CONDITIONS OF SALE
1.1 ‘Customer’ or ‘Buyer’ means the person who makes an order to the ‘Company’ or ‘Seller’ for the sale of the Goods or Services whose order for the Goods or Services is accepted by the Company; ‘GOODS’ means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions; ‘Company’ or ‘Seller’ means J &J PNEUMATICS LIMITED (registered in England and Wales under number 1309853); trading as J&J Air Systems; ‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller; ‘CONTRACT’ means the contract for the purchase and sale of the Goods and services.
Force Majeure Event means an event beyond the control of a party (or any person acting on its behalf), which by its nature could not have been foreseen by such party (or such person), or, if it could have been foreseen, was unavoidable, and includes acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written order of the Buyer which is accepted by the Seller, subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions, which the customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, subject to which any such order is made or purported to be made, by the Buyer. A quotation for the goods given by the Seller shall not constitute an offer. A quotation shall be valid for 30 business days from its date of issue.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed prior by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4 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 prior 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.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
The Products are sophisticated engineering products; accordingly, the Customer undertakes:-
2.6 That it has provided and will promptly provide all the information reasonably necessary to enable the Company to (i) evaluate the requirements for performing and (ii) perform the Contract, and that all such information is full and accurate;
2.7 That all premises, plant, engineering support, spare parts, connected pipe work and machinery and inputs that it is required to provide for the design, engineering, installation, testing and use of the Products are fit for their purpose and of good engineering quality;
2.8 Fully to co-operate with the Company in the design, engineering, installation, testing and use of the Products;
2.9a To use the Products for the intended purpose only and in accordance with the Product literature;
2.9b Not under any circumstances, to use any unapproved spare part, connected machinery, service or repair or use the Products in any manner as may render the Products dangerous and agrees that any breach of these negative criteria will negate all specific and implied conditions and obligations on the part of the Company relating to the quality of the Products.
2.9c The Main User Control Panel allows the basic control of functions on our equipment. Should any other controls be modified, altered, or adjusted incorrectly the company cannot undertake the remedial work under warranty.
3. AFTER SALES SERVICES
3.1 Scheduled Service visits will take place at the intervals in accordance with the manufacturer’s service schedule, or as otherwise agreed between the Customer and the Company.
3.2 On satisfactory completion of each maintenance visit J. & J.’s Engineer will provide for signature a Maintenance Inspection Report which the Purchaser will ensure is signed by a duly authorised representative.
3.3 The maintenance work to be carried out shall be accordance with the Manufacturer’s Service Schedule.
3.4 The service agreement and/or contract for services shall continue unless terminated by either party giving not less than six months’ previous notice in writing to the other.
4 ORDERS AND SPECIFICATIONS
4.1 An order constitutes an offer by the Buyer to purchase goods in accordance with these Conditions and no order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed prior in Writing by the Seller’s authorised representative.
4.2 The Contract shall constitute the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made by or given by or on behalf of the Seller which is not set out in the Contract.
4.3 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
4.4 The quantity, quality and description of and any specification for the Goods shall be those set out in Buyer’s order (if accepted by the Seller). Any samples, drawings, descriptive matter or advertising produced by the Seller and any illustrations confirmed in the Seller’s catalogues, brochures and/or website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the contract or have any contractual force.
4.5 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
4.6 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
4.7 No order which has been accepted by the Seller may be cancelled by the Buyer except with the prior agreement of the Seller in Writing and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
5 PRICE OF THE GOODS
5.1 The price of the Goods shall be the price set out in the Order or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
5.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as but not limited to foreign exchange fluctuations, increases in taxes and duties and increases in labour, materials and other manufacturing costs) , any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
5.3 Except as otherwise stated under the terms of any order of the Buyer or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
5.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
6 TERMS OF PAYMENT
6.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to
be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
6.2 The Buyer shall pay the full price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days of the date of the Seller’s invoice, (where the Buyer is based in the UK) or net cash against shipping documents based on irrevocable confirmed letters of credit through a British Bank (if based outside UK) and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
6.3.1 Cancel the contract or suspend any further deliveries to the Buyer;
6.3.2 Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and 6.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 21⁄2 per cent per month until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
7.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is
agreed by the Seller, by the Seller delivering the Goods to that place.
