Terms & Conditions
Conditions of Sales & Terms of Business for Permaquip Manufacturing Limited.
1.1 The Buyer means the person, firm or company placing an order with the company.
1.2 The Company means Permaquip Manufacturing Limited, its subsidiary or associate companies.
1.3 Products means all equipment materials and services which are the subject of the Buyer’s order or which are to be supplied to the Buyer by the Company under these Conditions of Sale.
1.4 Contract means the contract for the supply of products formed by the company’s acceptance of the Buyer’s order.
1.5 Carrier means any person firm or company engaged by the Company under a contract for the carriage of the product.
1.6 Service means the physical inspection of equipment by the Company, and replacing faulty or unserviceable parts (whether issued free by the Buyer or procured by the Company).
1.7 Manufactured Product means a set of component parts which have been procured by the Company and which form an assembly that has been put together and tested by the Company for sale as a complete working entity that meets the specifications referred to in the Company’s quotation. In the absence of a comprehensive specification for the performance of the Manufactured Product, the Company’s test will be to ensure the basic functioning of the Manufactured Product,.
2. Formation of Contract
2.1 There shall be no contract unless the Company accepts the Buyer’s order by an Acknowledgement of Order form or by pro forma invoice.
2.2 The prices, specifications, delivery times or any other information concerning the Products contained in any quotation given by the Company to the Buyer are commercial estimates only and are not binding on the Company and may be modified at any time without notice to the Buyer.
2.3 All orders are accepted subject to these conditions. No terms or conditions put forward by the Buyer or contained in any order form shall be binding on the Company.
2.4 The Buyer acknowledges that these Conditions and any specific details stated on the face of the Company’s Acknowledgement of Order form or pro-forma invoice (and any additions or amendments thereto agreed in writing by the Company) constitute the entire subject matter of the Contract and that there are no other representations, warranties, Conditions, terms or obligations, whether written or oral, expressed or implied, by custom or otherwise. It is the responsibility of the Buyer to ensure that all such specific details are correct and accurate and discrepancies must he notified to the Company immediately upon receipt.
3.1 Unless the Company expressly agrees in writing the price for the Products shall be the price in effect at the time of shipment of the products.
3.2 In the event that the Company expressly agrees in writing that clause 3.1 shall not apply and that there shall be a firm price for the products then (in addition to any other matter agreed in writing between the Company and the Buyer relating to the price for the Products):
3.2.1 if the Buyer fails to provide the Company within 3 working days after receipt of the Company’s Acknowledgement of Order form, pro-forma invoice, or specific request (written or oral) with sufficient information and documentation (as the Company shall determine necessary) to enable the Company to proceed with the Contract forthwith; or
3.2.2 if work under the Contracts is suspended or delayed due to the fault or neglect (including failure to make payment for the Products in accordance with clause 4 below) of the Buyer, its servants, agents or contractors, or any other cause beyond the reasonable control of the Company the Company shall be entitled to increase such firm price to cover any increased cost to the company caused by any such failure, suspension or delay.
3.3 Prices are exclusive of all VAT, taxes, duties and delivery charges, which shall be solely for the Buyers account.
4.1 Unless the Company shall allow the Buyer credit payment terms as an approved account in accordance with clause 4.2, payment of the price of the Products, shall be made in full by the Buyer to the Company in pounds sterling within 3 working days of receipt of the Company’s Acknowledgement of Order form or pro-forma invoice accepting the Buyers order, and the Company’s obligations under the Contract are wholly conditional upon such payment being made. All such payments may at the Company’s option be appropriated to the Contract or any other contract between the Company and the Buyer then due for payment.
4.2 The Company may in its sole discretion designate the Buyer as an approved account and, in any such case, unless the Company shall otherwise direct, payment of the price for the Products shall be made in full by the Buyer to the Company in pounds sterling no later than 30 days from the date of invoice or the date of delivery of the Products to the Buyer whichever is earlier or, in the event that the Buyers shipping instructions are not received as required by the Company or shipment is held on the Buyer’s request, of notification by the Company, that the Products are ready for delivery. The Company expressly reserves the right in its sole discretion to refuse to designate the Buyer as an approved account, to withdraw such designation at any time without notice and to require payment in accordance with clause 4.1 above notwithstanding such designation including, with respect to future deliveries of the Products where delivery is by installment.
