MAAC Heating & Cooling Ltd - Conditions of Sale
These conditions shall be incorporated into all contracts between MAAC Heating & Cooling Ltd (“MAAC”) and any customer (“Customer”) for the supply to the Customer of goods and/or services. References to “Good” means the products manufactured or dealt in by MAAC and “Services” mean the services or works carried out by MAAC and which are the goods and/or services or works which are the subject of the Contract. “Contract” means the contract made between MAAC and the Customer for the supply of the Goods and/or Services and which shall be governed by these Conditions and which include any terms and conditions and related documents or information set out in, or otherwise identified in, the quotation upon which the Contract is based or in the MAAC acknowledgement. These Conditions supersede any earlier condition appearing in MAAC’s literature or elsewhere. The placing of any order by the Customer for Goods or Services shall be deemed to be an acceptance of these Conditions. Any terms and conditions stipulated, incorporated or referred to by the Customer whether in its order or in any negotiations or otherwise, are hereby excluded and in any event these Conditions shall prevail over Customer’s terms and conditions.
2. Formation of Contract
Any quotation submitted by MAAC does not constitute an offer capable of binding MAAC. No contract shall come into effect until MAAC have received satisfactory credit references in respect of the Customer for the Contract and until MAAC has issued its formal acknowledgement of the Customer’s order or other acceptance of MAAC’s quotation(s).
3. Manufacturers’ Catalogues etc
Particulars of dimensions, capacities, performance ratings, specifications, drawings and other data included in manufacturers’ catalogues, price lists or other documents supplied by MAAC constitute only an approximate guide and shall not be binding upon MAAC.
MAAC shall not be bound by any variations, waiver or additions to the Contract unless such are agreed in writing.
MAAC will deliver or arrange delivery of the Good to the Customer or to the Customer’s agent at the place specified in the Contract for deliveries or, if no place has been specified, at such place as may be agreed in writing. MAAC shall use its reasonable endeavours to deliver or arrange delivery of the Goods on the dates specified by the Customer or within a reasonable time thereof provided always that the time for delivery shall not be of the essence of the Contract and MAAC shall not be liable for any loss or damage whatsoever arising directly or indirectly from any failure to effect delivery within such periods. The Customer shall accept deliveries of Goods by instalments.
6. Services or work on site
(a) The customer shall provide adequate access to the relevant premises or site and ensure at all times that the working environment is conducive to the health and safety of MAAC’s employees, agents and sub-contractors. The Customer shall indemnify MAAC against all costs, claims, liabilities, and expenses incurred by MAAC arising from or in connection with any personal injury to or death of any of its employees, agents or subcontractors which is occasioned directly or indirectly by any act or omission (whether negligent or not) on the part of the Customer, its agents or employees.
(b) MAAC shall have the right to refuse to perform any Services which would bring MAAC’s employees, agents or subcontractors into contact with any hazardous substance where MAAC was not previously informed of such hazardous substance by the Customer or where such hazardous substance was not reasonably apparent from any inspection that MAAC may have made of the relevant site prior to the giving by MAAC of any quotation for the supply of the Goods and/or Services.
(a) The price of the Goods and/or Services shall be set out in the Contract. All Prices are exclusive of VAT and all other applicable taxes and duties, which will be payable in addition to the Contract price at the rate in force at the date of any invoice submitted by MAAC. MAAC may require payments to be made by instalments on the basis of a percentage of the total Contract price or as otherwise agreed in writing with the Customer.
(b) Payments shall become due to MAAC on the date of invoice. Each invoice shall set out an amount that MAAC considers to have been due and the basis upon which that amount has been calculated.
(c) The final date for payment by the Customer shall be 30 days after the relevant amount becomes due.
(d) Unless the customer has served a notice under clause 7(f), it shall pay MAAC the sum referred to in the customer’s notice under clause 7(c) (or if the Customer has not served such a notice, then the sum referred to in MAAC’s invoice and in either case, payment shall be made without deductions) (together referred to as “the notified sum”) on or before the final date for payment of the relevant amount.
(e) Not less than 7 days before the final date of payment, the Customer may give MAAC notice that it intends to pay less than the notified sun and any such notice shall specify the sum the Customer considers to be due on the date the notice is served and the basis upon which that sum is calculated. The Customer must pay at least the sum so notified without deduction.
(f) MAAC reserves the right to charge interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1988 and it is agreed that the rights provided under the said Act shall apply after any judgement or binding determination as well as before.
