Terms and Conditions of Purchase
CHANNEL SAFETY SYSTEMS
GENERAL CONDITIONS OF SALE
THE PURCHASER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 14
1. INTERPRETATION
1.1. In these General Conditions of Sale(“Conditions of Sale”) the following definitions apply:
| “Company Materials” | materials, equipment, documents and other property of the Company; |
| “Company” | Channel Safety Systems Limited; |
| “Contract” | The contract between the Company and the Purchaser for the supply of Goods and/or Services formed in accordance with clause 2.4; |
| “Goods” | Collectively or individually the goods agreed in the Contract to be supplied to the Purchaser by the Company (including any part or parts of them) as more particularly described in the Order; |
| “Intellectual Property Rights” | All patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world; |
| “Order” | Has the meaning specified in clause 2.1; |
| “Purchaser Information” | The information that the Purchaser may provide to the Company in relation to the Goods and/or Services; |
| “Purchaser” | The person firm or body corporate which buys or has agreed to buy the Goods and/or Services in accordance with these Conditions of Sale; |
| “Services” | All work to be carried out by the Company under the Contract (including the supply and installation of the Goods) as more particularly described in the Order; |
| “Site” | The site for installation of the Goods and/or performance of the Services as set out in the Order; |
| “WEEE Regulations” | Means The Waste Electrical and Electronic Regulations 2006 (SI 2006/3289); and |
| “WEEE” | Means waste electrical and electronic equipment as defined in the WEEE Regulations. |
1.2. In these Conditions of Sale the following rules of interpretation apply:
1.2.1. Clause headings shall not affect the interpretation of these Conditions of Sale;
1.2.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.3. A reference to a party includes its personal representatives, successors or permitted assigns;
1.2.4. A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.5. 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;
1.2.6. A reference to writing or written includes faxes and e-mails; and
1.2.7. References to clauses are to the clauses of these Conditions of Sale.
1.3. If there is an inconsistency between any of the provisions of these Conditions of Sale and the provisions of an Order the provisions of these Conditions of Sale shall prevail.
2. BASIS OF CONTRACT
2.1. Each order for Goods and/or request for Services from the Purchaser to the Company (an “Order”) shall be deemed to be an offer by the Purchaser to purchase the Goods and/or Services subject to these Conditions of Sale.
2.2. These Conditions of Sale shall apply to and form part of every Contract entered into by the Company.
2.3. All orders are accepted and executed on the understanding that the Purchaser is bound by these Conditions of Sale which shall govern the Contract to the exclusion of all other terms and conditions subject to which any such order is accepted or purported to be accepted, or any such order is made or purported to be made, by the Purchaser or which are implied by trade, custom, practice or course of dealing.
2.4. No Contract shall come into existence unless and until the Company issues written acceptance of the Order or (if earlier) the Company commences work to fulfil the Order at which point and on which date the Contract shall come into existence.
2.5. The issuing of a written quotation or tender does not constitute an offer or bind the Company to enter into a contract to supply, install or commission and is only valid for a period of 30 days from its date of issue Provided That the Company has not previously withdrawn it.
3. PURCHASER INFORMATION
3.1. The Purchaser shall supply the Company with such information as the Company may request and shall ensure that it is complete and accurate in all respects.
3.2. The Purchaser acknowledges that the Purchaser is solely responsible for providing the Purchaser Information and that the Company shall rely on the Purchaser Information in determining and selecting the appropriate Goods and/or Services.
3.3. Any Purchaser Information supplied by the Purchaser in relation to the Goods and/or Services shall include all relevant details which relate to the Purchaser’s requirements and the Site.
3.4. The Company shall be entitled to rely upon the specification and any advice given by the Purchaser (in relation to the suitability of the Goods and/or Services for meeting the Purchaser’s requirements) such that to the extent that the Goods and/or Services comply with such specification and or such advice then the Company shall be deemed to have supplied in accordance with these Conditions of Sale, notwithstanding the Purchaser Information.
3.5. No changes to the Purchaser Information, the Goods and/or the Services will form part of the Contract unless agreed in writing by the parties.
