1.1 These are the Conditions on which Alternergy supplies Goods. Where an Order is accepted by Alternergy, the Order Acknowledgement and the Conditions (together the Contract) shall constitute a contract between the parties. These Conditions apply to the Contract to the exclusion of all other terms (including any terms and conditions that the Customer purports to imply). The Order shall not form part of the Contract.
2.1 In these Conditions, the following definitions apply:
Alternergy: Alternergy Limited (registered in England and Wales with company number 05866494) whose registered office is at Swan Business Centre, 9 Fishers Lane, Chiswick, London, W4 1RX.
Customer: the person or entity that purchases the Goods from Alternergy.
Goods: the goods (or any part of them) set out in the Order Acknowledgement.
Order: the Customer's order for the Goods.
Order Acknowledgement: Alternergy’s confirmation of its acceptance of an Order.
Working Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
2.2 The headings in these Conditions are for ease of reference only and shall not affect the construction or interpretation of the Contract. Words denoting the singular meaning include the plural and vice versa unless the context otherwise requires. References to including and include shall be deemed to mean respectively including without limitation and include without limitation.
2.3 References in these Conditions to any statute, statutory provision or regulation includes a reference to:
2.3.1 that statute, statutory provision or regulation as from time to time amended, extended, re-enacted or consolidated whether before or after the date of the Contract; and
2.3.2 all statutory instruments or orders made pursuant to it.
3.1 The Customer is responsible for ensuring that the terms of the Order Acknowledgement are complete and accurate.
3.2 The Order shall only be deemed to be accepted when Alternergy issues an Order Acknowledgement, at which point the Contract shall come into existence, subject to the provisions of Condition 3.3.
3.3 In exceptional circumstances, Alternergy reserves the right to correct any manifest error on an Order Acknowledgement, following which the Contract shall be varied to incorporate such correction.
3.4 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 Alternergy which is not set out in the Contract.
3.5 A quotation for the Goods given by Alternergy shall not constitute an offer. A quotation shall only be valid for a period of 10 Working Days from its date of issue.
4.1 The price of the Goods shall be the price set out in the Order Acknowledgement.
4.2 The price of the Goods is exclusive of the costs and charges of transport, insurance and packaging of the Goods, which (unless agreed otherwise in writing between the parties) shall be invoiced to the Customer.
4.3 The price of the Goods is exclusive of amounts payable in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from Alternergy, pay to Alternergy such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
4.4 Save as set out in Condition 4.5, Alternergy shall invoice the Customer for the Goods (and items referred to in Condition 4.2) on or at any time after the issue of the Order Acknowledgement.
4.5 Where a Customer purchases Goods using credit available on its account with Alternergy, Alternergy shall invoice the Customer for the Goods (and items referred to in Condition 4.2) on or at any time after its dispatch of the Goods.
4.6 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made by BACS or CHAPS transfer or cheque to the bank account nominated in writing by Alternergy. The Customer shall under no circumstances attempt to pay cash into Alternergy’s nominated bank account.
4.7 If the Customer fails to make any payment due to Alternergy under the 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 Lloyds TSB Bank Plc’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.
4.8 If an invoice remains unpaid more than 30 days after its due date, Alternergy may ask a debt-collection agency to collect the payment on its behalf and at the Customer's cost. Alternatively, Alternergy may add its own reasonable costs associated with pursuing the unpaid invoice to the Customer's debt.
4.9 The Customer shall pay all amounts due under the Contract 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 Alternergy in order to justify withholding payment of any such amount in whole or in part. Alternergy 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 Alternergy to the Customer.
5.1 The risk in the Goods shall pass to the Customer on completion of the unloading of the Goods at the Customer’s premises (save where the Customer elects to collect the Goods from Alternergy’s premises, in which case the risk in the Goods shall pass to the Customer on completion of the loading of the Goods at Alternergy’s premises).
5.2 Title to the Goods shall not pass to the Customer until Alternergy has received payment in full (in cleared funds) for the Goods.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
5.3.1 hold the Goods on a fiduciary basis as Alternergy's bailee;
5.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Alternergy's property;
5.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of the Order Acknowledgement;
5.3.5 notify Alternergy immediately if it becomes subject to any of the events referred to in Condition 9; and
5.3.6 give Alternergy such information relating to the Goods as Alternergy may require from time to time,
but the Customer may install and/or use the Goods in the ordinary course of its business.
5.4 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events referred to in Condition 9, or Alternergy reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Alternergy may have, Alternergy may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6.1 Alternergy shall ensure that each delivery of the Goods is accompanied by a delivery note (Delivery Note) to be signed on behalf of the Customer which shows the date of the Order Acknowledgement, all relevant Customer and Alternergy reference numbers, the type and quantity of the Goods, and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
6.2 It is the Customer’s responsibility to ensure that all Goods received are checked to see that quantities match those on the Delivery Note, and that there is no apparent damage to the Goods and/or packaging.
6.3 If the Customer considers that there are any discrepancies between the quantity of Goods received by the Customer and the quantity signed for on the Delivery Note, the Customer must bring this to the attention of Alternergy by email:
6.3.1 (in the case of panels and/or inverters and/or any items greater than £100 in value) by 5pm on the Working Day following the date of the Customer’s signature of the Delivery Note; or
6.3.2 (in the case of any other items) by 5pm on the third Working Day following the date of the Customer’s signature of the Delivery Note.
6.4 Where the Customer does not provide notice to Alternergy in accordance with Condition 6.3, this shall be deemed to be the Customer’s irrevocable acknowledgement that it has received the quantity of Goods set out in the Delivery Note.
