In these Terms and Conditions of sale of Goods the defined terms shall have the meaning given to them using the following defined terms:
a) any taxes (including value added tax), duties or other charges levied by any government or other authority in respect of or by reason of the sale, export or import of the Goods or any part thereof but excluding taxes assessed on profits or gains; and/or
b) the cost of storage of the Goods if for any reason the Customer does not arrange for collection or accept delivery of the Goods following notification by the Company
2.OFFER AND ACCEPTANCE
2.1.A quotation does not constitute an offer to supply. All contracts are entered into by the Company on the understanding that these conditions shall apply thereto.
2.2.The placing of an order shall be deemed to be subject to these terms and conditions which shall apply to the exclusion of any other provisions contained in any document issued by the purchaser and, in particular, but without prejudice to the generality of the foregoing, contained in any order sent by the Purchaser.
2.3.No modification or amendment of these items and conditions shall be binding upon the Company unless otherwise stipulated herein or agreed in writing by an authorised officer of the Company.
3.ACCURACY OF THE DESCRIPTION OF GOODS AND RESPONSIBILTY FOR STATEMENTS
3.1.Subject to where the goods are stated to be sold as complying with a recognised trade or industry standard all descriptions, specifications, drawings and particulars of weights and dimensions submitted by the Company or otherwise contained in the Company's catalogues, brochures, price lists, quotations and other published matter are approximate only.
3.2.For the avoidance of doubt, the scope of any engagement between a Purchaser and the Company is limited to the sale of Goods (and it does not in any way provide any suitability assessment or supply and / or fit service).
3.3.All, if any, statements, recommendations and advice given (whether before or after the contract) by the Company or the Company's servants or agents to the purchaser or its servants or agents as to any matter relating to the goods, are given without responsibility unless given in writing by the Managing Director of the Company in response to a specific written request from the Purchaser for advice before or at the time the contract is made.
3.4.Subject to clause 3.3. the Company accepts no liability for any recommendation made regarding the suitability of any Goods for any project which may be in contemplation by the Purchaser.
3.5.The Purchaser accepts and acknowledges that the Purchaser is fully responsible for its own final determination as to the suitability of any information, material or Goods supplied by the Company, their contemplated use, manner of use, and whether any suggested use may or may not infringe any Intellectual Property Rights.
4.1.Whilst the Company endeavours to keep all information, illustration and specification in any catalogues, brochures, circulars or website content issued by the Company in respect of its own Goods as up to date as possible, these must not be taken as absolutely binding in detail and may be subject to variation from time to time by the Company.
4.2.The Company does not warrant the accuracy of those catalogues, brochures, circulars or website content and will not be responsible for any loss or damage incurred or suffered by the Customer as a result of any inaccuracies or errors therein, whether such catalogues, brochures, circulars or website content are produced by the Company or by a third party where the Company acts as agent or distributor for such third party.
4.3.The Company accepts no liability for any recommendation made regarding the suitability of any Goods for any project which may be in contemplation by the Purchaser unless given in writing by the Managing Director of the Company in response to a specific unless a written request from the Purchaser for advice before or at the time the contract has been made.
5.1.Unless otherwise stated by an authorised officer of the Company in response to a specific written request from the Purchaser, or noted on the quotation at time of issue, all prices expire 30 days net from the date the quotation is issued.
5.2.Unless otherwise stated in writing by an authorised officer of the Company, payment to the price of the goods for credit account holders will be due 30 days net after the month end following the date of delivery.
5.3.Proforma invoices must be paid in full prior to any manufacturing and/ or despatch of goods.
5.4.Time of payment is of the essence.
5.5.Without prejudice to any other rights of the Company hereunder, if the Purchaser shall fail to give all instructions reasonably required by the Company and all the necessary documents, licences, consents and authorities for forwarding the goods or shall pay to the Company all costs and expenses, including any storage charges incurred or arising from such delay.
5.6.The Purchaser shall not be entitled to make any deduction from the price of the goods in respect of any set-off or counter-claim unless both the validity and the amount thereof have been expressly admitted by the Company in writing.
6.PROPERTY AND RISK
6.1.Legal and beneficial ownership of the goods shall remain in the Company until full payment for the goods has been made as well as any other sums due to the Company under any other contract made with the Purchaser hereafter or until the property is vested in some other person by the operation of any statute. Until ownership passes the Purchaser must keep the goods free from any charge, lien or other encumbrance.
