Terms & Conditions
1.1 "Contract" means the contract for the sale and purchase of the Product comprising the Order and these Terms.
"Customer" means the person named on the Order Form to whom OnGrade has agreed to supply the Product and whose order for the purchase of the Product is accepted by OnGrade in accordance with these Terms.
"Data Controller" has the same meaning as section 1(1) of the Data Protection Act 1998
"Delivery Charges" means the charges for transport, packaging and insurance (where applicable) to deliver the Product to the Customer's destination as required.
"Delivery Date" means the estimated delivery day as notified to the Customer by OnGrade upon confirmation of the Order.
"Hire Period" means the period of time for which OnGrade agrees to hire out the Equipment to the Customer.
"OnGrade" means OnGrade Limited a company registered in England and Wales under number 07042584 and whose registered office address is at Highland House, Mayflower Close, Chandler's Ford, Eastleigh SO53 4AR.
"Order" means an order made by the Customer for the purchase of the Product from OnGrade, including any Specified Service (where applicable) as recorded on the Order Form.
"Order Form" means OnGrade's standard purchase order form completed with the details of the Order made by the Customer.
"Parties" means OnGrade and the Customer when referred to together and "Party" means either of them.
"Personal Data" has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Company is the Data Controller and in relation to which the Processor is providing services under this agreement.
"Price" means the price for the Product and the Specified Service (where applicable) as stated in the Order Form and confirmed by OnGrade upon acceptance of the Order (including any discounts where applicable). All prices quoted by OnGrade or displayed on the Website are exclusive of VAT which shall be charged in addition to the Price where applicable.
"Processing and Process" have the meaning set out in section 1(1) of the Data Protection Act 1998.
"Product" means the products ordered by the Customer from OnGrade as set out in the Order Form.
"Site" means the location at which the Customer uses the Product and where OnGrade is to supply the Specified Services where applicable.
"Specified Services" means the services to be provided by OnGrade to the Customer in connection with the Product and as referred to in the Order Form.
"Terms" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Customer and OnGrade.
"Trial Period" means the period agreed in writing between OnGrade and the Customer in which the Customer has use of the Product for testing and assessment.
"User Manual" means any document or CD or DVD or other device embodying data and/or visual images containing instructions, drawings, illustrations, photographs, map, plan graph, film, confidential records, computer software or other materials supplied to the Customer with the Product and any such information about the Product and its installation as contained on the Website.
"Warranty Period" means 12 months from the date of delivery of the Product
"Website" means OnGrade's website at www.proximitywarning.com.
1.2 Any reference in these Terms to any statute or statutory provision shall be construed as a reference to that statute or statutory provision as amended, re-enacted or extended at the relevant time.
1.3 References to writing or written includes facsimile transmission, electronic mail and comparable means of communication.
2.1 OnGrade shall sell and the Customer shall purchase the Product in accordance with the Order which together with these Terms comprise all the terms of the contract between OnGrade and the Customer. Where an Order is confirmed and accepted by OnGrade it shall be on these Terms to the exclusion of any other terms.
2.2 OnGrade's employees or agents are not authorised to make any representations concerning the Product unless confirmed by OnGrade in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed.
2.3 Any advice or recommendation given by OnGrade or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Product is followed or acted upon entirely at the Customer's own risk, and accordingly OnGrade shall not be liable for any such advice or recommendation.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by OnGrade relating to the Product shall be subject to correction at any time without any liability on the part of OnGrade.
3.1 All Orders shall be made in writing on the Order Form and deemed to be an offer by the Customer to purchase the Product and, where applicable, the Specified Service, at the Price pursuant to the Terms.
3.2 Upon receipt of each Order OnGrade shall confirm acceptance of the Order and notify the Customer of the anticipated Delivery Date for the Product either by telephone or e-mail.
3.3 Where OnGrade fails to confirm an Order then any act to fulfil the Order by OnGrade shall be deemed conclusive evidence of OnGrade's acceptance of the Order.
