Terms and Conditions
TERMS & CONDITIONS
THE CUSTOMER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSE 7.
The following terms and conditions (“the Terms”) are the terms on which The Pure H2O Company (“the Company”) sells products and supersedes all other terms and conditions relating to the subject matter of these Terms.
1.1.1 The Pure H2O Company Limited whose principal place of business is at Unit 21 Boundary Business Centre, Boundary Way, Woking, Surrey, GU21 5DH (“the Company”);
1.1.2 The person named overleaf in the Schedule as the customer (“the Customer”)
1.2 Interpretation and Application of Terms:-
1.2.1 “the Goods” means any goods to be supplied to the Customer by the Company (including any part or parts of them) in accordance with these Terms;
1.2.2 “the Contract” means the contract for the sale and purchase of the Goods;
1.2.3 “the Terms” means the standard terms and conditions set out in this document;
1.2.4 Words in the singular include the plural and in the plural include the singular;
1.2.5 A reference to one gender includes a reference to the other gender;
1.2.6 The headings in these Terms do not affect the interpretation of these terms and conditions.
1.2.7 The Company shall sell and the Customer shall purchase the Goods in accordance with the Company’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Company) subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing. No variation to these Terms shall be binding unless agreed in writing between the authorised representatives of the Customer and the Company. No terms and conditions endorsed by the Customer on any quotation or contained in the Customer’s order, confirmation of order or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
1.2.8 The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which are not confirmed in these Terms, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
1.2.9 Each order or acceptance of a quotation for Goods by the Customer from the Company constitutes an offer by the Customer to purchase the Goods subject to these Terms. No order placed by the Customer shall be deemed to be accepted by the Company until a written acceptance or acknowledgement of the order is issued by the Company or (if earlier) the Company delivers the Goods to the Customer at which point the Contract shall come into existence.
1.2.10 The Customer is responsible for ensuring that the terms of each order are complete and accurate.
1.2.11 Any quotation given by the Company shall not constitute an offer and is given on the basis that no Contract shall come into existence until the Company dispatches a written acceptance or acknowledgement of order to the Customer or (if earlier) the Company delivers the Goods to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously with drawn it.
2.0 Price and Payment
2.1 The price for the Goods shall be the Company’s quoted price exclusive of any applicable value added tax or any analogous sales tax and all costs or charges in relation to carriage, freight, postage, and insurance all of which amounts the Customer shall pay in addition when it is due to pay for the Goods.
2.2 The Company may, by giving notice to the Customer at any time up to seven days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:-
2.2.1 any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, material and other manufacturing costs);
2.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or the specifications of any such Goods;
2.2.3 any delay caused by any instruction of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
2.3 The Customer shall on the date it receives written acceptance or acknowledgement of the order by the Company pay a deposit of 50% of the price payable for the Goods in cash or cleared funds.
2.4 Subject to clause 2.9, payment of the price for the Goods and any additional costs or charges shall be made by the Customer by payment to the Company in full (less any deposit paid in accordance with clause 2.3) in cash or cleared funds to the bank account nominated by the Company on or before the time of delivery of the Goods. If the Goods being purchased are part of any sales promotion or are being sold at a discounted price the Customer shall pay the full amount of the price payable for the Goods and any additional costs or charges in cash or cleared funds to the bank account nominated by the Company on the date it receives written acceptance or acknowledgement of the order by the Company.
2.5 Time for payment shall be of the essence.
2.6 No payment shall be deemed to have been received until the Company has received cleared funds.
2.7 If the Customer fails to make any payment on the due date then, without limiting any other right or remedy available to the Company, the Company may:-
2.7.1 cancel the contract or suspend any further deliveries to the Customer;
2.7.2 appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and
2.7.3 charge interest to the Customer on such sum from the due date for payment at the annual rate of 3% above the base rate published by Barclays Bank plc from time to time, accruing on a daily basis until payment is made, whether before or after any judgment. The Customer shall pay interest on demand.
2.8 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.
2.9 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision. If the Customer in breach of contract cancels the Contract then unless we are in breach of contract we have the right to retain all or part of the deposit as a contribution towards any losses or costs we suffer as a result of the Customer’s breach of contract. Any exercise of the Company’s rights under this clause shall be without prejudice to any other rights or remedies available to the Company under this Contract or otherwise.
