Terms and Conditions
TERMS OF SUPPLY
1. Inter pretation retation retation
The definitions and rules of interpretation in this Condition apply in these Conditions.
“Buyer”means the person, firm or Supplier who purchases the Goods from the Supplier
“Supplier” means Global Heat Transfer Limited (Company number: 3180419) whose registered office is at Cold Meece Estate, Cold Meece, Swynnerton, Stone, Staffordshire ST15 0SP
“Conditions” the standard terms and conditions of supply of the Supplier as set out herein and including any additional terms and conditions of supply agreed in Writing by the Supplier
“Contract” means any contract between the Supplier and the Buyer whether orally or in Writing for the sale and purchase of the Goods, incorporating these Conditions
“Goods” means any goods, consumables, equipment, services or Works agreed in the Contract to be supplied to the Buyer by the Supplier
“Site”the Buyer’s premises or such other location where the Works are to be carried out
“Works” means the sample, testing, manufacture, installation, adjustment, cleaning, draining, filling or any other agreed services to be delivered by the Supplier and where necessary provided to the Buyer as set out and specified in the Contract, for the avoidance of any doubt waste removal shall not form part of the Works unless otherwise agreed in Writing by the Supplier
“Writing” includes facsimile transmission, electronic communication and comparable means of communication and “written” shall be construed accordingly.
2. Application ation of terms
Subject to any variation under Condition 2.3, the Contract shall (unless otherwise agreed in Writing by the Supplier) be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
These Conditions apply to all the Supplier’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in Writing and signed by a director of the Supplier. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Supplier’s liability for fraudulent misrepresentation.
Each order or acceptance of a quotation for Goods by the Buyer from the Supplier shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions.
No order placed by the Buyer shall be deemed to be accepted by the Supplier until a written acknowledgement of order is issued by the Supplier, or if earlier, the Goods are delivered by the Supplier to the Buyer.
Any quotation is valid for a period of 30 days only from its date, provided that the Supplier has not previously withdrawn it.
The Supplier reserves the right to amend the right to amend the specification of its products from time to time so the descriptions thereof as set out in advertising literature or quotations may change and the Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
The Buyer’s attention is drawn to the wording of any data sheets and/or technical leaflets or other technical documents provided to the Buyer by the Supplier in relation to the Goods in question, the terms of which (including any exclusions of liability) form part of the Contract.
Where Goods are made or supplied to the Buyer’s own specification or where the standard goods of the Supplier are altered in accordance with the Buyer’s instructions:
The Buyer warrants and takes full responsibility not only for the suitability and fitness of the specification but also that such specification does not infringe any proprietary right of any third party and the Buyer shall keep the Supplier indemnified in full against any loss, damage or expense (including costs) which the Supplier may incur or arising from the performance of the Contract by reason of any such infringement; and
The Supplier reserves the right (without any liability whatsoever) to change the Buyer’s specification, pattern or design as required to ensure that the Goods in question comply with any applicable health, safety or other statutory requirement or provision.
Unless otherwise agreed in Writing, the Supplier will be the sole owner of all intellectual property rights that arise in preparing a quotation for the Buyer and/or in the course of working on any Contract and fulfilling any order.
The Goods shall be deemed to be in accordance with the Supplier’s specification or the Buyer’s specification (as the context permits) if the specification of the Goods falls within reasonable tolerance and parameters.
The quantity and description of the Goods shall be as set out in the Supplier’s quotation or acknowledgement of order.
All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures 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 and this is not a sale by sample.
Unless otherwise agreed in Writing by the Supplier, delivery of the Goods shall take place at such place as is specified in Writing by the Buyer.
The Buyer shall undertake to ensure that the Supplier:
Has full and safe access during agreed periods reasonably necessary to provide the Works or any other services in the Contract and/or deliver the Goods; and
has adequate free working space and such other facilities as may be necessary to provide the Works or any other services in the Contract and/or deliver the Goods.
Any dates specified by the Supplier for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
Where any Contract for the supply of Goods includes any Works to be performed at the Buyer’s premises (the “Site”), the Buyer shall at its sole cost prepare the Site to reasonably enable the Supplier to provide such Works as are agreed in the Contract and undertakes that it will comply with all the reasonable health and safety procedures and British Standards.
