APC Property Technologies – Terms and Conditions of Sale
Covering APC Lighting and APC Smartwave
1. Application and General
These Terms and Conditions shall apply to the purchase of the Goods and/or Services detailed overleaf (“Goods and/or Services”) by you (“Buyer”) from APC Technology Group plc a company registered in the UK whose registered office is 6 Stirling Park, Laker Road, Rochester, Kent, ME1 3QR.registered number 01635609 (“Seller”). No other terms and conditions shall apply to the sale of the Goods and/or Services unless agreed upon in writing between the Buyer and Seller. The Terms & Conditions form part of a contract between both parties and are accompanied by the attached quotation and acceptance document (schedule).
1.1 Any contract between the Buyer and the Seller for the supply of Goods and/or Services and services shall automatically incorporate these conditions. No amendment to them will be accepted by the Seller unless previously negotiated and agreed by both parties in writing.
1.2 These conditions shall prevail over any terms and conditions attached to the Buyer’s order form or acceptance or otherwise submitted by the Seller.
1.3 No waiver by the Seller of these terms and conditions shall be effective unless it is in writing and signed on behalf of the Seller by a duly authorised official. Any such waiver shall be effective for the purpose of the particular transaction only and all other conditions herein contained shall remain in full force and effect.
2.1 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
2.2. The following additional terms shall have the meanings identified against them under this contract
Additional maintenance – any work required from the Seller to restore Equipment up to the current British Standard or other appropriate and agreed standard and which does not form part of Scheduled Maintenance.
Call Out – an unscheduled maintenance visit instructed by the Buyer.
Call Out charge — the Sellers rate charge for coming to attending the Buyer’s site excluding the price of materials.
Certificate of works-a certificate showing the equipment we have worked on or services carried out (whether as part of maintenance, extra maintenance or a call out) and refills, parts or equipment provided by the Seller.
Contract – the contract under which we supply the services. The contract is made up of the quotation (if any), the schedule, these terms and conditions and any document we provide relating to the services.
Contract date — the date we sign the contract.
Equipment – the systems and equipment are shown in the schedule covered under this contract
Failed visit charge — the Seller’s charge for an attempted attendance at the Buyer’s site which failed as access to provide service(s) was not permitted.
Scheduled Maintenance – inspecting and testing of Equipment, routine monitoring in line with contract requirements
Minimum term — the minimum number of years, as shown in the schedule, the contract must be in force, starting on the contract start date.
Contracts shall be run for at least 12 months from inception
Normal working hours — 8.30am to 5 pm Monday to Friday except public and bank holidays in the country where your site is located.
Overtime – is deemed as time worked on a project outside normal working hours — this shall be subject to authorisation by the Buyer or their nominated representative and shall be subject to an additional charge to be paid
Quotation – our written statement which includes details of our charges and other contract terms.
Roll-over Term – the extension of the contract through neither party exercising their right to terminate the agreement during the initial or subsequent terms
Services – maintenance (including extra maintenance) of water hygiene systems or equipment as specified in the contract or quotation.
Site – the address shown in the schedule, where you keep your equipment
System or Systems – the systems are shown in the schedule.
Working Day-means any day other than a Saturday, Sunday or bank holiday where suitable access to the site is provided on an uninterrupted basis to the Seller.
2.3 Words imparting the singular number shall include the plural and vice-versa.
3. Goods and/or Services and Services
3.1 The description of the Goods and/or Services are as set out in the Seller’s proposal and commercial documents and confirmed in this quotation. In accepting this quotation the Buyer acknowledges that it does not rely on any other representations regarding the Goods and/or Services save for those made in writing by the Seller. No descriptions of the Goods and/or Services set out in the Seller’s proposal and commercial documents shall be binding on the Seller and are intended as a guide only.
3.2 The Seller reserves the right to make any changes in the specification of the Goods and/or Services which are required to conform to any applicable safety or other statutory or regulatory requirements.
3.3 Exclusions under the terms for installation and project works are which are not included in the offer unless detailed otherwise in writing.
