These conditions govern all contracts made by Lift West Limited (“the Company”) for the supply of goods (which expression shall where the context so permits include contracts for the supply of units, parts, accessories, replacements, spares goods on hire and on hire purchaser and services). Unless expressly accepted by the company in writing no condition or warranty inconsistent herewith shall apply to any such contract.
All orders are placed under these terms and conditions, which exclude any inconsistent terms and conditions that you, the buyer, seek to impose even though they may be submitted in a later document and /or purport to exclude our terms and conditions. No amendment to these terms and conditions may be made unless expressly accepted by us in writing. Goods and service shall be deemed to be accepted by the customer unless the company is notified in writing within 10 days of the invoice date of the grounds for any dissatisfaction.
Unless specifically quoted on the front of this invoice Terms of payment are strictly net at the due date for payment which shall not exceed 30 days from the date of invoice unless otherwise agreed in writing. Payment at due date is a condition precedent to subsequent delivery and time of payment is of the essence of the contract. All payments are to be made at the company’s head office (unless otherwise requested by the company) and in the manner stipulated by the company, interest ant the rate of 5% per month is payable upon the company’s written demand on all overdue accounts from the due date until payment.
4 FORCE MAJEURE
Without prejudice to its rights in the event of a breach of contract by the customer the company reserves the right (without liability to the customer for loss or damage arising there from) at the company’s option to suspend delivery and /or to cancel unfulfilled parts of any contract in whole or in part by reason of act of God. War. Force Majeure. Strikes, lock-outs, restrictions on supplies, government control, inevitable accident or any circumstances which may be outside its control the company is prevented or delayed from or in performing its obligations under the contract in whole or in part. The company’s liability in the event of suspension of delivery and/or cancellation of any contract in whole or in part shall be limited to repayment to the customer (without interest) of any part of the purchase price already received by the company and attributable to any unfulfilled and cancelled part of the contract less any expense incurred by the company down to the date of cancellation in part performance of the unfulfilled and cancelled part of the contract.
Delivery dates are approximate only and without engagement, but the company will endeavour to meet customers’ requirements. Time shall not (except in respect of payment to the company) be of the essence of any contract (nor shall the company be under any liability for delay in delivery whether arising out of alleged negligence on the part of the company or its servants or agents or otherwise unless otherwise expressly agreed by the company in writing in which case the company’s liability shall be limited to such liquidated damages (if any) as may be specifically agreed. Each delivery and part delivery shall be deemed to represent a separate contract and failure of any delivery or part delivery shall not vitiate any contract in respect of any other delivery of part delivery.
6 SPECIFICATION AND PERFORMANCE
Details, drawings, specifications and statements as to capacity. Power output and suitability and otherwise issued by the company in connection with its goods are intended to be approximate only and shall not be taken to apply to any particular goods none of which shall carry any guarantee or warranty as to quality fitness or suitability unless an express guarantee is given to the customer separately in writing in each particular case. Representations as to performance relate to what the company would expect to obtain upon test but since goods are employed in many trades and for many purposes under varying conditions of operation the company cannot accept liability for failure to obtain any stated performance unless an express guarantee is given to the customer separately in writing in each particular case. Where a guarantee so given is not fulfilled within a reasonable time opportunities shall first be given to the company to comply with the terns of the guarantee. In the event that the company fails to do so the customer may return the goods failing to comply with the guarantee, but in the case of plant consisting of several units such tight of return shall only extend to the unit which has proved deficient, the company will then repay to the customer (without interest) the purchase price of the goods so returned, carriage paid at the customers risk and the company’s liability shall be fully discharged by such repayment.
7 ON SITE LABOUR
Where the company provides labour at the customer’s works or on site the customer shall indemnify the company against all loss expense and damage incurred by the company and arising directly or indirectly from defects in our unsuitability of the works or site or of apparatus or plant provided by the customer or from negligence or breach of statutory duty on the part of the customer its employees or agents or other occupier and against all claims by third parities so arising either at common law or for breach of statutory duty.
8 PASSING OF RISKS
In the case of ex-works contracts upon collection or despatch of goods from the company’s works and in other cases upon arrival of goods at the place of delivery goods shall be at risk of the customer who shall be responsible for any loss or damage thereto however caused and whether by negligence of the company its employees or agents or otherwise notwithstanding that property in the goods may not then have passed to the customer.
9 PASSING OF PROPERTY
Property in goods supplied shall not pass to the customer until fulfilment of all the customer’s obligations under the contract pending which and without prejudice to the company’s rights in the event of a breach of contract by the customer the company may by notice to the customer require redelivery of the goods carriage paid to the company’s head office and/or as agent for the customer enter the premises in which the goods are situate and remove them at the risk and expense of the customer.
Ownership of the foods does not pass to you until whichever of the following occurs first. Payment due under all your contracts with us is made in full; you sell the goods in which case title to the goods sold is deemed to pass to you immediately prior to delivery to your customer until ownership of the goods pass to you. You hold the goods as fiduciary agent and bailee for us; the goods must be stored and marked in such a way as to be clearly identifiable as belonging to us; the goods must be kept in good repair and insured for an amount equal to the contract price. We may at any time revoke our permission, to sell and use the goods by giving you written notice if any amount due to us under any contract with you is overdue by more than 14 days or if we have bona fide doubts about your solvency. Your right to sell and use the goods automatically ceases if: you make any voluntary arrangement with your creditors or becomes subject to an administration order or being an individual or firm) become bankrupt or (being a company) go into liquidation; or a receiver is appointed, over, any of your property; or o you cease, or threaten to cease, to carry on business; or we reasonably apprehend that any of the events mentioned above is about to occur in relation to you and we notify you accordingly. If your right to sell and use the goods is terminated under the above provisions, you must place any of the goods under your control and unsold at our disposal and allow us to remove them from your premises.
