1. GENERAL
These conditions apply to this contract and override all conditions stipulated by the Buyer. No variation of these terms shall be binding upon the Company unless in writing and signed on its behalf by a Director or Manager.
2. DRAWINGS, ETC.
All descriptive and forwarding specifications, drawings and particulars of weights and dimensions submitted with our tender or acceptance are approximate only, and the descriptions and illustrations contained in our catalogues, price lists and other advertisement matter, are intended merely to present a general idea of the goods described therein, and none of these shall form part of the contract.
After acceptance of the tender up to two sets of certified outline drawings and parts lists will be supplied if required. At any time during the tender period we reserve the right to make any alterations or improvements to design which we deem to be necessary.
No photographs, drawings, diagrams or manuals prepared by the Company shall be reproduced in whole or in part without the prior written consent of the Company.
3. INSPECTION AND TEST
Our manufactures are carefully inspected and, where practicable, submitted to our standard tests at our works before despatch. If special tests or tests in the presence of you or your representative are required, these, unless otherwise agreed, must be made at our Works and will be charged for extra, and in the event of any delay on your part in attending such tests after seven days notice that we are ready, the tests will proceed in your absence, and shall be deemed to have been made in your presence.
4. PERFORMANCE
Any performance figures given by us are based upon our experience and are such as we expect to obtain on test. We will, however, accept no liability if these figures are not obtained unless we specifically guarantee them under an agreed sum, as liquidated damages, and a bonus subject to the recognised tolerances and rejection limits applicable to such figures.
We are to be given reasonable time and opportunity to comply with the terms of the guarantee before you call upon us to pay any sum in respect of such liquidated damages. If we fail so to comply, you may reject the goods and we will repay you any sum paid by you to us on account of the contract price thereof, and any sum that may have accrued due to you in respect of delay in despatch under Clause 5 up to the date of rejection.
You assume responsibility for the capacity and performance of the goods being sufficient and suitable for your purpose.
5. DESPATCH
Any times quoted for despatch are to be treated as estimates only not involving any contractual obligation unless we have contracted specifically in writing to despatch within a specified time or by a specified date. Any such contractual obligation is subject to our not being delayed by instructions, or lack of instructions from you or by industrial dispute or by any cause whatsoever beyond our reasonable control. In no case shall delay be a ground for rejecting goods or terminating the contract.
6. EXTRA COST
In the event of the suspension of the work by your instructions or lack of instructions, the contract price shall be increased to cover any extra expense thereby incurred by us.
7. RESERVATION OF PROPERTY
In accordance with the provisions of section 19, Sale of Goods Act 1979, the seller reserves the right of disposal of the goods until all monies owing to the seller, whether under this or any other contract, have been paid in full. In the event of the buyer reselling the goods before paying the seller therefore, the buyer shall hold the proceeds of sale in a separate and designated account on behalf of the seller, and shall pay such sum as may be due to the seller therefrom, on demand.
The seller’s reservation of the right of disposal shall not be extinguished if the buyer mixes the goods with other goods unless the mixing changes some essential physical or chemical character of the goods. For so long as the goods remain in the possession of the buyer in a form in which they could be repossessed, the buyer shall ensure that they are clearly identified as belonging to the seller.
RISK
Notwithstanding the foregoing, in accordance with the provisions of section 20, Sale of Goods Act 1979, the risk in the goods shall pass to the buyer on delivery.
8. CANCELLATION
(a) Upon the agreed cancellation of a Contract the Buyer will be liable for payment for all work carried out by the Company up to the time it may be reasonable and practicable to cease manufacture. This payment will cover all costs plus a loss of profit contribution. The Company reserves the right to refuse to agree to cancel a Contract in which case the Buyer shall be bound to accept delivery of goods and to pay for them.
(b) Orders are only accepted subject to the satisfactory credit status of the Buyer, and the Company reserves the right to terminate the Contract should the credit status of the Buyer cease to be satisfactory to the Company.
9. PARTIAL SHIPMENTS AND PAYMENTS
The Company may deliver an order by instalments and each instalment shall be deemed to be sold under a different contract (to which these conditions shall apply), and the Company may also render accounts in respect of any instalment of an order delivered before full delivery, which accounts shall be payable as provided in 9 below. Failure to pay any account in respect of any instalment shall entitle the Company to suspend deliveries of other instalments pending such payment, but without prejudice to any other remedy available to the Company in law or equity in respect of such failure.
10. TERMS OF PAYMENT
(a) Unless otherwise stated in the Contract payment in full in respect of any goods or part(s) of the goods shall become due 30 days from the date of despatch of the goods as shown on the face of the invoice.
