a) In these conditions
i) ‘The Company’ shall mean Action Pumps Limited (registered in England Wales with company registration number 07761776).
ii) ‘Conditions’ shall mean the terms and conditions as set out in this document.
iii) ‘Customer’ shall mean the person or firm who purchases Goods from the Company
iv) ‘Goods’ shall mean the goods or any part of them as set out in the Quotation
v) ‘Quotation’ shall mean the Company’s quotation to supply the Goods.
b) All quotations are made and orders are accepted and all Goods are supplied to the Customer subject to these Conditions, and no person in the employment or acting otherwise as agent of the Company or purporting to do so has authority to accept orders or supply Goods on any other conditions or to vary theses terms whatsoever unless otherwise agreed in writing. These Conditions apply to the exclusion of any other terms that the Customer seeks to impose and previous dealings between the Company and any Customer shall not vary or replace these terms or be deemed in any circumstances whatsoever to do so. Acceptance of Goods from the Company shall be conclusive evidence before any Court or Arbitrator that these Conditions apply.
c) Unless otherwise stated Quotations shall be available for acceptance for a maximum period of thirty days from the date thereof, and may be withdrawn by the Company at any time. The placing of an Order for the Goods quoted and/or the acceptance of such Order shall be deemed to be acceptance of these Conditions notwithstanding any other conditions, which may be set out in or referred to in any invitation to quote or any order.
d) These Conditions constitute the entire agreement between the parties and supersede any earlier statements, representations, warranties or conditions appearing in any literature of the Company or elsewhere.
e) Any samples of, advertising, brochures or catalogues produced by the Company are illustrative only and do not form part of these Conditions.
a) The price for the Goods shall be the price set out in the Quotation to the Customer provided that the quoted price of the Goods may be varied by additions upwards by the Company in accordance with market conditions at the date of actual supply and the Customer shall pay such additions in addition to the quoted price. Without prejudice to the generality of the foregoing market conditions shall include any increase in the costs of labour and/or materials operation and/or transport.
b) All prices are exclusive of Value Added Tax and unless otherwise stated are exclusive of any tax duty tariff delivery and packing charges arising in the United Kingdom or elsewhere;
c) Unless otherwise agreed all prices quoted and/or invoiced will be in Pounds Sterling and where an alternative currency is agreed the Company reserves the right to apply an exchange control fluctuation charge appropriate to the rate of exchange ruling at the date of payment by the Customer.
d) The Company may invoice the Customer for the Goods on or at any time after the completion of delivery.
In the event variation or suspension of work in relation the Goods due to your instructions or lack of instructions the price for the Goods shall be adjusted accordingly.
a) Time for delivery is given as accurately as possible but it is not guaranteed and is not of the essence. The Customer shall have no right to damages or to cancel its order for the Goods for failure to meet any delivery time stated.
b) The date of delivery shall in every case be dependent upon the receipt of final instructions or approvals of the Goods being obtained from the Customer.
c) The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery but shall be under no obligation to do so. Where postponement is agreed by the Company in writing the Customer shall pay all costs and expenses including a reasonable charge for storage occasioned thereby.
d) The Company shall deliver the Goods to the location set out in the Quotation or such other location as the parties may agree ‘Delivery Location’ at any time after the Company notifies the Customer that the Goods are ready.
e) Delivery of the Goods shall be completed on the Goods arrival at the Delivery Location.
5. TITLE OF GOODS
a) The risk in the Goods shall pass to the Customer on completion of delivery.
b) The title and property in the Goods shall not pass to the Customer until payment for the Goods has been made, in full in cash or cleared funds. The Company’s property in the Goods shall not be extinguished merely by the incorporation of the Goods into other items, whether during manufacture or any other process and until title to the Goods has passed to the Customer the Customer shall
i) Not remove or deface or obscure any identifying mark or packaging on or relating to the Goods
ii) Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery
iii) Notify the Company if they become subject to any of the events listed in clause (f) below and
iv) Give the Company such information relating to the Goods as the Company may request from time to time.
c) If the Customer does incorporate the Company’s Goods into other Goods the Customer shall in the ordinary course of its business identify and account to the Company, and the Company shall be entitled to trace the proceeds of sale or to trace the Goods into such items.
d) In the event of non-payment by the Customer by the due date, or any event referred to in (f) below, the Company shall be entitled in addition to other rights to require the Customer to deliver up all Goods in its possession and to enter any premises where the Goods may be and recover possession of them.
e) Until the date of payment the Customer is required to store the Goods in such a way that they are clearly the property of the Company.
