Terms & Conditions
STANDARD CONDITIONS OF BUSINESS
In these Conditions:
“Act of Insolvency” means any one or more of the following namely a notice is issued to convene a meeting for the purpose of passing a resolution to wind up a company or a partnership or such a resolution is passed; a resolution is passed by its directors to seek a winding up or an administration order against a company; a resolution is passed seeking a winding up or an administration order against a partnership; a petition for a winding up or an administration order is presented against a company or against a partnership or such an order is made; a petition for a bankruptcy order is presented or such an order is made; a proposal for a voluntary arrangement or an application for an interim order is made under the Insolvency Act 1986; a party takes any action (including starting negotiations) with a view to readjustment, rescheduling or deferral of any part of [his/its] indebtedness; a party proposes or makes any general assignment, composition or arrangement with or for the benefit of all or some of his/its creditors; a party suspends or threatens to suspend making payments to all or some of his/its creditors; a party becomes subject to any type of voluntary arrangement; a receiver (administrative or otherwise) is appointed over all or part of a party’s assets; any action is taken outside the United Kingdom which is similar or analogous to any of the foregoing or the [other party has reasonable grounds for believing that any of the foregoing is imminent;
“Business Day” means any day (other than Saturday) on which clearing banks are open for normal banking business in sterling in the City of London;
“Confidential Information” means all secret or confidential commercial, financial and technical information, know how, trade secrets, inventions, computer software and other information whatsoever and in whatever form or medium and whether disclosed orally or in writing, together with all reproductions in whatsoever form or medium and any part or parts of it;
“Contract” means the contract made between the Company and the Customer for supply of the Goods and/or Services which is subject to these Conditions;
“Customer” means the party with whom the Company contracts;
“Goods” means all or any of the goods works and materials to be supplied by the Company;
“Services” means any services to be performed by the Company;
2. Basis of contract
2.1 Any quotation shall remain open for a maximum period of 30 days from its date. Quotations are not binding and shall not be open for acceptance by the Customer. Where Goods are quoted for supply from stock they are quoted subject to being unsold when the Customer’s order is accepted.
2.2 These Conditions shall form the terms and conditions of the Contract and shall apply to the exclusion of any terms or conditions whether put forward by or on behalf of the Customer in or on its order or otherwise or whether implied by law (insofar as the exclusion of the same is lawful).
2.3 The placing by the Customer of any order shall constitute an offer by the Customer. No contract shall come into existence unless the Company accepts the Customer’s order in writing. Any order placed by the Customer with any of the Company’s salesmen or other employees or representatives shall be subject to written acceptance by the Company.
2.4 No alteration to these Conditions shall be effective unless expressly agreed to in writing by a director of the Company.
3. Information, samples and materials supplied
3.1 The Customer shall be responsible to the Company for ensuring the accuracy and sufficiency of its order (including of any applicable specification and/or sample). The Company shall be entitled to charge the Customer for all costs (and a reasonable element of profit) incurred by it where variations to Goods and/or Services are requested to the Customer and accepted by the Company.
3.2 Where samples are to be supplied by the Company, the Customer shall as soon as reasonably practicable [and in any event within 5 days after receipt of the same notify the Company that the samples are in all respects satisfactory or of any respect in which the samples are not satisfactory. In default of such notification the Company shall be entitled but not bound to proceed in the manufacture of the remainder of the Contract.
4.1 Any time quoted by the Company for delivery of all or any of the Goods [and/or performance of all or any of the Services] is an estimate only and time shall not be of the essence. The Company shall not be liable for any failure to meet any such estimate, nor for any loss, of whatsoever nature resulting directly or indirectly therefrom.
4.2 [The Company reserves the right to deliver all or any of the Goods [and/or the Services] in advance of the estimated date.
4.3 In the absence of agreement to the contrary delivery of the Goods shall be made by the Customer collecting the Goods at the Company’s premises as soon as practicable following notification from the Company that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place.
4.4 The Company reserves the right to deliver by instalments and each delivery shall constitute a separate contract to which these Conditions shall apply. Failure by the Company to deliver any one or more of the instalments 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.
4.5 Where delivery of the Goods is to be made by the Company in bulk, the Company reserves the right to deliver up to 10 per cent more or less than the quantity ordered, and the Company shall charge for the Goods in accordance with the quantity actually delivered.
4.6 If the Customer fails to take delivery of or collect the Goods or fails to give the Company adequate delivery instructions after notification by the Company that the Goods are ready the Company may (without prejudice to its other rights and remedies)
4.6.1 store the Goods (on its own or any third party’s premises) and charge the Customer for its reasonable costs (including without limitation VAT costs of storage, carriage and insurance); and/or
4.6.2 sell the Goods at any time and after deducting all costs and expenses account to the Customer for any excess over the price already paid under the Contract or charge the Customer for any shortfall between the Contract price and such costs and expenses.
