“Seller” shall mean Air Pressure Solutions Ltd its successors and assigns or any person acting on behalf of and with the authority of Air Pressure Solutions Ltd.
“Buyer” shall mean the person or entity described as such on the invoices, application for credit, quotation, work authorisation or any other forms to which these terms and conditions apply, and shall include any person acting on behalf of and with the authority of such person or entity.
“Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Buyer on a principal debtor basis.
“Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Buyer.
“Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above). “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 0 of this contract.
Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein. Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be amended with the written consent of the Seller. The Buyer undertakes to give the Seller at least fourteen (14) days notice of any change in the Buyer’s name, address and/or any other change in the Buyer’s details.
Price And Payment
At the Seller’s sole discretion the Price shall be either: as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or the Seller’s estimated or quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Buyer shall accept either the Seller’s estimate or quotation in writing within sixty (60) days.
The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.
At the Seller’s sole discretion a deposit may be required.
Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice. At the Seller’s sole discretion: payment shall be due on delivery of the Goods; or payment shall be due before delivery of the Goods; or
Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Buyer and the Seller.
If payment is made by credit card, a card processing fee of £5 or 5% (whichever the larger) shall be added to the Price.
VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Delivery Of Goods
At the Seller’s sole discretion delivery of the Goods shall take place when:
the Buyer takes possession of the Goods at the Seller’s address; or the Buyer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Buyer’s agent. At the Seller’s sole discretion the costs of delivery are: in addition to the Price; or for the Buyer’s account.
The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions. The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that: such discrepancy in quantity shall not exceed 5%; and the Price shall be adjusted pro rata to the discrepancy.
The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
Where delivery is to be made by instalments, each delivery shall be deemed for such purpose to be the subject of a separate contract and any failure whatsoever by the seller in respect of any one delivery shall not entitle the buyer to repudiate the contract or any instalment remaining to be delivered thereunder.
If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
It is the intention of the Seller and agreed by the Buyer that ownership of the Goods shall not pass until: the Buyer has paid all amounts owing for the particular Goods; and the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer.
Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Goods shall continue.
It is further agreed that:
where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Buyer are met; and
until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease; and
the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and
if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods; and
the Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller; and
the Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller; and
the Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller; and the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer; and until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products.
The Buyer shall inspect the Goods on delivery and shall within three (3) days notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.
No Goods shall be accepted for return except in accordance with 8.1 above.
Returns will only be accepted provided that:
the Buyer has complied with the provisions of clause 8.1; and the Seller has agreed in writing to accept the return of the Goods; and
the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date; and the Seller will not be liable for Goods which have not been stored or used in a proper manner; and the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
The Seller will not accept the return of non-defective Goods for credit.
The Seller may (at its discretion) accept the return of non-defective Goods for credit or refund but this may incur a handling fee of 50% of the value of the returned Goods plus any freight.
Subject to the conditions of warranty set out in Clause 10.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within twenty four (24) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) repair the defect or remedy the workmanship. The conditions applicable to the warranty given by Clause 10.1 are:
The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
Failure on the part of the Buyer to properly maintain any Goods; or
Failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or
Any use of any Goods otherwise than for any application specified on a quote or order form; or
The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or Fair wear and tear, any accident or act of God.
The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent. In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Buyer’s claim.
For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. Whilst the Seller shall honour such warranty the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
The conditions applicable to the warranty given on Goods supplied by the Seller are contained on the “Warranty Card” that will be supplied with the Goods.
In the case of second hand Goods, the Buyer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
Sale of Goods Act 1979 and Supply of Goods and Services Act 1982
This agreement is subject to the provisions of the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 (or any replacement or re-enactment thereof) in all cases except where the Buyer is contracting within the terms of a trade/business (which cases are specifically excluded).
Notwithstanding clause 0 nothing in this agreement is intended to have the effect of contracting out of any applicable provisions the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 or any laws or legislation governing the rights of consumers, except to the extent permitted by those Acts, laws or legislation.
Where the Seller has designed, drawn or written Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion. The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Buyer’s order.
Default & Consequences of Default
Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
The Seller may charge interest on overdue invoices in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a ‘solicitor and own client’ basis and the Seller’s collection agency costs.
Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause. If any account remains overdue after thirty (30) days then an amount of ₤20.00 shall be levied as an administration fee and shall be levied for each month that the account remains overdue, which sums shall become immediately due and payable.
Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
Security And Charge
Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever: where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met. should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
The Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 0.
The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation. This applies particularly to non-standard (special) items ordered by the Buyer.
Data Protection Act 1998
The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller to:
collect, retain and use any information about the Buyer, for the purpose of assessing the Buyer’s creditworthiness or marketing products and services to the Buyer; and
to disclose information about the Buyer, whether collected by the Seller from the Buyer directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing a default by the Buyer on publicly accessible credit reporting databases.
The Seller may also use information about the Buyer to monitor and analyse its business. In this connection the Buyer authorises the Seller to disclose personal information to agents or third parties engaged by the Seller.
The Buyer consents to the transfer of information outside of the European Economic Area for the purposes listed above.
Where the Buyer is an individual the authorities under (clause 0) are authorities or consents for the purposes of the Data Protection Act 1998.
The Buyer shall have the right to request the Seller for a copy of the information about the Buyer retained by the Seller and the right to request the Seller to correct any incorrect information about the Buyer held by the Seller.
Limitation of Liability
The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit or goodwill) suffered by the Buyer or any third party arising out of a breach by the Seller of these terms and conditions.
In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages and the Seller’s liability (if any) whether in contract, tort or otherwise in respect of any defect in the Goods, or for any breach of these terms and conditions, or of any duty owed to the Buyer in connection with them shall be limited to the amount of the Price.
For the avoidance of doubt, nothing in these terms and conditions shall exclude or restrict the Seller’s liability to any person for death or personal injury to that person resulting from the Seller’s negligence.
Unpaid Seller’s Rights
Where the Buyer has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other Service in relation to the item and the Seller has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Seller shall have: a lien on the item;
the right to retain the item for the Price while the Seller is in possession of the item; a right to sell the item.
The lien of the Seller shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Buyer by the Seller and the Buyer acknowledges that the Goods are bought relying solely upon the Buyer’s skill and judgment.
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. These terms and conditions and any contract to which they apply shall be governed by the laws of England and Wales and are subject to the jurisdiction of the courts of Tunbridge Wells. The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Buyer by the Seller.
The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Buyer of such change. Except where the Seller supplies further Goods to the Buyer and the Buyer accepts such Goods, the Buyer shall be under no obligation to accept such changes. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.