Advanced Air (UK) Limited - Terms and Conditions
Last updated February 2010
"Acknowledgement of Order" means the confirmation of the Goods and Services to be provided by the Seller to the Buyer subject to these conditions;
"Buyer" means the Company, person or firm as detailed in the Acknowledgement of Order as purchasing the Goods and/or Services;
"Commencement Date" means the date on which the Buyer's offer is accepted by the Seller;
"Conditions" means these terms and conditions;
"Commissioning" means the Seller's confirming that the Goods are correctly installed and configured;
"Contract" means the contract subject to the Conditions for the provision of Services and/or for the supply of Goods made between the Seller and the Buyer;
"Completion Certificate" means the notice issued by the Seller on completion of Commissioning;
"Equipment" means the equipment listed in the Acknowledgement of Order in respect of which the Seller will provide the Services;
"Goods" means the goods, materials and/or other items as set out in the Acknowledgement of Order to be supplied pursuant to the Contract;
"Parts" means Goods which are component parts sold to the Buyer for the Buyer to install which are to replace worn, broken or defective components;
"Price" means the price of Goods and/or Services as set out in the Acknowledgement of Order [subject to Clauses 5.2 and 5.3];
"Recommended Specification" means the technical specification of Goods provided by the Seller to the Buyer;
"Seller" means Advanced Air (UK) Ltd of Burrell Way, Thetford, Norfolk, IP24 3QU, registered number 1093689;
"Services" means the Services set out in the Acknowledgement of Order;
"Site" means the location(s) specified in the Acknowledgement of Order for the delivery of the Goods or Services;
"Writing" includes manuscript, type-written or printed statement, facsimile transmission and electronic mail.
2. FORMATION OF CONTRACT
2.1 Except where these Conditions are varied in accordance with Clause 2.2, these Conditions shall apply to any Contract entered into between the Buyer and Seller to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any order or other document), whether referred to in previous dealings or discussions, or implied by law or otherwise, and shall constitute the entire agreement between the parties.
2.2 No variation to any of these Conditions shall be incorporated into these Conditions unless agreed by the authorised representatives of each of the parties in Writing and the parties acknowledge that these Conditions (with the incorporation of any such variations) constitute the entire agreement between the parties.
2.3 Any typographical, clerical or other error or omission in any sales literature, proposal, price list, acceptance of order, drawings, specifications, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.4 Any advice or recommendation given by the Seller to the Buyer in relation to the Goods and/or Services, which is not confirmed in Writing by a duly authorised representative of the Seller, is followed or accepted by the Buyer entirely at the Buyer's own risk and the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
3. CONTRACT PRICE
3.1 The Price payable for the Goods and the Services shall be that set out in the Acknowledgement of Order.
3.2 The Price will not be subject to any retention as commonly understood within the construction industry and will be payable in full in accordance with these Conditions.
3.3 The Seller shall be entitled at any time and from time to time to increase the Price referred to in Clause 3.1 by giving notice in Writing to the Buyer at any time prior to the delivery of Goods or any part of the Services to reflect any increase in the Seller's cost in performing the Contract which is due to any factor beyond the Seller's control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of import/export duties, increase in the cost of labour, materials or costs of manufacture or performance) any change in quantities or specification of the Goods or Services requirements requested by the Buyer or failure to give the Seller adequate information or instructions.
3.4 Unless otherwise agreed by the Seller in Writing, the Price includes freight costs to the Site and insurance while the Goods are in transit.
3.5 The Price is exclusive of any Value Added Tax or any other tax or duty payable and the Buyer will bear the cost of any such tax or duty in addition to the Price.
3.6 The Buyer will ensure that the Site is prepared to enable the Seller to deliver the Goods and/or perform the Services, and to enable the Buyer to accept delivery or performance of the same, including, without limitation, arranging access to the Site, providing cranes, hoists or other safety equipment, utilities, other services and workmen. In the event that the Site is not prepared as required by this Clause 3.5, at the time of delivery of the Goods or performance of the Services, the Seller may arrange any equipment or services necessary to prepare the Site for delivery by the Seller and acceptance by the Buyer and charge the cost of such equipment and services and any associated administration charges, to the Buyer in accordance with Clause 6, and/or store and maintain the Goods in accordance with Clause 5.5 until the Buyer has prepared the Site and an alternative delivery date has been agreed.
