Terms and Conditions
These terms and conditions apply to each customer (“you, or purchaser”) of Super Power Winch (“us, or seller”), a trading division of Peak Dynamics Limited (a company registered in England and Wales with company registration number 01000461, whose registered office is at Waterloo Industrial Estate, Waterloo Road, Bidford on Avon, Warwickshire B50 4JH United Kingdom. They govern the agreement between you and us for the supply of products and services by us to you.
Please read these terms and conditions carefully before you submit your order to us and retain a copy for your records.
1. FORMATION OF CONTRACT.
1.1 Any order sent to the seller by the purchaser shall be accepted entirely at the discretion of the seller, and, if so accepted , will only be accepted upon these conditions
(hereinafter referred to as the “conditions”)
1.2 Each order which is so accepted shall constitute an individual legal binding contract between the seller and the purchaser and such contract is hereafter referred to in these conditions as an “order” .
1.3 These conditions shall override any contrary different or additional terms or conditions ( if any) contained on or referred to in an order form or other documents or correspondence from the purchaser , and no addition or alteration or substitution of these terms will bind the seller or form part of any order unless they are expressly accepted in writing by a person authorised to sign on the sellers behalf.
All goods supplied by the seller shall be in accordance with
(i) The current edition of the relevant product description leaflet as published from time to time ( copies of which are available from the seller upon request ) and
(ii) those further specification or descriptions ( if any) expressly listed or set out on the face of the order or the order acknowledgement given by the seller , no other specification , descriptive material , written or oral representation , correspondence or statement , promotional or sales literature shall form part or be incorporated by reference into the order.
(iii) the manufacturer/seller reserves the right to make modifications to the product specifications and appearance provided the modifications are not detrimental to the products performance.
The purchaser shall be deemed to have accepted all goods upon their delivery by the seller to the address specified in the order , in the event that having accepted the goods the purchaser asks the seller to replacethe goods other than the reason of defect the seller reserves the right to make a restocking charge.
4. DELIVERY AND RISK.
4.1 Unless otherwise stated in the order, the price quoted excludes delivery to the address specified in the order and this price is ex works .
4.2 Any time or date given by the seller is given by the seller in good faith, but is an estimate only .
4.3 Risk in the goods shall pass to the purchaser upon delivery.
5. TITLE AND PAYMENT
5.1 The seller warrants that ( except in relation to intellectual property rights of third parties as referred to in condition 5.3) the seller has good title to the goods ( and that (pursuant to s 12(3) of the sale of goods Act 1979, or s2(3) of the supply of goods and services Act 1982 whichever act applies to the order ) it will transfer such title as it may have in the goods to the purchaser pursuant to condition 5.5)
5.2 The seller warrants that it is not aware of any actual or alleged infringements of any intellectual property rights of third parties which relate to the goods other than those (if any) which the seller has disclosed to the purchaser prior to acceptance of the order.
5.3 The seller shall have no liability to the purchaser (other than as provided in condition 10) in the event that the goods to be supplied under the order infringe any intellectual property rights of a third party (including without limitation by reason of their possession , sale or use, whether alone or in association or combination with any other goods ); the seller gives no warranty that the goods to be supplied under the order will not infringe as foresaid , and all conditions , warranties , stipulations or other statements whatsoever relating to such infringement or alleged infringement ( if any)
whether express or implied by statute, at common law or otherwise howsoever, are hereby excluded.
5.4 Unless otherwise stated in the order, payment of the price of the goods comprised in each consignment delivered pursuant to an order shall be due on thirty days net.
5.5 Title to the goods comprised in each consignment shall not pass to the purchaser until the purchaser has paid the price to the seller, but, even though title has not been passed, the seller shall be entitled to sue for the price once its payment has become due.
If the seller be unable, through circumstances beyond its control ( including without limitation lack of shipping instructions from the purchaser), to deliver the goods within 14 days after notification to the purchaser or its agents that the goods are ready for delivery, the seller shall be entitled to arrange storage on behalf of the purchaser, whereupon delivery shall be deemed to have taken place, all risk in the goods shall pass to the purchaser, and delivery to the purchaser of the relevant warehouse receipt shall be deemed to be delivery of the goods for the purpose of condition 4, all charges incurred by the seller for storage or insurance shall be paid by the purchaser within 30 days of submission of an invoice.
7. DAMAGE IN TRANSIT.
The seller will replace free of charge any goods proved to the sellers satisfaction to have been damaged in transit provided that within 24 hours after delivery both seller and the carriers have recieved from the purchasers notification in writing of the occurrence of the damage and also, if and so far as practicable, of its nature and extent.
