The Big Brand Book - Spring / Summer 2023

11.

INSTALLATION

11.1. When the Contract provides for the Seller to supervise installation by the Buyer the Seller will supply the necessary competent personnel for supervision purposes only. The Buyer will supply all other necessary skilled and unskilled labour, and all equipment and tools for the installation of the Goods 11.2 When the Contract provides for actual installation by the Seller, the Seller will supply all necessary personnel and handtools for the installation of the Goods according to the details specified in its quotation 11.3 Where installation services are to be provided under Condition 11.1 or 11.2 unless otherwise agreed the Buyer will be responsible for : 11.3.1. All necessary preparation of the site including all work to buildings, foundations, supporting structures and fixing points 11.3.2. The proper unloading, safe-keeping and insurance of the Goods from the time of delivery 11.3.3. The provision of scaffolding, lifting and any other equipment (excluding handtools) and all services required to install or operate the Goods 11.3.4. Any work whether preparatory to installation or in the installation itself not specifically included in the Seller’s quotation, and 11.3.5. Giving the Seller access to and possession of the site at such time and in such state as may enable it to complete the installation with any agreed time limit 11.4 If the Buyer fails to provide all or any of the items referred to in Condition 11.3 when the Seller reasonably requires them or to its reasonable satisfaction then having given the Buyer an opportunity to remedy its breach of undertaking the Seller may in its discretion and at its sole option arrange for the provision of such item or items as it may require and such expense as may be incurred in providing such item or items shall be payable by the Buyer on demand. A certificate of the Seller’s Auditors certifying such amounts shall be conclusive and binding on both parties 12.1 Where the Seller is responsible under the Contract for delivery and subject to the provisions of Condition 13.1 the Seller undertakes to make up any shortage or to repair or at its discretion replace free of charge any Goods lost, partially lost or damaged in transit to the contracted place of delivery in which event the time for the delivery of the same shall be extended for such period as the Seller may reasonably require 12.2 No claims for non-delivery, partial loss or damage to Goods will be accepted by the Seller unless :- 12.2.1. Notified in Writing by the Buyer to the Seller (with a copy to the carrier if the Seller’s own vehicles were not used) within 7 days after the day of delivery (in the case of partial loss or damage) or 14 days after the date of the invoice (in the case of non-delivery) 12.2.2. The Goods in respect of which a claim is made together with the packing are preserved complete and intact as received; for a period of twenty-one days from notification of such claim (or thirty-five days in the case of an export order) and the Buyer permits the Seller or its servants or agents full and free right of access to inspect the Goods and investigate the claim 13. WARRANTIES AND CLAIMS 13.1 The Goods are not manufactured by the Seller and if they are delivered direct to the Buyer by the Supplier or other third party or collected by or on behalf of the Buyer from the Supplier or other third party the Seller shall not be liable for any loss or damage to such Goods whatsoever or whensoever occurring 13.2. The Seller shall use its best endeavours to pass on to the Buyer such benefits relating to warranties in respect of or guarantees of the Goods which the Seller has under contract with the Supplier or other third party, provided the Buyer ob serves the claims procedure set out in Condition 13.3. Save as aforesaid any warranties conditions or undertakings whether express or implied by statute common law or otherwise howsoever in respect of the Goods are subject to Section 6(1) of the Unfair Contract Terms Act 1977 hereby expressly excluded 13.3 Subject always to the provisions of Condition 8, in the event of a claim being made by the Buyer that the Goods or any part thereof are faulty the first recourse is to the manufacturer’s warranty and the following procedure shall apply for dealing with such claim : 13.3.1. The Seller shall deliver a replacement for the Goods to the Buyer and submit an invoice to the Buyer in respect of such replacement which will be payable in accordance with the provisions of Condition 8 13.3.2. The Buyer shall return to the Seller the Goods in respect of which the claim is made complete with all accessories, instruction books, warranty forms as originally delivered to the Buyer 13.3.4. If the Seller rejects the claim of the