3.6. If the Purchaser wishes to amend the Purchaser Information or if the Purchaser Information is subsequently found to be inaccurate and/or not complete for any reason other than the Company’s negligence the Company will be entitled to alter these Conditions of Sale for the provision of the Goods and/or Services (including without limitation increasing the price of the Goods and/or Services).
3.7. If the Company alters any of these Conditions of Sale the Company shall notify the Purchaser in writing of any such alteration and the reason for such alteration. The Purchaser must accept any such variation to the terms in writing within 7 days of notification by the Company of such alteration (such acceptance not to be unreasonably withheld) or the Company shall be entitled to terminate the Contract.
4. PRICES
4.1. The price payable for Goods shall be the price set out in the Order or, if no price is quoted the list price of the Company current at the date of delivery and in the case of an order for delivery by instalments the price payable for each instalment shall be the list price of the Company current at the date of despatch of such instalment.
4.2. Unless otherwise expressly stated to be firm for a period the Company’s prices are subject to variation to take account of variations in wages, materials and other costs. The Company accordingly reserves the right by giving notice to the Purchaser at any time before delivery to increase the price of Goods by the amount of any increase in such costs after the price is quoted.
4.3. The charges for the Services shall be the prices set out in the Order, or if no price is quoted on a time and materials basis calculated in accordance with the Company’s standard published daily fee rates. Unless otherwise stated in the Order, the Company shall be entitled to charge the Purchaser for any expenses reasonably incurred by the individuals whom the Company engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials.
4.4. The Company reserves the right to increase its standard daily fee rates for the charges for the Services by giving the Purchaser written notice of any such increase.
4.5. All prices are exclusive of Value Added Tax and this will be charged at the applicable rate and recoverable by the Company in addition to the price.
4.6. All invoiced price discrepancies must be notified by the Purchaser to the Company within 14 working days of the date of invoice.
4.7. Unless otherwise specified in the Order the prices of the Goods are exclusive of all costs and charges of packaging, insurance and carriage of the Goods to the Purchaser’s premises, which shall be paid by the Purchaser when it pays for the Goods.
5. PAYMENT
5.1. Unless otherwise agreed in writing payment is due in full and in cleared funds and without deduction or setoff on or before the last working day of the month following the date of the invoice.
5.2. Where the contract provides for delivery in instalments each instalment shall be considered as a separate contract of sale.
5.3. Time for payment shall be of the essence of the Contract.
5.4. Without prejudice to any other rights it may have the Company is entitled to charge interest at 4% above the current base rate of Barclays Bank plc on overdue payments of the price of the Goods and/or Services or the price of any instalment or partial delivery thereof. Interest on overdue amounts shall accrue on a daily basis from the date the payment becomes due until the date of actual payment, whether before or after judgment, and be compounded quarterly.
5.5. Additionally and without prejudice to its other rights the Company shall be entitled to recover all direct expenses reasonably incurred by the Company in collecting or attempting to collect amounts of the price outstanding.
5.6. If the Purchaser fails to make any payment when due in accordance with these Conditions of Sale, the Company reserves the right in its absolute discretion and without prejudice to any of its other rights or remedies to suspend all further deliveries of the Goods and/or performance of the Services until such payment has been made in full together with any other amounts owing to the Company whether the due date for payment has been reached or not. The Purchaser shall be liable to the Company for any costs incurred by the Company in respect of goods in course of manufacture or ready for despatch and/or Services performed during any such suspension.
5.7. The Company shall be entitled to bring an action for the price or part thereof whether or not the property in the Goods has passed.
5.8. Any Contract shall be subject to the Company being satisfied as to the Purchaser’s credit references, and without prejudice to the generality of the foregoing, the Company may (in its absolute discretion), having informed the Purchaser that the Goods are ready for despatch, refrain from delivering the Goods and/or performing the Services until such time as the Purchaser tenders the purchase money to the Company together with any outstanding amounts which may be due to the Company on any account whatsoever.
6. DELIVERY
6.1. Unless otherwise agreed in writing by the Company, delivery of the Goods and/or performance of the Services shall take place at the Site.
6.2. The Company will use its reasonable endeavours to give the Purchaser prior notice of any delivery and installation date.