In the event that the Buyer fails to provide sufficient access under Condition 4.2, and/or to prepare the Site in accordance with Condition 4.4, or otherwise through any act or omission prevents or delays the Supplier from delivering the Goods or any part thereof, the Buyer shall indemnify the Supplier in full for all loss, costs and expenses incurred buy the Supplier as a result of such failure or delay including without limitation, carriage costs, labour costs, accommodation costs and expenses:
Procure that a nominated member of the Buyer’s staff is present at the Site during the periods that the Works are being carried out by the Supplier.
Subject to the other provisions of these Conditions the Supplier shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Supplier’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract.
Where relevant, the Supplier may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
The Supplier shall endeavour to deliver the quantity of Goods ordered and if there is a surplus or shortage of Goods which is so slight that it would be unreasonable for the Buyer to reject delivery of them, the Buyer shall be deemed to have accepted the Goods and shall pay for the actual quantity received.
The Goods are at the risk of the Buyer from the time of delivery.
Ownership of the Goods shall not pass to the Buyer until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
The Goods; and
All other sums which are or which become due to the Supplier from the Buyer on any account.
Until ownership of the Goods has passed to the Buyer, the Buyer shall:
Hold the Goods on a fiduciary basis as the Supplier’s bailee;
Where relevant, store the Goods (at no cost to the Supplier) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Supplier’s property;
Not destroy, 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 on the Supplier’s behalf for their full price against all risks to the reasonable satisfaction of the Supplier. On request the Buyer shall produce the policy of insurance to the Supplier.
The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
Any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
Any such sale shall be a sale of the Supplier’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
The Buyer’s right to possession of the Goods shall terminate immediately if:
The Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal); or
The Buyer enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
The Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Supplier and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases or threatens to cease to trade; or
The Buyer encumbers or in any way charges any of the Goods.
The Supplier shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Supplier.
The Buyer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
Where the Supplier is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Supplier to the Buyer in the order in which they were invoiced to the Buyer.
On termination of the Contract, howsoever caused, the Supplier’s (but not the Buyer’s) rights contained in this Condition 5 shall remain in effect.
Subject to Condition 6.2 and unless otherwise agreed by the Supplier in Writing, the price for the Goods shall be the price set out in Writing by the Supplier from time to time.
The Supplier reserves the right to adjust the Contract price of the Goods, whether before or after the making of the Contract in the event that any increase in cost to the Supplier in supplying the Goods or any part thereof caused by:
Any increase in the cost of materials or services required by the Supplier for the completion of the Contract; or
Any increase in wages or production or manufacturing costs or other overheads; or
Any other reason beyond the control of the Supplier including, without limitation, fluctuations in exchange rates between monetary currencies, taxes or duties, the action of any government or any other authority or any labour problems.
The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
The Buyer shall pay the Supplier for any loss or extra cost incurred by the Supplier through the Buyer’s faulty instructions, lack of instructions or any failure or delay of the Buyer in taking delivery of the Goods or any act or default on the part of the Buyer, its servants, agents or employees.
7.1 Subject to Condition 7.4, payment of the price for the Goods is due in pounds sterling within 30 days of the date of the Supplier’s invoice which may be rendered at any time following delivery or deemed delivery of the Goods PROVIDED ALWAYS that the Supplier reserves the right to require cash payment on demand upon delivery of the Goods or on sending notification that the Goods are in a deliverable state in the event that the Buyer has previously failed to make any payment owing to the Supplier on the due date or if the Buyer has failed to take delivery of any goods or if the Supplier has received unsatisfactory credit rating information relating to the Buyer.
Time for payment shall be of the essence.
No payment shall be deemed to have been received until the Supplier has received cleared funds.
The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Supplier to the Buyer.
If the Buyer fails to pay the Supplier any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Supplier on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Lloyds TSB plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
The Customer shall indemnify and keep indemnified the Carrier in full for all loss, costs and expenses incurred by the Carrier as a result of a breach of this clause 7 (including, without limitation, legal fees and expenses and debt collector fees incurred in recovering such debts).
Where the Supplier is not the manufacturer of the Goods, the Supplier shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Supplier.
The Supplier warrants that (subject to the other provisions of these Conditions) upon delivery the Goods shall:
Be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
Be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Supplier in Writing and the Supplier has confirmed in Writing that it is reasonable for the Buyer to rely on the skill and judgement of the Supplier.
