TERMS & CONDITIONS
In these Conditions, “the Company” means Vimivale Ltd, (00997796) whose registered office is at Number 2 Gibcracks, Basildon, Essex, SS14 1PE trading as Hawkes Refrigeration Engineers; “the Customer” means the person, firm or company from whom an order is accepted by the Company from whom an order is accepted by the Company; “Contract” means the contract formed pursuant to condition 2, “Goods” means any goods or service supplied by the Company to the Customer under the Contract;
2. CONTRACT FORMATION
a) Between, the Company, and the Customer. In consideration for the sum of set out on the Order Agreement the Company enters into a agreement with the Customer in respect of the supply of goods or services as set out in the Order Agreement and any attached schedule. b) Where the contract relates to Service/ Maintenance the Company will only carry out service work on correctly installed equipment. c)The Company cannot accept responsibility for any repairs or adjustments carried out by others (including the Owner or his Employees) in the event of any such interference with the apparatus or the system by others the Company shall have the right to disclaim all liability until they have carried out the re-examination of the system (this examination is chargeable). d)The Company is under no obligation to carry out work free of charge to rectify faults due to fire, flood, freezing, customer neglect, accidents or be liable for special, indirect or consequential damage. e) The Customer agrees that if the equipment fails and it is not practical to effect repairs on site, the Company may remove the equipment and carry out the repairs at its workshop. f) Any Maintenance Agreements are effective on an ongoing basis and will be reviewed annually subject to agreement of the proposed annual fee between both parties. G) Termination of the said contract will be subject to 3 calendar months written notice prior to the annual anniversary.
a) The price for the Goods and services are set out in the “Order Agreement” and or as contained in the Company’s price list in force at the date of the Company’s dispatch. The Company reserves the right to vary the price of the Goods by any amount attributable to: (i) any variation in the cost of materials, labour, transport, duties, taxes, exchange rates or any other costs of whatsoever nature between the date of the Contract and the date of delivery or collection (as the case may be) of the Goods; and/or (ii) a change in or delay or insufficiency of the Customer’s instructions. b) The Customer shall not be entitled to make any deduction from the price of the Goods in respect of any alleged rights to set off or counter-claims unless both the validity and the amounts thereof have been expressly acknowledged and admitted in writing by a director on behalf of the Company.c) If, pursuant to the provisions of condition 5, the Goods are to be delivered to an address within the United Kingdom, the price for the Goods is inclusive of the costs of standard packaging and the costs of delivery to such address. d) Subject only to the provisions of condition 3(c) above, unless otherwise agreed in writing by a director on behalf of the Company, the price of the Goods is exclusive of the costs of packaging, freight, insurance, delivery charges and all applicable taxes, duties, tariffs and charges of any nature whatsoever imposed in any country or territory, either directly or indirectly, in respect of the sale or supply of the Goods, or payments for them. In particular, without prejudice to the generality of the foregoing, the price of the Goods is exclusive of Value Added Tax. All such additional costs shall be payable by the Customer in addition to the price for the Goods.
The total Sum of set out on the “Order Agreement” Inclusive of VAT be paid as follows In the case of Installation (30% deposit at point of order) (30% stage payment on delivery of Equipment) and the remaining (40% on completion) Service & Maintenance contracts in advance of the first day of the agreed start date of the contract and due 1 calendar year from inception via Standing Order. All Invoices for parts or labour; not included in the agreement to be paid within thirty days of Invoice date.) Non receipt of payment within thirty days will entitle the Company to terminate the Agreement forthwith but without prejudice to any other remedies that the Company may have hereunder. a) Rolling or 24 month Planned Maintenance Contracts not paid via Standing Order or Direct Debit arrangements will be subject to an annual price review, with the contract premium being increased by an amount equal to the increase in the RPI. b) Failure by the Customer to pay any sums owing to the Company under the Contract or any other contract will result in all indebtedness of the Customer to the Company becoming immediately due and payable. c) The Company may at any time in its absolute discretion appropriate any payment made by the Customer in respect of Goods to such outstanding debt as the Company thinks fit, notwithstanding any purported appropriation to the contrary by the Customer or the Company. d) Without prejudice to any other rights or remedies of the Company whether hereunder or otherwise at law or in equity, late payment of any amount due to the Company shall entitle the Company to charge interest on such amount from the date on which payment became due until the date on which the Company receives payment in full of such amount (whether before or after judgment has been obtained by the Company against the Customer) at the interest rate in force pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 at the time interest becomes chargeable. e) The Customer shall indemnify and keep indemnified the Company from and against any and all charges, costs, expenses and other liabilities whatsoever and howsoever incurred by the Company or its agents as a result of any failure by the Customer to make payment in accordance with the provisions contained in this condition 4, including (without limitation) any costs incurred by the Company or its agents in the collection of any monies due to the Company. f) Without prejudice to any other rights or remedies of the Company, whether hereunder or otherwise at law or in equity, the Company reserves the right at any time in its absolute discretion: (i) to suspend further Services or deliveries; and/or (ii) to cancel any allowance of further credit; and/or (iii) to demand security for payment before continuing with an order or delivering Goods or any instalment; and/or (iv) to cancel the Contract and/or any other contract between the Company and the Customer in the event of any payment not being made when due, or if the Company, in its sole discretion, has at any time concerns regarding the financial circumstances of the Customer.
