1. Interpretation
1.1 Definitions:
Business Day: a day, other than a Saturday, Sunday or public
holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any
Business Day.
Conditions: the terms and conditions set out in this document as
amended from time to time in accordance with clause 14.4.
Contract: the contract between the Supplier and the Customer for
the sale and purchase of the Goods and/or the Services in
accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or
Services from the Supplier.
Customer’s Delivery Location: means, where applicable, the
Customer’s delivery location for the Goods as referred to in the
Order.
Deposit: means the non-refundable deposit payable by the
Customer for the Good(s) as set out in the Order.
Delivery Location: has the meaning given in clause 5.2.
Force Majeure Event: an event, circumstance or cause beyond the
Supplier’s reasonable control including (without limitation):
(a) acts of God, flood, storm, drought, earthquake or other
natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war,
threat of or preparation for war, armed conflict,
imposition of sanctions, embargo, or breaking off of
diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic
boom;
(e) any law or any action taken by a government or public
authority, including imposing an export or import
restriction, quota or prohibition;
(f) collapse of buildings, breakdown of plant or
machinery, fire, explosion or accident; and
(g) non-performance or late performance by suppliers or
subcontractors; and
(h) interruption or failure of utility service.
Goods: the machinery and/or spare parts set out in the applicable
Order.
Goods Warranty Period: has the meaning given in clause 6.1.
Order: shall mean the Supplier’s written sales order documentation
in force from time to time to which these Conditions are referenced.
Services: means any repairs, fitting, inspection/testing, servicing or
any other services as set out in the applicable Order.
Specification: means the written specification for the Goods,
including any related plans and drawings, that is provided to the
Customer by the Supplier on or before the date of the Order or as
revised pursuant to clause 4.3, if applicable.
Supplier: Kranlyft UK Limited a company incorporated in England
and Wales (under company number 04468386) and whose
registered address is at Unit l, IO Centre, Cabot Park,
Avonmouth, Bristol, BS11 0QL, England.
Supplier Order Confirmation: means as defined in clause 2.3.
Supplier’s Website: means the Supplier’s website which can be
accessed at www.kranlyft.com.
1.2 Interpretation:
(a) A person includes a natural person, corporate or
unincorporated body (whether or not having separate
legal personality).
(b) A reference to a party includes its successors and
permitted assigns.
(c) A reference to legislation or a legislative provision is a
reference to it as amended or re-enacted. A reference
to legislation or a legislative provision includes all
subordinate legislation made under that legislation or
legislative provision.
(d) Any words following the terms including, include, in
particular, for example or any similar expression
shall be interpreted as illustrative and shall not limit the
sense of the words preceding those terms.
(e) A reference to writing or written excludes fax but not
email.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other
terms that the Customer seeks to impose or incorporate, or which
are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the
Goods and/or the Services in accordance with these Conditions.
The Customer is responsible for ensuring that the terms of the Order
and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier
sends an email to the Customer confirming its receipt and
acceptance of the Order (the “Supplier Order Confirmation”), at
which point and on which date the Contract shall come into
existence. Once the Contract has come into existence it cannot be
cancelled or modified by the Customer.
2.4 The Customer waives any right it might otherwise have to rely on
any term endorsed upon, delivered with or contained in any
documents of the Customer that is inconsistent with these
Conditions.
2.5 Any samples, drawings, descriptions, data or illustrations regarding
the Goods and/or Services on the Supplier’s Website are for the sole
purpose of giving an approximate idea of the Goods and/or Services
referred to in them. They shall not form part of the Contract nor have
any contractual force.
2.6 Nothing in these Conditions or implied by practice or course of
dealing shall place an obligation on the Supplier to accept any Order.
2.7 A quotation for the Goods and/or the Services given by the Supplier
shall not constitute an offer. A quotation shall only be valid for a
period of 20 Business Days from its date of issue.
3. Deposit
3.1 For Goods Orders, on or after the date of the Supplier Order
Confirmation, the Supplier shall issue an invoice to the Customer for
the Deposit. The Customer shall pay such invoice in full and in
cleared funds to a bank account nominated in writing by the Supplier
within 15 days of the date of invoice.
3.2 If the Customer fails to pay the Deposit when due then,
notwithstanding any other right or remedy of the Supplier, the
Supplier shall have the right to suspend all of its obligations under
the Contract pursuant to clause 10.2 or terminate the Contract with
immediate effect pursuant to clause 10.3.