7.2 Any dates quoted or on the Order for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
7.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver anyone or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of anyone or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.4 If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyers
fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods. The Seller shall have no liability for any failure to deliver goods to the extent that such failure is caused by a Force Majeure Event or the Buyer fails to provide the Seller with adequate delivery instructions.
7.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
7.5.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.5.2 If after 10 Business Days after the day on which the Seller notified the Buyer that the goods were ready for delivery and the Buyer has not taken or accepted them the Seller may sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract; and/or
7.5.3 Otherwise dispose of the goods.
7.6 The Buyer shall not be entitled to reject the goods if the Seller delivers up to and including 5% more or less than the quantity of goods ordered but a pro rata adjustment will be made to the invoice.
7.7 The Seller shall be entitled to deliver on instalments.
8 RISK AND PROPERTY
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
8.1.1 In the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection;
8.1.2 In the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods in accordance with these conditions.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
8.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties (so they are readily identifiable as the Seller’s property) and properly stored, protected and insured and identified as the Seller’s property, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business.
8.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
9 WARRANTIES AND LIABILITY
9.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months, or as otherwise stated, from the date of their initial use (where installed and commissioned by the Seller) or 12 months from delivery, whichever is the first to expire.
9.2 The above warranty is given by the Seller subject to the following conditions:
9.2.1 The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
9.2.2 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
9.2.3 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
9.2.4 The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
9.2.5 The above warranty does not apply to the sale of second hand goods
9.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
9.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the contract.
9.6 Where J&J offer or provide a special extended warranty this is valid when Genuine Parts are used and that the equipment is maintained at the Service Intervals stated as stated in our service schedule. The Extended warranties are generally not transferable, but in extreme cases the compa ny reserves the right to charge an admin fee of £100 to cover the administration costs of transfer.
9.7 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
9.8 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (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 or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
9.9 The Seller shall not be liable to the Buyer or be deemed to be in breach 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 (without prejudice to the generality of the foregoing) Acts of God, measures of any kind on the part of any governmental or local authority, industrial action, difficulties in obtaining raw materials, power failure or machine breakdown.
10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
10.4 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts. Where the Buyer institutes proceedings in a County Court of England and Wales the Defendant submits design.
11.1 Risk in the Hire Group or any Products will pass to the Customer when they leave the physical possession of the supplier. Risk will pass back to the supplier when the Hire equipment is returned.
11.2 The buyer shall ensure he makes provision to Insure the Hire Equipment until the Hire equipment is returned and in the physical possession of the supplier.
11.3 Ownership of the Hire Goods remains with the supplier at all times.
11.4 The Customer shall remain responsible and liable for any loss or damage or theft to the Hire Goods until the Hire Goods are collected or returned to the supplier.
11.5 lt is the responsibility of the Customer to carry out all daily service checks on the Hire equipment as per the Manufacturers maintenance requirements, and as instructed to by the driver on delivery.
11.6 If the Hire Goods are returned in a damaged, unclean and or defective state except where due fair wear and tear and/or an inherent fault in the Hire Goods the customer shall be liable to pay the supplier the cost of any repair or cleaning required to return the Hire Goods to a condition as originally supplied.
12 DRAWINGS, DESIGNS AND CONFIDENTIALITY
12 (a) All of the Company’s specifications, designs, drawings, indications of physical, chemical and electronic properties and indications of pressure output and power consumptions (Data Logging) (“the Designs”) are made in good faith and are approximate indications only and are not binding in detail unless the Customer has specified in writing a particular indication upon which he is relying and the Company shall be entitled to vary the same and/or to correct errors and omissions provided the Products remain in substantial conformity with the contractual requirements.
12 (b) The Designs (including all copyright, design right and other intellectual property in them) shall as between the parties be the property of the Company; and the Customer is not entitled to make any use of the Designs other than for the purpose of this Contract.
12 (c) Any design, inventions, modifications, improvements, techniques or knowhow affecting the Products made or gained in the course of performing this Contract, shall belong to the Company absolutely.
12 (d) Neither party shall disclose to third parties or use for its own purposes any confidential information or trade secrets of the other party. Each party warrants that it has the necessary intellectual property rights to enable it to perform its contractual obligations and will forthwith inform the other on discovery of any infringement of intellectual property rights.
VS-2018 © J&J Air Systems 22001168