Energy Innovations (UK) Ltd Standard Terms and Conditions for Sale of Goods
The Buyer’s attention is in particular drawn to the provisions of condition 11.4.
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods and Services from the Company.
Buyer’s Equipment: any equipment, systems, cabling or facilities provided by the Buyer and used directly or indirectly in the supply of the Services.
Buyer’s Order Confirmation: the signed order confirmation sent to the Company from the Buyer relating specifically to the Quotation.
Company: Energy Innovations (UK) Ltd (Company Number 7367870) whose registered office is at Newchurch Farm, Kinnersley, Hereford HR3 6QQ
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods and (if so stated in the Quotation) Services, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
Quotation: the quotation for Goods and/or Services to be supplied by the Company to the Buyer referenced by the quotation number noted thereon.
Services: the services to be provided by the Company under the Contract.
VAT: Value Added Tax chargeable under English law for the time being unless the Buyer can provide evidence that a reduced Value Added Tax is applicable.
Initial Payment: the payment required from the Buyer to the Company representing the deposit payment referred to in the Quotation payable in pounds sterling.
Interim Payments: shall be the self valuation of works carried out on behalf of the Buyer to an agreed date and notified by the Company to the Buyer by way of an invoice.
Cleared funds: any payment received by the Company from the Buyer which has been cleared through the Company’s Bank.
the Company’s Bank: any bank or other institution appointed by the Company for the purpose of receiving payments from the Buyer.
the Company’s Suppliers: any third party, including sub-contractors, trading companies and/or manufacturers appointed by the Company to supply goods and/or services on behalf of the Company for the benefit of the Buyer.
1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
1.6 A reference to writing or written includes faxes but not email.
2. Application of terms
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s sales and supplies and any variation to these conditions and any representations about the Goods and/or Services shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods and, if included, Services by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods and, if included, Services subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until an Acknowledgement of Order is issued by the Company or (if earlier) the Company delivers the Goods and/or supplies the Services to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an Acknowledgement of Order to the Buyer. Quotations are subject to change and should be confirmed with the Company at the time of making an Order.
2.8 Subject to condition 2.9 upon payment by the Buyer to the Company of the Initial Payment the Buyer deems that the standard terms and conditions (reference: EIFI: 22.0 v.1.2: 11.10.12) are accepted without amendment.
2.9 No amendment to the Standard Terms and Conditions are agreed unless made in writing prior to the payment of the Initial Payment by the Buyer to the Company, such amendment to be signed by both the Buyer and the Company.
3.1 The quantity and description of the Goods and, if included, the extent of the Services, shall be as set out in the Quotation.
3.2 If the Buyer requires any changes to the specification of the Goods after the Acknowledgement of Order has been despatched to the Buyer, the Buyer shall be responsible for all costs incurred by the Company in changing the specification.
3.3 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3.4 The Company shall have the right to make any changes to the specification of the Goods or Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Goods or Services, and the Company shall notify the Buyer in any such event.
4. Delivery and timing of supply
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business. The Services, if any, shall be supplied at the address or addresses stated in the Quotation.
4.2 The Buyer shall take delivery of the Goods within seven days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. The Services, if any, shall be supplied as soon as reasonably practicable after delivery of the Goods unless otherwise specified in the Quotation. If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Buyer, its agents, sub-contractors or employees, the Company shall not be liable for any costs, changes or losses sustained or incurred by the Buyer arising directly or indirectly from such prevention or delay.
4.4 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods or provision of any Services (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, technical clarity of structural dimensions required for delivery, documents, licences, authorisations or access:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
(b) the Goods shall be deemed to have been delivered;
(c) the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and
(d) the Buyer shall be responsible for all consequential costs incurred by the Company as a result of the failure by the Buyer.
4.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods.
4.7 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.8 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.1 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
5.2 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee and the Buyer shall not therefore be entitled to sell the Goods unless and until all monies owing to the Company in respect of the Goods have been paid by the Buyer;
(b) keep the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) 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
(b) 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 the Contract or any other contract between the Company 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
(c) the Buyer encumbers or in any way charges any of the Goods.
6.5 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.6 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.7 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
7. Supply obligations
7.1 The Company shall use reasonable endeavours to provide the Services in accordance in all material respects with the Quotation.
7.2 The Company shall use reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time for provision of the Services, if any, shall not be of the essence of the Contract.
7.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Buyer in any such event.
7.4 The Company warrants to the Buyer that the Services will be provided using reasonable care and skill.
7.5 The Company shall use all reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Buyer’s premises and that have been communicated to it under condition 12.1(e), provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
8.1 Unless otherwise agreed by the Company in writing, the price for the Goods and, if any, Services shall be the price set out in the Quotation.
8.2 All charges quoted to the Buyer (whether for Goods and/or Services) shall be exclusive of VAT which the Company shall add to its invoices at the appropriate rate.
8.3 The price for the Goods shall be exclusive of all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
8.4 Where Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with the Company’s standard daily fee rates, as amended from time to time;
(b) the Company’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 8.00 am and 5.00 pm on weekdays (excluding public holidays);
(c) the Company shall be entitled to charge an overtime rate of 150% of the normal daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in condition 8.4(b);
(d) the Company shall ensure that every individual whom it engages on the Services completes time sheets recording time spent, and the Company shall use such time sheets to calculate the charges covered by each invoice supplied by the Company to the Buyer referred to in condition 8.4(e); and
(e) the Company shall invoice the Buyer periodically in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the time concerned, calculated as provided in this condition 8.4.
