Terms and Conditions of Sale
Trading Name: Parker Kittiwake
Trading Address: 3 - 6 Thorgate Road, Lineside Ind Est, Littlehampton, West Sussex, BN17 7LU, UK
Registered Office Address: PARKER HOUSE, 55 MAYLANDS AVENUE, HEMEL HEMPSTEAD, HERTFORDSHIRE, HP2 4SJ, UK
Telephone: UK +44 1903 731470, Americas +1 713 255 7255
Fax: +44 (0) 1903 731480
In these Conditions, unless the context requires otherwise the following expressions have the following meanings:
a) "the Agreement" the agreements, warranties, conditions, representations and other terms set out in these conditions and in the Order Confirmation.
b) "these Conditions" these Standard Conditions of Sale.
c) "Customer" the party, named as Customer in the Quotation or Order Confirmation.
d) "KWD" Kittiwake Developments Limited, whose works are at 3-6 Thorgate Road, Littlehampton, West Sussex, BN17 7LU, United Kingdom.
e) "Goods" the goods, excluding software which are subject of the Quotation or Order Confirmation including all instruction leaflets, manuals, drawings, illustrations and specifications provided by KWD to Customer.
f) "Quotation" KWD's official quotation detailing KWD's offer to supply Goods to Customer.
g) "Order Confirmation" KWD's official order confirmation of Customers order or KWD's invoice whichever of these documents are issued to the Customer by KWD first.
h) "Sale" includes manufacture and supply.
i) "Software" all computer programmes incorporated in the goods.
2. APPLICATION AND VARIATION OF THESE CONDITIONS
a) These Conditions together with any special conditions set out in the Quotation or Order Confirmation shall be deemed to be incorporated in all agreements for the sale of any Goods and the provision of any Services by KWD to Customer and shall apply in place of and prevail over any terms or conditions contained or referred to elsewhere or implied by trade custom, practice or course of dealing.
b) Any engineering services, installation, commissioning, calibration, maintenance or other services undertaken by KWD shall be subject to Kittiwake's standard terms and conditions for such services.
3. FORMATION OF CONTRACT AND CANCELLATION
a) Kittiwake's price lists and quotations do not constitute offers made by KWD unless they are expressed to be fixed Quotations remaining open for a specified period and Kittiwake reserves the right to withdraw or revise the same at any time prior to the Order Confirmation.
b) Customer shall not cancel any order without KWD's previous consent in writing. Such consent may be made conditional upon payment by Customer of an appropriate charge. No other obligation or agreement relating to the sale of Goods, Services or the supply of the Software is binding on KWD unless set out in the Agreement or in an amendment or addition thereto duly agreed in writing by KWD.
4. DOCUMENTATION AND SPECIFICATION
a) All drawings, designs, specifications and particulars of weights and dimensions submitted by KWD remain the property of KWD and are intended merely to describe the Goods and Software generally. They are not to be regarded as a warranty, representation or contractual term unless it is expressly so stated in the Order Confirmation or Quotation.
b) Customer shall ensure timely supply of information and free issue material as appropriate to enable KWD to meet delivery dates.
c) KWD has a policy of continuous improvement on its products, and reserves the right to alter the specification of standard items accordingly.
a) All Quotations are made in good faith but Kittiwake reserve the right to invoice the Goods at the prices ruling at the date of despatch.
b) All customs and Excise duties, import or export duties and all other taxes, tariffs and surcharges of any nature now or hereafter levied or imposed in any country or territory either directly or indirectly in respect of the sale, delivery or use of the Goods or Service or payments for them or upon freight or other charges shall be born by the customer and except as stated in the Quotation are additional to the prices stated therein.
