Terms & Conditions
Standard Terms & Conditions for Machine Sales and Spare Parts
Terms & Conditions
NAILSEA POWER CLEANING LIMITED - TERMS AND CONDITIONS OF SALE
In these Conditions, the following words shall have the following meanings:
Business Day: a day on which banks in London are normally open for business;
Business Hours: between the hours of 8am to 5pm on any Business Day;
Conditions: these Terms and Conditions;
Contract: the contract between you and us for the supply of Goods in accordance with these Conditions;
Contract Documents: anything in writing (apart from these Conditions) which either you and we agree forms part of the Contract or which by its very nature is clearly intended to be part of the Contract, such as details agreed in an email about specific matters relevant to the Contract; the Specification; the Order; and these Conditions;
Force Majeure Event: an event or circumstance beyond a party's reasonable control;
Goods: the products as specified in the Order to be supplied to you under the Contract;
Order: your order for Goods as set out in your purchase order form or other request for the supply of Goods;
Price: the price payable for the Goods as set out in the Order;
Specification: any specification for the Goods, including the manufacturer’s specification or any related plans and measurements, that is agreed between you and us;
“We”, “us”, “our”, or any other similar expression: Nailsea Power Cleaning Limited incorporated and registered in England and Wales (company number: 1485482); and
‘You’, ‘your’ or any other similar expression: you, our customer who is purchasing Goods from us in accordance with these Conditions.
Unless the context otherwise requires, words in the singular include the plural and vice versa and a reference to one gender includes a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as amended, extended, re-enacted or replaced from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
A reference to “writing” includes email and the expression “written” shall be construed accordingly.
Any words following the terms “including”, “include”, “in particular”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
BASIS OF CONTRACT
Your Order will constitute an offer to purchase the Goods in accordance with these Conditions. These Conditions apply to any Order placed with us, including where you have opened a cash account or a trading account with us.
Our acceptance of your Order will take place when we tell you in writing that we are able to provide you with the Goods or, if earlier, when we make arrangements with you to provide you with the Goods, at which point the Contract will come into existence between you and us.
We reserve the right not accept any Order or make it a condition of our acceptance that you must pay to us a deposit or payment of the Price in full prior to our dispatch or your collection of the Goods.
These Conditions apply to the Contract to the exclusion of any other terms that you may seek at any time to impose or incorporate, or which may be implied by trade, custom, practice or course of dealing.
Each Order forms the basis of a separate Contract and the Contract includes all Contract Documents.
Any quotation given by us shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
If there is any inconsistency between any of the Contract Documents, then they shall prevail in the following descending order of priority:
anything in writing not mentioned in Clause 2.7.2 to 2.7.4 which either you and we agree forms part of the Contract or which by its very nature is clearly intended to be part of the Contract, such as details agreed in an email about specific matters relevant to the Contract;
the Specification; and
Any samples, drawings, catalogues, brochures, advertising or other promotional material issued by us (including the images of the Goods on our website or on any material issued by the manufacturer) are issued purely to give you an approximate idea of the Goods described in them and shall not form part of the Contract or have any contractual force.
We will provide the Goods in accordance with the Contract. However, we reserve the right to make any changes to the Goods which are necessary to comply with any applicable legal, regulatory or safety requirement, or which do not materially affect the nature or quality of the Goods.
If you wish to make a change to the Goods that you have ordered, you must contact us and request any such changes in writing. We will confirm receipt of your request in writing, however until we have confirmed that the change is possible, the change will not be deemed to have been agreed. It might be necessary for us to change the Price in order for us to agree to the change you require. In that case, we will confirm any change in Price to you in writing and ask you to confirm whether you wish to go ahead with the change. If you do not wish to go ahead with the change, the original terms of your Order will continue to apply.
If we have agreed to deliver to the Goods to you, we will deliver the Goods to the location set out in the Order (“Delivery Location”). If we have not agreed to deliver the Goods to you, you must make your own arrangements for delivery and arrange to have the Goods collected from our premises within 30 days from the date on which we notify you that the Goods are available for collection. Delivery of the Goods shall be completed when the Goods have been unloaded at the Delivery Location or collected from our premises, as the case may be. Any collection of the Goods from our premises must be within Business Hours.
Any dates quoted for the collection of the Goods are estimates only, and the date from which the Goods are available for collection shall only be confirmed when we notify you that this is the case. We will use reasonable endeavours to meet any dates which are quoted for delivery of the Goods, however any dates quoted are estimates only, and the timing for delivery of the Goods is not of the essence.
