Terms & Conditions
In these Conditions of Sale:
1.1 “the Company” means Pro-Align Ltd. Registered office, Greens Norton, Towcester Road, Towcester, Northamptonshire, NN12 8AN.
1.2 “Order Acknowledgement” means the Company’s Order Acknowledgement.
1.3 “the Buyer” means the person, firm or company named as such in the Order Acknowledgement.
1.4 “the Goods” means the goods which are the subject of the Order Acknowledgement including all instruction leaflets, manuals, drawings, illustrations and specifications provided by the Company to the Buyer;
1.5 “VAT” means Value Added Tax.
1.6 The agreements, warranties, conditions, representations and other terms set out in the Order Acknowledgement and in these Conditions are together referred to in these Conditions as “the Contract”.
1.7 Any reference in these Conditions to any provision of the statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.
1.8 The headings in these Conditions are for convenience only and shall not affect the interpretation.
2. The Agreement
2.1 These Conditions shall be deemed to be incorporated in all agreements from time to time entered into between the Company and the Buyer which provide for the sale of any goods and/or services by the Company to the Buyer.
2.2 These Conditions shall apply in place of and shall prevail over any terms or conditions contained or referred to in the Buyer’s order or in correspondence or elsewhere or implied by trade custom, practice or course of dealing unless specifically agreed to in writing by the Company and any purported provisions to the contrary are hereby excluded or extinguished.
2.3 The Contract represents the complete agreement between the Company and Buyer with regard to the Goods and contains all agreements, warranties, conditions, representations and other terms agreed made or relied upon by either party in connection with the Goods.
2.4 No amendment or addition to the Contract shall be binding on the Company unless agreed in writing (by an authorised representative of the Company).
2.5 The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract the Buyer acknowledges that it does not rely upon and waives any claim for breach of any such representations which are not so confirmed.
2.6 Any advice or recommendation given by the Company or its employees or agents to the Buyer or its employees or agents as to the storage application or use of the Goods which is not confirmed in writing by the Company if followed or acted upon is entirely at the Buyer’s own risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.7 Any typographic clerical or other error or omission in any sale literature, quotation, price list, Order Acknowledgement, invoice or other documentation or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3. Offers and Supply of Information
3.1 The Company’s catalogues, price lists and quotations do not constitute offers made by the Company (unless they are expressed to be fixed quotations remaining open for a specified period) and the Company reserves the right to withdraw or revise the same at any time prior to the Order Acknowledgement
3.2 No offer, obligation or agreement relating to the sale of the Goods is binding on the Company unless set out in the Contract or in an amendment or addition there to duly agreed in writing by the Company.
4. Price and Payment Terms
4.1 The price for the Goods shall be as set out in the Order Acknowledgement and unless otherwise specified V.A.T. and any other tax or duty payable by the Buyer shall be added to the price.
4.2 The Company reserves the right by written notice given to the Buyer before completion of the Contract to vary the price of the Goods to take into account increases in costs including (without limitation) the costs of any materials, carriage, labour or overheads, the increase or imposition of any tax, duty or other levy and any variation in exchange rates.
4.3 All prices quoted or agreed by the Company shall be dependent on and subject to variation in the event of:
4.3.1. fluctuations in direct or indirect costs and in particular the availability of materials and labour;
4.3.2. overtime work and work outside normal hours being required to complete the Contract as a result of delays due to in the opinion of the Company unsatisfactory site conditions not previously disclosed and detailed in the quotations;
4.3.3. necessary instructions and/or information not being provided by the customer when requested;
4.3.4. extra work required which is not expressly covered by the specifications set out in the Contract but is necessary for the due provision of the Goods and/or services contracted for;
4.3.5. mistakes and/or omissions in the specifications contained in the Contract;
4.3.6. special expedition in the completion of the Contract at the request of the Buyer;
4.3.7. all other matters of any kind which are outside the control of the Company.