6. TERMS OF PAYMENT
a) Subject to KWD's approval of Customer's current credit rating, full payment for all invoiced items shall be made in the invoice currency so that Kittiwake receives payment under those Conditions not later than 30 days from the invoice date unless otherwise specified in the Order Confirmation. Time for payment shall be of the essence.
b) KWD reserves the right at its discretion at any time to withdraw any credit terms and substitute proforma invoice terms. If Customer fails to make payment on the due date, KWD may, in addition to taking other action provided by these Conditions:- charge interest on all overdue payments at 4% above the base rate from time to time declared by National Westminster Bank plc from the due date until the date of payment as well as after judgement, and suspend all further delivery of Goods or Service to be made under the Agreement or further performance of any other contract with the Customer, in which event the Customer shall not be released in any respect from its obligations to KWD under the Agreement or any other such contract.
a) In the case of Goods for delivery outside the UK, the following conditions shall have effect and, in case of inconsistency with other Conditions herein, shall prevail:-
i) payment shall be made against proforma invoice by either cash, credit transfer, cheque, credit card or irrevocable letter of credit at the date of the order agreement.
ii) the risk of loss or damage to Goods shall pass to Customer immediately on appropriation to Customer's order.
iii) Customer shall satisfy himself and be entirely responsible for ensuring compliance with all customs/import/export and/or trans-shipment regulations. KWD will assist Customer by supplying all non-confidential or non-secret information reasonably required by Customer but giving of such information shall not constitute a representation nor be regarded as having contractual effect.
iv) the application of the Uniform Laws on International Sales shall be excluded.
a) Delivery will deemed to have been effected when the Goods leave Kittiwake's premises or the premises of our Suppliers in circumstances where Goods are delivered direct from such Suppliers, except where special contract conditions apply as detailed in the Quotation or Order Confirmation.
b) KWD reserve the right to make delivery by instalments. Where delivery is affected by instalment each instalment shall be treated as a separate contract.
c) Customer shall inspect the goods on receipt. Kittiwake shall be under no liability in respect of the damage to or incomplete delivery unless Customer's written claim is received within 7 days of receipt of the Goods.
d) Any period or date for delivery stated in the Agreement is intended as an estimate only and is not a contractual commitment.
a) KWD warrants:- the Goods delivered will be free from defects of workmanship, design or materials for a period of 12 months from date of first use or 18 months from despatch date which ever is the sooner; the Software against significant deviation from the functional specifications set out in the documentation relating to the Goods within the warranty period but Kittiwake does not warrant that the Software will be error-free or that all errors will be corrected.
b) Customer shall promtly provide witten particulars to KWD on becoming aware of a defect in the Goods or Software during the Warranty Period, and shall use its best endeavours to provide KWD with all necessary access, facilities and information to enable Kittiwake to ascertain or verify the nature and cause of the defect and to carry out its warranty obligations.
c) KWD's obligations under this Condition 9 are limited to, at its option:- repairing, replacing, or refunding the cost of defective Goods ot parts thereof carriage paid to KWD; or sending engineer(s) to effect repairs at Customers premises, in which case the Customer shall be liable for the travelling and subsistence expenses of KWD's engineers.
d) If Goods or Software are found not to be defective or if any defect is attributable to Customers design or materials or operation or installation of the Goods or Software, KWD will levy a testing charge (plus VAT if appropriate) and where relevant will return the Goods to Customer at Customers expense, and shall be entitled to payment in advance of the whole testing and transport charge before such return.
e) The warranty provisions of this Condition 9 in respect of repaired or replaced Goods shall apply to such Goods for the unexpired balance of the Warranty Period.
f) KWD accepts no liability:-
i) for defects caused by Customers design or installation of the Goods or Software
ii) or if the Goods or Software have been modified or repaired otherwise than as authorised in writing by KWD
iii) or if the Goods have not been operated, stored, or maintained as recommended by KWD
iv) or if the defect arises because of the fitting of the Goods to unsuitable equipment
v) or where Customer has failed to observe the terms of payment for the Goods or any other obligation imposed by the Agreement
10. LIMITATION AND EXCLUSION
a) Subject to Condition 9, KWD shall be under no liability to Customer for any damages or losses, direct or indirect, resulting from defects in design, materials or workmanship.
b) KWD shall have no liability for any indirect or consequential losses or expenses suffered by Customer, however caused.
c) Except as specifically set out in the Agreement, any term, representation, condition or warranty in respect of the fitness for purpose, satisfactory quality, condition, description of the goods, whether implied by statute, common law, trade useage, custom or otherwise, is expressly excluded.