4.7.1 Notification of short delivery (measured by weight or number) or damage in transit must be made in writing to the Company within 5 days of the receipt of the Goods;
4.7.2 Notification of non-delivery must be made in writing to the Company within 5 days after the date of the Company’s invoice;
4.7.3 The Company shall at its option either make good the whole or part of the price (and where relevant, as a deduction from any part of the price remaining unpaid) or by repair or replacement any such non-delivery short delivery or damage notified as aforesaid and save as provided in this Condition.
4.7.3 shall not be liable for any such non-delivery short delivery or damage in transit nor for any loss, financial or otherwise resulting directly or indirectly therefrom. In no event shall the Company be liable to the Customer in connection with any damage or loss in transit where delivery takes place at the Company’s premises.
4.8 All returnable containers and packing materials will be charged for, but credit will be given if these are returned in condition satisfactory to the Company to the Company’s works carriage paid within thirty days following delivery of the relevant Goods.
All descriptive and technical specifications, drawings, catalogues, illustrations and particulars of weight and dimensions supplied by the Company are approximate only and the Company reserves the right without notice to the Customer to make alterations thereto and to supply the Goods so altered in performance of the Contract provided that such alterations do not materially affect the characteristics of the Goods.
Following acceptance by the Company of the Customer’s order, no cancellation and/or suspension, either in whole or in part, may be made by the Customer other than with the prior written consent of a director of the Company and upon terms that the Customer shall indemnify the Company in full against all loss (including without limitation loss of profit ) damages, costs expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with the cancellation.
7.1 Subject to prior written agreement to the contrary, the Company shall be entitled to invoice the Customer for the price of the Goods on or at any time after the Company has notified the Customer that the Goods are ready for collection or the Company has tendered delivery of the Goods.
7.2 Any price quoted by the Company is based upon costs current as at the date of quotation. The price charged to the Customer under the Contract may be changed to take account of costs current at the date of invoice.
7.3 Unless otherwise expressly stated in writing, all prices are exclusive of VAT which shall be charged where appropriate at the rate prevailing at the relevant tax point.
7.4 The Customer shall make payment in full within thirty days following the date appearing on the Company’s invoice notwithstanding that the delivery may not have taken place and the property in the Goods may not have passed to the Customer. Interest at the annual rate of 4% over the base rate of the NatWest Bank Plc will be charged on a daily basis on all monies outstanding after the due date until the actual date of payment (both before and after judgment).
7.5 Where payment is agreed to be made by instalments, each payment must be made on receipt of the invoice. Any delay or default by the Customer in making payment in respect of any one instalment shall render all the remaining instalments due forthwith, and interest will be charged in accordance with condition 7.4 with immediate effect until the date of actual payment.
7.6 The Company may appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Company and the Customer) as the Company may think fit (notwithstanding any purported appropriation by the Customer).
8. Risk and title
8.1 Risk in the Goods shall pass to the Customer immediately on delivery to the Customer or into custody on the Customer’s behalf whichever is the sooner.
8.2 Notwithstanding delivery and the passing of risk, property in and title to the Goods shall remain in the Company until the Company has received payment of the full price of (a) all Goods [and/or Services] the subject of the Contract and (b) all other goods [and/or services] supplied by the Company to the Customer under any other contract whatsoever.
8.3 Until property in and title to the Goods passes to the Customer
8.3.1 the Customer shall keep the Goods properly stored, protected and insured and separate from all or any other goods whether belonging to the Company the Customer or any third party;
8.3.2 the Company shall be entitled at any time forthwith to revoke the Customer’s power to deal with the Goods; and it shall automatically cease if the Customer shall commit or be subject to any Act of Insolvency; and
8.3.3 the Customer shall not make any modification to the Goods or their packaging or alter remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods.
8.4 Upon termination of the Customer’s power to deal with the Goods, the Customer shall place the Goods at the disposal of the Company and the Company and its servants and agents are hereby irrevocably authorised without the need for consent of any third party but using only such force as may be necessary, to enter upon any premises of the Customer or any third party for the purpose of removing the Goods.
8.5 If any of the foregoing provisions of this Condition shall be invalid or unenforceable such invalidity or unenforceability shall not affect the remaining provisions.
