1.1 In these terms and conditions each of the following words and expressions shall, unless the context otherwise requires, have the following meanings:-
“Contract” means the contract between us for the sale of the Products and/or provision of the Services in accordance with these Terms.
“Force Majeure” means any cause preventing us from performing any or all of our obligations which arises from or is attributable to acts, events, omissions or accidents beyond our reasonable control including, without limitation, strikes, lockouts or other industrial disputes (whether involving our workforce or any other party), acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm or default of suppliers or sub-contractors;
“Overseas Customer” means a customer based outside of the United Kingdom;
“Products” means any products agreed to be supplied to you by us from time to time;
“Services” means any services agreed to be supplied to you by us from time to time, including but not limited to the installation of any of the Products or the provision of consultancy advice and feasibility studies;
“UK Customer” means a customer based in the United Kingdom.
1.2 Headings in these Terms shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2 Application of Terms
2.1 These Terms shall:-
2.1.1 apply to and be incorporated into the Contract; and
2.1.2 (to the extent permitted by law) prevail over any inconsistent terms or conditions contained, or referred to, in your purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by you, or implied by law, trade custom, practice or course of dealing.
2.2 Your purchase order, or your acceptance of a quotation for Products and/or Services by us, constitutes an offer by you to purchase the Products and/or Services specified in it on these Terms. No offer placed by you shall be accepted by us other than:-
2.2.1 by a written acknowledgement issued and executed by us; or
2.2.2 (if earlier) by us starting to provide the Services or by us delivering the Products in accordance with clause 3 below,
when a contract for the supply and purchase of the Products and/or Services on these Terms will be established.
2.3 Your standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.
2.4 Quotations are given by us on the basis that no Contract shall come into existence except in accordance with clause 2.2. Any quotation is valid for a period of 30 days from its date, provided that we have not previously withdrawn it.
2.5 Any samples, drawings, descriptive matter, or advertising produced by us and any descriptions or illustrations contained in our catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force.
3.1 UK Customers will take delivery of the Products, within 14 days of us giving them notice that the Products are ready for delivery.
3.2 Overseas Customers will take delivery of the Products at the UK port from which the Products will be shipped unless otherwise agreed.
3.3 Any dates specified by us for the delivery of Products or the provision of Services are intended to be an estimate and time will not be of the essence for delivery or supply. If no delivery dates are specified at the time of the Contract, delivery will be within a reasonable time.
3.4 Unless otherwise specified by a UK Customer, delivery of Products will be made to the address notified and agreed between the UK Customer and us as its delivery address, between the hours of 9.00 am and 5.00 p.m. on any weekday (excluding official holidays).
3.5 If you refuse or fail to take delivery of any Products supplied in accordance with the Contract, delivery will nevertheless be deemed to have taken place for the purpose of our rights to payment and we will be entitled to store the said Products at your risk and expense which shall include all related transportation charges.
3.6 Upon delivery, you will be responsible for and will bear the entire risk of loss or damage to the Products, regardless of acceptance. If you wish to make any claims for shortages or for damaged Products, full particulars must be notified to us within 14 days of delivery.
4 Title and Risk
4.1 Ownership of any Products shall not pass to you until all prices, taxes and charges due under the relevant Contract have been paid in full. For these purposes, payment will be deemed to have been received when irrevocably credited to our bank account.
4.2 Until ownership of any Products has passed to you, you will to the extent it is practicable:-
4.2.1 hold the Products on a fiduciary basis as our bailee;
4.2.2 store the Products in such a way that they remain readily identifiable as our property; and
4.2.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products.
4.2.4 maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
4.2.5 notify us immediately if you become subject to any of the events listed in clause 12.
4.3 If before title to the Products passes to you, you become subject to any of the events listed in clause 12.2, or we reasonably believe that any such event is about to happen and notify you accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Products and, if you fail to do so promptly, enter any of your premises or the premises of any third party where the Products are stored in order to recover them.
4.4 You grant us, our agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or to recover them in the circumstances set out in clause 4.3.
4.5 Risk to any Products shall pass upon delivery (or deemed delivery) by us to you.
5 Terms of Payment
5.1 The prices applicable to the supply of Products and/or Services will be as set out in the relevant Contract and unless otherwise agreed:
5.1.1 we reserve the right to modify prices to take account of increased costs, in particular resulting from any revaluation of currency, increase or change in tax or duty or legislation passed after the date of the Contract and prior to delivery or provision (if applicable); and
5.1.2 all prices are exclusive of Value Added Tax (in respect of UK Customers) and all costs or charges in relation to loading, unloading, carriage and insurance all of which costs or charges you will pay to us.
5.2 If we have to change the Contract for reasons beyond our control (for example changes in the design and manufacture of the Products made by the provider which causes further work to install the energy system or requires further inspections and this causes an increase in costs), we shall provide you with a quotation giving details of the extra costs. We will (at your request) discuss and explain the new quotation and will, in any case, only carry out all the works (including the further work) once your written acceptance has been received.
