Combined Goods: any Goods which have been joined or connected in any way to other goods, chattels or any other property or assets by or on behalf of the Customer in such a way that the Goods are nevertheless readily identifiable and removable;
Company: Nerak-Wiese Limited;
Conditions: these Terms and Conditions of Supply;
Confidential Information: any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential;
Commercial Unit: a unit of Goods, the division of which would materially impair the value of the Goods or the character of the unit;
Contract: any contract between the Company and the Customer for the supply of Goods and/or Services, incorporating these Conditions;
Customer: the person, firm or company who purchases the Goods and/or Services from the Company;
Equipment: any goods or materials (including Goods) in relation to which any maintenance services are to be performed;
Goods: any goods agreed in the Contract to be produced by the Company for the Customer and/or sold by the Company to the Customer (including any part or parts of them);
Incorporated Goods: any Goods which have been incorporated into other equipment or goods by or on behalf of the Customer in such a way that the Goods are not readily identifiable and removable;
Input Material: any documents or other materials, and any specification, data or other information provided by the Customer to the Company relating to the Goods and/or Services;
Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered;
Output Material: any documents or other materials, and any specification, data or other information provided by the Company to the Customer relating to the Goods and/or Services;
Report: any report which is compiled by, or any certificate which is issued by, the Company, in relation to the commissioning of the Goods;
Services: any services agreed in the Contract to be performed by the Company for the Customer (including any part or parts of them) including any installation work and any commissioning services to be undertaken in relation to the Goods and any maintenance services to be undertaken in relation to the Equipment;
Working Hours: between 09.00 and 17.00 on Monday to Friday inclusive, excluding any public or bank holidays.
2.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.3 Any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly.
2.4 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.
2.5 Words in the singular include the plural and in the plural include the singular.
2.6 A reference to one gender includes a reference to the other gender.
2.7 Condition headings do not affect the interpretation of these Conditions.
3.1 Subject to any variation under Condition 3.3 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
3.2 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
3.3 These Conditions apply to the supply of all Goods and Services by the Company and any variation to these Conditions and any representations about any Goods and/or Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
3.4 Each written purchase order or acceptance of a quotation for Goods and/or Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Conditions.
3.5 No order placed by the Customer shall bind the Company until the Company has accepted the Customer’s order in writing.
3.6 Acceptance of any order by the Company is subject to the provision by the Customer of full and final information to enable the Company to fulfil the Customer’s order and the Customer agrees to provide such information as may be required. If in the opinion of the Company the Customer has failed to provide sufficient information, the Company will not proceed to fulfil the Customer’s order until full and final information is made available. In such event, the Company shall be entitled to vary prices and delivery periods or dates in accordance with these Conditions.
3.7 No order placed by the Customer may be cancelled, varied, or deferred by the Customer, except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), charges and expenses incurred by the Company as a result of such cancellation, variation or deferment.
3.8 The Customer shall ensure that the terms of its order are complete and accurate.
3.9 Any surplus fittings or materials shall remain the property of the Company and shall be returned to it.
3.10 Any quotation is given on the basis that no Contract shall come into existence until the Company has accepted the Customer’s order pursuant to Condition 2.5 above. Any quotation is valid for a period of 30 days only from its date (unless otherwise specified), provided that the Company has not previously withdrawn it.
4.1 The quantity and description of any Goods and/or Services shall be as set out in the Company’s acceptance of the Customer’s order pursuant to Condition 2.5.
4.2 Although reasonable precautions will be taken by the Company to ensure the accuracy of such information, all descriptive matter, weights, dimensions, and performance data supplied by the Company and any descriptions and illustrations contained in the Company’s data sheets, technical bulletins, catalogues, price lists, website and other advertising matter are approximate only and are intended merely to convey a general description of the Goods and Services; they are not (unless it is expressly so stated in the Contract) deemed to form any part of any Contract and are not to be regarded as a warranty or representation. Where such descriptive matter, weights, dimensions and performance data are expressly stated to form part of the Contract they may be varied to the extent permitted by normal manufacturing tolerances.
4.3 The Customer warrants that any Input Material and instructions submitted by the Customer shall not cause the Company to infringe any Intellectual Property Rights of any other person. The Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by, the Company, in settlement of any claim for infringement of any Intellectual Property Rights of any other person resulting from the Company’s use of any Input Material and/or instructions submitted by the Customer.