9. Termination and suspension
Without prejudice to any rights and remedies available to it, the Company shall be entitled, forthwith on written notice to the Customer either to terminate the Contract wholly or in part and/or any other contract with the Customer or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Customer (and on the giving of such notice all monies outstanding from the Customer to the Company shall become immediately due and payable) if:-
9.1 any sum owing to the Company from the Customer on any account whatsoever shall be unpaid after the due date for payment (in which event the Company shall have a general lien for any such sum on all and any property of the Customer in its possession);
9.2 the Customer shall commit or be subject to any Act of Insolvency;
9.3 the Customer shall commit any breach of any contract (including without limitation the Contract) with the Company.
In the event of a suspension of performance the Company shall be entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.
10.1 The Company shall:
10.1.1 make good at its option by reimbursement of the whole or part of the price (and, where relevant, as a deduction from any part of the price remaining unpaid) or by repair or by replacement:-
10.1.1.1 subject to Condition 5 any failure by the Goods to correspond with their specification at the time of delivery;
10.1.1.2 any defect developing under normal use in the Goods and due solely to faulty design (except where the design is supplied by or on behalf of the Customer) materials and/or workmanship;
10.1.2 make good by reimbursement of the price or by reperformance of the Services any defective workmanship in the performance of Services;
10.1.3 any failure to meet specification is notified in writing to the Company within seven days from the date of delivery or (where the failure was not apparent on reasonable inspection) within a reasonable time after discovery of the failure and in any event such failure must be notified within one month after delivery;
10.1.4 any such defect in design materials workmanship shall have appeared within one month after delivery and shall have been thereupon promptly notified to the Company in writing;
10.1.5 the Company shall be under no liability in respect of any defect in the Goods arising from any drawings, design or specification supplied by the Customer;
10.1.6 the Company shall be under no liability in respect of any defect arising from fair wear and tear, or other acts of the Customer including without limitation wilful damage, negligence, lack of proper maintenance or servicing, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;
10.1.7 the Company shall be under no liability until any monies due from the Customer under the Contract have been paid in full; and
10.1.8 any Goods alleged to be defective are promptly made available to the Company for inspection and, if so required by the Company, are promptly returned at the Customer’s risk and expense to the Company’s works for inspection.
10.1.9 the above warranty does not extend to parts, materials or equipment not manufactured by the Company in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company and can be transferred.
10.2 Provided that nothing in this Condition shall operate so as:-
10.2.1 to exclude the Company’s non-excludable liability in respect of death or personal injury caused by the negligence of the Company its servants or agents;
10.2.2 to affect the statutory rights of the Customer where Goods are sold or Services are supplied to a Customer dealing as a consumer within the meaning of Unfair Contract Terms Act; or
10.2.3 to exclude the application of Section 12 of the Sale of Goods Act 1979;
10.2.4 to exclude liability for fraudulent misrepresentation.
10.3 The Company shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company its servants or agents, [in a sum which is greater than the Contract price.
10.4 The Company shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company, its servants or agents.
11. Health and safety
For the purposes of Section 6(8) of the Health and Safety at Work Etc Act 1974 the Customer undertakes to comply with all instructions relating to the Goods received from the Company from time to time and to take such other steps sufficient to ensure, so far as is reasonably practicable, that the Goods will at all times be safe and without risk to health when being properly used, set, cleaned and maintained by a person at work.
12. Intellectual property rights
12.1 If any claim is made against the Customer that the Goods infringe or that their use or resale infringes the patent, copyright, database right, design right, registered design, trade mark or other industrial or intellectual property rights of any other person or any claim is made in respect of passing off or unauthorised use of Confidential Information in relation to the Goods and/or their use or resale the Customer shall forthwith notify the Company in writing and the Company shall be given full control of any proceedings or negotiations in connection with any such claim. The Customer shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations and except pursuant to a final award, the Customer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld). The Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Company may have in relation to such infringement.
12.2 If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Customer, the Customer shall (without prejudice to the other rights and remedies of the Company) indemnify the Company in full against all loss, costs, damages, charges, expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with
12.2.1 any claim for infringement of any patent, copyright, database right, design right, registered design, trade mark or other industrial or intellectual property rights of any other person and/or for passing off and/or unauthorised use of Confidential Information which results from the Company’s use of the Customer’s specifications;
12.2.2 any other liability of any kind to any third party including without limitation for defective Goods, personal injury or death to the extent that it arises from the specification.
13. Export terms
13.1 Any term or expression which is defined in the provisions of Incoterms 2000 (or any subsequent revision thereof) shall import the respective obligations of Buyer and Seller into these Conditions, but in the event of conflict these Conditions shall prevail.
13.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 13 shall (subject to any special terms agreed in writing between the Company and the Customer) apply not withstanding any other provision of these Conditions.
13.3 Unless otherwise agreed in writing between the Company and the Customer, the Goods shall be delivered either FOB or CIF and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
13.4 The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on testing or inspection and which is made after shipment, or in respect of any damage during transit.
