“The Company” means Panel Systems Limited and “the Customer” means the person, firm or company to whom a quotation is addressed or whose order is accepted by the Company and “the goods” means the goods the subject of such quotation or order.
All prices quoted by the Company are based upon these Conditions of Sale and reflect the limitations upon the Company’s liability which they contain. Should any customer wish to contract with the Company otherwise than on the terms of such Conditions of Sale special arrangements can be made and a revised price quoted by the Company.
In the absence of any such special arrangement (which shall not bind the Company unless made in writing and signed on the Company’s behalf by a Director) all quotations given and all contracts made by the Company and any additions or amendments thereto shall be subject to these Conditions of Sale which superseded and shall be taken to override any terms or conditions proposed or stipulated by the Customer.
No agent or salesman of the Company has authority to give any guarantee or warranty on behalf of the Company or to transact business other than on the (un-amended) terms of these Conditions of Sale.
Limits of Contract
No binding contract is created until an order is accepted by the Company and all prior correspondence or oral communications are to be regarded as superseded and not forming part of the contract. The contract shall be deemed to be made at the Company’s registered office. Prices quoted are subject to revision for error and omissions upon written notice given by either party to the other within 2 months of the date of delivery.
All drawings, descriptive matter, price lists or advertisements, whether or not supplied with this quotation or tender are approximate only and intended merely to give a general idea of the goods described therein and shall not form part of the contract. The Company offers its designs and (where appropriate) displays drawings and measurements for the Customer’s approval. The Company undertakes no responsibility for sites or foundations or the fitting of the goods within the dimensions thereof, or for any framework or support, or for compliance with any local bye-laws or statutory regulations, or for the fulfillment of any special requirements which the Customer may be bound to observe or fulfill.
The implied undertakings as to title etc. set out in Section 12 of the Sale of Goods Act 1979 shall be express terms of the contract between the Company and the Customer.
Unless a quotation or tender has been submitted the price of the goods shall be the price ruling at the date of dispatch notwithstanding any price specified in any order or order acceptance.
If a quotation or tender has been submitted by the Company it will accept orders which are received within the time limited specified therein at the price stated in that quotation or tender.
The price of the goods shall be subject to the addition of Value Added and other taxes and the cost of any special packing required by the Customer.
Any increase in costs or expenses arising from any act or omission or any special requirements of the Customer or any modifications made at the Customer’s request may, at the Company’s option, be charged to the customer.
The Customer shall pay the Company’s invoices without any deduction or set-off.
Variations to Specifications
The Company reserves the right to substitute other components or materials of equivalent strength and quality when the components or materials specified are not readily available
Any time or date for the dispatch or delivery of goods or for the completion of work whether specified in the Company’s quotation or otherwise given by the Company shall be taken as an estimate made by the Company in good faith but shall not be binding upon the Company either as a term of the contract or otherwise. In no circumstances shall the Company be liable for any loss or damage sustained by the Customer in consequence of failure to deliver within such time or by such date or in consequence of any other delay in delivery however caused.
Unless otherwise agreed in writing delivery shall be made at the premises specified by the Customer in the order. Subject to Condition 7(5) the risk in the goods shall pass to the Customer upon delivery which shall be deemed to have taken place upon arrival of the delivery vehicle at such premises and immediately prior to unloading.
The unloading of the goods shall be the responsibility of the Customer. The Customer shall at the Customer’s own expense provide such assistance labour and lifting tackle as may be required for the unloading of the goods and shall indemnify the Company against all claims and costs arising from or in connection with the use of the same.
The Company may deliver the goods in instalments and invoice the Customer as if each instalment comprised a separate contract upon the terms of these Conditions of Sale.
If the Customer fails to unload the goods from the vehicle sent to the premises specified by the Customer in the order within two hours of arrival or if delivery of the goods is otherwise delayed through any act or omission of the Customer, the Company shall be entitled to recover any costs or expenses sustained thereby. The company may in any event put the goods into storage at the Customer’s risk and expense.
