When used in these conditions the following words have the meanings set out opposite them below:-
Company: Power Jacks Limited
Contract: The contract between the Company and the Customer for the supply of the Goods.
Customer: The party to whom the Goods are to be supplied under the Contract.
Goods: The goods to be provided under the Contract.
Writing: Includes letter, facsimile or electronic transmission and comparable means of communication.
All orders are accepted, Goods supplied and quotations submitted subject to the following express terms and conditions and all other conditions, warranties and representations express or implied and statutory or otherwise, except as to title and liability for negligence resulting in death or personal injury, are hereby excluded.
No variation from these terms and conditions shall apply unless agreed in Writing by the parties to the Contract.
Any acceptance by the customer of the goods shall be deemed to be an acceptance that these terms and conditions are incorporated into the Contract to the exclusion of all others.
A quotation is not an offer and may be withdrawn at any time without notice.
No quotation shall be valid for longer than 30 days from the date thereof unless expressly stated in writing by the Company at the time of submitting its quotation. The Company may at any time refuse to accept any order placed as a result of any quotation.
No order is deemed to be accepted nor any Contract made with the Company until an acknowledgement of such order or Contract in Writing has been made by the Company to the Customer and the right is reserved without prejudice to any other remedy to cancel any uncompleted order or to suspend delivery on the failure of any of the Customer’s commitments with the Company. Upon such cancellation or suspension by the Company or in the event of cancellation by the Customer the Company shall on demand be indemnified by the Customer against any loss or damage resulting there from.
Prices quoted by the Company may be subject to increase or cover any variation in the cost of materials, labour, transport, maintenance of machinery or any other cost to the Company of supplying the goods, including expenses incurred by reason of delay arising from the Customer’s instructions or lack thereof.
The Company reserves the right to invoice all Goods at the price prevailing at the date of despatch.
The price is exclusive of any applicable value added tax which the Customer shall be additionally liable to pay to the Company.
CARRIAGE AND DELIVERY
Unless otherwise specified the quotation does not cover the cost of delivery of the Goods.
Unless otherwise specified the Goods must be unloaded by the Customer immediately on arrival at the specified destination.
The Customer is responsible for any loss, damage or injury incurred by any person or to any property in the course of unloading the Goods.
The Company accepts no liability for failure to meet quoted delivery times which shall be treated as estimates only and such failure shall not entitle the Customer to cancel or terminate any order or contract.
Where the Customer defers despatch of the Goods beyond the agreed delivery date the Goods may be invoiced and payment is due 30 days thereafter.
The Goods shall be at the Customer’s risk from the time when they are set aside for loading for delivery.
The title in goods shall not pass to the Customer until full payment under the Contract and all other contracts between the Company and the Customer has been made.
The Customer acknowledges that, until full payment as above has been made, it holds the Goods as bailee for the Company and will store the Goods separately to those belonging to any other person and shall not be entitled to make any charge for such bailment.
While any payment for the Goods remains outstanding the Company may at any time require the Goods to be returned to it at the cost of the Customer or enter upon the premises of the Customer and re-take possession thereof.
The Customer may re-sell the Goods on the basis that the proceeds of the sale belong to the Company to whom the Customer shall account on demand.
The Company may maintain an action for the price of the Goods notwithstanding that the title to them has not passed to the Customer.
This condition shall not confer on the Customer any right to return the Goods or to refuse or delay payment for them.
QUANTITY AND DESCRIPTION
The Customer shall within 16 days of date of invoice notify the Company if none of the goods are received within a 14 day period from date of invoice. The Company will not be responsible for making good any non-delivery unless it is so notified. In the case of export sales (not Republic of or Northern Ireland) the respective periods are 50 & 45 days.
The Customer shall, as soon as possible after delivery, check the quantity of Goods delivered against the quantity due to be delivered under the Contract and notify the seller of any deficiencies in quantity supplied within five days of delivery. The Company will not be responsible for making good any deficiencies in quantity supplied within 5 days of delivery. The Company will not be responsible for making good any deficiencies in quantity in respect of claims not notified to it within such a 5 day period.
The Customer shall, as soon as possible after delivery, check that the goods are those specified by it and the Goods will be deemed to comply with such specification unless the Customer gives Notice of non-compliance within 5 days of delivery.
The Customer shall, as soon as possible after delivery, check that the goods have not been damaged and the Goods will be deemed to have been delivered undamaged unless the Customer gives notice of any damage within 48 hours of delivery of the Goods to the destination specified in the Contract.
If the Customer gives notice of damage to the goods it shall preserve the Goods in the state in which they were delivered for a period of 15 days during which it will allow the Company access to its’ premises for the purpose of inspecting the Goods or at the Company’s request return the damaged Goods to the Company for inspection purposes transportation charges being prepaid by the Customer.
Unless otherwise provided in the quotation Goods will be paid for in full within 30 days from the date of the invoice relating thereto and time for payment shall be of the essence of the Contract. The Customers first order is on a Proforma Invoice basis with full payment prior to manufacture starting. Credit terms for subsequent orders to be agreed in writing with Power Jacks. In the case of export sales (not Republic of or Northern Ireland) Goods will be paid for in accordance with agreed terms of credit.