We shall not be liable for any delay in the delivery of the Goods, or failure to deliver the Goods, which results from a Force Majeure Event or from your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the provision of the Goods.
If no one is available at the Delivery Location to take delivery of the Goods or you do not collect the Goods from us as arranged, we will attempt to contact you to rearrange delivery or collection and may charge you for any reasonable storage costs and further delivery costs or out of pocket expenses incurred as a result of such non-delivery or non-collection.
If, despite our reasonable efforts, we are unable to contact you to re-arrange delivery, or you fail to collect the Goods from our premises, within 30 days from the date on which we first attempted delivery or the date on which we notified you that the Goods were ready for collection (as the case may be), we reserve the right to resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge you for any shortfall if the Goods cannot be resold for at least the Price that you had agreed to pay for them.
We may deliver the Goods by separate instalments. Each instalment shall form the subject of a separate Contract and no cancellation by either party of any one instalment shall entitle you to cancel any other instalment.
PRICE AND PAYMENT
In consideration for the provision of the Goods, you shall pay us the Price.
The Price excludes any charges associated with the packaging and transport of the Goods, Value Added Tax, and any associated clearance costs such as import and export charges, which you shall additionally be liable to pay to us at the prevailing rate from time to time.
If you have asked us to deliver the Goods to you, the relevant delivery charges will be set out in a separate quotation which is based upon our price list in force from time to time. Please note that where you have asked us to arrange delivery on your behalf, we may need to agree additional terms which reflect the additional terms imposed by the carrier, such as the right for the carrier to open and inspect the Goods. We will use reasonable endeavours to make you aware of any such additional terms prior to making such arrangements and will not proceed to make arrangements for delivery unless and until any such additional terms have been agreed by you.
We reserve the right to increase the Price, by giving notice to you at any time before delivery or collection, to reflect any increase in the cost to us in supplying the Goods that is due to any factor beyond our control, including foreign exchange fluctuations, increases in taxes and duties, any request by you to change the delivery or collection date(s), quantities or types of Goods ordered, or any delay caused by your failure to comply with Clause 9.
Unless we notify you otherwise, we shall invoice you once the Goods have been dispatched by us or collected by you from our premises.
You must pay each invoice due and submitted by us by the end of the month following the month in which the invoice was originally submitted, to a bank account nominated in writing by us. Time for payment shall be of the essence.
If you fail to make any payment due to us under the Contract by the due date for payment, then you shall pay interest on the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, which is currently at 8% above the base rate of the Bank of England. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
All amounts due under the Contract from you to us must be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
We warrant that on delivery, the Goods shall:
conform in all material respects with the description provided in the Contract;
be free from any material defects in design, material and workmanship;
be of satisfactory quality; and
be fit for any purpose held out by us,
save that, if we provide you with any separate warranty documentation at the time you enter into Contract, the terms of that warranty will apply, to the exclusion of this Clause 7.1.
Subject to Clause 7.4, if you find that your Goods do not meet any of the standards specified in Clause 7.1, you must tell us this in writing within a reasonable time of discovery.
Upon receipt of your notification in accordance with Clause 7.2, we may ask you to return the Goods to us, at your expense, within 14 days of delivery or collection (as the case may be). Once we have had a reasonable amount of time to examine the Goods, we may, in our discretion, repair or replace the defective Goods, or give you a full or partial refund. This is your sole and exclusive remedy.
We will not be responsible for any failure of the Goods to comply with the standards specified in Clause 7.1:
if you make any further use of the Goods after telling us that there is a problem with them;
where the failure arises because you did not follow any instructions or recommendations we gave you in relation to the Goods or which are issued by the manufacturer, in particular as to the storage, installation, commissioning, use or maintenance of the Goods, or because you have failed to comply with good trade practice;
where the failure arises because we have followed any Specification or express instruction given by you;
if you alter or repair the Goods without our written permission, including where such failure is as a result of any work performed on the Goods by a third party not nominated or expressly approved by us;
if the failure arises as a result of fair wear and tear, intentional damage, negligence, or unusual working conditions; or
where the Goods differ from their description as a result of changes we have made to ensure they comply with any legal or regulatory standards in accordance with Clause 4.1.
Except as provided in this Clause 7, we shall have no liability to you in respect of the Goods’ failure to comply with the warranty set out in Clause 7.1.
