CAPCOM LAND, SEA & AIR COMMUNICATIONS GENERAL CONDITIONS
Capcom Land Sea & Air Communications Limited (“CC”) is a company incorporated and registered in England and Wales with company number 3465685 whose registered office is at The New Forest Centre, Rushington Business Park, Totton, Hampshire SO40 9LA.
1.1 The “Customer” shall mean the person or firm who purchases Equipment and/or Services from CC.
1.2 A “Contract” shall mean a contract between CC and the Customer for the supply of Equipment and/or Services in accordance with these conditions. The “Equipment” shall mean the goods (or any part of them) to be sold or hired, as set out in an Order.
1.3 An “Order” shall mean the Customer’s order for the Equipment, as set out in any purchase order form or in the Customer’s written acceptance of a CC quotation, as the case may be. An Order constitutes an offer by the Customer to purchase Equipment and/or Services from CC in accordance with these conditions.
1.4 The “Services” shall mean the repair services supplied by CC to the Customer as set out in the Order.
2. BASIS OF CONTRACT
2.1 These conditions apply to all Contracts to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 A quotation for the Equipment given by CC shall not constitute an offer. An Order by the Customer shall only be deemed to be accepted by CC when CC issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of CC which is not set out in the Contract.
2.4 If the Customer is a company, it is acknowledged and understood that CC may require a director and/or shareholder of the Customer to enter into a deed of guarantee to be responsible for the Customer’s liabilities to CC.
3. PRICE AND PAYMENT
3.1 The price shall be set out in the Order, or, if no price is quoted, the price set out in CC’s published price list in force as at the date of the Order. The charges for the hire of Equipment shall commence from the date and at the rates shown in the Order and shall, subject to clause 9.3 and clause 7.6, continue until the Equipment is returned to CC. For the avoidance of doubt, all time is chargeable (including Saturday, Sunday and Bank Holidays).
3.2 CC may, by giving notice to the Customer at any time before delivery, increase the price to reflect any increase in the cost that is due to:
(a) any request by the Customer to change a delivery date, quantities or types of Equipment ordered; or
(b) any delay caused by any instructions of the Customer or failure of the Customer to give CC adequate or accurate information or instructions.
3.3 The prices are exclusive of the costs and charges of packaging, insurance and transport of the Equipment, which shall be invoiced to the Customer.
3.4 The prices charged by CC are exclusive of amounts in respect of value added tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from CC, pay to CC such additional amounts in respect of VAT as are chargeable.
3.5 Time for payment shall be of the essence and the Customer shall pay each invoice submitted by CC: (a) within 30 days of the date of the invoice; and (b) in full and in cleared funds to a bank account nominated in writing by CC.
3.6 Unless otherwise stated, the Customer shall return any packaging crates to CC. Returns of packaging crates shall be at Customer’s expense and included on the invoice.
4. QUALITY OF EQUIPMENT
4.1 The person signing for delivery of the Equipment, having been afforded an opportunity to inspect the Equipment, shall be deemed to have accepted the Equipment and confirmed that the Equipment is in good working order and free from damage at the time of delivery.
5.1 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. CC shall not be liable for any delay in delivery of the Equipment that is caused by:
(a) any events, circumstances or causes beyond its reasonable control; or
(b) the Customer’s failure to provide CC with adequate delivery instructions.
5.2 If CC fails to deliver the Equipment, 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 any price to be paid to CC.
5.3 The risk in the Equipment shall pass to the Customer on delivery.
6. PURCHASE OF EQUIPMENT
6.1 Title to the Equipment shall not pass to the Customer until CC has received payment in full (in cash or cleared funds) for all Equipment and/or Services that CC has supplied to the Customer.
6.2 Until title to the Equipment has passed to the Customer, the Customer shall
(a) hold the Equipment on a fiduciary basis as CC’s bailee;
(b) maintain the Equipment in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
(c) give CC such information relating to the Equipment as CC may require from time to time.
7. EQUIPMENT HIRE
7.1 Each Contract terminates when a receipt for the return of all the Equipment is obtained from CC. The Customer acknowledges that instructions have been provided on the operation and use of the Equipment. The Customer undertakes to ensure that no one uses the Equipment who is not properly instructed and shall not allow the Equipment to be misused.