8. FORCE MAJEURE
8.1 The seller shall not be under any liability for any failure to perform any of its obligations under the order due to forces majeure. Following notification by the seller to the purchaser of such cause, the seller shall be allowed a reasonable extension of time for the performance of its obligations.
8.2 For the purpose of this condition, “force makjeure” means fire , explosion, flood, lightning, Act of god, act of terrorism, war, rebellion, riot, sabotage, or official strike or similar official labour dispute, or events or circumstances outside the reasonable control of the party affected thereby.
9.1 The seller grants the following guarantee
9.1.1 The seller shall free of charge either repair, or at its option, replace defective goods where the defects appear under proper use within (12 months) from the date of delivery, PROVIDED THAT;
18.104.22.168 Notice in writing of the defects complained of shall be given to the seller upon their appearance, and
22.214.171.124 Such defects shall be found to the sellers reasonable satisfaction to have arisen solely from faulty workmanship or materials, and
126.96.36.199 The defective goods shall be returned to the sellers premises at the purchasers expense if so requested by the seller.
9.1.2 Any repaired or replaced goods shall be redelivered by the seller free of charge to the original point of delivery but otherwise in accordance with and subject to these conditions of sale save that the period of twelve months referred to in condition 9.1.1 shall be replaced by the unexpired portion of that period only.
9.1.3 Alternatively to condition 9.1.1 the seller shall be entitled at its absolute discretion to refund the price of the defective goods in the event that such price shall already have been paid by the purchaser to the seller, if such price has not been so paid, to relieve the purchaser of all obligations to pay the same by an issue of a credit not in favour of the purchaser in the amount of such price.
9.2 In respect of all goods manufactured and supplied to the seller by third parties the seller will pass on to the purchaser (in so far as possible) the benefit of any warranty given to the seller by such third parties and will (on request) supply to the purchaser details of the terms and conditions of such warranty and copies of any relevant produce information sheets, technical data sheets or product leaflet issued by such third parties and the purchaser shall be solely responsible to the entire exclussion of the seller for complying with all of these.
9.3 The sellers liability under this condition shall be to the exclussion of all other liability to the purchaser whether contractual, tortious or otherwise for defects in the goods or for any loss or damage to or caused by the goods , and (subject to condition 14) all other conditions, warranties, stipulations or other statements whatsoever concerning the goods, whether express, or implied, by statue, at common law or otherwise howsoever, are hereby excluded; in particular (but without limitation of the foregoing) the seller grants no warranties regarding the fitness for purpose, performance, use, nature or merchantable quality of the goods, whether express or implied, by statue, at common law or otherwise howsoever.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 In the event that any claim is made against the purchaser for infringement or intellectual property rights arising directly from the use by the purchaser of the goods, the seller at its own expense shall conduct any ensuing litigation and all negotiations for a settlement of the claim. The seller will bear the costs of any payment (either by way of a lump sum or a continuing royalty payment) made in settlement, or as a result of an award in a judgment against the seller in the event of litigation.
10.2 The benefit of condition 10.1 is granted to the purchaser by the seller only in the event that the purchaser shall give the seller the earliest possible notice in writing of any such claim being made or action threatened or brought against it, shall make no admission of liability or take any other action in connection therewith, shall permit the seller to have the conduct of the claim pursuant to condition 10.1 and shall (at the sellers expense) give all reasonable information, co-operation and assistance to the seller (including without limitation lending its name to proceedings) in relation to the conduct of any claim, in addition, if it is made a condition of settlement by the seller, or judgement awarded against the purchaser, pursuant to condition 10.1 the purchaser shall return or destroy, as applicable, all infringing goods still under its control subject to a refund by the seller of any payment for such goods already made (less a reasonable allowance for depreciation of the goods by reason of their use (if any) by the purchaser prior to their return or destruction as foresaid)
10.3 The provision of condition 10.1 shall not apply to any infringement caused by the seller having followed a design or instruction furnished or given by the purchaser not to use any of the goods in a manner or for a purpose which shall have been specifically prohibited in writing by the seller, nor to any infringement which is due to the use of such goods in association or combination with any procedure.
10.4 Any design or instruction furnished or given by the purchaser shall not be such as will cause the seller to infringe any intellectual proprty rights.
10.5 For the purpose of this condition, the capitalised term “intellectual property rights” means patents, registered designs registered trademarks and copyright only, having effect in the united kingdom.
10.6 The foregoing states the sellers entire liability to the purchaser and the purchasers sole and exclusive remedies against the supplier on connection with claims based or resulting from the infringement of intellectual property rights, of any kind whatsoever, of third parties.