(g) If for any reason any payment of an amount due is not made by the final date for payment, MAAC shall be entitled to; (i) be paid on an indemnity basis for any costs it incurs in recovering money due under the Contract (and the costs of recovering such costs) including its administrative costs and any costs incurred with solicitors or debt collection agencies – In calculating administrative costs credit will be given for compensation payable in accordance with the Late Payment of Commercial (Interest) Act 1988 – and/or; (ii) notwithstanding any previous agreed credit periods, be paid on all invoices already delivered to the Customer whether or not the final date for payment in each case has been reached and/or; (iii) be paid a reasonable proportion in respect of Works and/or Services undertaken but not yet due and as if such amounts were already due.
(h) In the event of the Customer being in default of payment of any amount due to MAAC under the contract then on giving the Customer 7 days’ notice in writing specifying the grounds for so doing, MAAC may suspend performance of any or all of its obligations under the Contract. MAAC shall resume obligations under the Contract within a reasonable time after receipt of any outstanding payment. Any suspension arising under this clause shall entitle MAAC to payment of its reasonable costs and expenses incurred as a result and the period of suspension shall be disregarded in computing any agreed date for completion of the Works and/or Services and MAAC shall not otherwise be liable to the Customer in regard to such suspension.
(i) If for any reason the Goods and/or Services are cancelled by the customer within 72 hours of the Goods and/or Services start date, or if the customer is not at the project address on the date confirmed between MAAC and the customer then a cancellation/re-stocking/call out charge may be charged.
8. Passing of Property
(a) Until MAAC has been paid in full for any Goods supplied under the Contract, the Customer holds the Goods in a fiduciary capacity as bailee of MAAC and:
(i) Title to the Goods shall remain with MAAC and the Customer shall store the Goods in such a manner that they are clearly identifiable as the property of MAAC; and
(ii) MAAC reserves the right to dispose of the Goods and may retake possession thereof at any time for that purpose and may by its servants or agents enter upon any land or premises owned or occupied by the Customer or any subsequent purchaser of the Goods from the Customer and in addition the Customer shall include in any contract with a sub-purchaser a licence in favour of MAAC covering the right of entering covered in the sub-clause; and
(iii) If the Customer incorporates or allows the incorporation of the Goods into other goods or products in any way, legal and beneficial title to those other goods, both during the process of incorporation and thereafter shall very forthwith in MAAC, and the Customer shall hold them in fiduciary capacity as bailee for MAAC; if MAAC so requires the Customer shall observe the conditions regarding storage in sub clause (i) hereof as if such other goods were the Goods originally supplied; and
(iv) the parties agree that incorporation of the Goods into other goods or products in any way is not intended to extinguish MAAC’s title to the Goods as provided for these Conditions; and
(v) without prejudice to the above sub-clauses the Customer shall (subject to notice from MAAC to the contrary or in case of the events referred to in (c) below) have the power to sell the Goods in the normal course of its business on behalf of MAAC; and
(vi) The Customer shall include within its contract with a sub-purchaser provisions which cover MAAC’s rights under this clause 8; and
(vii) The Customer shall notify any subsequent purchaser of the Goods that the title to the Goods remains with MAAC until the customer has made payment in full to MAAC for the Goods; and
(viii) Any monies received by the Customer from any subsequent purchaser shall be held separately from any monies of the Customer or any other party on behalf of MAAC and the Customer has a fiduciary duty to account for such monies to the extent of its indebtedness and to this extent is to pay MAAC any sums received in respect of the Goods.
Notwithstanding the foregoing, risk in the Goods shall pass to the Customer upon the terms of clause 9 below.
(b) On receipt of notice from MAAC or on the happening of any of the events set out under (c) below, all Goods shall be immediately delivered to MAAC and/or MAAC acting by its servants or agents shall have the right without notice during normal business hours to enter upon the land or buildings of the Customer or any subsequent purchaser of the Customer to take possession of the Goods.
(c) The events hereinbefore referred to are:
(i) Any notice to the Customer that a receiver or manager of all or any part of the Customer’s assets is to be or has been appointed.
(ii) Any notice to the Customer that a petition to wind up the Customer is to be or has been presented or any notice of a resolution to wind up the Customer (save for the purpose of reconstruction or amalgamation) has been given or such a resolution has been passed
(iii) A decision by the Customer that the Customer intends to make an arrangement with its creditors.
(iv) The Customer is unable to pay its debts as defined in Section 123 of the Insolvency Act 1986.
(v) The Customer ceases to or threatens to cease to carry on its business.
The Goods shall be at the Customer’s risk from the time that they are delivered to the Customer in accordance with the Contract. The Customer shall insure the Goods for the full Contract price against loss or damage arising from any cause whatsoever. If requested by MAAC the Customer shall execute an assignment in favour of MAAC of all rights of the Customer to claim against the insurers in respect of the Goods covered by such insurance and shall join MAAC in notifying such insurers of MAAC’s interest in any policy effected hereunder. Such insurance (with insurers to be approved by MAAC) shall be effected by the Customer to cover the period from the time when the risk in the Goods passes to the Customer as provided above to the time when the property in the Goods passes to the Customer and MAAC’s interest as a vendor of the Goods shall be notified by the Customer to the insurers.