6.2.If, while subject to the Company's beneficial ownership the goods or any of them:
6.2.1.shall be so affixed to other goods (the "principal goods") that they cannot be removed without causing material damage to the principal goods, or
6.2.2.are intermingled with other goods in such way that although both types of goods retain their respective characteristics (if any) it is no longer possible to distinguish between them, or
6.2.3.are mixed, processed or converted into other goods so that they lose their separate identity and either become part or entirely new goods.
Then the Purchaser shall hold such goods as result from any combination or usage of the goods covered by 6.2.1 6.2.2 6.2.3 above (the "Mixed Goods") on trust for the Company as security for payment in full for the goods.
6.3.The Purchaser (acting on its own account and not as agent of the Company) may sell any of the goods or the Mixed Goods in his possession in the routine course of trading and on normal trade terms notwithstanding that title has not then passed to him, provided the Company has not required their return.
6.4.Where the Purchaser re-sells the goods or any of the Mixed Goods, before full payment for the goods has been made, the Company's beneficial title shall attach to the proceeds of sale (which expression in this clause includes any right to or claim for such proceeds) and the proceeds of sale shall be charged to the Company under any other contract made with the Purchaser hereafter.
6.5.The Company may at any time and from time to time until title has passed in the goods require them to be returned to it and if this requirement is not immediately complied with may retake possession of the goods and may enter any premises of the Purchaser for such purposes and sever the goods from anything they are attached to without being responsible for any damage caused. Such return or retaking of possession shall be without prejudice to the obligation of the Purchaser to purchase the goods.
6.6.The Company may maintain an action for the price of the goods sold notwithstanding the property in them may not have passed to the Purchaser.
6.7.Unless otherwise stated in writing, the goods shall be at the Purchaser's risk from the time at which delivery is deemed to take place under Condition 10 hereof. Any property of the Purchaser's left at the Company's premises will be at the Purchasers risk.
The Purchaser shall:
7.1.Sell the goods only in packaging supplied for the purpose by the Company or otherwise approved in writing by the Company and in particular shall not affix to the goods or their packaging any additions, labels, trademarks, badges, signs or other matter of whatever description other than as may previously have been approved in writing by the Company
7.2.Not deface or alter the goods or their packaging in any manner whatsoever, and in particular shall not alter, remove or in any way tamper with the Company's trade marks on the goods or any other matter applied to the goods by the Company or with its written approval.
8.DESIGN AND INTELLECTUAL PROPERTY RIGHTS
8.1.In furtherance of the Company's policy of continual development, the Company reserves the right to change the design of components incorporated within the goods without giving prior notice.
8.2.Where the Goods are made to a specification, instruction, drawing, design or other material or information supplied by or on behalf of the Purchaser to the Company pursuant to the Contract:
8.2.1.the Purchaser is responsible for the suitability and accuracy of the specification, instruction, design, drawing or other material or information (even where finally produced by the Company); and
8.2.2.the Purchaser warrants that the use by the Company of such specification, instruction, design, drawing or other material or information shall not infringe any third party's Intellectual Property Rights. If any claim is brought or threatened against the Company in respect of such an infringement, the Company shall be entitled to suspend carrying out further work for the Purchaser, and the Purchaser shall indemnify the Company on demand against all actions, claims, costs, demands, expenses and liabilities of whatsoever nature suffered or incurred by the Company as a result of any such claim or threatened claim brought against the Company.
8.3.The Purchaser acknowledges and agrees that any and all Intellectual Property Rights as may subsist in and/or may be acquired in or in connection with the goods provided by the Company to the Purchaser pursuant to the Contract, together with any goodwill attaching thereto, shall as between the Company and the Purchaser, remain the sole property of and vest in the Company.
8.4.Where the goods are not manufactured by the Company, the Company makes no representation or warranty that the design, manufacture, use or sale of the goods is not an infringement of any third party's Intellectual Property Rights.
9.CANCELLATION / CHANGES
9.1.Purchase Orders may only be cancelled by the Purchaser with the prior written consent of a director of the Company. Cancellation and/or changes will not be accepted where the goods have been made to the Purchaser's special order and if accepted by the directors of the Company, will only be made on terms that the Purchaser shall on demand, indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Company as a result of such cancellation and/or changes agreed.
9.2.In the event of cancellation by the Purchaser and/or changes agreed by the Company, the Purchaser will indemnify the Company on demand against all expenses, losses (including loss of profit), costs, damages and charges incurred (directly or indirectly) by the Company as a result of such cancellation or change.