3.3 The Deposit is non-refundable.
4. Goods
4.1 The Goods are described on the Supplier’s Website.
4.2 To the extent that the Goods are to be manufactured in accordance
with a specification supplied by the Customer, the Customer shall
indemnify the Supplier against all liabilities, costs, expenses,
damages and losses (including any direct, indirect or consequential
losses, loss of profit, loss of reputation and all interest, penalties and
legal and other professional costs and expenses) suffered or
incurred by the Supplier in connection with any claim made against
the Supplier for actual or alleged infringement of a third party’s
intellectual property rights arising out of or in connection with the
Supplier’s use of the Customer’s specification. This clause 4.2 shall
survive termination of the Contract.
4.3 The Supplier reserves the right to amend the Specification if
required by any applicable law or regulatory requirement, and the
Supplier shall notify the Customer in any such event.
5. Delivery of Goods
5.1 The Supplier shall ensure that delivery of the Goods is accompanied
by a delivery note that shows the date of the Order, all relevant
Customer and Supplier reference numbers, the type and quantity of
the Goods (including the code number of the Goods, where
applicable), special storage instructions (if any) and, if the Goods
are being delivered by instalments, the outstanding balance of
Goods remaining to be delivered.
5.2 Delivery of the Goods shall take place Ex Works ( Unit l, IO Centre,
Cabot Park, Avonmouth, Bristol BS11 0QL, England) Incoterms
2020 Rules (Delivery Location).
5.3 If the Customer fails to collect the Goods within 10 Business
Days of being requested to do so by the Supplier or, where the
Supplier has agreed in the Order to transport the Goods on to
the Customer’s Delivery Location, the Customer fails to give the
Supplier adequate delivery instructions within ten (10) Business
Days of being requested to do so by the Supplier then, without
limiting any other right or remedy available to the Supplier, the
Supplier may (1) store the Goods until the date of collection by
the Customer or the date the Goods are delivered by the Supplier
at the Customer’s Delivery Location (as the case may be) and
charge the Customer for the reasonable costs (including
insurance) of storage; and/or (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 in the Order or charge the Customer for any
shortfall below the price in the Order.
5.4 Any delivery dates referenced in the Order or elsewhere are
approximate only, and the time of delivery is not of the essence. The
Supplier shall not be liable for any delay in delivery of the Goods.
5.5 If the Supplier fails to deliver the Goods, its liability shall be limited
to the costs and expenses incurred by the Customer in obtaining
replacement goods of similar description and quality in the cheapest
market available, less the price of the Goods. The Supplier shall
have no liability for any failure to deliver the Goods to the extent that
such failure is caused by an act or omission of the Customer or a
Force Majeure Event.
5.6 The Supplier may deliver the Goods by instalments, which shall be
invoiced and paid for separately. Each instalment shall constitute a
separate contract. Any delay in delivery or defect in an instalment
shall not entitle the Customer to cancel any other instalment.
6. Quality of Goods & Warranty
6.1 Subject to clause 6.3, the Supplier warrants that on delivery, and for
a period of twenty-four (24) months from the date of delivery (Goods
Warranty Period), the Goods shall:
(a) conform in all material respects with the Specification;
(b) be free from material defects in design, material and
workmanship; and
(c) be of satisfactory quality (within the meaning of the
Sale of Goods Act 1979).
6.2 Subject to clause 6.3, if:
(a) the Customer gives notice in writing to the Supplier
during the Goods Warranty Period within twenty (20)
Business Days of the date of discovery that some or
all of the Goods do not comply with the warranty set
out in clause 6.1;
(b) the Supplier is given a reasonable opportunity of
examining such Goods; and
(c) the Customer (if asked to do so by the Supplier)
returns such Goods to the Supplier’s place of business
at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective
Goods, or refund the price of the defective Goods in full provided
that if the Customer gives a notice referred to in clause 6.2(a) above
in the twelve (12) month period after the date of the first anniversary
of the date of delivery of the applicable Goods then the Customer
shall on demand reimburse the Supplier’s reasonable travel
expenses incurred in connection with or arising out of the applicable
warranty claim.
6.3 The Supplier shall not be liable for the Goods’ failure to comply with
the warranty set out in clause 6.1 if:
(a) the Customer fails to comply with all the provisions in
clause 6.2.
(b) the Customer makes any further use of such Goods
after giving notice in accordance with clause 6.2;
(c) the defect arises because the Customer failed to follow
the Supplier’s or manufacturer’s oral or written
instructions as to the storage, commissioning,
installation, use or maintenance of the Goods or (if
there are none) good trade practice regarding the
same;
(d) the defect arises as a result of the Supplier following
any drawing, design or specification supplied by the
Customer;
(e) the Customer alters or repairs such Goods without the
written consent of the Supplier;
(f) the defect arises as a result of fair wear and tear, wilful
damage, negligence, or abnormal storage or working
conditions;
(g) the failure is caused by using the Goods with
anything other than t h e original manufacturer’s
parts and recommended oils and fuels;
(h) the failure does not affect the function or performance
of the Goods; or
(i) the Goods differ from the Specification as a result of
changes made to ensure they comply with applicable
statutory or regulatory requirements.