3.3.1 Digging, backfilling or tiling of trenches or any other builders work
3.3.2 Provision of/or erection of scaffolding, platforms or any other special access plant
3.3.3 Provisions of 240v AC mains supply as required to panel positions
3.3.4 Aborted or repeat visits arising from access limitations or other cause
3.3.5 Heat work or welding.
3.3.6 Electrical works
4. Price and Contract Duration
4.1 The price (“Price”) of the Goods and/or Services shall be that set out in the Seller’s proposal and commercial documents and current at the date of the Buyer’s order or such other price as may be agreed in writing between the Seller and the Buyer. The Price shall be confirmed in this quotation. Unless previously withdrawn, the tender or quotation will remain open for acceptance for a period of 30 days from the date thereof, or such longer period as may be agreed in writing. It will remain fixed for a period of up to 12 months from the date of the Buyer’s acceptance after which time the Seller reserves the right to amend the prices and rates quoted.
4.2 If the cost of the Goods and/or Services to the Seller increases due to any factor beyond the Seller’s control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates, the Seller reserves the right to increase the Price prior to delivery.
4.3 Any increase in the Price under sub-Clause 4.2 shall only take place upon the Seller informing the Buyer of the increase in writing – where the contract enters a roll-over term or the initial term exceeds one year in duration a price increase shall be effective on the anniversary – such increase will be at the RPI (retail price index) published in the month prior to the anniversary.
4.4 The Buyer may be entitled to discounts subject to and in accordance with any details set out in the Seller’s proposal, current at the date of the Buyer’s order or as may be agreed in writing by the Seller and the Buyer. The Buyer shall not necessarily be entitled to a discount. Any and all discounts shall be at the discretion of the Seller.
4.5 The Price is exclusive of fees for packaging and transportation/delivery or off-loading of equipment
4.6 The Price is exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
4.7 Installation is excluded unless specifically detailed in the quotation
5. Quotation and Basis of Sale
5.1 Details of the Goods and/or Services in sub-Clause 3.1 are subject to alteration without notice and do not constitute contractual offers to sell the Goods and/or Services which are capable of acceptance.
5.2 The Seller is not obliged to accept an order from the Buyer if the Buyer does not supply references which are requested by, and satisfactory too, the Seller. If at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give written notice to the Buyer that no further credit will be allowed to the buyer in which case no further Goods and/or Services will be delivered to the Buyer other than against cash payment.
5.3 This quotation constitutes written acceptance and confirmation by the Seller of the Buyer’s order for the Goods and/or Services.
5.4 Having issued this quotation which is a contractual offer to sell the Goods and/or Services, the Seller agrees to enter into a contract for the sale of Goods and/or Services upon the Buyer’s written acceptance of this quotation and of these Terms and Conditions.
5.5 This quotation (including any non-standard price negotiated in accordance with sub-Clause 4.1) is valid for a period of 30 days only from the date shown overleaf unless expressly withdrawn by the Seller at an earlier time.
5.6 Either the Seller or the Buyer may cancel the order for any reason prior to the Buyer’s acceptance (or rejection) off this quotation.
5.7 Stage payments may be requested by the Seller for works involving large equipment purchase, details of any such stage payments will be detailed in the quotation
5.8 Delivery: Labour 7-10 days notice, chemicals 7-10 days, equipment by prior agreement.
6.1 Following the Buyer’s acceptance of this quotation, the Seller shall invoice the Buyer for the Price either:
(a) on or at any time after delivery of the Goods and/or Services; or
(b) Where the Goods and/or Services are to be collected by the Buyer or where the Buyer wrongfully fails to take delivery of the Goods and/or Services, at any time after the Seller has notified the Buyer that the Goods and/or Services are ready for collection or the Seller has tendered delivery of the Goods and/or Services.
6.2 The Buyer shall pay the Price within 30 days of the date of the Seller’s invoice or otherwise in accordance with any credit terms agreed between the Seller and the Buyer.
6.3 Payment must be made by the Buyer notwithstanding that delivery may not have taken place and/or that the title in the Goods and/or Services has not passed to the Buyer.
6.4 If the Buyer fails to make payment within the period in sub-Clause 6.2, the Seller shall suspend any further deliveries to the Buyer, cancel any pending orders from the Buyer and charge the Buyer interest at the rate of 3% per annum above the HSBC base rate from time to time on the amount outstanding until payment is received in full. Such failure will enable the Seller to terminate the contract without prejudice to any other rights under this contract or under common law.
