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Conditions of Contract


CONDITIONS OF CONTRACT governing all contracts for the sale or supply of goods or services by Kidde Graviner Limited ("the Company"). In these Conditions:

  1. "Buyer" means any person at whose request goods or services are supplied by the Company and "Contract" means a contract between the Company and the Buyer for the sale and purchase of goods; and "Goods" means any goods or replacements therefore together with any services / workmanship supplied to the Buyer under the Contract; references to any statutory provision shall be construed as references to such provision as amended, consolidated or re-enacted (without substantial amendment) from time to time. The headings are for convenience only and shall not affect construction of these Conditions.

  2. These conditions shall apply to every contract entered into with the Company except as varied by express agreement in writing singed by a director or authorised person on behalf of the Company.



Formation & Parties
  1. The Buyer's order (in whatever manner communicated) to the Company is an offer to enter into a contract to purchase the Goods upon these Conditions. Acceptance occurs and the Contract is formed only upon the Company despatching to the Buyer its Acknowledgement of Order. Any terms or conditions proffered at any time by the Buyer are hereby excluded.

  2. A quotation by the Company does not constitute an offer. Quotations are valid for the period of 30 days from date of issue and may be withdrawn at any time.

  3. The Buyer shall not assign the benefit of the Contract without the Company's prior written consent. The Company shall be entitled to sub-contract all or any part of the Contract as it may think fit.

  4. The Contract is not cancellable by the Buyer without express written agreement of a director or other authorised person on behalf of the Company and subject to para 1(e) below.

  5. If the Company agrees cancellation by the Buyer, the Buyer shall indemnify the Company in full against all expenses incurred up to the time of cancellation together with a reasonable amount by way of liquidated damages for breach of contract as specified by the Company, each sum being acknowledged by the Buyer as representing a genuine pre-estimate of the Company's loss of profit and not in any event to exceed 15% of the Contract price.



Price
  1. Prices quoted for inland orders are ex-works and exclusive of Value Added Tax (VAT).

  2. Prices quoted for export orders are ex-works or agreed at the time of quotations as FOB UK port or airport. Any orders requiring delivery overseas CIF to be agreed at the time of quotation or acceptance of order and shall be priced accordingly.

  3. The orders will be priced firm fixed price or subject to an agreed variation of price dependent on the time scale and prevailing economic conditions.

  4. The Company reserves the right to vary the price of Goods by any amount attributable to a change in or insufficiency of Buyers instructions and those relating to duties, taxes, exchange rates and costs of whatever nature including (but not restricted to) those applicable to yearly price lists where the price is determined by the date of delivery.



Delivery

  1. Unless otherwise agreed in writing delivery dates are estimates only. Time of delivery is not of the essence of the Contract. Unless otherwise stated, delivery periods commence from date of Acknowledgement of Order. The Company shall use its reasonable endeavours to delivery the Goods by the stated delivery date, but may suspend or delay delivery and shall not be liable for any loss whatsoever in the event of late delivery or non-delivery of Goods or any instalment owing to any occurrence whatsoever beyond its control. The Buyer shall not be entitled to refuse to accept late delivery or treat late delivery as a breach of contract.

  2. The Company may at its option deliver by instalments; each instalment shall constitute a separate contract on these Conditions. Default in delivery or defect in any one such instalment shall not entitle the Buyer to repudiate the Contract nor to cancel subsequent instalments.

  3. (i) In respect of Goods "delivery" means:

    1. Time of loading on to collection vehicle at Company's premises; or

    2. Time of despatch from Company's premises; or

    3. The eighth day after notification to Buyer that the Goods are ready for despatch whichever is the earliest.

  4. (ii) Where the Contract provides for installation or commissioning work (a "with Installation" Contract), delivery means date of commissioning of Goods, or, where Goods form part only of a larger installation, date of completion of work on that part being provided by the Company pursuant to the Contract. In each case risk shall pass upon delivery.

