NEWQUIP LIMITED STANDARD TERMS AND CONDITIONS OF SALE
1.1. In these Conditions:-
“ADDITIONAL ITEMS” means the cost of VAT, other taxes, service support, installation, transportation, storage and any samples;
“CONDITIONS” means the Standard Terms and Conditions of Sale in this document;
“CONTRACT” means the contract for the purchase and sale of the Goods and/or the installation of the Goods;
“CUSTOMER” means the person who accepts a quotation from Newquip for the sale and/or installation of the Goods or whose order for the Goods is accepted by Newquip;
“DATA PROTECTION LAWS” means all applicable laws, rules and regulations applicable from time to time relating to data protection, privacy and/or the processing of data relating to identified or identifiable individuals from time to time, including the Data Protection Act 2018, the General Data Protection Regulations (EU) and any laws and regulations that implements, supplement or amend the GDPR, and including where applicable the guides and codes of practice of the Information Commissioners Office.
“GOODS” means the goods (including any instalment of the goods or any parts for them) and includes Units which Newquip is to supply in accordance with these Conditions;
“NEWQUIP” means Newquip Limited (Company Registration no: 5465512) whose registered office is at NQ House, Conygarth Way, Leeming Bar Business Park, Leeming Bar, Nothallerton, North Yorkshire DL7 9EE;
“ORDER” means any order by the Customer for the purchase of Goods and/or the installation of such Goods;
“QUOTATION” means any offer by Newquip for the supply of Goods and/or the installation of such Goods; “UNITS” means Goods comprising plant and/or equipment and/or specified in the Quotation as being such; “WRITTEN or in WRITING” includes facsimile transmission, email and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Sale
2.1 Newquip shall sell and/or install the Goods and the Customer shall purchase the Goods in accordance with any Quotation in Writing of Newquip which is accepted by the Customer, or any Order in Writing of the Customer which is accepted by Newquip, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such Quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Customer or any representations (either in writing or verbally) made by Newquip.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Customer and a Director of Newquip.
2.3 Newquip’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by a Director of Newquip in Writing. In entering into the Contract the Customer acknowledges that it does not rely on any such unconfirmed representations.
2.4 Any advice or recommendation given by Newquip or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by Newquip is followed or acted upon entirely at the Customer’s own risk, and accordingly Newquip shall not be liable for any such unconfirmed advice or recommendation.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Newquip shall be subject to correction without any liability on the part of Newquip.
2.6 Any Quotation provided by Newquip shall be valid for a period as stated on the Quotation and in the absence of any express period shall be valid for a period of 30 days from the date of the Quotation.
2.7 All brochures, catalogues, price lists, samples, particulars or dimensions of capacity and any other advertising or descriptive materials are intended to be approximate only and unless agreed in Writing shall not form part of the Contract.
3. Orders and Specifications
3.1 No Order or variation to a previously accepted Order submitted by the Customer shall be deemed to be accepted by Newquip unless and until confirmed in Writing by a Director of Newquip.
3.2 Any Quotation accepted by the Customer or Customer’s Order accepted by Newquip shall be subject to these Conditions and any credit checks which Newquip may undertake.
3.3 The Customer shall be responsible to Newquip for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Customer, and for giving Newquip any necessary information relating to the Goods within a sufficient time to enable Newquip to perform the Contract in accordance with its terms.
3.4 The quantity, quality and description of and any specification for the Goods shall be those set out in Newquip’s Quotation (if accepted by the Customer) or the Customer’s Order (if accepted by Newquip).
3.5 If the Goods are to be manufactured or any process is to be applied to the Goods by Newquip in accordance with a specification submitted by the Customer, the Customer shall indemnify Newquip against all loss, damages, costs and expenses awarded against or incurred by Newquip in connection with or paid or agreed to be paid by Newquip in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from Newquip’s use of the Customer’s specification.
3.6 Newquip reserves the right to make any changes in the specification of the Goods without notice which do not materially affect the Goods’ quality or performance or general commercial use.
3.7 No Order which has been accepted by Newquip may be cancelled by the Customer except with the agreement in Writing of Newquip and on terms that the Customer shall indemnify Newquip in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Newquip as a result of cancellation.
3.8 Newquip shall be entitled to cancel the Contract at any time without liability if either the Customer fails to supply upon request trade and/or bank references or such references supplied or credit checks undertaken are unacceptable to Newquip.
3.9 Where Newquip prepares a specification on behalf of the Customer, it is the responsibility of the Customer to ensure such specification is appropriate for its requirements.
4. Price of the Goods
4.1 The price of the Goods shall be the price detailed in Newquip’s Quotation or, where no Quotation has been provided (or a Quotation is no longer valid), the price listed in Newquip’s published price list current at the date of acceptance of the Order. Where the Goods are supplied for export from the United Kingdom, Newquip’s published export price list shall apply.
4.2 Newquip reserves the right to increase the price of the Goods without notice to reflect any increase in the cost to Newquip which is due to any factor beyond the control of Newquip (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Newquip adequate information or instructions.