The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
The provisions contained within this Clause 7 shall apply to any repaired or replacement Goods supplied by us.
TITLE AND RISK
Risk in the Goods shall pass to you on completion of delivery or when you have collected the Goods (as the case may be).
Title to the Goods shall pass to you when we receive payment in full (in cash or cleared funds) for the Goods and any other goods which we have supplied to you in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
Until title to the Goods has passed to you, you must:
store the Goods separately from all other goods held by you so that they remain readily identifiable as our property;
maintain the Goods in satisfactory condition and keep them insured against all risks for their full Price on our behalf from the date of delivery;
notify us immediately if you become subject to any of the events listed in Clause 10.2; and
give to us such information relating to the Goods as we may reasonably require from time to time.
If before title to the Goods passes to you, you become subject to any of the events listed in Clause 10.2, then, without limiting any other right or remedy we may have, we may at any time:
require you to deliver to us all Goods in your possession that have not been resold, or irrevocably incorporated into another product; and
if you fail to do so promptly, enter any of your premises or the premises of any third party where the Goods are stored in order to recover them.
provide, in a timely manner, such information as we may reasonably require in order to supply the Goods, and ensure that it is accurate and complete in all material respects;
ensure that the terms of the Order and any relevant Specification are complete and accurate in all respects;
provide us, our employees, agents, consultants and subcontractors, with such access to your premises and other facilities as reasonably required by us to deliver the Goods; and
inform us of all health and safety and security requirements that apply at any of your premises for the purposes of delivering the Goods.
If you wish to cancel the Contract at any time (in whole or in part), you should immediately notify us of this in writing before we have dispatched the Goods. Upon receiving such notification, we shall, at our sole discretion, decide whether or not to agree to such cancellation in whole or in part. If we agree to the cancellation of an Order then we will notify you of this and the Contract will end immediately upon such receipt of such notification, subject to you reimbursing us for any reasonable out of pocket expenses incurred as a result of or in connection with such cancellation, including a re-stocking charge where the Goods have been provided in accordance with a Specification provided or approved by you.
If you become subject to any of the following events, or we reasonably believe that you are about to become subject to any of them and notify you accordingly, then, without limiting any other right or remedy available to us, we may cancel or suspend the Order or any other deliveries under any other contract between you and us without incurring any liability to you, and all outstanding sums in respect of Goods already delivered to or collected by you shall become immediately due and payable. For the purposes of this Clause 10.2, the relevant events are:
you commit a material breach under the Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice to do so;
you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;
you are unable to pay your debts, become insolvent, enter into administration, or are subject to bankruptcy or insolvency proceedings or the equivalent in any country; or
if you are an individual or partnership, and either you (or if you are a partnership, one of you) die or, through mental or physical disability, injury or illness, are unable, in our reasonable view, to continue to perform your obligations under the Contract.
If the Contract ends for any reason, you must immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Goods dispatched but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt.
Cancellation of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of cancellation, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of cancellation.
LIMITATION OF LIABILITY
Nothing in the Contract shall limit or exclude our liability for:
death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
any other liability which cannot be limited or excluded by applicable law.
The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
Subject to Clause 11.1, we shall not be liable, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or diminution to goodwill; and
any indirect or consequential loss.
Subject to Clause 11.1, our total liability to you, whether in contract or tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the Price paid by you under the Contract.
We shall not be liable to you as a result of any delay or failure to perform our obligations under the Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents us from providing any of the Goods for a continuous period of more than 7 Business Days, we shall have the right to cancel the Contract with immediate effect by giving notice to you.
Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by email to the address specified in writing by either party from time to time.
Any notice shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
if sent by email, at 9.00 am on the next Business Day after transmission.
This Clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
A waiver of any right or remedy under the Contract or law is shall not be deemed a waiver of any subsequent breach or default, 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.
A person who is not a party to the Contract shall not have any right to enforce its terms.
You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of you rights and obligations under the Contract.
We may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of our rights under the Contract.
The Contract constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by us or on our behalf which is not expressly set out in the Contract, provided that nothing in this Clause 14.5 shall exclude or limit the liability of either you or us for fraud or fraudulent misrepresentation.
No variation of the Contract shall be effective unless it is agreed in writing and signed by an authorised representative of each of you and us, save that we reserve the right to update these Conditions as we see fit from time to time.
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.
You and we irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).