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1.1. These Conditions shall be incorporated into each contract (“the Contract”) for the supply of Goods and/or Services by the Supplier. The Contract will be subject to these Conditions alone. All terms and conditions appearing or referred to in an Order or otherwise stipulated by the Buyer shall have no effect.
1.2. Any variation of the Contract must be expressly agreed in writing and signed by the Supplier’s duly authorised representative.
1.3. Any description contained in the Supplier’s catalogues, samples, price lists or other advertising material is intended merely to present a general picture of the Supplier’s Goods or Services and shall not form a representation or be part of the Contract.
1.4. Any quotation issued by the Supplier may be amended or withdrawn at any time prior to the formation of any contract concluded by reference thereto.
1.5. Where Goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery.
2.1. If Goods and/or Services are supplied in accordance with the Buyer’s specifications (“Specifications”) the Buyer shall be solely responsible for the Specifications and ensuring that they are suitable and accurate.
2.2. The Supplier reserves the right to make any changes in the Specification of the Goods which are required to conform with any applicable statutory or EC requirements.
2.3. The Buyer shall be responsible for supplying the Specifications and any necessary information relating to the Goods and/or Services within a sufficient time to enable the Supplier to perform the Contract in accordance with its terms.
2.4. The Supplier shall, prior to delivery, be entitled at its discretion to substitute for the Goods forming the subject of the Order similar goods from the same or an alternative source, or to make modifications or alterations to the Goods provided that:
2.4.1. in the case of substituted Goods, the alternative goods supplied shall be of equivalent or better quality or performance to the substituted Goods;
2.4.2. in the case of modified and altered Goods, such modifications or alterations to the Goods shall not materially affect their quality or performance.
No contract may be cancelled, suspended or varied by the Buyer except with the agreement in writing of the Supplier and on terms that the Buyer shall indemnify the Supplier 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 Supplier as a result of a cancellation, suspension or variation.
4.1. Packaging for the Goods shall be at the discretion of the Supplier or Manufacturer (as the case may be) which shall have the right to pack the Goods in such manner and with such materials and in such quantities as it in its absolute discretion thinks fit unless detailed packaging instructions are received from the Buyer and agreed in writing by the Supplier prior to agreeing a price for the Goods.
4.2. Unless packaging is arranged by the Manufacturer or unless otherwise agreed in writing by the Supplier, packing cases and packing materials will be charged extra but, where stated to be returnable, will be credited in full on return to the Supplier’s works carriage paid in good condition, within one month of receipt by the Buyer. Where not returnable, the Buyer will dispose of all packing in accordance with all regulations (whether statutory or otherwise) relating to the protection of the environment.
4.3. The Supplier shall use reasonable endeavours to ensure, where packaging is not provided by the Manufacturer of the Goods or where otherwise necessary in the Supplier’s opinion, the suitability of packing before despatch, but no claim will be accepted by the Supplier for breakage or damage in transit on the ground of alleged unsuitability for packing.
5.1. All prices shall be as stated by the Supplier.
5.2. Except as otherwise stated under the terms of any quotation or in any price list of the Supplier, and unless otherwise agreed in writing between the Buyer and the Supplier, all prices are given by the Supplier on an ex-works basis, and where the Supplier agrees to deliver the Goods otherwise than at the Supplier’s premises, the Buyer shall be liable to pay the Supplier’s charges for transport, packaging and insurance and other incidental costs.
5.3. The Supplier reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods and/or
Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier, any change in delivery dates, quantities or specifications for the Goods and/or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Supplier adequate information or instructions.
5.4. Where the price for the Goods or Services is varied in accordance with Condition 5.3 the price as varied shall be binding on both parties.
5.5. There shall be added to the price for the Goods or Services any cost of value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods or performance of the Services, (whether initially charged on or payable by the Supplier or the Buyer).
5.6. Except where Goods are sold outside the United Kingdom (in which case the provisions of Condition 13 apply), all prices are given by the Seller on an ex-works basis, unless otherwise agreed in writing between the Supplier and the Buyer.
5.7. Quotations in a currency other than sterling are based on the rate of exchange at the time of quoting and unless otherwise stated the price may be subject to revision up or down if any different rate of exchange is ruling at the date of invoice.
6.1. Subject to any special terms agreed in writing between the Supplier and the Buyer, liability for payment shall arise in respect of Goods supplied, on delivery and in respect of Services supplied, upon completion thereof. The Supplier shall be entitled accordingly to invoice the Buyer for the price of the Goods and/or Services on or at any time after delivery or completion respectively, unless, in the case of Goods, these are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Supplier shall be entitled to invoice the Buyer for the price at any time after the Supplier has notified the Buyer that the Goods are ready for collection or (as the case may be) the Supplier has tendered delivery of the Goods.