3.7 The Buyer will indemnify the Seller against all costs, charges expenses, actions, suits, claims and demands in connection with any equipment or services arranged by the Seller under Clause 3.5.
3.8 Where the Buyer requests Goods or Services outside of those referred to in the Acknowledgement of Order then the Seller shall be entitled to charge for such in accordance with its then current pricing structure.
4. TRANSFER OF TITLE AND RISK
4.1 Risk in the Goods and all liability to third parties in respect thereof shall pass to the Buyer on delivery to the Site.
4.2 Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of the Good and/or Services.
4.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
4.3.1 hold the Goods on a fiduciary basis as the Seller's bailee;
4.3.2 store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller's property;
4.3.3 not destroy, deface or obscure any identifying mark on or relating to the Goods;
4.3.4 maintain the Goods in satisfactory condition insured on the Seller's behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller; and
4.3.5 hold the proceeds of the insurance referred to in condition 4.3.4 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
4.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
4.4.1 any sale shall be effected in the ordinary course of the Buyer's business at full market value and the Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to the Seller on behalf of the Seller and the Buyer shall account to the Seller accordingly;
4.4.2 such part of the proceeds of any sale as represent the amount owed to the Seller are held on trust for the Seller and will not be mixed with any other money nor paid into an overdrawn bank account, but be placed in a separate bank account in the Seller's name;
4.4.3 any such sale shall be a sale of the Seller's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale; and
4.4.4 actual delivery of the Goods to the Buyer has been effected.
4.5 The Buyer's right to possession of the Goods shall terminate immediately if:
4.5.1 the Buyer, has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or being a body corporate convenes a meeting of creditors or enters into liquidation or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, 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 if the Buyer suffers any similar or analogous action in any jurisdiction in consequence of debt; or
4.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of sections 123 or 268 of the Insolvency Act 1986 (as appropriate) or the Buyer ceases to trade; or
4.5.3 the Buyer encumbers or in any way charges any of the Goods.
4.6 the Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
4.7 The Buyer grants the Seller, 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.
5.1 The Seller will issue an estimated time for delivery on the Acknowledgement of Order. Removal from their transportation vehicle(s), installation and positioning of the Goods is the responsibility of the Buyer and the Seller accepts no liability for removing the goods from the transportation vehicle or installation or positioning.
5.2 Delivery of Goods is subject to availability and time for delivery shall not be of the essence. The Seller shall not be responsible for any failure to meet proposed or agreed delivery dates.
5.3 If for any reason either the Buyer will not accept delivery or the Seller is unable to deliver the Goods because the Buyer has not provided appropriate instructions, documents, licences or authorisations (an Aborted Delivery) then:-
5.3.1 The Goods will be deemed to have been delivered and risk in the Goods will pass to the Buyer;
5.3.2 The Seller may store and maintain the Goods until actual delivery to Site and the Buyer will be liable for all related costs and expenses including, without limitation, storage and insurance in accordance with Clause 6;
5.3.3 Within 7 days of the Aborted Delivery the Seller shall notify the Buyer in Writing of a new delivery date;
5.4 Where the Seller chooses to store Goods until actual delivery, the Buyer will be liable for all costs and expenses associated with re-delivering the Goods on all occasions that the Seller tenders delivery.
5.5 Provided that the Buyer notifies the Seller in Writing that the Goods are ready for Commissioning, the Seller will attend the Site to undertake Commissioning of the Goods.
5.6 Time for Commissioning will not be of the essence and in the event that the Goods are found to be faulty during the Commissioning process then, subject to Clause 5.8, the Seller will use reasonable endeavours to obtain replacement parts, install them and complete Commissioning within a reasonable time.
