Terms & Conditions
In these Terms & Conditions, the following expressions shall have the following meanings:
“Company” means Airmatic Limited registered in England and Wales with company number 03593000 whose registered office at Daisyfield Industrial Estate, Wellington Street, Bury, Lancashire BL8 2BD, VAT registration number 719445418.
“Contract” means the agreement between the Company and the Customer which shall comprise these Terms & Conditions, any quotation or tender provided by the Company and the Customer’s written order.
“Customer” means the person, firm, partnership, or company to whom the Company is supplying the Goods / services.
“Goods/Services” means the goods and/or services to be supplied to the Customer in accordance with the Contract.
2.1 The Company shall only accept orders from Customers which are subject to these Terms & Conditions. These Terms & Conditions shall apply to the Contract to the exclusion of all other terms and conditions. Where a Customer’s order contains the Customer’s own terms and conditions, the Customer’s own terms and conditions shall not apply and these Terms & Conditions shall prevail, unless otherwise agreed in writing. No servant or agent of the Company, other than a director of the Company, has authority to bind the Company to any departure from these Terms & Conditions.
2.2 No variation to the Contract shall be effective unless agreed in writing between the parties.
3. QUOTATIONS AND ORDERS
3.1 Quotations and tenders provided by the Company are valid for acceptance for a period of 60 days from the date on which they are made, unless otherwise stated in the quotation or tender. All quotations and tenders are subject to these Terms & Conditions.
3.2 Customers shall place orders for Goods/Services in writing and provide sufficient information within the order to enable the Company to proceed forthwith with fulfilling the order.
4.1 All illustrations, preliminary drawings, specifications and particulars of weights and measures prepared or provided by the Company are approximate only and are for illustrative purposes only and do not form part of the Contract or have any contractual force.
4.2 All illustrations, drawings, specifications and particulars shall remain the Company’s property and may not be copied or reproduced without the Company’s permission.
4.3 To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company ‘s use of the specification. This clause 4.3 shall survive termination of the Contract.
4.4 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
5.1 The price for the Goods/Services is based on the rates of labour, working hours and conditions, cost of materials, transport, insurance and overhead charges which are applicable at the date of the Company’s quotation.
5.2 Unless expressly agreed by the Company, the price for the Goods/Services is exclusive of tax and duties. The Customer shall pay any tax and duties chargeable on the Goods/Services.
5.3 The Company reserves the right to charge extra for packing material. If the packing material is of a returnable nature then full credit will be given if returned in good condition with carriage paid to the Company within 30 days of the date of delivery of the Goods/Services.
6.1 The Company shall issue an invoice or invoices to the Customer for the price of the Goods/Services.
6.2 The company reserves to right to issue part invoices at the end of a calendar month for incomplete works
6.3 Payment shall be made by the Customer, without set-off or deduction, within 30 days from the date of the Company’s invoice.
6.4 The Company shall be entitled to recover from the Customer any costs (including, without limitation, legal costs and expenses, the Company’s administrative costs and Court fees) which the Company reasonably incurs in pursuing any payment which is not made on time and in accordance with the terms of this clause 6.
6.5 The Company reserves the right to suspend deliveries and/or supply of the Goods/Services, whether such Goods/Services are provided pursuant to the Contract or any other contract between the parties, if the Customer fails to pay any sum due to the Company in accordance with this clause 6. Such suspension shall be without prejudice to the right of the Company to charge pro rata for any Goods/Services delivered or supplied up to the date of suspension.
6.6 The Company shall have a general lien over any property of the Customer which is in the Company’s possession in respect of any sums due under this clause 6.
7. PROPERTY AND RISK
7.1 The Goods shall remain the Company’s property until payment of the price of the Goods has been made in full, notwithstanding that the Goods may have been delivered to or affixed to the property of the Customer or any third party.
7.2 Whilst the Company remains the owner of the Goods and the Goods are not affixed to the property of the Customer or any third party, the Customer shall maintain the Goods in satisfactory condition and shall not destroy or obscure any identifying mark or packaging identifying the Goods as being the property of the Company.
7.3 The Customer grants the Company an irrevocable license to enter any premises where the Goods are stored to recover them following non-payment by the Customer.
