Terms & Conditions

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1. Description of Parties

1.1 The expression "the Company" shall mean the Company first named overleaf. The expression "the Customer" shall mean the customer of the Company.

2. General: Governing Terms & Conditions

2.1 These terms and conditions apply to all contracts between the Company and the Customer except contracts for the supply of goods pursuant to the terms of a lease whereby such goods are to remain the Company's property or on loan or under a hire purchase agreement. All orders in whatever terms are accepted by the Company subject to these conditions. No modification (written or oral) of these conditions shall be effective unless confirmed in writing by an officer of the Company. Previous dealings between the Company and the Customer shall not vary or replace these conditions in any way whatsoever. The signing by the Company of any of the Customer's documentation shall not imply any modification or have the effect of modifying these conditions. Acceptance of goods from the Company shall be conclusive evidence before any Court or Arbitrator that these conditions apply. No contract between the Company and the Customer shall come into existence until an order by the Customer is accepted by the earliest of a) the issue by the Company of an order acknowledgement b) delivery of the goods c) the issue of the Company's invoice.

2.2 These conditions shall override any other terms or conditions contained in or referred to in any order form or any other documents or correspondence of the Customer. No variation of these conditions shall be binding unless agreed in writing between the authorised representatives of the Company and the Customer.

3. Prices & Payment

3.1 Unless otherwise specified (subject to Clause 3.5 below) by the Company in writing the prices payable for the goods are those ruling at the date of despatch of the goods. Prices are exclusive of any applicable VAT.

3.2 Prices are quoted including carriage for the United Kingdom and Southern Ireland where minimum order quantities apply. All prices outside these destinations unless otherwise specified by the Company in writing are quoted ex-works and exclude freight insurance and delivery charges VAT and other taxes and duties. For goods sold on ex-works terms for payment for delivery the Company shall be at liberty to arrange transport at the customers expense to deliver the goods to the customers premises.

3.3 All invoices are payable 30 days from the date on which they are issued, unless otherwise agreed in writing by the Company or otherwise stated in the invoice. Time of payment of the price shall be of the essence of the contract. The Customer shall not be entitled to make any deduction from or withhold payment of the invoice price for any reason at all, save where and to the extent that the Company has given written notice setting out terms under which a discount may be offered for early payment and has offered such discount to the Customer and the Customer has accepted such terms and such offer. Payment may be required by the Company as a precondition to delivery of the goods. Without prejudice to any other rights of the Company if the Customer fails to make any payment by the due date, then a) the Company shall be entitled to cancel the contract or suspend any further deliveries to the Customer and b) interest compounded monthly on all sums overdue shall be payable by the Customer from the date of issue of the Company's invoice to the date on which payment is made (whether before or after judgement) at the rate of 12%.

3.4 The Company shall be entitled to invoice the Customer for the price of the goods upon the despatch of the goods or, where the goods are to be collected from the Company by the Customer, upon the Company notifying the Customer that the goods are ready for collection.

3.5 In the event of any increase in the cost to the Company of raw materials, other goods, labour or overheads or any increase in taxes or duties or any variation in exchange rates, or as a result of any other factor beyond the control of the Company, or any change in delivery dates or quantities of the goods requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions, the Company may increase the price payable by the Customer for the goods.

4. Export Terms

4.1 In these conditions "INCOTERMS" shall mean the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made and any date when the Contract is made and any term or expression which is defined in or given a particular meaning by the provisions of INCOTERMS shall have the same meaning in these conditions.

4.2 Where goods are supplied for export from mainland United Kingdom or otherwise for shipment to a country other than mainland United Kingdom the provisions of this Clause 4 shall apply notwithstanding any other provision of these conditions and subject to any special terms agreed in writing by the Company and the Customer.

4.3 Goods supplied for export from mainland United Kingdom or otherwise for shipment to a country other than mainland United Kingdom shall be sold for delivery in accordance with terms specified by the heading in INCOTERMS nominated by the Company. Unless otherwise agreed in writing between the Company and the Customer the goods shall be delivered “Ex-works” In any case there shall be no obligation upon the Company to give notice under S32(3) Sale of Goods Act 1979.