4.3 Without prejudice to the Company’s other rights in the event that any payment from the Buyer is overdue, the Company reserves the right to disallow any discount otherwise available to the Buyer thereupon and to charge interest and costs on any overdue payment to be added to the amount outstanding at a monthly rate of 5% compounded accruing on a daily basis until the company has received payment in full.
4.4 The Buyer shall neither withhold payment of any amount due under the Contract in respect of any disputed claim for damage to the Products or any other alleged breach of contract by the Company, nor entitled to exercise a right of set-off.
4.5 The Company may cancel the Contract if the Buyer shall suffer any distress or execution to be levied on its goods or if it makes any arrangement with its creditors or enters into voluntary or compulsory liquidation, or has a receiver, manager or administrator appointed over any of its property or assets, or if the Buyer, being an individual shall commit an act of bankruptcy or have a receiving order made against him/her.
4.6 If any Payment from the Buyer to the Company under the Contract is overdue, the Company may suspend further deliveries under the Contract or any other contract with the Buyer and if such payment shall remain in arrears for more than 14 days the Company may cancel this Contract or any other contract with the Buyer in whole or in part without prejudice to its other rights and without incurring any liability to the Buyer.
4.7 If the Buyer makes payment by way of credit card payment and the credit card issuer declines to process such payment or requires the Company to refund any such payment made then such payment shall be deemed not to have been made and the provisions of this clause 4 relating to overdue payment shall apply.
5. Design and Specifications
5.1 All drawings, photographs, illustrations, performance data, dimensions, weights, and other technical information, specifications and particulars of the Products are published and supplied by the Company in the belief that they are as accurate as reasonably possible but are not to be treated as binding or as forming part of the Contract. It is the responsibility of the Buyer to ensure the accuracy of all such materials and information and the Company accepts no liability in this respect. All such material and information is copyright and may not be disclosed to third parties without the Companies consent in writing.
5.2 Where any order accepted by the Company is subject to the approval by the Buyer of drawings, prototypes or any other condition such approval shall not be unreasonably withheld or delayed.
6. Orders to Customers Specifications
In any case where the Products are to be manufactured to the Buyer’s specifications, and notwithstanding the payment by the Buyer of pre production work and materials, all intellectual property rights in the Products (including, without limitation, all, prototypes and the copyright and other intellectual property rights in all drawing, designs and specifications) shall be and remain the absolute property of the Company and the Buyer acknowledges that it has no right, title or interest therein.
7. 1 Delivery is on an ex-works basis. All delivery times quoted are best estimates only and whilst the Company will endeavour to avoid delay, the Company shall under no circumstances whatsoever be liable to the Buyer for any loss or damage whether direct, indirect or consequential, arising from delay in the performance of the Contract. In the event of any delay attributable to the failure of the Buyer to provide information to the Company, to approve drawings or prototypes submitted by the Company or to take any other action reasonably required, the delivery time shall be extended accordingly.
7.2 If the Company is unable to perform the work or part of the Contract due to any cause or event beyond its reasonable control including (without limitation) acts of God, acts of government, industrial action, severe weather, default of the suppliers or any other such cause or event whatsoever the Company may at its option by notice in writing to the Buyer cancel or suspend the Contract in whole or in part without liability and without prejudice to the Company’s rights to receive payment of the price of all Products previously delivered or work already done.
7.3 The Company may deliver by instalments in such quantities as it may reasonably decide; such instalments shall be separate obligations and no breach in respect of one or more of them shall entitle the Buyer to cancel any subsequent instalments or repudiate this contract as a whole.
7.4 Unless the Company shall otherwise expressly agree in writing, delivery of the Products by the Company to the Carrier shall constitute delivery of the Products by the Company to the Buyer or, if Buyer’s shipping instructions are not received as required, or shipment is held on Buyers request, delivery of the products will be constituted by packing and placement of the products in the Company’s storage area or as the Company may determine. The Products shall be at the Buyers risk immediately on delivery, and the Buyer shall insure comprehensively the Products against the usual risks accordingly. The Company shall not be liable in any way whatsoever for any delay, breakage or damage to or loss of the Products after the Company has made delivery to the Carrier.
8. Reservation of Title
8.1 The Company shall retain title to the Products until it has received payment in full of all sums due to the Company for (a) the supply of the Products to the Buyer and (b) in connection with any other transaction with the Company whether or not related to the supply of the Products. For these purposes The Company has only received a payment when the amount of that payment is irrevocably credited to its bank account.