7.4 Risk of damage to or loss of the Goods shall pass to the Customer when the Goods leave the Company’s premises.
8.1 The date specified for delivery of the Goods shall mean the date for delivery ex-factory, notwithstanding that the place for delivery may be elsewhere. Unless otherwise agreed, the date specified for delivery shall be calculated from the date the Company receives the Customer’s order and sufficient information for the Company to commence manufacturing the Goods.
8.2 Any date specified by the Company for delivery of the Goods is an estimate only. Time for delivery of the Goods shall not be of the essence.
8.3.1 Delay in delivery or provision of the Goods/Services shall not give the Customer the right to cancel the order or recover any loss, damage or expenses which arise from such delay from the Company.
8.3.2 In particular, the Supplier shall not be liable for any delay in delivery or provision of any Goods/Services that is caused by:
(i) force majeure under clause 11; or
(ii) the Customer’s failure to provide the Supplier with adequate delivery instructions, access to premises or any other instructions that are relevant to the supply or delivery of the Goods/Services.
(i) If the Customer fails to take delivery of the Goods or to give instructions in relation to the delivery of the Goods, the Goods shall remain at the sole risk of the Customer, who shall arrange for suitable storage.
(ii) If the Customer fails to arrange storage the Company may make such arrangements for storage as in its absolute discretion it deems appropriate and may charge the Customer for such storage. The charges for such storage shall be notified from time to time to the Customer and shall be payable on demand. The Company shall have a lien over such Goods for payment of storage and any other sums due to the Company on any account.
(iii) If 14 days after the day on which the Supplier attempted to make delivery of Goods or notified the Customer that Goods were ready for collection the Customer has not taken delivery of or collected those Goods, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods, or charge the Customer for any shortfall below the price of the Goods.
8.5 If the Customer wishes to cancel the order for the Goods, the Customer shall pay to the Company such charges as are necessary to cover the losses and expenses suffered or incurred by the Company as a result of such cancellation, including all sums which the Company has paid or shall have to pay to any third party.
8.6 Notwithstanding that the place of delivery may be expressed to be other than ex-factory, in arranging for the carriage of the Goods from the Company’s premises to such other place of delivery the Company acts solely as agent for the Customer and the Goods shall be at the sole risk and expense of the Customer from the time at which the Goods are delivered by the Company to the carrier. The Company accepts no responsibility
whatsoever in respect of loss or damage or delay to the Goods while in transit. Any non-receipt of the Goods must be notified to the Company and the carrier within 14 days from the date of dispatch as a condition precedent to any claim by the Customer being recognised.
8.7 Any damage to the Goods must be notified to the Company and the carrier within 3 days of the date of delivery of the Goods as a condition precedent to any claim being recognised. Endorsing a delivery note “not examined” or other words to that or similar effect will not relieve the Customer from complying with this clause. Failure to notify the Company and the carrier in accordance with this clause shall be deemed to constitute irrevocable acceptance of the Goods/Services and that they are in accordance with the Contract.
9.1 The Company warrants that the Goods shall be of satisfactory quality. It is the Customer’s responsibility to ensure that the Goods meet any particular performance requirements or specifications pursuant to any other contract in relation to which the Customer requires the Goods. The Company does not warrant that the Goods shall be fit for any special, unusual or particular purpose unless such purpose has been specified in writing by the Customer prior to the contract and acceptance of that purpose has been incorporated into the Contract by the Company.
9.2 Figures for the performance of the Goods are based on the Company’s experience and are such as the Company expects to obtain on testing the Goods, subject to a reasonable margin of error and on the condition that any figures and information given to the Company by or on behalf of the Customer are accurate.
9.3 If the Goods fail to achieve the figures for performance agreed by the Company, the Company shall be entitled to reasonable time and opportunity to remedy the default. If the Company fails to remedy the default, the Customer may return such part of the Goods which fails to achieve the figures for performance and the Company shall repay so much of the price as is fairly attributable to the part of the Goods concerned.