Buyer following inspection it will so advise the Buyer in Writing and the Goods will be held at the Seller’s premises for collection by the Buyer for a period of 14 days after the date of the Seller’s notice and, if not collected by the Buyer within that time, may be sold by the Seller (without obligation as to price) and the proceeds of sale will be set against the amounts owing to the Seller in respect of the invoice for the replacement Goods and the costs of storage of the Goods in respect of which the claim is made and any other sums due from the Buyer to the Seller on any Contract and any balance remaining will be paid by the Seller to the Buyer 12. CLAIMS FOR DAMAGE IN TRANSIT/SHORTAGES 14.1 Until payment in full of all monies due and owing by the Buyer to the Seller on any account whatsoever has been received full legal and beneficial ownership of the Goods shall be retained by the Seller notwithstanding that the risk in the same shall pass to the Buyer at the time of delivery 14.2 Until payment in full for the Goods has been made the Buyer shall hold the same as fiduciary agent and bailee of the Seller and shall at all times take proper care of the same and/or any products made wholly or partly therefrom and keep them in such manner that they may be clearly identified as belonging to the Seller and the Buyer hereby grants to the Seller the right to enter on the Buyer’s premises at any time during the continuation of any Contract to check that the Buyer is complying with the obligation contained in this Condition. The Buyer will return the Goods and/or any products made wholly or partly therefrom to the Seller if it receives a request so to do prior to payment in full having been made 14.3 Subject to Conditions 14.4 and 14.5 the Buyer shall be at liberty to sell the Goods and/or any products made wholly or partly therefrom in trust to pay to the Seller such sums to which it is entitled under the provisions of the Contract provided that the sums due to the Seller shall be kept separate from any moneys of the Buyer and/or any third party. Notwithstanding the provisions of this Condition 13 the Buyer may retain from the proceeds of such sale any sum in excess of the sum or sums to which the Seller is entitled under the Contract or any other Contract between the Seller and the Buyer 14.4 The Seller may at any time revoke the Buyer’s conditional power of sale contained in Condition 14.3 by giving 24 hours prior notice in Writing of such revocation and without notice in the event of the Buyer being in default for longer than fourteen days in the payment of any sum whatsoever due to the Seller from the Buyer (whether in respect of the Goods or under any other Contract between the Seller and the Buyer) or if the Seller has bona fide doubts as to the solvency of the Buyer 14.5 The Buyer’s conditional power of sale contained in Condition 14.3 shall automatically cease if : 14.5.1. A receiver or administrative receiver is appointed over the whole or any part of the assets or the undertaking of the Buyer or a winding up order is made against the Buyer or the Buyer goes into voluntary liquidation (except solely for the purpose of reconstruction or amalgamation) or calls a meeting or makes any arrangement with his or its creditors or becomes subject to an administration order or commits any act of bankruptcy or 14.5.2. The Buyer pledges or in any way charges by way of security for indebtedness the whole or any part of the Goods And in either event all moneys then due in accordance with Condition 8 shall become payable forthwith notwithstanding the provisions for payment contained in Condition 8 or 14.5.3. The Seller has bona fide reason to believe that the Buyer is not complying with the obligations contained in Condition 14.2 14.6.1. On determination of the Buyer’s conditional power of sale under Conditions 14.4 and/or 14.5 the Buyer shall place the Goods and/or any products made wholly or partly therefrom in the Buyer’s possession at the Seller’s disposal and the Seller shall be entitled to enter upon the premises of the Buyer for the purposes of removing the same using such force as is reasonably necessary for such purpose 14.6.2. If at the time of the determination of the Buyer’s power of sale under Conditions 14.4 and/or 14.5 any Goods and/or any products made wholly or partly therefrom are in the custody or control of any individual firm or company other than the Buyer the Buyer shall immediately provide the Seller with an authority in Writing to collect the same and the same shall be at the Seller’s disposal 14.7 For the purposes of Condition 14.1 the expression “the Buyer” includes any subsidiary or holding company or associate of the Buyer (as such terms are defined in the Companies Act 1985 (as amended)) 14. TITLE TO GOODS