4.4 Unless otherwise agreed in writing by an officer of the Company payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer in favour of the Company and confirmed by a bank in London acceptable to the Company.

5. Description / Sampling of Goods

5.1 All descriptions and illustrations whether made orally or in writing or otherwise communicated to the Customer are intended merely to present a general idea of the goods described therein and nothing contained in any of them shall form any part of the contract or have any legal effect. When a sample of the goods has been exhibited to and inspected by the Customer it is hereby agreed that such sample was so exhibited and inspected solely to enable the Customer to judge for himself the quality of the bulk. Any advice or recommendation given by the Company its servants or agents to the Customer its servants or agents as to the storage application or use of goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer's own risk and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.

6. Delivery

6.1 Unless otherwise agreed in writing by the Company delivery shall be deemed to take place when the Company notifies the Customer that the goods are ready for delivery and makes them available to the Customer or any agent of the Customer or any carrier (who shall be the agent of the Customer whoever pays his charges) at the premises of the Company or other delivery point agreed by the Company.

6.2 The Company may at its discretion deliver the goods by instalments in any sequence. Where goods are delivered by instalments each instalment shall be deemed to be the subject of separate contract and no default or failure by the Company in respect of any one or more instalments shall vitiate the contract in respect of the goods previously delivered or undelivered goods.

6.3 If the Customer fails to take delivery of goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by any cause beyond the Customer’s reasonable control or by reason of the Company’s default) then, without prejudice to any other right or remedy available to the Company, the Company may 1) store the goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or 2) sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Customer for any shortfall below the price under the contract with the Customer, or 3) treat the failure to collect the goods as a repudiation of the contract and terminate the contract, while retaining all payments made by the Customer under the contract prior to its termination and being entitled to recover damages from the Customer.

6.4 Risk in the goods passes when they are delivered to the Customer, but title to the goods is subject to Clause 12. below.

7. Condition of Goods

7.1 The Customer shall thoroughly inspect the goods immediately upon delivery. Any claim by the Customer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall, whether or not delivery is refused by the Customer, be notified to the Company in writing within fourteen days from the date of delivery or, where the defect was not apparent on reasonable inspection, within fourteen days of the discovery of the defect or failure.

7.2 In the event that the Customer establishes to the Company's reasonable satisfaction that the goods are so defective in accordance with Clause 7.1 above or do so fail to correspond with specification, then, provided that 1) the Customer has used the goods only in accordance with the Company’s instructions, 2) has notified the Company of the defect(s) in accordance with Clause 7.1 above, and 3) at the Company ’s request has returned the defective goods or part(s) to the Company’s premises at the Customer’s expense and further provided that the sole cause of the defect(s) is faulty design, faulty workmanship and/or the use of faulty materials, the Company undertakes, as the Customer's sole remedy, to replace or repair the goods or part(s) or refund the purchase price of the goods against their return to the Company, as the Company shall in its sole discretion elect. Where the Company elects to replace the goods or part(s), such replacement shall be subject to these conditions, save that delivery thereof to the Customer’s premises shall be free of charge.

7.3 The Company offers certain guarantees and warranties in relation to goods supplied the terms of which depend upon the nature of those goods. No such guarantee or warranty will apply unless agreed by the Company in writing, the Company specifying the duration and other terms of such guarantee and warranty.

7.4 Save in respect of death or personal injury caused by the negligence of the Company, the Company’s liability under Clause 7.2 shall be to the exclusion of all other liability to the Customer whether contractual, tortious or otherwise for defects in the goods or any injury or any loss or damage to or caused by the goods or by the Customer’s use or resale of the goods or in connection with the design, manufacture, sale, delivery (or failure to deliver or delay in delivery) or any adjustment of any goods sold (including replacements) or any advice or services in connection therewith and the Customer shall indemnify the Company and/or its servants against any claims in respect of any such injury loss or damage. To the extent permitted by law, all other conditions, warranties, terms or other statements whatsoever concerning the goods, whether express or implied by statute, at common law or otherwise, are hereby excluded. In particular, the Company grants no warranties regarding the fitness for purpose, performance, use or quality of the goods and gives no warranty that the goods will not infringe the intellectual property rights of any third party. For the purpose of this sub-clause the Company contracts on its own behalf and on behalf of and as trustees for its servants.

