Address: Altitude Safety Limited. Citrus Group House, Diamond Way, Nene Park, Irthingborough, Northamptonshire NN9 5QF.
Telephone: 0844 33 563 81
Company Reg No: 6900530
VAT number: 935665002
1.1 In these Conditions:
“BUYER” means the person named as the Buyer in the Contract;
“COMPANY” means Altitude Safety Limited;
“GOODS” means the goods (including any instalment of the goods or any parts
for them) which the Seller or Company is to supply in accordance with these Conditions;
“HIRER” means the person named as the Hirer in the Contract;
“SELLER” means Altitude Safety Limited.
“CONDITIONS” means the standard terms and conditions of sale or hire set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller or Company and Hirer;
“CONTRACT” means the contract for the purchase and sale or the hire of the Goods;
“WRITING” includes telex, cable, facsimile transmission 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 The Seller shall sell and the Buyer shall purchase the Goods in accordance with the written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Terms and Conditions, which shall govern the Contract to the exclusion of all other terms and conditions including the terms of the Buyer’s Purchase Order (if any) shall be superseded and excluded by the terms and conditions of this Agreement.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
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 the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative. Such order is to be subject exclusively to these Terms and Conditions.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the specification of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with the said specification.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the
Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with paid or agreed to be paid by the Seller 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 the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 Subject to clause 2.6 above, no order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller 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 the Seller as a result of cancellation.
4. Price of the Goods
4.1 The price of the Goods shall be the Seller’s quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 Except as otherwise stated under the terms of any quotation of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.3 The price is exclusive or any applicable Value Added Tax, which the Buyer shall be additionally liable to pay to the Seller.
5. Equipment Hire
5.1 The Hirer shall be deemed to have inspected the Goods supplied and to have satisfied himself that they are of merchantable quality unless written notification to the contrary is communicated to the company within Seven days of delivery of the Goods to the Hirer/collection of the goods by the Hirer, whichever is applicable.
5.2 The Hirer shall be deemed to have been satisfied upon taking delivery of the Goods supplied that they are fit for the purpose that they are intended and it is hereby declared that the Hirer has not relied upon any representations made by or on behalf of the company as to whether the Goods supplied are fit for the Hirer’s intended use.
5.3 Although every possible precaution has been taken to ensure that the equipment is in good serviceable condition, no liability whatsoever can be accepted by the Company for the consequences of any failure or inaccuracies of the equipment. The Hirer is expected to satisfy himself that the equipment is functional before attempting to use it on site.
5.4 It is the Hirer’s responsibility to indemnify the Company against any loss or damage resulting either directly or consequentially from the use of the equipment hired howsoever caused and no liability shall attach to the Company either in contract or in tort for any defect in the equipment resulting in loss damage or injury.
5.5 Insurance cover is the responsibility of the Hirer. The Hirer will punctually pay all necessary premiums and produce receipts for such payments to the Company on demand, do everything necessary to maintain such a policy in full effect and not do anything whereby the said policy will or may be vitiated. The Hirer hereby irrevocably appoints the Company his agent for the purpose of receiving all monies payable under the said policy and giving a discharge therefore.
5.6 The Hirer is responsible for replacing at current retail price any equipment lost, destroyed or damaged. The Hirer at his own expense shall take such proceedings (in the Hirer’s sole name or jointly with the Company as the Company shall direct, holding all sums recovered together with any monies received by the Hirer under any policy of insurance taken out by the Hirer pursuant to the conditions of this Agreement on trust for the Company and paying or applying as the Company directs such part thereof as is necessary to discharge the Hirer’s liability to the Company as aforesaid. Where in the opinion of the Company it is reasonably practicable for the damaged equipment to be repaired, the Hirer’s liability will be reduced to the cost of making good such damage.
5.7 Hire charges are at the rate for the contracted hire duration. If a machine is off hire prematurely the duration charge will apply.
5.8 Punctual payment of hire charges shall be of the essence of this Hire Agreement and the Hirer shall be deemed to have repudiated this Agreement if any part thereof shall remain unpaid for more than seven days after becoming due.
5.9 Hirers returning equipment in a dirty condition will be charged for cleaning.
5.10 The equipment shall remain the property of the Company and nothing contained in this Agreement shall confer or be deemed to confer any interest in the equipment on hire.
5.11 The Hirer shall not let, pledge, mortgage, charge, encumber, or part with possession or otherwise deal with the goods or any interest therein or create or allow to be created any lien on the goods whether for repairs or otherwise, and in the event of any breach of this condition by the Hirer the Company shall be entitled (but shall not be bound) to pay to any third party such sum as is necessary to procure the release of the goods from any charge, encumbrance or lien and to recover such sum from the Hirer forthwith.