2.10 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding.
3.1 The quantity and description of the Goods and any specification for them shall be as set out in the Company’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Company) and confirmed in the Company’s acknowledgement.
3.2 The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or regulatory requirements or, where the Goods are to be supplied to the Company’s specification, which do not materially affect their quality or performance.
3.3 Any samples, drawings, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
4.1 The Company shall deliver the Goods to the Customer at the address of the Customer on the acknowledgement of the order (“Delivery Location”). Any dates specified by the Company for delivery of the Goods are intended to be an estimate only 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 Company shall not be liable for any delay in delivery of the Goods that is causes by a force majeure event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
4.2 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery or the Company is unable to deliver the Goods because the Customer has not provided adequate delivery instructions, documents, licenses or authorisations, the Goods shall be deemed to have been delivered at the time that the Company attempted delivery and risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company’s negligence) at that time. In these circumstances the Company shall store the Goods until delivery takes place and charge the Customer for all related costs and expense (including insurance).
4.3 If fourteen days after attempted delivery, the Customer has not accepted delivery for any reason or the Company has been unable to deliver the Goods because the Customer has not provided adequate delivery instructions, documents, licenses or authorisations, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage ad selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.4 Subject to clause 4.2 all risk in the Goods shall pass to the Customer upon completion of delivery.
4.5 If the Company is unable to deliver the Goods for reasons outside of its control, or the Customer fails to accept delivery of the Goods or fails to give the Company appropriate delivery instructions, documents, licenses or authorisations then without limiting any other right or remedy available to the Company, the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include without limitation loss of profits, pure economic loss, 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 (even if caused by the Company’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract.
5.0 Title to goods
5.1 Notwithstanding delivery, title in the Goods sold shall not pass to the Customer until the Company has been paid in full (in cash or cleared funds) all sums due to in respect of the Goods and all other sums which are or which become due to the Company from the Customer on any account.
5.2 Until ownership of the Goods has passed to the Customer the Customer shall:-
5.2.1 hold the Goods on a fiduciary basis as the Company’s bailee;
5.2.2 store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
5.2.3 not remove destroy or deface or obscure any identifying mark or packaging on or relating to the Goods; and
5.2.4 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 Customer shall produce the policy of insurance to the Company.
5.3 If the Customer has expressly requested that he wishes to resell the Goods before ownership passes then, the Customer may resell the Goods before ownership has passed to it solely on the following conditions:-
5.3.1 any sale shall be effected in the ordinary course of the Customer’s business at full market value and the Customer shall hold such part of the proceeds of sale as represent the amount owed by the Customer to the Company on behalf of the Company and the Customer shall account to the Company accordingly; and
5.3.2 any such sale shall be a sale of the Company’s property on the Customer’s behalf and the Customer shall deal as principal (and not as the Company’s agent) when making such sale.
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1 then without limiting any other right or remedy the Company may have:
5.4.1 the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
5.4.2 the Company may at any time require the Customer to deliver up all Goods in its possession that have not been resold and if the Customer fails to do so promptly, enter any premises of the Customer or any third party where the Goods are stored in order to recover them.
5.5 The Customer grants the Company, its agents and employees and irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or where the Customer’s right to possession has terminated or where the Customer has failed to deliver up the Goods in accordance with clause 5.4, to recover them.
5.6 Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
5.7 On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this condition 5 shall remain in effect.
5.8 Unless the Customer has resold the Goods pursuant to clause 5.3 then until such time as the property in the Goods passes to the Customer, the Company may at any time require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, the Company, its agents and employers may enter on any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
5.9 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Customer does so all moneys owing by the Customer to the Company shall (without limiting any other right or remedy of the Company) forthwith become due and payable.
6.1 Subject to the following provisions, the Company warrants that upon delivery and for a period of 12 months from the date of delivery, the Goods shall correspond with their specification and be of satisfactory quality and fit for any purpose made known to the Company in writing at the time of placing the order within the meaning of the Sale of Goods Act 1979 (as amended), be free from material defects in design, material and workmanship and will comply with all applicable statutory and regulatory requirements relating to the Goods
6.2 Should the Customer enter into a five year service agreement in relation to the Goods with the Company then subject to the following provisions, the Company warrants that upon delivery and for a period of 60 months from the date of delivery, the Goods shall correspond with their specification and be of satisfactory quality and fit for any purpose made known to the Company in writing at the time of placing the order within the meaning of the Sale of Goods Act 1979 (as amended) and will comply with all applicable statutory and regulatory requirements and regulations relating to the Goods.