5.7 the Seller accepts no responsibility for Commissioning where the Goods are, in the Seller's opinion:-
5.7.1 not installed correctly;
5.7.2 accidentally or deliberately misused by the Buyer or any third party;
5.7.3 not stored indoors and protected from the weather;
5.7.4 not stored or used at the correct temperature or humidity;
5.7.5 not stored or used in accordance with the Recommended Specification for the Goods;
5.7.6 not maintained by the Buyer in accordance with the Seller's instructions;
5.7.7 damaged by any other act beyond the Seller's control,
5.8 The Buyer is deemed to accept that the Goods and/or Services or any part thereof have been delivered to the Buyer's satisfaction unless the Seller is notified in Writing to the contrary within 5 working days of the Seller's delivery.
6. TERMS OF PAYMENT
6.1 Subject to Clause 6.9.3 or any variation as stated in the Acknowledgement of Order, amounts owing to the Seller under the Contract shall be paid in Pounds Sterling (£) and shall be due and payable within 30 days from the end of the month that the invoice was issued.
6.2 the Seller reserves the right to grant to and remove from the Buyer any credit period agreed in Writing whether in the Acknowledgement of Order, these Conditions or otherwise, by issuing notice in Writing to the Buyer. On issue of such notice by the Seller, the Price shall become payable forthwith in full by the Buyer.
6.3 the Seller reserves the right at any time:
6.3.1 to require the Buyer to provide such security or guarantee in respect of any credit advanced to the Buyer under this Contract as the Seller may in its absolute discretion deem necessary; or
6.3.2 to vary the terms and conditions of any credit advanced to the Buyer without notice.
6.4 Time for payment of the Price and all other sums due under the Conditions shall be of the essence.
6.5 No payment shall be deemed to have been received until the Seller has received cleared funds.
6.6 All payments payable to the Seller under the Contract shall become due immediately upon termination of this Contract.
6.7 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
6.8 the Seller reserves the right to suspend further deliveries of any Goods or performance of Services under this or any other Contract with the Buyer in the event of late or non-payment.
6.9 In the event that the Seller exercises its rights under Clause 6.8 above the Seller:
6.9.1 is entitled to remove from the Site all its equipment, materials and other property brought onto the Site by its employees;
6.9.2 may charge the Buyer the value of the Goods/Services delivered/executed prior to suspension along with the cost of any items and service supplied in accordance with Clauses 3.5, 5.5 and 5.6; and
6.9.3 all sums under this Clause 6.9 are payable immediately on presentation by the Seller of an invoice for the same.
6.10 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England accruing on a daily basis until payment in cleared funds is made, whether before or after any judgment.
6.11 The Buyer will indemnify the Seller against all costs and expenses incurred as a result of any breach of the Buyer's payment obligations in Clauses 3, 5 and 6 including legal fees in obtaining payment.
7. SELLER EQUIPMENT
7.1 The Buyer will store, free of charge, all materials, tools, plant machinery and other property brought on to the Site by the Seller for the purposes of the Contract.
7.2 The Buyer will indemnify the Seller against all loss or damage and against all actions, suits, claims, demands, costs, charges and expenses which may arise from the storage or use of such equipment at the Site.
8. ACCESS TO THE SITE
8.1 The Seller's employees, subcontractors and agents will be given free and continuous access to the Site and use of services on Site as reasonably required by the Seller to perform the Services or deliver or Commission the Goods.
8.2 In the event that access to the Site is refused for any reason, the Buyer will pay all of the Seller's cost in performing the Services or delivering or Commissioning the Goods caused by the refusal of access, including, but not limited to the cost of re-attending the Site, re-supply of Goods or Services, associated administration charges and all other costs and expenses.
8.3 the Seller will use reasonable endeavours to ensure its employees, subcontractors and agents comply with the Buyer's site rules and relevant health and safety standards.
8.4 The Buyer will notify the Seller in advance of any unusual operating conditions which may affect the Seller's performance of the Services or delivery or Commissioning of Goods.
9.1 Except where Clauses 9.2 or 9.3 apply:
9.1.1 Goods supplied pursuant to this Contract shall be guaranteed as regards parts and labour against all defects of workmanship and/or materials for a period of either 12 (twelve) months from actual delivery (in accordance with Clause 5) or 12 (twelve) months from the date Commissioning is completed whichever period expires first;
9.1.2 Parts supplied pursuant to this Contract shall be guaranteed as regards replacement against all defects of workmanship and/or materials for a period of 12 months from the date of delivery;
9.1.3 provided in each of the above situations that the Seller has received Written notice of such defect within the Warranty Period.