3.4 Unless the Customer gives OnGrade notice in writing to the contrary, the person placing the Order or signing the Order Form on behalf of the Customer will be deemed to be authorised to do so.
3.5 The Customer shall be responsible for ensuring the accuracy of the details contained in the Order Form and for giving OnGrade any necessary information relating to the delivery of the Product in sufficient time to enable OnGrade to perform the Contract.
3.6 Time for delivery shall not be of the essence.
3.7 If any process is to be applied to the Product by OnGrade in accordance with a specification required by the Customer, the Customer shall indemnify OnGrade against all loss, damages, costs and expenses awarded against or incurred by OnGrade in connection with or paid or agreed to be paid by OnGrade in settlement of any claim arising out of:
3.7.1 infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from OnGrade’s use of the Customer's specification; or
3.7.2 any impracticality, inefficiency or lack of safety or other defect in the Product where such defect is due (whether in whole or in part) to faults or omissions in information, drawings, designs, instructions, or specifications of the Customer.
3.8 OnGrade reserves the right to make any changes in the specification of the Product or the Specified Services which are required to conform with any applicable statutory or EC requirements or, where the Product is to be supplied to the Customer's specification, which do not materially affect their quality or performance.
3.9 The Customer agrees to familiarise itself with the User Manual prior to the installation and use of the Product.
4.1 The Customer shall pay the Price and the Delivery Charges (where applicable) to OnGrade promptly in accordance with clause 5.
4.2 Any quotations given by OnGrade before an Order is made are valid for 14 days only (or until earlier acceptance by OnGrade of the Order).
4.3 The Price and Delivery Charges quoted to the Customer are exclusive of any applicable value added tax for which the Customer shall be additionally liable to pay OnGrade at the applicable rate from time to time.
4.4 Any price quoted for installation is subject to machines being made available to OnGrade when required for installation and those machines being provided in good working order, clean and ready for the installation of electronic instrumentation. Any additional time required on Site, including additional preparation work due to condition of the machines or other circumstances beyond OnGrade's control, will be chargeable at the prevailing rate. Systems to be installed with the EasyFit System must have working 12/24 auxiliary power outlet available. If OnGrade are required to repair the outlet on attendance or are unable to complete the installation additional fees may be charged.
4.5 If the machines the systems are to be fitted to are hired machines (including Site Dumpers which require an ignition feed ) a fitter from the plant owner should be available to provide this. If a fitter is not available to complete this written permission must be provided to OnGrade from the machine owner that the installation can be completed. If this is not done and OnGrade attend Site additional charges may be levied.
5.1 Unless otherwise agreed in writing, the Price and the Delivery Charges (where applicable) shall be paid to OnGrade by the Customer:
5.1.1 upon acceptance of the Order; and
5.1.2 on or at any time in advance of the Delivery Date by prior agreement with OnGrade; and
5.1.3 within 30 days of the issue of the invoice to the Customer, where applicable.
5.2 The time of payment shall be of the essence of the Contract. Payment shall be made in pound sterling by credit/debit card or bank transfer or such other method of payment as set out in the Order Form. Receipts for payment will be issued upon request.
5.3 If payment is not received by the due date, OnGrade shall be entitled to:
5.3.1 cancel the Contract or suspend any delivery of the Product or performance of the Specified Service;
5.3.2 charge interest on the outstanding amount at the rate of 4% per annum above the base rate of Lloyds TSB from time to time, until payment in full is made, such interest to accrue from day to day; and
5.3.3 charge the Customer the cost of recovery of any outstanding amount including any legal costs, disbursements and bank charges incurred.
No Contract may be cancelled by the Customer except with the agreement in writing of OnGrade and on terms that the Customer shall indemnify OnGrade in full against all loss (including loss of profit), costs
(including the cost of all labour and materials used), damages, charges and expenses incurred by OnGrade as a result of cancellation.