6.4 Except as provided in this clause 6, the Supplier shall have no
liability to the Customer in respect of the Goods’ failure to comply
with the warranty set out in clause 6.1. In respect of the Goods, any
remedies or rights of the Customer (under contract or at law) other
than those specified in this clause 6 are herewith excluded to the
fullest extent permitted by law.
6.5 The terms implied by sections 13 to 15 of the Sale of Goods Act
1979 are, to the fullest extent permitted by law, excluded from the
Contract.
6.6 These Conditions shall apply to any repaired or replacement Goods
supplied by the Supplier.
7. Title and risk
7.1 The risk in the Goods shall pass to the Customer in accordance with
Ex Works ( Unit l, IO Centre, Cabot Park, Avonmouth, Bristol
BS11 0QL, England ) Incoterms 2020 Rules. For the avoidance of
doubt, where the Supplier has agreed in the Order to transport the
Goods on to the Customer’s Delivery Location, any loss or damage
to the Goods incurred while the Goods are:
(a) being stored at the Delivery Location pending transit
to the Customer’s Delivery Location; or
(b) being loaded on to a vehicle by or on behalf of the
Supplier for transportation to the Customer’s Delivery
Location; or
(c) in transit to the Customer’s Delivery Location; or
(d) being unloaded at the Customer’s Delivery Location,
shall be at the Customer’s risk.
7.2 Title to the Goods shall not pass to the Customer until the Supplier
receives payment in full (in cash or cleared funds) for the Goods
(and any other goods that the Supplier has supplied to the Customer
in respect of which payment has become due), in which case title to
the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to the Customer, the Customer
shall:
(a) store the Goods separately from all other goods held
by the Customer so that they remain readily
identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or
packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep
them insured against all risks for their full price from
the date of delivery;
(d) notify the Supplier immediately if it becomes subject to
any of the events listed in clause 10.1(b) to clause
10.1(d); and
(e) give the Supplier such information as the Supplier may
reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the
Customer.
7.4 At any time before title to the Goods passes to the Customer, the
Supplier may require the Customer to deliver up all Goods in its
possession that have not been irrevocably incorporated into another
product and if the Customer fails to do so promptly, enter any
premises of the Customer or of any third party where the Goods are
stored in order to recover them.
8. Price and payment
8.1 The price of the Goods and/or Services shall be the price set out in
the Order, or, if no price is quoted, the price set out in the Supplier’s
current price list in force as at the date of delivery.
8.2 The price of the Goods:and/or Services excludes amounts in
respect of value added tax (VAT), which the Customer shall
additionally be liable to pay to the Supplier at the prevailing rate,
subject to the receipt of a valid VAT invoice.
8.3 The Supplier may invoice the Customer for the price of the Goods
and/or Services (less the value of any Deposit paid for the applicable
Goods) at any time prior to (or after) delivery or performance.
8.4 The Customer shall pay each invoice submitted by the Supplier:
(a) within thirty (30) days of receipt of the invoice or, if
earlier, on or before delivery of the Goods; and
(b) in full and in cleared funds to a bank account
nominated in writing by the Supplier, and
time for payment shall be of the essence of the
Contract.
8.5 If the Customer fails to make a payment due to the Supplier under
the Contract by the due date, then, without limiting the Supplier’s
remedies under clause 10, the Customer shall pay interest on the
overdue sum from the due date until payment of the overdue sum,
whether before or after judgment. Interest under this clause 8.5 will
accrue each day at 4% a year above the Bank of England’s base
rate from time to time, but at 4% a year for any period when that
base rate is below 0%.
8.6 All amounts due under the Contract shall be paid in full without any
set-off, counterclaim, deduction or withholding (other than any
deduction or withholding of tax as required by law).
8.7 If the Customer disputes an invoice, it must inform the Supplier in
writing within ten (10) Business Days after the date of the applicable
invoice.
9. Limitation & Exclusion of liability
9.1 References to liability in this clause 9 include every kind of
liability arising under or in connection with the Contract
including liability in contract, tort (including negligence),
misrepresentation, restitution or otherwise.
9.2 Nothing in the Contract limits or excludes any liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the
Sale of Goods Act 1979; or
(d) any other liability that legally cannot be limited or
excluded.