4.4 The Customer warrants that any Input Material and instructions submitted by the Customer shall not contravene any applicable safety or other statutory or regulatory requirement. The Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company as a result of any breach of this warranty.
4.5 Without prejudice to Condition 3.1, the Company shall use its reasonable efforts to supply the Goods in accordance with any specification submitted by the Customer and approved by the Company, but may in any event effect minor modifications to the Goods without the Customer’s approval in order to comply with any applicable safety or statutory requirements, or to effect enhancements to the Goods. The Company will notify the Customer in writing of any proposed material modifications to the Goods and the Customer shall be deemed to have accepted such modifications unless notice in writing to the contrary shall be received by the Company within 3 days of the date of the Company’s notice to the Customer.
4.6 All Goods shall be supplied by the Company to any standard commercial tolerances that apply within the appropriate industry, unless the Customer notifies the Company in its order of any special tolerances that the Customer requires.
4.7 Subject to the provisions of Condition 9.2 (b), the Customer shall be solely responsible for ensuring the suitability of any Goods for any specific purpose.
4.8 The Goods will not undergo factory acceptance tests unless otherwise agreed in writing by the Company; if the Company agrees to undertake any factory acceptance test as aforesaid, the Customer will be required to pay an additional fee to the Company in respect thereof and an extension to the delivery date may also be required.
4.9 The Company will accept no liability for failure to attain any performance standards with respect to the Goods, unless they have been specifically agreed in writing by the Company (subject to any tolerances agreed to by the Company in writing), in which case the Company will accept liability in an agreed sum as liquidated damages. If the performance standards obtained on any test provided for in the Contract are outside the acceptance limits specified therein, the Customer will be entitled to reject the Goods, or (if applicable) accept the Goods and claim liquidated damages in accordance with this Condition 3.9. Before the Customer becomes entitled to claim liquidated damages or to reject the Goods in accordance with this Condition 3.9, the Company is to be given reasonable time and opportunity to rectify its performance.
5.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business. The Customer shall be responsible for arranging for the carriage of the Goods to the destination address. All transportation and carriage costs (including, without limitation, the cost of all related insurance coverage and the cost of loading and unloading the Goods) shall be borne by the Customer.
5.2 If specified by the Company, all packing cases, skids, drums and other packing materials must be returned to the Company’s place of business at the Customer’s expense and in good condition within one month from date of receipt. If not so returned they may be charged for.
5.3 Unless otherwise agreed in writing by the Company, any installation and/or commissioning of the Goods shall take place at the Customer’s premises.
5.4 Subject to Condition 4.8, any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
5.5 Delivery dates and periods shall be extended as necessary if any delay in delivery is caused as set out in Condition 7.3 of these Conditions or due to any other circumstances beyond the control of the Company. If any such delay causes the Company to revise agreed production schedules delivery will (subject to these Conditions) be in accordance with such revised schedules which will be notified to the Customer.
5.6 The Customer may request earlier delivery dates than those originally agreed and the Company will at their discretion endeavour to accommodate such requests providing that sufficient notice is given. Any additional costs associated with achieving an earlier delivery date will be for the Customer’s sole account.
5.7 The Services supplied under the Contract shall be provided by the Company to the Customer from the date of acceptance by the Company of the Customer’s offer in accordance with Condition 2.5, unless otherwise specified by the Company. Time for performance of the Services shall not be made of the essence by notice.
5.8 If a fixed time is quoted in writing by the Company for despatch or delivery and the Company explicitly agrees in writing to accept liability in the form of liquidated damages and the Company fails to despatch or deliver the Goods within that time or within any extension thereof provided by this clause, and if as a result the Customer shall have suffered loss, the Company undertakes to pay for each week or part of a week of delay, liquidated damages at the rate of 0.25% up to a maximum of 5% (or any other percentage specifically stated in the Company’s quotation) of that portion of the price named in the Contract which is referable to such portion only of the Goods as cannot in consequence of the delay be used commercially and effectively. Such payment of liquidated damages pursuant to this Condition 4.8 shall be in full satisfaction of the Company’s liability for delay.
5.9 Subject to Condition 4.8, the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods and/or performance of the Services (even if caused by the Company’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
5.10 The Customer must examine the Goods upon delivery and within 7 days thereafter notify the Company in writing of any defects. In default the Customer will be deemed to have examined and accepted the Goods. Where the Contract is for the sale of Goods making up one or more Commercial Units, the Customer accepting any Goods included in a Commercial Unit shall be deemed to have accepted all of the Goods making up the Commercial Unit.