4.4 The Buyer shall pay extra charges in the event of:
4.4.1. the Buyer or his agents failing or refusing to take immediate delivery of Goods tendered for delivery or delivery being aborted other than by reason of fault on the part of the Company resulting in such Goods being subsequently redelivered;
4.4.2. storage of the Goods by the Company beyond the date of readiness for delivery notified to the Buyer or his agents or beyond the date when they were first tendered for delivery, whether at the request of the Buyer or his agents or by reason of inadequate instructions or information from the Buyer or his agents or by reason of any other matters outside the control of the Company;
4.4.3. erection or installation work being interrupted delayed or frustrated by reason of any failure of the Buyer or his agents to comply with the requirements of Condition 4.9 of these Conditions or by reason of any other matter outside the control of the Company.
4.5 In the event of any of the circumstances envisaged in Condition 4.4.3 arising it shall be for the Company alone to decide at its sole discretion whether to maintain personnel on site or to withdraw some or all of such personnel until such time as the Company is able to proceed regularly and freely with such work.
4.6 Interest on overdue accounts shall be paid by the Buyer at the rate of 8 percent per annum.
4.7 Where delivery of Goods has been prevented or delayed by reason of any of the matters referred to in Conditions 4.4.1 or 4.4.2 above the price of such Goods or the balance thereof shall become due and payable within 30 days after such Goods were first tendered for delivery or first notified to the Buyer as being ready for delivery whichever shall be the earlier.
4.8 Where Goods have been delivered to the Buyer’s premises or to the designated site but erection/installation thereof has been affected by any of the matters referred to in Condition 4.4 the price of such Goods or the balance thereof shall become due and payable 30 days after delivery as aforesaid.
4.9 The Company reserves the right to postpone the delivery of Goods under this or any other contract if any amounts due on this or any other contract remain unpaid at the due date or dates. The Buyer shall be liable for any increased costs incurred by the Company as a result of such postponement.
4.10 Once an Order Acknowledgement has been confirmed by the Company the Order Acknowledgement becomes binding on the Buyer and the Company reserves the right to refuse to accept subsequent cancellation of the order or amendment to it by the Buyer. Should the Company accept the requested cancellation or amendment the Buyer is liable for and shall pay on demand an amount which in the opinion of the Company reflects the proportion of the order already completed plus any reasonable costs incurred for which the Company has a liability resulting from the placement and processing of the order or in the case of amendment to the order all costs incurred in implementing the amendment plus any loss of incremental profit suffered.
5.1 The Company will endeavour to comply with dates or periods quoted to the Buyer for delivery of Goods and/or the erection/installation thereof or for the supply of services. However, any such dates or periods shall be estimates only and the Buyer shall have no claim whatever against the Company in the event of the Company’s failure to comply with any such date or period.
5.2 Unless the Company has contracted to the Buyer to provide the service the Buyer must at his own cost provide sufficient labour and material handling equipment to off load material deliveries and at such a rate as to minimise delivery vehicle standing time.
5.3 The Buyer is liable to pay a reasonable charge levied by the Company if in the opinion of the Company vehicle unloading is delayed due to causes outside the control of the Company. The charge will reflect the amount of time the vehicle is on site measured from the time of arrival until the time of departure less an estimated time for unloading and meal breaks.
5.4 If the Buyer refuses or fails to take delivery of the Goods tendered in accordance with the Contract or fails to take any action necessary on its part for delivery or shipment of the Goods, the Company shall be entitled to terminate the Contract with immediate effect, to dispose of the Goods as the Company may determine and to recover from the Buyer any loss and additional costs incurred as a result of such refusal or failure and in any event to retain any payment made prior to such refusal or failure.
5.5 If the Buyer requests postponement of delivery beyond the estimated delivery date and the Company agrees to such postponement the Company may at its option exercisable by notice to the Buyer treat the risk in the Goods as having passed to the Buyer and store the Goods at the Buyer’s expense (but without liability), and invoice the Buyer.
