Terms & Conditions

JUPITER FACILITIES MANAGEMENT LTD TERMS AND CONDITIONS OF SALE

1. DEFINITIONS

1.1  Buyer: means the person, firm, body or company purchasing the Goods and/or Services from the Seller.

1.2  Conditions: means that the terms and conditions of sale set out and any special terms and conditions agreed in writing by the Seller’s contract statement and specification.

1.3  Connections: means any fitting that come into directly contact with the Goods.

1.4  Contract: means any contract between the Seller and the Buyer for the purchase of the Goods and/or Services, incorporating these Conditions.

1.5  Goods: means the goods and/or services accessories which the Buyer purchases from the Seller.

1.6  Payment Due Date: means the last day of the month following the month of invoice.

1.7  Seller: means JUPITER FACILITIES MANAGEMENT

1.8  Services: means the assembly/ installation of the Goods by the Seller. In these Conditions headings are for convenience only and will not affect the construction of these Conditions.

2. GENERAL

2.1  These Conditions apply to all contracts and/or orders for Goods and/or Services/ between the Buyer and the Seller to the exclusion of any other terms and conditions (including any special terms and conditions which the Buyer may purport to apply under any purchase order , confirmation of order, enquiry or invitation to tender or other document).

2.2  All orders for Goods and/or Services/ maintenance contract shall be in writing and shall be deemed to be an offer by the Buyer to purchase Goods and/or Services pursuant to these Conditions and to the Seller’s written quotation.

2.3  Amendments to the Contract shall be effective only if in writing and signed by a duly authorised representative of each party.

2.4  No order placed by the Buyer shall be accepted by the Seller until a written acknowledgement of order is issued by the Seller or (if earlier) the Seller delivers the Goods to the Buyer.

PRICE & PAYMENT

3.1  Subject to clause 3.6 below, the price of the Goods and/or Services is the Seller’s quoted price or such other price as may be agreed in writing between the parties but excludes VAT (“Price”). Delivery costs are included in the Price unless otherwise stated in writing in the Sellers order confirmation or elsewhere.

3.2  Payment of the Price (as well as VAT which is payable in addition to the Price) is due on or before the Payment Due Date and /or within 28days from date of invoice. Time for payment shall be of the essence.

3.3  Interest on overdue invoices will accrue on a daily basis from the day the Payment Due Date at a rate of 4% above HSBC Bank PLC’s base rate until payment is made whether before or after judgement.

3.4  The Seller reserves the right to refuse an order or contract if credit or payment terms are unsatisfactory.

3.5  Any instruction received from the Buyer accepts these terms and conditions.

3.6  The Seller may be giving written notice to the Buyer at any time up to thirty days before delivery or performance increase the price of the Goods and/or Services to reflect any increased cost to the Seller which is due to factors occurring after the making of the Contract which are beyond the reasonable control of the Seller (including without limitation foreign exchange, taxes and duties and the cost of labour, materials and other manufacturing costs), provided that the Buyer may cancel this Contract within three (3) days of any such notice from the Seller on giving written notice to the Seller.

3.7  The Buyer shall in no circumstances be entitled to any off against the Price how ever so arising.

3.8  Subject to clause 3.9 below, any retention by the Buyer or a portion of the Price (“Retention”) and the period of the Retention is subject to prior written agreement of the Seller. A Retention may only relate to the cost of the Services to be provided by the Seller. Clauses 3.2 and 3.3 apply to the payment of any agreed Retention.

3.9  The Seller will not accept Retentions for the provision of Services whose value is less than £10,000 (excluding VAT). Unless agreed in writing.

CANCELLATION OF GOODS OR SERVICE

4.1  Cancellation of Contracts for Goods made or Services requested by the Buyer specifically to order is solely at the discretion of the Seller and will take effect only if the Buyer makes a written request for cancellation and the Seller accepts such request in writing. In such event the Seller reserves the right to impose a reasonable cancellation charge. Where a service maintenance contract is in place with the Buyer the seller requires 3months written notice of cancellation of service.

4.2  The seller reserves the right to suspend maintenance/ service works and withdraw call-out and service facilities should payment of any invoiced amounts become overdue, but without prejudice to the right of the seller to recover from the Buyer the cost of services that would have been provided but for such suspension and withdrawal.

RETURN OF GOODS

5.1  The Seller is not obliged to accept the return of Goods in exchange for a credit note if the order was made by the Buyer incorrectly or the Goods are surplus to the Buyer’s requirements. In no event Goods be accepted for returns which are not in the condition in which they were delivered (including packaging). If the Seller does not accept Goods in exchange for a credit note, a restocking charge will be imposed.

5.2  Goods ordered by the Seller for the Buyer direct from third party cannot be returned to the Seller without prior agreement of the third party. In such circumstances, restocking charges will apply.

