Terms & Conditions
1. DEFINITION OF TERMS
In these conditions the following expressions shall have the meanings hereby assigned to them:
“the Company” means Kanon Liquid Handling Ltd;
“the Purchaser” means the person, firm or company from whom the order is received or his legal assigns or successors;
“the Plant” means those items of apparatus, equipment, goods or any part thereof, manufactured by the Company or not, other than the Company’s Equipment, specifically referred to in the Company’s tender and other documents forming the contract;
“the Contract” means the agreement between the Purchaser and the Company for the supply of the Plant or the Works including therein all documents to which reference may properly be made in order to ascertain the rights and obligations of the parties under the said agreement and shall include only such goods, services and accessories as are specified therein and shall be subject to these conditions;
“the Site” means the place where the Works are to be carried out by the Company together with so much of the surrounding areas as the Company requires for use in connection with the Works;
“the Works” means all work specifically stated to be done under the Contract by the Company;
“the Company’s Equipment” means tools, tackle, stores and other things brought on to the Site by the Company for purposes other than for incorporation in the Works;
“the Price” means the charge payable for the supply of the Plant or the Works;
“the Completion of the Contract” means where delivery only is involved, the date on which the Plant is delivered and otherwise the date on which the Company issues an acceptance request form or on such other date as advised by the Company in writing that the works are complete;
“the AcceptanceTesting” means water tests on completion of Installation to demonstrate to the Purchaser that the Plant is hydraulically sound and functioning to mechanical and electrical specification.
2. APPLICABLE CONDITIONS
The Company’s commitment shall not become effective and the Contract shall not commence until the Company’s written acknowledgement of the Purchaser’s order has been dispatched to the Purchaser or until the Company has rendered its invoice, whichever first occurs.
The Purchaser accepts that these conditions shall govern relations between himself and the Company to the exclusion of any other terms including conditions, warranties or representations, written or oral, express or implied, even if contained in any of the Purchaser’s documents which purport to provide that the Purchaser’s own terms shall prevail. No variation of the terms of the Contract shall be valid unless agreed to in writing.
3. DURATION OF TENDER
The Company’s quotation/tender does not remain open for any fixed period unless otherwise stated and the Company reserves the right to withdraw or revise the quotation/tender at any time before issuing a written acknowledgement of an order.
4. CONTRACT PRELIMINARIES
The Purchaser shall be solely responsible for giving all statutory and other notices and for obtaining all necessary licences permits and consents, which shall be required to enable the Contract to be performed.
5. PRICE VARIATION
The prices quoted in the Company’s quotation/tender are related to the costs to the Company at the date of quotation/tender. If there is a rise or fall in such costs between the date of quotation/tender and the completion of the Contract, the price will be adjusted in accordance with the price variation formula which may be referred to in and enclosed with the quotation/tender or in the absence of non-applicability of such formula by the amount of such rise or fall.
6. TERMS OF PAYMENT
Unless otherwise expressly provided elsewhere in the Contract the following Terms of Payment will apply:
(i) Contract to supply the Plant only
(a) 30% of the value of the Contract payable immediately upon the issue, by the Company, to the Purchaser of written acknowledgement of the Purchaser’s order.
(b) 60% of the value of the contract payable immediately upon delivery of the Plant to a delivery address as specified by the Purchaser or upon notification of the availability for delivery.
(c) 10% of the value of the Contract payable nett 30 days following delivery or notification of availability.
(ii) Contract to supply the Plant and the Installation
(a) 30% of the value of the Contract payable immediately upon the issue, by the Company, to the Purchaser of written acknowledgement of the Purchaser’s order.
(b) 60% of the value of the Plant payable immediately upon delivery of the Plant to the Site or other delivery address as specified by the Purchaser or upon notification of the availability for delivery.
(c) 60% of the value of the Installation payable immediately upon completion of the Installation and fulfilment of Acceptance Testing.
(d) 10% of the value of the Contract payable nett 30 days following completion of the Installation and fulfilment of Acceptance Testing.
(iii) Supply of spare parts and consumables
(a) Nett 30 days from the date of invoice.
If any monies are in arrears from the dates on which they are due then such monies will bear interest on a day to day basis from the original due dates at the rate of 4% per annum above the prevailing Base Lending Rate of Natwest Bank p.l.c. provided always that payment of such interest does not waive the Purchaser’s responsibility to meet payment on the due dates or limit or prejudice any other act, right or remedy which the Company may utilise, whether under the Contract in law or otherwise, in consequence of such delayed payment.
7. DRAWINGS, DESCRIPTIONS AND SPECIFICATIONS
(i) All drawings, photographs, plans, capacities, weights, measurements and other particulars supplied by the Company are to be taken as approximate only. Minor deviation therefrom shall not invalidate the Contract or be made the basis of any claim against the Company.
(ii) Any drawings sent to the Purchaser for approval shall be deemed to have been approved by the Purchaser unless they are returned to the Company with comments or queries within ten working days or as otherwise stated from the date of submission.
