Swegon Service Ltd
Conditions of Sale
1.1 In these conditions:
“Acknowledgement” the order acknowledgement form produced by the Company to accept orders following the placing of an order by the Customer;
“Company” Swegon Service Limited (No. 3443661) whose registered office is at Forest House, 12 Queensway Industrial Estate, Stem Lane, New Milton, Hampshire, BH25 5NN
“Completion Certificate” the certificate issued by the Company to the Customer confirming completion of the installation and (if relevant) commissioning services;
“Conditions” these conditions of business and any special terms and conditions set out on the Quotation and/or the Acknowledgement;
“Contract” the contract for the supply of Equipment and/or Services;
“Customer” the person, firm or company named in the Acknowledgement or who places an order for the Equipment and/or Services which is accepted by the Company;
“Delivery Address” the address for delivery specified in the Acknowledgement;
“Equipment” New Goods and/or Spare Parts or any one or more of them as the context requires (including any instalment thereof) set out in the Quotation (as varied by the Acknowledgement);
“Intellectual Property” patents, trade marks, registered and unregistered designs, copyright and all other intellectual property protection wherever in the world enforceable;
“New Goods” new and unused goods of all kinds supplied by the Company including materials used by the Company in installing any Equipment;
“Operating Conditions” the conditions in which the Equipment will operate as set out in the Quotation (as varied by the Acknowledgement);
“Performance Requirements” the Customer’s requirements relating to the performance of the Equipment as set out in the Quotation (as varied by the Acknowledgement);
“Quotation” the estimate or quotation for the supply of Equipment and/or Services produced by the Company and described as such;
“Service Report” the report prepared after the provision of the Services;
“Services” the services set out in the Quotation (as varied by the Acknowledgement) or where neither document is produced the services agreed to be provided by the Company including (but not limited to) installing, commissioning, maintenance and repair services;
“Spare Parts” new and unused items supplied and specified as such by the Company.
1.2 Any reference in the Conditions to any provision of a statute shall be construed as a reference to that provision as amended or re-enacted or extended at the relevant time.
1.3 The headings in the Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Sale
2.1 The Company shall supply and the Customer shall purchase the Equipment and/or the Services, subject to the Conditions which shall govern the Contract to the exclusion of any other terms and conditions. No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Company.
2.2 In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of any representations made by the Company’s employees or agents which are not confirmed in writing.
2.3 The Company shall not be liable for any advice or recommendation given by the Company or its employees or sub-contractors or agents to the Customer or its employees or agents as to the storage, application or use of the Equipment which is not confirmed in writing by the Company.
2.4 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, Acknowledgement, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3. Orders, Specifications, Health & Safety and Approvals
3.1 The Customer shall be responsible to the Company for ensuring the accuracy of the Quotation (as varied by the Acknowledgement) and for giving the Company all necessary information relating to the Equipment, its Operating Conditions and Performance Requirements and/or the Services within a sufficient time to enable the Company to perform the Contract.
3.2 The quantity, quality, description of and any specification for the Equipment and/or Services shall be those set out in or attached to the Quotation (as varied by the Acknowledgement) or, if there is no Quotation, in the Company’s delivery advice note and/or the Service Report.
3.3 The Company reserves the right to make any changes to the Equipment which are required to conform with any applicable safety or other statutory requirements or which do not materially affect its quality or performance or, where the Equipment is being manufactured by a third party, any changes made to the Equipment by that third party.
3.4 Special tests and/or witness tests required by the Customer are charged as extra.
3.5 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 whether directly or indirectly as a result of cancellation. The Company shall be entitled to set of some or all of any sums paid by the Customer against such loss, costs, damages, charges and expenses incurred or suffered by the Company.
3.6 The Customer shall take all reasonable precautions to ensure the safety of the Company’s employees and sub-contractors and agents whilst such persons are carrying out the Services and/or delivering Equipment to the Customer’s premises and shall notify the Company of any health and safety hazards or issues arising in relation to the same.
3.7 The Customer shall obtain and at all times maintain all licenses, approvals and consents necessary to enable the Company to supply the Equipment and/or the Service.
4.1 The price of the Equipment and/or Services shall be the price stated in the Quotation (as varied by the Acknowledgement) or, where no price has been quoted (or a quoted price is no longer valid), the price shall be based upon the Company’s current prices at the date of the Acknowledgement. All prices quoted are valid for 30 days only, or until earlier acceptance by the Customer, after which time they may be altered by the Company without giving notice to the Customer.