Transit & Delivery Defects
The Company shall not in any event be liable for any loss of or damage to the goods whilst in transit unless written notice thereof is given to the Company by the Customer within 48 hours of the date of delivery. Provided that if the Customer proves (i) that it was not reasonably possible for him to give such notice to the Company within the appropriate period and (ii) that notice was given within a reasonable time the Company shall not be entitled to rely on the time limit stipulated by this Condition.
The Company shall not in any event be liable for any loss or damage to the goods where the goods are transported by an outside freight carrier unless the Customer has complied in all respects with the freight carrier’s conditions of carriage for notifying claims for loss or damage in transit.
Any liability which the Company may incur for loss or damage to the goods whilst in transit shall (i) be limited to the repair or replacement or a discount in price of such goods at the option of the Company and (ii) shall in no case exceed the invoice value of the goods. In no circumstances shall the Company be liable for any indirect or consequential loss however caused.
Subject to clause 9(2), and unless otherwise agreed in writing, all accounts shall be paid net at the Company’s offices at 3-9 Welland Close, Parkwood Industrial Estate, Rutland Road, Sheffield S3 9QY or at such other address from time to time notified to the Customer. Cheques and money orders shall be made payable to or to the order of the Company. Only the Company’s official receipt will be treated as valid.
Payment shall either be made in full prior to despatch of the Goods or the Goods shall be accepted C.O.D. unless the Customer has a credit account with the Company. If the Customer has a credit account with the Company, payment shall be made on the date on which the Company issues its invoice (the “Invoice Date”). In the event that the invoice is not paid by the Customer by the last business day of the month following the month in which the invoice date occurs then the Company shall be entitled to charge interest on late payments from the Invoice Date at a rate equivalent to the rate prevailing at the Invoice Date as prescribed by the Secretary of State pursuant to section 6 of The Late Payment of Commercial Debts (Interest) Act 1998.
If the Customer has a credit account with the Company, the credit limit as determined from time to time by the Company shall not be exceeded without the written consent of the Company’s authorised representative.
Risk & Passing of Property
The risk in the goods shall pass to the Customer on delivery. At that moment, the Customer shall become responsible for the care and protection of the goods and shall take out at its own expense adequate and comprehensive all risks cover on the goods (with a note of the Company’s interest endorsed therein until the Company has received payment of the price in full).
Notwithstanding delivery and the passing of risk in the goods, title in the goods (including full legal and beneficial ownership) shall not pass to the Customer until the Company has received (in cash or cleared funds) payment in full for all goods supplied by the Company to the Customer under all contracts between them. Payment of the full price for the goods shall include the amount of any interest or other sums payable under contracts between the Company and the Customer.
Until such time as the property in the goods passes to the Customer, the Customer shall hold the goods as the Company’s fiduciary agent and bailee, and shall keep the goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property. Until that time the Customer shall be entitled to resell or use the goods in the ordinary course of its business, but shall account to the Company for the proceeds of the sale or otherwise of the goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
Until such time as the property in the goods passes to the Customer (and provided the goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Customer to deliver up the goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises or vehicles of the Customer or any third party where the goods are stored and repossess the goods.
The Customer shall not be entitled to pledge or in any way charge by way of security for an indebtedness any of the goods which remain the property of the Company.
Suspension or Cancellation of Deliveries
The Company shall have the right immediately to terminate, or suspend any further deliveries under, the contract with the Customer without any liability to the Customer, and if the goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary if:
the Customer fails to make any payment when due or breaches any provision of the contract;
the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or the Customer ceases, or threatens to cease, to carry on business; or the Company reasonably apprehends that any of these events is about to occur in relation to the Customer.
The right of termination given by Clause 11.1 shall be without prejudice to any other right or remedy of either party in respect of any breach committed under the terms of this Agreement.