5.12 At the end of the term of hire and upon receipt at the depot the equipment will be checked and tested. No check of the equipment will be made on site.
5.13 Damage to goods in transit and shortages must be notified within seven days.
5.14 Payment will be made on all invoices 28 days after the date of such invoices. Interest will be charged on all sums outstanding after the due date from the date of the invoice to payment at 15% per annum.
5.15 The Hirer shall pay to the Company such expenses (including legal costs on a full indemnity basis) incurred by or on behalf of the Company in ascertaining the whereabouts of the goods, taking possession of them by reason of a breach by the Hirer of any conditions of hire and preserving, insuring and storing the goods thereafter, and of any legal proceedings taken by or on behalf of the Company to enforce the provisions of this Hire Agreement.
5.16 Equipment will remain on hire until the Company is notified of termination of hire. Hire can be terminated by telephone but the equipment remains the responsibility of the Hirer until collected by or received back the Company.
5.17 Lost or stolen equipment will continue to be charged as if on hire until the replacement cost is paid in full.
5.18 In the event that the Hirer is a consumer as defined in The Consumer Protection (Distance Selling) Regulations 2000 or any re-enactment thereof the Hirer has a right to cancel the contract within a period of 7 working days starting on the day after the Hirer submits the order form. Written notice of cancellation must be given by the Hirer to Altitude Safety Limited by fax, post or email. Altitude Safety Limited will return any payment made by the Hirer to Altitude Safety Limited within 30 days of the date of the notice of cancellation. The right to cancel shall not apply where the Hirer has accepted delivery of the equipment and the period of the hire has commenced.
6. Terms of Payment
6.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
6.2 The Buyer shall pay the price of the Goods (without any deduction) within 30 days of the date of the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will issued only upon request.
6.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
6.3.1 Cancel the Contract or suspend any further deliveries to the Buyer;
6.3.2 Appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other Contract between the Buyer and the Seller) as
the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
6.3.3 Charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 3% per annum above Bank of England base rate
from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
7.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
7.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
7.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more or the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.4 If the Seller fails to deliver the Goods for any reason other than cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.
7.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason or any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
7.5.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.5.2 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
8. Risk and Property
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
8.1.1 In the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
8.1.2 In the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
8.2 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 Buyer until the Seller 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 the Seller to the Buyer for which payment is then due.
8.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and the bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitle to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
8.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller
Altitude Safety Limited. Citrus Group House, Diamond Way, Nene Park, Irthingborough, Northamptonshire NN9 5QF.
Telephone: 03332 07 66 22
shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. This condition being additional to the Seller’s rights in law both statutory or otherwise to seek redress including where appropriate injunctive remedies.
8.5 The Buyer 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 the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
9. Intellectual Property and Confidentiality
9.1 For the avoidance of doubt nothing in this Contract shall be construed as affecting the ownership of Background Intellectual Property rights in existence prior to or generated after the commencement of the Contract.
9.2 All rights to Intellectual Property in the Goods shall remain the property of the Seller.
9.3 The Buyer hereby undertakes to preserve the confidentiality of any such Background or Foreground intellectual property whether in tangible or visible form or whether communicated orally.
9.3.1 This obligation of confidentiality shall not apply to any information:
18.104.22.168 In the public domain at the time it was disclosed or which thereafter enters the public domain without breach or the terms of this Contract;
22.214.171.124 Already known by the Receiving Party at the time of disclosure by the Disclosing Party;
126.96.36.199 Which becomes known form a source other than the Disclosing Party without breach of the terms of this Contract;
188.8.131.52 Independently developed by an employee of the Receiving Party to whom no disclosure of any such disclosed information has been made; or
184.108.40.206 Which is required to be disclosed by Court Order but only to the extent required by the Order on condition that the Disclosing Party is informed promptly of the Court Order.
9.3.2 The obligations of confidentiality contained in this clause shall expire seven (7) years after the date of completion of the order.
10.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification and their normal standards of quality of manufacture at the time of delivery.
10.2 The above warranty is given by the Seller subject to the following conditions:
10.2.1 The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
10.2.2 The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
10.3 Any claim by the Buyer which is based on any defect in the quality or conditions of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within seven (7) days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
10.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or conditions of the Goods or their failure to meet specification is notified to the Seller in accordance with these conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
11.1 In this clause, the following expressions shall bear the following meanings:
“Liability” means any and all legal liability howsoever arising, whether for breach of contract (including this Contract), tort, breach of statutory duty or otherwise
11.1.1 Any physical damage or loss of any kind whatsoever, whether to property of the Buyer, its customers or any third party; and
11.1.2 Any financial loss of any kind whatsoever (including, but not limited to expenses incurred, loss of diminution of profits or revenue, loss of opportunity, loss of use, loss of contracts, failure to achieve anticipated savings and damage to goodwill) suffered by the Buyer, its customers or any third party, whether or not such financial loss is caused by or consequent upon any physical damage or loss.