6.3 Should the five year service agreement be terminated for whatever reason then the warranty referred to in clause 6.2 will automatically expire on termination of the service agreement. 6.4 Subject to clause 6.5 where the Goods have been manufactured by the Company if:
6.4.1 the Customer gives written notice to the Company during the warranty period referred to in clause 6.1 or 6.2 as appropriate within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1 or 6.2 as appropriate;
6.4.2 the Company is given a reasonably opportunity of examining such Goods; and
6.4.3 the Customer (if asked to by the Company) returns such Goods to the Company’s place of business at the Customer’s cost. The Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.5 The Company shall not be liable for the Goods failure to comply with the warranty set out in clause 6.1 or 6.2 as appropriate in any of the following events:-
6.5.1 the Customer makes any further use of such Goods after giving such notice in accordance with 6.4.1;
6.5.2 the defect arises from the Customer’s failure to comply with the Company’s oral or written instructions as to storage, installation, commissioning, use or maintenance of Goods or in accordance with good trade practice regarding the same;
6.5.3 the Customer alters or repairs the Goods without the written consent of the Company;
6.5.4 the defect arises as a result of the Company following any drawing or design or specification supplied by the Customer;
6.5.5 the defect arises as a result of fair wear and tear, willful damage, negligence or abnormal storage of working conditions; or
6.5.6 the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.6 Any Goods to be replaced under Clause 6.4 shall belong to the Company and be delivered to the Company at the Customer’s expense.
6.7 Where the Goods have been manufactured and supplied to the Customer by a third party the Company shall where possible pass on to the Customer the benefit of any warranty in respect of the Goods granted to the Company by such third party.
6.8 The obligation of the Company under clause 6.4 shall not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Customer will only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company as set out in clause 6.7.
6.9 Except as provided in this clause 6 the Company shall no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1 or 6.2 as appropriate.
6.10 These Terms shall apply to any repaired or replacement Goods supplied by the Company.
7.0 Limitation of liability
7.1 The conditions implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law excluded from the Contract.
7.2 Nothing in these Terms excludes or limits the liability of the Company:-
7.2.1 for death or personal injury caused by the Company’s negligence or the negligence of its employees, agents or subcontractors (as applicable); or
7.2.2 for defective products under the Consumer Protection Act 1987; or
7.2.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability;
7.2.4 for breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
7.2.5 for fraud or fraudulent misrepresentation. 7.3 Subject to clause 7.1 and 7.2:- 7.3.1 the Company shall under no circumstances whatsoever be liable to the Customer whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any direct, indirect or consequential loss (including loss of profit, pure economic losses, loss of business, depletion of goodwill or otherwise), costs, damages charges or expenses which arise out of, under or in connection with, the Contract; and 7.3.2 the Company’s total liability to the Customer in respect of all other losses arising out of, under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise, shall in no way exceed the price of the Goods.
8.1 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with its rights or obligations under the Contract or any part of it to any person, firm or Company. The Customer shall not be entitled to assign, transfer, mortgage, charge, subcontract or deal in any other manner with its rights or obligations under the Contract or any part of it without the prior written consent of the company.
8.2 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) 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, strikes or other labour disputes or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
8.3 If any provision or part-provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void or voidable, unenforceable or unreasonable it shall to the extent of such invalidity, illegality, voidness or voidability, unenforceability or unreasonableness be deemed modified to the minimum extent necessary to make it valid legal and enforceable. If such modification is not possible the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or partprovision under this clause shall not affect the validity and enforceability of the rest of the Contract
8.4 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 or remedies under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract nor prevent or restrict the further exercise of that or any other right or remedy.
8.5 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.
8.6 A notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
8.7 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
9.1 Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
9.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4 the Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 9.1.1 to clause 9.1.4, or the Company reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest.
9.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
10.0 Governing law and jurisdiction
10.1 This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England. The parties hereto irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.