Both the seller and the purchaser shall each keep confidential and shall not without prior consent in writing of the other disclose to any third party any technical or commercial information which it has acquired from the other as a result of discussion, negotiations and other communictions between them relating to the goods and the order.
12. ECONOMIC LOSS.
subject to condition 14, and notwithstanding anything contained in these conditions (other than condition 14) or the order in no circumstances shall the seller be liable, in contract, tort (including negligence or breech of statutory duty) or otherwise howsoever and whatever the cause thereof (i) for any loss of profits, business contracts , revenues or anticipated savings, or (i) for any special indirect or consequential damage of any nature whatsoever.
13. LIMITATION OF LIABILITY.
Subject to condition 14, and not withstanding anything contained in these conditions (other than condition 14) or the order. The sellers liability to the purchaser in respect of this order, in contract, tort (including negligence or breech of statutory duty) or howsoever otherwise arising, shall be limited to the price of the goods specified in the order.
14. UNFAIR CONTRACT TERMS ACT 1977.
14.1 If and to the extent that s 6 and/or 7 (3a) of the unfair contract terms act 1977 applies to the order, no provision of these terms and conditions shall operate or be, construed to operate so as to exclude the liability of the seller for breech of the express warranties contained in condition 5, for breech of the applicable warranties as to title and quiet possession implied into terms and conditions of the order by s 12 (3) of the sale of goods act 1979, or s 2 (3) of the supply of goods act 1982, whichever act applies to the order.
14.2 (where the purchaser is a natural person)(and if and to the extent that s 2 (1) of the unfair contract terms act 1977 applies to the order), nothing in these terms and conditions shall operate or be constructed to operate so as to exclude or restrict the liability of the seller for death or personal injury caused to the purchaser by reason of the negligence of the seller or of its servants , employees or agents.
15. TITLE RETENTION.
15.1 the goods shall be at the purchasers risk as from delivery.
15.2 in spite of delivery having been made property in the goods shall not pass the seller until;
15.2;1 the purchaser shall have paid the price plus VAT in full; and
15.2;2 no other sums whatever shall be due from the purchaser to the seller.
15.3 Until property in the goods passes to the purchaser in accordance with clause 15.2 the purchaser shall hold the goods and each of them on fiduciary basis as bailee for the seller, the purchaser shall store the goods (at no extra cost to the seller) separately from all other goods in its possession and marked in such away that they are clearly identified as the sellers property.
15.4 Notwithstanding that the goods (or any of them) remain the property of the seller the purchaser may sell or use the goods in the ordinary course of the purchasers business at full market value for the account of the seller. Any such sale or dealing shall be a sale or use of the sellers property by the purchaser on the purchasers own behalf and the purchaser shall deal as principle when making such sales or dealings. Until property in the goods passes from the seller the entire proceeds of sale or otherwise of the goods shall be held in trust for the seller and shall not be mixed with our money or paid into any overdrawn bank account and shall be at all material times identified as the sellers money.
15.5 The seller shall be entitled to recover the price (plus VAT) notwithstanding that property in any of the goods has not passed from the seller.
15.6 Until such time as property in the goods passes from the seller to the purchaser shall upon request deliver up such goods as have not ceased to be in existence or resold to the seller. If the purchaser fails to do so the seller may enter upon any premises owned, occupied or controlled by the purchaser where the goods are situated and reposses the goods. On the making of such request the rights of the purchaser under clause 15.4 shall cease.
15.7 The puchaser shall not pledge or in any way charge by way of security for any indebtedness any of the goods which are property the seller. Without prejudice to the other rights of the seller, if the purchaser does so all sums whatever owing by the purchaser to the seller shall forthwith become due and payable.
15.8 The purchaser shall insure and keep insured the goods to the full price against “all risks” to the reasonable satisfaction of the seller until the date that the property in the goods passes from the seller and shall whenever requested by the seller produce a copy of the policy of insurance, without prejudice to the other rights of the seller, if the purchaser fails to do so all sums whatever owing by the purchaser to the seller shall forthwith become due and payable.
15.9 The purchaser shall promptly deliver the prescribed particulars of this contract to the registrar in accordance with the companies act 1985 part x11 as amended. Without prejudice to the other rights of the seller, if the purchaser fails to do so all sums whatever owing by the purchaser to the seller shall forthwith become due and payable.
16. APPLICABLE LAW. The order shall be considered a contract made in England and shall be governed in all respects by the law of england and the parties agree to submit to the non-exclusive jurisdictionof the English courts.