6. Phased Deliveries
The Company may deliver the Goods in one or more instalments. Where delivery is effected by instalments each instalment shall be treated as a separate contract. Failure by the Company to make any delivery or part delivery in accordance with the Contract or any claim by the Buyer in respect of such delivery or part delivery shall not entitle the Buyer to reject the balance of the Goods agreed to be purchased by the Buyer.
7. Passing of Property
7.1 The Goods shall remain the property of the Company as legal and equitable owner and no property in or title to the Goods shall pass to the Buyer until their full price has been duly paid to the Company together with the full price of any goods the subject of any other contract with the Company. Until payment in full, the Buyer shall store the Goods in such a way as to enable them to be identified as the property of the Company and shall not sell or encumber the Goods in any way. Failure to pay the price for the Goods and that of such other goods referred to above when due shall, without prejudice to any other remedies the Company may have, entitle the Company to repossess the Goods or so much thereof as the Company may determine from any premises wherever they may be. For the purpose of repossessing the Goods or any part thereof the Buyer hereby grants an irrevocable licence to the Company, its employees or agents to enter upon such premises and the Buyer shall pay to the Company the cost of removal and transport of the Goods or any part thereof.
7.2 Notwithstanding the provisions of this Condition 9 the Company shall be entitled to bring an action against the Buyer for the price of the Goods in the event of non-payment by the Buyer by the due date as if the property in the Goods had already passed to the Buyer or shall have the right by notice in writing to the Buyer at any time after the agreed delivery date to pass the property in the Goods to the Buyer as from the date of such notice.
8. Specifications and Information
8.1 Drawings, illustrations and specifications submitted by the Company to the Buyer remain the property of the Company and must not be communicated to any third party without the prior written permission of the Company.
8.2 Unless expressly agreed in writing by the Company all drawings, designs, specifications and particulars of weights and dimensions submitted by the Company are approximate only and the Company shall have no liability in respect of any deviation therefrom. The Company accepts no responsibility for any errors, omissions or other defects in any drawings, designs or specifications not prepared by the Company.
8.3 Where the Goods’ design will be or was designed by the Company or the Company’s employees pursuant to a commission from the Buyer (whether in consideration of the Buyer’s order or otherwise) then unless otherwise agreed, the Buyer hereby assigns or agrees to assign the design right in that design (and the right to apply for registration of that design, if applicable) to the Company.
9. Statutory Liability
Nothing in these Conditions shall be interpreted as excluding or restricting any legal liability of the Company for death or personal injury resulting from the negligence of the Company, its employees, agents or sub-contractors or restricting any of the Company’s legal obligations arising under Section 12 of the Sale of Goods Act 1979 or under the Consumer Protection Act 1987.
10.1 The Company warrants the Goods against defects in design, materials and workmanship for a period of 12 months if greater then must be agreed in writing from the seller from the date of delivery to the Buyer or its agent (“the Warranty Period”).
10.2 The Company’s obligation under this warranty is limited to, at its option, repairing, replacing on an exchange basis or refunding the cost of the Goods or parts thereof which are delivered with or develop defects in design, materials and workmanship under normal and proper use within the Warranty Period and does not extend to any consumable item.
10.3 In the event of the Buyer becoming aware of a defect in the Goods during the Warranty Period the Buyer shall promptly supply the Company within the Warranty Period with written particulars of such defect and use its best endeavours to provide the Company with all necessary access and other reasonable facilities and all information and particulars required to enable the Company to ascertain or verify the nature and cause of the defect claimed and to carry out its warranty obligations.
10.4 The Company shall be entitled to require the Buyer by notice in writing to cease forthwith the operation of any of the Goods in respect of which any defect has been notified to the Company and if the Buyer fails to comply with such the requirement the Company shall be under no liability to the Buyer either under this Condition or otherwise in relation to such Goods. Where for any reason such notice has not been given by the Company the Company shall not be liable for any damages or losses whatsoever suffered by the Buyer to the extent that it is caused by the continued operation of the Goods after a defect became apparent to the Buyer.