5.11 If for any reason the Customer fails to take or accept delivery of any or all of the Goods, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company’s negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); or
(d) sell the Goods at the best price readily obtainable and (after deducting any reasonable costs and expenses in connection with the storage and expedited sale of the Goods), charge the Customer for any shortfall below the price for the Goods.
5.12 The Company may deliver the Goods by separate instalments and perform the Services in separate tranches. Each separate instalment or tranche shall be invoiced and paid for in accordance with the provisions of the Contract.
5.13 Each instalment or tranche shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment or tranche shall entitle the Customer to repudiate or cancel any other Contract or instalment or tranche.
5.14 Without prejudice to the provisions of Condition 4.11, the Company reserves the right to charge for the storage of Goods at such rate as shall be agreed with the Customer, if:
(a) the Customer requests that its order be put on hold; or
(b) if any Goods are held by the Company (through no fault of the Company) for any period of time beyond any date specified by the Company for the delivery of the Goods.
5.15 Where the Company has agreed to undertake Services at the Customer’s premises, the Customer shall:
(a) be responsible for preparing and maintaining any relevant part of the Customer’s premises for the performance of the Services and for reinstating any such part of the Customer’s premises and undertaking any required making good and clean-up work once performance of the Services has been completed;
(b) ensure that conditions at the Customer’s premises are suitable for the performance of the Services and that any relevant thing required to perform the Services thereon is available and in good working order;
(c) if requested to do so by the Company and without charge, provide facilities at the Customer’s premises for the off-loading and storage of the Goods and the Company’s tools and equipment in a readily accessible and secure storage area protected from theft and damage and shall be solely responsible for the safekeeping of the Goods and the Company’s tools and equipment whilst the same are stored at the Customer’s premises;
(d) take all steps to ensure the health and safety of the personnel of the Company whilst they are in attendance at the Customer’s premises in connection with the performance of the Services and be solely responsible for ensuring the safety of any and all persons who are or may be present at the Customer’s premises during the performance of the Services, including restricting access to those areas of the Customer’s premises where the Services are to be performed to those individuals engaged in performing the Services, or providing assistance to those so engaged;
(e) provide prompt and unobstructed access to and egress from the Customer’s premises;
(f) inform the Company of any unusual layout, composition or construction of the Customer’s premises or its parts and for reporting any unusual conditions or obstacles to the performance of the Services at the Customer’s premises to the Company;
(g) notify the Company of any special properties of, or requirements of the Customer in relation to, any surfaces, fixtures or fittings at the Customer’s premises, as the Company shall not in any event be held liable for any damage resulting directly or indirectly from the installation of any Goods to the Customer’s property, fixtures or fittings, including damage caused by the drilling of walls, tiles, glass or other surfaces, the removal of fixtures and fittings whether obsolete or not, or damage to porous or any other materials, nor shall the Company be held liable for any damage to the Customer’s property resulting directly or indirectly from the delivery of Goods to the Customer’s premises;
(h) ensure that any materials and/or surfaces upon which the Services are to be performed comply with any tolerances required by the Company and are of adequate strength to withstand any work undertaken on them by the Company and to support the Goods and the maximum loads to be imposed on the Goods;
(i) at all times during the performance of the Services ensure, insofar as it is reasonably practicable to do so, that other trades or operations are not undertaken on that part of the Customer’s premises where the performance of the Services is to take place, so as to ensure that the Services can be performed in one continuous, uninterrupted operation during Working Hours;
(j) be responsible at its own cost (other than for statutory obligations placed solely on the Company) for obtaining all consents, permissions, easements and licences necessary for the performance of the Services in accordance with these Conditions and for complying with all Statutes and Orders, Regulations and By-Laws which are applicable at any time to the Services and shall indemnify and keep indemnified the Company against any actions, proceedings, costs, charges, claims or demands arising out of or in connection with any breach of this Condition 4.15 (j);
(k) provide the Company with all information, co-operation and support that may be required to enable the Company to carry out its obligations to the Customer; and
(l) effect and maintain appropriate insurance at the Customer’s premises on an all risks basis and in an adequate amount.
5.16 The Customer undertakes that it will comply with and will procure that its employees, customers and every other person working with, on, or near or using the Goods shall comply in full with the instructions and recommendations made in any manual or handbook or instructions provided by the Company or other manufacturer of the Goods and that they will comply with all other instructions given in connection with the use or operation of the Goods.
