Terms Of Business
The Buyer's attention is in particular drawn to the provisions of condition 10.4.
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Acknowledgment: the acknowledgment of order given under condition 2.5.
Business Day: a day (not being a Saturday or a Sunday) on which banks in London are open for the conduct of normal business.
Buyer: the person, firm or company who purchases the Goods from the Company.
Company: Fujitsu General Air Conditioning (UK) registered in England and Wales with company number 6277345 whose registered office is at Unit 150 Centennial Park, Centennial Avenue, Elstree, Hertfordshire WD6 3SG.
Conditions: these terms of business and/or, if relevant, any Special Conditions.
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions and any Special Conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
Special Conditions: any conditions agreed between the Company and the Buyer in place of or in addition to any of these Conditions.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular and a reference to one gender includes a reference to the other genders.
1.4 Condition headings do not affect the interpretation of these Conditions.
2. Application of terms
2.1 Subject to any variation under condition 2.3 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company's sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by the sales director of the Company. None of the Company's employees is authorised to make any statement or promise, or give any representation, assurance or warranty, which has not been confirmed in the Contract and as such the Buyer irrevocably acknowledges that it has not relied on any of the foregoing. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer. Once an Acknowledgment has been issued by the Company, the Contract may not be varied or cancelled without the Company's written consent.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an Acknowledgement. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.8 Without limitation to any of the above conditions, acceptance of the Goods by the Buyer shall be deemed to constitute irrevocable acceptance of these Conditions.
3.1 The quantity and description of the Goods shall be as set out or referred to in the Acknowledgment.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3.3 The Company will not be liable for any non-conformity of the Goods with the Contract description (even if caused by the Company's negligence) unless the Buyer gives written notice to the Company of such non-conformity within 2 Business Days of delivery.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the location specified in the Acknowledgment.
4.2 Any dates or times specified by the Company for delivery of the Goods are intended to be an estimate, and time for delivery shall not under any circumstances be of the essence, or made of the essence, by notice from the Buyer, or otherwise. If no dates or times are so specified, delivery shall be within a reasonable time of the date of the Acknowledgment.
4.3 If following the issue of an Acknowledgment by the Company, the Company ascertains that the Goods or some of them are unavailable, the Company will notify the Buyer thereof as soon as practicably and reserves the right to defer the delivery date of the unavailable Goods or to cancel the Contract insofar as it relates to the unavailable Goods (without liability to the Buyer) provided that if delivery of the unavailable Goods is deferred for more than 30 days from the date of the above notification the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract insofar as it relates to any such Goods that have not at such time been delivered.
4.4 Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods or non-delivery of the Goods (even if caused by the Company's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 30days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when the Company attempts to deliver them, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations and/or because of the Buyer's breach of condition 4.6:
(a) Risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company's negligence) at the time that the Company attempted to deliver the Goods, or proposed to deliver the Goods;
(b) The Goods shall be deemed to have been delivered at such time; and
(c) The Company may store the Goods until actual delivery, and the Buyer shall be liable for all costs and expenses relating thereto (including, without limitation, the cost and expense of storage and insurance, of transportation where the Buyer failed to accept the Goods and the Company had to take them away again, and, (where a delivery attempt has already been made) of subsequent re-delivery to the Buyer).
4.6 The Buyer shall provide in a timely manner at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods when delivered by the Company.
4.7 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.8 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer notifies the Company within 2 Business Days of delivery providing conclusive evidence to the contrary. The Buyer acknowledges that this period allows a reasonable opportunity to examine the Goods for the purposes of s. 35(2) of the Sale of Goods Act 1979.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company's negligence) unless the Buyer gives written notice to the Company of the non-delivery within 2 Business Days of the date when the Goods in the ordinary course of events would have been delivered.
5.3 The Company shall not be liable for any damage to the Goods unless the Buyer gives written notice to the Company of such damage within 2 Business Days of delivery.
5.4 Any liability of the Company for non-delivery of the Goods, or for the delivery of damaged Goods, or for the delivery of too few Goods, shall be limited to replacing (or delivering as the case may be) the relevant Goods within a reasonable time, or, at the Company's option, issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods as have been delivered, where relevant, undamaged. Where too few, or damaged, Goods have been delivered, the Buyer shall not be entitled to terminate or rescind the Contract insofar as it relates to Goods that have been delivered, where relevant, undamaged.
