T&Cs – Sale of Goods – B2B

1. Definitions

“Acceptance Email” means the email sent by the Seller as described in clause 2.1. “Buyer” means the person or entity named in the PO as buying the Goods. “Contract” means the contract for the Buyer to buy the Goods from the Seller, incorporating the PO and these T&Cs. “Description” means the description of the Goods in the PO (or any document such as a catalogue or website link referenced in the PO). “Goods” means the goods described in the PO. “PO” means the Buyer’s purchase order or other document or communication requesting the Seller to supply the Goods, as amended (if applicable) by the Acceptance Email. “Price” means the price for the Goods set out in the PO. “Seller” means Obam Domestic Lifts Services Ltd (Company number 04062743). “T&Cs” means this document. “Warranty Period” means the warranty period for the applicable Goods set out in the PO. “Working Day” means a day between Monday and Friday, excluding bank holidays in England.

2. Contract Structure and Formation

1. The PO is an offer from the Buyer to buy the Goods from the Seller in accordance with these T&Cs. The Contract is formed when the Seller sends an email (“Acceptance Email”) to the Buyer confirming that the PO is accepted (where applicable, with any clarifications or amendments to the PO which are a condition of such acceptance). References in this Contract to the PO are to the PO as amended by the Acceptance Email.
2. The Contract shall be formed by these T&Cs and the PO (and, in the event of any conflict between them, the PO shall have precedence).
3. The Contract shall exclude any terms and conditions which are inconsistent with these T&Cs which either (i) the Buyer attempts to incorporate, whether by reference in the PO or otherwise; or (ii) would otherwise be implied by law, by course of conduct or dealing, or any other method.

3. Goods

1. The Seller warrants that on delivery and for the Warranty Period the Goods will materially comply with the Description.
2. The Seller may vary the Description to comply with any legal or regulatory requirement, and following such amendment the term “Description” shall be interpreted accordingly.
3. Subject to clauses 3.4 and 3.5, where the Buyer notifies the Seller in writing within two Working Days of discovery that any of the Goods do not comply with the warranty in clause 3.1 and allows the Seller reasonable access to examine the Goods, the Seller shall (at its option and expense) repair the applicable Goods, replace them with materially functionally equivalent replacement goods or refund to the Buyer an appropriate part of the Price having regard to the nature of the non-compliance and its effect on the Goods.
4. The repair, replacement or refund (as applicable) provided by the Seller under clause 3.3 shall be the Seller’s sole and exclusive liability, and the Buyer’s sole and exclusive remedy, in respect of (i) non-compliance of the Goods with the warranty in clause 3.1 and the effects on or to the Buyer of such non-compliance; and (ii) any other claim in respect of an actual or perceived defect or deficiency in the Goods.
5. The Seller shall not be obliged to take any action under clause 3.3 (or otherwise) where the non-compliance of the Goods with the warranty in clause 3.1 is caused or materially contributed to by (i) Buyer or user error or misuse of the Goods; (ii) attempts by the Buyer or any other person not authorised in writing by the Seller to repair, alter, modify or replace the Goods or any part thereof; (iii) accidental or deliberate damage to the Goods; (iv) fair wear and tear; (v) failure by the Buyer to fully comply with good practice in respect of the installation, commissioning, operation, storage and maintenance of the Goods; or (vi) continued use of the Goods by the Buyer after giving a notice under clause 3.3.
6. The Seller is not responsible for any costs relating to uncovering or gaining access to the applicable Goods, de-installing or removing the Goods, or returning and re-installing repaired Goods or replacement goods. These tasks can be performed by the Seller where the parties so agree in writing (such agreement to include the payment due to the Seller for such tasks), or by a third party on the instructions of and at the cost and risk of the Buyer.
7. As the Seller has given its warranty regarding compliance of the Goods with the Description in clause 3.1, all implied terms regarding quality or fitness for purpose of the Goods (including without limitation sections 13, 14 and 15 of the Sale of Goods Act 1979) are hereby excluded.
8. Where any replacement goods are delivered in the course of performing the Supplier’s obligations under clause 3.3, then: (i) the replacement goods shall be deemed to become part of the Goods upon delivery, and (ii) any replaced Goods (or parts thereof) shall become the property of the Seller to use or dispose of in its absolute discretion.
9. Where ancillary services are included in the PO, the Seller will perform them under the terms of this Contract. Any quotation or indication that the Seller will perform such services, whether for a certain price or at all, are dependent on the suitability of the Buyer’s electrical system, staircase and surrounding infrastructure. Where they are not suitable (in the opinion of the Seller), the Seller may either refuse to perform the relevant services or amend its pricing for the work in question.
10. Any remedial work arising as a result of the Seller’s proper performance of its obligations (such as redecoration, carpet replacement, re-plastering, reinstallation of handrails and so forth) will be for the Buyer to arrange at its own cost and risk. For the avoidance of doubt, it is the responsibility of the Buyer to remove any handrails to allow installation of the Goods, and if it has failed to do the Seller may at its option remove such handrail or require the Buyer to do so.

4. Delivery, Title and Risk

1. The Seller shall deliver the Goods to the address set out in the PO (or such other address as the parties agree).
2. Any delivery date in the PO is an estimate only. Time is not of the essence for delivery.
3. The Seller will notify the Buyer when the Goods are ready for delivery, and the date on which its delivery contractor expects to deliver them.
4. If delivery of the Goods is not accepted by the Buyer on arrival, then the Seller shall store them for a reasonable period at the Buyer’s cost and expense. The Seller reserves the right to charge actual costs (including storage, insurance and lost time for its installation team), but the parties agree that a reasonable pre-estimate of loss in these circumstances is £495 plus VAT per day (or part-day) of delay, and so at its discretion, the Seller may simply charge this amount in lieu of actual costs.
5. The Seller may, at its discretion, deliver the Goods by instalments.
6. Title to the Goods shall not pass to the Buyer until the latter of: (i) delivery of the Goods, and (ii) payment in cleared funds of the full Price.
7. Risk in the Goods shall pass to the Buyer upon delivery of the Goods (and shall pass in respect of each instalment of Goods on delivery of that instalment, where applicable).