11.2 The Seller, its employees, servants and agents shall have no liability to the Buyer for any damage caused directly or indirectly by any breach of any of the terms of this Contract, or without prejudice to the generality of the foregoing by:
11.2.1 Any defect in the manufacture of the Goods;
11.2.2 Any non-performance or delay in delivery of the Goods;
11.2.3 Any failure of the Goods to comply with the terms, conditions and warranties of this Contract or of any other agreement relating to the Goods;
11.2.4 Any inaccuracies, defects or omissions in any work performed, information provided or advice given pursuant to, in connection with or as a result of the specification and manufacture of the Goods; or
11.2.5 The use by any person of any information, advice, results, product, process or system supplied or provided by the Seller pursuant to the manufacture of the Goods or of any adaptation by any person of any information, advice, results, product, process or system.
11.3 Further and in any event of the Seller’s total liability in respect of all breaches of this Contract and/or the matters set out in paragraph 11.2 above shall in no circumstances exceed the sum of £2 million in aggregate.
11.4 Nothing is this clause shall be taken to exclude or restrict any liability of the Seller for death or personal injury resulting from the negligence of the Seller or its employees, servants or agents or to exclude or restrict any other liability of the Seller which cannot by law be excluded or restricted.
11.5 The Seller does not give any express or implied representations and this Contract does not contain any express or implied terms, warranties or conditions as to:
11.5.1 The quality or fitness for a particular purpose of any Goods (or of any design, workmanship, materials or parts used in connection therewith) or as to their correspondence with any description or sample; or
11.5.2 The accuracy, sufficiency or completeness of any work performed, information provided or advice given pursuant to, in connection with or as a result of the use of the Goods.
11.6 In particular, there are hereby expressly excluded all conditions, warranties and other terms which might otherwise be implied (whether by common law, by statute or otherwise) as to any of the matters set out in paragraphs 11.5.1 and 11.5.2 above. Without prejudice to the generality of the foregoing, there are hereby expressly excluded any terms, conditions or warranties which would
otherwise be implied by sections 13 to 15 of the Sale of Goods Act 1979 (as amended) or by sections 3 to 5 of the Supply of Goods and Services Act 1982 (as amended), or by any statutory modifications, amendments or re-enactments thereof.
12. Force Majeure
12.1 Except for payment of money due, neither Party shall be liable for failure to perform its obligations under this Contract, nor give rise to any claim for compensation or damage nor be deemed to be in breach of this Contract, if and to the extent that such failure arises from an occurrence or circumstances reasonably beyond the control of that Party (Force Majeure).
12.2 If either Party is affected by Force Majeure that Party shall give written notice without delay to the other Party of the nature and extent of the circumstances and the date and anticipated duration of the suspension.
12.3 If such Force Majeure causes a delay of sixty (60) days or more and such delay may reasonably be anticipated to continue, then either Party may terminate this Contract forthwith.
12.4 The Party serving notice pursuant to Clause 12.1 shall notify the other in writing as soon as the performance of its obligations is no longer affected by Force Majeure and the parties shall resume the performance of their respective obligations each to the other with effect from the date so notified.
13.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
13.1.1 The Seller is given full control of any proceedings or negotiations in connection with any such claim;
13.1.2 The Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
13.1.3 Except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld); or
13.1.4 The Buyer shall do nothing which would or might invalidate any policy of insurance of insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
13.1.5 The Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of such claim; and
13.1.6 Without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
14. Insolvency of Buyer
14.1 This clause applies if:
14.1.1 The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
14.1.2 An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
14.1.3 The Buyer ceases, or threatens to cease, to carry on business; or
14.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
14.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, 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.
Neither Party may assign, transfer or otherwise dispose of this Contract in whole or in part of any interest therein without the prior written consent of the other Party such consent not to be unreasonably withheld or delayed.
The various provisions of this Agreement are severable and if any provision hereof shall be held to be invalid or unenforceable shall not affect the enforceability of the remaining provisions of this Agreement.
Any notice required or permitted to be given by either Party to the other under these Conditions shall be in Writing addressed to that 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.
No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
The Contract shall be governed by the laws of England and the parties shall submit to the non exclusive jurisdiction of the English courts.
20. Rights of Third Parties
Notwithstanding anything to the contrary elsewhere in the Contract, no right is granted to any person who is not a party to the Contract to enforce any term of the Contract in his own right and the parties to the Contract declare that they have no intention to grant any such right.