Save as otherwise agreed in writing, any quotation given by Clements Engineering (St. Neots) Limited (‘the Company’) shall not constitute anything more than an invitation to the person, firm or company to whom it is addressed (‘the Purchaser’) to place an order for goods. All quotations are subject to variation by the Company in the event of any changes in the price of raw materials, rates of wages or other production costs at any time between the date of the quotation and acceptance by the Company of the Purchaser’s order. No binding obligation on the Company shall arise until such acceptance by the Company, whether in writing or otherwise, of the Purchaser’s order.
These Terms and Conditions shall govern all contracts for the sale and supply of goods by the Company to the Purchaser. In the event of any conflict arising between these Terms and Conditions and those printed or otherwise specified on the Purchaser’s order, or any other communication from the Purchaser to the Company relating to the order, these Terms and Conditions shall prevail and any conflicting terms or conditions specified by the Purchaser shall be deemed to be severable and shall be severed from the order or other communication without otherwise affecting the validity thereof. Any subsequent acceptance by the Company on these Terms and Conditions shall not constitute a counter offer.
3.1 Delivery of goods shall be deemed to be made when goods are delivered by the Company or its servant, agent or carrier to the Purchaser’s place of business or to such other place as the Purchaser may reasonably request and, unless otherwise expressly agreed in writing by the Company, goods shall be deemed to have been accepted by the Purchaser upon delivery.
3.2 Time of delivery shall not be of the essence of any contract and the Company shall not be liable for any loss or damage whatsoever arising directly or indirectly from any failure to deliver by any agreed date.
3.3 The Company expressly reserves the right to deliver goods by instalments and furthermore to suspend deliveries of goods to the Purchaser and/or to terminate any contract without liability in the event of any failure by the Purchaser to comply with any of these Terms and Conditions.
No suspension, deferment or cancellation of any order by the Purchaser shall be effective unless accepted in writing by the Company and no such suspension, deferment or cancellation shall be so accepted save:
(i) in the case of any suspension or deferment on condition that the Purchaser shall compensate the Company in respect of any additional production, storage or other costs or expenses incurred by the Company and
(ii) in the case of any cancellation on condition that the Company shall be entitled to charge and the Purchaser shall pay to the Company such sums as shall be necessary to compensate the Company for all loss or damage suffered by the Company by reason of such cancellation, including loss of profit.
5.1 All prices quoted by the Company are exclusive of VAT or any similar tax payable or to be accounted for by the Company in relation to the supply of goods.
5.2 Unless otherwise specifically provided in any quotation or acceptance of order there shall be added to the price of the goods all costs of carriage, packing and insurance incurred by the Company in effecting delivery of the goods together with any applicable VAT or similar tax as aforesaid.
5.3 Payment shall be due in full no later than the last day of the month following the month in which the Company’s invoice is dated.
6.1 Unless expressly agreed in writing, the Company shall be entitled to use any method of carriage and to deliver the goods itself or to employ any carrier it may select.
6.2 Where a carrier is employed, risk in the goods shall pass to the Purchaser upon delivery to that carrier. Otherwise risk in the goods shall pass to the Purchaser when the goods are loaded onto any vehicle at the Company’s premises in preparation for delivery to the Purchaser.The Purchaser shall be deemed to have accepted the general conditions of any carrier selected and employed by the Company.
6.3 Unless otherwise agreed in writing the Company shall as agent for the Purchaser arrange for insurance of the goods in transit to the Purchaser’s premises and shall recharge the Purchaser accordingly in accordance with Clause 5.2 above.
6.4 Neither the Company nor any carrier employed by the Company shall be liable for any loss or damage to any goods in transit or for any shortage on delivery unless notice in writing is given to the Company and the carrier within 3 days of delivery of the goods, or, in the case of total loss of any goods, unless notice in writing is given to the Company and the carrier within 7 days of the date of consignment (or in the case of goods despatched by rail carrier within 10 days thereof).
Until such time as all payments due from the Purchaser to the Company have been received in full, the Purchaser shall hold the goods in a fiduciary capacity as bailee for the Company and:
(i) legal and beneficial ownership of the goods shall remain with the Company and the Purchaser shall store the goods in such a way that they may be clearly identified as the property of the Company and as against any unpaid invoices of the Company; and
(ii) the Company reserves the right to dispose of the goods and to retake possession thereof at any time at the sole cost and expense of the Purchaser and for that purpose the Company may, by its servants or agents, enter upon any land or premises occupied by the Purchaser and may where necessary sever the goods from any land or buildings occupied by the Purchaser; and
(iii) if the Purchaser shall incorporate or allow the incorporation of the goods into any other goods or products in any way, legal and beneficial ownership of such other goods or products shall forthwith vest in the Company and the Purchaser shall hold such other goods or products in a fiduciary capacity as bailee for the Company and the Purchaser shall comply with the provisions of sub-clauses (i) and (ii) above in relation to such other goods or products; and
(iv) without prejudice to the foregoing sub-clauses the Purchaser shall be entitled to sell the goods or such other goods or products in the normal course of business provided that any proceeds of sale received shall be held separately in an account opened for such purpose on behalf of the Company to whom the Purchaser shall have a fiduciary duty to account to the extent of its indebtedness.
8.1 The Company warrants that the goods will comply with the description stated in any quotation or written acceptance of order (unless subsequently varied) and that for a period of 30 days from delivery the Company will at its option repair or replace as originally ordered without charge any goods returned, carriage paid, to the Company by the Purchaser and alleged to be defective in manufacture and accepted by the Company as such.Any replacement of goods under this warranty shall not extend the period of warranty.
8.2 The Purchaser acknowledges that:
(i) the Company is not the manufacturer of the materials from which the goods are produced; and
(ii) the Company is not able to test the materials with any kind of ultrasonic, X-ray or other equipment for latent defects in quality of manufacture or otherwise not apparent upon visual inspection.
8.3 The Company makes no warranty that any goods supplied will be fit for any particular purpose whether notified to the Company or not.
8.4 Notwithstanding the provisions of Clauses 8.2 and 8.3 above, the Company undertakes to use all reasonable endeavours to extend to the Purchaser the benefit of any guarantee condition or warranty relating to the goods or the materials from which the goods have been manufactured which may expressly or by implication have been given to the Company by the supplier or otherwise of the goods to the extent to which the same may be capable of assignment and provided that any expense reasonably incurred by the Company in the extension of such benefit to the Purchaser shall be reimbursed to the Company by the Purchaser upon demand.
8.5 Save as expressly provided herein the Company excludes all other warranties and conditions express or implied by law or otherwise with respect to the goods and the Company shall not be liable to the Purchaser for any loss or damage whatsoever (including without prejudice to the generality of the foregoing any liability in contract negligence or any other tort for any indirect consequential or economic loss or for loss of profit or opportunity of any kind) arising directly or indirectly in connection with the contract, the goods or otherwise except insofar as any exclusion or limitation of the Company’s liability hereunder is prohibited void or unenforceable by law.
Where the Company supplies goods in accordance with the Purchaser’s design(s) or specification(s) then the Purchaser shall fully indemnify the Company against all claims, actions, penalties, costs and expenses for which the Company may become liable or which may be incurred by the Company arising where the use of such design(s) or specification(s) results in any infringement or alleged infringement of any patent, registered design, copyright, trademark, trade name or other intellectual property rights of any third party.
The Purchaser’s attention is drawn to Section 6 of the Health and Safety at Work Act 1974. The Company will make available upon request information relating to the use for which goods have been designed and tested and to any special conditions required to ensure that the goods will as far as is reasonably practicable be safe and without risk to health.