9.3 Subject to clause 9.2, the Supplier’s total liability to the
Customer shall not exceed the price received by the Supplier
for the applicable Good(s) and/or Services.
9.4 Subject to clause 9.2, the following types of loss are wholly
excluded:
(a) loss of profits;
(b) loss of time;
(c) loss of sales or business;
(d) loss of agreements or contracts;
(e) loss of anticipated savings;
(f) loss of use of the Good(s);
(g) loss or damage to property;
(h) loss of or damage to goodwill; and
(i) indirect or consequential loss.
9.5 This clause 9 shall survive termination of the Contract.
10. Termination
10.1 Without limiting its other rights or remedies, the Supplier may
terminate this Contract with immediate effect by giving written notice
to the Customer if:
(a) the Customer commits a material breach of any other
term of the Contract and (if such a breach is
remediable) fails to remedy that breach within 7 days
of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection
with its entering administration, provisional liquidation
or any composition or arrangement with its creditors
(other than in relation to a solvent restructuring),
obtaining a moratorium, being wound up (whether
voluntarily or by order of the court, unless for the
purpose of a solvent restructuring), having a receiver
appointed to any of its assets or ceasing to carry on
business or, if the step or action is taken in another
jurisdiction, in connection with any analogous
procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend,
ceases or threatens to cease to carry on all or a
substantial part of its business; or
(d) the Customer’s financial position deteriorates so far as
to reasonably justify the opinion that its ability to give
effect to the terms of the Contract is in jeopardy.
10.2 Without limiting its other rights or remedies and notwithstanding
anything to the contrary in the Contract, the Supplier may suspend
provision of the Goods under the Contract or any other contract
between the Customer and the Supplier if the Customer becomes
subject to any of the events listed in clause 10.1(b) to clause 10.1(d),
or the Supplier reasonably believes that the Customer is about to
become subject to any of them, or if the Customer fails to pay any
amount due under this Contract on the due date for payment.
10.3 Without limiting its other rights or remedies and notwithstanding
anything to the contrary in the Contract, the Supplier may terminate
the Contract with immediate effect by giving written notice to the
Customer if the Customer fails to pay any amount due under the
Contract on the due date for payment.
10.4 On termination of the Contract for any reason the Customer shall
immediately pay to the Supplier all of the Supplier’s outstanding
unpaid invoices and interest and, in respect of Goods delivered but
for which no invoice has been submitted, the Supplier shall submit
an invoice, which shall be payable by the Customer immediately on
receipt.
10.5 Termination of the Contract, however arising, shall not affect any of
the parties’ rights and remedies that have accrued as at termination,
including the right to claim damages in respect of any breach of the
Contract which existed at or before the date of termination.
10.6 Any provision of the Contract that expressly or by implication is
intended to come into or continue in force on or after termination of
the Contract shall remain in full force and effect.
11. Force majeure
If the Supplier is prevented, hindered or delayed in or from
performing any of its obligations under the Contract by a Force
Majeure Event it shall not be in breach of the Contract or otherwise
liable for any such failure or delay in the performance of such
obligations. The time for performance of such obligations shall be
extended by the period of any such delay.
12. Testing and Maintenance
For the avoidance of doubt, after delivery of the Goods all testing
and maintenance of the Goods is the sole responsibility of the
Customer.
13. Services, Quality and Warranty
13.1 Except as expressly set forth in the Order, the Supplier is not
obligated to provide any installation, maintenance, repair, or other
services in connection with the Contract or the Goods. In providing
any Services pursuant to this Contract, the Supplier’s technician
shall be entitled to rely on the Customer’s instructions, guidance,
and directions, and the parties agree such reliance is reasonable.
Except as set forth in the Order the Supplier shall charge its then
current hourly rates and prices for the material used in the
performance of such Services; the time spent for the purpose of
travelling to and from the work site as well as the waiting time spent
at the work site shall constitute working time. For overtime, night
work and work on Sundays or public holidays, the Supplier’s then
current surcharges shall apply. Travel expenses as well as out-of-
pocket expenses shall be charged and invoiced separately. If the
Supplier has agreed to provide Services, the Customer shall assist
the Supplier in the performance of such Services by providing (at its
sole expense and at such times and places as the Supplier may
require) such number and types of auxiliary personnel, equipment,
material and any other type of goods or support (e.g., winches, rails,
electricity, etc.) as may be necessary to perform the Services. Any
on-site infrastructure necessary for the performance of the Services
shall be completed prior to the arrival of the Supplier’s personnel at
the work site. Furthermore, it shall be Customer’s sole responsibility
to effect and maintain such adequate security measures on the work
site as may be necessary to properly protect any personnel and
equipment. The Supplier assumes no liability whatsoever with
respect to the acts or omissions of any auxiliary personnel assigned
to it for the performance of its services or for any damages to or
damages caused by any equipment, material and other goods put
at the Supplier’s disposal by the Customer.