5. DELIVERY AND RISK
a) Any period or date for delivery stated in the Customer’s order or the Order Acknowledgment or elsewhere is an estimate only and the Company will not be liable to the Customer for any loss or damage sustained by the Customer as a result of the Company’s failure to comply with such delivery periods or dates. The Customer shall not be entitled to refuse to accept late delivery or to treat late delivery as a breach of contract. b) The Company may at its option deliver by instalments. Neither failure on the Company’s part to make any delivery (or part delivery) in accordance with the Contract, nor any claim by the Customer in respect of such delivery (or part delivery) shall entitle the Customer to reject the balance of the Goods. c) In respect of export sales, unless otherwise agreed in writing by a director on behalf of the Company, Goods shall be delivered (as such term is defined in Inco terms 2000) and accordingly delivery shall take place and risk in the Goods shall pass from the Company to the Customer when the Goods are placed at the Customer’s disposal at the Company’s premises at Basildon. d) In all other cases, delivery shall take place and risk in the Goods shall pass from the Company to the Customer:- i) if the Customer’s order specifies that the Customer will collect the Goods from the Company’s premises, on the earlier of the Company handing the Goods to the Customer or its agent at the Company’s premises, or (provided that the Company has not repudiated the Contract in accordance with the provisions of condition 5(e)), the eighth day following notification by the Company to the Customer that the Goods are ready for collection; or ii) if the Customer’s order specifies that the Company will deliver the Goods to an address within the United Kingdom, upon the Goods leaving the Company’s premises. e) Where the Goods are ready for delivery or collection the Company may agree to postpone the date of delivery or collection at the request of the Customer provided that the Customer pays the full price of the Goods to the Company immediately. The Company may, at its option, either store the Goods itself or have them stored by a third party on such terms as it in its absolute discretion thinks fit. The cost of storage and any additional transportation will be added to and shall form part of the price. f) If the Customer fails to accept delivery of the Goods or if the Customer fails to collect the Goods on the seventh day following notification of readiness for dispatch or if a director of the Company does not agree in writing on behalf of the Company to postpone the date of delivery or collection, the Company shall be entitled at its option and with no liability to the Customer to treat the Contract as repudiated by the Customer. If the Company elects to treat the Contract as repudiated in accordance with this Condition 5(f) it shall (without prejudice to its rights and remedies in respect of such repudiation) be entitled to sell the Goods and retain the proceeds of the sale.