6. SUB-CONTRACTING

6.1 The Sellers may license or subcontract all or any part of this rights, obligation and duties under this Contract without the Buyer’s consent.

8. INTELLECTUAL PROPERTY

8.1  The property, copyright and all other intellectual property rights in any information, designs, drawings, prints, samples, specification and any other such materials prepared by the Seller for the purpose of the Contract and/or supplied by the Seller for the purposes of the Contract (if any) (“Materials”) shall at all times be and remain vested in the Seller and the Buyer shall acquire no rights in relation to such Materials.

8.2  Subject to the Seller receiving payment of all monies due under the Contract, the Seller grants to the Buyer the right to use the Materials for the purpose of utilising Goods. The Buyer shall not use the Materials for any other purpose without the prior written consent to the Seller.

WARRANTIES, DESCRIPTION AND LIABILITIES.

9.1 The Seller warrants that upon delivery the Goods:

9.1.1  are sold with good title;

9.1.2  in all material respects comply with the Seller’s current published technical specification or any technical specification of the Buyer which the Seller has explicitly agreed to in writing (or, where there is none, comply with any specification appearing on the Seller’s order confirmation and are made with sound materials and workmanship to normal standards accepted in the industry) at the time of delivery.

9.2  The Seller does not warrant that the Goods are fit for any particular purpose of or intended use by the Buyer and it is for the Buyer to satisfy itself that the Goods are so fit.

9.3  In no event shall the Seller have any obligation to repair, correct or replace the Goods, in whole or in part, as the result of (i) normal wear and tear, (ii) accident , disaster or event of force majeure, (iii) misuse, fault or negligence of or by or on behalf of the Buyer, (iv) use of the Goods in a manner for which they were not designed, (v) causes external to the Goods or (vi) use of the Goods in combination with equipment not supplied by the Seller. The Buyer shall examine the Goods as soon as reasonably practical after receipt and shall immediately notify the Seller if they fail to comely with the Sellers warranty. Unless the Buyer so notifies the Seller within thirty (30) days after the date when the Buyer became or ought reasonably to have become aware of any such failure, and in any event the earlier of

1. 9.3.1  six (6) months from the date of despatch by the Seller; and
2. 9.3.2  thirty (30) days after the Goods have been used or put into process, the Seller shall not be responsible for such failure subject to Conditions 9.1 and 9.2

9.4  Subject to notification as required by clause 9.3, if it is shown to the Seller’s reasonable satisfaction that any of the Goods do not comply with the Seller’s Warranty, the Seller shall be given a reasonable opportunity to correct such failure and if the Seller does not or is unable to do so, the Seller will either refund the Price of the Goods at the pro rata Price (or if the Goods have been depreciated for reasons other than Seller’s default or have been used or put into process, a reasonable part of the Price to be specified by the Seller) or replace the Goods ( if reasonable practical) within a reasonable time at the Seller’s cost. Such correction, refund or replacement shall be the Seller’s sole liability in relation to any such failure.

9.5  Replacement Goods are covered by these Conditions including the Seller’s Warranty. Goods which are alleged not to comply with the Contract shall as far as possible be preserved for inspection by the Seller, and if replaced or if a refund is made shall be returned to the Seller (at the Seller’s cost) if the Seller reasonably so requests.

9.6  Sub-clause 9.1.2 does not apply to samples.

9.7  The Seller warrants that the Services shall be performed in accordance with generally accepted industry by competent personnel.

9.8  Warranty are between the seller and buyer are not transferable.

10. TITLE AND RISK

10.1  Risk if the Goods shall pass to the Buyer

9.1.1  on orders for delivery within United Kingdom on delivery to carrier at the Seller’s works; or

9.1.2  on orders for delivery outside the United Kingdom on delivery FOB to the port notified hereunder.

10.2  However, the Seller shall retain ownership of the Goods until:

10.2.1 the Seller has received payment in full for the Goods; or

2. 10.2.2  the Buyer mixes or processes the goods so that they lose their identity or are irrecoverably incorporated in or mixed with other goods; or
3. 10.2.3  the Buyer sells them at arm’s length to an unrelated third party who does not have notice of the Seller’s rights.

