VENT-AXIA GROUP LIMITED – CONDITIONS OF SALE
1.1 In these conditions of sale the following expressions shall have the meanings set opposite them unless the context otherwise requires:
“the Buyer” the person, firm or company with whom the Contract is made;
the contract between the Seller and the Buyer for the sale of the Goods into which these Conditions of Sale are incorporated;
“the Goods” the goods which the Seller is to supply in accordance with these Conditions of Sale as identified in an Order;
“the Order” the Buyer’s order for the Goods, as set out in the Buyer’s purchase order, email, or other request for Goods, in whatever form and to which these Conditions of Sale apply;
“the Seller” Vent-Axia Group Limited a company registered in England and Wales and whose registered office is at Fleming Way, Crawley, West Sussex RH10 9YX;
“writing” and “written” shall include in hard copy or electronic form where there is evidence of delivery of such electronic form.
1.2 any reference in these Conditions of Sale to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time;
1.3 any reference to the singular includes the plural and reference to a gender includes every gender;
1.4 the headings are inserted for convenience only and shall not affect the interpretation of these Conditions of Sale.
2. Basis of Sale
2.1 These Conditions of Sale apply to all contracts for the sale of Goods entered into between the Seller and the Buyer. They apply in preference to and supersede any previous terms and conditions of the Buyer and any terms referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the Seller and Buyer with reference to the Goods. The Seller will not be bound by any standard or printed terms furnished by the Buyer in any of its documents, including in any Order.
2.2 A quotation for the Goods given by the Seller shall not constitute an offer.
2.3 An Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions of Sale.
2.4 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract between the Buyer and the Seller shall come into existence.
2.5 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed and that it shall not have any right of action against the Seller arising out of or in connection with any such representation except as otherwise provided in these Conditions of Sale, or in the case of any fraud or fraudulent misrepresentation.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures in connection with the Goods are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.7 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application, installation or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.8 In entering into this Contract the Buyer assumes responsibility for the Goods being sufficient for its purpose. As the Seller is not responsible for system design and as the Buyer has greater knowledge of its own requirements the Seller shall not accept any responsibility for the performance or suitability of the Goods in their final operating environment whether or not details of the final operating environment have been made available to the Seller.
2.9 Any typographical, clerical or other error or omission in any sales literature, written quotation or confirmation or acknowledgement of the Seller, price list, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.10 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) placed by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
2.11 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
2.12 The Seller reserves the right at any time to change the design, construction and/or specification of the Goods if such change is required to conform with any applicable statutory or legal requirements, or other necessary quality standards controls. In addition, the Seller operates a policy of continuous product improvement and the Seller reserves the right to change the design, construction and/or specification of the Goods at any time if such change will in the sole opinion of the Seller at the time that such change is made, improve or enhance the design, quality or performance of such Goods.
2.13 Other than as provided in these Conditions of Sale, no Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller 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 Seller as a result of the cancellation.
3. Guarantee in respect of the Goods
3.1 The Seller guarantees the Goods in accordance with the terms of its applicable guarantee for such Goods as set out in a Goods manual as in force from time to time (“Guarantee”). To the extent of any inconsistency between this clause 3 and the terms of an applicable Guarantee, then the terms of these Conditions of Sale shall prevail to the extent of the inconsistency.
3.2 Subject to clause 3.3 if:
3.2.1 the Buyer gives notice in writing to the Seller during the applicable Guarantee period within a reasonable time of discovery that some or all of the Goods do not comply with the Guarantee; and
3.2.2 the Seller is given a reasonable opportunity of examining such Goods;
the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods. The Seller’s liability under the Guarantee is limited to these actions.
3.3 The Seller shall not be liable for the Goods’ failure to comply with the Guarantee in any of the following events:
3.3.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 3.2;
3.3.2 the defect arises because the Buyer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
3.3.3 the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;
3.3.4 the Buyer alters or repairs such Goods without the written consent of the Seller or without following guidelines of such written consent; or
3.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
3.4 Except as provided in this clause 3, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the Guarantee.
3.5 Other than with respect to the Guarantee, the Seller excludes all conditions, warranties and stipulations, express or implied, statutory, customary or otherwise to the fullest extent permitted by law.
3.6 These Conditions of Sale shall apply to any repaired or replacement Goods supplied by the Seller.
4.1 The price of the Goods shall be the price listed in the Seller’s published price list in force at the time of delivery, which price shall prevail over any previously quoted, estimated or agreed price unless otherwise confirmed by the Seller in writing.