10.5 The Company shall be under no obligation whatsoever to repair, replace or make good any loss or damage or defect which results from an incorrect installation by any other person other than the Company and/or its agents, alteration without consent, wear and tear, accident, abnormal conditions of storage or use or any act, neglect or default of the Buyer or any third party or incorrect information supplied by the Buyer as to the Goods’ operating conditions or for so long as any amount due from the Buyer to the Company remains outstanding.
10.6 Where any defective Goods are replaced the provisions of this Condition shall apply to the replacement Goods for the unexpired balance of the Warranty Period.
10.7 The Buyer shall not return any of the Goods to the Company without the Company’s written consent and the Company shall not be under any liability whatsoever for the Goods returned by the Buyer without such consent.
10.8 The above warranty which is given in lieu of and replaces, excludes and extinguishes all and every condition, warranty or representation whatsoever whether express or implied by statute, common law, trade usage, custom or otherwise in respect of the quality, fitness for purpose, merchantability, description of the Goods or otherwise.
11. Liability for Shortages
Where delivery is other than at the Company’s premises and it is expressly agreed that risk remains with the Company until delivery to the Buyer, the Company shall not be liable for shortages in quantity delivered unless Buyer notifies the Company of any claim for short delivery within 3 days of receipt of the Goods.
12. Limitation of Damages
12.1 Save as provided in the warranty set out in Condition 12, the Company shall be under no liability to the Buyer for any damages or losses, direct or indirect, resulting from defects in design, materials or workmanship or from any act or default of the Company, whether negligent or otherwise.
12.2 The Company shall have no liability for any indirect or consequential losses or expenses suffered by the Buyer, however caused, including but not limited to loss of anticipated profits, goodwill, reputation, business receipts or contracts, or losses or expenses resulting from third party claims.
12.3 Subject to Condition 11 the Company’s aggregate liability to the Buyer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the cost of the Goods which give rise to such liability in respect of any occurrence or series ofoccurrences.
The Buyer agrees that it is best able to estimate the extent and nature of the insurance cover suitable for its business and property from time to time and can effect the same at more economic rates than the Company against any damages, losses, costs, claims and expenses arising from the Company’s breach. The Buyer therefore acknowledges that it is reasonable for the Company to sell the Goods and fix the purchase price on the basis of the exclusions and limitations of liability and the indemnity set out in these Conditions. The Buyer agrees that it will be responsible for effecting such insurance cover including (but not limited to) cover in respect of any loss or damage to premises, plant or other physical property and including economic loss however caused whether by reason of the negligence of the Company or otherwise.
14. Indemnity – Product Liability
The Buyer agrees to indemnify the Company against any damages, losses, costs, claims or expenses incurred by the Company in respect of any liability of the Company towards a third party arising out of or in connection with any of the Goods or any work or services supplied by the Company or their operation or use and whether arising by reason of the negligence of the Company or otherwise insofar as liability arises as a result of any dealing with the Goods otherwise than as expressly instructed or as would be reasonably expected in the normal course of business.
15. Force Majeure
15.1 The Company shall have no liability in respect of any failure or delay in fulfilling any of the Company’s obligations to the extent that fulfilment thereof is prevented, frustrated, impeded and/or delayed or rendered uneconomic as a the consequence of any circumstance or event beyond the Company’s control including without prejudice to the generality of the foregoing:-
15.1.1. compliance with any order, regulation, request or control of any national or local authority, government department or other competent authority of any country whether or not legally enforceable; or
15.1.2. any delays in or cancellations of deliveries or provisions of services by third parties or shortages of the Goods, materials or parts or raw materials therefore; or
15.1.3. any strikes, lock-outs or trade disputes whether involving the Company’s employees or others, fire, explosion, accident breakdown of plant or machinery, calamity or civil disturbance, action of the elements, national calamity, war, riot or act of God; or
15.1.4. failure in whole or in part of any power or energy supply.