10.3 Whilst the Goods remain the property of the Seller:

10.3.1  the Seller, its employee and agents may at any time whilst sums remain payable to the Seller from the Buyer with or without notice and with appropriate transport enter any premises where the Goods or any products manufactured from or incorporating the Goods are kept to recover them;

10.3.2  the Buyer may use the Goods only in the normal course of its business on the condition that the property in any product manufactured from incorporating the Goods shall vest in the Seller (and the Seller may upon recovering the same sell such product provided that all then accounts to the Buyer for any sale proceeds in excess of the sum then due to the Seller from the Buyer in respect of the Goods so incorporated less any reasonable recovery and realisation costs);

10.3.3  the Buyer shall preserve and protect the Seller’s title to the Goods, shall not subject to any encumbrance, shall where reasonably possible keep each delivery separate and clearly identified as the Seller’s property and shall notify any person to whom possession of the Goods passes that the Buyer cannot then pass title to the Goods;

10.3.4  the Buyer shall if it sells the Goods or any product manufactured from or incorporating them hold such part of the proceeds of sale as equates to the sums then due to the Seller from the Buyer in respect of such Goods on trust for the Seller; and

10.3.5  the Buyer shall insure the Goods against all usual risks for an amount equal to the Contract Price (or sale price of the goods with which the Goods have been mixed with or applied to over the Contract Price)and hold the proceeds of such insurance up to sum amount on trust of Seller. This obligation shall survive termination of the

11. INSTALLATION

11.1 The Buyer shall solely responsible for ensuring and establishing that the structure of any building into or on which it requires the Seller to install the Goods is not compromised in any way by such installation. Without prejudice to the foregoing, on the event installation of the Goods by the Seller results (whether in full or part) in any compromise to the structural integrity and/ or safety of a building the Seller shall in no way be liable to the Buyer for such compromise and any damage and/or losses resulting there from.

11.2 Where the Seller is to install the Goods the Seller shall make known to the Buyer in its written quotation and/or written acknowledgement of the Buyer’s order the specification that it is required for the installation of the Goods (“Specification”). It shall be the sole responsibility of the Buyer to provide a site which meets the Specification.

11.3 In the event that the site provided by the Buyer does not meet the Specification, the Seller may in its absolute discretion:

11.3.1 delay the installation of the Goods until the Specification is met with the Buyer being responsible to the Seller for any additional cost occasioned by the Seller by the delay; or

11.3.2 carry out such works as are reasonably required to achieve such Specification with the cost of such work being charged to the Buyer by way of additional price: or

11.3.3 treat the Contract as repudiated by the Buyer.
11.4 The Buyer shall provide such access to the Site to the Seller in accordance with the Specification.
11.5 The Buyer shall provide the Seller at the Buyer’s expense during the period of installation with such electricity,

water, and any other equipment deemed necessary and in accordance with the Specification. Uninterrupted access to the Site shall be provided by the Buyer during normal working hours unless otherwise stipulated in the Specification.

11.6 Where Connections associated with the Goods are to be provided and installed by the Buyer they shall be:
11.6.1 Of suitable material strength and support so as not to impose stress or tension upon the Goods; and 11.6.2 Water Regulations Advisory Scheme approved where applicable.
The positioning of such Connections shall be specified by the Buyer and it shall be the Buyer’s sole responsibility to position and install accurately all such Connections.

11.7 In the event that the Seller is requested by the Buyer to provide services outside the Seller’s normal working hours or upon Bank Holidays, Public Holidays or at the weekends the Seller is entitled to charge an additional price above the Price to the Buyer.

11.8 Any defect or damage to item of equipment installed should be reported to the client within 7 days in writing.

ACCEPTANCE

12.1 If the Seller provides Services, the Buyer shall provide a representative at the request of the Seller to sign an installation acceptance certificate on completion of the Services. In the event that no representative is available the Buyer shall be deemed to have accepted the installation on completion.

13. LIMITATION OF LIABILITY

13.1 Subject to clause 9, the following provisions set out the entire liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any breach of the Contract and any misrepresentation, misstatement and tortuous act or omission including negligence arising under or in connection with the Contract.

13.2 Except where expressly accepted in these Conditions, all warranties, condition, representations, rights, obligations, liabilities and other terms whether express or implied by law in any jurisdiction in connection with the Goods and/or Services (including without limitation any relating to condition, performance, satisfactory quality, fitness for purpose, conformity with description or sample, care and skill or compliance with representations, but excluding implied statutory warranties relating to title)are, to the fullest extent permitted by law, excluded from the Contract.

13.3 Subject to condition 13.4and 13.5 the Seller’s total aggregate liability in contract , tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of this Contract (including under indemnification provisions (if any) shall be limited to the Price paid excluding delivery costs.

13.4 The Seller shall not be liable to the /buyer in contract tort (including negligence) misrepresentation or otherwise loss of profit, loss of business or revenue, loss of anticipated savings, depletion of goodwill or any third party claims or ay indirect or consequential loss or damage of any kind which arise out of or in connection with the Contract.

13.5 Neither the Seller, its employees and/or agents shall be liable in contract, tort or otherwise and irrespective of the negligence of the Seller for any representations, advice or assistance given to the Buyer (under this Contract or otherwise and whether before or after the date of the Contract) in connection with the Goods, the Services, installation of the Services or the Contract unless and then only to the extent that the Seller has made such representation and/or agreed to provide such advice and assistance for a fee under a separate written contract with the Buyer.