7.5 Save in respect of death or personal injury caused by the negligence of the Company, the Company’s liability to the Customer in respect of the goods, in contract, tort (including negligence or breach of statutory duty) or howsoever arising, shall be limited to the price of the goods under the contract. The Company shall in no circumstances be liable for any loss of profit, business, contracts, revenues or anticipated savings or for any special, indirect or consequential damage of any nature whatsoever, howsoever arising.

8. Force Majeure / Non-availability of Goods

8.1 The Company shall not be liable to the Customer or be deemed to be in breach of any contract with the Customer by reason of (a) act of God, war, national emergency or threat of war, Act of Parliament or orders, regulations or by-laws made under Statutory Authority, industrial disputes, civil commotion, fire, tempest, flood, quarantine, failure of suppliers of raw materials or other goods to deliver, or (b) any cause other than the foregoing of whatsoever kind and wherever occurring being a cause beyond the Company’s control.

9. Suspension of Deliveries

9.1 If the Customer shall make default in the performance of any contract with the Company or commit any breach of his obligations to the Company under any contract, or if the Customer shall become insolvent or commit any act of bankruptcy or if (the Customer being a Company) a Petition or Resolution for winding up the Customer shall be presented or passed or if a Receiver or Provisional Liquidator of the Customer shall be appointed the Company shall be entitled to suspend further deliveries to the Customer under the or any other contract and to determine any contract then subsisting between the Company and the Customer for the sale of goods without prejudice to any right of the Company to recovery of any sums owing to the Company by the Customer or to damages for breach of contract or otherwise.

10. Specification

10.1 If any goods to be supplied by the Company are to be in accordance with specifications or patterns to be supplied by the Customer the Customer must supply the same in reasonable time to permit the Company to complete all deliveries by the estimated date for delivery (if any). The Customer indemnifies the Company against all damages, penalties, costs and expenses to which the Company may become liable or which it may incur through anything done by it in execution of an order in accordance with any specification or pattern supplied by the Customer involving or being alleged to involve an infringement of any intellectual property rights including, without limitation, any patent, registered or unregistered design, trade mark or copyright. 10.2 The Company reserves the right to make any changes in any specification of goods, whether the Customer's or the Company's, which are required to conform with any applicable safety or other statutory requirements or which do not materially affect their quality or performance.

11. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS

11.1 Except in the case of goods the subject of an indemnity as referred to in Clause 10.1 above, in the event that any claim is made against the Customer by any third party for infringement of its intellectual property rights by reason of the use of the goods by the Customer, then, subject to Clauses 11.2 and 11.3 below, the Company shall at its own expense conduct the defence in any ensuing litigation and/or all negotiations for settlement of the claim. The Company shall bear the cost of any payment (either by way of a lump sum or a continuing royalty payment) made in settlement or, in the event of litigation, as a result of an award made in a judgement against the Customer.

11.2 The benefit of Clause 11.1 above is granted to the Customer by the Company only in the event that the Customer shall give to the Company the earliest possible notice in writing of any such claim being made or action being threatened or initiated, shall make no admission of liability or take any other action in connection therewith, shall permit the Company to conduct the defence against the claim and/or the negotiation of a settlement pursuant to Clause 11.1 above, and shall at the expense of the Company give all reasonable information, co-operation and assistance to the Company (including without limitation lending its name to the proceedings) in relation to the conduct of the defence. In addition, if it is made a condition of any settlement made by the Company or of a judgement awarded against the Customer, pursuant to Clause 11.1 above, the Customer shall return to the Company or destroy, as the case may be, all infringing goods still under its control subject to a refund by the Company of any payment already made by the Customer for such goods (less a reasonable allowance for depreciation of the goods by reason of their use (if any) by the Customer prior to their return or destruction as aforesaid).