4.2 The Company reserves the right by giving notice to the Customer at any time before delivery to increase the price of the Equipment and/or Services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company, any change in delivery dates, quantities, description, Operating Conditions or Performance Requirements for the Equipment and/or Services which is requested by the Customer, or any change requested by the Customer which leads to any change to the specification for the Equipment or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
4.3 All prices for the Equipment are given on an ex works basis, and where the Company agrees to deliver or procure delivery of the Equipment otherwise than at the Company’s premises, the Customer shall be liable to pay the Company’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, other taxes and export duties and the Customer is additionally liable to pay these to the Company
5. Terms of Payment
5.1 The Company shall be entitled to invoice the Customer for the price of the Equipment and/or Services at any time on or after the date of the Acknowledgement.
5.2 The time of payment of the price including all appropriate taxes shall be of the essence of the Contract.
5.3 Notwithstanding that delivery may not have taken place and the property in the Equipment has not passed to the Customer the Customer shall pay the price of the Equipment and/or Services in the following manner:
5.3.1 Contracts for New Goods only: 30% with the Customers’ order; 70% within 30 days of delivery;
5.3.2 Contracts for New Goods where the Company is also providing installation and/or commissioning Services: 30% with the Customer’s order; 30% on notification by the Company that it is ready to deliver the New Goods; 30% on the sooner of notification by the Company that it is ready to carry out the commissioning of the New Goods or 30 days from delivery of the New Goods; 10% on the sooner of 30 days from the issue of the Completion Certificate or 60 days from delivery of the New Goods;
5.3.3 Contracts for Services only or Spare Parts: 100% within 30 days of the date of completion of the Services or the date of delivery of the Spare Parts or, if sooner, the date set out in the Acknowledgement.
5.4 If the Customer fails to make any payment on the due date then (without prejudice to any other right or remedy available to the Company), the Company shall be entitled to:
5.4.1 cancel the Contract or suspend any further deliveries to the Customer;
5.4.2 appropriate any payment made by the Customer to such of the Equipment and/or the Services (or goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and
5.4.3 charge the Customer daily interest (both before and after any judgement) on the amount unpaid, at the rate of 3 per cent per annum above Barclays Bank Plc base rate from time to time, until payment in full is made.
5.4.4 demand immediate payment of the whole price of the Equipment and/or Services notwithstanding that the Equipment may not have been delivered and/or the Services provided.
6.1 Delivery shall be made:
6.1.1 by the Company delivering or arranging delivery of the Equipment to the Delivery Address; or
6.1.2 by the Customer collecting the Equipment (at a time and day acceptable to the Company) from the Company’s premises (or from any other premises that the Company shall notify to the Customer) at any time after the Company has notified the Customer that the Equipment is ready for collection.
6.2 Delivery shall be deemed to have taken place on the third day after the date the Company notifies the Customer that the Equipment is ready for collection or on the Company tendering delivery if earlier than actual delivery.
6.3 Where the Company delivers or arranges delivery of the Equipment to the Delivery Address (but is not providing installation services) delivery shall not include off-loading or positioning of the Equipment.
6.4 Any dates quoted for delivery of the Equipment and/or performance of the Services are approximate only and the Company shall not be liable for any delay in delivery of the Equipment and/or performance of the Services howsoever caused. The Equipment may be delivered and/or the Services performed by the Company before the quoted delivery date upon giving reasonable notice to the Customer.
6.5 Where the Equipment is to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.6 If the Customer fails to take delivery of the Equipment or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
6.6.1 store the Equipment until actual delivery and charge the Customer for the reasonable costs (including insurance), of storage; or
6.6.2 sell the Equipment at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price payable by the Customer under the Contract or charge the Customer for any shortfall below the price payable by the Customer under the Contract.
7. Risk and Property
7.1 Risk of damage to or loss of the Equipment shall pass to the Customer
7.1.1 in the case of Equipment to be collected by the Customer, at the time when the Company notifies the Customer that the Equipment is available for collection; or
7.1.2 in the case of Equipment to be delivered to the Delivery Address, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Equipment, the time when the Company tenders delivery of the Equipment.
7.2 Notwithstanding delivery and the passing of risk in the Equipment the property in the Equipment shall not pass to the Customer until the Company has received payment in full (i) for the price of the Equipment and/or the Services and for all other sums due from the Customer under this Contract and (ii) for all other equipment agreed to be sold and/or services to be provided by the Company to the Customer for which payment is due.
7.3 The Customer shall not be entitled to sell or otherwise dispose of any of the Equipment in relation to which property has not passed to the Customer without the Company’s prior written consent to the sale and to the price of such Equipment and shall make such sale as the Company’s agent only.