10.1.Any time or date stated for delivery is given and intended as an estimate only and shall not be of the essence.
10.2.Unless otherwise stated in writing delivery shall be deemed to take place upon the occurrence of the first in time of the following:
10.2.1.the physical delivery of the goods to the Purchaser at the Company's premises; or
10.2.2.the physical delivery of the goods to the Purchaser's carrier (or his agent) for the transmission to the Purchaser or his nominee; or
10.2.3.the physical delivery of the goods to the Purchaser's place of business or such other place as he may direct by the Company (or his agent). The Purchaser being responsible for unloading.
Signature of any delivery note by any agent, employee or representative of the Purchaser shall be conclusive proof of the delivery.
10.3.Where the contract includes delivery by the Company or his agent,
10.3.1.Any claims for non-delivery must be made in writing to the Company within ten days of invoice or advice note (whichever is the earlier).
10.3.2.Any claims in respect of goods damaged in transit or shortages in delivery must be made to the Company within seven days of delivery. Shortages in delivery shall not give rise to a right to reject goods delivered.
10.4.The Company shall be entitled to make partial deliveries or deliveries by instalments. Each instalment shall be a separate agreement to which all the provisions of these conditions shall apply.
10.5.The Company shall endeavour to the best of its ability, within the respect of pipe, ducting, geotextiles and any other material supplied in lengths, to deliver the total linear requirement in the lengths ordered, but reserve the right to fulfil the order in available lengths at the same price per linear metre.
10.6.In the event of any delay in delivery the Company shall not be under any liability whatsoever to the Purchaser. The expression "liability whatsoever" in these conditions shall mean all liability of any kind including, without prejudice to the generality of the foregoing liability in contract, for negligence or under statue.
11.LICENCES, DUTIES, ETC
11.1.The payment of all import duties, charges and assessments and the obtaining of any necessary export and import licences in the respect of the goods is sole responsibility of the Purchaser and the Company shall be under no liability whatsoever to the Purchaser in respect of goods exported without the necessary export and import licences.
12.INFRINGEMENT OF RIGHTS
12.1.The Purchaser shall indemnify the Company against all loss, damage, costs and expenses suffered by the Company or to which the Company may become liable as a result of any work done in accordance with the Purchaser's specification(s) which involves infringement or alleged infringement of a patent, registered design or other right in industrial property.
12.2.If the Purchaser uses or sells the goods in such a manner as to infringe any such rights the Company shall not be responsible for such infringement and the Purchaser agrees to indemnify the Company from and against all liability arising therefrom.
13.1.If the Company is prevented or delayed (directly or indirectly) from making delivery of the goods or any part thereof by reason of acts of God, war, embargo, riot(s), strike(s), lockout(s), trade dispute(s), fire(s), break-down, inclement weather, interruption of transport, Government action, delay in delivery to the Company of any goods or materials or by any cause whatsoever (whether or not of like nature to those specified above) outside its control, it shall be under no liability whatsoever to the Purchaser and shall be entitled at its option either to cancel the contract or without any liability to extend the time or times for delivery by a period equivalent to that during which such delivery has been prevented.
14.1.The Purchaser shall keep confidential and shall not use, without the prior written consent of the Company, all or any information supplied by the Company to the Purchaser or disclosed to or obtained by the Purchaser pursuant to or as a result of the Contract, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Purchaser, or "disclosure of the same is required by law or by any other governmental or other regulatory body."
15.GUARANTEE AND LIABILITY
15.1.The Company guarantee all goods which have been manufactured by the Company against any defect of work or materials which can be proved to the Company's satisfaction to have been caused before delivery, provided that full details of any such defect are notified to the Company within thirty working days of its first appearing and that the goods are returned to the Company. The Company gives no guarantee in respect of goods which are not of the Company's manufacture but shall pass on to the Purchaser the benefit of any guarantee obtained by it from the manufacturer or supplier thereof (but so that nothing shall require the Company to commence litigation proceedings against such manufacturer or supplier or to incur any material expense in connection with any such claim by the Purchaser).
15.2.The guarantee shall be for a period of twelve months from the date of delivery and the liability of the Company shall be limited at its option to either supply replacement goods which will be subject to these terms and conditions or refunding a proportionate part of the price of the goods and save in respect for liability for death or personal injury resulting from negligence under any contract where such liability cannot be excluded or restricted and the Purchaser must rely on its own skill and judgement in relation to the goods, and the Company shall be under no liability whatsoever to the Purchaser for or arising out of any defect in, failure of, or unsuitability for any purpose of the goods or any part thereof whether the same be due to any act, omission, negligence or wilful default of the design, workmanship or materials or to any other cause whatsoever, and all conditions, warranties or other terms whether express or implied, statutory or otherwise, inconsistent with the provisions of this Condition are hereby expressly excluded.