6.3. The Purchaser must take delivery at the time so notified (or if delivery takes place at some other time then as soon as practicable) and afford the Company access to the Site and check the Goods and ancillary materials delivered to the Site prior to the arrival of the Company’s employees.
6.4. If the Company does not receive forwarding instructions sufficient to enable it to despatch the goods within 14 days after notification that the Goods are ready for delivery or that they have been tested under Clause 8, the Purchaser shall thereupon take delivery or arrange for storage. If the Purchaser does not take delivery or arrange for storage as aforesaid, risk in the Goods will pass to the Purchaser, the Company shall be entitled to invoice and be paid for the Goods as though the Goods had been duly delivered in accordance with these Conditions of Sale and the Company may arrange storage either at the Company’s own works or elsewhere on the Purchaser’s behalf and all charges incurred by the Company as a result of such delay including storage and insurance shall be payable by the Purchaser.
6.5. Upon delivery of the Goods the Purchaser must acknowledge proof of delivery by signing a delivery note (the “Delivery Note”). Any discrepancy between the Delivery Note and the Goods received by the Purchaser must be notified to the Company within 5 working days of delivery of the Goods, giving full particulars, failing which the Company is discharged from any liability in respect of such discrepancy.
6.6. All Goods and/or Services supplied to the Purchaser which conform in all material respects with the Order shall be deemed accepted by the Purchaser.
6.7. Unless otherwise agreed by the Company in writing all times or dates for delivery of the Goods and/or performance of the Services are given in good faith but are approximate only and shall not be of the essence of the contract. If no dates are so specified delivery of the Goods and/or performance of the Services will be within a reasonable time.
6.8. All times or dates for delivery shall be calculated from the date of acceptance by the Company of the order of the Purchaser, or from the date of receipt by the Company from the Purchaser of all information, instruction and drawings as shall be necessary to enable the Company to carry out the order, whichever shall be the later.
6.9. Unless otherwise stated in writing the Company shall be entitled to make partial deliveries of the Goods. The Purchaser shall not be entitled to object to or reject the delivery by reason of any surplus or shortfall.
6.10. Unless otherwise agreed in writing, and subject to Clause 16 the Purchaser must give notice in writing of any damage to the Goods within 5 working days of delivery of the goods, giving full particulars of any damage to the Goods, including the conditions of any parcels received, failing which the Purchaser is deemed to have accepted the Goods.
7. VARIATIONS
7.1. The Company shall be under no obligation to alter or vary any part of the Contract or any work connected therewith. Any alteration to or addition to or amendment or other variation of the specification, including any increase or decrease in the quantity of the Goods or any alteration to any drawings or to the quality, performance, weight or measurements of any Goods or any alteration or variation of advised delivery schedules, shall, if requested by the Purchaser, be subject to the agreement of the Company, with such alteration or addition to the price and to delivery dates or schedules as may be required by the Company, and shall not be binding upon the Company unless and until accepted by the Company in writing.
7.2. In the event of any variation or suspension of the work by the Purchaser’s instructions or lack of instructions the Company shall be entitled to adjust the contract price to reflect any additional costs incurred, and to adjust delivery dates or schedules.
8. INSPECTION AND TESTS
Before delivering the Goods to the Site, the Company’s shall carry out reasonable inspections on the Goods or a random sample of the Goods and, if the Company deems necessary or if specified in the Order may submit the Goods or a random sample of the Goods to its standard tests at the Company’s works before despatch. If tests other than those specified in the Order or tests in the presence of the Purchaser or its representatives are required, these will be charged for. In the event of any delay on the Purchaser’s part in attending tests after the Purchaser has received 7 days’ notice that the Company is ready to perform the tests, the tests will proceed in the Purchaser’s absence and the Purchaser accordingly hereby agrees to accept and pay for such tests as if they had been performed in the Purchaser’s presence.
9. DESCRIPTIVE MATTER, PERFORMANCE DATA AND ILLUSTRATIONS
9.1. All samples, drawings, descriptions, advertising and illustrations and particulars of weights and dimensions issued by the Company in catalogues, price lists, advertising matter and forwarding specifications are by way of general descriptions and approximate only, and shall not form part of any contract or give rise to any liability on the part of the Company.