(iii) All plans, drawings, specifications and other written technical material forming part of the Company’s quotation/tender or supplied in connection with the Contract shall remain the property of the company and shall not be copied or disclosed to third parties without the prior consent of the Company.
The Company may vary the design or construction of the Plant or the Works in exercise of reasonable skill in and about such design or construction at any time prior to the Completion of the Contract provided that such variation will not alter substantially the performance and specification of the Plant.
The Company shall use all reasonable endeavours to comply with any reasonable requests by the Purchaser to modify the Plant or the Works but in so doing may alter the Price or the delivery dates or stipulate such other conditions as in its discretion the Company may consider reasonable and all extra costs arising by reason of delay to the Completion of Contract resulting directly or indirectly from such variations shall be payable by the Purchaser.
The Company shall be entitled to sub-contract or assign all or any of its obligations under the Contract.
10. LIABILITY FOR DELAY
Any times or dates stated in the Contract for delivery of the Plant or for commencement or completion of the Contract or other times or dates relating to performance of the Contract by the Company are estimates only and do not form part of the Contract. The Company shall not in any event whatsoever be liable to the Purchaser for delays in delivery of the Plant, commencement, performance or the Completion of the Contract.
11. DELIVERY OF THE PLANT
(i) Delivery will be made at the address agreed in writing between the Purchaser and the Company.
(ii) If for any reason beyond the Company’s reasonable control delivery of the Plant is delayed for a period of more than fourteen days from the date of a notice in writing from the Company to the Purchaser that the Plant is ready for delivery the Company may make such arrangements to deliver into a warehouse or store as the Company thinks fit and all extra costs thereby incurred by the Company shall be paid by the Purchaser. The Purchaser will, if the Contract provides for any payment contingent on delivery, make such payment as if delivery had been made at such times as the Company was first ready to do so.
(iii) Unless otherwise expressly provided elsewhere in the Contract the Purchaser shall be responsible for unloading the Plant and the Company’s Equipment. Any extra costs incurred by the Company arising from inadequate facilities for delivering or unloading or from delay in providing the same shall be paid by the Purchaser.
Where packing cases are charged as an addition to the value of the Contract an allowance will be made if they are returned carriage paid in good condition to the Company’s works, or other address specified by the Company, within thirty days of date of delivery.
13. SITE SERVICES
(i) The Purchaser will ensure at the Purchaser’s own cost during Installation and the Acceptance Testing that;
(a) Such equipment, services, including safety services, consumable stores, roadways, beating, steam, telephone, toilets, canteen and medical services, water, power, lighting, product, suitable personnel, and any other facilities required by the Company are provided at such times as the Company shall require.
(b) Secure dry premises for storage for the Company’s use are available.
(c) A suitably prepared area in close proximity to the area of work is provided to accommodate the Company’s Equipment and temporary buildings necessary for performance of the Contract by the Company, together with the payment of any rates that may from time to time be levied on the same.
(ii) Free and unobstructed access to the Company at all times to the Site, including possession of acceptably prepared working areas, within such timescales as required by the Company.
(iii) All structural alterations to buildings and foundations (including foundations and supports for machinery) together with any cleaning, lifting, moving, strengthening and protection work are executed by the Purchaser in a proper workmanlike manner and at such times as the Company shall require.
Installation services will be provided where applicable as detailed in the Company’s tender.
If Installation is provided for a lump sum and is prolonged for any cause for which the Purchaser or any of the Purchaser’s contractors other than the Company is responsible and if as a result the work of the Company’s employees is suspended or added to a prolongation charge will be made by the Company to the Purchaser.
15. ACCEPTANCE TESTING
(i) The Acceptance Testing will commence on a date advised by the Company in writing by not less than 7 days notice. In the event that the Purchaser is unable to attend then the Company will perform the Acceptance Testing in the absence of the Purchaser and the results when certified in writing by the Company shall be final and binding.
If the Company, through no fault of its own is unable to conduct the Acceptance Testing within 3 weeks from the Company’s written notice that it is ready to conduct the same, then the Acceptance Testing will be considered to have been fulfilled.
(ii) On completion of Acceptance of Testing and the issue by the Company of an acceptance request form which may detail minor items to be completed the Purchaser shall be deemed to have taken over and become responsible for the Plant including its operation, cleaning, degreasing and maintenance.
(iii) The Purchaser shall not use the Plant until an acceptance request form has been issued.
(iv) Any additional tests including tests on product requested by the Purchaser on completion of the Acceptance Testing and the conditions under which they will be conducted must be agreed in writing by the Company.
(v) All costs incurred by the Company resulting from delays in conducting any testing due to reasons outside the Company’s control will be reimbursed by the Purchaser.
16. EXTENT OF WARRANTY
(i) Subject to the items of this clause the Company will replace, or at its option, repair free of charge any part of the Plant manufactured by the Company and rectify any part of the Works executed by the Company which may prove defective through faulty design, materials, or workmanship, fair wear and tear excluded, upon the Purchaser giving to the Company written notice of such faulty design, materials or workmanship.
(ii) The above warranty shall only apply in respect of matters whereof the Purchaser gives written notice within twelve calendar months of the Completion of the Contract.