6.5 Time for payment shall be of the essence of the Contract between the Seller and the Buyer.
6.6 All payments must be made in GBP £ unless otherwise agreed in writing between the Seller and the Buyer.
7.1 The Seller shall arrange for the delivery of the Goods and/or Services on [or as near as reasonably possible to] the delivery date detailed in this quotation to the address specified in the Buyer’s order or to another location as agreed in writing between the Seller and the Buyer.
7.2 If no delivery address is specified by the Buyer or if it is so agreed between the Seller and the Buyer, the Buyer shall collect the Goods and/or Services from the Seller’s premises at any time after the Seller has notified the Buyer that the Goods and/or Services are ready for collection.
7.3 Subject to the specific terms of any special delivery service, the delivery may take place at any time of the day and must be accepted at any time of the day.
7.4 If the Buyer fails to take delivery of the Goods and/or Services the Seller may, at its discretion and without prejudice to any other rights:
(a) store or arrange for the storage of the Goods and/or Services and shall charge the Buyer for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and / or
(b) Make arrangements for the redelivery of the Goods and/or Services and shall charge the Buyer for the costs of such redelivery.
7.5 If redelivery is not possible under sub-Clause 7.4(b), the Buyer shall be required to collect the Goods and/or Services from the Seller’s premises and shall be notified of the same. The Seller reserves the right to charge the Buyer for all associated costs including, but not limited too, storage and insurance.
7.6 The Seller shall have no liability in respect of late delivery provided that it delivers the Goods and/or Services at any time after the delivery date or within 20 days (“Late Delivery Period”) of the delivery date.
8. Inspection of Goods and/or Services
8.1 The Buyer shall be under a duty to inspect the Goods and/or Services on delivery or collection or on completion of the works as detailed in the attached quotation which forms part of this contract.
8.2 If the Goods and/or Services cannot be examined, the carriers note or such other note as appropriate must be marked “not examined”.
8.3 If the Buyer identifies any damage or shortages it must inform the Seller in writing within 5 days of delivery or completion of the works, providing details of the alleged damage or shortage. The Seller shall be under no liability if the Buyer fails to provide such notice.
8.4 The Seller must be permitted to inspect the affected Goods and/or Services before the Buyer uses, alters or modifies them in any way.
8.5 Subject to the Buyer’s compliance with this Clause 8 and the Seller’s agreement with any alleged damage or shortages, the Seller shall make good any and all damage and shortages within a reasonable time.
8.6 The Seller shall be under no liability for and shall not indemnify the Buyer against any matters arising from damage or shortages.
9.1 Goods may not be returned without the prior written agreement of the Seller.
9.2 Subject to sub-Clause 9.4, the Seller shall only accept returned Goods if it is satisfied that those Goods are defective and that such defects would not be apparent on inspection.
9.3 The Seller shall have the option of either replacing defective Goods within 20 days of receipt of them or shall refund to the Buyer the Price for those Goods which are defective.
9.4 The Buyer may return any Goods within six months of those Goods coming to market (that is, the launch of such Goods and/or Services) within 5 days of delivery provided that:
(a) the Buyer bears the risk and cost of returning the Goods;
(b) The Buyer indemnifies the Seller against any costs incurred in rectifying any deterioration of the Goods resulting from the Buyer’s incorrect handling or storage of the Goods.
9.5 The Seller shall not be liable for defects arising out of normal wear and tear, the Buyer’s failure to follow any instructions given by the Seller, misuse or alteration of the Goods, negligence, wilful damage or any other act of the Buyer, its employees, agents or any other third party.
10.Risk and Title
10.1 Risk of damage to or loss of the Goods and/or Services shall pass to the Buyer either when the Goods and/or Services are delivered to the Buyer or when the Seller notifies the Buyer that the Goods and/or Services are ready for collection, installation or service as identified in the quotation attached.
10.2 If the Buyer wrongfully fails to take delivery of the Goods and/or Services, risk shall pass to the Buyer at the time when the Seller has tendered delivery of the Goods and/or Services.