6.2. When deliveries are spread over a period each consignment will be invoiced as despatched and each month’s invoices will be treated as a separate account and be payable accordingly.
6.3. Unless otherwise agreed by the Supplier, the Buyer shall pay the price of the Goods (less any discount agreed in writing by the Supplier, but without any other deduction or set-off) within 30 days of the date of the Supplier’s invoice.
6.4. Time of payment shall be of the essence. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
6.4.1. cancel the Contract or suspend any further deliveries or performance under the Contract or any other contract so long as the default continues; and/or
6.4.2. withdraw or cancel immediately any discount for prompt payment which has been agreed with or has been granted to the Buyer or to which the Buyer is entitled and debit the Buyer’s account accordingly.
7.1. Delivery shall take place when the Goods are unloaded at or delivered by the Supplier or any agent or contractor of the Supplier (including without limitation the Manufacturer) to the Buyer’s premises or other delivery location agreed between the Supplier and the Buyer except that:
7.1.1. if the Buyer collects or arranges collection of the Goods from the Supplier’s or Manufacturer’s premises (as the case may be), or nominates a carrier for the Goods, delivery shall take place when the Goods are loaded on to the collection or carrier’s vehicle; or
7.1.2. if the Goods are ready to be despatched from the premises of the Manufacturer or the Supplier (as the case may be) to the Buyer and the Buyer has failed or refused to provide the Supplier or the Manufacturer with detailed delivery instructions and/or the place for delivery has not been agreed in writing by the Supplier or the Manufacturer the delivery shall take place when the Supplier or the Manufacturer has notified the Buyer that it is awaiting specific delivery instructions and/or that the place for delivery has not been agreed.
7.2. The dates for delivery of the Goods or for performance of the Services are approximate only and time is not of the essence for delivery or performance. The Supplier will use its reasonable endeavours to complete delivery or performance on or before dates requested by the Buyer but will not be liable in any circumstances for the consequences of any delay in delivery or performance or failure to deliver or perform.
7.3. The Buyer shall accept immediate delivery or arrange to collect the Goods or arrange suitable storage, failing which the Supplier may either:-
7.3.1. effect delivery by whatever means it thinks most appropriate; or
7.3.2. arrange storage at the Buyer’s risk and expense pending delivery; or
7.3.3. resell or otherwise dispose of the Goods without prejudice to any other rights the Supplier may have against the Buyer for breach of contract or otherwise.
7.4. The Buyer shall indemnify the Supplier against all costs, losses and expenses suffered or incurred as a result of its failure to accept immediate delivery.
7.5. Where the Contract provides for delivery by instalments each instalment shall constitute a separate contract and any delay, failure or defect in any one or more instalments delivered shall not entitle the Buyer to reject or cancel delivery or performance of any further instalment of the Contract or any other order from the Buyer or to repudiate the Contract.
7.6. The quantity of the Goods delivered under the Contract shall be recorded by the Supplier or the carrier engaged by the Supplier or the Manufacturer upon despatch from the Supplier’s or Manufacturer’s premises and the Supplier’s record or the carrier’s assignment note shall be accepted by the Buyer as conclusive evidence of the quantity delivered.
8.1. The Buyer shall examine the Goods upon delivery, or, in respect of the sale of Goods outside the United Kingdom, upon receipt and the Buyer shall:
8.1.1. notify in writing the Supplier and the carrier where relevant within 24 hours of the proposed date of delivery of non-delivery or short delivery;
8.1.2. notify in writing the Supplier and the carrier where relevant within three working days of such delivery or receipt of any apparent damage, defect or shortage;
8.1.3. notify in writing the Supplier within three working days of such delivery or receipt of any goods despatched by the Supplier to the Buyer in error.
8.2. Notification under the above Condition 8.1 shall be first made by telephone then by notice in writing delivered by facsimile or by first class recorded delivery mail (if within the UK) or by courier (if outside the UK) and addressed to the Supplier at the Supplier’s address contained herein unless specified otherwise by the Supplier.
8.3. The Buyer shall comply with the carriers rules regulations and requirements so as, when appropriate, to enable the Supplier to make a claim against the carrier in respect of any damage or loss in transit.
8.4. In default of notification pursuant to the provisions of this Condition 8, subject to any claim which the Buyer may have under Condition 9, the Supplier shall be deemed conclusively to have properly performed its obligations under the Contract.
8.5. The Supplier shall be under no obligation to accept the return of Goods except in accordance with Conditions 8.1.2, 8.1.3, 9 and 11.