The Supplier warrants that:
Any Works will be prepared and carried out by appropriately qualified and trained personnel with due care and diligence and to such standard as it is reasonable for the Buyer to expect in all circumstances;
Any Works will be prepared and carried out in accordance with all applicable regulations or other legal requirements, including but not being limited to all relevant health and safety requirements and British Standards;
It will remove all surplus materials and equipment used by the Supplier for the purpose of the Works after completion of the Works.
The Supplier shall not be liable for a breach of any of the warranties in Condition 8.2 and 8.3 unless:
the Buyer gives written notice of the defect to the Supplier within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
the Supplier is given a reasonable opportunity after receiving the notice of examining such Goods or the Works.
The Supplier shall not be liable for a breach of any of the warranties in Condition 8.2 and 8.3 if:
the Buyer makes any further use of such Goods or the equipment subject to the Works after giving such notice; or
the defect arises because the Buyer 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; or
the Buyer alters or repairs such Goods without the written consent of the Supplier.
Subject to Condition 8.4 and Condition 8.5, if any of the Goods do not conform with any of the warranties in Condition 8.2 or 8.3 the Supplier shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate
If the Supplier complies with Condition 8.6 it shall have no further liability for a breach of any of the warranties in Condition 8.2 or 8.3 in respect of such Goods.
9. COMPLIANCE WITH LAWS
The Buyer warrants to the Supplier that it has informed the Supplier of all laws, regulations and requirements affecting the manufacture, sale, packaging and labelling of the Goods and the provision of the Works which are in force within the relevant territory (or any part of it) (“Local Regulations”) into which the Goods and/or Works at the date of the Contract are to be supplied.
The Buyer shall give the Supplier as much advance notice as reasonably possible of any prospective changes in the Local Regulations.
10. Limitation imitation imitation of liability
Subject to Condition 4 and Condition 8, the following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
any breach of these Conditions;
any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
Nothing in these Conditions excludes or limits the liability of the Supplier:
For death or personal injury caused by the Supplier’s negligence; or
Under section 2(3), Consumer Protection Act 1987; or
for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
for fraud or fraudulent misrepresentation.
Subject to Condition 10.2 and Condition 10.3:
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
the Supplier shall not be liable to the Buyer 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.
If the Buyer shall fail to give delivery instructions or take delivery of the Goods at the time agreed (if any) or if no time is agreed within a reasonable time or make any payment when it becomes due (either under the Contract or under any other contract between the Supplier and the Buyer) or shall commit any other breach of the Contract and fail to remedy the same within 7 days of receiving the Supplier’s request in Writing so to do or any distress or execution is levied upon any goods or property of the Buyer or the Buyer makes an voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being an incorporated Supplier) passes a resolution for winding up (otherwise than for the purposes of amalgamation or reconstruction), or a Court makes an order to that effect, or an encumbrancer takes possession, or an administrative receiver or receiver is appointed, of any of the property or assets of the Buyer, or the Buyer ceases or threatens to cease, to carry on business or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly, the Supplier may:
stop any Goods in transit and/or cease to supply the Goods;
suspend Works on the Contract; and/or
hold by way of a general lien all materials or other property of the Buyer in the possession of the Supplier; and/or
determine the Contract forthwith and if the Goods, or any part of them have been delivered but not paid for, the full price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary but in any event without prejudice to the Supplier’s right to any unpaid price for goods delivered under the Contract and to damages for loss (both direct and consequential) suffered in consequence of such determination.
If the Buyer requires a variation to or cancellation of the Contract this will only be accepted at the sole discretion of the Supplier in Writing and unless otherwise agreed in Writing only upon condition that any costs, charges or expenses (both direct and consequential) incurred by the Supplier will be reimbursed by the Buyer to the Supplier forthwith.
The Supplier may assign the Contract or any part of it to any person, firm or Supplier.
The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
13. Force majeure
The Supplier reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Supplier including, without limitation, acts of God, inclement weather, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 3 months , the Buyer shall be entitled to give notice in Writing to the Supplier to terminate the Contract.
Any notice required or permitted to be given by either party to the other under the Contract or these Conditions shall be in Writing addressed to that other party at its registered or principal place of business or such other address as may at the relevant time have been notified pursuant to this Condition 14 to the party giving the notice.
Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier whether under the Contract or not.
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
Nothing contained in this Contract shall or shall be deemed to constitute a partnership or a contract of employment between the parties.
The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English