In the event of late payment the Company may (without prejudice to other remedies available to it) charge interest from the date payment became due at the rate of 5 percent per annum above the base lending rate of the Clydesdale Bank PLC.
If the Customer delays or defaults in making payment due under any contract with the Company than all sums outstanding, or which become outstanding thereafter, from the Customer to the Company, shall become or, where no invoice has been submitted, be on presentation of invoice, immediately due and payable without prejudice to other remedies available to the Company.
SCOPE OF AGREEMENT
The description, illustrations and material contained in any catalogues, price lists, brochures, leaflets or other descriptive matter represent the general nature of the items described therein but neither they nor any oral statement shall form part of any order or contract or amount to any representation or Warranty.
The Company warrants that any Goods sold by it under these conditions will be free from defects caused by faulty materials or poor workmanship BUT GIVES NO WARRANTY AND MAKES NO REPRESENTATION WHETHER EXPRESS OR IMPLIED AS TO ANY OTHER MATTERS WHATSOEVER INCLUDING (WITHOUT LIMITATION) CONDITION MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.
The Company shall incur no liability under this warranty unless:-
The Company is promptly notified in writing upon discovery of any such defects by the Customer and the Customer forthwith ceases to use the defective Goods unless otherwise authorised by the Company; and
The defective item is immediately returned to the Company, transportation charges being prepaid by the Customer or the Company is, at its option, given the opportunity to remedy any defect.
The Company’s warranty as specified in heretofore is limited to a period of 12 months from the date of delivery and its liability shall be limited to replacing, repairing of issuing credit at its option for any Goods returned by the Customer within the aforesaid period.
The Company shall not be liable for consequential loss or damage by reason of any defect in (or failure to comply with any written estimate of performance of,) Goods supplied by the Company whether original or substituted.
The Customer will indemnify the Company against all third party claims made in respect of the Goods.
The Company warrants that any Goods sold by it under these conditions will be free from defects caused by faulty materials or poor workmanship but gives no warranty and makes no representation whatsoever express or implied as to any other matters including without limitation condition merchantability or fitness for any purpose.
No cancellation of orders or return of Goods supplied will be accepted by the Company without its prior written consent and no retention by the Company of Goods ordered or supplied shall be deemed to constitute an approval of cancellation or return nor prejudice any rights of the Company in respect of any order or contract relating thereto.
If the Customer breaches any of the terms and conditions of the Contract or if the Customer’s financial condition is such as is, in the opinion of the Company, to make it unlikely that it will perform its obligations hereunder or under any other contract with the Company, then the Company may re-take possession of the Goods and suspend any further deliveries of the Goods without incurring liability therefor.
The Company shall not be liable for failure to perform in whole or in part any of its obligations hereunder by reason of act of God, war, insurrection, Government regulations, embargoes, strikes or lock-outs, illness, flood, fire, tempest or any other cause beyond the control of the Company.
HEALTH AND SAFETY AT WORK
The Customer will take all steps necessary to ensure, so far as is reasonably practicable, that the Goods will, when used, be safe and not be a risk to health.
The Customer will use the Goods in accordance with the Company’s recommendations.
The Company will indemnify the Customer against any claim for infringement of any letters patent or registered design or trademark granted or used within the United Kingdom at the date of the Contract by use or sale of any Goods supplied by the Company to the Customer and against all liability incurred by the customer as a result thereof.
Provided that this indemnity:
Shall not apply to any infringement due to the Company having followed a design or instruction furnished by the Customer or to the use of such Goods in a manner or for a purpose not specified by the Company no extend to any claim in respect of goods not specified by the Company but which include or are used in combination with any goods so supplied; and
Is conditional on the Customer making no admission in respect of such alleged infringement and giving the Company immediate notice of any claim made or action threatened or brought and if so required the Customer shall at the Company’s expense join with it to defend any such action, The Company having the conduct of any such action.
The Customer warrants that any design or instructions furnished or given by it shall not be such as to cause the Company to infringe any letters patent, registered design or trade mark or other industrial property right in the execution of the Contract.
No right power or remedy herein conferred upon or reserved to the Company is exclusive of any other right power or remedy herein or by law or equity provided permitted or conferred but each shall be cumulative of every other right power or remedy given hereunder or now or hereafter existing and may be enforced concurrently therewith or from time to time as the Company may in its entire discretion think fit.
The Customer hereby waives any and all existing and future claims and set offs against any payment due hereunder and agrees to pay the amounts payable hereunder on the due date therefore regardless of any equity set off or cross claim on the part of the Customer against the Company.
Any notice required or authorised to be given hereunder may be given by email, fax or prepaid letter sent to the party to whom it is addressed at its last known place of business and shall be deemed to have been served on the day following that upon which it shall be proved to have been sent.
The Contract shall be binding upon and inure to the benefit of the successors and assigns of the entire business and goodwill of either the Company or the Customer or of that part of the business of either used in the performance of the Contract, but shall not be otherwise assignable and the Company shall look solely to the Customer for fulfilment of the Customer’s obligations thereunder.
These conditions and the Contract to which this document relates shall in all respects be governed by and construed in accordance with the Laws of Scotland and parties shall submit to the exclusive jurisdiction of the Scottish courts.