15.2 The Company nevertheless undertakes to make every reasonable endeavour within its power to overcome difficulties arising in connection therewith but in the event of shortages of the Goods or of available resources for their production storage or delivery arising from any of the events or circumstances referred to in Condition 15.1, the Company reserves the right to allocate as it may think fit the Goods available and resources between customers with whom it has contractual obligations in respect thereof and shall not be obliged to purchase the Goods from third parties in order to make good such shortages.
15.3 In the event of any deliveries by the Company being delayed on account of any of the foregoing the period for delivery shall be correspondingly extended provided that if deliveries are delayed for six months or more the Company may at its option, exercisable by notice in writing to the Buyer, either terminate the Contract or elect not to deliver any undelivered Goods without liability in either case.
16. Intellectual Property
16.1 The Company warrants that to the best of its knowledge and belief the Goods do not infringe any letters patent, designs or copyright in the United Kingdom and in the event that it is alleged that the use or possession of the Goods by the Buyer infringes any letters patent, designs or copyright then:
16.1.1. the Buyer shall promptly notify the Company in writing of any alleged infringement of which he has notice;
16.1.2. the Buyer shall not make any admission without the Company’s consent; and
16.1.3. the Company shall defend any claim for such infringement and shall have sole control of the litigation relating thereto and all negotiations for the settlement or compromise thereof. The costs incurred or recovered in such negotiations or litigation shall be for the Company’s account.
16.2 If at any time any allegation of infringement of letters patent, design or copyright is made in respect of the Goods or in the Company’s reasonable opinion is likely to be made, the Company may at its option and at its own expense either:-
16.2.1. modify or replace the Goods without detracting from overall performance thereof, so as to avoid the infringement; or
16.2.2. procure for the Buyer the right to continue to use the Goods; or
16.2.3. repurchase the Goods at the price paid by the Buyer less depreciation at such rate as is applied by the Company to its own equipment.
16.3 The Buyer shall indemnify the Company against any and all liabilities claims and costs incurred by or made against the Company as a direct or indirect result of the carrying out of any work required to be done on or to the Goods in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of any rights of any third party.
17. Health and Safety at Work
The Buyer agrees to pay due regard to any information supplied by the Company and relating to the use for which the Goods are designed or have been tested and about any conditions necessary to ensure that they will be safe and without risks to health at all times when they are being set, used, cleaned or maintained by any person at work, and the Buyer undertakes to take such steps as may be specified by the above information to ensure that as far as reasonably practicable the Goods will be safe and without risks to health at all times as are mentioned above.
The Buyer shall not assign or otherwise transfer all or any of its rights, interests or obligations under the Contract without the prior written consent of the Company. Any or all of the Company’s rights or obligations under the Contract may be assigned by the Company and the Buyer shall not assert against an assignee any defence (other than actual payment) set-off or counterclaim which the Buyer may have against the Company.
The rights of the Company shall not be prejudiced or restricted by any indulgence or forbearance extended to the Buyer and no waiver of any breach shall operate as a waiver of any subsequent breach.
The headings of these Conditions of Sale do not form part of the Conditions and shall not affect the interpretation thereof.
If any of these Conditions of Sale or any part is held to be invalid for any purpose it shall for that purpose be deemed to have been omitted but shall not prejudice the effectiveness of the rest of these Conditions of Sale.
Any notice hereunder shall be deemed to have been given if delivered by hand or sent by prepaid first class post or telex or facsimile (confirmed by telephone and followed by notice by post) to the party concerned at its last known address, and deemed to have been received on the date of despatch, if delivered by hand or sent by or facsimile or email and on the third day after posting, if sent by post.
23. English Law and Jurisdiction
The formation, construction and performance of the Contract shall be governed in all respects by English Law and all disputes shall be submitted to the Courts of England, the parties expressly consenting to the exclusive jurisdiction of such courts.