7.1 OnGrade shall arrange delivery of the Product to the address specified by the Customer in the Order Form.
7.2 The Delivery Date is an estimate only and OnGrade shall not be liable for any delay in delivery of the Product however caused.
7.3 Where applicable, the Customer shall pay the Delivery Charge specified by OnGrade in addition to the Price.
7.4 Where the Product is to be delivered in instalments, each delivery shall constitute a separate Contract and failure by OnGrade to deliver any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
7.5 If OnGrade fails to deliver the Product (or any instalment) for any reason within OnGrade's reasonable control, and OnGrade is accordingly liable to the Customer, OnGrade's liability shall be limited to the cost to the Customer (in the cheapest available market) of obtaining a similar replacement product and in any event shall be limited to the price of the Product (or instalment) which OnGrade has failed to deliver.
7.6 If the Customer fails to take delivery of the Product or fails to give OnGrade adequate delivery instructions (otherwise than by reason of any cause beyond the Customer's reasonable control or by reason of OnGrade's fault) then, without prejudice to any other right or remedy available to OnGrade, OnGrade may:
7.6.1 store the Product until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
7.6.2 sell the Product at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer the Price or charge the Customer for any shortfall in the monies OnGrade receives below the Price.
7.7 Where OnGrade are to deliver and install the Products the Customer is responsible for ensuring that the site is safe and compliant with all laws and regulations with regard to health and safety. The Customer is responsible for ensuring that safe access (including any equipment required to access) to the installation location is provided to OnGrade and its agents.
8. Exporting the Product
8.1 Where a Customer makes an Order for delivery outside the United Kingdom, the provisions of this clause 8 shall (subject to any special terms agreed in writing between the Customer and OnGrade) apply notwithstanding any other provision of these Terms.
8.2 OnGrade shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
8.3 In addition to the Price, the Customer shall pay to OnGrade the cost of exporting the Products to the country of destination including export duties or similar taxes imposed, the costs of carriage in the United Kingdom and, where OnGrade arranges carriage on behalf of the Customer, the costs of carriage to the country of destination.
8.4 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Product into the country of destination and for the payment of any duties on them.
8.5 OnGrade shall have no liability for any claim in respect of any defect in the Product which would be apparent on inspection and discovery of which is made after shipment, or in respect of any damage to the Product during transit.
9. Risk and Title
9.1 Risk of damage to or loss of the Product shall pass to the Customer upon delivery of the Product to the Customer by OnGrade.
9.2 Where OnGrade sells the Product to the Customer title in the Product shall not pass to the Customer until OnGrade has received, in cleared funds, payment in full of all sums owing to it.
9.3 Until such time as title in the Product passes to the Customer:
9.3.1 the Customer shall hold the Product as OnGrade's fiduciary agent and bailee, and shall keep the Product separate from those of the Customer and third parties and in such a way as to be clearly identifiable as OnGrade's property and shall properly store, protect and insure the Product but shall be entitled to use the Product in the ordinary course of its business; and
9.3.2 OnGrade shall be entitled at any time to require the Customer to deliver up the Product to OnGrade and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Product is stored and repossess the Product.
9.4 During any Trial Period or Hire Period the title to the Product shall remain with OnGrade. Any risk of damage or loss to the Product shall pass to the Customer upon delivery and shall remain with the Customer until the Products have been returned in satisfactory condition to OnGrade.
10.1 Where OnGrade provides the Product to the Customer on a hire basis, on the last day of the Hire Period or upon termination of the Contract howsoever caused, whichever occurs first, the customer shall at its own cost return all and any Product to OnGrade at the address as stated on the Order or otherwise directed in writing by OnGrade.
10.2 Return of the Product shall be accepted by and risk in the Product shall pass to OnGrade only upon receipt of a signature received at the time of and pace for return delivery agreed between the Parties in writing in advance of any return.
10.3 Once the Product has been returned in accordance with conditions 10.1 and 10.2 above, OnGrade shall have 14 days to check such Product and in such event that OnGrade is not satisfied with the condition in which the Product is returned, OnGrade shall notify the Customer detailing why it is not satisfied with the Product's conditions.