f) The events referred to above are: –
i). The Customer suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits it inability to pay its debts or being a company or partnership is unable to pay its debts within the meaning of s.123 of the Insolvency Act 1986.
ii). The Customer commences negotiations or 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 (otherwise than for amalgamation or reconstruction);
iii). An encumbrancer or creditor takes possession, or receiver is appointed, of any of the property or assets of the Customer;
iv). A person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
v). The Customer ceases or threatens to cease, to carry on business;
vi). The Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under these Conditions has been placed in jeopardy;
vii). The Company reasonably apprehends that any of the events referred to above is about to occur and notifies the Customer accordingly.
g) In addition to any right of lien to which the Company may by law be entitled, the Company shall (in event of the Customer’s insolvency) be entitled to a general lien on all Goods of the Company in possession of the Customer (although such Goods or some of them may have been paid for) the unpaid price of any other Goods sold and delivered to the Customer by the Company under the same or any other contract.
h) If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause f) above then without limiting any other right or remedy the Company may have the Customer’s right to resell the Goods or use them in the ordinary course of its business shall cease immediately.
6. DAMAGE OR LOSS
a) Where shortage or loss in transit occurs to the Goods before delivery thereof to the Customer in accordance with the provisions of the Conditions the Company undertakes to repair or replace such Goods free of charge PROVIDED ALWAYS that:-
i). in the event of carriage effected by Company, the Customer shall have given verbal or written notice to the Company within 48 hours of the receipt of damaged Goods, or in the case of non-delivery the receipt of the Company’s advice note/invoice. any such claim to be confirmed in writing within seven days.
ii). in the event of carriage effected by a third party, written notification of such loss or damage is given within sufficient time to enable compliance with the Carrier’s conditions of carriage as affecting loss or damage in transit.
iii). the Customer shall have returned to the Company’s works any such damaged or defective Goods within seven days of the receipt thereof
b) In the event that the Company is required to replace Goods within the terms of these Conditions any specified time for delivery shall be extended for the purpose of such repair or replacement for such periods as the Company shall reasonably require.
c) Save as expressly provided in this condition the Company shall not have any liability whatsoever for or in connection with any damage to or loss of the Goods.
d) The Supplier may deliver the Goods by instalments which shall be invoiced and paid for separately. Each instalment shall constitute a separate Order. Any delay in deliver or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7. CANCELLATION OF ORDER
Cancellation will only be agreed by the Company on condition that all costs and expenses including restocking charges incurred by the Company up to the time of cancellation, and all loss of profits and other loss or damage resulting to the Company by reason of such cancellation will be reimbursed by the Customer to the Company forthwith.
8. TERMS OF PAYMENT
a) Unless alternative payment terms are specifically stated in the Quotation the full price for the Goods shall be payable in cleared funds and without set-off not later than thirty days from the date of Invoice. Payment shall be made to the bank account nominated in writing by the Company. Time for payment shall be of the essence.
No disputes arising under the Contract nor delays beyond the control of the Company shall interfere with prompt payment by the Customer.
c) In the event of default in payment by the Customer in accordance with agreed terms the Company shall be entitled without prejudice to any other right or remedy to suspend all further deliveries without notice.
d) The time for payment of the Goods is of the essence of this Contract and the Company shall be entitled to charge interest and compensation charges as permitted under The Late Payment of Commercial Debts (Interest) Act 1998 on any invoice not paid to terms.
e) Payment on export orders shall be made in cash against bills of exchange unless special arrangements have been made in writing between the Company and the Customer.
f) Where Goods are sent F.O.B the responsibility to the Customer shall cease immediately the Goods are placed board ship and the Company shall in consequence be under no obligation to give the Customer the notice specified in Section 23 (3) of the Sale of Goods Act 1979.
a) The Company agrees to make good, by repair or at its own option by the supply of a replacement, defects which under proper use appear in the Goods within a period of six calendar months after the Goods have been delivered and arise solely from faulty design, materials or workmanship, provided always that defective parts are promptly returned by the Customer free of charge to our works unless otherwise arranged, PROVIDED THAT:-
(i) The Customer has notified the Company in writing within the said period of six months specifying in detail any defects of workmanship or materials in the Goods and returned the Goods to the Company properly packed and carriage paid and;
(ii) The defect is not due in whole or in part to fair wear and tear or negligence or mis-use or failure to follow the Company’s instructions or alteration of the Goods;
(iii) The Company’s sole obligation shall be to repair or replace such Goods as are shown to be defective.
b) In respect of parts or components not of the Company’s manufacture, a guarantee will be given equivalent only to any guarantee which the Company may have received from the Supplier of such parts of components in respect thereof, but not so far as to impose on the Company in respect of such parts or components a liability greater than that imposed on the Company by the proceeding paragraph of this Clause.