(iii) The above warranty contained in sub-clause (i) hereof shall only apply provided that-
(a) Defective parts are returned to the Company’s works or, if that is not feasible, the Company is given all reasonable facilities for repair, inspection and testing;
(b) The Purchaser shall have complied with the Terms of Payment and all other conditions of the Contract and the Plant shall have been operated and maintained in accordance with the instructions provided by the Company;
(c) No replacement, repair or rectification is made or attempted without the Company’s prior written approval.
(iv) The Plant supplied but not manufactured by the Company is sold subject to such guarantees as are offered by the Company’s suppliers and in such cases the Company’s liability to the Purchaser is limited to such rights and remedies as the Company may itself be able to exercise under the terms of the Company’s agreements with its suppliers.
(v) Save as provided in this clause the Company shall be under no liability whatsoever in regards to the Plant or the Works and the provisions of this condition shall exclude any warranty or condition which might but for this condition be implied by statute, common law, custom or otherwise and the Company shall be under no further or other liability whatsoever in respect of loss or damage caused directly or indirectly by any failure or defect in the design, performance, quality or condition of the Plant or the Works, even if the same frustrates further performance of the Contract. In any event the Company’s liability in respect of the Plant or the Works proving defective shall be limited to the cost of replacement, repair or rectification unless the same shall relate to personal injury or death and only then if and to the extent that the same shall arise out of the Company’s negligence.
17. FORCE MAJEURE
If the Company is prevented or delayed from or in performing any of its obligations under the Contract by force majeure, which shall include but not be limited to strikes, lockouts or other industrial action whether or not by or involving employees of the Company, then the Company may give notice in writing to the Purchaser of the circumstances constituting force majeure and of the obligation, performance of which is thereby delayed or prevented, and shall thereupon be excused from compliance with such obligation for as long as such circumstances may continue.
If by virtue of this clause either party is excused from compliance with any obligation for a continuous period of four calendar months, then without prejudice to any other right or remedy either party may terminate the Contract by giving notice in writing to the other.
18. SUSPENSION OR TERMINATION OF THE WORKS
In the event that the Purchaser (or those for whom the Purchaser is responsible) is in default or breach of the Contract including delay by the Purchaser in payment of monies due under the Contract then the Company may forthwith by written notice postpone the fulfilment of any or all of t he Company’s obligations under the Contract and the Purchaser agrees to pay all costs incurred by the Company arising from such suspension and any subsequent disruption to the Works or terminate the Contract forthwith without prejudice to the pre-existing rights of the parties thereto.
19. RISK AND TITLE
When the Company undertakes to transport the Plant any damage to it will be repaired or t he Plant replaced free of charge, at the Company’s discretion, provided that the Purchaser sends to the Company and the carriers written notification of such damage within three days of the date of delivery. The Company shall be under no liability in respect of non-delivery unless the Company and the carriers have been notified within seven days of the date of despatch.
Upon delivery all risks of whatsoever nature in the Plant shall pass to the Purchaser but until such time as the Plant has been paid for in full the Purchaser shall not nor shall it allow any third party to acquire an interest in it or title to it and without prejudice to the generality thereof the Purchaser shall not pledge it or part with possession of it or allow any charge, lien or other encumbrance to affect it or allow it to be installed as a fixture of any property.
Notwithstanding the above, the title in the Company’s Equipment will remain with the Company at all times. Risk will pass to the Purchaser while the Company’s Equipment is on site.
20. LIABILITY FOR ACCIDENTS AND DAMAGE
The Purchaser shall indemnify the Company in respect of any loss, injury, damage, expense or claim of whatsoever nature and howsoever arising out of the Contract or the Plant or its storage, installation, use, operation or maintenance save to the extent that the same is caused by the negligence of the Company, its servants or agents including the Company’s sub-contractors.
21. LIMITATION OF LIABILITY
The Company shall not be liable in any circumstances whatsoever to the Purchaser for;
(a) any loss of use, consequential loss, loss of profits or loss of contracts suffered by the Purchaser,
(b) any loss or damage in circumstances over which the Company has no control.
The Purchaser warrants that any design or instruction furnished or given by him shall not be such as will cause the Company to infringe any letters patent, registered design or trade mark in the execution of the Contract. In addition, the Purchaser shall indemnify the Company against all actions, claims or demands by third parties in tort or otherwise arising directly or indirectly in connection with the use, functioning or state of the Plant.
If at any time any dispute or difference whatsoever shall arise under or in connection with the Contract including validity, construction and performance either party may give to the other notice in writing of such dispute or difference with short particulars of each point at issue and of its intention to submit the same to arbitration. Such dispute or difference shall then be referred to the decision of an arbitrator in England to be agreed on by the Purchaser and the Company or, failing agreement within fourteen days of either party having given to the other the name of a suggested arbitrator, such arbitrator to be appointed on the request of either party by the President for the time being of the Law Society.
The Contract shall be governed, performed and construed according to the Laws of England.
The headings shall not effect the interpretation of these conditions and where appropriate the singular shall include the plural and the plural the singular.