9.1. In respect of Goods supplied but not manufactured by the Supplier, the warranties given by the Supplier will be equivalent to the warranty (if any) which the Supplier received from the manufacturer or supplier of such Goods but not so as to impose a liability greater than that imposed on the Supplier by the warranty in Condition 9.2 and the warranties given pursuant to this Condition shall in any event apply only if the Buyer has given the Supplier written notice and satisfactory proof of any relevant defect within the applicable period specified in Condition 9.2.
9.2. The Supplier warrants that (subject to the other provisions of these Conditions) for a period of 24 months from the date of delivery, or such other period as stipulated in any quotation provided, the Goods will be free from defects in workmanship or material.
9.3. The Supplier shall not be liable for a breach of the warranty in Condition 9.2 unless:
9.3.1. The Buyer gives written notice of the defect to the Supplier, and (if the defect is as a result of damage in transit) to the carrier, within seven days of the time when the Buyer discovers or ought to have discovered the defect and shows to the satisfaction of the Supplier that the Goods are defective in workmanship or material; and
9.3.2. The Supplier is given a reasonable opportunity after receiving the notice of the defect to examine such Goods and the Buyer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Buyer’s cost for the examination to take place there.
9.4. The Supplier shall not be liable for a breach of the warranty in Condition 9.2 if:
9.4.1. the Buyer makes any further use of such Goods after giving such notice; or
9.4.2. the defect arises because the Buyer failed to follow the Supplier’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
9.4.3. the Buyer replaces, repairs or fits parts to the Goods which were not supplied by the Supplier, or without the written consent of the Supplier;
9.4.4. if the Goods have been stored, handled or applied in such a way that damage is likely to occur;
9.4.5. if the Buyer shall not have paid by the due date for payment for all Goods or Services supplied whether under the Contract or under any other contract between the Supplier and the Buyer;
9.4.6. in respect of any defect in the Goods arising from any free issue materials or any drawing, design or specification supplied by the Buyer.
9.5. Subject as expressly provided in Conditions 9.1, 9.2 and 9.3 above 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.
9.6. Subject to Conditions 9.3 and 9.4, if any of the Goods do not conform with the warranty in Condition 9.2, the Supplier shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate or re-perform the Services provided that, if the Supplier so requests, the Buyer shall at the Buyer’s expense, return the Goods or the part of such Goods which is defective to the Supplier.
9.7. If the Supplier complies with Condition 9.6 it shall have no further liability for a breach of the warranty in Condition 9.2 in respect of such Goods.
9.8. Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 24 month period.
9.9. Save for liability for death or personal injury arising from the Supplier’s negligence and fraudulent misrepresentation for liability arising under the Consumer Protection Act 1987 (which if proved is not excluded), the Supplier’s option to repair, replace, re-perform or refund as aforesaid shall constitute the full extent of the Supplier’s liability in respect of any loss or damage sustained by the Buyer (whether caused by any breach of the Contract or by misrepresentation (unless fraudulent) or by the negligence of the Supplier, its employees or agents or arising from any other cause whatsoever) and the Supplier shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct, indirect or consequential (including, without limitation, loss of profits) suffered by the Buyer arising therefrom.
9.10. The cost to the Supplier of and incidental to the return by the Buyer to the Supplier of any of the Goods delivered hereunder shall, except to the extent that the Supplier has accepted responsibility hereunder, be the responsibility of the Buyer who shall indemnify the Supplier against any such costs including, but without limitation to the generality of the foregoing, costs of transport and testing or any other cost or loss to the Supplier arising therefrom.
9.11. Notwithstanding Condition 9.9 above, the Buyer shall, except where he is a person who suffers personal injury or death or loss or damage to property such as to give rise to a claim under the Consumer Protection Act 1987, indemnify the Supplier against all loss, damage, liability, legal fees and costs arising from any such claim made against the Supplier under the Consumer Protection Act 1987.
9.12. Save for liability for death or personal injury arising from the Supplier’s negligence and for liability arising under the Consumer
Protection Act 1987 (which if proved is not excluded), the maximum liability of the Supplier under or in connection with the Contract shall not exceed the price of the Goods or Services.
10.1. Unless the Contract otherwise stipulates, and subject to Goods sold outside the United Kingdom pursuant to the provisions of Condition 13, risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery of the Goods in accordance with Condition 7 above or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods and the Goods should be insured by the Buyer accordingly.