5.17 The Goods are designed to operate without danger to health and safety where correctly installed by competent personnel and used in accordance with the relevant National or International Standard, the rating for which the Goods were designed and accepted good practice. If the Customer intends to operate or use the Goods under unusual conditions (especially if special risks to health and safety are posed), it shall be the sole responsibility of the Customer to ensure the safe operation of the Goods in such circumstances.
5.18 When the Company undertakes the commissioning of the Goods for the Customer:
(a) commissioning will be carried out according to a specification to be agreed before commencement of commissioning;
(b) reasonable time and assistance will be provided by the Customer to the Company with respect to the commissioning of the Goods;
(c) no Report or abridgement or abstract of any Report shall be used in any Customer prospectus, advertisement or other publication, without the prior written consent of the Company; and
(d) subject to any other exclusion or limitation of the Company’s liability in these Conditions, the Company will only be liable for representations made by it and contained or referred to in the Report.
5.19 Where the Company has agreed to undertake maintenance services for the Customer, the following Conditions 4.20 to 4.29 shall govern the supply of maintenance services, without prejudice to the provisions of any other clause of these Conditions.
5.20 Preventative maintenance service visits to the Customer’s premises shall be undertaken at such intervals and upon such dates as shall be designated by the Company, at the Company’s sole discretion.
5.21 Dates for performance of the preventative maintenance services shall be suggested by the Company to the Customer and mutually agreed in advance. The Company reserves the right to levy a re-scheduling charge should the Customer wish to change any agreed dates for performance of the preventative maintenance services less than 7 days prior to any date so agreed.
5.22 During the preventative maintenance visit, (or otherwise thereafter, where appropriate) the Company shall check all aspects of the Equipment and replace or repair any faulty Equipment (or any faulty component of the Equipment).
5.23 The Company shall provide remedial (call-out) maintenance cover in order to fix any faults which may arise in relation to the Equipment. Remedial (call-out) maintenance cover will be provided at the times indicated in the Company’s written acceptance of order issued pursuant to Condition 2.5. Any response time indicated in the Company’s written acceptance of order is an estimate only and time shall not be of the essence for performance of the maintenance services.
5.24 The charges payable for the maintenance services shall cover either (i) all labour costs, together with (ii) the cost of any parts required for replacement or repair, or (i), but not (ii), which shall be separately chargeable. The extent of coverage will be indicated in the Company’s written acceptance of order issued pursuant to Condition 2.5. The cost of consumable items shall not be covered in either event.
5.25 The maintenance services shall be provided within Working Hours. If the Company has confirmed in the written acceptance of order issued pursuant to Condition 2.5 that the maintenance services will also be provided outside Working Hours, the maintenance services will be provided during the hours stated in the written acceptance of order. The Customer may request the Company to provide the maintenance services outside Working Hours at any time, provided that the Company reserves the right in its sole discretion not to accede to the Customer’s request. Where the Company agrees to the Customer’s request, the Customer will be charged for the maintenance services provided pursuant to the Customer’s request on a time and materials basis. All waiting time shall be chargeable.
5.26 The Customer warrants and undertakes to the Company that it is the owner or authorised user of the Equipment, that it has full power and authority to permit the Company to perform the maintenance services and the Customer undertakes to fully and promptly indemnify and hold the Company harmless against any loss or damage that the Company may suffer as a result of any breach by the Customer of this Condition 4.26.
5.27 In order to be eligible for maintenance under the Contract, the Equipment must at all times be in a condition suitable for regular planned maintenance and if the Company, in its sole discretion, at any time deems the Equipment not to be in such a condition, the Company may, without liability to the Customer, refuse to undertake maintenance services in relation to the Equipment.
5.28 All defective parts removed from the Equipment by the Company shall become the property of the Company and their replacements shall become the property of the Customer.