10.4 In the event that any Product returned is damaged, OnGrade will send a rough estimate of the cost initially and later a full invoice detailing the cost. Such invoice will be paid by the Customer within 30 days of the date of such invoice.
10.5 In the event that any part of the Product hired is not returned OnGrade will notify the Customer stating what is missing. In the event that such missing equipment is not returned within 14 days of such notification the Customer will be invoiced for the missing Product. In the event that OnGrade cannot replace the missing parts it will invoice the Customer for all of the Product. Such invoice will be paid by the Customer in 30 days of the date of invoice.
11.1 Where ownership in the Product has not passed to the Customer but delivery has occurred in accordance with section 7, the Customer undertakes to maintain the Product in good condition and keep it insured on OnGrade's behalf for the full replacement value as stated on the Order against all risks, including but not limited to fire, theft loss and damage, to the reasonable satisfaction of OnGrade.
11.2 In the event that the Product is lost, damaged or stolen the Customer shall pay OnGrade the full cost and/or replacement of the Product as appropriate, regardless of whether the Customer receives payment from it's insurers. In the event that the Product has become obsolete the Customer will pay to replace it with an equivalent Product.
12.1 OnGrade warrants that on delivery, and for the Warranty Period the Products shall:
12.1.1 conform in all material respects with their description;
12.1.2 be free from material defects in design, material and workmanship; and
12.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
12.1.4 be fit for any purpose held out by OnGrade
12.2 In order to make a claim under the warranty in clause 12.1 the Customer must give notice in writing to OnGrade during the Warranty Period, within a reasonable time of discovery, setting out the detail of non-compliance. If requested by OnGrade the Customer must, at its own cost, return the non-compliant Products to OnGrade and allow a reasonable period for testing. OnGrade shall, at is sole discretion, repair, replace or refund any non-compliant Products.
12.3 If the Customer requires repairs on Site, the Customer shall be responsible for all costs and expenses incurred by OnGrade (including subsistence expenses, labour and travel expenses and travel time costs (at OnGrade's standard rate).
12.4 The warranty provided at clause 12.1 shall not apply in any circumstances where the Product has been repaired, modified or tampered with by any third party.
12.5 OnGrade shall have no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working terms, failure to follow the User Manual or OnGrade's instructions (whether oral or in writing), improper installation (other than by OnGrade) misuse or alteration or attempted repair of the Product without OnGrade's approval.
12.6 OnGrade shall have no liability under clause 12.1 (or any other warranty, condition or guarantee) if the total Price has not been paid by the due date for payment or if the Customer is otherwise in breach of the Contract or any other contract with OnGrade.
12.7 The warranty at clause 12.1 shall not apply in respect of any parts, materials or equipment which are covered by a third party manufacturer’s warranty. In such circumstances OnGrade may at its discretion assist the Customer in making a claim against the manufacturer.
12.8 OnGrade warrants to the Customer that the Specified Service, where applicable, will be provided using reasonable care and skill by suitably qualified personnel and, as far as reasonably possible, within the time scale notified to the Customer by OnGrade.
13. Limitation of Liability
13.1 Subject as expressly provided in these Terms all warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
13.2 The Customer shall comply in all respects with all applicable laws and regulations (whether of the United Kingdom or elsewhere) at the Site. Without prejudice to the generality of the foregoing, the Customer shall provide a safe environment in which the Product is to be used and shall establish procedures under, and comply with, all requirements from time to time in force under the Health and Safety at Work etc Act 1974, the Management of Health and Safety at Work Regulations 1992 and the Workplaces (Health, Safety and Welfare) Regulations 1992. OnGrade shall not be liable for any damage caused by or resulting from the failure of the Customer to comply with this clause 13.2.
13.3 Nothing in these Terms shall be construed to limit or exclude either Party's liability for death or personal injury arising as a result of its own negligence or fraud or fraudulent misrepresentation.
