Propelair Spares - Terms and Conditions

Terms and Conditions

Definitions and interpretation

1.1 In this Agreement:

"Agreement" means these terms and conditions and the Quotation;

"Customer" means the person, firm or company wishing to purchase Products from Propelair, as indicated by its purchase order or acceptance of Quotation;

"Price" means the price payable by the Customer for the Products in accordance with Clause 7 below;

"Products" means the 1.5 litre flush-toilet offered for sale by Propelair under the trade mark Propelair, in the quantities

specified in the Quotation;

"Propelair" means Phoenix Product Development Limited (t/a Propelair), a company registered in England and Wales with company number 03681995, whose registered office is at Unit 1 West Point, 11 Durham Road, Basildon, Essex, SS15 6PH;

"Quotation" means a written quotation, on Propelair’s headed paper, for the supply (with or without installation) of the Products;

"Services" means the installation and/or commissioning services to be provided by Propelair in relation to the Products, as specified in the Quotation.

1.2 Where the context so admits or requires words denoting the singular include the plural and vice versa and words denoting any gender include all genders.

1.3 References to “Clauses” are to the clauses of this Agreement. Clause headings are purely for ease of reference and do not form part of or affect the interpretation of this Agreement.

2 The Agreement

2.1 By approving a Quotation, the Customer shall be deemed to have accepted the terms and conditions of this Agreement, which shall govern the supply of such Products to the exclusion of any other terms and conditions (including without limitation any terms and conditions of the Customer, whether contained on the Customer’s purchase order or otherwise).

2.2 Propelair shall be entitled to assume that any person approving a Quotation on behalf of the Customer is authorised to do so and to bind the Customer to this Agreement.

3 Quotations

3.1 Propelair’s Quotation constitutes an offer by Propelair to supply the Products and, if applicable, Services specified in that Quotation. No binding contract for the supply or purchase of the Products shall be formed until the Customer has indicated its approval of the Quotation by signing and returning the same to Propelair, or by issuing a purchase order on the Customer’s headed paper, referring to the relevant Quotation. Propelair may cancel any Quotation that is not approved within 60 days.

3.2 Where Propelair is not providing installation services in respect of the Products, the Customer shall be responsible, prior to accepting the Quotation, for checking the dimensions, connections, fixings, wiring and plumbing requirements of the Products to ensure that there will be sufficient space and plumbing connections for them at the delivery/installation site(s).

3.3 Whether or not Propelair is providing installation services in respect of the Products, the Customer shall be responsible for ensuring that an appropriate electrical supply is available for the Products at the installation site(s).

3.4 In all cases the Customer shall be responsible, prior to accepting the Quotation, for satisfying itself that the Products are suitable for the Customer’s requirements.

3.5 Once the Customer has approved the Quotation, it shall be bound to purchase (and Propelair shall be bound to supply) the Products and Services (if any) specified in that Quotation. Once approved, the Quotation may not be varied or cancelled without Propelair’s prior written consent.

4 DELIVERY

4.1 Prices for Products are quoted ex works.

4.2 Unless otherwise agreed in writing between the parties, delivery of the Products shall be arranged by Propelair at the Customer’s expense.

4.3 Delivery shall be to the delivery address(es) specified on the Quotation.

4.4 The Quotation shall give an estimate of the likely date or dates for delivery of the Products, based on Propelair’s confirmed production schedules. These dates are offered as guidance only, unless a guaranteed delivery date has been expressly agreed with the Customer.

4.5 When the Products are ready for delivery, Propelair shall notify the Customer of the planned delivery date (by email) and the Customer shall be asked to confirm the proposed date. If the Customer does not accept the delivery date proposed by Propelair, Propelair shall suggest an alternative.

