OrderTerms & Conditions
GENERAL
These Terms and Conditions (“the Terms”) will apply to andgovern any contract between Kinetico UK Limited of Bridge House, Park GateBusiness Centre, Chandlers Way, Park Gate, Southampton, Hampshire, SO31 1FQ(herein after called “Kinetico”) and the purchaser whether deemed to be adomestic dealer or an industrial purchaser (the “Purchaser”). For the purposeof these Terms a domestic dealer shall mean a purchaser that deals withresidential business (the “Domestic Dealer”). No additional terms and conditionsput forward by the Purchaser, whether printed on the Purchaser’s documents orin any other form, shall apply unless they are separately brought to theattention of Kinetico who expressly consents in writing to the incorporation ofsuch terms and conditions. If the Purchaser is a Domestic Dealer, these Termsshall incorporate the terms of Kinetico UK Limited Domestic Dealer Agreement(“Dealer Agreement”), unless the Domestic Dealer has signed an Exclusive DealerAgreement in which event these Terms shall incorporate the Exclusive DealerAgreement. For the purposes of the Dealer Agreement the Dealer shall be deemedto be the Purchaser. In the event of any conflict between these Terms and theterms of the Dealer Agreement or the Exclusive Dealer Agreement, the DealerAgreement or the Exclusive Dealer Agreement shall take precedence.
CONTRACT
For the avoidance of doubt this clause shall not apply to aDomestic Dealer in which instance the contract shall be formed in accordancewith the terms of the Dealer Agreement. Following discussions with thePurchaser, any quotation (“the Quotation”) given by Kinetico to the Purchasershall be treated as an offer and shall remain open for acceptance by thePurchaser for a period of thirty (30) or sixty (60) days as stated in theQuotation, unless Kinetico chooses to withdraw the offer before acceptance. Anyextended periods of acceptance must be expressly agreed between the parties inwriting. Depending upon the size of the order, on receipt of the order Kineticomay send an order acknowledgement letter to the Purchaser as confirmation of abinding contract.
CANCELLATION
Orders placed and accepted pursuant to clause 2 cannot becancelled except with the written consent of Kinetico, which shall be subjectto the Purchaser indemnifying Kinetico against any losses, or expenses itincurs and the immediate payment by the Purchaser of a cancellation fee oftwenty-five percent (25%) of total purchase price as stated in the Quotation.Kinetico may at its sole discretion, accept the return of unused goods within areasonable time period and the Purchaser’s account shall be credited asappropriate subject to a deduction of a fifteen percent (15%) handling chargewhich shall be retained by Kinetico. All goods returned to Kinetico must beunused and in good condition. Goods returned without the consent of Kineticowill not be accepted for credit. Kinetico may at its sole discretion terminatethe relationship between the parties on providing thirty (30) days writtennotice to the Purchaser, should Kinetico wish to cease to trade with thePurchaser. In such instance, Kinetico shall honour orders placed in accordancewith clause 2 provided that full payment of the goods is made in advance ofdelivery of the goods.
DELIVERY
Unless the parties agree otherwise in writing all pricesquoted shall be Ex- Works Park Gate, Southampton (as defined in the Incoterms2000). Kinetico will only be responsible for damage or deterioration occurringto the goods during transit when the contract price includes the cost ofdelivery to the Purchaser’s premises or nominated site and only if thePurchaser notifies Kinetico in writing of such damage within five (5) days ofdelivery of the goods at the Purchaser’s premises or nominated site, and thePurchaser has not previously signed documentation as having received the goodsin good condition.