7.4 The Customer shall hold the Equipment as a fiduciary for the Company and keep the Equipment separate and identifiable as the property of the Company, not pledge or allow any lien, charge or other interest to arise over the Equipment or its documents of title until property in the Equipment passes to the Company.
7.5 The Company may recover at any time from the Customer any of the Equipment in the Customer’s possession in respect of which property has not passed and for that purpose the Company, its employees and sub-contractors and agents may enter any land or buildings upon which such Equipment is situated.
7.6 The Customer shall not pledge or in any way charge by way of security any of the Equipment which remains the property of the Company, but if the Customer does so all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
8. Warranties and Liabilities
8.1 The Customer shall notify the Company in writing of any damage, delay or partial loss of the Equipment in transit within 3 days of delivery or, in the case of non-delivery, within 7 days of the notified delivery date. The Customer shall make any claim in writing to the Company and to the Company’s carrier within 7 days of delivery or, in the case of non-delivery, within 14 days of the notified delivery date.
8.2 The Company shall not be liable in respect of any claim for damage, delay, partial loss or non delivery unless condition 8.1 has been complied with except where the Customer proves that it was not possible for it to comply with the requirements of the clause and that notice to the Company was given and the claim was made as soon as reasonably possible.
8.3 Subject to conditions 8.5 and 8.8 the Company warrants that New Goods will correspond with their specification (as set out in or attached to the Quotation as varied by the Acknowledgement) at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of delivery. In the case of New Goods which do not comply with this warranty the Company shall, subject to the provisions of conditions 8.5 and 8.8 and at its absolute discretion, either (i) repair the New Goods either at the Customer’s premises or at the Company’s premises; or (ii) replace the New Goods or the defective part.
8.4 Subject to the provisions of conditions 8.5 and 8.8 the Company warrants that Spare Parts will be fit for the purpose for which they are ordinarily supplied by the Company for a period of six months from the date of delivery. In the case of Spare Parts which do not comply with this warranty the Company shall, subject to the provisions of conditions 8.5 and 8.8 and at its absolute discretion, either (i) repair the Spare Parts at the Company’s premises; or (ii) replace the Spare Parts or the defective part provided that the Customer shall in either case be responsible for all labour costs incurred by the Company in so doing.
8.5 In the case of New Goods and or Spare Parts supplied otherwise than in the UK and which do not comply with the warranties in conditions 8.3 and 8.4 respectively the Company will supply the Customer with replacement New Goods and/or Spare Parts (as appropriate) on an ex-works basis and the Customer shall meet all costs of carriage and labour.
8.6 Where the Company replaces New Goods and/or Spare Parts or (in either case) part thereof the Customer shall at the Company’s request and cost return the defective New Goods and/or Spare Parts or part thereof to the Company or elsewhere as the Company may direct.
8.7 Subject to the provisions of clause 8.8 the Company warrants that the Services will be provided with reasonable skill and care.
8.8 The warranties given in conditions 8.1 to 8.7 are subject to the following conditions:
8.8.1 the Company shall not be liable in respect of any claim by reason of conditions 8.3 to 8.7 unless the Customer shall have notified the Company in writing of the defect within 3 days of the Customer becoming aware of such defect;
8.8.2 the Company shall not be liable in respect of claim by reason of conditions 8.3 and 8.7 unless the Customer shall have, if requested by the Company, returned the defective New Goods and/or Spare Parts to the Company for inspection and/or given access to the Company to inspect the defective New Goods and/or Spare Parts at the Customer’s premises or such other premises as they may be situated
8.8.3 the Company shall be under no liability in respect of any defect in or failure of the Equipment connected to or arising from incorrect, faulty or defective installation and/or commissioning by the Customer or a third party (other than a third party specifically appointed by the Company), fair wear and tear, wilful damage, negligence, working conditions other than the Operating Conditions, failure to follow the Company’s instructions (whether oral or in writing) misuse, alteration or repair of the Equipment without the Company’s prior written approval or in respect of loss or damage of whatever nature arising from circumstances wholly outside the Company’s control
8.8.4 the liability of the Company in respect of parts, materials or Equipment shall in all cases be limited to that equivalent to the Company’s own rights of action against the manufacturer or supplier of those parts, materials or Equipment and to the extent that the Company can enforce such rights of action.
8.9 The Company may invoice the Customer for any replacement New Goods or Spare Parts (as a condition of providing replacement New Goods or Spare Parts) where the Company is unable immediately to confirm that the original New Goods or Spare Parts are defective due to a breach of a warranty set out in these Conditions. The Customer shall pay such invoice within 30 days of its date. If the Company determines (acting reasonably) that the defect was due to a breach of a warranty set out in these Conditions (subject to the limitations on such warranty) the Company shall issue to the Customer a credit note in respect of such invoice.