5.29 The maintenance services shall not include:
(a) any work in relation to anything which does not form a part of the Equipment; and
(b) any maintenance or repair work with respect to any modification of, or addition to, the Equipment, if any such modification or addition has been undertaken without the Company’s prior consent; and
(c) the repair of any damage to the Equipment caused by fire, water, frost, lightning, wind, damage in transit, burglary, vandalism, or explosion; and
(d) the remedy of any defect resulting from any misuse of, neglect of, tampering with, or wilful or accidental damage to the Equipment, or from the utilisation of incorrect mains voltage with the Equipment where relevant, the attachment of the Equipment to any unsuitable or inappropriate devices or the use of defective or inappropriate supplies with the Equipment, or from any failure to follow any instructions contained in any operation or maintenance manual published for, or otherwise specified to be appropriate for use in conjunction with, the Equipment, or from any failure to follow any written or oral instructions of the Company, or from any failure to maintain a suitable environment for the Equipment at the Customer’s premises where relevant, including any failure to maintain a continuous power supply where required.
5.30 The Customer shall not, without the prior written consent of the Company, whether acting on the Customer’s own account, on behalf of, or with any other person (including any person which the Customer directs to act on its behalf), at any time from the date of first provision of the Services to the expiry of 6 months after the last date of supply of the Services, solicit or entice away from the Company or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of the Services.
5.31 Any consent given by the Company in accordance with Condition 4.30 shall be subject to the Customer paying to the Company a sum equivalent to 15 % of the then current annual remuneration of the Company’s employee, consultant or subcontractor.
6.1 No claim for loss or damage in transit or for errors in despatch or invoicing will be accepted by the Company unless a separate written notice is given to the carrier concerned (if any) and to the Company within 3 days of receipt of the Goods, followed by a completed claim within 10 days of receipt of the Goods. In the case of non-delivery a separate written notice must be given to the carrier concerned (if any) and to the Company within 28 days of the invoice date.
6.2 If liability is accepted by the Company under Condition 5.1, the Company will repair or replace as appropriate at their sole discretion any lost or damaged Goods. The Customer shall have no other claim and the Company shall be under no liability for consequential loss or damage suffered by the Customer by reason of any delay in final delivery.
6.3 The Company will not accept the return of any Goods which have been properly supplied under the Contract.
7.1 Risk of damage to or loss of the Goods shall pass to the Customer:
(a) in the case of Goods to be delivered at the Company’s place of business, at the time when the Company notifies the Customer that the Goods are available for collection; or
(b) in the case of Goods to be delivered other than at the Company’s place of business, at the time of delivery of the Goods to the Customer’s premises, or such other location as shall be notified by the Customer to the Company in advance of despatch of the Goods.
7.2 Title to the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Customer on any account.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery and indemnify the Company against all loss or damage of whatsoever nature affecting the Goods;
(e) notify the Company immediately if it becomes subject to any of the events listed in Conditions 12.1 (d) to 12.1 (j) inclusive;
(f) not assign to any other person any rights arising from a sale of the Goods without the Company’s written consent (and then only subject to a set of terms and conditions containing a Risk and Title clause which is at least as onerous as this Condition 6);
(g) not pledge or in any way charge by way of security for any indebtedness any of the Goods (and if the Customer does so, all moneys owing by the Customer to the Company shall, without prejudice to any other right or remedy of the Company, forthwith become due and payable); and
(h) give the Company such information relating to the Goods as the Company may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business, provided that it shall hold the entire proceeds of any such resale upon trust for the Company until the Goods have been paid for in full and shall keep all such trust monies in a separate bank account which shall not be overdrawn and in which such trust monies are not mingled with its own or any other monies. The Customer acknowledges and agrees that a sale by an administrator or liquidator as part of or in connection with the sale of the assets or part of the assets of the Customer is not in the ordinary course of the Customer’s business.
(a) the Customer is late in paying for the Goods; or
(b) the Customer is late in paying for any other goods or services supplied by the Company; or if
(c) before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Conditions 12.1 (d) to 12.1 (j) inclusive or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then:
(d) without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, the Company may enter any premises of the Customer or of any third party where the Goods are stored or kept in order to recover them. The Customer shall not keep the Goods at any premises at which the Customer does not have the right to grant access to the Company.
(a) firstly, by reimbursing the Company for the cost and expense of the taking of possession of and arranging for the sale of the Incorporated Goods and any damages which the Company has suffered as a result of any repudiation of the Contract by the Customer;
(b) secondly, by paying any sums due and owing to other creditors of the Customer in respect of other items and materials used in connection with the manufacture of the Incorporated Goods where the property in such items and materials has remained vested in such other creditors by reason of effective retention of title clauses and the claims of such other creditors pursuant to such retention of title clauses have been notified to the Company by the Customer or its liquidator, administrator or receiver, or by such other creditors
8.1 Unless otherwise agreed by the Company in writing, the price for the Goods and/or Services shall be the price confirmed in the Company’s acceptance of the Customer’s order pursuant to Condition 2.5, but the Company reserves the right to vary the price and to invoice the Customer at the price ruling at the date of despatch of the Goods and/or performance of the Services.