TITLE
Ownership of the goods shall not pass to the Purchaser untilKinetico has received in full (in cash or cleared funds) all sums due to itplus VAT in respect of the goods delivered to it pursuant to this Agreement;and all other sums which are or which become due to Kinetico from the Purchaseron any account. Until ownership of the goods has passed to the Purchaser, thePurchaser must: Hold the goods on a fiduciary basis as Kinetico’s bailee. Storethe goods (at no cost to Kinetico) separately from all other products ofKinetico or any third party in such a way that they remain readily identifiableas Kinetico’s property. Not destroy, deface or obscure any identifying mark orpackaging on or relating to the goods. Maintain the goods in satisfactorycondition insured on Kinetico’s behalf for their full price against all risksto the reasonable satisfaction of Kinetico. On request the Purchaser shallproduce the policy of insurance to Kinetico. Hold the proceeds of the insurancereferred to in clause 5.2.4 on trust for Kinetico and not mix them with anyother money, nor pay the proceeds into an overdrawn bank account. The Purchasermay resell the goods before ownership has passed to it solely on the followingconditions: Any sale shall be effected in the ordinary course of Kinetico’sbusiness at full market value; and... Any such sale shall be a sale ofKinetico’s property on the Purchaser’s own behalf and the Purchaser shall dealas principal when making such a sale. The Purchaser’s right to possession ofthe goods shall terminate immediately if: The Purchaser has a bankruptcy ordermade against it or makes an arrangement or composition with its creditors, orotherwise takes the benefit of any legislation for the time being in force forthe relief of insolvent debtors, or (being a body corporate) convenes a meetingof creditors (whether formal or informal), or enters into liquidation (whethervoluntary or compulsory) except a solvent voluntary liquidation for the purposeonly of reconstruction or amalgamation, or has a receiver and/or manager,administrator or administrative receiver appointed of its undertaking or anypart thereof, or a resolution is passed or a petition presented to any courtfor the winding up of the Purchaser or for the granting of an administrationorder in respect of the Purchaser, or any proceedings are commenced relating tothe insolvency or possible insolvency of the Purchaser; or The Purchasersuffers or allows any execution, whether legal or equitable, to be levied onhis/its property or obtained against him/it, or fails to observe/perform any ofhis/its obligations under the Terms or any other contract between the Purchaserand Kinetico, or is unable to pay its debts within the meaning of Clause 123 ofthe Insolvency Act 1986 or the Purchaser ceases to trade; or... The Purchaserencumbers or in any way charges any of the goods. Kinetico shall be entitled torecover payment for the goods notwithstanding that ownership of any of thegoods has not passed from Kinetico. Until such time as the property in thegoods passes from Kinetico, the Purchaser shall upon request deliver up toKinetico such of the goods as have not ceased to be in existence or resold. Ifthe Purchaser fails to do so Kinetico may enter upon any premises owned,occupied or controlled by the Purchaser where the goods are situated andrepossess the goods. Upon the making of such a request the rights of thePurchaser under clause 5.3 shall cease.
PAYMENT
Unless the parties agree otherwise, payment for goodssupplied under these Terms is due in accordance with the payment terms statedin the Quotation. If no such terms are stated in the Quotation, payment shallbe due thirty (30) days from the date of the invoice. Where payment of theprice or any part there of is not made by the due date Kinetico shall beentitled to: 6.2.1. Charge interest on the outstanding amount at the rate of 8%above the official dealing rate per annum or such rate as may be varied fromtime to time pursuant to the Late Payment Commercial Debts (Interest) Act 1998.This rate will be charged daily for each day the payment remains overdue. Whereprincipal and interest is owed, unless payment is accepted on other terms, anypart payment of the debt will go to reduce the amount of interest first; and...Recover from the Purchaser any costs incurred by Kinetico in pursuance of thedebt, including reasonable legal fees; and... require payment in advance ofdelivery of any undelivered goods; or... refuse to make delivery of anyundelivered goods without incurring any liability whatsoever to the Purchaserfor non-delivery or any delay in delivery.
EXCLUSIONS
If the Purchaser is deemed to be an industrial purchaser thefollowing exclusions shall apply to all contracts and such exclusions may onlybe varied or deleted with the approval of Kinetico, evidenced by a signature ofa Director of Kinetico against any deletion: Kinetico shall not be responsiblefor any: Civil Works including, but not limited to, buildings, trenches,drains; or... Unloading of delivery vehicles, carriage, labour associated withthis; or... Site works not specifically included in correspondence and agreedto by Kinetico; or... Chemical supplies whatsoever; or... Costs of any delayshowsoever arising; or... All specification other than those issued by Kinetico;or... Electrical isolators; or... Electrical supplies, wiring and cabling apartfrom inter-connecting electrical instruments and equipment with the limits ofsupply; or... variations in nature of input water or other governing data tothe plant which directly or indirectly affects performance of the goodssupplied by Kinetico. Prices quoted shall exclude all VAT, import duty, localtaxes, tariffs that may be applicable from time to time.
WARRANTY
Kinetico hereby warrants that the goods it supplies willperform in accordance with the product specification provided with the goodsfor a period of twelve (12) months from the date of delivery, except: Whengoods are installed and made fully operational by a third party the warrantyshall not exceed fourteen (14) months from the date the goods were dispatchedby Kinetico; and... When goods are deemed by Kinetico to be supplied to asubcontractor of the Purchaser, the warranty is as agreed in writing at thepoint of sale, which in any event shall be for a period no less than twelve(12) months from the date of delivery. In respect of any services to beprovided to the Purchaser, Kinetico shall perform any such services usingreasonable care and skill. Kinetico hereby warrants that any replacement partsprovided to the Purchaser as part of the service will perform in accordancewith the product specification provided with the replacement parts for periodof twelve (12) months from installation. Save as expressly provided in thisclause 8, all other conditions, warranties, terms, undertakings andrepresentations of any kind whatsoever, express or implied, whether by statute,common law or otherwise, in respect of the goods are herby excluded by Kineticoto the fullest extent permitted by law and Kinetico shall have no otherobligation, duty or liability whatsoever in contract, tort, statute orotherwise to the Purchaser.