10.3 Legal and beneficial title in the Goods and/or Services shall not pass to the Buyer until the Seller has received, in cash or cleared funds, payment in full of the Price.
10.4 The Seller reserves the right to repossess any Goods in which the Seller retains the legal and beneficial title if full payment is not received in accordance with Clause 6. In the event of such repossession, the Buyer shall deliver the Goods in which legal and beneficial title has not passed to the Seller at its own cost.
10.5 The Buyer’s right to possession of the Goods and/or Services in which the Seller retains legal and beneficial title shall terminate if:
(a) the Buyer commits a material breach of its obligations under these Terms and Conditions;
(b) the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
(c) the Buyer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or
(d) the Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertakings or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or 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.
11. Rights, Warranties and Liability
11.1 Subject to these Terms and Conditions and except where the Buyer is purchasing the Goods and/or Services as a consumer, all warranties, conditions or other terms implied by statute or common law (save for those implied by Section 12 of the Sale of Goods and/or Services Act 1979) are excluded to the fullest extent permitted by law.
11.2 The Seller shall not be liable for any loss or damages of any nature, direct or indirect, including any loss of profits or consequential damages suffered or incurred by the Buyer for whatever reason.
11.3 The exclusions of liability contained within this Clause 11 shall not exclude or limit the liability of the Seller:
(a) for death or personal injury caused by the Seller’s negligence;
(b) for any matter for which it would be illegal for the Seller to exclude or limit its liability; and
(c) for fraud or fraudulent misrepresentation.
11,4 Duration – the contract shall be deemed to start on the contract start date as specified in the service schedule. The initial term of the contract shall be for 12 months. Unless it is terminated under the above provisions the Buyer or the Seller can only terminate this agreement by providing the other party at least 3 months written notice prior to the expiry of the initial term or prior to the expiry of any subsequent extension period. If such notice is not provided then the contract will extend for an additional 12 month period and continue on such basis until termination is exercised by either party.
11.5 Consequences of terminating this contract. If the Buyer ends this contract without giving the Seller notice under condition 11.4, the Buyer must pay the Seller all charges for the works as specified in the service schedule and for equipment, spares or refills supplied under this contract. The Buyer must also pay the Seller the amounts shown in Clause 220.127.116.11 to compensate the Seller for the loss arising from such termination.
11.5.1 If the Buyer terminates this contract ahead of time, that is, before the agreed date for carrying out the services or the last day of the minimum term, or the expiry of any roll-over term, but the Buyer has not given the Seller sufficient notice under Clause 11.4 all costs for equipment purchased for planned works but not yet not fitted will be charged by the Seller to the Buyer.
12.1 All notices under these Terms and Conditions shall be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
12.2 Notices shall be deemed to have been duly given:
(a) when delivered, if delivered by courier or another messenger (including registered mail) during the normal business hours of the recipient;
(b) when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
(c) on the fifth business day following mailing, if mailed by national ordinary mail; or
(d) On the tenth business day following mailing, if mailed by airmail.
12.3 All notices under these Terms and Conditions shall be addressed to the most recent address, email address or fax number notified to the other party.
13. No Waiver
No waiver by the Seller of any breach of these Terms and Conditions by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14. Force Majeure (Frustration)
All contracts are subject to the Seller’s rights to suspend or cancel the same in whole or in part without in any case be liable for any loss occasioned thereby in the event of any circumstances affecting production, delivery or installation which are not in our immediate control including (but without limiting the generality of the foregoing) any force major, labour disputes, lockout, fire, accident, breakdown of plant, delay or interruption of transport, unavailability or shortage of materials, labour or energy, or any national emergency, or compliance with any order or request of any governmental, public, local or other authority. In the event of us exercising our rights of suspension on delay we shall be relieved from all liability in connection with the contract until normal conditions again prevail and thereafter for such time as we shall consider necessary having regard to the disruption caused by the circumstances referred to above.
In the event that one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (which shall remain valid and enforceable).
18. Law and Jurisdiction
18.1 These Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by and construed in accordance with, the laws of England and Wales.
18.2 Any dispute, controversy, proceedings or claim between the Seller and the Buyer relating to these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.