  5. If the Buyer has failed to collect Goods on the expiry of the seventh day following notification of readiness for despatch or has failed to take delivery, the Company shall be entitled to treat the Contract as repudiated by the Buyer. Until the Contract is so terminated the Company may, at its option, either store the Goods itself or have them stored by third parties on such terms as it in its absolute discretion thinks fit. The cost of storage and any additional transportation will be added to and form part of the price. If the Company elects to treat the Contract as repudiated in accordance with this Condition it shall (without prejudice to its rights and remedies in respect of such repudiation) be entitled to sell the Goods and retain the proceeds of the sale.

  6. In respect of credit, stated delivery periods shall commence only upon receipt of a letter of credit complying in all respects with the Company's requirements.


Loss Or Damage In Transit
  1. The Company shall not be liable for loss or damage to Goods in transit.



Inspection
  1. The Buyer shall inspect the Goods immediately upon receipt and shall be deemed to have accepted the Goods as delivered if he fails to notify the Company of any defect or lack of conformity with the Contract within 21 days after receipt.

  2. The Company shall make good shortages notified to it under paragraph 5(a) as soon as reasonably practicable but shall not be liable for any other loss whatsoever arising from such shortage.

  3. The Company's liability for Goods lost or damaged in transit shall in all circumstances be limited to (at the Company's option) the remedying, replacement or crediting the Buyer with the invoice value of the Goods in question.


Warranty
  1. Unless otherwise expressly warranted by the Company in writing, the Company's warranty in respect of the Goods is as set out in this Condition ("Warranty"). The warranty period in respect of the Goods is one of the periods set out below (the "Warranty Period").

    1. Twelve (12) months from the date of despatch from Company's premises; or

    2. Twelve (12) months from date of notification from Company to Buyer that Goods are ready for despatch; or

    3. In the case of workmanship or goods supplied pursuant to a with Installation Contract, twelve months from delivery as defined in sub-para 3 c) (ii) above.

  2. If within the relevant Warranty Period a material defect in the Goods shall be discovered and:

    1. The Buyer notifies the Company within fourteen days after discovery giving particulars and either at its own expense and risk returns the Goods to the company; or (at the Company's sole option) permits the Company to inspect the same; and

    2. Such defect is proven to have risen from faulty materials employed or workmanship carried out by the Company existing but not discoverable upon inspection at time of receipt, then the Company shall remedy defects, supply replacements or, at its option, credit the Buyer's account with the Company or refund to the Buyer the purchase price paid for the defective Goods.

  3. The Company's liability under the Warranty applies only to defects appearing before the Buyer makes any modification or alteration to the Goods and whilst the Goods are being properly used or stored in accordance with the Company's instructions. In particular (but without limitation) the Company shall not be liable in the case of defects arising from normal deterioration or improper or faulty handling, operation or processing by the Buyer or any third party.

  4. The Warranty does not extend to materials or components forming part of the Goods which are not of the Company's manufacture. In respect of such items the Buyer shall be entitled only to the benefit of any manufacturer's warranty or guarantee the benefit of which the Company is able to obtain.

  5. Where the Buyer has entered into a maintenance agreement with the Company in respect of the Goods, the Company shall not be liable under the Warranty unless the Buyer has complied in all material respects with its obligations under such maintenance agreement.



Items Supplied By Buyer

  1. The Buyer shall be liable for all drawings, specifications and instructions issued to the Company with orders, or pursuant to the Contract and shall indemnify and keep indemnified the Company against all loss directly or indirectly arising out of any error in or omission from such drawings, specifications and instructions and against all costs claims demands and expenses whatsoever in respect of the infringement or potential infringement of any patent, copyright, registered design or other third party right arising out of the Company's use of such drawings, specifications or instructions.