4.2 The Seller may, by giving notice to the Buyer at any time up to 5 working days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
4.2.1 any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
4.2.2 any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered; or
4.2.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
4.3 If the Seller increases the price in accordance with clause 4.2.1, then the Buyer shall be entitled to cancel the Order within 3 working days following receipt of notice of the increased price. If the Buyer does not give such notice, then it is deemed to have accepted the increased price and is not entitled to cancel the Order.
4.4 The price is exclusive of any applicable value added tax or other sales taxes that may apply and which the Buyer shall pay to the Seller.
4.5 Where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises the Buyer shall pay the Seller’s charges for transport, packaging and insurance.
5.1 Where no account has been opened in advance by the Seller in respect of the Buyer, the Seller will not be obliged to deliver the Goods until the Buyer has paid the amount shown on the pro-forma invoice relating to the Goods.
5.2 Where an account has been opened for the Buyer, the Seller may in its absolute discretion set and, on written notice to the Buyer, alter the Buyer’s credit limit or terminate the Buyer’s account facilities and the Seller reserves the right not to deliver the Goods if the price thereof increases the amount owed by the Buyer to the Seller beyond the Buyer’s credit limit from time to time.
5.3 Where an account has been opened for the Buyer and the price of the Goods together with all other indebtedness of the Buyer to the Seller does not exceed the Buyer’s credit limit from time to time, the price of the Goods will be paid by the Buyer by the end of the month following the month in which the Seller’s invoice is issued.
5.4 The time of payment shall be of the essence of the Contract.
5.5 If the Buyer fails to make any payment by the due date then, without prejudice to any other right or remedy available to the Seller, the Seller may without liability:
5.5.1 suspend any further deliveries to the Buyer or cancel the Contract or any other contract between the Seller and the Buyer;
5.5.2 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 2% per annum above the base rate from time to time of Royal Bank of Scotland Plc until payment in full is made; and
5.5.3 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may in its absolute discretion think fit (notwithstanding any purported appropriation by the Buyer).
5.6 The Seller shall be entitled to payment for all instalments of Goods delivered to the Buyer notwithstanding that the remainder of the Goods shall not have been delivered.
5.7 The Buyer shall not be entitled to withhold payment of any amount payable under the Contract because of any disputed claim of the Buyer in respect of faulty goods or any other alleged breach of contract whether in respect of the Contract or any other contract between the Buyer and the Seller nor shall the Buyer be entitled to set off against any amount payable under the Contract to the Seller any monies owed by the Seller to the Buyer on any account whatsoever, whether such a right is conferred on the Buyer by statute or otherwise.
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises agreed between the Seller and the Buyer at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Where the Seller agrees to deliver an air handling unit or other large item of equipment other than at the Seller’s premises the Buyer shall be responsible for off-loading such Goods from the Seller’s delivery vehicle at the agreed place of delivery. The Seller shall on request at any time provide a copy of its guidelines from time to time for the movement and cranage of such goods.
6.3 Any dates quoted for the delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing.
6.4 The Seller may make delivery by instalments. Where Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions of Sale or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery, then without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.
7. Loss or Damage in Transit and Non-Delivery
7.1 No claim for damage to any Goods or for any shortages in the Goods delivered will be considered by the Seller unless it is advised of such claim in writing within 7 days of the date of delivery of the Goods or such part thereof as are actually delivered. In the absence of such advice, the Buyer will be deemed to have accepted the Goods.
7.2 No claim for non-delivery will be considered by the Seller unless it is advised in writing within 14 days of the date of the Seller’s invoice.
7.3 Any claim for damage, shortages or non-delivery shall also be notified by the Buyer to the carrier (if any) in the manner and within the appropriate time limit prescribed by the carrier’s terms and conditions, as advised by the Seller to the Buyer.
7.4 In the event of a failure by the Buyer to give the appropriate notices then any claim which the Buyer may otherwise have pursuant to this clause 7 will be deemed to have been waived.
8. Risk and Property
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
8.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
8.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery to the premises or place agreed between the Buyer and the Seller or if the Buyer wrongfully fails to take delivery of the Goods at such premises or place at the time when the Seller has tendered delivery of the Goods. For the avoidance of doubt, where the Buyer is required to off-load the Goods from the Seller’s delivery vehicle, risk of damage to or loss of the Goods shall pass to the Buyer upon the Buyer accessing the vehicle.
8.2 Notwithstanding delivery and/or the passing of risk in the Goods the property in the Goods shall not pass to the Buyer until the price of the Goods has been paid in full and cleared funds and payment has been made to the Seller of all sums due or owing from the Buyer to the Seller on any account whatsoever.