6. Risk and title
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not under any circumstances pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) The Goods; and
(b) All other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company's bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) Any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
(b) Any such sale shall be a sale of the Company's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer's right to possession of the Goods shall terminate immediately if:
(a) the Buyer (being an individual) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods; or
(d) payment for the Goods or any other amount remains outstanding after becoming due.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.9 Where the Buyer's right to possession has terminated, the Company shall have the right to terminate the Contract by notice in writing and/or to suspend deliveries of further Goods to the Buyer, whether arising under the same Contract or otherwise for such period as it sees fit.
6.10 On termination of the Contract, howsoever caused, the Company's (but not the Buyer's) rights contained in this condition 6 shall remain in effect.
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Acknowledgment.
7.2 The price for the Goods shall be exclusive of any value added tax but inclusive of the cost of delivery and insurance until delivery has taken place.
8.1 Subject to condition 8.4, payment of the price for the Goods is due by the payment date set out or referred to in the Acknowledgment, or, if earlier, and/or no such payment date is specified, by the day falling 30 days after the delivery or deemed delivery of the Goods, as referred to in condition 4 . Unless the Company has agreed otherwise, payment must be made in the currency in which the price is quoted.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination or on the occurrence of any of the events in condition 6.5 notwithstanding any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998.
9.1 The Company warrants that on delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
9.2 The Company shall not be liable for a breach of the warranty in condition 9.1 unless:
(a) the Buyer gives written notice of the defect to the Company within 5 Business Days of delivery, the Buyer acknowledging that such period allows it a reasonable opportunity to examine the Goods for the purposes of s. 35(2) of the Sale of Goods Act 1979; and
(b) the Company is given a reasonable opportunity after receiving the above notice to examine such Goods and the Buyer (if asked to do so by the Company) promptly returns such Goods in stock condition, with such documentation as the Company requires, to the Company's place of business, at the Company's cost, for the examination to take place there, which cost will be reimbursed on demand to the Company where the Company determines that no breach of the warranty in condition 9.1 has occurred. No Goods should be returned to the Company without the Company's prior written authority. Where the Company determines that no breach of the warranty in condition 9.1 has occurred, the Buyer will be responsible for any charge and related insurance cover in subsequently re delivering the Goods (or any replacement Goods) to it.
9.3 The Company shall not be liable for a breach of the warranty in condition 9.1 if:
(a) the Buyer makes any further use of the relevant Goods after giving the notice referred to in condition 9.2(a); or
(b) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company.
9.4 Subject to condition 9.1 and condition 9.3, if any of the Goods do not conform with the warranty in condition 9.1 the Company shall at its option repair or replace such Goods (or the defective part) or issue a credit note for the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company, provided that the cost of returning the Goods or part thereof (and any cost of subsequently re-delivering them or it to the Buyer) shall be reimbursed on demand to the Company should the Company determine that no breach of the warranty in condition 9.1 has occurred.
9.5 If the Company complies with condition 9.4 it shall have no further liability for a breach of the warranty in condition 9.1 in respect of such Goods.
9.6 Any Goods replaced shall belong to the Company.
9.7 The Buyer will not be entitled to terminate or rescind the Contract insofar as it applies to any Goods other than the defective Goods and will pay for any non defective Goods at the pro rata Contract rate against any invoice raised for such Goods.
10. Limitation of liability
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, irrevocably excluded from the Contract.
10.3 Nothing in these Conditions excludes or limits the liability of the Company:
(a) or death or personal injury caused by the Company's negligence; or
(b) under section 2(3) of the Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude; or
(d) for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3, notwithstanding any other provision of the Contract:
(a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
(b) the Company shall not be liable to the Buyer for (i) loss of profit, (ii) loss of business, or (iii) depletion of goodwill, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11.1 The Company may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12. Force majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, 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), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 60days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract insofar as it relates to the relevant Goods.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 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.
13.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.5 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.
13.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English Law and the parties submit to the exclusive jurisdiction of the English Courts save that the Company specifically reserves the right to bring proceedings against the Buyer in the courts of any other country.
14.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
14.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding days which are not Business Days) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax on a Business Day prior to 4.00pm, at the time of transmission and otherwise on the next Business Day.
14.3 Communications addressed to the Company shall be marked for the attention of the Company's sales director.