Limits of Liability

  1. The Goods are supplied strictly on the terms that the Buyer has satisfied itself of their suitability for its purposes. The Buyer acknowledges that all specifications and details in catalogues, quotations or acknowledgements of order or similar documents or by word of mouth and all forecasts of performances, howsoever given, are approximate only and do not form part of the Contract and that in respect of such specifications, details and forecasts the Company shall be under no liability nor shall the Buyer be entitled to any remedy under the provisions of the Misrepresentation Act 1967.

  2. The Company's liability under Conditions 5 & 6 shall be accepted by the Buyer in lieu of any warranty or condition, whether express or implied by law, as to the quality or fitness for any particular purpose of the Goods.

  3. The Company shall not be liable, whether by way of indemnity or by reason of breach of contract, tort or breach of statutory duty or in any other manner for consequential or indirect loss of whatever nature suffered by the Buyer or for special damages, loss of use (whether complete or partial), of the Goods, or loss or profit or of any contract.

  4. Nothing in this Condition shall be construed as limiting or excluding the Company's liability under Part 1 of the Consumer Protection Act 1987 or for death or personal injury resulting from its negligence (as defined in Section 1 of the Unfair Contract Terms Act 1977).


Retention of Title

Until the Company has received payment in full of all sums owed to it on any account by the Buyer, whether arising out of this or any other contract, "property and title" to the Goods shall remain in the Company, such Goods are referred to in this condition as "retained goods".

  1. Retained goods:

    1. Shall be at the Buyer's risk, insured by the Buyer from the date of delivery at its own expense for their full replacement value against all usual risks; and kept safe in good conditions and stored separately and clearly identifiable as the Company's property and with all identifying marks intact and legible; and

    2. May, subject to paragraph 9(2) below be used or sold by the Buyer in the ordinary course of its business on the basis that the Buyer shall hold the proceeds of sale in trust for the Company absolutely and account to the Company therefore, and, pending such accounting, keep such proceeds of sale in a separate bank account and not mix the same with any other monies.

  2. The Buyer's powers of use and sale of retained goods shall terminate:

    1. Forthwith on notice from the Company if the Buyer is in default of any of its obligations under this or any other contract with the Company or if the Company has reasonable doubts as to the ability or willingness of the Buyer to pay any sum to it on the due date; and

    2. Automatically upon the occurrence of any of the events specified in paragraph (3) below ("The Events").

  3. The Events are:

    1. If the Buyer causes a meeting of or makes any arrangement or composition with its creditors; or

    2. If the Buyer becomes insolvent or appears to be unable to pay a debt or to have no reasonable prospect of paying a debt; or, being a company, appears unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1968);

    3. If there is presented a petition for the winding up of the Buyer or for the appointment of an Administrator of its undertaking; or

    4. If the Buyer has an Administrator or Administrative Receiver appointed over any of its assets or undertaking or a winding up order made against it or it goes into voluntary liquidation (otherwise than for the purposes of bona fide reconstruction or amalgamation of a solvent company).

    5. If any creditor serves upon the Buyer a statutory demand;

    6. If a proposal to enter into a voluntary arrangement is made with respect to the Buyer pursuant to Section 1 of the Insolvency Act 1986 or if the Buyer applies to the court for an interim order pursuant to section 252 of the Insolvency Act 1986; or

    7. If any creditor of the Buyer serves upon the Buyer a formal notice of demand or any notice the effect of which is to call in a loan or facility.

  4. The Company may, at any time on giving prior notice, enter the Buyers premises for the purposes of inspecting retained goods and identifying them as the Company's property and the Buyer irrevocably authorises the Company to enter upon its premises for that purpose; and

  5. Upon suspension and revocation or determination of the Buyer's power of sale and use under this Condition the Buyer shall place all the retained goods in its possession or under its control at the Company's disposal and shall be deemed irrevocably to authorise the Company to enter upon any of the Buyer's premises, with or without vehicles, for the purpose of removing such goods.

  6. The repossession of retained goods by the Company in accordance with this Condition shall be without prejudice to all or any of the Company's other rights against the Buyer under the contract.