9.2 Replacement Goods provided under any of the provisions of Clause 9.1 shall be guaranteed for the unexpired period of the original Warranty Period only.
9.3 The guarantee in Clause 9.1 will not apply to Goods which are:
9.3.1 not maintained by the Seller or its authorised representative in accordance with the Seller's instructions;
9.3.2 not stored or used at the recommended temperature or humidity;
9.3.3 not installed correctly;
9.3.4 not stored indoors and protected from the weather;
9.3.5 accidentally or deliberately misused by the Buyer;
9.3.6 not stored or used in accordance with the Recommended Specification for the Goods;
9.3.7 damaged by any other act beyond the Seller's control;
9.3.8 replacement Goods not installed by the Seller or its authorised representative.
9.4 In the event of a claim under Clause 9.1 the Seller has the right to inspect the Goods in order to decide whether the guarantee applies to the Goods in accordance with Clause 9.3
9.5 Subject to conditions 9.3 and 9.4, if any of the Goods do not conform with the guarantee at Clause 9.1 the Seller shall at its option repair or replace such Goods or if the Goods cannot be repaired or replaced for any reason, refund the price of such Goods provided that, if the Seller so requests, the Buyer shall, at the Seller's reasonable expense, return the Goods or the part of such Goods which is defective to the Seller.
9.6 If the Seller complies with Clause 9.5 it shall have no further liability for a breach of warranty in Clause 9.1 in respect of such Goods.
9.7 Any Goods returned to the Seller which cannot be repaired and returned to the Buyer will belong to the Seller and any replacement Goods will be guaranteed in accordance with Clause 9.2. Any repaired goods will be guaranteed for the remainder of the relevant warranty period granted at Clause 9.1.
9.8 In relation to Goods, all warranties, conditions and other terms implied by statute or common law are excluded from the Contract.
9.9 In relation to the Services, the Seller warrants that the Services will be provided using reasonable skill and care.
10. LIMITATION OF LIABILITY
10.1 Subject to Clause 9, the following provisions set out the entire financial liability of the Seller, including any liability for the acts or omissions of its employees, agents and sub-contractors, to the Buyer in respect of:
10.1.1 any breach of these Conditions; and
10.1.2 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
10.2 Nothing in these Conditions excludes or limits the liability of the Seller for:
10.2.1 death or personal injury caused by the Seller's negligence; or
10.2.2 for the Seller's fraudulent misrepresentation.
10.3 Subject to conditions 9.8 and 10.2:
10.3.1 The Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Price; and
10.3.2 The Seller shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
10.3.3 The Seller shall have no liability to the Buyer for any loss, damage, costs, expenses or other claims for compensation arising from any instructions supplied by the Buyer whether in the Buyer's order or otherwise which are incomplete, incorrect, inaccurate, illegible or which arise from their late arrival or non-arrival, or any other fault of the Buyer.
11.1 Either party may terminate the Contract immediately:
11.1.1 by notice in Writing to the other if the other commits any material breach of these Conditions which is capable of remedy and fails to remedy the same within 30 days after being required by Written notice to do so (for the avoidance of doubt, late or non payment will be a material breach of condition); or
11.1.2 without notice if the other party has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or being a body corporate convenes a meeting of creditors or enters into liquidation or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the other party or for the granting of an administration order in respect of the other party, or any proceedings are commenced relating to the insolvency or possible insolvency of the other party or if the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
11.2 Upon the termination of the Contract for any reason, subject to any rights or obligations which have accrued prior to termination (including the Buyer's obligation to pay), neither party shall have any further obligation to the other under the Contract.
12. APPLICABLE LAW
12.1 This Contract shall be construed in all respects under English Law. Any dispute of difference arising under this Contract shall be subject to the exclusive jurisdiction of the English Courts.