13.6 Without prejudice to the Seller’s warranty, the Buyer’s sole remedy shall be in damages.
13.7 The clause 13 applies notwithstanding any fundamental breach or breach of fundamental term of the Contract by

the Seller.

14. HEALTH AND SAFETY

14.1 Where the Seller is required to provide Services it is the Buyer’s sole responsibility to ensure that the installation Site complies with all and any applicable health and safety statute(s) and/ or regulations. Should the seller be required to attend a health and safety course(s) for the purpose of complying with such statute and/or regulations, the expense of and attendance at such course(s) will be borne by the Buyer. In the event the Site does not comply with applicable regulatory, statutory and/or the Seller’s health and safety standards, the Seller reserves the right to instruct its staff to leave the Site until such time ad in the Seller’s opinion the site does comply. The Seller shall levy and abortive visit charge on the Buyer if its staff Leave the Site.

15. PACKAGING

15.1 The Seller shall not be liable in any respect for defective or inadequate straps or packing provided by any supplier to it of goods sold by it to the Buyer. The Buyer shall verify the safety and adequacy of all packing materials and straps.

16. FORCE MAJEURE

16.1 The Seller shall not be liable for any failure to comply with the Contract (whether or not involving the Seller’s negligence) which is caused by any circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to party’s workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

16.2 The Seller may where reasonable in all the circumstances (whether or not involving Seller’s negligence) without liability suspend or terminate (in whole or in part) its obligation s under the Contract if the Seller’s ability to manufacture, supply, deliver or acquire materials for the production of the Goods and/or provision of the Services by the Seller’s normal means is materially impaired.

17. PROPER LAW

17.1 This Contract shall be governed by and constructed in accordance with the laws of England. The buyer hereby agrees for the Seller’s exclusive benefit that the English courts shall have sole justification to hear all claims or proceedings connected with the Contract. The Seller may nevertheless bring claims in any other courts of competent jurisdiction.

18. CONSUMER PROTECTION

18.1 The statutory rights of the Buyer as to the quality, fitness or description of goods are not affected by these Conditions.

19. MISCELLANEOUS

19.1 The Contract may not be assigned by the Buyer in whole or in part without the Seller’s prior written consent.
19.2 Notices must be written to the Seller’s of the Buyer’s address and shall be deemed delivered on the first working day after sending by hand or (subject to confirmation of transmission) by facsimile, or on the third working day after being placed prepaid in the first class post to the Seller’s or the Buyer’s address in the UK or six days if sent overseas.
19.3 Qualified acceptances by the Buyer on delivery notes shall not constitute notice of any claim or acceptance by the Seller of any such qualification.
19.4 No failure by the Seller to enforce any provision of this Contract shall be construed as a release of its rights relating thereto or to sanction any further breach.
19.5 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will no way affect the other conditions of the Contract.
19.6 If any provision in this Contract shall be held to be illegal, invalid or unenforceable, in whole or in part, either under any enactment or rule of law, such provision or part shall to that extent be deemed not to form part of this Contract but the legality, validity and enforceability of the remainder of this Contract shall not be affected.
19.7 No term or condition of this Contract is enforceable under the Contracts (Right o Third Parties) Act 1999 by any person who is not a party to the Contract and the Seller and the Buyer may exercise, without the consent of any third party, any rights they may have to amend or rescind this Contract.

SERVICE AGREEMENTS

20.4 The Buyer shall:-
a) Report immediately any unsatisfactory operation of the equipment by telephone with subsequent

confirmation in writing / fax / e-mail .
b) Operate the equipment in accordance with the manufacturer’s instructions.
c) Provide at such times as may be required such working space and facilities including the use of common building maintenance tools, access equipment and such parking spaces as may be required by Seller.
d) Accept as final the decision of Seller as to the means and methods to be employed for any work to be carried out to the equipment.
e) Any defect / damage to equipment should be of equipment is to be .

20.6 The seller shall have the right to vary the charges within the service agreement by notice in writing to the Buyer. The prices stated will, however remain open for acceptance for a period of 30 days from the date of notification to the Buyer and thereafter will remain fixed until the end of this Agreement.

20.7 This Agreement is personal to the Customer and is not transferable.
20.8 This is not an Agreement by the seller operate the Buyers equipment and the buyer shall be responsible for its day to day operation.
20.9 The seller shall not be responsible for any defect, malfunctions or stoppages attributable to the original design and/or installation of the equipment or for any works required as a result of mistreatment, improper use or operation outside of the intended design limits or for non-compliance with manufacturer’s operating recommendations by the customer or his employees and representatives.