Payment

  1. Subject to satisfactory trade, banker's and other requisite references, and where no other terms of payment have been specifically agreed in writing, the Company's terms for inland orders are cash payment in full without deduction or set-off to be made within 30 days after the date of invoice.

  2. Unless otherwise specifically agreed in writing, payment for export orders shall be by irrevocable letter of credit confirmed by a London Clearing Bank acceptable to the Company and on presentation of the bills of lading and issued under the Incoterms then in force.

  3. No discount or allowance will be made unless specifically stated by the Company in writing. Interest will be charged on all sums due under or by way of damages for breach of the contract at the rate of 2.5% per annum above the base rate of National Westminster Bank Plc from time to time in force and shall be calculated and accrue on a day to day basis from the date on which payment fell due until payment (whether made before of after judgement has been obtained by the Company against the Buyer).

  4. Time for making payment shall be of the essence of the Contract.

  5. The Company may at any time, in its absolute discretion, appropriate any payment made by the Buyer in respect of goods to such outstanding debt as the Company thinks fit, notwithstanding any purported appropriation to the contrary by the Buyer.

  6. The Company shall be entitled without prejudice to its other rights and remedies to cancel the Contract or to postpone any delivery until payment has been received, upon the occurrence of any of the Events or in the event that the Company has reasonable doubts about the Buyer's ability or willingness to pay on the due date.

  7. The Company reserves the right at any time at its discretion to demand security for payment before continuing with an order or delivering Goods or any instalment.

  8. VAT will be charged at the rate ruling at the time of despatch of the Goods or, if different, the basic tax point (as defined in regulations governing VAT from time to time in force).



Premises & Safety

  1. Where the Company's employees or agents require to enter premises occupied by the Buyer or other premises at which the Contract is required to be performed ("Premises") the Buyer shall:

    1. Ensure that the premises are ready and available so as to enable the Company to perform its obligations and provide to the Company, its employees and agents such information as the Company may reasonably require to permit the Contract to be performed at the Premises:

    2. Ensure that compliance is being made at the Premises with all relevant provisions of the Health and Safety at Work etc. Act 1974 and other legislation concerning safety and working conditions;

    3. Draw to the notice of the Company, its employees and agents any hazards on the Premises and issue appropriate warnings and safety equipment;

    4. Indemnify and keep indemnified the Company against all loss, costs, claims, damages, expenses and other liabilities whatsoever arising out of any failure in whole or in part of the Buyer to comply with its obligations under this paragraph 11(a).

  2. If the Buyer shall be in breach of any of its obligations under paragraph 11(a) above, the Company shall be entitled to suspend performance of the Contract until such breach shall be remedied to the reasonable satisfaction of the Company.




Force Majeure

  1. The Company shall not be liable to the Buyer if unable to carry out any provision of the Contract for any reason beyond its control including (but without limitation) Act of God, legislation, war, civil commotion, fire, flood, drought, failure of power supply, lock out, strike, stoppage or other action by employees or third parties in contemplation or furtherance of any dispute or owing to any inability to procure parts or material required for the performance of the Contract.



No Waiver

  1. Any failure by the Company to enforce any or all of these Conditions shall not be construed as a wavier of the Company's rights.



Notices

  1. Any notice under these Conditions shall be properly given in writing and sent by first class post, telex or facsimile to the address of the intended recipient as stated in the contract or to such address as the Company and the Buyer from time to time notify to each other as their respective addresses for service and shall be deemed served in the case of postal notice, on the expiry of 48 hours from time of posting, in the case of telex on the recording of the "answer back" code on the sender's machine, and in the case of facsimile, on the expiry of 15 minutes from completion of transmission by the sender.



Construction & Jurisdiction

  1. English Law shall govern construction and operation of the contract and the Buyer agrees to submit to the non-exclusive jurisdiction of the English Courts.

  2. These conditions shall apply to every contract entered into with the Company except as varied by express agreement in writing singed by a director or authorised person on behalf of the Company.
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