13.5 Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer in favour of the Company and confirmed by a bank in United Kingdom acceptable to the Company or, if the Company has agreed in writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to the Company of a bill of exchange drawn on the Customer payable 30 days after sight to the order of the Company at such branch of Natwest Bank in England as may be specified in the bill of exchange.
14. Contracts for Services
If the Contract is for or to include Services to be performed by the Company the following provisions shall apply:-
14.1 The Company shall only be obliged to carry out Services during normal working hours and shall be entitled to charge for any overtime worked upon request by the Customer.
14.2 Where Services are performed at the premises of the Customer, the Customer shall provide free of charge:-
14.2.1 Proper and safe storage and protection of all Goods, tools, plant, equipment and materials on site;
14.2.2 Free and safe access to the site and place where the Services are to be performed;
14.2.3 All facilities and services necessary to enable such Services to be performed safely and expeditiously;
14.2.4 If such Services include the installation of Goods, all builders work, foundations and cutting away and making good where necessary;
14.2.5 The availability of all plant and equipment to permit the Goods to be tested upon completion of Services.
14.3 The Customer shall pay the Company any expenses incurred by the Company by reason of a breach by the Customer of any of its obligations in this Condition without prejudice to the Company’s right to recover any loss thereby occasioned.
14.4 Goods and Services supplied on the site of the Customer are at all times at the sole risk of the Customer and if any part is lost or destroyed for any reason whatsoever the Company shall be entitled to charge as a variation to the Contract for the restoration of such Goods and/or Services. The Customer shall for the benefit of itself and the Company insure and keep insured with reputable insurers the full value of Goods and Services against every kind of loss, damage or destruction. The Customer shall produce the policy to the Company upon request together with the latest premium receipts and in default of effecting the same the Company shall be entitled to do so and add the cost of such insurance to the Contract price.
15.1 It shall be the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever, (including without limitation any relating to the importation or use of the Goods in the country of destination and for the payment of duties thereon) are duly complied with. It shall be a condition precedent to the performance by the Company of its obligations under the Contract that all necessary licences, permits and consents shall have been obtained by the Customer.
15.2 Without prejudice to the generality of Condition 15.1 the obtaining of any relevant exchange control consents shall be a condition precedent to the performance by the Company of any of its obligations under the Contract.
15.3 Neither party shall have any liability for any failure to perform or for any delay in the performance (other than as to payment) of any of its obligations under the Contract caused by any factor beyond its reasonable control.
The rights and remedies of the Customer in respect of the Contract shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company to the Customer nor by any failure of or delay by the Company in ascertaining or exercising any such rights or remedies. Any release, waiver or compromise or any other arrangement of any kind (a release) by the Company shall not affect its rights and remedies as regards any other party nor its rights and remedies against the Customer in whose favour it is granted or made except to the extent of the express terms of the release and no such release shall have effect unless granted or made in writing. The rights and remedies in this Contract are cumulative and not exclusive of any rights and/or remedies provided by law.
15.4 The Contract is personal to the Customer. The Customer shall not assign, transfer or charge its rights and responsibilities under this Contract or any of them, nor appoint any sub-contractor or agent without the prior written consent of the Company.
15.5 The provisions of the Conditions are severable and distinct from one another, and, if at any time any of the provisions is or becomes invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions shall not in any way be affected or impaired.
15.6 The headings in these Conditions are for convenience only and do not affect the interpretation of the Contract.
15.7 The Conditions and the Contract shall not constitute and shall not be deemed to constitute a partnership between the Company and the Customer and the Customer shall not act nor purport to act as agent for the Company but solely as an independent contractor.
All notices under this Contract shall be in writing and may be served by post or facsimile transmission addressed to the other party at the address given in this Contract or at such other address as a party shall from time to time by notice in writing give to the other party for the purpose of service of notices under this Contract and every such notice shall be deemed to have been served by post at the expiration of five days after despatch of the same or if sent by facsimile transmission at ten hours local time on the next normal Business Day of the recipient following despatch and in proving service it shall be sufficient to show in the case of a letter that the same was duly addressed prepaid and posted in the manner provided and in the case of a facsimile transmission a transmission report that it was transmitted to the correct telephone number. Saturdays, Sundays and Bank Holidays shall not in any event be treated as days on which service is effected, and service shall be deemed to take place on the next normal Business Day of the recipient.
15.8 The Contract shall be governed in accordance with the laws of England and Wales.
Any dispute arising under this Contract shall be subject to the exclusive jurisdiction of the English courts and the parties waive any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.
16. Third Party Rights
For the avoidance of doubt nothing in these Conditions shall confer on any third party any benefit or the right to enforce any provision of these Conditions.