejudice to any other rights it may have, the Seller shall be entitled upon demand to the immediate return of all the Goods which remain in the ownership of the Seller pursuant to clause 6.3 and the Buyer irrevocably authorises the Seller to recover such Goods and any documentation relating thereto and for that purpose to enter any premises, vehicle or other location of, or under the control of, the Buyer. The Buyer shall take all reasonable steps to help the Seller recover the Goods. Demand for, or recovery of, the Goods shall not of itself discharge the Buyer’s liability to pay the whole of the price or any other rights of the Seller.
6.5 If the Buyer is overdue in making any payment to the Seller or any of the Insolvency Events arises (or the Seller reasonably expects any such event), the Seller may, without prejudice to any other rights it may have, terminate the Contract, suspend or cancel any deliveries, and/or the Seller shall be entitled upon demand to the immediate return of all the Goods which remain in the ownership of the Seller and the Buyer irrevocably authorises the Seller to enter any premises to recover them. Recovery of the Goods shall not of itself discharge the Buyer’s liability to pay the whole of the price or any other rights of the Seller.
7 QUALITY & WARRANTIES
7.1 The Seller warrants that the Goods:
7.1.1 are on delivery reasonably free from defects in materials and workmanship;
7.1.2 conform to the Specification in all material respects;
7.2 The Seller warrants to the Buyer that the Services will be performed by appropriately qualified and trained personnel, with reasonable care and diligence.
7.3 If there is any material breach of the warranties in clauses 7.1 and/or 7.2, and the claim is notified in accordance with clause 9, the Seller will, at its option, repair or replace the relevant item of Goods (or any defective part), re-perform the relevant part of the Services, or make a refund of all or a fair or reasonable part of the price paid for the relevant item or Service (against return of the such item). If the Seller complies with this obligation it shall have no further liability in respect of, or arising from the relevant Goods and/or Services.
7.4 The Seller reserves the right to make any changes in the Goods and/or Services which are required to conform with any applicable legal requirements (whether UK or EU statutes, regulations, directives or otherwise) or which do not materially affect their quality or performance.
7.5 For the avoidance of doubt, it is for the Buyer to ascertain whether Goods and Specifications are appropriate for the Buyer's purpose and the Seller does not make any recommendation, representations, warranties or give advice in this respect.
8 EXCLUSIONS OF AND LIMITS ON LIABILITY
8.1 The Seller shall only be liable to the Buyer in respect of claims notified to the Seller in accordance with the Contract and in particular clauses 3.7 or 9 of these terms.
8.2 Any liability the Seller may have for claims concerning damage to the physical property of the Buyer or its staff (other than the Goods) arising out of or in connection with the Contract, the Goods and/or the Services however arising, shall be limited to the extent the same is recovered under the Seller's public liability insurance to £1 million per claim or series of claims arising out of the same events or circumstances and to £2 million in total in respect of all claims.
8.3 Without prejudice to the other limitations on the Seller’s liability in the Contract but subject to clauses 8.2 (physical damage) and 8.6 the liability of the Seller for any claims arising out of or in connection with the Contract the Goods and/or the Services, however arising, shall be limited in respect of all claims in aggregate to a sum equal to the price payable (exclusive of VAT) by the Buyer for the Goods and Services under the Contract giving rise to the claim.
8.4 Notwithstanding any other provision of the Contract, but subject to clause 8.6 the Seller shall have no liability arising out of or in connection with the Contract, the Goods or the Services for (a) any loss of or damage to profit, revenue, anticipated savings, data, use, contract, goodwill, opportunities or business or (b) any indirect or consequential loss or damage, or (c) any claim arising out of a claim against the Buyer by any third party, in each case, however arising.
8.5 The term “however arising” when used or referred to in this clause 8 shall cover all causes and actions giving rise to liability of the Seller arising out of or in connection with the Contract, the Goods and/or Services (i) whether arising by reason of any misrepresentation (whether made prior to and/or in the Contract) negligence, breach of statutory duty, other tort, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; (iii) whether caused by any total or partial failure or delay in supply of the Goods and/or Services or by any defect in hardware, software or materials; and (iv) whether deliberate (but not with malicious intent) or otherwise, however fundamental the result.