12.2 If the Buyer and Seller wish to resolve any dispute or difference arising out of or in connection with this Contract by mediation then any mediation will be conducted in accordance with the Centre for Dispute Resolution ("CEDR") Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.
Both parties shall keep confidential and shall not without the prior consent in Writing of the other disclose to any third party any technical or commercial information which it has acquired from the other relating to the Goods and/or Services or the Contract.
14. FORCE MAJEURE
The Seller reserves the right to defer the date of delivery/performance of the Services 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 Seller including, without limitation, acts of God, governmental actions, war or national emergency, 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 or other unusual events provided that, if the event in question continues for a continuous period in excess of 6 months, the Buyer shall be entitled to give notice in writing to the Seller to terminate the Contract.
The Seller shall not be responsible for any losses or costs incurred by the Buyer, including the payment of Liquidated and Ascertained Damages, as a result of any delay caused by the Seller. The Seller shall have no responsibility for delay howsoever caused.
16. CANCELLATION CHARGES
If the Buyer at any time cancels its order for Goods and/or Services as detailed within an Acknowledgement of Order the Buyer shall be liable to pay the Seller upon cancellation 100% (one hundred per cent) of the Price in any event.
17. HOUSING GRANTS, CONSTRUCTION AND REGENERATION ACT 1996 ("HGCRA")
17.1 If the Goods or Services provide for the Seller to carry out construction operations as defined by Section 105 of the HGCRA then the following clauses shall apply:
17.1.1 Either the Seller or Buyer has the right to refer any dispute or difference arising under this Contract to adjudication. The adjudication provisions contained within Part I of the Scheme for Construction Contracts (England and Wales) Regulations 1998 ("the Scheme") shall apply.
17.1.2 The due date for payment shall be the date of the Seller's invoice. The final date for payment shall be 30 (thirty) days from the end of the month that the Seller's invoice was issued.
17.1.3 The time limits for serving notices pursuant to Section 110 and Section 111 of the HGCRA shall be as specified in Part II of the Scheme.
17.1.4 In default of the Buyer serving a valid notice pursuant to Section 111 of the HGCRA the Buyer shall pay the Seller the sum invoiced without deduction.
17.1.5 The entitlement to stage payments shall be determined in accordance with the time limits and provisions set out within Part II of the Scheme.
17.1.6 Where a sum due has not been paid by the final date for payment (as defined by clause 17.1.2 above), and no valid withholding notice has been provided, the Seller shall have the right to suspend performance of the provision of the Goods or Services following the giving of a written notice to the Buyer giving 7 days notice of the Seller's intention to suspend performance. The right to suspend performance shall cease once payment has been made.
18.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
18.2 The Seller may assign the Contract or any part of it to any person, firm or company.
19. NO THIRD PARTY RIGHTS
Pursuant to Section 1 (2) of the Contracts (Rights of Third Parties) Act 1999 ("the Act") the parties intend that no terms of these conditions may be enforced by a Third Party. For the purposes of this Clause "Third Party" shall have the meaning given in the Act.
20.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
20.2 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, avoidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, 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.
20.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
20.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
20.5 Any samples of Goods or Parts provided shall be deemed to be accepted as correct and satisfactory unless written notice of any defect or non-compliance with specification is given to the Seller by the Buyer within 7 days of the delivery of such sample. Failure to provide such written notice shall have the effect that any Goods or Parts supplied by the Seller that are in accordance with the sample previously provided shall be deemed to be in accordance with the Contract.
21.1 Where stipulated in this Contract communications between the parties about this Contract must be in Writing.
21.2 Delivery, by hand or sent by pre-paid first class post, electronic mail or sent by facsimile transmission shall be:
21.2.1 (in case of communications to the Seller) to its registered office or such other address as shall be notified to the Buyer by the Seller; or
21.2.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to the address of the Buyer set out in the Acknowledgement of Order which forms part of this Contract or such other address as shall be notified to the Seller by the Buyer.
21.3 Communications shall be deemed to have been received:
21.3.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
21.3.2 if delivered by hand, on the day of delivery;
21.3.3 if sent, by facsimile transmission or electronic mail and provided sent to the correct number or email address of the addressee (with correct transmission confirmed), on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.