Where a Purchaser's complaint or claim requires inspection of the Goods then:
16.1.Where the Purchaser's site on which the goods are situated is in the mainland United Kingdom, such inspection shall be undertaken by the Company on the Purchaser's site;
16.2.Where the Purchaser's site on which the goods are situated is outside the mainland United Kingdom (if in the Company's absolute discretion, the nature of the complaint so warrants) the Company may either send in its own representative or appoint an independent body to inspect the goods;
16.3.The Company and the Purchaser shall seek to agree on the nature and cause of any defect or damage giving rise to the complaint or claim and failing such agreement, the Company shall appoint an independent expert to investigate the complaint or claim, such expert to be the agent of the Company and all costs, fees and expenses of appointing such an expert shall be borne by the Purchaser; and
16.4.The Company shall bear the costs of re-delivery of the goods if it is agreed or determined under sub-clause 16.3 above that the Company is responsible for the defect or damage complained of or claimed by the Purchaser
17.1.The Company reserves the right to sub-contract the performance of the contract or any part thereof.
18.1.The Purchaser shall not violate any Applicable Anti-Bribery Law.
18.2.The Purchaser has and shall at all times implement adequate procedures designed to prevent it or any Associated Person from engaging in any activity which would constitute an offence under the Bribery Act if it were carried out in the UK, or violate any Applicable Anti-Bribery Law.
18.3.The Purchaser represents that, in connection with the Contract, no financial or other advantage has been, will be or is agreed to be given to any person (whether working for or engaged by the Company or any third party) by or on behalf of the Purchaser or its Associated Persons, unless details of any such arrangement have been previously approved in writing by Company.
18.4.Breach of any of the provisions in this clause 18 or of any Applicable Anti-Bribery Law is a material breach of the Contract and, without prejudice to any other right, relief or remedy, entitles the Company to terminate the Contract immediately.
18.5.The Purchaser shall promptly report to the Company in writing upon becoming aware that it or any of its Associated Persons relevant to the Contract (or to any agreement with the Company):
18.5.1.has committed an actual or suspected breach of this clause 18 or of any Applicable Anti-Bribery Law;
18.5.2.is proposed for debarment or suspension from, or are ineligible for participation in, any government procurement programmes or contracts;
18.5.3.is the subject of any actual or threatened police, judicial or regulatory investigation or proceedings in relation to any suspected breach of any Applicable Anti-Bribery Law;
18.5.4.has received any request or demand for any undue financial or other advantage in connection with the performance of the Contract.
18.6.The Purchaser shall keep detailed up to date books, accounts, and records that accurately reflect its transactions relating to the Contract, and the steps taken by it to comply with Applicable Anti-Bribery Law from the date of the Contract, and such books, accounts and records shall be retained for a period of not less than six years after their creation.
18.7.The Purchaser shall from time to time, at the reasonable request of the Company:
18.7.1.confirm in writing that it has complied with its obligations under this clause 18 and must provide any information reasonably requested by the Company in support of such compliance;
18.7.2.permit the Company to have such access to its books, accounts, and records (and to take such copies thereof) as reasonably necessary in order to verify compliance with this clause 18, and to meet with those of its Associated Persons as are relevant to the Contract to audit such compliance, for up to six years after termination or expiry of the Contract; and
18.7.3.permit the Company to appoint, and the Purchaser shall cooperate with, an independent accounting or auditing firm to carry out such audit as the Company reasonably requires in order to verify compliance with this clause 18 (including meeting with those of its Associated Persons as are relevant to the Contract), for up to six years after termination or expiry of the Contract.
18.8.The Purchaser must give reasonable assistance and cooperation to the Company in relation to any police, judicial or regulatory investigation or enquiry in relation to any suspected bribery or corruption, whether during the term of the Contract or up to six years after its termination.
19.1.The Purchaser shall not assign or transfer or purport to assign or transfer any contract to which these conditions apply for the benefit thereof to any other person whatsoever without the Company's prior written consent.
20.1.All contracts made between the Company and the Purchaser shall be governed by English Law and the Purchaser shall submit to the jurisdiction of the English Courts.