9.2. Any data, technical information or performance figures provided by the Company are based on tests performed under standard conditions at the Company’s premises. They are believed to be accurate but cannot be guaranteed under different conditions.
9.3. It is the policy of the Company to endeavour to develop and improve its products, and accordingly the Company reserves the right to change all specifications of its Goods without prior notification or public announcement pursuant to such policy provided that nothing in this Clause shall oblige the Purchaser to accept Goods which do not reasonably comply with the Contract.
10. PURCHASER’S OBLIGATIONS
10.1. The Purchaser shall:
10.1.1. Co-operate with the Company in all matters relating to the Services;
10.1.2. Provide the Company, its employees, agents, consultants and subcontractors, with access to the Purchaser’s premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
10.1.3. Prepare the Purchaser’s premises for the supply of the Goods and/or Services;
10.1.4. Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
10.1.5. Keep and maintain all Company Materials at the Purchaser’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation.
10.2. If the Company’s performance of the Contract is prevented or delayed by any act or omission by the Purchaser or a breach by the Purchaser of any term of the Contract, including lack of incomplete or incorrect instructions or a refusal to give access or accept delivery and/or installation of the Goods and a failure by the Customer to obtain any necessary consents, permissions, wayleaves and easements (“Purchaser Default”):
10.2.1. The Company shall without limiting its other rights or remedies have the right to suspend performance of the Services and/or delivery of the Goods until the Purchaser remedies the Purchaser Default, and to rely on the Purchaser Default to relieve it from the performance of any of its obligations to the extent the Purchaser Default prevents or delays the Company’s performance of any of its obligations;
10.2.2. The Company shall not be liable for any costs or losses sustained or incurred by the Purchaser arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 10.2; and
10.2.3. The Purchaser shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Purchaser Default.
10.3. Should final sound level tests on any Site indicate a requirement for additional sounders, then the cost of the supply and installation of these will be the responsibility of the Purchaser.
11. WARRANTY
11.1. The Company shall use all reasonable care and skill to provide the Goods and/or Services in a professional and efficient manner.
11.2. The warranty period for Products is twelve (12) months from the date of shipment unless otherwise agreed by Seller in writing.
Where in the Company’s sole opinion all or any parts of the Goods are shown, to the Company’s reasonable satisfaction, to be materially defective by reason of the Company’s faulty workmanship within the “Warranty Period” then the Company shall at its sole option:
11.2.1. Make good or repair the Goods free of charge; and/or
11.2.2. Refund to the Purchaser the price of such Goods; and/or
11.2.3. Require the Purchaser to retain the Goods and grant to the Purchaser a reasonable allowance in respect of such defects.
11.2.4. The warranties set out in these terms and conditions of sale are in lieu of all other representations, conditions or warranties, expressed or implied, statutory or otherwise, regarding the products, their fitness for any particular purpose, their merchantability, their quality, their non-infringement, or otherwise, all of which are hereby excluded to the extent permitted by applicable law, in Terms and Conditions. No event shall the seller be liable for the cost of procurement or installation of substitute goods.
11.3. The Company’s obligation under this clause 11 shall not apply to any defects in designs furnished or specified by the Purchaser or any defect which arises as a result of any inaccuracy or omission in respect of the Purchaser Information the Company shall have no liability in relation thereto.
11.4. If the Company determines that any repair or inspection of a defect in the Goods cannot reasonably be carried out on the Site, the Purchaser must (if asked to do so by the Company) permit the Company to remove the Goods from the Site for the purpose of repair and/or inspection.
11.5. The warranty given in Clause 11.2 is subject to the following provisos, namely:
11.5.1. That the Purchaser makes no further use of the Goods after notifying the Company during the Warranty Period and within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 11.2.