10. Claims in transit
(a) MAAC will not accept any responsibility whatsoever for loss, damage, discrepancy or shortfall to the Goods in transit if carried by a carrier nominated or requested by the Customer or by a carrier who is the servant or agent of the Customer. Claims shall be made immediately by the Customer to the carrier.
(b) Save as provided above, MAAC will repair, or at its option, replace free of charge, any part of the Goods lost or damaged in transit provided that MAAC and the carrier are given notice of such loss or damage within the time required by the carrier’s conditions of carriage or, where deliveries are made by MAAC’s own transport, within three days of receipt of the Goods or of the day upon which the Goods should have arrived had they not been lost and provided that any damaged Goods or part thereof are returned carriage paid by the Customer to MAAC.
11. Acceptance Procedure
(a) Goods shall be deemed to have been accepted by the Customer on delivery unless the Customer shall notify MAAC in writing of non-acceptance of the Goods within three days of delivery.
(b) Where the Contract is for the sale and installation of a complete system incorporating Goods, MAAC shall, unless otherwise agreed, be responsible for the installation, testing and commissioning of the system
(c) Completion of the installation, testing and commissioning and acceptance of a system by the Customer (which the Customer shall not be entitled unreasonably to refuse) shall be evidenced by the signature of a certificate of hand-over by an authorised representative of MAAC and by the Customer or its representative.
12. Force Majeure
MAAC shall not be liable in any manner whatsoever for any breach of contract or delay in performance of its obligations insofar as such breach or delay arises by reason of circumstance beyond its reasonable control including, without limitation, government actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to MAAC’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 60 days, the Customer shall be entitled to give notice in writing to MAAC to terminate Contract.
13. Suspensions and Termination
If the customer fails to comply with any of the terms of the Contract, whether a condition or warranty express or implied, or if any of the events set out in sub-clause 8 (c) occurs or if MAAC reasonably believes that they might occur and notifies the Customer accordingly, then, without limiting any other right or remedy, MAAC may suspend or terminate all further obligations under the Contract or under any other contract between the Customer and MAAC without incurring any liability to the Customer, and all outstanding sums shall become immediately due and MAAC may apply the rights under clause 7(h). In such an event MAAC will be discharged from further performance of the Contract (subject to the end of any period of suspension as applicable following the rectification of the terms of the Contract to MAAC’s reasonable satisfaction) and the Customer shall forthwith upon demand pay to MAAC all costs and expenses and overheads incurred in connection with the Contract together with any loss or profit and all sums due to MAAC hereunder.
14. Warranties and Liability
14.1 MAAC warrants that the Goods supplied by it to the Customer under the Contract will be of satisfactory quality and reasonably fit for any purpose made known to MAAC in writing at the time of the Customer’s order or agreement and that it will carry out the Services with reasonable skill and care. Subject as aforesaid, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.2 Nothing in these Conditions shall limit or exclude MAAC’s liability for:
(a) Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation
(c) breach of the terms implied by section 12 of the Sales of Goods Act 1979
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability; subject to which
(f) if MAAC is found to be in breach of the Contract its liability shall be limited to the cost of repair or replacement of the Goods provided or the re-performance of the services provided.
(g) MAAC shall under no circumstances be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(h) MAAC’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods or Services under the Contract.
(a) The Customer shall not without prior written consent of MAAC assign, transfer or sub-let the benefit or burden of the Contract or any part thereof.
(b) If any provision of these Conditions is found by any court, tribunal or administrative body of competent jurisdiction to the wholly or part illegal, invalid or unenforceable it shall to the extent of such illegality, invalidity or unenforceability be deemed severable and the remaining provisions of these Conditions shall continue in full force and effect.
(c) The Contract is not intended to confer a benefit on any third party, whether pursuant to the Contracts (Rights of the Third Parties) Act 1999 or otherwise, and no third party shall have any right to enforce any of the provisions of the Contract.
(d) No delay by either party in enforcing any of the provisions of the Contract shall be deemed a waiver of that party’s right subsequently to enforce such provision.
16. Dispute Resolution
(a) English law shall apply to the Contract
(b) Subject to either party’s right to adjudicate at any time, the parties shall use their reasonable endeavours to resolve any dispute or difference between them through negotiation or mediation. Either party may refer a dispute arising under the Contract to adjudication at any time under Part I of the Scheme for Construction Contracts (England and Wales) Regulations, which Part shall take effect as if it was incorporated into this clause. The adjudicator shall be nominated by the Royal Institute of Chartered Surveyors.
(c) The parties irrevocably agree that all courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).