6. RETENTION OF TITLE
a) Until the Company has received payment in full of all sums owed to it on any account by the Customer, whether arising out of the Contract or any other contract, legal and beneficial title to the Goods shall remain in the Company: such goods are referred to in this Condition 6 as “retained goods”. b) Retained goods:i) shall be at the Customer’s risk, insured by the Customer from the date on which risk in such retained goods passes from the Company to the Customer in accordance with the provisions of condition 5, at its own expense for their full replacement value against all usual risks; and kept safe in good condition and stored separately and clearly identifiable as the Company’s property and with all identifying marks intact and legible; and ii) may, subject to Condition 6(c) below, be used or sold by the Customer in the ordinary course of its business on the basis that the proceeds of sale shall be held in trust by the Customer for the Company absolutely. c) The Customer’s rights under this condition 6 shall be conditional upon the Customer including a retention of title condition substantially in the form of that contained at condition 6(b) above in all contracts entered into by the Customer for the sale of the retained goods or any of them.d) The Customer’s powers of use and sale of retained goods shall terminate:- i) forthwith on notice from the Company; ii) automatically upon the occurrence of any of the following: aa) the presentation of a petition or the convening of a meeting for the purpose of considering a resolution for the winding up or dissolution of, the passing of any resolution for its winding up, or the making of a winding up order against, or order for the dissolution of, the Customer; bb) the appointment of a receiver, administrative receiver, receiver and manager, sequestrator or similar officer over all or any of the assets or undertaking of the Customer or the presentation of a petition for an administration order, or the making of an administration order, in relation to the Customer; cc) the proposal of, application for, or entry into of, a compromise or arrangement or voluntary arrangement, or any other scheme, composition or arrangement in satisfaction or composition of any of its debts or other arrangement for the benefit of its creditors generally, by the Customer with any of its creditors (or any class of them) or any of its members (or any class of them) or if the Customer takes any action in relation to any of the same; dd) the taking by any creditor secured or otherwise of possession of, or the levying of distress or enforcement of some other process upon, all or part of the property, assets or undertaking of the Customer; ee) the deemed inability of the Customer to pay its debts within the meaning of Sections 123 or 268 of the Insolvency Act 1986 (as applicable); ff) the Customer ceasing to carry on the whole or a substantial part of its business; gg) the Customer suspending payment of debts or being unable or omitting to pay its debts as they fall due; or hh) the occurrence of an event or circumstance in relation to the Customer similar to any of those referred to in (aa) to (gg) above in any jurisdiction other than England and Wales. e) The Company may, at any time on giving prior notice, enter the premises of the Customer or of any third party where the retained goods are stored for the purpose of inspecting retained goods and identifying them as the Company’s property and the Customer irrevocably authorizes the Company to enter upon such premises for that purpose. f) Upon termination of the Customer’s power of sale and use under condition 6(b) above: (i) the Customer shall place all the retained goods in its possession or under its control at the Company’s disposal and shall be deemed irrevocably to authorise the Company to enter upon any of the Customer’s premises, with or without vehicles, for the purpose of removing such goods; and (ii) the Company shall be entitled at its option to: (aa) cancel all or any part of any orders for Goods placed with it by the Customer and not yet delivered (whether or not accepted or whether or not under the Contract or any other contract);and/or (bb) to deal direct with any customers of the Customer in which case any proceeds of any sale to such customers shall belong to the Company absolutely. g) The repossession of retained goods by the Company in accordance with this condition 7 shall be without prejudice to all or any of the Company’s other rights against the Customer under the Contract whether hereunder, at law or in equity.
a) The Company warrants that for a period of Manufacturers warranty from the date of delivery or collection of the Goods, pursuant to the provisions of condition 5 (the “Warranty Period”), the Goods will be free from material defects arising from faulty materials and workmanship, other than defects: i) drawn to the attention of the Customer or which were or ought to have been discovered on inspection of the Goods by the Customer at the time of receipt; or ii) appearing after any person (other than the Company) has made any alteration or addition to the Goods; oriii) caused or aggravated by any act or omission on the part of any person other than the Company including (without limitation) use or storage of the Goods in a manner contrary to any written instructions of the Company, faulty or improper handling, installation, maintenance or repair; or iv) fair wear and tear, accident or neglect. b) If the Customer becomes aware of a defect in the Goods during the Warranty Period, the Customer shall, within 14 days of discovering such defect, supply the Company with written particulars of such defect and at the Company’s sole option either return the Goods to the Company at the Customer’s expense and risk or permit the Company to inspect the same at the Customer’s premises and shall use its best endeavours to provide to the Company all necessary access and other reasonable facilities and all information, particulars and assistance required to enable the Company to ascertain or verify the nature and cause of the defect claimed and to carry out its warranty obligations. c) The Company’s liability for defective Goods under the warranty contained at Condition 7(a) is limited to, at the Company’s sole option, repairing or replacing such Goods (or parts thereof) or crediting the Customer’s account to the invoice value for such Goods (or part thereof) and the Customer shall accept such of the aforementioned remedies as the Company shall proffer as being fulfilment of the Company’s obligation under such warranty.