Goods and services shall be deemed to have been accepted by the customer as being in conformity with the contract unless within a reasonable tine(not in any event to exceed 90 days after the date of the passing of risk under condition 8 above) the customer specifies in writing to the company the customer’s grounds of dissatisfaction.
12 PRICE VARIATION
If before delivery the company alters its list prices or any tax duty or levy fails to be added directly or indirectly to the price of goods or services the company reserves the right to advise the customer of such alteration or addition in which event the revised price shall be deemed to be accepted by the customer unless within 14 days the customer notifies the company to the contrary, in the event of such notification the customer shall be obliged to pay such altered or additional price to the extent to which the variation arises for variations in wages, material or other costs or from any tax duty or levy liability which has arisen since the list price was fixed.
13 VARIATION IN SPECIFICATION
No variation by the company in specification of any goods or services to be supplied under the contract shall invalidate the contract, without prejudice to the generality of the provision the company may if it makes any major alteration in the specification of goods or services to be supplied notify the customer of such variation and the revised specification shall be deemed to be accepted by the customer unless with 14 days the customer notifies the company to the contrary in which event the company may by notice in writing to the customer cancel t he contract in whole or in part in so far as it remains to be performed by the company without liability on part of the company beyond repayment to the customer (without interest) of any part of the purchase price already received by the company and attribute to any unfulfilled and cancelled part of the contract less any expense incurred by the company down to the date of cancellation in part performance of the unfulfilled and cancelled part of the contract.
14 LIMITATION OF LIABILITIES
The company shall in no circumstances be liable to any customer in respect of any claim howsoever arising (whether based on alleged negligence by the company or its employees or agents or otherwise) for any loss or consequential loss or damage. In addition to this overriding limitation of liability, the company’s liabilities in respect of all contacts to which these conditions apply and in respect of the subject matter of every such contract shall be strictly limited to the provisions of the conditions and all other provisions of these conditions and all other provisions representatives conditions warranties and guarantees (except in so far as they are given under in accordance with these conditions) and whether express or implied by common law, statute, trade custom or otherwise are hereby expressly excluded.
15 ALLOWANCE FOR USED MACHINERY
If the company agrees to allow a deduction from the price of goods or services by reason of its taking delivery from the customer of any used machinery such used machinery shall be delivered to and accepted by the company upon the following conditions (in addition to all conditions and warranties expressly agreed or implied by common law, statute, trade custom or otherwise and as to quality condition fitness performance or otherwise are hereby expressly excluded that after examination by the company such used machinery shall be delivered tot he company in at least as good condition as it was when so examined and that the machinery in respect of which the customer is allowed such deduction is warranted by the customer to be his absolute property and not the subject of any hire purchase agreement or any other encumbrance whatsoever or in the alternative that if such machinery is the subject of any encumbrance the company shall he entitled to make such payment (not exceeding the agreed allowance) to the encumbrance concerned as maybe requisite finally to discharge such encumbrance and the company may then reduce the allowance to the customer in respect of such machinery by an amount equal to the amount paid to the encumbrance. Provided that if before the date of delivery of the goods there shall be any significant change in the market value of the used machinery agreed to be taken by the company the greed allowance shall not be binding on either party and the allowance to be given shall be settled by an independent valuer to be nominated by the company.
16 BATTERY CHARGERS
Installation of battery charges is not included in the price. It is your responsibility to ensure that battery charges are installed by a qualified electrician. We are not liable for loss or damage of any kind resulting from the incorrect installation of battery charges.
17 ASSIGNMENT TO THIRD PARTY
At the request of the customer, made not later than 14 days after the date of the company’s acceptance of an order, the company will offer to sell the ordered goods to a finance company approved by the company at the contract price and upon these conditions of sale for the purpose of enabling such finance company to let the goods on hire purchase or on hire to the customer. The customer’s liability to the company for payment of the contract price shall then be deferred until the expiration of 21 days from the date of submission of such offer to the finance company by the company or until rejection of the offer by the finance company, whichever is the earlier. If the offer shall be accepted by the finance company within the 21 day period and the company shall receive from the finance company a sum equivalent to the contract price (credit being given for any deposit paid by the customer to the company) then (but not other wise) these conditions of sale shall cease to have effect in so far as they require the company to transfer to the customer the property in the goods or require the customer to pay the contract price to the company but in all other respects these conditions shall continue to apply as if the customer had purchased the goods form the company under these conditions of sale and no liability shall attach to the company beyond that provided by these conditions.
Any notice hereunder may be served personally or may be left at or sent by post to or any residence or place of business of the person to whom it is addressed and in case of posting notices shall be deemed to have been to have been served on the day following the day of posting.
19 PROPER LAW
English law governs all the company’s contracts all of which shall be deemed to have been made in England and the customer submits to the jurisdiction of the English courts.