1.1 In these conditions:
“Buyer” means the person(s), firm or company who purchases Equipment or Parts from the Seller;
“Contract” means any contract between the Seller and the Buyer for the sale and purchase of Parts or Equipment, or the provision of services, incorporating these conditions;
“Seller” means Toshiba Air Conditioning, a division of Toshiba Carrier (UK) Limited.
1.2 Subject to any modification in accordance with this clause, the Contract will be on these Conditions and supersedes all previous or contemporaneous, oral or written statements (including any terms or conditions the Buyer purports to apply under any purchase order, confirmation of order, specification or other document). No modification or additions to the Contract or these Conditions shall be binding unless in writing and signed by both parties. No representation about the Equipment or Parts shall have any effect unless expressly agreed in writing and signed on behalf of the Seller. The contract is personal to Buyer and may not be assigned without Seller’s written consent.
1.3 If the Housing Grants Construction & Regeneration Act 1996 Part II applies to the Contract the Scheme under the Act shall apply and take precedence in the event of conflict between the Scheme and these Conditions.
1.4 Each order for Equipment or Parts by the Buyer from the Seller shall be deemed to be an offer by the Buyer to purchase such Equipment and Parts from the Seller subject to these Conditions.
1.5 No order placed by the Buyer shall be deemed to be accepted by the Seller until a written acknowledgment of order is issued by the Seller or (if earlier) the Seller delivers the Equipment or Parts to the Buyer.
1.6 Any quotation is given on the basis that no contract will come into existence until the Seller dispatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days from its date, provided the Seller has not previously withdrawn.
2. PRICE AND PAYMENT
2.1 The price shall be as stated and is exclusive of taxes and any other governmental charges, including, but not limited, to VAT. Any discounts, deductions, or rebates agreed are only available if the price is paid by the due date.
2.2 Goods or services in addition to those specified in the Contract will be provided upon receipt of Buyer’s written acknowledgement and shall be paid for as an extra and subject to these Conditions.
2.3 Payment shall be made thirty (30) days after the date of the invoice, which shall be issued on or at any time after delivery. Seller reserves the right to require cash payment or other alternative method of payment prior to shipment or completion of work if Seller determines, in its sole discretion, that Buyer or Buyer’s assignee’s financial condition at any time does not justify continuance of the 30 day payment terms. Buyer may not withhold payment of any invoice or other amount due to Seller by reason of any right of set off or counterclaim which Buyer may have or allege to have for any reason. Time for payment shall be of the essence.
2.4 If the Buyer fails to pay the Seller any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Seller on such sum from the due date for payment until the date of actual payment at the rate of 1% above the prevailing HSBC base rate.
3.1 Delivery shall occur when the Equipment or Parts arrive at the delivery address specified by the Buyer or two (2) working days after delivery or collection is offered to Buyer. If Seller fails to make arrangements to accept delivery or collect the Equipment or Parts or if Seller is unable to deliver because of inadequate access or instruction, the Equipment or Parts to have been delivered and Seller may do any one or more of the following (without prejudice to any other right or remedy Seller may have):
a. Make additional charges for failed delivery;
b. Store the Equipment or Parts at Buyer’s risk and cost;
c. Invoice Buyer for the Equipment or Parts;
d. Terminate this contract without liability on Seller’s part; and/or
e. Recover from Buyer all costs and losses incurred by Seller.
3.2 Delivery dates are given in good faith but are estimates only. Seller does not guarantee a particular date for shipment or delivery. Time for delivery shall not be of the essence of the Contract.
3.3 Seller shall have the right to ship any portion of the Equipment or Parts included in the Contract and invoice customer for such partial shipment.
4. TESTS, INSPECTION, DAMAGE AND LOSS
4.1 Equipment and/or Parts produced for Buyer will be factory tested at Seller’s manufacturing laboratory at Buyer’s request and in Buyer’s presence subject to an additional charge. Seller shall not be liable for any delay caused by such tests and tests done in the absence of Buyer shall be deemed in Buyer’s presence if Buyer has received five (5) working days notice of the test date.
4.2 Buyer shall inspect the Equipment or Parts at the place and time of unloading but nothing in these terms shall require Buyer to break packaging and/or unpack Equipment or Parts which are intended to be stored before use.
4.3 Unless you advise Seller by telephone immediately and written notice is received by Seller (and in the event of loss or damage in transit is also received by the carrier), within three (3) working days of unloading, of any claim for loss, damage, short delivery or failure to conform to the contract apparent on inspection, the Equipment and/or Parts will be deemed to have been delivered in accordance with the delivery documents and Buyer shall not be entitled and waives any right to reject the Equipment and/or Parts.