8.10 Subject as expressly provided in the Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.11 The Company does not exclude liability for death or personal injury caused by its negligence.
8.12 The Customer shall indemnify the Company against all loss damages, costs and expenses incurred or suffered by the Company as a result of any claim against the Company by a third party to the extent that the Company would not be liable, whether by reason of statute or this Contract or otherwise, if such claim were successfully made by the Customer.
8.13 In any event the Company shall not be liable in any circumstances in contract, tort or otherwise and whatever the cause for any:
8.13. increased costs or expenses;
8.13.2 loss of profit, business, contracts, revenues or anticipated savings;
8.13.3 any special, indirect or consequential damage of any nature whatever; suffered by the Customer which arises out of or in connection with the supply of the Equipment, its use or resale or the provision of the Services or the Contract.
8.14 The total liability of the Company in respect of any one or more claims by the Customer shall not exceed the total price payable by the Customer under the Contract.
9. Intellectual Property
9.1 All Intellectual Property in or relating in any way to the Equipment and/or the Services shall as between the parties be the property of the Company and the Customer shall on the Company’s request deliver all drawings, designs and other documents relating to the Equipment and/or the Services to the Company and shall not permit any copies of them to be made or permit the use of them other than for the installation, commissioning or use of the Equipment.
9.2 The Customer shall indemnify the Company against all loss, damages, costs and expenses incurred or suffered by the Company in the event that the use of any specifications or designs, supplied by the Customer, in connection with the manufacture, processing, assembly or supply of the Equipment and/or the Services infringes the rights of any third party.
9.3 The Company will indemnify the Customer against any claim for infringement of any Intellectual Property rights by a third party due to the use or resale of the Equipment provided that:-
9.3.1 the Customer notifies the Company, in writing, forthwith as soon as any such claim is made;
9.3.2 the Customer fully co-operates with the Company and its advisers in relation to such claim;
9.3.3 the Customer shall not have used the Equipment for any purpose other than that for which it was supplied;
9.3.4 except pursuant to a final award the Customer shall not pay or accept any such claims or compromise any such proceedings without the consent in writing of the Company;
9.3.5 the Customer shall do nothing which will or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do).
9.3.6 the Company shall be entitled to the benefit of and the Customer shall accordingly account to the Company for all damages and costs (if any) awarded in favour of the Customer or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim.
10. Insolvency of Customer
10.1.1 the Customer (being a company) passes a resolution for winding up (other than for the purposes of a bona fide reconstruction or amalgamation) or has a winding up order made in respect of it or has a receiver, administrative receiver, manager or administrator appointed of all or any part of its undertaking or assets; or
10.1.2 the Customer (being a partnership) is dissolved or (being an individual) has a bankruptcy petition presented or dies;
10.1.3 the Customer ceases, or threatens to cease, to carry on business, or becomes unable to pay its debts or becomes insolvent (within the meaning of the Insolvency Act 1986) or makes or proposes to make an arrangement or composition with its creditors;
10.1.4 the Company reasonably apprehends that any of the events mentioned above may occur in relation to the Customer and notifies the Customer accordingly; then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries and/or performances under the Contract without any liability to the Customer, and if the Equipment has been delivered and/or the Services provided but not paid for the price shall become immediately due and payable and the Customer’s right to possession of the Equipment shall terminate immediately notwithstanding any previous agreement or arrangement to the contrary.
11. Force Majeure
11.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of Equipment and/or Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the Company’s reasonable control including, but not limited to, acts of God, 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), mechanical failures, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable material, provided that, if the event in question continues for a period in excess of 60 days either party shall be entitled to give immediate notice in writing to the other party to terminate the Contract.
12.1 Any notice required or permitted to be given by either party to the other under the Conditions shall be in writing addressed to that other party at the address specified in the Quotation or such other address as may have been notified pursuant to this Condition.
12.2 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.
12.3 Failure or delay by the Company 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.
12.4 If any provision of the Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of other provisions of the Conditions and the remainder of the provision(s) in question shall not be affected thereby.
12.5 The Company shall be entitled to assign or sub-contract part or all of its rights and/or obligations under the Contract to any other person firm or company. The Customer shall not be entitled to assign or sub-contract part or all of its rights and/or obligations under the Contract.
12.6 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.
12.5 The Contract shall be governed by the laws of England and the Parties submit to the non exclusive jurisdiction of the English courts.
Service Conditions of Sale 08/2016