(b) Should the Buyer fail to make payment in accordance with the terms allowed the Company shall be entitled to charge and to receive from the Buyer interest on the overdue amount at 1.5% above the Bank of England minimum lending rate ruling at due payment time.
(c) The Company reserves the right to request advance payment, either in part or in full, prior to manufacture and/or shipment of any goods, or provision of any service.
11. PRICE
Prices herein are for the quantity mentioned and changes in quantity may affect price. The prices charged in the Contract are the Company’s prices ruling at the date hereof. The Company reserves the right to vary prices without notice and to charge the buyer the price ruling at the date of delivery.
12. DELIVERY CHARGES
Unless otherwise specified in our tender/acceptance the price quoted does not include delivery which may be carried out by any method of transport at our option and the customer charged accordingly.
13. STORAGE
If we do not receive forwarding instructions within seven days after the date of notification that the goods have been tested under Clause 3 or are ready for despatch, you shall take delivery or arrange for storage. We are prepared, if our storage facilities permit, to store the goods making a charge to cover all storage, freight and insurance costs until the goods are despatched, and the goods shall be paid for as if they had been despatched.
14. DAMAGE IN TRANSIT
When the price quoted includes delivery, we will repair or replace free of charge goods damaged in transit provided the carriers and ourselves receive written notification of such damage within three days of delivery, but not otherwise.
15. PACKING
Unless otherwise specified in our tender all wooden packing cases, skids, drums, etc. are non-returnable and will be charged accordingly.
16. LIMITS OF CONTRACT
Our tender/acceptance includes only such goods, accessories and work as are specified herein.
17. CLAIMS
The Company shall not be liable in respect of any claims arising out of errors in despatch or invoicing unless the Company receives notice thereof within fourteen days of the receipt by the purchaser of the Company’s advice note or invoice as the case may be.
18. GENERAL LIABILITY AND MAINTENANCE GUARANTEE
Save as provided in Clause 4 in lieu of any warranty condition, or liability implied by law, our liability in respect of any defect or failure of goods supplied, or for any loss, injury or damage attributable thereto, is limited to making good by replacement or repair defects which, under proper use, appear therein and arise solely from faulty design, materials, or workmanship within a period of twelve calendar months after the original goods shall have first been despatched at the termination of which period all liability on our part ceases; provided always that such defective parts are promptly returned free to our works, unless otherwise agreed. The repaired or new parts will be delivered free within the United Kingdom.
Notice of alleged defect or failure must be received in writing by the company within the said period of twelve calendar months.
In the case of goods not of our manufacture, you are entitled only to such benefits as we may receive under any guarantee given to us in respect thereof.
19. PATENTS
We will indemnify you against any claim of infringement of letters patent or registered design (published at the date of the Contract/Order) by the use or sale of any article or material supplied by us to you and against all costs and damages which you may incur in any action for such infringement or for which you may become liable in any such action. Provided always that this indemnity shall not apply to any infringement which is due to our having followed a design or instruction furnished or given by you or to the use of such article or material in a manner or for a purpose or in a foreign country not specified by or disclosed to us. And provided also that this indemnity is conditional on your giving to us the earliest possible notice in writing of any claim being made or action threatened or brought against you and on your permitting us at our own expense to conduct any litigation that may ensure and all negotiations for a settlement of the claim. You on your part warrant that any design or instruction furnished or given by you shall not be such as will cause us to infringe any letters patent, registered design or trade mark in the execution of your order and indemnify us against any damages or costs incurred by the Company as a result of breach of this warranty.
20. ARBITRATION
If at any time any question, dispute, or difference whatsoever shall arise between you and ourselves upon, in relation to or in connection with this contract, either of us may give to the other notice in writing of the existence of such question, dispute, or difference, and the same shall be referred to the arbitration of a person to be mutually agreed upon, or failing agreement within 14 days of receipt of such notice, of some person appointed by the President for the time being of the Institution of Mechanical Engineers. The submission shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act 1950, or any statutory modification or re-enactment thereof.
Neither party shall be represented before the arbitrator by solicitor or counsel.
21. LEGAL CONSTRUCTION
The Contract shall in all respects be construed and operate as an English contract and in conformity with the Laws of England.
22. USAGE
All equipment is offered for use with recommended fluid medium up to maximum working pressure specified and in recommended operating environment.
23. INSTALLATION
The installation of the goods is not included in this contract unless expressly provided for.
24. COPYRIGHT
Any details disclosed in this communication and in our previous and any future discussions are to be treated confidentially and no sample, copy or statement appertaining to the subject matter may be discussed or disclosed to third parties.