5.3 Payment in full for Products and/or Services is due to us at the time of placing the order unless otherwise agreed.
5.4 Time is of the essence for the purpose of payment. If you fail to pay us any sum due pursuant to the Contract:-
5.4.1 we shall be entitled to suspend provision of the Services until the outstanding amount has been received by us; and
5.4.2 we shall be entitled to charge you interest on such sum from the due date for payment at the rate of 2% per annum above the base rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made.
5.5 We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.6 All amounts due under the Contract shall be paid in full without any deduction or withholding other than as required by law. You shall not be entitled to assert any credit, set-off or counterclaim against us in order to justify withholding payment of any such amount in whole or in part.
6 Your responsibilities
6.1 You shall:-
6.1.1 where appropriate ensure that any existing energy systems (including gas, oil, water and electricity) to which any Products will be connected will be capable of handling and supporting the additional requirements added to it;
6.1.2 if one of our employees or subcontractors are required to visit you, inform us of all health and safety rules and regulations and any other reasonable security requirements that apply at your premises;
6.1.3 obtain and maintain all necessary licences and consents (including, if necessary, planning permission and buildings regulations approval) which are required before the Services can be carried out and on our request provide us with copies of such permissions and consents so that we can ensure that the design and installation of the Services (if relevant) complies with applicable laws.
6.2 If the performance of our obligations under the Contract is prevented or delayed by any act or omission of you, your agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.
6.3 You shall be liable to pay to us, on demand, all reasonable costs, charges or losses sustained or incurred by us (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to us confirming such costs, charges and losses to you in writing.
7 Our warranty in relation to Products and Services
7.1 We warrant that we will provide the Services in a timely manner with reasonable skill and care and provide suitably skilled personnel to carry out the Services.
7.2 We warrant that on delivery and for a period of 12 months from delivery, the Products shall:
7.2.1 conform in all material respects with their description;
7.2.2 be free from material defects in design, material and workmanship;
7.2.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
7.2.4 be fit for any purpose held out by us.
8 Limits of Liability
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS TERM
8.1 We hereby exclude to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in these Terms) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of you. Nothing in these Terms shall exclude or limit our liability for:-
8.1.1 death or personal injury caused by defects in the Products and / or Services or to the extent that it arises from our negligence or that of our employees acting within the course of their employment and within the scope of their authority;
8.1.2 fraud or fraudulent misrepresentation;
8.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
8.1.4 defective products under the Consumer Protection Act 1987;
8.1.5 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982; or
8.1.6 any matter in respect of which it would be unlawful for us to exclude or restrict liability.
8.2 Subject to clause 8.1, any liability of us for breach of a Contract, or in respect of any other claim or demand arising from a Contract will not exceed a sum equal to the total price paid or due to be paid under the Contract.
8.3 Subject to clause 8.1, in no event or circumstance will we be liable for any special, indirect or consequential damages (including but not limited to loss of profits, loss of revenues, loss of business, depletion of goodwill) for breach of a Contract, or in respect of any other claim or demand arising from a Contract or otherwise in respect of the supply of Products or Services.
8.4 Subject to clause 8.5, if you give us notice in writing within a reasonable time of discovery that some or all of the Products and/or Services do not meet the quality standards set out in clause 7 we shall at our option (as appropriate):-
8.4.1 repair or replace such Products (or the defective part of such Products); or
8.4.2 re-perform the Services; or
8.4.3 refund the price of such Products and/or Services
provided that, if we so request, you shall, at your expense, return the Products which are defective to us to give us a reasonable opportunity of examining the Products. To the extent that we comply with this clause 8.4 we shall have no further liability in respect of such Products and/or Services. These Terms shall apply to any repaired or replacement Products or Services supplied by us.
8.5 We shall not be liable for our failure to comply with the warranty set out in clause 7 in any of the following events:
8.5.1 you make any further use of such Products after giving notice in accordance with clause 8.4;
8.5.2 the defect arises because you failed to follow our oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;
8.5.3 the defect arises as a result of us following any drawing, design or specification supplied by you;
8.5.4 you alter or repair such Products without our written consent;
8.5.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
8.5.6 the Products and/or Services differ from their description or any specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.6 Except as provided in this clause 8, we shall have no liability to you in respect of the failure to comply with the warranty set out in clause 7.
8.7 We do not undertake structural or other types of building surveys and therefore if the installation of the Products (if relevant) cannot be completed, or any damage is caused through existing structural or other defects in your property, we cannot be responsible for this.
8.8 If you provide us with incorrect measurements or any other incorrect information, and we rely on this in connection with the Products or provision of Services, we reserve the right to increase our price to cover the reasonable cost of making good any errors or doing any additional work required because of them.
8.9 Owing to the variable nature of renewable energy sources we cannot warrant the specific daily performance outputs of any Products supplied. The performance of solar panels is affected by the variability in the amount of solar radiation (sunlight). We consult standard industry data in respect of levels of renewable energy available at a particular site (e.g. average sunlight) and use professional computer modelling techniques to identify which Products are appropriate.
