1. Definitions In this Agreement the following words shall have the following meanings:
“Supplier” means Lister Lift Trucks Limited
“Client” means the client or customer of the Supplier
“Goods” means the goods to be purchased by the Supplier after agreement between the parties, including parts supplied in connection with repairs or maintenance
“Services” means as the case may be repairs, servicing and maintenance, and other services supplied to the Client by the Supplier pursuant to this Agreement
“Work” means the Services and the Goods that the Supplier shall provide for and to the Client.
2. Work and materials
The Supplier has agreed to provide the Services and/or the Goods to the Client described in the Order Form subject to the provisions of this Agreement which shall include matters set out in the Order Form.
3. Performance of the Work
3.1 Goods. On signature of the Order Form, the Supplier shall order Goods unless already in available stock.
3.2 Services. The Parties shall agree the time and place (if not specified in the Order Form) when the Services shall be performed, subject to the availability of the Supplier’s staff and agents and the availability and delivery of the Goods
3.3 The Supplier shall use all reasonable endeavours to complete the Services by the Delivery Date or meet such other dates as agreed by the Parties.
3.4 for ordering or delivery of the Goods; for any times for when the Services are to be performed, whether given or agreed to by the Supplier; or for the length of time that any of the Services are to take; or for the Delivery Date or such other date as agreed by the Parties.
4. Sums to be paid and payment
4.1 Goods. When the Goods are ordered, the Supplier shall invoice the Client for the price specified by the supplier of the Goods plus the cost of any insurance, packaging, transportation, and delivery charges. The Client shall pay the invoice on the Payment Date.
4.2 Services. Payment for sums due for the Services shall be made on the Payment Date.
4.3 All amounts stated are exclusive of VAT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Client.
4.4 If payment of any sum due under this Agreement is not received by any due date specified for that sum, the Supplier shall be entitled to:
4.4.1 charge interest on the outstanding amount at the rate of 5% per annum above the base lending rate of the Supplier’s Bank, for the time being, accruing daily;
4.4.2 require that the Client make a payment in advance of any Services or part of the Services not yet supplied;
4.4.3 not provide any further Services or part of the Services; or
4.4.4 terminate this Agreement as provided for in Clause 13.
4.5 The Supplier shall have a lien on any property of the Client in its possession until all sums due to the Supplier have been paid.
4.6 In the case of an estimate or quotation the offer to supply at the price referred to shall remain open for seven days and in the case of Goods in stock the Supplier reserves the right to sell elsewhere at any time.
5. Delivery of the Goods
5.1 The Supplier shall deliver the Goods to the address specified in the Order Form on the date that the Supplier shall specify for the delivery.
5.2 For the avoidance of doubt, the Delivery Date or other date is given under this Agreement is no more than an estimate, and shall not be of the essence.
6. Risk
The risk in the Goods shall pass to the Client on the Delivery Date.
7. Property
7.1 The property in the Goods shall not pass to the Client until the Supplier has received the payment of the sums due in regard to the Goods (and any other sums that are due or owing to the Supplier) in full, whether or not delivery has been made.
7.2 So long as the property in the Goods remains in the Supplier shall have the right without prejudice to the obligation of the Client to purchase the Goods to take repossession of the Goods and for that purpose to go upon any premises occupied by the Client and to effect entry if the premises are secured (for which licence is hereby granted to the Supplier) And if the case requires, to sever the Goods from the Client or other the premises and from any ancillary site installations taking reasonable care in so doing but otherwise without liability for loss and damage thereby arising.
7.3 The Supplier may maintain an action for the price of the Goods notwithstanding that property in the Goods may not have passed to the Client and for the expense of recovering Goods under the powers contained in the preceding sub-Clause
7.4 The provisions of this Clause 7 shall apply equally to any component parts or ancillary items supplied for use with or in any equipment (whether or not such equipment has been supplied by the Supplier) and the licence is hereby granted for the Supplier to remove or sever such components or items from any equipment or Goods of or in the possession of the Client in the event of non-payment as aforesaid.
8. Acknowledgement of examination In the case of the supply of second hand and refurbished Goods the Client acknowledges and agrees that:
8.1 The Supplier has given the Client a reasonable opportunity to inspect the Goods, the Client has inspected the Goods, and has satisfied itself as to the condition of the Goods. In the case of the supply of all Goods:
8.2 Save as mentioned in the Order Form, the Supplier has not given any warranty or condition as to the quality or fitness for any purpose of the Goods, and all conditions or warranties, express or implied (whether by statute or otherwise), are expressly excluded.
8.3 Acceptance of delivery of the Goods by the Client shall be conclusive evidence that the Client has examined the Goods and that the Goods are in conformity with the contract description, in good order and condition, of satisfactory quality and fit for any purpose to which they may be required by the Client.