4.3 Except as otherwise stated under the terms of any Quotation or in any price list of Newquip, and unless otherwise agreed in Writing between the Customer and Newquip, all prices are given by Newquip on an ex-works basis, and where Newquip agrees to deliver the Goods otherwise than at Newquip’s premises, the Customer shall be liable to pay Newquip’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable Additional Items, which the Customer shall be additionally liable to pay to Newquip.
5. Terms of Payment
5.1 Unless clause 5.2 applies the Customer shall pay the price of the Goods by no later than the 20th day of the month following the month of delivery of the Goods, and the time of payment of the price of the Goods shall be of the essence of the Contract.
5.2 Where the Goods are to be installed, 30% of the price of the Goods shall be payable on the Customer placing an Order in Writing with Newquip, 60% of the price of the Goods shall be payable upon delivery of the Goods and the balance shall be payable within 14 days of the date on which Newquip leave the Customer’s site following installation of the Goods. The time of payment of the price of the Goods shall be of the essence of the Contract.
5.3 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Newquip, Newquip shall be entitled to:-
5.3.1 cancel the contract, suspend any further deliveries to the Customer, or cease any installation which is in progress; and
5.3.2 appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and Newquip) as Newquip may think fit (notwithstanding any purported appropriation by the Customer); and
5.3.3 charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 6% per cent per annum above the base rate from time to time of HSBC Bank Plc until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.4 If the Contract provides for the payment of the Price by instalments and the Customer defaults on any instalment, the whole price outstanding shall become immediately due and payable and interest shall run on the outstanding price at the rate set out in clause 5.3.3 above. Newquip may suspend any further deliveries of the Goods until payment of the price by the Customer has been received by Newquip. The Customer shall indemnify Newquip against any losses or expenditure suffered by Newquip as a result of such suspension (including storage charges).
6.1 Delivery of the Goods shall be made by Newquip delivering the Goods to the Customer’s premises as detailed in the Quotation or Order.
6.2 Any dates quoted for delivery of the Goods are approximate only and Newquip shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract. The Goods may be delivered by Newquip in advance of the quoted delivery date upon giving reasonable notice to the Customer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Newquip to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.4 Where the Goods are to be delivered in instalments, Newquip is entitled to deliver additional materials to the Customer’s premises which at all times remain the property of Newquip.
6.5 A signature on behalf of the Customer on Newquip’s delivery note shall be conclusive evidence as to the quantity and quality of the Goods delivered unless within 5 days of receipt of the Goods or within 7 days of completion of the installation of the Goods (whichever is earlier) notice in Writing is given to Newquip of any non-delivery or defects.
6.6 The Customer is responsible for the unloading of the Goods from the delivery vehicle upon arrival at the Customer’s premises without delay and agrees to indemnify Newquip against any loss suffered by Newquip as a result of the unloading of the Goods and/or any delay in the unloading of the Goods. The Goods shall be covered by the Customer’s insurance policy on arrival at the Customer’s site.
6.7 If the Customer fails to take delivery of the Goods or fails to give Newquip 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 Newquip’s fault) then, without prejudice to any other right or remedy available to Newquip, Newquip may:-
6.7.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.7.2 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.
6.8 If the Goods (or any instalment of them) are not delivered within 7 days of the estimated delivery date then the Customer shall notify Newquip of such non-delivery in Writing.
7. Installation and Service
7.1 Where installation and service support is provided (whether on the Customer’s premises or elsewhere) the Customer shall indemnify Newquip against any liability for breach of any duty imposed upon the occupier of the premises or upon the employer of persons employed on the premises in respect of:-
7.1.1 the condition and usage of the premises;
7.1.2 the means of access to, safety of and suitability of any place of work;
7.1.3 the safety, suitability and condition of any plant equipment or appliance used on the premises and not provided by Newquip provided always that this indemnity shall not apply to any liability for death or personal injury arising directly from the negligent act or default of Newquip or any person employed by Newquip or its employee or agent.
7.2 Where installation and service support is to be provided, the Customer shall ensure that such facilities as Newquip shall reasonably specify as being required are available.
7.3 Where installation and service is provided or is to be provided to the Customer then Newquip will at no time be appointed or have been appointed as the principal contractor as per the meaning under the Construction (Design and Management) Regulations 2015.
7.4 Any containers or pallets in or with which the Goods have been supplied remain the property of Newquip at all times and shall be returned at the expense of the Customer upon the request of Newquip in as good condition as when supplied in default of which the Customer will upon request pay or reimburse Newquip the cost of repairing or replacing the containers or pallets.
8. Risk and Property
8.1 Risk of damage to or loss of the Goods shall pass to the Customer at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when Newquip has tendered delivery of the Goods.
8.2 Notwithstanding delivery and the passing or risk in the Goods, or any other provision of these Conditions, the property in the Goods or any additional materials as detailed at clause 6.4 shall not pass to the Customer until Newquip has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by Newquip to the Customer for which payment is due.
8.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as Newquip’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as Newquip’s property.