4.6 Once the Customer has confirmed the delivery date, Propelair shall arrange delivery of the Products on that date, and the

5 SERVICES

5.1 Where Propelair has agreed to provide installation services:

(a) Propelair shall conduct an installation survey at the proposed installation site(s) (unless it is deemed unnecessary for example where toilets have already been installed on site), prior to delivery;

(b) Propelair shall un-install and remove any existing toilet fittings;

(c) Propelair shall install and test the Products at the installation site(s) on the agreed delivery date(s), and shall notify the Customer when such installation and testing is complete and the Products are ready to use.

5.2 Where Propelair has agreed to provide commissioning services, Propelair shall test the Products at the installation site(s) on the agreed delivery date(s), and shall notify the Customer when such testing is complete and the Products are ready to use.

5.3 Propelair shall procure that all Services are performed with reasonable skill and care, by persons with suitable skills and experience.

6 RISK AND TITLE

6.1 Risk in the Products shall pass to the Customer upon delivery in accordance with Clause 4 or, where Propelair has agreed to install the Products, upon completion of such installation in accordance with Clause 5.1(c).

6.2 Title to the Products shall not pass to the Customer and the Customer shall keep such Products as bailee for Propelair until Propelair has received full payment of the Price payable therefor and any other sums payable by the Customer to Propelair.

If the Customer is overdue in paying any sum payable to Propelair hereunder, Propelair shall be entitled (i) to enter the premises on which the Products are installed for the purpose of removing and repossessing any Products the title to which remains with Propelair (and the Customer hereby grants Propelair an irrevocable licence to enter such premises and carry out de-installation works for such purpose) or (ii) to require the Customer to de-install and return forthwith to Propelair, at the Customer’s expense, all Products the title to which remains with Propelair.

6.3 Immediately upon receipt of Products, the Customer shall inspect the Products and satisfy itself that the quantity and description of the Products are in accordance with the Quotation. If the Customer fails to notify Propelair of any shortage(s) or other error(s) on the day of receiving the Products, or if the Customer installs (or allows the installation of) and/or commences use of such Products, the Customer shall be deemed to have confirmed that the Products are in accordance with the Quotation.

7 PAYMENT

7.1 The Price shall be as specified on the Quotation, subject to clause 7.6 below.

7.2 Where the Quotation requires the payment of a deposit, the deposit must be received in cleared funds prior to the delivery of the Products.

7.3 Unless otherwise agreed, Propelair shall invoice the Customer for the Price (less the amount of any deposit paid in accordance with Clause 7.2 above) upon delivery (or, where Propelair has agreed to install the Products, upon completion of installation) of the Products.

7.4 Where the parties have agreed that the Products will be delivered in instalments, all such instalments shall be separately invoiced and paid for, without regard to subsequent instalments.

7.5 All invoices shall be payable within 30 days of the invoice date.

7.6 If the customer chooses to pay by credit card, Propelair reserves the right to add a surcharge to the invoice to cover the costs of receiving payment by credit card.

(a) accepting that delivery and ensuring that there is adequate access for delivery and (if applicable) installation at the delivery premises on the agreed date;

(b) notifying Propelair in advance of delivery of any potential problems in terms of access, such as parking restrictions, stairs, security doors or any other barriers.

4.7 If:

(a) delivery is delayed due to the Customer’s failure to agree a delivery date in accordance with Clause 4.5; and/or

(b) delivery is prevented or delayed due to the Customer’s failure to arrange appropriate access to the delivery address on the agreed delivery date, Propelair shall be entitled to (i) charge the Customer for its reasonable storage charges and/or for additional delivery charges incurred by Propelair as a result of such delayed or failed delivery; and/or (ii) invoice the Customer in full for such Products notwithstanding that delivery has not occurred or cancel the relevant Quotation and resell the Products to another customer.

8 DEFECTS WARRANTY

Products manufactured and supplied by Propelair, are guaranteed against material or manufacturing faults for the duration of the guarantee period (the “Warranty Period”), subject to the following terms and conditions:

8.1 Propelair warrants that each Product shall perform in accordance with its published specification(s) for a period of 12 months after delivery of the relevant Products (the “Warranty Period”).

