Terms & Conditions
1. GENERAL Unless otherwise agreed in writing these terms and conditions (the “Conditions”) constitute the only conditions upon which Maxi-Cool Ltdi (“the Seller”) is willing to supply goods (“the Goods”) to the Buyer (which term shall mean the person, firm or company purchasing the goods) and these Conditions shall prevail over any conditions which a Buyer’s order, confirmation of order, specification or other document may purport to impose which said other conditions shall not apply save (if at all) as may be expressly incorporated herein and the Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in writing. No modification of these Conditions shall be binding upon the Seller unless such modifications shall first have been specifically authorised in writing by a Director of the Seller.
2. DELIVERY (a) Where a period is stated for delivery, and such period is not extended by mutual agreement in writing or under the force majeure provisions set out hereunder, the Buyer shall take delivery within that period. (b) Any time or date for delivery stated by the Seller is an estimate only and any date for delivery shall not be made of the essence. The Seller shall not be liable for any direct, indirect or consequential loss (in each case, to include pure economic loss, loss of profit, loss of goodwill and loss of business) caused by any delay in delivery, however such delay may have been caused. (c) Where goods are sold F.O.B. the responsibility of the Seller shall cease immediately the goods are placed on board ship or aircraft and the Seller shall be under no obligation to give the Buyer the notice specified in sub-section (3) of Section 32 of the Sale of Goods Act 1979 or any statutory modification or re-enactment thereof for the time being in force. (d) If for any reason the Buyer fails to accept delivery of (any of) the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations: (i) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller’s negligence); (ii) the Goods shall be deemed to have been delivered; and (iii) the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). (e) Goods once delivered cannot be returned without the prior written agreement of the Seller.
3. POSSESSION OWNERSHIP AND RISK (a) The ownership of the Goods shall not pass to the Buyer until the Seller has received payment in full (cash or cleared funds) of all sums due to it in respect of the Goods and all other sums which are or which become due to the Seller from the Buyer on any account but the risk shall pass on delivery (or deemed delivery under clause 2(d)). Offloading and positioning of the goods shall be at the risk of the Buyer unless otherwise agreed in writing. (b) Until the date of such payment the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall store, protect and insure the Goods and identify the Goods as the Seller’s property as distinct from the goods of any third party. In the event of damage to the Goods before such time as the ownership passes to the Buyer then the Buyer will pay to the Seller any insurance proceeds received by the Buyer in respect of the Goods. (c) Any breach by the Buyer of its obligations hereunder to pay the full purchase price for the Goods shall entitle the Seller (without prejudice to any other right or claim with the Seller) to repossess and/or resell the Goods (and for the purpose of repossessing the Goods, the Seller shall be at liberty to enter upon the premises in which the Goods are for the time being placed or kept (and for the avoidance of doubt, the Buyer hereby grants to the Seller or its authorised agents an irrevocable licence to enter upon any premises where the Goods are stored in order to repossess). (d) The Buyer’s right to possession of the Goods shall terminate immediately if: (i) 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 statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), 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 (ii) 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 or perform any of his/its obligations under any contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or (iii) the Buyer encumbers or in any way charges any of the Goods. (e) Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer. (f) On termination of the contract the subject of these Conditions the Seller’s rights contained in clause 3 shall remain in effect.
Maxi-Cool Ltd. Registered Office: Unit 7 Saracen Business Park, Saracen Way, Peterborough, PE1 5WS; Company Registration Number: 11114923 Vat No: 316867672
Enclosure Cooling Systems Terms and Conditions
4. INSPECTION OF GOODS BY SELLER Prior to the payment in full by the Buyer of the purchase price for the Goods the Buyer shall permit the Seller and any person authorised by it at all reasonable times to enter upon the premises in which the Goods are for the time being placed or kept for the purpose of inspecting and examining the condition of the Goods.
5. DAMAGE IN TRANSIT No claim for damage in transit or shortage of delivery will be entertained unless noted on the delivery note at the time of delivery, followed by a complete claim in writing within ten days of the receipt of the Goods. In the case of loss of the Goods, notice in writing must be given to the Seller and a complete claim in writing made within twenty-one days of the date of consignment.
6. LIABILITY (a) Except in respect of death or personal injury caused by the Seller’s negligence or death or personal injury or any loss or damage to property (as defined herein) arising from a defect in the Goods, the Seller shall not be liable to the Buyer by reason of any representation or any implied warranty, condition or other term or any duty at Common Law or under the express terms of the contract for any consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use by the Buyer and all warranties, conditions or other terms implied by statute or Common Law (save for the conditions implied by Section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law. In this Clause “property” shall have the meaning given to it by section 5 of the Consumer Protection Act 1987 or any amendment or modification of the same for the time being in force. (b) Subject to clauses 6(a) and 6(c) :- the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the contract the subject of these Conditions shall be limited to the contract price.; and the Seller shall not be liable to the Buyer for any economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the contract the subject of these Conditions. (c) Nothing in these Conditions excludes or limits the liability of the Seller:- for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or for fraud or fraudulent misrepresentation.