d) Nothing in these Conditions shall be interpreted as excluding or restricting any legal liability of Kittiwake for death or personal injury resulting from the negligence of Kittiwake, its employees agents or sub-contractors or restricting any of KWD's legal obligations arising under section 12 of the Sale of Goods Act 1979 as amended by the Sale of Goods Act 1994 or under Consumer Protection Act 1987.
a) Customer agrees that it is best able to access and provide for its own insurance needs. Customer acknowledges that it is reasonable for KWD to sell the Goods and fix their price on the basis of the exclusion and limitations of liability set out in these Conditions and Customer agrees that it will be responsible for effecting sufficient cover for its business to cover any loss or damage that might arise from KWD's negligence or breach.
b)KWD maintains product liability insurance cover at a level it believes appropriate to its business. Customers may inspect the terms of KWD's cover on reasonable notice.
12. HEALTH AND SAFETY AT WORK
a) Customer undertakes that it will comply and will procure that its employees, customers, and every other person working with on or near or using the Goods in full with the instructions and recommendations made in any manual or handbook provided by Kittiwake or other manufacture of the Goods and that they will comply with all other instructions given in connection with the use or operation of the Goods.
b) The Goods are designed to operate without danger to health and safety where correctly installed and used in accordance with the relevant standards, the designed rating, and accepted good practice. Customer shall obtain KWD's written approval before operation or use of the Goods under unusual conditions.
13. INTELLECTUAL PROPERTY
a) In the event of any claim being made or action being bought against the Customer in respect of infringement of letters patent, designs, trademark or copyright by the manufactured supply or sale by Kittiwake or Goods supplied to the Customer being Goods manufactured according to the designs and specifications of Kittiwake the Customer shall notify Kittiwake immediately of any such claim being made or action being brought and Kittiwake shall be at liberty with the assistance of the Customer if required but at Kittiwake's expense to conduct all negotiations for the settlement of the same or any litigation that may arise therefrom.
b) Customer shall indemnify Kittiwake against all costs claims and expenses damages charges or liability whatsoever in respect of or arising from any claim for infringement of any letters patent, designs, trademark or copyright relating to any product supplied to the design of the Customer or following the instructions of the Customer.
14. PASSING OF PROPERTY
a) The Goods shall remain the property of Kittiwake as legal and equitable owner and no property in or title to the Goods shall pass to Customer until theor full price has been duly paid to KWD. Pending legal and beneficial ownership of the Goods unencumbered passing to Customer, Customer:- shall keep the Goods in good condition; fully insured in their full replacement value against all risks prudently insured against; and shall not encumber in any way.
b) Failure to pay the price for the Goods when due shall, without prejudice to any other remedies Kittiwake may have, entitle KWD to repossess the Goods or so much thereof as Kittiwake may determine from any premises where they may be. For the purpose of repossessing the Goods or any part thereof Customer hereby grants an irrevocable license to KWD, its employees or agents, to enter upon such premises and Customer shall pay to KWD the cost of removal and transport of the Goods or any part thereof.
c) Notwithstanding the provisisons of this Condition, KWD shall be entitled to bring an action against Customer for the price of the Goods in the event of non-payment by Customer by the due date as if the property in the Goods had already passed to Customer and/or shall have the right by notice in writing to Customer at any time after the agreed delivery date to pass the property in the Goods to Customer as from the date of such notice.
15. INSOLVENCY AND DEFAULT
a) KWD may by notice in writing to customer terminate this Agreement or in its absolute discretion any other contracts with Customer so far as unperformed by KWD if: i) Customer shall commit any breach of any of the terms (including, without limitation, terms concerning the time for payment of the purchase price) of this Agreement or any other contract with KWD; ii) Customer compounds with or negotiates for any composition with its creditors generally; iii) or being an individual, Customer shall die or have a receiving order made against him; iv) or being a body corporate or legal persona, Customer shall call a meeting of its creditors or have a receiver or administrator of all of its assets appointed or enter into any liquidation (other than solely for reconstruction or amalgamation while solvent) or commit any other act of insolvency.
b) In the event of such termination:- i) Customer shall forthwith on demand deliver to KWD any Goods which are in the possession or control of Customer but in which the property remains with KWD; and in default thereof, KWD shall be entitled to repossess the same and for such purpose to enter into and upon the premises of Customer without being liable for any damage caused thereby and Customer shall indemnify KWD from and against any liability to any third party in respect of any such damage and from and against all actions, proceedings, claims, demands, costs, damages and expenses howsoever arising; ii) and KWD shall be entitled by notice in writing to Customer and declare immediately due and payable any amounts outstanding from Customer to KWD under this or any other contract (such items thereby becoming forthwith due and payable); iii) and KWD may claim damages from Customer for breach of the Agreement. The provisions of this condition and the exercise by KWD of its rights thereunder are without prejudice to any other rights of KWD.
