.
Terms and Conditions of Sale/Service of Power Health Products Limited
These terms and conditions should be read carefully by you before placing an order for goods from Power Health. By ordering our products, you signify your agreement to be bound by these terms and conditions.
1. Definitions
1.1 In these conditions the following expressions have the following meanings:
(i) “The Customer” means the person specified on the Order Form as the person who accepts a quotation of the Company for the sale of goods or the supply of the services or whose order for the goods or service is accepted by the Company, and;
(ii) “The Company” means Power Health Products Limited;
(iii) “The Goods” means goods which the Company is to supply to the Customer in accordance with these conditions;
(iv) “The Services” means the services which the Company is to supply to the Customer in accordance with these conditions
(v) “An Order” means any order sent to the Company by the Customer which has at the Company’s sole discretion been accepted upon these conditions by the Company’s acknowledgement of the Order.
(vi) “The Conditions” means the standard terms and conditions for the sale of Goods and supply of Services set out in this document and ( Unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company;
(vii) “The Contract” means the contract for the sale and purchase of the Goods and the Supply of Services.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of Sale
2.1 The Company shall sell the Goods or supply the Services in accordance with any written quotation of the Company which is accepted by the Customer or any written order of the Customer which is accepted by the Company. In either case these conditions shall apply and shall override any contrary different or additional terms and conditions (if any) contained on or referred to in any order form or other document or correspondence from the Customer. No additional alteration or substitution of these terms will bind the Company or any form part of any Order unless they are expressly accepted in writing by a Director of the Company.
2.2 The Company’s employees or agents are not authorised to make any representations concerning the Goods or Services supplied under the Contract unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.3 The Company shall not be liable for any advice or recommendations given by the Company or its employees or agents to the Customer or its employees or agents as to the application or use of the Goods which is not confirmed in writing by the Company.
3. Order and Specifications
3.1 No Order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmation in writing by the Company.
3.2 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order (including any specification which should accurately record any particular purpose for which the goods or services are required) submitted by the Customer, and for giving the Company any necessary information relating to the Goods or Services within sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 The quantity and description of and any specification for the Goods or Services shall be those set out in the Company’s quotation (if accepted by the Customer) or the Customers Order (if accepted by the Company on its Acknowledgement of Order).
3.4 No Information, specification or brochure supplied by the Company shall be used or accepted for the purpose of inspection acceptance or adjudication of a contract or any goods or services supplied thereunder unless certified by the Company in writing before the Order.
3.5 No Order which has been accepted by the Company nor any quotation which has been accepted by the Customer may be cancelled by the Customer except with the written agreement of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of labour and materials used), damages charges and expenses incurred by the Company as a result of cancellation.
4. Price of Goods or Services
4.1 The price of the Goods or Services shall be the Company’s quoted price or, where no price has been quoted or the quoted price is no longer valid, the price currently charged by the Company at the date of acceptance of the Order. All prices quoted are valid for 28 days only after which time they may be altered by the Company without giving notice to the Customer.
4.2 The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods or Services to reflect any increase in the cost to the Company which is due to factors beyond the control of the Company (such as, without limitation) significant increase in the cost of labour, materials or other manufacture, transport or insurance costs.
4.3 The Price is exclusive of Value Added Tax which the Customer shall be automatically liable to pay the Company.
4.4 Interest of 4% per annum above the Base Rate from time to time of Lloyds Plc Bank will be charged on all accounts overdue from the due date. In the event that expenses are incurred by the Company in securing payment (including expenses short of the issue of proceedings) the Customer shall make payment to the Company of such expenses including solicitor’s fees and other legal disbursements on an indemnity basis.
5. Delivery
5.1 Unless otherwise stated in the Order, the price quoted excludes delivery.
5.2 Any time or date for delivery given by the Company is given in good faith, but is an estimate only and the Company shall not be liable for any delay in delivery howsoever caused. Time for delivery shall not be essence unless previously agreed by the Company in writing.
5.3 If the Customer fails to take delivery of the Goods or (if some other place for delivery has been agreed by the Company) fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may;
5.3.1 Store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage;
5.3.2 Or Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
5.4 The Company will replace free of charge any Goods proven to the Company’s satisfaction to have been damaged in transit provided that within 48 hours after delivery the Company has received from the Customer notification in writing of the occurrence of the damage and also, if and so far as practicable, of its nature and extent.
6. Risk and Property
6.1 Risk in the Goods shall pass to the Customer upon delivery.
6.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until the Company has received payment in full in cleared funds in respect of the Goods and all other goods sold by the Company to the Customer for which payment is due.