8.10 In order to achieve optimum results, certain of the solar products supplied by the Company need to be sited correctly in areas where there is uninterrupted access to renewable energy sources such as sunlight. Solar panels also need to be angled and orientated correctly in order to achieve optimum solar gain.
8.11 We will not be held liable in the event that you change any of the factory settings or timings or make any alterations or modifications to layout, fixings or finishes.
8.12 You acknowledge that the above provisions of this clause 8 are reasonable and reflected in the price and you shall accept risk and/or insure accordingly.
9 Confidentiality and intellectual property
9.1 All prices and information supplied by, or on behalf of us whether or not contained in any proposals, tenders and quotations remain our property and shall not be disclosed to any third party without our prior written consent.
9.2 The copyright and all other intellectual property rights of whatever nature in any designs, artwork, photographs, digital images or other material produced by us as part of the work, are and shall remain our property.
10 Force Majeure
10.1 We shall not be deemed to be in breach of Contract, or otherwise liable to you in any manner whatsoever, for any failure or delay in performing its obligations under a Contract due to Force Majeure.
10.2 If our performance of our obligations under a Contract is affected by Force Majeure, then:
10.2.1 we shall give written notice to the Customer, specifying the nature and extent of the Force Majeure, as soon as reasonably practicable on becoming aware of the Force Majeure and will use its reasonable endeavours to mitigate the severity of the Force Majeure; and
10.2.2 subject to the provisions of clause 10.3, the date for performance of such obligation shall be deemed suspended but only for a period equal to the delay caused by such event.
10.3 If the Force Majeure in question prevails for a continuous period in excess of three months after the date on which the Force Majeure begins, we shall be entitled to give you notice in writing to terminate the relevant Contract. This notice to terminate must specify the termination date, which must not be less than 15 days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, the relevant Contract will terminate on the termination date set out in the notice.
10.4 In the event that our obligations under a Contract are not completed in whole or in part for any reason resulting from Force Majeure, we shall have no liability to you. You shall be liable to pay for all expenses incurred by us in connection with the Contract and for such part of our obligations under the Contract as have been performed (if any). Our assessment as to the amount payable shall be final in the absence of manifest error.
11 Manufacturer’s warranty
Where we do not manufacture the Products, equipment or components ourselves we cannot warrant or guarantee their performance. If a Product comes with a manufacturers’ warranty then these will be passed on to you where possible. These warranties cover manufacturing faults, satisfactory quality of the equipment (within the meaning of the Supply of Goods and Services Act 1982) and fitness for the purpose for which the equipment is designed. If you need to make a claim under the manufacturers’ warranty we will administer this process on your behalf and ensure that your claim is dealt with appropriately by the equipment provider. You must notify us when you become aware of any faults, otherwise you could invalidate any warranty.
12 Your insolvency or incapacity
12.1 If you become subject to any of the events listed in clause 12.2 or we reasonably believe that you are about to become subject to any of them and notify you accordingly, then, without limiting any other right or remedy available to us, we may cancel or suspend all further deliveries under the Contract or under any other contract between us without incurring any liability to you, and all outstanding sums in respect of Products delivered to you shall become immediately due.
12.2 For the purposes of clause 12.1, the relevant events are:-
12.2.1 you suspend, or threaten to suspend, payment of your debts, or are unable to pay your debts as they fall due or admit inability to pay your debts, or (being a company or limited liability partnership) are deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
12.2.2 you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enters into any compromise or arrangement with your creditors (other than for the sole purpose of a scheme for a solvent amalgamation or reconstruction);
12.2.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up (save as set out in 12.2.2 above);
12.2.4 (being an individual) you are the subject of a bankruptcy petition or order or (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed;
12.2.5 a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
12.2.6 a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
12.2.7 any event occurs, or proceeding is taken in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.1 to 12.2.6 above (inclusive);
12.2.8 you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;
12.2.9 (being an individual) you die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing your own affairs or becomes a patient under any mental health legislation.
12.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
13.1 In the event that any clause or part thereof shall be held unlawful, unenforceable or invalid, such clause or part thereof shall be severed from the remaining clauses or parts thereof which shall be valid and enforceable to the fullest extent permitted by law.
13.2 No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any rights or of any breach of contractual terms will be deemed to be a waiver of any other rights or of any later breach.
13.3 You shall not be entitled to assign any Contract or any part of it to any person, firm or supplier without our prior consent.
13.4 The parties do not intend that any term of any Contract should be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person other than you and us.
13.5 These Conditions, together with any express terms agreed in writing in respect of any Contract, constitute the entire Contract between the parties for the provision of Products and/or Services. Each party acknowledges that in entering into a Contract it places no reliance on any representation, warranty or other statement relating to the subject matter of that Contract save for those contained in these Terms and in any express terms agreed in writing.
13.6 Our correspondence address is Innovation Village, GE Healthcare, Longwood Drive, Cardiff, CF14 7YT, UK. If you have any comments or complaints about the Products or Services provided, letters or other communications should be given in writing to the address set out above or by email to email@example.com.
13.7 The construction, validity and performance of the Contract shall be governed by the laws of England and Wales and each party submits to the exclusive jurisdiction of the English and Welsh courts.