9.1 Subject to condition 9.7:
9.1.1. the Initial Payment shall be paid by the Buyer to the Company upon the Buyer providing a Buyer’s Order Confirmation to the Company for the supply of the Goods and/or Services set out in the Quotation
9.1.2. the Initial Payment shall be due in pounds sterling within 14 days of the Company providing the Buyer with an invoice in respect thereof which invoice shall be sent upon receipt of the signed order confirmation.
9.2 Unless otherwise agreed in writing between the Company and the Buyer the Company will be under no obligation to place an order with the Company’s Suppliers in respect of the Buyer’s Order Confirmation until such time as the Initial Payment has been cleared through the Company’s Bank.
9.3 Subject to condition 9.7 the Initial Payment is due in pounds sterling within 14 days of the Company providing the Buyer with an invoice in respect thereof which invoice shall be sent upon receipt of the signed order confirmation..
9.4 Subject to condition 9.7, payment of Interim Payments for the Goods and, if any, Services are due in pounds sterling within 30 days after the Goods are delivered or deemed to be delivered or, in the case of Services, after the supply of an invoice under condition 8.4(e).
9.5 Time for payment shall be of the essence.
9.6 No payment shall be deemed to have been received until the Company has received cleared funds.
9.7 All payments payable to the Company under the Contract shall become due immediately on its termination notwithstanding any other provision of these conditions.
9.8 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
9.9 Without prejudice to any other right or remedy that the Company may have, if the Buyer fails to pay the Company any sum due pursuant to the Contract:-
(a) the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 3.5% above the base lending rate from time to time of Clydesdale Bank accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) the Company may suspend all Services until payment has been made in full.
10. Quality of goods
10.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
10.2 The Company warrants that (subject to the other provisions of these conditions) on delivery, and for a period of 12 months from the date of delivery, the Goods shall:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
(b) be reasonably fit for the purpose specified in the Acknowledgement of Order.
10.3 The Company shall not be liable for a breach of either of the warranties in condition 10.2 unless:
(a) the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the Buyer, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.
10.4 The Company shall not be liable for a breach of either of the warranties in condition 10.2 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company.
10.5 Subject to condition 10.3 and condition 10.4, if any of the Goods do not conform with either of the warranties in condition 10.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
10.6 If the Company complies with condition 10.5 it shall have no further liability for a breach of either of the warranties in condition 10.2 in respect of such Goods.
10.7 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12 month period.
10.8 No warranty is given in respect of wearing parts, including but not limited to, gaskets, fire bricks, ignition fans, electrical relays, bearings, grate elements, transport and stoker augers and rubber parts.
11. Limitation of liability
11.1 Subject to condition 4, condition 5 and condition 10, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of the contract;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation; or
(e) for breach of the condition as to title of goods or the warranty for quiet possession implied by the Supply of Goods and Services Act 1982.
11.4 The Company shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(a) any loss of profit, revenue, or anticipated savings; or
(b) any loss that is an indirect or secondary consequence of any act or omission of the Company.
11.5 Subject to condition 11.2, condition 11.3 and condition 11.3 the Company’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 shall be limited to the Contract price (being the price of the Goods and, if any, the Services).
12. additional buyer obligations
12.1 The Buyer shall:
(a) co-operate with the Company in all matters relating to the Goods and Services;
(b) provide, for the Company, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Customer’s premises, and such facilities as are reasonably requested by the Company;
(c) provide the Company with such information and materials as the Company may reasonably require to supply the Goods and Services, and ensure such information is accurate in all material respects;
(d) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from its premises in accordance with all applicable laws, before and during the supply of the Services at those premises, and informing the Company of all of its obligations and actions under this condition 12.1(c);
(e) inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at the site to which the Goods are delivered and/or at which the Services are to be provided.
(f) ensure that all Buyer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant UK standards or requirements;
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, before the date on which the Services are to start.
13. Incentive Scheme Applications
13.1 The Company may as part of the Services (if so specified in the Quotation) provide advice and/or assistance in connection with the Buyer’s application(s) for Renewable Heat Incentive payment(s) (or other incentive or grant or subsidy or payment schemes or similar) or make the application on behalf of the Buyer and in such circumstances the following additional provisions shall apply:-
(a) all payments due to the Company by the Buyer under the Contract for Goods and/or Services shall be payable by the Buyer whether or not the application(s) is/are successful: and
(b) the Company shall have no liability in respect of any application(s) that is/are unsuccessful save as set out in condition 11.4.
14.1 The Company may assign the Contract or any part of it to any person, firm or company.
14.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
15. Force majeure
The Company reserves the right to defer the date of delivery or supply of Services or to cancel the Contract (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers or inability, delay in obtaining supplies of adequate or suitable materials, or non-performance by suppliers or subcontractors of the Company, provided that, if the event in question continues for a continuous period in excess of 120 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
16.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
17.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
17.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
17.3 Communications addressed to the Company shall be marked for the attention of the Managing Director.