7. GUARANTEE AND QUALITY (a) Except as set out below, the Goods supplied by the Seller which are provided to the Seller’s reasonable satisfaction to be defective in materials or workmanship within twelve months from completion of commissioning will be replaced or repaired (or the affected part repaired or replaced) at the option of the Seller, free of charge. Normal operational wear and consumable items are excluded. (b) Any goods replaced shall belong to the Seller and any repaired or replacement goods shall be guaranteed under these Conditions for the unexpired portion of the twelve-month period. (c) If the Buyer wishes to have incorporated in its order at its specific request any part or parts not normally supplied by the Seller then, in that event, the Seller shall be at liberty to state whether the incorporation thereof is recommended by them. If the Seller does not recommend the inclusion of such part or parts, then they will not be liable for any damage or loss, either consequential or direct, arising from the use of such non-recommended parts with the Goods. (d) The Seller shall not be liable for a breach of these Conditions if: the Buyer makes any further use of the Goods after giving such notice as referred to in clause 5 or under this clause; or the defect arises because the Buyer failed to follow the Seller’s instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; the Buyer alters or repairs the Goods without the written consent of the Seller; or the Buyer has not paid for the Goods on the due date for payment.
8. ADVERTISING MATERIALS, ILLUSTRATIONS AND SPECIFICATIONS (a) Photographs and other illustrations or advertisement matter supplied by the Seller represent generally the goods manufactured by the Seller, but shall not be taken as necessarily representing the goods subject to the quotation and shall not form part of the contract. (b) The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and, accordingly, the Seller shall not be liable for any such advice or recommendation which is not so confirmed. (c) Unless stated in the quotation, prices do not include attachments, tools or accessories which may appear on illustrations and such items are charged as extras. (d) All intellectual property in the drawings prepared by the Seller (or on its behalf) shall remain the Seller’s property and shall be returned to the Seller on demand. All such drawings shall be treated by the Buyer as confidential and shall not be copied or reproduced or disclosed to any third party without the Seller’s prior written consent.
Maxi-Cool Ltd. Registered Office: Unit 7 Saracen Business Park, Saracen Way, Peterborough, PE1 5WS; Company Registration Number: 11114923 Vat No: 316867672
Enclosure Cooling Systems Terms and Conditions
9. CANCELLATION/ REFUND No order received by the Seller shall be subject to cancellation either wholly or partially without the Seller’s written consent. All cancellations are subject to a cancellation charge stipulated by the Seller (which shall be a genuine estimate of the loss suffered by the Seller) and to payment in respect of work done thereon to the date of cancellation (this is usually and unless otherwise stated 50% of the total invoice amount); and delay in delivery whether caused by inability to obtain goods from sub-contractors within a reasonable time or through force majeure as set out below or by cancellation of the Buyer’s own contracts, shall not be regarded as constituting sufficient reason or cause for cancellation of the contract.
10. TERMS OF PAYMENT (a) Where the Goods are sold to a Buyer not resident in the United Kingdom, payment shall be made in the same currency as the invoice by irrevocable letter of credit or by such other method as the Seller may specify. Notwithstanding that the goods or part thereof may be found to be defective after being set out to work, payment shall be made by the Buyer at the stipulated times, and the claimed defects will be dealt with under the guarantee clause above. (b) Time for payment shall be of the essence. (c) The contract price, together with any Value Added Tax thereon shall be paid by the Buyer without deduction whatsoever including in particular without deductions in respect of bank charges, import dues, taxes or otherwise. (d) If payment is not received by the Seller within the time stipulated, the Seller reserves the right to charge the Buyer interest for such time as payment shall be overdue, and such interest shall be calculated on a day to day basis at two per cent per annum above the base rate of the National Westminster Bank PLC ruling on the day interest accrues due. (e) The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
11. FORCE MAJEURE The Seller shall not be liable to the Buyer or deemed to be in beach of the contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control (including a global pandemic, for example COVID 19). Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:- Act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party); difficulties on obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.
12. DETERMINATION OF THE CONTRACT If the Buyer shall make default in or commit a breach of the contract or of any other of the Buyer’s obligations to the Seller which is incapable of remedy or fails to remedy a breach which is capable of remedy within 14 days of written notice, or suffers an event referred to in clause 3(d), the Seller shall have the right forthwith to determine any contract then subsisting upon written notice of such determination being posted to the Buyer’s last known address, any subsisting contract shall be deemed to have been determined without prejudice to any claim or right the Seller may otherwise make or exercise.
13. ARBITRATION Any question, dispute or difference under the contract between the Seller and the Buyer shall, if either party give notice in writing to the other of the existence of such question, dispute or difference, be referred to the arbitration of a single arbitrator mutually agreed upon or, failing agreement, or some person appointed by the President for the time being of the Law Society whose decision shall be final and binding. The arbitration shall be in accordance with the Arbitration Act 1996 and any statutory modification or re-enactment thereof for the time being in force.
14. HEALTH AND SAFETY AT WORK (a) The Seller shall supply to the Buyer adequate information about the use for which the Goods are designed or have been tested any conditions necessary to ensure that they will be safe and without risk to health whilst being set, used, cleaned or maintained by a person at work. The Seller will also supply all such revisions of information by reason of its becoming known that anything about the Goods may give rise to a serious risk to health or safety. (b) The Buyer undertakes to take all necessary steps to ensure that all information supplied by the Seller under sub-clause (a) above will be made known to all persons who will use, set, clean or maintain the goods and will also take all steps recommended by the Seller to ensure that the Goods are safe and without risk to health when properly used.
15. NON-ASSIGNMENT The Buyer shall not be entitled to assign, charge, subcontract or transfer the contract or any part of it without the prior written consent of the Seller.
16. LAW OF THE CONTRACT This contract shall be governed by the Laws of England as a contract made in England and the Buyer hereby submits to the jurisdiction of the English Court.
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Maxi-Cool Ltd. Registered Office: Unit 7 Saracen Business Park, Saracen Way, Peterborough, PE1 5WS; Company Registration Number: 11114923 Vat No: 316867672