8.4 Until such time as the property in the Goods passes to the Customer Newquip shall be entitled at any time to require the Customer to deliver up the Goods to Newquip and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
8.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Newquip, but if the Customer does so all moneys owing by the Customer to Newquip shall (without prejudice to any other right or remedy of Newquip) forthwith become due and payable.
9. Warranties and Liability
9.1 This clause 9 sets out the entire financial liability of Newquip (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:
9.1.1 any breach of this Contract;
9.1.2 any use made by the Customer of the Goods or any part of them; and
9.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
9.2 Newquip shall be under no liability in respect of any defect in the Goods arising from:
9.2.1 Any drawing, design or specification supplied by the Customer;
9.2.2 Fair wear and tear or wilful damage;
9.2.3 Abnormal working conditions
9.2.4 Failure to follow Written instructions or any manual supplied; or
9.2.5 Misuse or alteration of the Goods without Newquip’s approval.
9.3 Where there is a defect in the Goods (which is notified to Newquip in accordance with 6.5) and where 9.2 does not apply, Newquip shall replace the Goods or part in question (but not install or fit such Goods or part) or, at Newquip’s sole discretion, refund the Price paid (or a proportion thereof) to the Customer and Newquip shall have no further liability to the Customer.
9.4 In the event of any other defect in the Goods arising within a period of 12 months from the date of installation or supply and where 9.2 does not apply Newquip’s only liability shall be to repair, or, at its sole discretion replace or issue a credit note in respect of the Goods provided always that the Customer shall have complied with these conditions and Newquip shall be under no obligation to install replaced parts.
9.5 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
9.6 Nothing in this agreement limits or excludes the liability of Newquip:
9.6.1 for death or personal injury resulting from negligence; or
9.6.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Newquip.
9.7 Subject to the rest of this Clause 9; 9.7.1 Newquip shall not be liable for:
18.104.22.168 loss of profits; or
22.214.171.124 loss of business; or
126.96.36.199 depletion of goodwill and/or similar losses; or
188.8.131.52 loss of anticipated savings; or
184.108.40.206 loss of goods; or
220.127.116.11 loss of contract; or
18.104.22.168 loss of use; or
22.214.171.124 loss or corruption of data or information; or
126.96.36.199 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
9.7.2 Newquip’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement shall be limited to £70,000 or the price of the Goods, whichever is lower.
9.8 Newquip shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Newquip’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond Newquip’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Newquip’s reasonable control:- 9.8.1 Act of God, explosion, flood, tempest, fire or accident;
9.8.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.8.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
9.8.4 Import or export regulations or embargoes;
9.8.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Newquip or of a third party);
9.8.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.8.7 Power failure or breakdown in machinery.
9.9 If Newquip is at any time delayed, hindered or prevented from performing the Contract in whole or in part by such an event then Newquip shall be at liberty to withhold, suspend or reduce performance to such extent as is reasonable in all the circumstances. The Customer shall thereupon be liable for a rateable proportion of the price agreed to be paid.
10. Insolvency of Customer
10.1 This clause applies if:-
10.1.1 the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
10.1.3 the Customer ceases, or threatens to cease, to carry on business; or
10.1.4 Newquip reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
10.2 If this clause applies then, without prejudice to any other right or remedy available to Newquip, Newquip shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11. Data Protection
11.1. The parties acknowledge that for the purposes of the Data Protection Laws, that Newquip is the data controller under the Contract.
11.2. Newquip will use the personal information you provide to:
11.2.1. provide and/or install Goods to you in line with the Contract entered into;
11.2.2. process your payment for the Goods;
11.2.3. provide you with information about any of the services or products we offer, but you may opt of out receiving this at any time by contacting us.
11.3. All personal information of the Customer will be processed in line with Data Protection Laws. Details of the Customers’ rights when it comes to the handling of personal data will be contained within Newquip’s privacy notices as provided to you at commencement of the Contract which includes information on who to contact should you have any queries in relation to data protection.
11.4. The Customer acknowledges that the personal details provided, including payment record data may be submitted to a credit reference agency.
11.5. Newquip will ensure that it has in place appropriate technical and contractual measures to ensure the security of the personal data and will guard against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data.
12.1 Newquip reserves the right to sub-contract the whole or any part of the Contract.
12.2 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.
12.3 No waiver by Newquip of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
12.5 In the absence of any defects of the Goods, Newquip shall be under no obligation to accept the return of the Goods and shall be entitled to impose such terms as it may determine including a 10% handling charge prior to accepting the return of any Goods.
12.6 Newquip shall at all times have the right to apply (or require any company associated with Newquip to apply) any sums owed to the Customer by Newquip or such associated company in or towards the discharge of any liability of the Customer to Newquip whether done hereunder or in respect of any other matter whatsoever. An associated company means a holding company of Newquip or a subsidiary of a holding company of Newquip.
12.7 The Customer agrees to return any samples provided by Newquip within 90 days of receipt or in default, pay for such samples at Newquip’s current list price.
12.8 The Contract shall be governed by the laws of England, and the Customer agrees to submit to the exclusive jurisdiction of the English