11.5.2. That the defects shall not have arisen through fair wear and tear, wilful damage, negligence, abnormal working conditions, misuse, alteration or repair of goods by the Purchaser without the Company’s approval;
11.5.3. That the Purchaser shall have followed all instructions issued by the Company in relation to the Goods;
11.5.4. That in the case of defects which would have been reasonably apparent to the Purchaser on reasonable examination of the Goods on delivery, the Purchaser shall notify the Company of the defects in writing within 14 working days of delivery;
11.5.5. That in the case of any other defects, the Purchaser shall notify the Company of the defects within 7 working days of the date when the defect becomes apparent;
11.5.6. The total price for the Goods has been paid by the due date for payment;
11.5.7. That where in discharge of its obligations under the Warranty given in this Clause the Company agrees that the Purchaser may undertake any repair or remedial work on its behalf, the cost of such work shall be agreed in writing between the Purchaser and the Company before the commencement of any such repair or remedial work;
11.5.8. That the defect is not caused as a result of the connection of the Goods to equipment supplied or manufactured by others, unless the use of such equipment is approved in writing by the Company and
11.5.9. That, in the case of Goods which are or incorporate panel mounted aerials, the defect is not caused by the presence of special constructional features within the Site that interfere with signals.
11.6. Except as provided in this Clause 11, the Company shall have no liability to the Purchaser in respect of the Goods’ failure to comply with the warranty set out in Clause 11.2.
11.7. The terms of these Conditions of Sale shall apply to any repaired or replacement Goods supplied by the Company under Clause 11.2.1
12. LIMITATION OF LIABILITY
12.1. In this Clause 12 the following shall mean an “Event of Default”:
12.1.1. Any breach by the Company of its contractual obligations arising under the Contract (other than a breach arising from wilful default or recklessness);
12.1.2. Any misrepresentation by the Company in connection with (whether or not contained in the Contract) the Company (other than a fraudulent misrepresentation);
12.1.3. Any tortious, act or omission, including negligence, arising in connection with the Company’s performance under the Contract (other than any act or omission which is fraudulent or dishonest); and/or
12.1.4. Any other act giving rise to a liability in respect of the Contract.
12.2. The Company shall not be liable for any delay or failure to provide the Goods and/or Services caused by:
12.2.1. Any act or omission of the Purchaser which is relative to its obligations under the Contract; and/or
12.2.2. Any failures of any third parties to provide the Goods and/or Services.
12.2.3. Any disruption to the Purchaser’s Site or loss or damage to the Purchaser’s property which occurs while any Goods are being repaired or replaced
12.3. Subject to Clause 12.9:
12.3.1. The Purchaser acknowledges that the Company shall have no liability in respect of the suitability of the Goods and/or Services which have been recommended and/or selected by the Company in accordance with the Purchaser’s requirements and the Purchaser Information. In the event that the Purchaser requires bespoke equipment the Company may provide such bespoke work under such terms to be agreed between the Parties.
12.3.2. The Company shall not be liable to the Purchaser in respect of any Event of Default for loss of profits, goodwill or any type of special indirect or consequential loss or damage (including loss or damage suffered by the Purchaser as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of incurring the same.
12.3.3. The Company’s entire liability to the Purchaser in respect of any Event of Default shall be limited to the fee paid by the Purchaser in relation to the Goods and/or Services that gave rise to the breach.
12.3.4. The maximum liability of the Company in respect of all Events of Default shall in no event exceed the aggregate of 1.5 times the fee paid by the Purchase in accordance with the Contract during the preceding twelve months.
12.3.5. In the event that the advice provided to the Purchaser by the Company was provided free of charge by the Company then such advice is provided as is without any warranty of any kind from the Company and shall have no liability in relation thereto.
12.4. Except in the case of an Event of Default arising under Clause 12.9 above the Company shall have no liability to the Purchaser in respect of any Event of Default unless notice in writing of such claim (specifying in reasonable detail with supporting evidence the event, matter or default which gives rise to the claim and an estimate of the amount claimed) has been given to the Company within 3 months of the Purchaser becoming aware of the circumstances and in any event within 12 months following delivery which give rise to such claim provided that without prejudice to their rights, the Purchaser and the Company agree that if they have reason to believe that they may have a cause of action hereunder, they shall liaise with the other in an open and co‑operative way with a view to rectifying the reason for such cause of action whenever practicable.
12.5. If a number of Events of Default give rise substantially to the same loss or a number of Events of Default flow from the same defect then such Events of Default shall be regarded as giving rise to only one claim under these Conditions of Sale.