8.2 If the cost to the Company of performing the Company’s obligations under the Contract shall be increased by reason of the making or amendment of any law or of any order, regulation, or by-law having the force of law that shall affect the performance of the Company’s obligations under the Contract, the amount of such increase shall be added to the Contract price.
8.3 The Company reserves the right, by giving notice to the Customer at any time before delivery of the Goods and/or performance of the Services, to increase the price of the Goods and/or Services if the period between acceptance of the Customer’s order and delivery of the Goods or performance of the Services is in excess of three months, or to reflect any increase in any cost to the Company which is due to any factor beyond the control of the Company (including any foreign exchange fluctuation, currency regulation, alteration of duties, increase in transportation costs and any increase in the costs of labour, materials or other costs of manufacture), or if there is any change in delivery dates, quantities or specifications for the Goods and/or Services which is requested by the Customer, or for any delay or failure on the part of the Customer to provide any Input Material, or for any delay caused by any instructions of the Customer, or for any failure of the Customer to give the Company adequate, accurate or complete information or instructions. The Company shall additionally be entitled to increase the price for the Services if suitable access to the site where such Services are to be provided is either not available or is restricted in any manner.
8.4 Unless otherwise agreed in writing between the Customer and the Company, the Contract price shall be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date of despatch of the Goods or commencement of performance of the Services.
8.5 Unless otherwise agreed in writing between the Customer and the Company, all prices for the supply of Goods are given by the Company on an ex works basis and the Customer shall be liable to pay the Company’s charges for transport, packaging and insurance.
8.6 Any waiver or reduction of any price will only be applicable if agreed by the Company in writing.
9.1 The Company shall be entitled to invoice the Customer for the price of the Goods and/or Services on or at any time after acceptance of the Customer’s order.
9.2 Notwithstanding the provisions of Condition 8.1 above, unless otherwise agreed in writing by the Company, invoices shall be raised and payments shall be made by the Customer in accordance with the schedule below:
(a) a non-refundable deposit payment of 30 % of the Contract price shall be payable upon issuance of the Company’s written acceptance of the Customer’s order pursuant to Condition 2.5; and
(b) an interim payment of a further 60% of the Contract price shall be payable upon readiness for delivery of the Goods; and
(c) the balance of 10 % of the Contract price shall be payable upon the earlier of:
(i) the date upon which the Goods are commissioned by the Company; or
(ii) the date which is 30 days immediately following the delivery date of the Goods; and
(d) all charges in this Condition 8.2 shall be paid by the Customer to the Company within 7 days of the date of the corresponding invoice unless otherwise agreed in writing.
9.3 The time of payment of the price shall be of the essence of the Contract.
9.4 No payment shall be deemed to have been received until the Company has received cleared funds. In the event that the Customer tenders payment by cheque and said cheque is returned unpaid to the Company, the Customer shall reimburse the Company for any bank charges incurred by the Company.
9.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
9.6 Any failure by the Customer to pay the Company any sum by the due date for payment and/or the occurrence of any one or more of the events set forth in Condition 12.1 in relation to the Customer shall entitle the Company, at any time and without notice to the Customer and without limitation to any other remedy available to the Company under these Conditions, the Contract, or otherwise:
(a) at its option, to charge interest at the rate of eight percent (8%) per annum above the Bank of England’s base lending rate from time to time calculated on a daily basis (whether before or after any judgment) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);
(b) to charge the Customer with any costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer;
(c) to suspend any warranty for the Goods and/or Services or any other goods or services supplied by the Company to the Customer, whether or not they have been paid for;
(d) to appropriate any payment made by the Customer to such of the Goods and/or Services as the Company may think fit;
(e) to set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever;
(f) to terminate the Contract, or suspend or cancel the further delivery of any Goods or the performance of any Services, including, without limitation, stopping the delivery of any Goods in transit;
(g) to withdraw or reduce any agreed monthly credit limit; and
(h) to cancel any discount (if any) offered to the Customer.