5. Price, Invoicing and Payment

1. The Seller’s standard terms of invoicing and payment are that it shall issue an invoice for the Price at any time on or after the date of the Acceptance Email, with all invoices being due for payment 14 days after issue. These standard terms shall apply save where a different invoicing and payment arrangement or schedule is set out in the PO.
2. The Price does not include VAT. VAT at the applicable rate from time-to-time shall be added to the Price.
3. Each invoice shall be paid into the Seller’s bank account detailed in the invoice in cleared funds.
4. Where any invoice has not been paid in full by the applicable due date, the outstanding sum shall accrue interest daily at a rate of 8% per annum above the Bank of England base rate from time-to-time until the full amount (including interest) has been received by the Seller in cleared funds. Where any invoice is outstanding at the point of delivery, the Seller may delay delivery (without incurring any liability to the Seller thereby) until such invoice has been paid in cleared funds, even where such invoice has not yet become due.

6. Suspension and Termination

1. The Seller is entitled, upon giving written notice to the Buyer, to suspend or terminate the Contract (and any other contract between the Seller and the Buyer) if (i) the Buyer materially breaches the Contract or the law; (ii) the Buyer fails to pay any sum due under this Contract on time; or (iii) the Seller (acting reasonably) forms the view that the Buyer is for any reason unable or unwilling to perform its obligations under the Contract.
2. If the Contract is terminated, all outstanding invoices of the Seller shall become due on the date of such termination. Where any part of the Price has not yet been invoiced, the Seller may (at its option) in respect of that part of the Price: (i) invoice the Price or applicable part of the Price in respect of Goods which are ready for delivery; and/or (ii) in respect of Goods which are not ready for delivery, invoice the Buyer a reasonable portion of the Price (or that part of the Price, as applicable) having regard to the proportion of the costs incurred by the Seller to date in performing that part of the Contract (including its time at the Seller’s standard rates) as compared to the Seller’s total anticipated cost of performing its obligations hereunder in respect of the applicable Goods or part thereof. In each such case, the applicable invoice(s) will be due immediately upon issue to the Buyer.
3. The Buyer is not entitled to cancel the Contract once entered into, save with the Seller’s consent. Any such consent will be subject to receipt of a cancellation fee of not less than £500 plus VAT, along with any other costs and expenses notified to the Buyer by the Seller.

7. Force Majeure

1. The Seller shall have no liability whatsoever to the Buyer in respect of any partial or total failure by the Seller to perform one or more of its obligations under the Contract, to the extent that such failure is caused or materially contributed to by any event or circumstance described in clause 7.2 (“No-fault Event”).
2. A No-fault Event shall be any event or circumstances beyond the reasonable control of the Seller, including without limitation: (i) failure or default of a subcontractor or delivery contractor; (ii) pandemic or epidemic; (iii) governmental or other official instruction, rule, advice, regulation or legislation; (iv) weather, fire, building damage, accident or flood; or (v) act, omission or default of the Buyer, its employees, agents or contractors.

8. Limitation of Liability

1. Subject to clause 8.4, the Seller’s total aggregate liability to the Buyer shall not exceed the Price.
2. Subject to clause 8.4, the Seller shall have no liability whatsoever to the Buyer in respect of (i) loss of revenue, income or profits; (ii) loss of business or contracts; (iii) loss of opportunity; (iv) loss of savings or anticipated savings; (v) loss of or damage to reputation or goodwill; (vi) loss of or corruption/damage to information or data; or (vii) indirect or consequential loss or damage.
3. The Buyer shall indemnify the Seller from and against any and all liability to any person or entity acquiring or using the Goods after the Buyer which is either: (i) in excess of the liability that the Seller would owe the Buyer under this Contract if the applicable claim were made by the Buyer; or (ii) in duplication of liability owed by the Seller to the Buyer.
4. Nothing in this Contract is intended to impose, nor shall be construed as imposing, any limitation or exclusion of liability to the extent that such a limitation or exclusion cannot legally be imposed.
5. The limitations and exclusions of liability in this clause 8 apply to all liability arising out of or relating to the Contract or its subject matter, including without limitation liability under tort (including negligence), contract and any other legal theory.
6. The Seller will not be responsible for servicing or maintaining the Goods after the Warranty Period unless the Buyer has purchased a separate Service Agreement.

9. General

1. The Contract (including any documents incorporated by reference in the PO) comprises the entire agreement between the parties in respect of its subject matter. No representations, promises or assurances outside the Contract shall have any effect.
2. Any delay by the Seller in exercising a right under this Contract shall not waive such right.
3. The Contract can only be varied by agreement in writing between the parties.
4. The Seller is entitled to sub-contract, assign or transfer any of its rights or obligations under this Contract. The Buyer may not subcontract, assign or transfer any of its rights or obligations under the Contract without the Seller’s prior written consent.
5. Written notices under this Contract shall be sent by first class post carrying proof of postage to that party’s registered address (if a company) or trading address (otherwise).
6. Written notices shall be deemed received at 9.00AM on the second Working Day after posting a correctly addressed letter via first class recorded postage service.
7. This Contract, and any disagreement, dispute or action of any sort arising out of or relating to the Contract (or its subject matter) (together, “Dispute”) shall be governed by and construed in accordance with the laws of England and Wales.
8. Each party irrevocably agrees that the English Courts shall have exclusive jurisdiction to settle any Dispute.