12.6. The Purchaser hereby agrees to afford the Company not less than 60 days (following notification thereof by the Purchaser) in which to remedy any Event of Default hereunder.
12.7. Nothing in this clause shall confer any right or remedy upon the Purchaser to which it would not otherwise be legally entitled.
12.8. The Company shall not be liable for defects in Goods covered by fair wear and tear, abnormal conditions of storage, of use or any act, neglect or default of the Purchaser or any third party.
12.9. Notwithstanding any other provision under these Conditions of Sale or otherwise each party’s liability to the other for:
12.9.1. Death or personal injury resulting from its own or its employees’, agents’ or sub-contractors’ negligence; and/or
12.9.2. Any breach of its obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; and/or
12.9.3. In relation to any fraudulent misrepresentation or fraudulent acts of its employees
shall not be limited.
12.10. Subject to Clause 12.9, all warranties conditions and terms implied by Statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. To the extent that the Goods are to be manufactured in accordance with any specification or other Purchaser Information supplied by the Purchaser, the Purchaser shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Company’s use of the Purchaser Information. This Clause 13.1 shall survive termination of the Contract.
13.2. The Purchaser acknowledges that any and all of the Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services including all manuals and designs relating thereto shall be owned by the Company.
13.3. The Purchaser shall inform all its relevant employees that all Intellectual Property Rights therein are the property of the Company and the Purchaser will take all steps as shall be necessary to ensure compliance by its employees.
13.4. For the avoidance of doubt the provisions of Clause 13.1 shall not be interpreted as granting the Purchaser any rights in any Intellectual Property Rights.
13.5. In the event that new inventions, designs or processes evolve or are generated in the performance of or as a result of the Contract the Purchaser acknowledges that the Intellectual Property Rights in the same shall be the property of the Company.
13.6. The Purchaser acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Purchaser’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Purchaser.
13.7. All drawings descriptions and other information submitted by the Company shall remain the exclusive property of the Company.
14. FORCE MAJEURE AND OTHER CIRCUMSTANCES
The Company shall be entitled without liability on its part and without prejudice to its other rights, to terminate the Contract or any unfulfilled part thereof, or at is option to suspend or make partial deliveries or extend the time or times for delivery, if the manufacture of the goods by the Company or the Company’s suppliers, or the delivery of the goods or the performance by the Company of any of its obligations under the Contract is hindered or delayed whether directly or indirectly by reason of the Purchaser failing to furnish necessary instructions or information, or by war or other hostilities, civil commotion, act of God, government action or legislation, interruption of transport, strike, lock-out or other form of industrial action (including, without limitation, labour disputes with the Company’s or any sub-contractor’s employees), accidents or stoppages to works, shortage of labour materials equipment fuel or power, breakdown of machinery or any other cause whatsoever beyond the reasonable control of the Company or its sub-contractors, whether or not such cause exists at the date of the order.
15. PASSING OF PROPERTY AND RISK
15.1. Risk of damage to or loss of the Goods shall pass to the Purchaser:
15.1.1. In the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Purchaser that the Goods are available for collection; or
15.1.2. In the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery, or, if the Purchaser wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
15.2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Conditions of Sale the property in the Goods shall not pass to the Purchaser until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other Goods to be sold by the Company to the Purchaser for which payment is then due.
15.3. Until such time as the property in the Goods passes to the Purchaser, the Purchaser shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Purchaser and third parties and property stored, protected and insured and identified as the Company’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
15.4. Until such time as the property in the Goods passes to the Purchaser (and provided the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Purchaser to deliver up the Goods to the Company and, if the Purchaser fails to do so forthwith, to enter upon any premises of the Purchaser or any third party where the Goods are stored and repossess the Goods.