9.7 The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.8 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
9.9 For the avoidance of doubt, and notwithstanding the exercise of any remedy by the Company in accordance with Condition 8.6, or under any other of these Conditions, the Contract, or otherwise, the Customer shall remain liable to pay and shall pay the Company at the Contract rate, any and all payments subsisting at the relevant time.
9.10 Any sums paid by deposit, retainer or prepayment may not under any circumstances be refunded.
9.11 The Company shall retain a general lien on the full value of all Goods and Services provided until such Goods and Services have been fully paid for.
10.1 Due to the specialised nature of the Goods, the warranties in relation to Goods which are set out in this Condition 9 shall only apply to those Goods which have been commissioned by the Company in accordance with the requirements of Condition 4.18; the warranty period for such Goods shall be 12 months from the date upon which those Goods were commissioned by the Company, unless otherwise agreed by the Company in writing.
10.2 The Company warrants that (subject to the provisions of Condition 9.1):
(a) the Goods will correspond in all material respects with any specification submitted by the Customer and shall be free from any defects in materials, workmanship and design; and
(b) if the Customer has made it expressly known to the Company in the Customer’s order that the Goods shall be suitable for a particular purpose and the Company has expressly stated in the Company’s acceptance of the Customer’s order pursuant to Condition 2.5 that it will supply Goods suitable for that purpose, then the Goods shall be reasonably fit for the purpose so stated; and
(c) any Services will be performed with reasonable skill and care.
10.3 The Company shall not be liable for a breach of any of the warranties in Condition 10.2 unless:
(a) the Customer gives written notice of any defect or deficiency to the Company within 10 days from the date that the Customer discovered or ought to have discovered the defect or deficiency; and
(b) the Company is (where the alleged defect or deficiency relates to Goods), given a reasonable opportunity after receiving the notice of examining the Goods and the Customer returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there, or at the option of the Company, the Goods are made available at the Customer’s premises for inspection by the Company’s engineers.
10.4 The Company shall not be liable for a breach of any of the warranties in Condition 10.2 if:
(a) the Customer makes any further use of any Goods which the Customer has alleged to be defective after giving notice of any such defect; or
(b) the Customer alters or repairs the Goods without the prior written consent of the Company; or
(c) the defect arises because the Customer failed to follow any oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(d) the defect arises from any Input Material, and/or any instructions submitted by the Customer, or from fair wear and tear, wilful damage, negligence, abnormal working conditions or from any misuse of the Goods, or otherwise as a result of failure of the Customer to comply in full with any manual or handbook or instruction containing the technical specifications and operating instructions supplied by the Company for the Goods; or
(e) the Goods have been used for an application other than that specified at the time the Customer’s order was acknowledged, or otherwise not in accordance with the Company’s instructions;
(f) the full price for the Goods and/or Services has not been paid by the time for payment stipulated in Condition 8.2; or
(g) the defect is of a type specifically excluded by the Company by notice in writing.
10.5 Subject to Condition 10.3 and Condition 10.4, if the Goods do not conform to the applicable warranties in Condition 10.2:
(a) the Company shall at its option:
(i) repair the Goods;
(ii) replace such Goods (or the defective part); or
(iii) refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Customer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company; and
(b) the Company shall, if it opts to replace defective Goods, then deliver replacement Goods to the Customer (at the Company’s expense) and ownership of the defective Goods shall, if it has vested in the Customer, re-vest in the Company.
10.6 Subject to Condition 10.3 and Condition 10.4, where there is any non-conformity with the warranty in Condition 9.2 (c), the Company shall re-perform any Services which are proved to the reasonable satisfaction of the Company not to have been performed with reasonable skill and care, or at the Company’s option, shall refund any monies already paid by the Customer for any such Services.
10.7 For the avoidance of doubt (but without prejudice to the provisions of Condition 9.5 (a)), the failure of any part of the Goods to conform to either warranty in Condition 9.2 (a) or (b) shall only render the Company liable to repair, replace or refund the value of that part of the Goods which is defective.