11.3 The indemnity set out at Clause 11.2 above shall not apply insofar as the alleged infringement of third party rights arises out of (i) modifications made to the goods by the Customer; (ii) the use by the Customer of the goods in combination with goods not supplied by the Company; (iii) any aspect of the goods made to the Customer's specifications or designs. In addition and without prejudice to the foregoing, the indemnity shall not apply in respect of any alleged infringement of third party rights which arises out of the performance of any method or process by the Customer using the goods unless such goods have been both designed by the Company specifically to enable performance of the alleged infringing method or process and/or supplied to the Customer by the Company its agents or distributors knowingly and specifically to enable performance of such method or process by the Customer.

11.4 The foregoing states the Company’s entire liability to the Customer and the Customer ’s sole and exclusive remedies against the Company in connection with claims based upon or resulting from the infringement of intellectual property rights, of any kind whatsoever, of third parties.

12. Retention of Title

12.1 The Company shall remain the sole owner of the goods and reserves the right to dispose of them until such time as the Company has received payment in full for all the goods together with payment in full for any other goods the subject of any contract between the Company and the Customer where such payment is then due. If the price for the goods has not been paid by the due date, then the Company may bring an action against the Customer for the price even though the property in the goods has not passed to the Customer.

12.2 Until such time as the property in the goods passes to the Customer, the Customer shall be the bailee of the goods for the Company and shall keep them on its premises separately from its own goods or those of any other person and properly stored, protected and insured and in a manner which makes them readily identifiable as the goods of the Company. Until that time the Customer shall be entitled to resell or use the goods in the ordinary course of business. The Company shall be entitled at any time and without notice for the purposes of examination or recovery of its goods to enter any premises where they are kept or where they are reasonably thought to be kept and shall be entitled without charge to inspect the applicable insurance policy and premium receipt which shall be produced by the Customer on demand. The Customer's right to possession of the goods shall cease at whichever is the earliest of the following dates: a) on the expiration of an agreed period of credit; b) if he not being a Company does anything which would enable a statutory demand to be served or a petition for a Bankruptcy Order to be presented or upon the commencement of any other act or proceeding in which his solvency is called into question; c) if the Customer being a Company does anything or fails to do anything which would entitle a receiver to take possession of any of its assets or which would entitle any person to present a petition for winding up or apply for an Administration Order.

12.3 The Customer shall not apply to the court for the appointment of an Administrator without giving 14 days prior notice to the Company. From the date of the said notice the Customer shall not be entitled to remain in possession of any of the Company's goods.

12.4 On the sale to a sub-purchaser of any of the goods the proceeds shall be held in trust for the Company, shall not be mingled with other monies and shall not be paid into any overdrawn bank account but shall be paid into an interest bearing fiduciary account for the Company with the Customer's bankers who shall be advised that the Customer holds the entire proceeds of such sale as trustee for the Company. The Company shall be entitled to interest earned on the fiduciary account. If a receiver is appointed to the Customer and if at that time the Customer shall not have received the proceeds of sale the Customer or receiver as agent for the Customer shall assign in writing to the Company within seven days all rights against the person or persons to whom the goods have been sold.

12.5 The Company shall be entitled to maintain an action for the price of any goods notwithstanding that title in them has not passed to the Customer.

13. General

13.1 The Company is a member of a group of companies and may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group.

13.2 Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

13.3 No waiver by the Company of any breach of any contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.

13.4 If any term or provision of these conditions shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of these conditions but the validity and enforceability of these conditions shall not be affected.

13.5 The headings in these conditions are for reference purposes only and shall not affect the construction of these conditions.

13.6 All contracts between the Company and the Customer shall be governed by English law and the Customer submits to the exclusive jurisdiction of the English Courts except to the extent that the Company invokes the jurisdiction of the Courts of another country.