8.6 The exclusions and limitations of liability contained in these terms and in the Contract shall apply regardless of whether the loss or damage was foreseeable or whether the Buyer notifies the Seller of the possibility of any greater loss or damage, but shall not apply to the extent prohibited or limited by law and, in particular, nothing in the Contract shall affect liability for death or personal injury caused by negligence or for fraudulent misrepresentation or other fraud.
8.7 All warranties, conditions, terms and liabilities express or implied, statutory or otherwise, on the part of the Seller, in respect of compliance with descriptions, the quality or the fitness for purpose of the Goods and/or the Services which are not expressly set out in the Contract are excluded except to the extent such exclusion is prohibited or limited by law.
8.8 The Buyer should consider taking out its own insurance; and the Buyer acknowledges that it had the opportunity to negotiate variations to the exclusions and limitations, upon the agreement of a higher price.
9.1 Any claim that Goods have not been delivered or Services not commenced must be notified in writing to the Seller within five (5) Business Days of the estimated or planned date for delivery or performance.
9.2 The Buyer shall inspect the Goods and/or Services immediately on delivery and shall no later than five (5) Business Days after delivery notify the Seller in writing of any shortage in delivery, damage or any other non-conformity with the Contract that ought reasonably to have been apparent on a reasonable inspection of the Goods or Services.
9.3 All claims not notifiable under clauses 9.1 or 9.2 must be notified to the Seller no later than twenty (20) Business Days after the Buyer first becomes aware of the circumstances giving rise to the claim.
10 FORCE MAJEURE
The Seller shall have the right to suspend delivery and/or cancel or reduce the volume of the Goods to be supplied and shall not be liable in any way for loss, damage or expense arising directly or indirectly from this, or any other failure or delay in the Seller’s performance of the Contract, to the extent that this has been caused by any circumstance beyond the Seller’s reasonable control, including industrial disputes (whether or not involving employees of the Seller) or failure or delays by the Seller’s suppliers.
11.1 The Seller may perform any of its obligations or exercise any of its rights under the Contract itself or through a third party.
11.2 The Seller may at any time assign, transfer, charge or deal in any other manner with any of its rights hereunder, and may sub-contract any or all of its obligations under the Contract.
11.3 The Buyer shall not assign, transfer, charge, hold on trust for another or deal in any other manner with any of its rights or obligations under the Contract without the prior written consent of the Seller.
12 ENTIRE AGREEMENT
12.1 These terms, together with those set out in the Contract, constitute the entire agreement and understanding of the parties and supersede any previous agreement or understanding between the parties with respect to the arrangements contemplated by or referred to in these terms and the Contract.
12.2 Each of the Seller and the Buyer acknowledges and agrees that:
12.2.1 in entering into the Contract it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made), or understanding of any person (whether party to the Contract or not) which is not expressly set out in these terms and/or the Contract; and
12.2.2 the only remedy available to it for breach of any statement, representation or other term that is expressly set out in the Contract shall be for breach of contract under the terms of the Contract.
12.3 Nothing in this clause 12 shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.
The Buyer shall at all times indemnify the Seller against all liability incurred in connection with the transfer by operation of law to the Seller of the contracts of employment of any employees arising out of the Seller’s entry into or performance of the Contract.
14 GOVERNING LAW AND JURISDICTION
The Contract shall be construed in accordance with the law of England and Wales. The parties submit to the jurisdiction of the Courts of England and Wales.
Any notice to be given shall be in writing, and may either be delivered personally or sent by first class prepaid post to the address of the recipient set out in the Contract or such other address as the recipient may designate by notice given pursuant to this clause. Each such notice shall be deemed to have been served, if by personal delivery, when delivered, if by post, 48 hours after posting.
Any failure to exercise or delay by a party in exercising a right or remedy arising in connection with the Contract shall not constitute a waiver of such right or remedy or of any other rights or remedies.
If any provision of these terms or the Contract is held by an any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these terms or the Contract and the remainder of the provision in question shall not be affected thereby. If the whole or any part of any clause(s) are invalid or unenforceable the parties agree to attempt to substitute for any invalid or unenforceable, provision a valid and enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision. Any such invalidity or enforceability shall not affect the validity or enforceability of any other provision.