13.2 The Supplier warrants that any Services will be performed with
reasonable skill and care. Any claim for a breach of this warranty
must be made within three (3) months after the date of performance
of the Services. The Customer’s sole remedy in the event of a
breach of this warranty will be re-performance of the Services by the
Supplier. Except as provided in this clause 13, the Supplier shall
have no liability to the Customer in respect of the Services failure to
comply with the warranty set out in this clause 13.2. In relation to
the Services, any remedies or rights of the Customer (under contract
or at law) other than those specified in this clause 13 are herewith
excluded to the fullest extent permitted by law.
13.3 Any terms implied by sections 3, 4 and 5 of the Supply of Goods and
Services Act 1982 are, to the fullest extent permitted by law,
excluded from the Contract.
13.4 These Conditions shall apply to Services re-performed supplied by
the Supplier.
14. General
14.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer,
mortgage, charge, subcontract, delegate, declare a
trust over or deal in any other manner with all or any
of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage,
charge, subcontract, delegate, declare a trust over or
deal in any other manner with any or all of its rights or
obligations under the Contract without the prior written
consent of the Supplier.
14.2 Confidentiality.
(a) Each party undertakes that it shall not at any time
disclose to any person any confidential information
concerning the business, assets, affairs, customers,
clients or suppliers of the other party, except as
permitted by clause 14.2(b).
(b) Each party may disclose the other party’s confidential
information:
(i) to its employees, officers, representatives,
contractors, subcontractors or advisers
who need to know such information for the
purposes of exercising the party’s rights or
carrying out its obligations under the
Contract. Each party shall ensure that its
employees, officers, representatives,
contractors, subcontractors or advisers to
whom it discloses the other party’s
confidential information comply with this
clause 14.2; and
(ii) as may be required by law, a court of
competent jurisdiction or any
governmental or regulatory authority.
(c) Neither party may use the other party’s confidential
information for any purpose other than to exercise its
rights and perform its obligations under or in
connection with the Contract.
14.3 Entire agreement.
(a) The Contract constitutes the entire agreement
between the parties.
(b) Each party acknowledges that in entering into the
Contract it does not rely on any statement,
representation, assurance or warranty (whether made
innocently or negligently) that is not set out in the
Contract. Each party agrees that it has no claim for
innocent or negligent misrepresentation based on any
statement in the Contract.
14.4 Variation. No variation of this Contract shall be effective unless it is
in writing and signed by the parties (or their authorised
representatives).
14.5 Waiver.
(a) Except as set out in clause 2.4, a waiver of any right
or remedy is only effective if given in writing and shall
not be deemed a waiver of any subsequent right or
remedy.
(b) A delay or failure to exercise, or the single or partial
exercise of, any right or remedy does not waive that or
any other right or remedy, nor does it prevent or restrict
the further exercise of that or any other right or remedy.
14.6 Severance. If any provision or part-provision of the Contract is or
becomes invalid, illegal or unenforceable, it shall be deemed
deleted, but that shall not affect the validity and enforceability of the
rest of the Contract. If any provision of the Contract is deemed
deleted under this clause 14.6 the parties shall negotiate in good
faith to agree a replacement provision that, to the greatest extent
possible, achieves the intended commercial result of the original
provision.
14.7 Notices.
(a) Save as expressly set out otherwise in the Contract,
any notice given to a party under or in connection with
the Contract shall be in writing and shall be delivered
by hand or by pre-paid first-class post or other next
working day delivery service at its registered office (if
a company) or its principal place of business (in any
other case).
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice
is left at the proper address; or
(ii) if sent by pre-paid first-class post or other
next working day delivery service, at 9.00
am on the third Business Day after
posting.
(c) This clause does not apply to the service of any
proceedings or other documents in any legal action or,
where applicable, any arbitration or other method of
dispute resolution.
14.8 Third party rights.
(a) The Contract does not give rise to any rights under the
Contracts (Rights of Third Parties) Act 1999 to enforce
any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract
are not subject to the consent of any other person.
14.9 Governing law. The Contract, and any dispute or claim (including
non-contractual disputes or claims) arising out of or in connection
with it or its subject matter or formation, shall be governed by and
construed in accordance with the laws of England and Wales.
14.10 Jurisdiction. Each party irrevocably agrees that the courts of
England and Wales shall have exclusive jurisdiction to settle any
dispute or claim (including non-contractual disputes or claims)
arising out of or in connection with the Contract or its subject matter or formation.