16. FORCE MAJEURE
a) Neither party shall be liable for breach of the Agreement other than payment if and to the extent that fulfilment of a term or conditon thereof has been prevented, hindered or delayed by force majeure as defined in this Condition and in such an event the time for fulfilment of such a term shall be extended for such period as is reasonable in all circumstances.
b)The expression 'force majeure' shall mean any event of circumstances beyond the immediate control of either party including without prejudice to the generality ofthe foregoing, strikes, lock-outs, trade disputes, accident to plant or machinery, shortage of material, failure in whole or part of any power or energy supply, delays or cancellations of deliveries or provisions of services by third parties, riots, civil commotion, war national or international, emergency, destruction or damage due to natural forces, fire, flood, explosion, and compliance with orders or requests of any natural or local authority.
Customer shall not assign or otherwise transfer all or any of its rights, interests or obligations under the Agreement without the prior written consent of KWD. Any or all of KWD's rights or obligations under this Agreement or other contract may be assigned by KWD and Customer shall not assert against an assignee any defence (other than actual payment), set-off or counterclaim which the Customer may have against KWD.
Customer undertakes to make any payment due hereunder in full without any deduction, offset or counterclaim whatsoever.
Any notice hereunder shall be deemed to have been given if delivered by hand or sent by prepaid first class post, fascimile, or electronic mail (confirmed by telephone and followed by notice by post) to the party concerned at its last known address and deemed to have been received on the date of despatch, if delivered by hand, fascimile or electronic mail, and when received, if sent by post.
20. INTERPRETATION AND LAW
a) Headings are included in these Conditions for convenience and identification only, and are not to be taken to limit the meaning of any part of these Conditions.
b) If any provision or any part of a provision of the Agreement should be held to be unenforceable or in conflict with the law of any relevant jurisdiction any part so held unenforceable or invalid shall be severed from the remainder of the Agreement which shall not be affected by such severance.
c) The Agreement represents the complete agreement between KWD and Customer with regard to the Goods and contains all agreements, warranties, conditions, representations or other terms agreed, made or relied upon by either party in connection with the Goods. The rights of KWD shall not be prejudiced or restricted by any indulgence or forebearance extended to the Customer and no waiver of any breach shall operate as a waiver of any subsequent breach.
d) These Conditions and every contract connected therewith shall be governed exclusively by English law, and any claim or dispute arising therefrom shall be submitted to the English courts, or in such other court which in KWD's view constitutes a forum conveniens and of which KWD may notify Customer at any time.
e) Any reference in these Conditions to any statute or statutory provision shall be construed as including a reference to that statute or statutory provision as from time to time amended, modified, extended or re-enacted whether before or after the date of this Agreement and to all statutory instruments, orders and regulations for the time being made pursuant to it or deriving validity from it.
CK50101 Iss 11- Terms and Conditions
Kittiwake Developments Ltd
1. All goods to be returned within 4 months of delivery.
2. All goods to be in resalable condition – unmarked and unused.
3. Kittiwake to be advised prior to return of goods so we can supply returns reference. At this point a returns form will be sent out (CK51451). This is to be completed and enclosed with the returned goods. If this is not enclosed the goods will be placed in a holding area until such time as we are able to identify them.
4. Return carriage to be arranged by the customer at no cost to Kittiwake Developments Ltd.
5. Goods should be returned in their original packaging to avoid damage. If you have not retained the packing materials replacements can be supplied as a chargeable service or we can advise on a suitable alternative.
6. A restocking fee of GB£50 or 10% invoiced value of the goods (whichever greater) will be chargeable.
CK51463 Returns Policy Issue 1