The following definitions apply in this agreement “The Company” means PCPM Limited (Company No. 05469530) “Conditions” means these terms and conditions of sale. “Contract Price” the price to be paid by the Purchaser for the System. “Quotation” the price for the supply and installation by the Company of the System. “Order” the order placed by the Purchaser for the supply and installation by the Company of the System. “Purchaser” the person, firm or company to whom the System is to be supplied. “Goods” items as specified on the order and may incorporate services for labour to be comprised within the System. “Contract” the contract between the Company and the Purchaser for the installation of the System in accordance with these Conditions. “Site” the site at which the System is to be installed as detailed in the Order. “System” the system (or any part of it) set out in the Order. “System Specification” any specification for the System, including any relevant plans or drawings, that are agreed by the Company and the Purchaser.
2.1 The failure by the Company at any time or for any period to enforce any one or more of these Conditions shall not be a waiver of them or a waiver of the right to enforce such Conditions on a future occasion.
2.2 The Company only sells, supplies or installs Systems on these Conditions which in the case of conflict shall override any terms or conditions imposed by the Purchaser or which are implied by trade, custom, practice or course of dealing and which can only be varied in writing signed by the Company’s duly authorised representative. All representations made by or on behalf of the Company whether written or oral are hereby withdrawn and superseded by these Conditions.
2.3 Quotations are estimates and are without commitment and any Order received by the Company is not binding on the Company unless accepted in writing.
2.4 All intellectual property rights in the System Specification (other than in circumstances where the Purchaser has provided the System Specification to the Company) are, and shall remain, the property of the Company, and the Purchaser shall not, without the prior written consent of the Company, share, disclose or otherwise divulge any part of the System Specification to any person.
3.1 Unless the Purchaser has an approved credit account with the Company the System must be paid for prior to installation. The Company may at its discretion request from the Purchaser a deposit of up to 100% of the Quotation prior to commencement of any work. Any Purchaser wishing to open a credit account with the Company must submit a completed credit account application form for consideration by the Company. The Company may give credit entirely at its discretion and may refuse or withdraw credit without specifying any reason.
3.2 If credit is given the following provisions apply:
3.2.1 The Company shall be entitled to invoice for goods upon installation, and payment must be made in full within 30 days from the end of the month of supply.
3.2.2 The Purchaser shall not be entitled to withhold payment of any amount to the Company because of any disputed claim with the purchaser in respect of any defective goods or any other alleged breach of contract, nor shall the Purchaser be entitled to set off against the amount payable under the contract any monies by way of cross claim, set off or other deduction whatsoever.
3.2.3 Payment to the Company shall not in any circumstances be dependent upon payment to the purchaser from any third party.
3.3 If the Purchaser fails to pay the Company’s invoice on the due date then the Company shall be entitled to:
3.3.1 Charge interest on any outstanding amount at 8% above base rate of the Bank of England ruling at the time;
3.3.2 To decline the delivery of any further Goods under this Contract;
3.3.3 To suspend installation of the System; and/or
3.3.4 To suspend or cancel any other Order placed by the Purchaser.
3.4 The Purchaser indemnifies the Company against failure to settle the Contract by way of a joint and several guarantee issued by the Purchaser and its directors.
4.1 All prices quoted are exclusive of Value Added Tax, which will be added to the Contract Price as a strictly nett extra charge.
4.2 Unless otherwise confirmed in writing any Quotation is only valid for the calendar month in which it is given and is subject to any price increase enforced beyond the Company’s reasonable control. The Company will however notify the Purchaser of any price changes prior to the Company accepting an Order.
4.3 The Company has a minimum charge of £25.00 each Order and reserves the right to charge this sum in all instances, and vary this rate at its discretion from time to time.
5.1 Although the Company will endeavour to meet installation dates, it shall be under no obligation to supply or deliver Goods for any specified date or complete the installation of the System by any specified date. All dates quoted by the Company or included in the Contract are estimates only, and neither the time of delivery nor the time of installation is of the essence.
5.2 The Company may suspend or cancel the whole or any part of the Contract if by reason of circumstances beyond the Company’s reasonable control (including but not without limitation to; strike, lockout, labour dispute, failure or damage to machinery, insufficient supply of gas, electricity or water, fire, war, act of God, adverse weather or transportation problem), either the Company is prevented or hindered from performing its obligations or performance of those obligations is to a substantial degree rendered difficult. The Company shall have no liability for or as a result of any such suspension or cancellation.