8.2 If a Product fails to comply with the warranty set out in Clause 8.1, that Product shall be referred to as “defective” for the purpose of this Clause 8, and “defect” shall be construed accordingly.

8.3 If during the Warranty Period, any Product shall be proved to Propelair’s satisfaction to be defective, Propelair shall repair or replace (at Propelair’s option) the defective Product. Propelair’s obligations in relation to the warranty set out in Clause 8.1 shall be limited to such repair or replacement and shall be conditional upon the Customer notifying Propelair in writing of any alleged defect within two business days after its discovery. Upon Propelair’s request, the Customer shall allow Propelair a reasonable opportunity to inspect the Products at the Customer’s premises.

8.4 The product must be purchased and installed within one of the following territories: the United Kingdom of Great Britain and Northern Ireland, the Republic of Ireland, the Isle of Man or the Channel Islands.

8.5 If the product is installed and commissioned by Propelair trained staff the Warranty Period is activated immediately without charge.

8.6 If the product is installed by a Propelair approved 3rd party the installation will require commissioning by Propelair trained staff before the Warranty Period is activated.

8.7 The product must be serviced in accordance with the manufacturer’s user instructions by a Propelair engineer or other competent engineer approved by Propelair. Proof of servicing may be required to validate a warranty.

8.8 Once installed the product must not be moved unless authorisation has been given by Propelair in writing for you to do so.

8.9 During the guarantee period any product or component which is proved to be faulty or defective in manufacture, will be repaired or replaced free of material and labour charges, providing that we have authorised or carried out the repair or replacement.

8.10 We will not accept or reimburse the costs of any third party (not approved by Propelair) who undertakes any work on the Product or fits parts, unless we have approved such work in advance of it being carried out.

8.11 The guarantee period will not be extended even if we repair or replace any product or part.

8.12 If we (or an approved 3rd party) replace any component or product, the part or product removed will become our property.

8.13 Any claim made under the terms and conditions of this guarantee must be made within the guarantee period.

8.14 You must comply with our service engineer appointment terms and conditions if an engineer needs to attend.

8.15 The warranty set out in Clause 8.1 shall not apply to:

(a) Products that have been maintained, repaired or modified by persons other than Propelair or persons authorised by Propelair;

(b) Products that have been improperly or inadequately installed (except where such installation was carried out by Propelair) and/or have become defective due to improper site preparation by the Customer;

(d) Products that have become defective due to abuse, negligence, misuse, vandalism, fire, flood, lightning or other accident or bad weather conditions;

(e) Damage caused by the non-observance of the manufacturer’s user instructions;

(f) Damage to the system as a result of scale;

7.7 Propelair may at any time at its discretion vary the terms of payment specified in this Clause 7, by demanding full or partial payment prior to delivery of the Products, requiring the Customer to open a suitable letter of credit, or otherwise.

7.8 All sums referred to in this Agreement shall be invoiced and payable in pounds sterling, in full, without deduction,

withholding or set-off. The Price is exclusive of VAT, and any other tax or duty payable in relation to the supply of the Products, which shall (if and to the extent applicable) be payable by the Customer in addition to the Price.

7.9 If the Customer is overdue with any payment hereunder, then without prejudice to Propelair’s other rights or remedies:

(a) the Customer shall be liable to pay interest on the overdue amount at an annual rate of 4% above the prevailing base rate of National Westminster Bank plc, which interest shall accrue on a daily basis from the date payment becomes due until Propelair has received payment of the overdue amount together with all interest that has accrued;

(b) the Customer shall reimburse Propelair for any costs incurred by Propelair in taking steps to recover the overdue payment; and/or

(c) Propelair shall have the right, at its option, to suspend all further deliveries of Products (if any) until full payment is received.

WHAT IS NOT COVERED?

The repair or replacement of a product or component as a result of normal wear & tear (e.g., seals, batteries etc).