15.

RISK AND INSURANCE

15.1 The risk in the Goods shall pass to the Buyer at the time of delivery as provided for in Condition 6. The reservation of title contained in Condition 14 shall not affect the Buyer’s responsibility to effect such insurance cover which it may consider to be appropriate

16.

ERRORS

16.1

The Seller reserves the right to correct any clerical or typographical errors made by its employees servants or agents at any time

17.

HEALTH AND SAFETY AT WORK ACT 1974

17.1 The attention of the Buyer is drawn to the provisions of Section 6 of the Health and Safety Act 1974. The Seller will make available upon request such information as is in its possession on the design construction and installation of its products to ensure that as far as is reasonably practicable they are safe and without risk to health when properly used. It is the responsibility of the Buyer to take such steps as are necessary to ensure that such information relevant to the Goods which is appropriate is made available to its servants agents or any person to whom the Buyer supplies the Goods and to any other person to whom the Buyer reasonably considers any such information should be given

18.

SAFETY REGULATIONS ON EXPORTED GOODS

18.1

The Goods shall not be used in any country other than that for which the Seller was aware they were originally ordered, without the Seller’s consent in Writing

18.2 If Goods are to be supplied under the Contract to be used outside the United Kingdom the Buyer shall be deemed to have satisfied itself that such Goods comply with the safety regulations of any country or State in this the Goods are to be so used and the Buyer shall indemnify the Seller in full for any loss or damage whatsoever which the Seller may incur if such Goods do not comply with such Safety regulations

19.

BUYER’S WARRANTIES

19.1

The Buyer warrants to the Seller that :

19.1.1. The Buyer will install, operate or otherwise use or store the Goods strictly in accordance with the Recommendations for Use and will all relevant or applicable statutory or other regulations governing the installation, operation, use or storage of the Goods 19.1.2. Any collection vehicle, container, ship or other means of transport provided by the Buyer or any agent of the Buyer will comply with all relevant legislation and regulations relating to health and safety requirements 19.1.3. The storage and transport facilities of the Buyer and all parts thereof and all equipment used in connection therewith is suitable for storage (both short term and long term) and transport of the Goods and complies with any statute, regulation, bye law or other rule having the force of law and relating to the storage of goods of the nature of the Goods 19.1.4. Where the Goods are supplied packaged ready for sale the Buyer and its servants, agents and representatives will not tamper with remove or alter the packaging or labels without the prior consent in Writing of the Seller 19.1.5. The Buyer will ensure that the Goods are stored at temperatures appropriate to goods of that nature and will comply with any recommendations as to the storage of Goods notified to it by the Seller from time to time 19.2 The Buyer shall indemnify the Seller against any claim, loss or damage (including, without limitation, damage to the reputation of the Seller) arising directly or indirectly from any breach of the warranty contained in Condition 19.1

20.

SEVERANCE

20.1 If at any time any one or more of the provisions of these Conditions becomes invalid illegal or unenforceable in any respect under any law or is held by a court to be invalid illegal or unenforceable the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby

21.

AUDITOR’S CERTIFICATE

21.1. In the event of a dispute arising between the Seller and the Buyer concerning the sum or sums to which the Seller is entitled in addition to the Contract price as provided for in these Conditions then a certificate from the Seller’s auditors certifying such sum or sums shall be conclusive and binding upon the Seller and the Buyer. Any sum certified by such auditors shall be paid by the Buyer on or before thirty days from its receipt of such certificate

22.

JURISDICTION

22.1 These Conditions and each and every Contract made pursuant thereto shall be governed by and construed in all aspects in accordance with the laws of England and the Seller and the Buyer hereby agree to submit to the non-exclusive jurisdiction of the English Courts

23.

GENERAL

23.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that 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 23.2 No waiver by the Seller of any breach of any provision of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision

24.

EXCLUSION OF RIGHTS OF SET OFF

24.1

The Customer shall not be entitled to exercise any Rights of Set Off.

25.

RESTRICTION OF RIGHTS OF SET OFF

25.1

The Customer agrees that it will not at any time in the future: be entitled to exercise all or any Rights of Set Off; and/or make any variation to the provisions of any terms and condition set out, without the prior written consent of a Company Director.

26.

DIVISIBILITY

26.1 The Customer refers to the terms of each Purchase Order, and notwithstanding the conditions of purchase on the reverse of each Purchase Order, the Customer confirms that any supply of goods or services undertaken in relation to a Pur chase Order, which once accepted by the Company will form a contract (“Contract”), are divisible and: shall be deemed to arise from a separate Contract, and shall be invoiced separately, and any invoice shall be payable to Swift Electrical in full in accordance with the terms of payment provided for therein without reference to any other instalment under the Contract.