c) In such cases the Company’s liability shall be limited to such sum as the Company is able to enforce against the Manufacturer of the Goods.
d) Save as in this Clause herein before expressed and except in respect of death or personal injury caused by the Company’s negligence the Company shall not be under any liability in respect of defects in Goods supplied to the Customer or for damage or loss resulting from such defects, and its liability under this Clause shall be in lieu of any warranty or conditions implied by law as to the quality or fitness for any particular purpose of such Goods.
e) Without prejudice to the generality of the foregoing nothing herein contained shall operate to exclude or restrict liability for breach of any obligation arising from Sections 13, 14 & 15 of the Sale of Goods Act 1979 as amended by the Sale of Goods and Services Act 1982 against a Customer if he is dealing as a consumer as defined by Section 12 of the Unfair Contract Terms Act 1977 or under the Consumer Protection Act 1987.
f) The Company’s liability hereunder shall cease if:-
i). The Customer shall not have paid in full all invoices for Goods by the Company in accordance with these conditions;
ii). The customer permits persons other than the Company or those approved or authorised by the Company to effect replacement of parts, maintenance, adjustments or repairs to the Goods
iii). The Customer has not properly maintained or used the Goods in accordance with instructions, pamphlets or directions given or issued by the Company from time to time:
iv). The Customer uses any spare parts or replacements not manufactured by or on behalf of the Company and supplied by it or fails to follow the Company’s instructions for the use of same.
10. LIABILITY FOR ACCIDENTS AND DAMAGE (APPLICABLE WHENEVER THE COMPANY PROVIDES SERVICES)
Notwithstanding the provisions of Clause 9, the Company will indemnify the Customer against direct damage or injury to the Customers property or person or that of others occurring whilst representatives of the Company are working on site to the extent caused by the negligence of its representatives, sub-contractors or agents, but not otherwise, by making good such damage to property or compensating personal injury PROVIDED THAT:-
a) The total liability for damages to the Customers property shall not exceed £10,000.00 or the contract price, whichever sum is the greater; the Company shall not be liable for any loss of profit or to contracts or save as aforesaid, for any loss, damage or injury of any kind incurred as a result of the Company working on site.
b) Save as provided in Clause 9, the Company shall not be liable for any damage or injury occurring after its completion of work on site.
c) Nothing in these Conditions excludes or limits the liability of the Company for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability.
11. COPYRIGHT AND CONFIDENTIAL INFORMATION
a) The property and copyright in all documents, drawings plans, photographs, illustrations and other printed matter given to the Customer by the Company will remain with the Company and the Customer will not communicate any part of them to any third party without the Company’s written consent;
b) The Customer will indemnify the Company against all actions and all costs whatsoever brought or made against the Company as a result of work done at the Customer’s request in accordance with designs and specifications furnished by the Customer and which result in the infringement of any third party’s letters, patent, copyright, registered design or trade mark.
If the Customer shall make default in or commit a breach of these Conditions or of any other of his obligations to the Company, or if a Distress or Execution shall be levied upon the Customer’s property or assets or if it shall make or offer to make any arrangement or composition with creditors, or commit any act of bankruptcy or in any Petition or Receiving Order in bankruptcy shall be presented or made against him, or if the Customer is a Limited Company any resolution or petition to wind-up the Customer’s business (other than for the purpose of amalgamation) shall be passed or, presented if a Receiver of such company’s undertaking, property or assets or any part thereof shall be appointed or the Customer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VII of the Insolvency Act 1986 or the Customer ceases or threatens to cease to trade or the Company apprehends any of the above are about to occur then the Company shall have the right forthwith to determine any contract with the Customer then subsisting and upon written notice of such determination being posted to the Customer’s last known address any subsisting contracts with the Customer shall be deemed to have been determined without prejudice to any claim or right the Company may otherwise make or exercise.
13. FORCE MAJEURE
Should the Delivery of the Goods be delayed by reason of:-
a) War, riot, epidemic, flood, weather, accident, fire government restrictions, strike, lockout, go-slow, shortage of labour, damage or breakdown of plant, shortage or delay of transport or;
b) Without prejudice to the generality of the foregoing, any other circumstances or occurrence beyond the reasonable control of the Company, the Company shall be at liberty to suspend deliveries or to cancel the unfulfilled part of the Delivery, in whole or in part.
14. LEGAL CONSTRUCTION
These conditions on each and every contract made with the Company pursuant thereto shall be governed in all respects by and in accordance with the Laws of England and the Customer hereby submits to the exclusive jurisdiction of the English Courts.