5. TITLE AND RISK OF LOSS
5.1 Risk of loss of the Equipment and/or Parts shall pass to Buyer upon delivery.
5.2 Title shall remain with Seller until Buyer pays the price for the Equipment and/or Parts.
5.3 Until title passes Buyer shall hold the Equipment and/or Parts on a fiduciary basis and as Seller’s bailee. The Equipment and/or Parts shall be stored separately from any other equipment, parts or other goods of the Buyer or any third party in such a way that they remain identifiable as the Seller’s property and Buyer shall not interfere with any identification marks, labels, batch numbers or serial numbers on the Equipment and/or Parts.
5.4 Buyer’s right to possession of Parts and Equipment shall terminate immediately if:
a. The Buyer encumbers, or in any way charges any of the Equipment or Parts, or seeks to do so;
b. The Buyer fails to observe or perform any of its obligations under the Contract or any other contract between the Buyer and Seller, or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986 or the Buyer ceases to trade;
c. The Buyer has a receiver, administrator, or administrative receiver appointed of its undertaking or any part of it or a resolution is passed or a petition is presented to any court for the winding up of the Buyer or for the grant of an administration order in respect of the Buyer or the Buyer convenes a meeting of creditors or enters into liquidation.
5.5 Seller shall be entitled to recover payment for the Equipment and/or Parts notwithstanding that ownership of any of the Equipment and/or Parts has not passed from the Seller.
5.6 If the Equipment and/or Parts are to become affixed to any land or building, Buyer must ensure that they are capable of removal without material injury to the land or building and Buyer shall take all necessary steps to prevent title to the Equipment and/or Parts from passing to the owner or landlord of such land or building.
5.7 Seller, its employees or agents, may with such transport as is necessary, enter upon premises occupied by Buyer or to which Buyer has access and where the Equipment and/or Parts may be or are believed to be situated in order to inspect them or, where the Buyer’s right to possession has terminated, to recover them.
6 LEFT INTENTIONALLY BLANK
7.1 Seller warrants that all equipment and parts manufactured by Seller will be free from defects in material and workmanship (the “Equipment” and “Parts”). For Equipment and Parts determined to be defective within thirty-six (36) months from the date of installation or thirty-nine (39) months from the date of shipment, whichever is earlier, Seller shall at its option repair, replace, or issue a credit, for such Equipment or Parts, provided that they were not damaged, abused, or affected by chemical properties. Any claim under this warranty must be provided to Seller in writing. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (other than the Condition implied by Section 12 of the Sales of Goods Act 1979), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Seller’s obligation to repair, replace or issue a credit for any defective Equipment or Parts during the warranty period shall be customer’s exclusive remedy. Seller shall be responsible for labour charges during Seller’s normal business hours for removal or reinstallation of defective Equipment or Parts, however, Seller shall not be responsible for consumable items (including, but not limited to vee belts, oil and filters) transportation charges, cranage charges, out of Seller’s normal working hours, handling and shipping or refrigerant loss. Seller may make a charge in accordance with its standard rates if after notification of a claim no defect in material or workmanship is found.
7.2 In order for the above warranty to apply, the Equipment and/or Parts must have been maintained by a recognised air conditioning service company with trained staff, experienced and knowledgeable on the Equipment in question, throughout the warranty period (proof of which may be required prior to a service visit being carried out).
8. DISCLAIMERS AND LIMITATION OF LIABILITY
8.1 Any errors or omissions in any sales literature, quotation, tender, price list, acceptance of offer, invoice or other document or information issued by Seller shall be subject to correction without liability on Seller’s part.
8.2 Seller may make changes to the specification of the goods necessary to conform with any applicable statutory or EC requirements, or any relevant legislation, or where goods are supplied to Seller’s specifications that do not materially affect their quality or performance.
8.3 Except in quotations or tenders against the Buyer’s detailed drawings, statements of weight and dimensions are approximations only and the descriptions and illustrations in any of Seller’s catalogues, price lists, or other advertising materials are intended to present only a general idea of the goods described therein and none of these shall form part of the Contract. The Seller does not accept responsibility for any drawings, designs or specifications not prepared by it and submission of the tender or quotation does not constitute any warranty, guarantee, representation or opinion of the practicability of construction, efficiency or safety or otherwise of materials to be supplied or work to be executed by the Seller accordingly. Additional work caused by defects in any such drawings, designs or specifications shall be chargeable as extra work.