No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
The Company undertakes to repair or replace, at the option of the Company, any goods which are shown to be defective in materials or workmanship within twelve months of delivery. Provided that the Company shall be under no liability under the said guarantee if (a) the Customer has not paid in full for the goods or (b) the Customer has executed or attempted to execute repairs or alterations to the goods which are not authorised by the Company or has failed in any other respect to adhere strictly to the terms hereof or (c) the Company has not been notified of any defect within one month of the defect becoming apparent.
Cancellation or Variation of Order
No order, which has been accepted by the Company, may be varied or cancelled by the Customer except with the agreement in writing of the Company and on such terms that the Company shall in its sole discretion determine. Without detracting from the generality of this clause, the Customer shall specifically be taken to have indemnified the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of such variation or cancellation.
Exclusion of Liability
The Company’s guarantee is provided by the Company and accepted by the Customer in substitution for all express or implied representations conditions and warranties statutory or otherwise as to (a) the state quality fitness for purpose or performance of the goods and (b) the standard of the Company’s workmanship and the state quality fitness or performance of any materials used in connection therewith and all such representations conditions and warranties are hereby expressly excluded.
Except for any liability which it may incur for death or personal injury resulting from negligence the Company shall not be liable in any manner whatsoever whether in contract, in tort, in misrepresentation or otherwise for any consequential or other loss damage or injury however caused which may arise out of or in connection with the supply of goods to or the execution of any work for the Customer (including goods supplied and work executed under the said guarantee).
Where any of the goods have been specially manufactured, processed, altered or adapted to the special order or requirements of the Customer the Company does not warrant that they are fit for any particular purpose.
In the case of goods not of the Company’s manufacture the Customer shall only be entitled to the benefit of any guarantee or warranty issued by the relevant manufacturer to purchasers generally and the Company’s liability shall not exceed the amount recovered from such manufacturer.
The Company shall have a general lien in respect of all sums due from the Customer upon all goods to be supplied to such Customer or upon which work has been done on the Customer’s behalf and, upon 14 days written notice to the Customer, may sell such goods and apply the proceeds towards the satisfaction of the sums due to the Company.
The Customer shall fully and effectively indemnify the Company against the total expense to the Company arising out of the Customer’s breach or breaches of these conditions of sale. Such expense shall include (without limitation) (1) all expenses incurred by the Company in sourcing and building the goods (2) all court fees (3) all amounts payable to the Company’s professional advisers (payable on an indemnity basis) in pursuing claims against the Customer for breach or breaches of these conditions of sale and for enforcing any judgement/s and/or order/s (4) all amounts payable to the Company’s insurers and/or debt recovery agents, in each case including anticipated sums payable by the Company only after payment of any sums from the Customer.
If the performance of the contract by the Company shall be delayed by any circumstances or conditions beyond the control of the Company the Company shall have the right at its option (a) to suspend further performance of the contract until such time as the cause of the delay shall no longer be present or (b) to be discharged from further performance of and liability under the contract and if the Company exercises such right the Customer shall thereupon pay the contract price less a reasonable allowance for what has not been performed by the Company.
If any condition herein shall be deemed void for any reason whatsoever, but would be valid if part of the wording thereof were deleted any such condition shall apply with such modifications as may be necessary to make it valid and effective.
“Deals as Consumer”
Nothing in these Conditions shall affect the statutory rights of a customer who in relation to the Company “deals as consumer” as defined in Section 12 of the Unfair Contract Terms Act 1977 or any amendment or modification thereof.
These conditions and the Company’s acceptance of order subject to these conditions constitute the entire agreement between the Company and the Customer concerning the supply of the goods and replace and supersede any prior arrangement, understanding, warranty or representation (other than any fraudulent misrepresentation).
No delay or failure by the Company in enforcing any provision of the Contract shall constitute a waiver of that provision or any other provision. No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. No waiver by the Company shall be effective unless in writing.
This contract shall be construed in accordance with English Law and shall be subject to the non-exclusive jurisdiction of the English Courts.