8. LIMITS OF LIABILITY
a) Nothing in these Conditions shall be interpreted as excluding or restricting the Company’s liability under Part 1 of the Consumer Protection Act 1987 or for death or personal injury resulting from the negligence (as defined in Section 1 of the Unfair Contract Terms Act 1987) of the Company, its officers, employees, agents and/or sub-Company’s or for breach of Section 12 of the Sale of Goods Act 1979.b) SUBJECT TO THE PROVISIONS OF CONDITION 8(a) ABOVE, THE COMPANY’S TOTAL LIABILITY TO THE CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT (WHETHER UNDER LAW OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE) SHALL NOT EXCEED THE PRICE PAID FOR THE GOODS BY THE CUSTOMER UNDER THE CONTRACT.c) THE COMPANY SHALL, IN NO CIRCUMSTANCES, BE LIABLE, WHETHER BY WAY OF INDEMNITY OR BY REASON OF BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) BREACH OF STATUTORY DUTY OR OTHERWISE FOR: i) SPECIAL DAMAGES; OR ii) LOSS OF PROFIT, LOSS OF INCOME, LOSS OF GOODWILL, LOSS OF USE OR ANY OTHER ECONOMIC LOSS; OR iii) ANY LOSS ARISING FROM ANY CLAIM AGAINST THE CUSTOMER BY ANY THIRD PARTY; OR iv) ANY CONSEQUENTIAL OR INDIRECT LOSS, DAMAGE OR EXPENSE OF ANY KIND HOWSOEVER CAUSED OR ARISING. d) SAVE AS PROVIDED IN THESE CONDITIONS, THE COMPANY SHALL NOT BE UNDER ANY LIABILITY TO THE CUSTOMER (WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE) FOR ANY LOSS OR DAMAGE RESULTING FROM THE SUPPLY OF THE GOODS AND ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS WHETHER EXPRESS OR IMPLIED BY LAW IN RESPECT OF THE SUPPLY OF THE GOODS (INCLUDING, WITHOUT LIMITATION, AS TO THE QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE GOODS) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED AT LAW. e) The Customer acknowledges that all specifications and details in catalogues, quotations and the Order Acknowledgement or any similar documents or by word of mouth and all forecasts of performances, however given, are approximate only and do not form part of the Contract and that the Company shall be under no liability to the Customer in respect thereof.
The Customer agrees that it is best able to estimate the extent and nature of the insurance cover suitable for its business and property from time to time and can effect at more economic rates than the Company such appropriate insurance cover and the Customer therefore acknowledges that it is reasonable for the Company to sell the Goods and to set the price thereof on the basis of the exclusions and limitations of liability and the indemnities set out in these Conditions. The Customer agrees that it will be responsible for effecting insurance cover as above mentioned as may be appropriate to its business and property including (but not limited to) any required insurance cover in respect of any loss or damage, of whatsoever kind or howsoever caused, whether by reason of the negligence of the Company or otherwise to premises, plant or other physical property and the Company shall have no liability in respect of any such loss or damage.
10. INDEMNITY – THIRD PARTY CLAIMS
The Customer shall indemnify and keep indemnified the Company from and against any and all actions, claims, costs, losses, damages, demands, expenses (including without limitation legal fees and expenses on a solicitor own client basis) and other liabilities arising out of any defect in the Goods (including without limitation all liabilities incurred under the Consumer Protection Act 1987) to the extent occasioned or contributed to or resulting from any act or omission of the Customer its servants, agents, sub-Company’s or persons under its control.
11. FORCE MAJEURE
The Company reserves the right to suspend, delay or cancel the performance of the Contract or any part thereof where the Company is prevented or hindered from performing the same due to any cause beyond its reasonable control and the Company shall not be liable for any failure or delay in the performance of its obligations (or any of them) or for the suspension or cancellation of the Contract.
12. INFRINGEMENT OF THIRD PARTY RIGHTS
The Customer shall promptly inform the Company of any threat, claim or allegation of which the Customer becomes aware that the Goods (or any of them) infringe the intellectual property or other rights of any person and shall, if so required by the Company, at the Company’s expense, take all reasonable steps to enable the Company to defend any such threat, claim or allegation.
13. CONFIDENTIAL INFORMATION
The Customer shall treat all drawings, procedures, instructions, documents and other information of any kind whatsoever supplied by the Company to the Customer as strictly confidential (except to the extent that any such information is available in the public domain) and shall not without the prior written consent of a director for and on behalf of the Company, disclose or part with possession of any such documents or information or extracts there from or copies thereof or use any such documents or information otherwise than in connection with the Goods to which they relate.
14. GOODS MANUFACTURED TO CUSTOMER’S SPECIFICATION
a) The Company accepts no responsibility for the accuracy of information, specifications, instructions and/or drawings (“Information”) supplied by the Customer. b) The Customer shall indemnify and keep indemnified the Company from and against all actions, costs, expenses (including without limitation legal costs on a solicitor own client basis),proceedings, losses, damages and other liabilities arising (whether directly or indirectly) out of: i) any error in or omission from any Information; and/or ii) any threats, claims or allegations that any Information or the use thereof infringes any person’s intellectual property or other rights; and/or iii) any threats, claims or allegations that any Information or the use thereof breaches the provisions of any statute, statutory instrument or regulation or other law of any applicable country or territory; and/or iv) the Company’s use of or reliance upon any Information, including without limitation any claim made against the Company by any person as a result thereof.
