Application and entire Agreement, engcon UK Ltd.
1. These Terms and Conditions apply to the provision of goods and services (together, the Product) detailed in our quotation by Engcon (UK) Limited, a company registered in England and Wales with company number 04888290 whose registered office is at Unit 5 Ashchurch Business Centre, Alexandra Way, Tewkesbury GL20 8NB (we or us) to the person or company buying the goods and services (You).
2. You are deemed to have accepted these Terms and Conditions when you accept our quotation and these Terms and Conditions and our quotation (together, the Contract) are the entire agreement between us.
3. You acknowledge that you have not relied upon any statement, promise or representation made or given by us or on our behalf. These conditions apply to the Contract to the exclusion of any other terms that you try and impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
4. A business day means any day other than a Saturday, Sunday or bank holiday in England and Wales.
5. The headings in the Terms and Conditions are for convenience only and do not affect their interpretation
6. Words imparting the singular number shall include the plural and vice-versa
7. The description of the Product is set out in our sales documentation, which is intended as a guide only, unless expressly amended in our quotation. We warrant that we will use reasonable care and skill in our delivery of the Product which will comply with the quotation, including any specification in all material respects. We can make any changes to the Product which are necessary to comply with any applicable law or safety requirement and we will notify you if this is necessary.
8. We will use our reasonable endeavours to complete the delivery of the Product within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations
9. All of these terms and Conditions shall apply to the supply of goods as well as services unless we specify otherwise.
10. The Price of the Product is inclusive of packaging (where appropriate) and delivery within the UK mainland, unless stated otherwise in the quotation.
11. The Price of the Product may include installation and commissioning, in which case this will be stated in the quotation. Where installation and commissioning is included in the Price the effective invoice date will be the date on which the commissioning is completed.
12. The Price is exclusive of VAT and any other prevailing taxes. The price for the Product is set out in the quotation and is on a time and material basis.
13. In addition to the Price, we can recover from you a) reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties and required by us for the supply of the Product and c) the cost of any materials required for the provision of the Product.
14. You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our then current, applicable daily rate in effect at the time of the performance or such other rate as may be agreed between us. The provisions of clause 13 also apply to these additional services.
15. The delivery of the Product may take place in stages.
16. You must obtain any permissions, consents, licenses or otherwise that we need and must give us with access to any and all relevant information, materials, properties and any other matters which we need to provide the Product.
17. If you do not comply with clause 16 we can terminate the supply of the Product
18. We are not liable for any delay or failure to provide the Product if this is caused by your failure to comply with the provisions of this section (Your obligations)
19. You must pay a deposit (Deposit) as detailed in the quotation at the time of accepting the quotation.
20. If you do not pay a Deposit to us according to the clause above, we can either withhold supply of the Product until the Deposit is received or can terminate under the clause below (Termination)
21. The Deposit is non-refundable unless we fail to provide the Product and are at fault for such failure (where the failure is not our fault, no refund will be made)
22. We can withdraw, cancel or amend or cancel a quotation if it has not been accepted by you, or if the Product has not been delivered, on whole or in part, within a period of 14 days from the date of the quotation (unless the quotation has been withdrawn).
23. Either we or you can cancel an order for any reason prior to your acceptance (or rejection) of the quotation.
24. If you want to amend any details of the Product you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Fees and invoiced to you.
25. If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party’s control) we have to make any change in the Product or how it is provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum,
26. We will invoice you for payment of the Fees either:
a. When we have supplied the Product; or
b. On the invoice dates set out in the quotation.
27. You must pay the Fees due within the terms set out on the quotation. Unless otherwise agreed, this will be by the end of the month following the month in which the Product was supplied.
28. Time for payment shall be the essence of the Contract.
29. Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 4% above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full.
30. All payments due under these Terms and Conditions must be paid in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
31. If you do not pay within the period set out above, we can suspend any further supply of Product and cancel any future Products which have been ordered by, or otherwise arranged with, you.
32. Receipts for payment will be issued by us only at your request.
33. All payments must be made in British Pounds unless otherwise agreed in writing between us.
34. We can at any time assign, transfer, charge, subcontract or deal in another manner with all or any of our rights under these Terms and conditions and can subcontract or delegate in any manner any or all of our obligations to any third party.
35. You must not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and conditions.
36. We can terminate the supply of the Product immediately if you:
a. commit a material breach of your obligations under these Terms and conditions; or
b. fail to make payment of any amount due under the Contract on the due date for payment
c. are, or become or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or
d. enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or
e. convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge (as defined in para.14 of Schedule B1 of the Insolvency Act 1986), as resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency.
37. We reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the supply of the Products. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.
38. Our liability under these Terms and conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this clause.
39. The total amount of our liability is limited to the total amount of the Fees payable by you under the Contract.
40. We are not liable (whether caused by our employees, agents or otherwise) in connection with our supply of the Products or the performance of any of our other obligations under these Terms and conditions or the quotation for:
a. Any indirect, special or consequential loss, costs, damages or expenses, or;
b. Any loss of profits, loss of anticipated profits, loss of business, loss of data, loss of reputation or goodwill, business interruption, other third party claims, or;
c. Any failure to perform any of our obligations if such delay or failure is beyond our reasonable control, or;
d. Any losses caused directly or indirectly by any failure or your breach in relation to your obligations, or;
e. Any losses arising directly or indirectly from the choice of Products and how they will meet your requirements or your use of the Product or any goods or services supplied in connection with the Product.
41. You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) cause by you or your agents or your employees.
42. Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
43. Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such clauses include, but are not limited to, power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, government action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, either of us may terminate or cancel the supply of the Product to be carried out under these Terms and Conditions.
44. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of the party giving notice (or a duly authorised officer of that party)
45. Notices shall be deemed to have been duly given:
a. When delivered. If delivered by courier or other messenger (including registered mail) during normal business hours of the recipient;
b. When sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
c. On the fifth business day following posting if posted using standard surface mail within the UK and Ireland;
d. On the tenth business day following posting if posted using airmail for overseas addresses.
46. All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.
47. No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy.
48. If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that/those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
49. This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under this Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.
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