10.1 Nothing in this Contract shall limit or exclude the Supplier’s liability for:
(i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(ii) fraud or fraudulent misrepresentation;
(iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(iv) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1:
(i) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(ii) the Supplier’s total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the lower of £[insurance cap to be inserted] and One Hundred per cent (100%) of the total sums paid by the Customer for Goods/Services under this Contract].
10.3 Otherwise than as expressly stated in the Contract and in these Terms and Conditions, the Company shall have no liability to the Customer and the Customer shall not be able to bring any claim for loss, damage, delay or expense of any kind arising under or in connection with this Contract including (without limitation) any:
(i) direct loss;
(ii) loss of profit;
(iii) indirect loss or consequential loss..
10.4 The Company shall not in any event be liable for loss, damage, delay or expense of any kind if the Goods are altered by the Customer without the Company’s written approval or where any damage is caused to the Goods as a consequence of wear and tear, carelessness in using or handling the Goods (unless the Customer is supervised by the Company’s staff at the time), any defect in any building in which the Goods are kept, stored, used or installed, as a result of any breach of health and safety legislation or any other legal obligation of the Customer or any persons acting for, under or in trust for the Customer, or as a result of any use of the Goods otherwise than in accordance with the manufacturer’s, installer’s, or Company’s instructions or recommendations.
10.3 Subject to clause 10.4, the Company’s total liability in relation to the Contract, whether in contract, tort, breach of statutory duty or otherwise, shall be limited to the price of the Goods.
10.4 Nothing in these Terms & Conditions shall exclude or limit the liability of the Company for death or personal injury caused by the Company’s negligence or for any other matter in respect of which the law provides that liability may not be excluded or limited.
11. FORCE MAJEURE
11.1 If an event occurs which is beyond the reasonable control of the Company, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, flood or industrial disputes, the Company reserves the right to delay delivery of the Goods or reduce the volume of the Goods ordered by the Customer (without liability to the Customer). If any such event continues for longer than 1 month the Company shall be entitled to terminate the Contract without liability to the Customer by service of a written notice.
12.1 Either party shall be entitled to terminate the Contract forthwith upon written notice if:
12.1.1 the other party commits a material breach of any of the provisions of the Contract and (in case of a remediable breach) fails to remedy the same within 7 days after a receipt of written notice giving full particulars of the breach required to be remedied;
12.1.2 the other party suspends or ceases to carry on all or a substantial part of its business, becomes bankrupt or enters into compulsory or voluntary liquidation, winding up, administration, receivership or any other composition or arrangement with its creditors, or any other similar or analogous procedure in the relevant jurisdiction or threatens or purports to do any such thing; or
12.1.3 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to fulfill its obligations under the Contract has been placed in jeopardy.
12.2 Where the Customer terminates the Contract for any reason or where the Company terminates the Contract by reason of any material breach by the Customer, the Company shall be entitled to be paid for the Goods already manufactured, whether or not they have been delivered to the Customer.
13.1 No failure or delay on the part of either party to exercise any right or remedy under the Contract shall be construed or operate as a waiver, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy.
14.1 If any provision of the Contract is held by a Court or other relevant tribunal to be invalid or unenforceable it shall be severable and shall be deemed omitted from the Contract to the extent necessary to prevent such invalidity or unenforceability and the remaining provisions shall continue to have full effect.
15. ENTIRE AGREEMENT
15.1 The parties agree that the agreement constitutes the entire agreement between them, and supersedes all previous drafts, agreements, arrangements and understandings between them, whether oral or written.
15.2 Each party agrees that it will have no remedy in respect of any representation, statement, assurance or warranty that is not expressly set out in the agreement. 15.3 Each party agrees that its only remedy in respect of those representations, statements, assurances and warranties that are set out in the agreement will be for breach of contract in accordance with the terms of this agreement.
16. GOVERNING LAW
15.1 The Contract shall be governed by English law and the English Courts shall have exclusive jurisdiction in relation to Customers in England and Wales and non-exclusive jurisdiction in relation in all other cases, with regard to all matters arising under it.
16.1 Any notice to be given under the Contract may be sent by first class post or delivered by hand. Notices delivered by hand shall be deemed to be received on the working day on which they were delivered. Notices sent by first class post shall be deemed to be received on the second working day after the date of posting