Accidental damage or faults arising from careless, negligent, or inappropriate use, misuse or handling (which are not accordance with the Installation Manual or User Manual).

Blockages. Please refer to the User Manual for advice on how to clear blockages.

Use of the Propelair® toilet for anything other than its intended purpose.

Failures in performance, operation, or function due to using components that are not Propelair® Ltd genuine parts.

Use of parts not assembled or installed in accordance with the Installation Manual.

Faulty installation, except where installed by Propelair® Ltd or an approved contractor.

Repairs or alterations to the product carried out by persons other than Propelair® Ltd or an approved contractor.

TERMS AND CONDITIONS:

Proof of purchase/delivery must be provided before any claim or work can be undertaken. Without this proof, any work performed will be chargeable. Please retain any receipts and delivery notes.

All work will be carried out by Propelair® or our approved contractors.

All replaced parts become the property of Propelair® Ltd.

Any repairs or replacement parts supplied during the period of warranty will not extend the warranty period.

This warranty does not affect consumer statutory rights

Defective parts should not be disposed of prior to inspection by Propelair®

9 LIMITATION OF LIABILITY

9.1 Subject to Clauses 8.3, 8.15, 9.2 and 9.3, Propelair’s maximum aggregate liability under or in connection with this Agreement shall not exceed the Price payable by the Customer in respect of the Quotation(s) in relation to which the liability arises.

9.2 Nothing in this Agreement shall exclude or in any way limit Propelair’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent that the same may not be excluded or limited as a matter of law.

9.3 Subject to Clause 9.2, Propelair shall not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.

9.4 This Agreement sets forth the full extent of Propelair’s obligations and liabilities in respect of the supply of the Products hereunder and there are no conditions, warranties, representations or other terms, express or implied, that are binding on Propelair except as specifically stated in this Agreement.

10 CHANGES TO SPECIFICATION

10.1 Propelair may at any time make any changes to the design and/or construction of the Products that are, in the opinion of Propelair, an improvement to such design and/or construction. Propelair may supply suitable substitutes for any materials comprised in the Products that become unobtainable, for example due to a change in applicable law or regulation or the unavailability of materials from suppliers.

11 FORCE MAJEURE

11.1 Propelair shall not be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond Propelair’s reasonable control (a “Force Majeure Event”).

11.2 Force Majeure Events shall include but not be limited to the following:

(a) strikes, lock-outs or other industrial action;

(b) civil commotion, riot, invasion, terrorism, war (whether declared or not) or threat of or preparation for war;

(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

(e) compliance with any law or governmental order, rule, regulation or direction;

(f) breakdown of plant or machinery;

(g) default of suppliers or sub-contractors.

11.3 If affected by a Force Majeure Event, Propelair shall promptly provide a written notice to the Customer, giving details of the Force Majeure Event, its likely duration and the manner and extent to which its obligations are likely to be prevented or delayed.

11.4 If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event, provided that each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.

12 GENERAL

12.1 The Customer may not assign, sub-license or sub-contract this Agreement or any of its rights or obligations hereunder without the prior written consent of Propelair.

12.2 Propelair may assign this Agreement in whole or in part, upon written notice to the Customer, to any third party to whom Propelair’s business or part thereof is transferred pursuant to the sale of all/part of the assets of and/or shares of Propelair.

12.3 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

12.4 The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way

(g) Damage as a result of sludge or blockages through poor drainage.

(h) Any unauthorised adjustments made to the product by a third party;

(i) Any upgrading/improvement work required as a result of legislation, (Health & Safety or otherwise) or to meet current standards;

(j) Servicing and its associated costs affect that party’s right later to enforce or to exercise it.

12.5 If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms.

12.6 This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that:

(a) in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and

(b) its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement,

12.7 The construction, validity and performance of this Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them.

12.8 Any valid alteration to or variation of this Agreement must be in writing and signed on behalf of each of the parties by a duly authorised officer.

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