15.5. The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Purchaser does so all moneys owing by the Purchaser to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
16. TERMINATION
16.1. The Company may terminate the Contract immediately at any time by giving written notice to the Purchaser if:
16.1.1. The Purchaser fails to pay any amount due under the Contract on the due date for payment;
16.1.2. The Purchaser commits a material breach of any term of the Contract;
16.1.3. The Purchaser becomes insolvent or makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstructions); or
16.1.4. An encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Purchaser; or
16.1.5. The Purchaser ceases, or threatens to cease, to carry on business; or
16.1.6. The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
16.2. If the Purchaser becomes subject to any of the events listed in Clauses 16.1.2-16.1.4, or the Company reasonably believes that the Purchaser is about to become subject to any of them then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to suspend any further deliveries under the Contract or any other contract between the Purchaser and the Company without any liability to the Purchaser, and if the goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
16.3. If the provisions of Clauses 16.1.3 and 16.1.4 apply then the Purchaser must bring to the notice of any receiver administrator or any such person or persons appointed the existence of and content of Clause 15 and the rights of the Purchaser to use or trade on the Company’s goods is immediately terminated and any such receiver administrator or other person or persons appointed will not be entitled to use or to trade on the Company’s goods unless so authorised in writing by the Company.
16.4. Either party may terminate a Contract for the provision of Services by giving the other party not less than 3 months’ written notice.
17. CONSEQUENCES OF TERMINATION
17.1. On termination, howsoever arising, the Purchaser shall pay to the Company all costs and expenses, including legal and other fees incurred and all arrears of charges or other payments arising in respect of the Contract or otherwise including the full price of any Goods that are specially manufactured, modified or sourced to meet the Purchaser’s special requirements.
17.2. Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Company may have under the Contract or in law.
17.3. The following clauses shall survive termination of these Conditions of Sale Clauses 12, 14, 17, 19-27 inclusive and any other relevant clause.
18. WASTE ELECTRICAL & ELECTRONIC EQUIPMENT (WEEE) REGULATIONS
18.1. The Purchaser shall:
18.1.1. Be responsible for financing the collection, treatment, recovery and environmentally sound disposal of:
18.1.1.1. All WEEE arising or deriving from the Products; and
18.1.1.2. All WEEE arising or deriving from products placed on the market prior to 13 August 2005 where such products are to be replaced by the Products and the Products are of an equivalent type or are fulfilling the same function as that of such products;
18.1.2. Comply with all additional obligations placed upon the Purchaser by the WEEE Regulations by virtue of the Purchaser accepting the responsibility set out in Clause 18.1.1; and
18.1.3. Provide the Purchaser’s WEEE compliance scheme operator with such data, documents, information and other assistance as such scheme operator may from time to time reasonably require to enable such operator to satisfy the obligations assumed by if as a result of the Seller’s membership of the operator’s compliance scheme.
18.1.4. The Purchaser shall be responsible for all costs and expenses arising from and relating to its obligations in Clause 18.1.1.
19. CONFIDENTIALITY
19.1. A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This Clause 19 shall survive termination of the Contract.
20. NOTICES
20.1. Any notice required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
20.2. Any notice shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
20.3. This Clause 20 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
21. WAIVER AND CUMULATIVE REMEDIES
21.1. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
21.2. Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
22. SEVERANCE
22.1. If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
22.2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
23. NO PARTNERSHIP
23.1. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
24. THIRD PARTIES
24.1. A person who is not a party to the Contract shall not have any rights under or in connection with it.
25. VARIATION
25.1. Except as set out in these Conditions of Sale, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Company.
26. WHOLE AGREEMENT
26.1. It is acknowledged and agreed that the Contract (including the documents and instruments referred to in the Contract (“the Documents”) shall supersede all prior representations arrangements understandings and agreements between the parties and or any person acting on their behalf (the Relevant Parties) relating to the subject matter hereof and shall constitute the entire complete and exclusive agreement and understanding in relation to this matter.
26.2. The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation arrangement understanding or agreement not contained in the Documents or for any breach of any representation not contained in the Documents (unless such misrepresentation or representation was made fraudulently);
26.3. It is further acknowledged and agreed that no representations arrangements understandings or agreements (whether written or oral) made by or on behalf of any of the other parties have been relied upon other than those expressly set out or referred to in the Documents.
27. GOVERNING LAW AND JURISDICTION
27.1. All Contracts and any dispute or claim arising out of or in connection with the Contracts or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English Law and the parties irrevocably submit to the exclusive jurisdiction of the courts ofEnglandandWales.