8.2 If any item of the Products owned by the Company is attached to, mixed with or incorporated into other goods not owned by the Company and is not identifiable or separable from the resulting composite or mixed goods, title to the resulting composite or mixed goods shall vest in the Company and shall be retained by the Company for as long as and on the same terms as those on which it would have retained title to the Products in question.
8.3 The Buyer shall store the Products owned by the Company in such a way that they are clearly identifiable as the Company’s property, shall maintain records of such Products identifying them as the Company’s property, of the persons to whom it sells or disposes of such Products and of the payments made by such persons for such Products. It will allow the Company to inspect these records and the Products themselves on request. All products supplied by the Company in the Buyers possession shall be presumed to belong to the Company (unless the Buyer can prove otherwise).
8.4 The Company shall be entitled to trace the proceeds of sale and any insurance proceeds received in respect of the Products owned by the Company. Such proceed, shall be paid to a separate bank account and shall be held by the Buyer on trust or the Company.
8.5 If the Buyer fails to make payment to the Company when due, enters into bankruptcy, liquidation or a composition with its creditors, has a receiver, manager or administrator appointed over all or part of its assets, or becomes insolvent, or if the Company has reasonable cause to believe that any of these events is likely to occur, the Company shall have the right, without prejudice to any other remedies:
8.5.1 to enter without prior notice any premises where the Products owned by it may be, and to re-possess and dispose of any such Products owned by it so as to discharge any sums owed to it by the buyer.
8.5.2 to require the Buyer not to resell or part with possession of the Products owned by it until the Buyer has paid in full all sums owed by it to the Company;
8.5.3 to withhold delivery of any undelivered Products and stop any Products in transit. Unless the Company expressly elects otherwise any contract between it and the Buyer for the supply of the Products shall remain in existence notwithstanding any exercise by the Company of its rights under this clause.
8.6 The Products shall, once the risk has passed to the Buyer in accordance with clause 7.5 or otherwise, be and remain at the Buyer’s risk at all times unless and until the Company has retaken possession of such Products.
8.7 In addition to any right of lien to which the Company may by law be entitled, the Company shall upon the occurrence of any of the events described in clause 8.5 above be entitled to a general lien on all the goods of the Buyer in the Company’s possession (although such goods or some of them may have been paid for) for the unpaid price of the Products or any other goods sold and delivered to the Buyer by the Company under this Contract or any other contract between the Company and the Buyer.
9.1 Where the Company is producing a Manufactured Product for the Buyer, the Company warrants to the Buyer that the Manufactured Product will be free from defects in workmanship and materials for a period of 12 months (the warranty period) from the date of invoice or the date of delivery to the Buyer whichever is earlier.
9.2 Where the Company is providing a maintenance Service to the Buyer (even though the Company may have supplied some or all of the component parts in the service) the Company shall not under any circumstances be responsible for the correct working of the Products supplied to the Buyer. It is the Buyers responsibility to make the Products work and to commission the servicing accordingly. The Company warrants to the Buyer that the Products supplied as part of the maintenance Service will be free from Gross Defects in workmanship only, for a period of 12 months (the warranty period) from the date of invoice or from the date of delivery to the Buyer whichever is earlier.
9.3 The warranties referred to in clause 9.1 and 9.2 shall only apply if the Buyer makes a full inspection of the Products within 5 working days of delivery to the Buyer and thereafter, within 3 working days, gives the Company written notice containing full particulars of any defects it discovers and the circumstances in which such defects occurred. The Company shall at its sole option EITHER repair, replace OR give a credit equivalent to the value of the Company’s charge for any such Products which its examination confirms are defective within the warrantee period and within the terms of warranties referred to in clause 9.1 or 9.2 PROVIDED that the Buyer has adhered to the payment provisions contained in clause 4 and FURTHER PROVIDED that the Buyer returns the defective Products to the Company (or its authorised service depot as directed by the Company) and pays all transportation charges, duties and taxes associated with the repair, replacement and return of the Products to the Buyer.
The repair or replacement of defective products during the warranty period in accordance with clause 9.3 shall not as regards such products extend the warranty provided.
The provisions of clause 9 do not extend to any Products which have been subjected to misuse, accidents or improper installation, maintenance, application or operation nor do they extend to Products which have been repaired or altered otherwise than by agents or employees of the Company unless previously authorized in writing by the company.
9.4 The warranties contained in this clause 9 are the only warranties applicable to this agreement and the Products and no representations or warranties given or made which are not contained in this agreement shall be applicable unless in writing signed by a director of the company expressly amending this agreement.