8.4 Nothing in these Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence or fraudulent misrepresentation.
8.5 Subject to conditions 7 and 8.4:
a. The Seller’s total liability in contract and tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance of the Contract shall be limited to the price paid by the Buyer to the Seller under the Contract;
b. The Seller shall not be liable to the Buyer for: I) personal injury, ii) damage to property, iii) loss of profits, iv) loss of business, v) indirect or consequential loss or damage, vi) costs (howsoever caused) which arise out of or in connection with the Contract.
9.1 Buyer agrees to fully and unconditionally indemnify, defend and hold harmless Seller against any and all losses, damages, penalties, costs and expenses (including attorneys’ fees) arising from any and all alleged or actual claims, demands, administrative proceedings or causes of action by any third party arising from the supply of the Equipment, Parts or Service. This indemnity will be reduced in proportion to the extent that such losses, damages, penalties costs and expenses (including attorneys’ fees) are a directly caused by Seller’s negligence.
9.2 Buyer agrees to fully and unconditionally indemnify and hold harmless Seller against any and all losses, damages, penalties, costs and expenses (including attorneys’ fees) arising from Buyer’s failure to comply with any laws (including export restrictions), Buyer’s instructions, cancellation of the order and/or, in general, breach of this Contract.
Delayed performance or non-performance caused by conditions beyond the reasonable control of either party shall not be the liability of either party.
11.1 Seller may immediately terminate the Contract for Cause with out any liability on Seller’s part. Cause shall mean failure to pay any invoice or any sum due to Seller from Buyer under the Contract or any other contract between the Buyer and the Seller on the due date, and/or Buyer’s credit limit is exceeded, and/or Buyer or Buyer’s Associated Company (as defined in the Income and Corporations Taxes Act 1988) becomes Insolvent, and/or there is a material change in Buyer’s or Buyer’s Associated Company’s constitution, and/or Buyer commits a material breach of the Contract. If Buyer fails to remedy any of the above after being requested to do so, all sums outstanding between Buyer and Seller under the Contract shall become immediately due and payable and Seller shall be entitled to do any one or more of the following (without prejudice to any other right or remedy Seller may have):
a. Require payment in cleared funds in advance of further deliveries of Equipment and/or Parts;
b. Suspend or cancel any further deliveries of Equipment and/or Parts to Buyer under any contract without liability on Seller’s part; and/or
c. Suspend or cancel any obligation to commission the Equipment whether under this or any other contract.
11.2 Buyer may cancel this Agreement only with Seller’s prior written consent, and upon payment of the specified cancellation charges. Such charges shall take into account costs and expenses incurred, and purchases or contract commitments made by Seller and all other losses due to the cancellation including a reasonable profit. Unused goods will be accepted for return at Sellers discretion and on terms agreed to by Seller.
11.3 Termination of the Contract shall not affect the rights and obligations that have already accrued at the time of termination.
12. DISPUTE RESOLUTION
12.1 The Contract shall be governed and interpreted according to the Law of England and Wales, except for its conflict of law provisions, and Buyer agrees to submit to the exclusive jurisdiction of the English Courts.
12.2 The parties agree that any suits arising from the performance or non-performance of the Contract, whether based on contract, negligence, strict liability or otherwise, shall be brought within one (1) year from the date that the claim arose.
12.3 If at any time any question, dispute or difference whatsoever shall arise between Buyer and Seller upon or in relation to or in connection with the Contract, either party may give the other notice in writing of the existence thereof and Seller reserves the right as to whether or not the same shall be referred to the arbitration of a person to be mutually agreed upon. Any submission shall be deemed to be a submission within the meaning of the Arbitration Act 1950, as amended.
13.1 The Headings used in these Conditions are for convenience only and shall not affect their interpretation.
13.2 The waiver by either party of any breach or default of these Conditions shall not be construed as a continued waiver of that breach nor as a waiver of any subsequent breach of the same or any other provision.
13.3 Failure or delay by the Seller in enforcing or partially enforcing any provisions of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.4 If any clause or sub-clause of these Conditions is held by a court or any other competent authority to be wholly or partly illegal, void, unreasonableness, invalidity or unenforceability it shall to the extent of such illegality, voidness, unreasonableness, invalidity or unenforceability be deemed severable and the remaining provisions of the Contract and of the other clauses and sub-clauses of Conditions shall not be affected and they shall remain in full force and effect.
13.5 Buyer represents and warrants that it will not do or omit to do anything that would place Seller, or any parent, subsidiary, or associated company, in breach of any laws, including, but not limited to English and foreign export and import laws.