15. HEALTH AND SAFETY
The Customer agrees to pay due regard to any information or advice relating to the use of the Goods which the Company may at any time furnish to it and agrees that before the Goods are used it will, if requested by the Company, furnish the Company with a written undertaking to take any steps which the Company may specify with a view to ensuring that the Goods will be safe and without risk to health when used.
16. CANCELLATION AND AMENDMENT
a) No cancellation or amendment to the Contract shall be binding on the Company unless agreed in writing by a director on behalf of the Company and on the strict condition that all and any costs and expenses incurred by the Company up to the time of the cancellation or arising out of the amendment and all loss of profits and all other loss, damage, costs, charges and other expenses resulting to the Company by reason of such cancellation or amendment will be reimbursed by the Customer to the Company forthwith. b) Without prejudice to any other rights and remedies which the Company may have whether hereunder or otherwise at law or in equity, the Company shall have the right to cancel the Contract or any other contract with the Customer: i) if the Customer commits any breach of the Contract or any other contract with the Company; ii) on the occurrence of an insolvency event in respect of the Customer as set out in condition 6(d)(ii); and/or iii) if the Company has any reason to doubt the credit worthiness of the Customer.
The Customer shall not assign, or otherwise transfer all or any of its rights, interests or obligations under the Contract without the prior written consent of a director on behalf of the Company.
No waiver of any of the Company’s rights under the Contract shall be effective unless in writing signed by a director on behalf of the Company. A waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of the Company’s right in relation to different circumstances or the re-occurrence of similar circumstances.
19. DESIGN ALTERATIONS AND SUBSTITUTION OF GOODS
a) The Company shall be entitled at any time to alter or change the design or finish of its products as published in the Company’s catalogues subject to reasonable prior notice of any such alteration or change being given to the Customer. b) Should any materials or parts or products required for completion of the Contract be unavailable for the performance of the Contract, the Company reserves the right to supply substitutes reasonably deemed by the Company to be suitable for the intended purpose of the Goods as understood by the Company. Such substitutes shall be accepted by the Customer in full and final satisfaction and performance of the Company’s obligations in that regard.
20. RIGHTS OF THIRD PARTIES
The Company and the Customer do not intend that any term of these Conditions should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise, by any person who is not a party to the Contract.
21. DATA PROTECTION
The Company reserves the right to obtain, hold or otherwise process personal data (as such term is defined in the Data Protection Act 1998) relating to the Customer or any partner, director or other officer of the Customer (the “Data”) for the purpose of carrying out the Company’s business and any associated activities. The Data will be held securely and in accordance with the provisions of the Data Protection Act 1998 and may be shared with, disclosed to and/or processed by other companies within the Company’s group, credit reference agencies, banks, credit insurers and other organisations which the Company nominates. The Customer will ensure that any individuals who may be affected by the provisions of this condition 21 are informed. Unless any individual writes to the Company objecting to the Company processing his or her personal data for any purpose, it shall be deemed that the individual is aware of and has given his or her consent to the processing.
22.TERMINATION OF CONTRACT
The Agreement may be terminated by three months notice in writing on either side, if the agreement should be terminated by the Customer before the closing date, the Company shall be entitled to retain the full amount pre-paid for that year by the customer. Should the Company fail to carry out its obligations under the agreement, then the Customer may terminate the contract with immediate effect.
24.ENGLISH LAW AND JURISDICTION 2 HEADINGS
The Contract shall be governed and construed in all respects by English Law and the Customer agrees to submit to the exclusive jurisdiction of the English Courts. a) The headings of these Conditions do not form part of the Conditions and shall not affect the interpretation thereof. b) Each of the Conditions and each paragraph hereof shall be construed as a separate condition. Should any provision hereof be found to be invalid or unenforceable or illegal by the courts of any jurisdiction to which it is subject then such provision shall be severed from these Conditions.
Notice under these Conditions shall be properly given if in writing and sent by registered post to the address of the intended recipient as stated in the Contract or to such address as the Customer and Company may from time to time notify to each other as their respective addresses for service and shall be served upon receipt by the intended recipient at such address. The Customer agrees to report immediately any unsatisfactory operation of the equipment; he accepts the decision of the Company as final. The Company will only carry out service work on correctly