LIMITATION OF LIABILITY
Not withstanding any other clause of these Terms, Kineticoand the Purchaser do not exclude or limit liability for: Personal injury ordeath arising from the negligence or willful default of either party, itsservants, dealers or subcontractors; or... Any fraudulent misrepresentation.Kinetico shall not be liable to the Purchaser whether in contract, tort, bystatute or otherwise in respect of any loss of profits and/or for any special,indirect, incidental or consequential loss or damage suffered by the Purchaserhowsoever caused including without limitation: Loss due to delay in deliveryetc.; and/or... Loss of production; and/ or... Loss of profits; and/or... Lossof use; and/or... Loss of business; and/or... Loss of goodwill; and/or... Lossof anticipated savings; and/or... Loss to other property; and... Loss relatingto the procurement by the Purchaser of any substitution goods and services. Forthe avoidance of doubt, neither the type of loss and/ or damage specified abovein this clause 9, nor any similar type of loss and/or damage shall constitutedirect loss for the purpose of the contract. Except as expressly provided inclause 9, the total liability of Kinetico under these Terms shall not exceedthe value of the goods in each order or the combined value of the services andthe goods to be provided, if services are to be provided. A person who is not aparty to these Terms has no right under the Contracts (Rights of Third Parties)Act 1999 to enforce any term of the contract, but this does not affect anyright or remedy of a third party which exists or is available apart from thatAct. Kinetico shall not be held responsible for any event beyond the reasonablecontrol of Kinetico which prevents Kinetico from performing its obligationsunder these Terms.
STORAGE
Kinetico shall notify the Purchaser when the goods areavailable for collection and delivery. If the Purchaser is to either collectthe goods from Kinetico or provide delivery instructions and details toKinetico to allow Kinetico to deliver the goods and the Purchaser fails to doso within fourteen (14) days after notice that the goods are available,Kinetico shall at its sole discretion, either deliver the goods to thePurchaser at the expense of the Purchaser or arrange storage of the goods atthe expense of the Purchaser. Kinetico will notify the Purchaser of alladditional charges incurred by Kinetico including, but not limited to, storage,insurance and delivery costs for which the Purchaser shall make immediatepayment on receipt of an invoice from Kinetico. Goods shall not be released tothe Purchaser until all additional charges have been paid.
RISK
All goods are at the risk of the Purchaser from the time ofcollection by the Purchaser or the time of delivery by Kinetico.
NOTICE
Any notice or other communication to be given under or inconnection with this Agreement shall be given in writing and sent by firstclass post, e-mail or facsimile to the registered address of each party or suchother address as either party may substitute by written notice to the other. Anotice shall be deemed delivered within three (3) working days of posting inthe case of first class post; twenty four (24) hours after sending the e-mailin the case of e-mail and on completion of the transmission in the transmissionreport in the case of facsimile.
CONFIDENTIALITY
These Terms are confidential and the Purchaser shall takeall reasonable steps to ensure the Terms including the price at which the goodsare sold, remain confidential. The Purchaser may not disclose the terms or makeany public announcement about the relationship the parties have entered intowithout the prior written consent of Kinetico, save for any disclosure thePurchaser is required to make by law.
AFTER SALES SERVICE PROVIDED BY KINETICO
If requested by the Purchaser, Kinetico shall visit the sitewhere the goods are to be, or have already been installed. Such visits to occurat intervals to be agreed between the parties to supervise the installation andconfirm that the goods are fully operational. Kinetico shall give the Purchaserprior notice of each visit. In addition to purchasing the goods, there will bea cost for this service and an extra charge will be made for materials usedduring the visits and where applicable additional charges will be made forhotel accommodation and reasonable expenses incurred. Prices quoted are basedon work to be carried out during normal working hours (8:30am-5.00pm GMT)Monday to Friday inclusive, but excluding Bank Holidays in England and Wales.Additional charges may be incurred for any work carried out outside thesehours. On completion of each service visit the Kinetico Engineer will providefor signature a report which the Purchaser will sign as acknowledgement of thevisit. Service work will be carried out in accordance with the particulars andspecifications of Kinetico. These Terms and Conditions of Business shall besubject to and construed in accordance with English Law and the parties submitto the exclusive jurisdiction of the English Courts.