5.3 Failure by the Company to deliver any instalment of Goods shall not entitle the Purchaser to cancel or suspend performance of the Contract or any other such instalments or contracts, unless a prior written agreement has been granted.
6.1 The Company shall arrange for the delivery of each of the Goods to the Site. The Purchaser shall inspect the Goods on receipt and any defect or shortage must be notified to the Company within a 24-hour period before scheduled installation of the System.
6.2 The Company shall supply to the Purchaser such information and assistance as may be necessary to enable the Purchaser to prepare the Site for the installation of the System.
6.3 The Purchaser shall, at its own expense, prepare the Site in accordance with the information provided by the Company in advance of scheduled installation.
6.4 The Company shall not be obliged to commence the installation of the System until the Purchaser has accepted delivery of all of the Goods.
6.5 The Company shall not be liable for any costs or losses sustained or incurred by the Purchaser arising directly or indirectly from the Purchaser’s failure or delay to perform any of its obligations as set out in this Condition 6.
7. Specification and Warranties
7.1 The Company warrants that on installation, and for a period of 12 months from the date of installation (“warranty period”), the System shall:
7.1.1 conform to the System Specification; and
7.1.2 be free from material defects in design and workmanship.
7.2 Subject to Conditions
7.3 and 7.4, the Company shall, at its option, repair or replace the part or parts of the System if:
7.2.1 the Purchaser gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the System does not comply with the warranty set out in clause 7.1; and
7.2.2 the Company is given a reasonable opportunity of examining the System.
7.3 The Company shall not be liable for the System’s failure to comply with the warranty in clause 7.1 if
7.3.1 the Purchaser makes any further use of the System after giving a notice in accordance with clause 7.2;
7.3.2 the defect arises because the Purchaser failed to follow the Company’s oral or written instructions as to the commissioning, use or maintenance of the System or (if there are none) good trade practice;
7.3.3 the defect arises as a result of the Company following any drawing, design or System Specification supplied by the Purchaser;
7.3.4 the defect arises as a result of the Company using any of the Purchaser’s own goods or materials (including for the avoidance of doubt all cabling and other equipment needed for the installation of the System at the Site);
7.3.5 the Purchaser alters or repairs the System without the written consent of the Company;
7.3.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
7.3.7 the Goods or any part of them do not conform to the specifications provided by their respective manufacturer.
7.4 The Company shall be under no obligation for the above warranty until, full payment of the Contract Price has been received by the Company in cleared funds.
7.5 The Company warrants that as far as it is able it will pass on to the Purchaser the benefits of any the warranties given by any third-party manufacturer in relation to the Goods.
8. Retention of title
8.1 Risk of the Goods shall pass to the purchaser or their agent upon delivery.
8.1.1 Property of the Goods and/or the System shall not pass to the Purchaser until payment has been received in full.
8.1.2 The Purchaser undertakes that, until installation has been completed, to adequately insure and store the Goods separately, allow unrestricted access to the Goods for the purpose of removal and not to remove, cover up or deface any marks indicating that the Goods are the property of the Company.
9. Limitation of Liability
9.1 Nothing in these Conditions shall limit or exclude the Company’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; or
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979.
9.2 Subject to Condition 9.1:
9.2.1 the Company shall under no circumstances whatsoever be liable to the Purchaser, 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
9.2.2 the Company’s total liability to the purchaser 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 the Contract Price paid by the Purchaser to the Company.
9.3 The Company has given commitments as to compliance of the System with relevant specifications in Condition 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Contract.
10.Suspension and Termination
10.1 The Company may terminate a Contract without liability to itself and hold the Purchaser in breach of contract in the following circumstances whereupon all credit is withdrawn and any monies owed to the Company for this or any other contract become immediately payable:
10.1.1 Where the Purchaser is in breach of the terms of this Contract or any other contract with the Company.
10.1.2 Where the Purchaser exceeds their credit limit.
10.1.3 Where the Purchaser cannot pay their debts as they become due in the ordinary course of business.
10.1.4 Where the Purchaser has a winding up petition is presented against it other than for purposes of an amalgamation or reconstruction.
10.1.5 Where the Purchaser has a receiver appointed for the whole or part of its assets.
10.1.6 Where the Company have reasonable cause to expect that all or any of the above are likely to occur.
11.1 The Purchaser may not assign the contract or any rights there under it without the Company’s written consent.
11.2 The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
12.Law of Contract
12.1 This Contract shall be governed by English Law, and the Purchaser shall submit to the exclusive jurisdiction of the English Court.