7.2 The Customer shall ensure that the Equipment remains safe, serviceable and clean. Any breakdown or unsatisfactory working of Equipment must be immediately notified to CC. Under no circumstances shall the Customer repair or attempt to repair the Equipment unless authorised by CC. On CC’s request, the Equipment must be returned to CC for examination at the Customer’s cost and expense.
7.3 The Customer shall pay CC all costs incurred by CC in relation to:
(a) rectifying the condition of the Equipment returned damaged or unclean; and
(b) any loss or damage to the Equipment.
7.4 The Customer hereby authorises CC to enter upon any premises wherein CC reasonably believes any Equipment or any part thereof to be, and if, and insofar as, CC in its absolute discretion deems necessary, to inspect, test, repair, repossess or replace the Equipment.
7.5 The Customer should ensure that he is covered by his own insurance against all risks in respect of the use of the Equipment.
7.6 CC shall be entitled at any time and for any reason whatsoever, without explanation, to terminate the contract (such termination to be effective immediately) and to repossess the Equipment or any part thereof. Continuation of hire of any Equipment is assumed until the Customer is advised of termination in writing by CC and hence the Customer accepts full liability up to the termination date.
8. REPAIR SERVICES
8.1 CC shall use all reasonable endeavours to meet any performance dates specified in any Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. CC warrants to the Customer that the Services will be provided using reasonable care and skill.
8.2 CC shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and CC shall notify the Customer in any such event.
9.1 Without limiting its other rights or remedies, CC may terminate any Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company);
(d) the Customer (being an individual) is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
(g) a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
(i) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this condition;
(j) the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(k) the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation
(l) if the Customer fails to pay any amount due under any Contract on the due date for payment; or
(m) the Customer commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
(n) on request of CC, a director and/or shareholder of the Customer (being a company) does not enter into a deed of guarantee as required by CC.
9.2 If before title to the Equipment passes to the Customer, the Customer becomes subject to any of the insolvency events listed above, or CC reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, CC may at any time require the Customer to deliver up the Equipment and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Equipment are stored in order to recover them.
9.3 On termination of the Contract for any of the reasons set out in clause 9.1 or any other repudiation of this Contract by the Customer which is accepted by CC the Customer shall pay to CC on demand a sum equal to the whole of the charges (as set out in the Order) that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the hire period as set out in the Order less a discount of 25%.
9.39.4 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to CC all of CC’s outstanding unpaid invoices and interest and, in respect of all Equipment and/or Services supplied but for which no invoice has been submitted, CC shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) conditions which expressly or by implication have effect after termination shall continue in full force and effect.
10. LIMITATION OF LIABILITY
10.1 Nothing in these conditions shall limit or exclude CC’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(e) defective products under the Consumer Protection Act 1987; or
(f) any matter in respect of which it would be unlawful for CC to exclude or restrict liability.
10.2 Subject to the remainder of this condition:
(a) CC shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
(b) CC’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount paid under the relevant Contract; and
(c) CC shall under no circumstances whatever be liable to the Customer, caused by, unsuitability, or repossession of the Equipment.
10.3 Except as set out in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.1 A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
11.2 CC may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under any Contract to any third party or agent. The Customer shall not, without the prior written consent of CC, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under any Contract. A reference to a party includes its personal representatives, successors or permitted assigns.
11.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
11.4 Any notice or other communication required to be given to a party under or in connection with any Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
11.5 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under any Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.6 Unless specifically provided otherwise, rights arising under any Contract are cumulative and do not exclude rights provided by law.
11.7 If a court or any other competent authority finds that any provision of any Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions shall not be affected. If any invalid, unenforceable or illegal provision of any Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.8 Nothing in any Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
11.9 A person who is not a party to a Contract shall not have any rights under or in connection with it.
11.10 If the Customer fails to make any payment due to CC under any Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
11.11 The Customer shall pay all amounts due under all Contracts in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against CC in order to justify withholding payment of any such amount in whole or in part. CC may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by CC to the Customer.
11.12 Except as set out in these conditions, any variation, including the introduction of any additional terms and conditions, to a Contract, shall only be binding when agreed in writing and signed by CC.
11.13 Any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms. A reference to ‘writing’ or ‘written’ includes faxes.
11.14 These conditions, each Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.