9.5 To the fullest extent permissable by law, all warranties implied by law are expressly excluded save that this shall not exclude liabiity for death or personal injury.
10. Limitation of Liability
Save as expressly provided in clause 9, the Company shall have no liability whatsoever to the buyer whether in contract, tort or otherwise for any indirect, special, consequential or incidental loss or damage of any kind suffered or incurred by the buyer howsoever caused or arising, whether from breach or nonperformance of any of its obligations under the contract or from the supply, installation, performance, operations or use of the products, except liability for death or personal injury arising from the Company’s proven negligence.
11. Goods and Testing
11.1 If the Products are used including circumstances subject to the Health and Safety at Work Act 1974 or any other similar legislation current or future, then the Products must be regularly tested by the Buyer and any user of the Products to ensure that they are suitable (and continue to be suitable) for the purpose for which they are to be used.
12.1 The Buyer warrants that any design or instruction furnished or given by it shall be such as will cause the Company to infringe any letters patent, copyright, registered design or trade mark in the performance of the Contract, and the Buyer undertakes to indemnify the Company against all damages, penalties, cost and expenses to which the Company may become liable as a result of work done in accordance with the Buyers designs or instructions which involves the infringement of any letters patent, copyright, registered design or trade mark.
12.2 The Company make no warranty or representation whatsoever that the Products do not infringe any letters patent, copyright, registered design or trademark and accepts no liability in this respect.
The Contract shall not be assigned in whole or in part by, either party without written consent of the other party, except that the Company may assign as rights, liabilities and obligations to an associated company without prior written notice.
The Buyer shall promptly pay when due all taxes, duties and other charges upon the export, import, sale, purchase, ownership, possession or use of the Products. Any such taxes, duties or other charges paid by the Company shall be for the account of the Buyer and shall 6e set out on the Company’s invoice.
The Company’s failure to insist upon the strict performance of any of the Buyers obligations under the contract shall, not be construed as a waiver and shall not affect the company’s right to require strict performance of such obligation.
16. Costs of Enforcement
The Buyer shall pay to the Company all expenses, including legal costs on a full indemnity basis, incurred by or on behalf of the Company in enforcing the provisions of this Contract.
17. Amendments or variation
No amendment or variation of any of these conditions is effective unless it is in writing and signed by a duly authorised director of the Company.
Headings to the clauses in these Conditions of Sale are for ease of reference only and shall not reflect the construction of these Conditions.
If any provision of these Conditions is found to be invalid or unenforceable, the invalidity or unenforceability of such provision or part shall not affect any other provision or the remainder of the provision in which such invalid or unenforceable part is contained, which shall remain in full force and effect.
All correspondence for the Company shall be addressed to:
Permaquip Limited, Old Sleningford Farm, North Stainley, Ripon, North Yorkshire HG4 3JB.
21. Governing Law and Jurisdiction
The Contract shall be governed by and construed in accordance with the laws of England and the Buyer agrees to submit to the non-exclusive Jurisdiction of the English Court.
22. Data Protection Act
The Company may transfer information about you to its financiers, who:
a) May use, analyse and assess information about you, including the nature of your transactions, and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claim, underwriting and training purposes and in making payments and servicing their agreement with us;
b) From time to time, may make searches of your record at credit reference agencies where your record with such agencies may include searches made and information given by other businesses; details of their searches will be kept by such agencies but will not be seen by other organizations that may make searches;
c) May give information about you and your indebtedness to the following:
Our or their insurers for underwriting and claims purposes;
Any guarantor or indemnifier of your or our obligations to enable them to assess such obligations;
Their bankers or any advisers acting on their behalf;
Any business to which your indebtedness or our arrangements with our financiers may be transferred – to facilitate such transfer;
d) May monitor and/or record any phone calls you may have with them, for training and/or security purposes;
e) In the event that they transfer all of any of their rights and obligations under their agreement with us to a third party, may transfer information about you to enable the third party to enforce their rights or comply with the obligations.
We will provide you with details of our financiers on request, including a contact telephone number if you want to have details of the credit reference agencies and other third parties referred to above from whom the obtain and to whom they may give information about you. You also have a right to receive a copy of certain information they hold about you if you apply to them in writing, however a fee will be payable.
23. Non solicitation of key staff
The Buyer will not, for a period of 12 months from the date of this Contract, solicit nor canvass for the purpose of employment or engagement nor employ nor engage in any capacity whatsoever any member of the Company’s sales force or other senior employee or consultant whether self employed or not.