10.2. Notwithstanding that risk in the Goods shall pass to the Buyer in accordance with Condition 10.1, legal and beneficial ownership of the Goods shall remain with the Supplier until payment in full has been received by the Supplier:
10.2.1. for those Goods;
10.2.2. for any other goods supplied by the Supplier;
10.2.3. of any other monies due from the Buyer to the Supplier on any account.
10.3. Until property in the Goods passes to the Buyer under Condition 10.2 the Buyer shall:
10.3.1. be bailee of the Goods;
10.3.2. keep the Goods separately and readily identifiable as the property of the Supplier.
10.4. Notwithstanding Condition 10.2, the Buyer may as principal in the ordinary course of its business sell the Goods by bona fide sale at full market value.
10.5. Goods shall be deemed sold or used in the order delivered to the Buyer.
10.6. Any resale by the Buyer of Goods in which property has not passed to the Buyer shall (as between the Supplier and the Buyer only) be treated as if made by the Buyer as agent for the Supplier.
10.7. If Goods in which property has not passed to the Buyer are mixed with or incorporated into other goods the property in those other goods shall be held on trust by the Buyer for the Supplier to the full extent of the sums recoverable by the Supplier under Condition 10.2.
10.8. The proceeds of sale of any Goods and any other goods referred to in Condition 10.7 shall be held by the Buyer in trust for the Supplier to the extent of all sums recoverable by the Supplier under Condition 10.2.
10.9. The Buyer shall keep any proceeds of sale as referred to in Condition 10.8 in a separate account but in any event the Supplier shall have the right to trace such proceeds.
10.10. The Buyer assigns to the Supplier all rights and claims the Buyer may have against its own customers and others in respect of the Goods specified in Condition 10.6, goods specified in Condition 10.7 and proceeds of sale specified in Condition 10.8.
10.11. At any time before property in the Goods passes to the Buyer (whether or not any payment to the Supplier is then overdue or the Buyer is otherwise in breach of any obligation to the Supplier), the Supplier may (without prejudice to any other of its rights):
10.11.1. retake possession of all or any part of the Goods and enter any premises for that purpose (or authorise others to do so) which the Buyer hereby authorises;
10.11.2. require delivery up to it of all or any part of the Goods;
10.11.3. terminate the Buyer’s authority to resell or use the Goods forthwith by written notice to the Buyer which authority shall automatically terminate (without notice) upon any insolvency of the Buyer or it going into liquidation (as defined in the Insolvency Act 1986) or it having a receiver appointed or calling a meeting of its creditors or any execution or distress being levied on Goods in its possession.
10.12. The Supplier may at any time appropriate to such indebtedness of the Buyer as it thinks fit sums received from the Buyer notwithstanding any purported appropriation by the Buyer.
10.13. Each clause and sub-clause of this Condition 10 is separate, severable and distinct and, accordingly, in the event of any of them being for any reason whatever unenforceable according to its terms, the others shall remain in full force and effect.
11.1. The Supplier may at any time and in its absolute discretion request, either orally or in writing, the recall of any Goods supplied to you (“Recall”). Where such a request is made orally, it shall be confirmed by the Supplier in writing.
11.2. The reasonable cost of collection of any Goods subject to Recall shall be borne by the Supplier and the Buyer shall render all reasonable assistance in the arrangements for collection and return of such Goods.
11.3. If the Goods cannot be replaced within a reasonable period, the Supplier shall issue to the Buyer a credit note for the price then current of the Goods subject to Recall.
If the Buyer enters into a deed of arrangement or commits an act of bankruptcy or compounds with his creditors or if a receiving order is made against him or (being a company) it shall pass a resolution or the Court shall make an order that the Buyer shall be wound up (otherwise than for the purposes of amalgamation or reconstruction) or if a receiver (including an administrative receiver) shall be appointed of any of the assets or undertaking of the Buyer or if the Buyer suffers the appointment or the presentation of a petition for the appointment of an administrator or if circumstances shall arise which entitle the Court or a creditor to appoint a receiver (including an administrative receiver) or a manager or which entitle the Court to make a winding-up order or if the Buyer takes or suffers any similar action in consequence of debt or if the financial responsibility of the Buyer shall, in the opinion of the Supplier, become impaired or if the Buyer shall commit any breach of any part of the contract the Supplier may without prejudice to its rights and remedies under these conditions stop all Goods in transit and suspend further deliveries and by notice to the Buyer may terminate the contract immediately.
13.1. In respect of the sale of Goods outside the United Kingdom (“Export Sale(s)”) the provisions of this Condition 13 shall (subject to any special terms agreed in writing between the Buyer and the Supplier) apply notwithstanding any other provision of these Conditions.