9. The Client’s obligations
9.1 The Client acknowledges and agrees that for the Supplier to be able to provide the Services the Client shall:
9.1.1 carry out any Client action as may be specified in the Order Form and by the times and dates as set out therein;
9.1.2 co-operate with and assist the Supplier as the Supplier reasonably requires (and to so instruct staff and agents);
9.1.3 provide to the Supplier such information and documentation as the Supplier reasonably requires;
9.1.4 obtain all health and safety approvals from such organisations and authorities which are required for the Goods to be installed and for the Services to be carried out;
9.1.5 make available to the Supplier the facilities, resources, working space, appropriate electric power and staff as the Supplier reasonably requires from time to time.
9.2 The Supplier may charge the Client for any additional reasonable costs and expenses incurred by the Supplier caused by the Client’s instructions, failure to provide instructions or failure to comply with Clause 9.1.
9.3 In the case of Services; the Client shall on the Payment Date pay to the Supplier the cost to the Supplier (plus the Supplier’s reasonable handling charge) of Goods provided by the Supplier which are necessarily incidental to the proper provision of the Services. If during the provision of Services the Supplier in its absolute discretion considers it appropriate to seek the Client’s further instructions before proceeding further with Work, and the Client then instructs the Supplier not to proceed further, then the Client shall pay the Supplier’s proper charges and expenses up to that point including where appropriate the Supplier’s proper costs of effecting a return of Goods.
10. Defects in the Goods
This provision applies where a warranty period is specified in the Order Form.
10.1 The Supplier will, at its option, either make good by repair or by the supply of a replacement, where defects which, under proper use, appear in the Goods within the period specified in the Order Form provided that:
10.1.1 the Client notifies the Supplier in writing of the claimed defects immediately on their appearance; and
10.1.2 the Supplier is satisfied that the defects arose solely from faulty design, materials or workmanship; and
10.1.3 if required by the Supplier, the Goods or any part of the Goods claimed to be defective are returned to the Supplier
10.2 The repaired or replacement Goods will be delivered to the Client to the original place of delivery, but otherwise subject to the provisions of this Agreement
10.3 As an alternative to Clause 10.1, the Supplier shall be, in its absolute discretion, entitled to return the sums paid by the Client for the Goods to the Client if the Client has already paid such sums when the claimed defect is notified by the Client to the Supplier.
10.4 The remedy provided in this Clause 10 is without prejudice to the other provisions of this Agreement.
11. Warranties, liability and indemnities for the Services
11.1 The Supplier warrants that it will use reasonable care in performing the Services and to a standard which conforms to generally accepted industry standards and practices.
11.2 If any part of the Services is performed negligently or in breach of the provisions of this Agreement then, at the request of the Client (if the request is given within one month of the Completion Date), the Supplier will re-perform the relevant part of the Services, always subject to Clause 12.1 and Clause 12.2 below.
12. Liability generally
12.1 Except in the case of death or personal injury caused by the Supplier’s negligence, the Supplier’s liability under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the sums paid to the Supplier under this Agreement.
12.2 Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.
12.3 Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
13. Termination
13.1 The Supplier may terminate this Agreement if:
13.1.1 the Client does not pay the amount(s) due on the Payment Date;
13.1.2 the Client fails to carry out any Client action by the date given in the Order form.
13.2 Without prejudice to Clause 13.1 and any other remedies or rights, either Party may terminate this Agreement at any time by written notice to the other Party (“Other Party”) and the notice taking effect as specified in the notice:
13.2.1 if the Other Party is in material breach of its obligations under this Agreement, and where a breach is capable of remedy within seven days, the breach is not remedied within seven days by the Other Party receiving notice which specifies the breach and requiring the breach to be remedied;
13.2.2 if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
13.2.3 If this Agreement is terminated because of the reason specified in Clause 13.1 above, then the Client shall pay for all Work carried out up to the date of termination and all sums due for payment after the date of termination which arose from commitments entered by the Supplier for the performance of the Work prior to the date of termination.
14. General
14.1 Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party
14.2 Amendments
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
14.3 Assignment
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
14.4 Entire Agreement
This Agreement contains the whole agreement between the parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to the subject matter. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
14.5 Waiver
No failure or delay by the Supplier in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
14.6 Further assurance
Each Party to this Agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
14.7 Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
14.8 Notices
Any notice to be given under this Agreement shall be in writing and shall be sent by first-class mail or airmail, or by facsimile or email (confirmed by first class mail or airmail), to the address of the relevant Party set out at the head of this Agreement, or to the relevant facsimile number or such other address or facsimile number as that Party may from time to time notify to the other Party in accordance with this Clause
14.8.1 Notices sent as above shall be deemed to have been received three working days after the day of posting (in the case of inland first class mail), or seven working days after the date of posting (in the case of airmail), or on the next working day after transmission (in the case of facsimile messages, but only if a transmission report is generated by the sender’s facsimile machine recording a message from the recipient’s facsimile machine, confirming that the facsimile was sent to the number indicated above and confirming that all pages were successfully transmitted).
14.8.2 In proving the giving of a notice, it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
14.9 Law and Jurisdiction
The validity, construction and performance of this Agreement shall be governed by English Law and shall be subject to the exclusive jurisdiction of the English Courts.
14.10 Third Parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.