13.4 OnGrade’s total liability in contract, tort (including negligence), misrepresentation or otherwise in relation to this agreement shall be limited to the lesser of £50,000 and the aggregate amounts paid by the Customer for Products during the previous 12 months. Where the equipment is hired, OnGrade’s liability is limited to the price paid or payable for the Product for the Hire Period or where the Hire Period is over a year, to the price paid or payable for the hire of the Product in the 12 months preceding the event giving rise to a claim.
13.5 OnGrade shall not be liable to the Customer for:
13.5.1 any indirect, special or consequential loss or damage;
13.5.2 loss of data or other equipment or property;
13.5.3 economic loss or damage;
13.5.4 incurring of liability for loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages); or
13.5.5 any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill,
even if OnGrade is advised in advance of the possibility of any such losses or damages.
13.6 OnGrade shall not be liable for any losses arising from the Customer's subsequent use or misuse of the Products including (without limitation):
13.6.1 fair wear and tear;
13.6.2 wilful damage;
13.6.3 the Customer's negligence, or that of its agents or employees, or any failure to follow OnGrade’s instructions and the User Manuals as to use of the Products; and
13.6.4 any alteration or repair of the Products by any manufacturing process or otherwise, save for any latent defect.
13.7 The Customer acknowledges and agrees that OnGrade’s prices are based on and reflect the limitations of liability contained in these terms.
14. Data Protection
14.1 OnGrade and the Customer acknowledge that for the purposes of the Data Protection Act 1998, the Customer is the Data Controller and OnGrade is the data processor in respect of any Personal Data.
14.2 OnGrade shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purpose other than those expressly authorised by the Customer.
14.3 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
14.4 OnGrade warrants that, having regard to the state of technological development and the cost of implementing any measures, it will take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected.
15. Force majeure
15.1 OnGrade shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay or failure to perform any of its obligations under the Contract due to any cause beyond OnGrade's reasonable control. Such failure or delay shall entitle either Party to terminate the Contract if it persists for more than three months but the Customer shall remain liable to pay for any Product delivered and/or any part of the Specified Services provided prior to the date of such cancellation. Without limitation, the following shall be regarded as causes beyond OnGrade's reasonable control: Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance, directives, restrictions, regulations, bye-laws, prohibitions or governmental measures of any kind, import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of OnGrade, the Customer or a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery or power failure or breakdown in machinery.
16. Intellectual Property
16.1 The User Manual and other information supplied to the Customer with the Product, whether produced by OnGrade or a third party, is supplied on the express understanding that copyright is reserved to OnGrade (or such third party licensor) and that the Customer will not, without the consent of OnGrade in writing, give away, loan, exhibit or sell any materials contained in the User Manual or other information or extracts from it or copies of it or use it in any way except in connection with the Product in respect of which it is issued. In addition, any design right or copyright created in relation to the Products will vest in OnGrade where the Products are commissioned by the Customer, whether or not for a separate fee.
16.2 All claims for alleged infringement of patents, trade marks, registered designs, design right or copyright received by the Customer relating to the Product must be notified immediately to OnGrade. OnGrade shall be entitled to conduct any proceedings relating to any such claim in such manner as OnGrade thinks fit and the Customer will provide to OnGrade such reasonable assistance as OnGrade may request. The cost of any such proceedings will be borne by the Customer.
16.3 If any allegation shall be made against the Customer that the supply of a Product (as manufactured by OnGrade) infringes the intellectual property rights of any third party or OnGrade has reason to believe that any such allegation is likely to be made, OnGrade may at its option and expense modify or replace the Product so as to avoid the infringement (but without adversely effecting the overall performance of the Product), or obtain for the benefit of the Customer the right to continue to use the Product, or repurchase the Product at the Price as reduced by a reasonable provision for depreciation and if OnGrade pursues any such options, then the Customer will have no rights or remedies.