13.2. Unless otherwise specifically agreed in writing between the Buyer and the Supplier, all Goods for Export Sale shall be delivered FOB the UK port of shipment and the Supplier shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979).
13.3. Prices in respect of Export Sales are given by the Supplier on a FOB basis unless otherwise agreed in writing between the Supplier and the Buyer.
13.4. Unless the Buyer has opened a credit account with the Supplier in accordance with the provisions of Condition 13.5 below, payment in respect of Export Sales shall be made by the Buyer to the Supplier either:
13.4.1. by cash, cheque or credit card upon placing an Order or otherwise before delivery; or
13.4.2. by means of a confirmed irrevocable letter of credit opened in the Supplier’s name before the specified delivery date with the
Supplier’s banker’s, National Westminster Bank plc, 8 Market Place, Huddersfield, West Yorkshire, HD1 2AL, and drawn in England on and confirmed by a United Kingdom Clearing Bank and Licensed Deposit Taker in the United Kingdom on presentation of the bills of lading; or
13.4.3. if the Supplier has agreed in writing on or before acceptance of the Order to waive the requirements of clause 13.4.2, by acceptance by the Buyer and delivery to the Supplier of a bill of exchange drawn on the Buyer payable 60 days after sight to the order of the Supplier at such branch of the said Bank in the United Kingdom as may be specified in the bill of exchange.
13.5. The Supplier may, at its discretion, establish a credit account for the Buyer, upon the Buyer furnishing satisfactory British Trade and bank references. If the Supplier opens such an account in favour of the Buyer settlement of invoices shall, unless otherwise specified in writing by the Supplier, be due thirty days from the date of invoice.
13.6. The Buyer warrants that if an import licence or permit or any other consent or approval is required for the importation of the Goods into the country of destination then such import licence, permit, consent or approval has been obtained or will be obtained prior to shipment.
14.1. Insofar as the performance of the Contract by the Supplier may be affected by any strike, any lack of available shipping or transport or materials, any restriction regulation or decree by any local or municipal authority or government department or by any cause beyond the Supplier’s reasonable control (which shall be construed without reference to the preceding causes) the Supplier may elect, at its absolute discretion, either:
14.1.1. to terminate the Contract; or
14.1.2. to proceed to perform or continue performance under the Contract within a reasonable time after the termination of such events or circumstances.
14.2. In the event that the Supplier makes an election under Condition 14.1 the Buyer shall accept the Goods or such part of them as are delivered to it notwithstanding any delay.
The Buyer shall indemnify the Supplier against all actions, costs (including the cost of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement or alleged infringement of any patent, registered design, unregistered design, design right, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Supplier with the Buyer’s instructions, whether express or implied.
The Buyer agrees upon demand to indemnify the Supplier against all losses, damages, injury, costs and expenses of whatever nature suffered by the Supplier to the extent that the same are caused by or related to:
16.1. designs, drawings or specifications given to the Supplier by the Buyer in respect of the Goods and/or Services;
16.2. defective materials or products supplied by the Buyer to the Supplier and incorporated by the Supplier in the Goods; or
16.3. the improper incorporation, assembly, use, processing, storage or handling of Goods by the Buyer.
17.1. None of the rights or obligations of the Buyer under the Contract may be assigned or transferred in whole or in part without the prior written consent of the Supplier.
17.2. The Supplier shall be entitled to subcontract any work relating to the Contract without obtaining the consent of, or giving notice to, the Buyer.
The Buyer agrees to pay due regard to any information or any revised information whenever supplied by the Supplier (and is deemed to have been given adequate information and to have read and understood it) relating to the use for which the Goods are designed or have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person at work or when they are being dismantled or disposed of, and the Buyer undertakes to take such steps as may be specified by the above information to ensure that as far as reasonably practicable the Goods will be safe and without risk to health at all times as mentioned above. For these purposes the Buyer is deemed to have been given a reasonable opportunity to test and examine the Goods before delivery.
19.1. Any notice or other communication to be given under these conditions must be in writing and may be delivered or sent by pre-paid first class letter post or facsimile transmission.
19.2. Any notice or document shall be deemed served, if delivered, at the time of delivery; if posted, 48 hours after posting, and if sent by facsimile transmission, at the time of transmission.
The invalidity, illegality or unenforceability of any provision of these Conditions in whole or in part shall not prejudice the effectiveness of the rest of these Conditions or the remainder of any part of a Condition affected.
No waiver by the Supplier 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.
A person who is not party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
The Contract (and any proceedings whereby one party might be entitled to join the other as a third party) shall be governed by and construed in all respects in accordance with English law and the parties hereby submit to the non-exclusive jurisdiction of the English courts.