8.3 Until such time as property in the Goods passes to the Buyer in accordance with clause 8.2:
8.3.1 the Buyer shall hold the Goods as the Seller’s fiduciary agent and shall not obliterate any identifying mark on the Goods or their packaging and shall keep the Goods separate from any other goods of the Buyer or third parties, properly stored, protected and insured and identified as the Seller’s property and the Seller shall be entitled to enter the Buyer’s premises during the Buyer’s normal business hours upon reasonable notice to verify the Buyer’s compliance with this condition; and
8.3.2 subject to clause 8.4, the Buyer shall be entitled to use or resell the Goods as principal and not the Seller’s agent, in the ordinary course of its business but not otherwise before the Seller receives payment for the Goods to allow title to the Goods to pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs and shall account to the Seller for the proceeds of sale.
8.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.5 Where the Seller is unable to determine whether any goods are the Goods the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the Order in which they were invoiced to the Buyer.
8.6 The Seller may at any time after payment of any amount payable under the Contract has become due take possession of the Goods (which for the avoidance of doubt shall include the right to stop the Goods in transit) and remove them and the Buyer shall be deemed to have granted irrevocable authority to the Seller to enter upon the Buyer’s premises or other premises where the Goods may be and, by the Seller’s employees or agents, take possession of the Goods and (if necessary) dismantle the Goods from anything to which they are attached.
8.7 The Seller shall have the right to maintain an action against the Buyer for the price of the Goods notwithstanding that property in the Goods has not passed.
8.8 Nothing in the Contract shall constitute the Buyer the agent of the Seller in respect of any re-sale of the Goods by the Buyer so as to confer upon a third party any rights against the Seller.
9. Limitation of Liability
9.1 Nothing in these Conditions of Sale shall limit or exclude the Seller’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1 the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of contracts, loss of reputation or goodwill, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 the Supplier’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
10. Trade Marks and Intellectual Property
10.1 The Buyer shall not remove, alter, deface or tamper with any of the marks, names numbers or other means of identification used on the Goods or allow anyone else to do so.
10.2 Any intellectual property rights (including any patents, copyright designs, trade marks, databases, topography rights, rights in software and computer programmes, know-how and confidential information or trade secrets) relating to or in the Goods shall vest in and belong to the Supplier absolutely.
11. Force Majeure
The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure is due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control: act of God, explosion, lightning, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, by-laws, prohibitions, or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Seller or any third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.
12. Cancellation and Suspension of the Contract
12.1 This clause applies if:
12.1.1 the Buyer is in breach of any of its obligations under the Contract or any other contract between the Buyer and the Seller; or
12.1.2 unforeseen events including (without prejudice to the generality of the foregoing) those referred to in condition 11 materially affect the commercial effect of the Contract; or
12.1.3 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
12.1.4 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
12.1.5 the Buyer ceases or threatens to cease to carry on business; or
12.1.6 the Seller reasonably apprehends that any of the events mentioned in conditions 12.1.3, 12.1.4 or 12.1.5 is about to occur in relation to the Buyer and notifies the Buyer accordingly; or
12.1.7 the Seller receives notice of any claim alleging that the Goods or any part thereof or any process applied to the Goods infringe any patent, copyright, design right, trademark or other industrial or intellectual property rights of any other person.
12.2 If this clause 12 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract by notice to the Buyer without any liability to the Buyer and if the Goods have been delivered but not paid for then the price of the Goods shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13. Export Terms
13.1 In these Conditions of Sale, ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions of Sale, but if there is any conflict between the provisions of Incoterms and these Conditions of Sale, the latter shall prevail.
13.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 13 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions of Sale.
13.3 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered Ex-Works the Seller’s premises.
13.4 The Buyer shall be responsible for arranging for testing and inspection of the Goods before they leave the Seller’s premises and the Seller shall have no liability in respect of any defect in the Goods which would have been apparent from such inspection.
13.5 Unless otherwise agreed in writing by the Seller, payment of all amounts due to the Seller shall be made in sterling and where exported outside of the United Kingdom, payable by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a leading London bank acceptable to the Seller within 10 days of the Seller’s acceptance of the Buyer’s Order and upon presentation of the required documents to a London bank.
14.1 Assignment and other dealings.
14.1.1 The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
14.1.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.
14.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax.
14.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9:00am on the second working day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, one working day after transmission.
14.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.14.3 Severance.
14.3.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
14.3.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.5 Third party rights
A person who is not a party to the Contract shall not have any rights to enforce its terms.
Except as set out in these Conditions of Sale, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Seller.
14.7 Governing law
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).