6.5 Alternergy shall, unless agreed otherwise in writing between the parties, arrange delivery of the Goods by a third-party carrier to the location set out in the Order Acknowledgement (Delivery Location) on or at any time after:
6.5.1 (where Condition 4.4 applies) Alternergy’s receipt of cleared funds in full relating to the relevant invoice; or
6.5.2 (where Condition 4.5 applies) the delivery date set out in the Order Acknowledgement.
6.6 Delivery of the Goods shall occur on completion of the unloading of the Goods at the Customer’s premises (save where the Customer elects to collect the Goods from Alternergy’s premises, in which case delivery of the Goods shall occur on completion of the loading of the Goods at Alternergy’s premises).
6.7 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Alternergy shall not be liable for any delay in delivery of the Goods.
6.8 If Alternergy fails to arrange delivery of the Goods, 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 the price of the Goods.
6.9 If the Customer fails to take delivery of the Goods upon the Goods’ arrival at the Delivery Location the Customer shall be liable to Alternergy for any storage costs and for all related costs and expenses (including insurance).
6.10 The Customer shall not be entitled to reject the Goods if Alternergy delivers up to and including 5% more or less than the quantity of Goods ordered, and Alternergy shall, at the election of the Customer, either:
6.10.1 complete the Order by making an additional delivery within a reasonable period;
6.10.2 arrange for collection of the over supplied Goods within a reasonable period; or make a pro rata adjustment to the relevant invoice.
7.1 Subject to Condition 7.2, Alternergy shall not replace or refund any Goods for any reason.
7.2 If the Customer receives any Goods that are damaged then provided that:
7.2.1 the Customer gives notice by email to Alternergy by 5pm on the Working Day following its signature of the Delivery Note that some or all of the Goods have been damaged prior to their arrival with the Customer;
7.2.2 Alternergy is given a reasonable opportunity of examining such Goods (which may include the Customer supplying photographs of the damaged goods);
7.2.3 the Customer has not used or installed the Goods;
7.2.4 the Goods have not been scratched, soiled and/or damaged by the Customer resulting in them no longer being saleable as brand new; and
7.2.5 the Customer (if asked to do so by Alternergy) returns such Goods to Alternergy's place of business in their original packaging at the Customer's cost,
Alternergy shall, at its option, replace the damaged Goods, or refund the price of the damaged Goods in full.
7.3 Alternergy may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7.4 The Customer acknowledges that it deals with Alternergy in the course of a business and that statutory rights applicable to consumers (dealing otherwise than in the course of a business) do not apply to the Contract.
8.1 All goods are supplied by Alternergy with the benefit of the relevant manufacturer’s warranties relating to the relevant Goods (copies of which can be supplied by Alternergy, if requested by the Customer). If there is any defect or malfunction or any other problem relating to the Goods, the Customer must deal directly with the relevant manufacturer, and Alternergy’s sole responsibility will be to offer reasonable assistance to the Customer in such circumstances.
8.2 Alternergy shall have no liability to the Customer in respect of the Goods' failure to comply with the manufacturers warranties referred to in Condition 8.1.
8.3 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.
9.1 If the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt, or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), or an encumbrancer takes possession, or a receiver is appointed of any of the property or assets of the Customer, or the Customer ceases or threatens to cease to carry on business or Alternergy reasonably apprehends that any of the events mentioned in this Condition is about to occur (and notifies the Customer accordingly) then, without affecting any of Alternergy’s other rights or remedies, Alternergy is entitled to cancel the Contract or suspend any further deliveries without incurring any liability. Additionally if the Goods have been delivered but not paid for, the price will become immediately due and payable despite any previous agreement or arrangements to the contrary, and until the Goods are paid for the Customer shall not (unless it has already done so) install and/or use the Goods in any manner whatsoever, whether in the ordinary course of its business or otherwise.
9.2 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10.1 Nothing in these Conditions shall limit or exclude Alternergy's liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
10.1.4 defective products under the Consumer Protection Act 1987; or
10.1.5 any matter in respect of which it would be unlawful for Alternergy to exclude or restrict liability.
10.2 Subject to Condition 10.1:
10.2.1 Alternergy 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; and
10.2.2 Alternergy'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 price of the Goods.
11.1 ‘Incoterms® 2010’ means The International Rules for the Use of Domestic and International Trade Terms, 2010.
11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 11 apply (subject to any special terms agreed in writing between the parties) and any term or expression which is defined in or given a particular meaning by the provisions of Incoterms® 2010 has the same meaning in these Conditions, unless there is a conflict, in which case these Conditions will prevail.
11.3 The Goods will be supplied EXW from a location to be specified by Alternergy, and Alternergy is under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
11.4 The Customer is responsible for ensuring that the Goods comply with the laws and regulations of the country to which it intends to import the Goods and for obtaining any necessary export/import licences. The Customer will not hold Alternergy liable for any failure to comply with those laws and regulations or to obtain the necessary licences.
Alternergy is not liable to the Customer for any failure or delay in performance of the Contract which is beyond its reasonable control, including any labour disputes between Alternergy and its employees (Force Majeure Event).
13.1 Alternergy may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Alternergy.
13.2 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or fax. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 13.2; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Working Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax, one Working Day after transmission.
13.3 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.4 If any invalid, unenforceable or illegal provision of the 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.
13.5 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.
13.6 A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.7 Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Alternergy.
13.8 The 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 and Wales.