10.8 With respect to Goods, then subject to Condition 3.9, if the Company complies with Condition 10.5 it shall have no further liability for any breach of the applicable warranties in Condition 10.2. With respect to Services, if the Company complies with Condition 9.6 it shall have no further liability for any breach of the warranty in Condition 10.2 (c)
11.1 Save for any stipulation as to the Company’s liability contained elsewhere in these Conditions, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Customer of any of the Goods or of any product incorporating any of the Goods and any use made by the Customer of the Services; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
11.4 Subject to Condition 11.2 and Condition 11.3:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price, PROVIDED THAT where the Company’s liability is referable only to a particular portion of the Contract price, then the Company’s total liability shall in no circumstances exceed the value of that portion of the Contract price; and
(b) the Company shall not be liable to the Customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for indirect or consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
The Customer shall hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from any act or omission of the Customer, or from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
13.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
(d) the other party 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 a natural person) 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; or
(e) the other party 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 other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) 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 other party; or
(h) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(j) a creditor or encumbrancer of the other party 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; or
(k) 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 Conditions 13.1(d) 13.1(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, or seems likely to suspend or cease, to carry on all or a substantial part of its business; or
(m) information is received from which it appears that the other party may be insolvent or unable to pay its debts and the other party thereafter fails to provide security for payment upon demand;
(n) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
13.2 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of any Goods and/or Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
(b) the Company may exercise its rights under Condition 6 hereof to recover any Goods from the Customer’s premises for which payment has not been made in full, whether or not such payment is due; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
13.3 On termination of the Contract (however arising), Conditions 6-12, 14 and 16 shall survive and continue in full force and effect.
14.1 In these Conditions “Incoterms 2010” means the international rules for the interpretation of credit terms at the International Chamber of Commerce as in force at the date when the Contract arises. Unless the context otherwise requires, any term or expression which is defined here or given a particular meaning by the provisions of Incoterms 2010 shall have the same meaning in these Conditions.
14.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 13 shall (subject to any special terms agreed in writing between the Customer and the Company) apply, notwithstanding any other provisions of these Conditions.
14.3 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them. The Contract shall be subject to the procurement by the Customer at the Customer’s own expense of any import licence and any other authorisations necessarily required for the import of the Goods into the country to which the Goods are to be exported, but failure to obtain any such documents shall not entitle the Customer to cancel the Contract.
14.4 The import licence number and expiry date shall be furnished at the time the order for the Goods is placed with the Company, otherwise manufacture of the Goods will not be proceeded with. In the event of the import licence expiring before the Goods have been made available it shall be the responsibility of the Customer to obtain the renewal of such licence. The Company shall not be liable for any expense or loss caused by delay in obtaining such licence or the renewal thereof.
14.5 Unless otherwise agreed in writing between the Customer and the Company, the Goods shall be delivered Ex Works the Company’s place of business and the Company shall be under no obligation to give the Customer the notice relating to insurance mentioned under Section 32(3) of the Sale of Goods Act 1979.
14.6 The Customer shall be responsible for arranging for the testing and inspection of the Goods at the Company’s place of business before shipment. The Company shall have no liability for any defect in the Goods which would be apparent on inspection and in respect of which notification is made after shipment, or in respect of any damage to the Goods whilst in transit during shipment.
14.7 Payment of all amounts due to the Company shall be made against presentation of shipping documents and in accordance with the provisions of Condition 8.2.
15.1 The Customer and the Company agree that in the course of the Company supplying Goods and/or Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. The Customer shall not use any Confidential Information for any purpose other than to carry out the Customer’s obligations to the Company.
15.2 The Customer acknowledges the Company’s ownership of any Intellectual Property Rights in any Output Material, any Report and in any Goods and/or Services provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. Without limitation, the Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant of rights therein. No Output Material or Report may be copied or reproduced in whole or in part without the prior written consent of the Company. The Customer further acknowledges that any and all Intellectual Property Rights developed by the Company in performing any Services and in producing and supplying any Goods shall become vested and shall vest in the Company absolutely.
16.1 The Company may assign the Contract or any part of it to any person, firm or company.
16.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
16.3 The Company, but not the Customer, shall be entitled to subcontract any or all of its obligations under all or any part of the Contract.
The Company reserves the right to defer the date of delivery and/or performance, or to cancel the Contract or reduce the volume of the Goods and/or Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, Acts of God, governmental actions, acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, war, threat of war, sabotage, insurrection, civil disturbance or requisition or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, tempest, accident, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), import or export regulations or embargoes, restraints or delays affecting carriers or any inability or delay in obtaining supplies of adequate or suitable materials, difficulties in obtaining labour, fuel, parts or machinery or power failure or breakdown in machinery provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
18.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
18.2 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.
18.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
18.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
18.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
18.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
18.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
19.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or email:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or
(b) (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.
19.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax or email, on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.