6.3 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Customer to delivery up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or third party where the Goods are stored and repossess the Goods.
7. Warranties
7.1 The Company warrants that the Goods will correspond with their specifications at the time of delivery and that the Goods will be free from defect in materials and workmanship for a period of twelve months from the date of delivery. This warranty is subject to the following conditions:
7.1.1 The Company shall be under no liability in respect of any defect arising from any drawings, designs or specifications supplied by the Customer;
7.1.2 The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration of the Goods without the Company’s approval;
7.1.3 The above warranty extends only to material manufactured by the Company. In respect of all other Goods the Customer shall be restricted to the benefit of any warranty or guarantee given by the manufacturer to the Company;
7.1.4 Liability under the above warranty (or any other warranty, condition or guarantee) shall only arise if the total price for the Goods or Services has been paid by the due date for payment.
8. Liability
8.1 Subject as expressly provided in these conditions, and except where the Goods are sold to a person dealing as a Consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statue or common law are excluded to the fullest extent permitted by law.
8.2 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions of Statements) Order 1976) the statutory rights of the Customer are not affected by these Conditions.
8.3 Any claim by the Customer which is based on any defect in the quality or condition of the Goods or Service on their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Company within 3 months after delivery of the defect or failure. If delivery is not refused and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defeat or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.4 Where valid claim in respect of any Goods or Service is based on any defect in the quality or condition of the Goods or Service or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the Goods or Service (or part in question) free of charge or, at the Company’s sole discretion, refund to the Customer the price of the Goods or Service, or a proportionate part thereof, but the Company shall have no further liability to the Customer.
8.5 Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other terms, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit, loss of expected future business, damage costs or expenses payable by the buyer to any third party or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or Services or their use or resale by the Customer, except as expressly provided for in these conditions.
8.6 The liability of the Company shall not, except as provided above, exceed £50,000
9. Force Majeure
9.1 The Company shall not be under any liability for failure to perform any of its obligations under the Order due to any cause beyond the Company’s reasonable control (Force Majeure). Following notification by the Company to the Customer of such cause, the Company shall be allowed a reasonable extension of time for the performance of obligations.
9.2 For the purpose of this Condition, “Force Majeure” means fire, explosion, flood, lightening, Act of God, act of terrorism, war, rebellion, riot, sabotage, official strike or similar labour dispute, or difficulties in obtaining raw materials, labour, parts or machinery or power failure or interrupted supply (whatever the cause) or events or circumstances outside the reasonable control of the party affected thereby.
10. Intellectual Property Rights
10.1 In the event that any claim is made against the Customer for infringement of intellectual Property Rights arising directly from the use by the Customer of the Goods, the Company at its own expense shall conduct any ensuing litigation and all negotiations for a settlement of the claim. The Company 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 judgement against the Customer in the event of litigation.
10.2 The benefit of Condition 10.1 is granted to the Customer by the Company only in the event that the Customer shall give the Company 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 Company to have the conduct of the claim pursuant to Condition 10.1, and shall (at the Company’s expense) give all reasonable information, co-operation and assistance to the Company (including without limitation lending its name to proceedings) in relation to the conduct of the claim. In addition, if it is made a condition of any settlement made by the Company, or judgement awarded against the Customer pursuant to Condition 10.1, the Customer shall return or destroy, as applicable all infringing Goods still under its control subject to a refund by the Company 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 Customer prior to their return or destruction as aforesaid.
10.3 The Provision of Condition 10.1. Shall not apply to any infringement caused by the Company having followed a design or instruction furnished or given by the Customer nor to any use of Goods in a manner or a purpose which shall have been specifically prohibited in writing by the Company, nor to any infringement which is due to the use of such Goods in association or combination with any other product.
10.4 Any design or instruction furnished or given by the Customer shall not be such as will cause the Company to infringe any intellectual property rights.
10.5 For the purpose of this Condition, the capitalised term “Intellectual Property Rights” means Patents, Registered Designs, Unregistered Designs, Registered Trademarks and Copyright only, having effect in the United Kingdom.
10.6 The Foregoing states the Company’s entire liability to the Customer and the Customer’s sole and exclusive remedies against the Company in connection with claims based on or resulting from the infringement of intellectual property rights, of any kind whatsoever, of third parties.
11. General
11.1 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.
11.2 No Waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same of any other provision.
11.3 If any provision of these Conditions is held by any competent authority to be invalid or unforeseeable in whole or in part the validity of the provision of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4 The Contract shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the English Courts.