TERMS AND CONDITIONS OF SALE
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 the 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. The Company reserves the right to amend the specification of the goods if required by any applicable statutory or regulatory requirements.
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.
3.4 The Company shall not be liable for any delay in delivery of the goods that is caused by a force majeure event (an event or circumstance beyond the Company’s reasonable control).
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:
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.
5.4 If the Purchaser fails to make any payment due to the Company for the goods by the due date for payment, then the Purchaser shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Purchaser shall pay the interest together with the overdue amount.
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 in writing to the Company and the carrier within 7 days of the date of the consignment (or in the case of goods dispatched by rail 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:
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 in writing) 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 by 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.
8.6 If the Purchaser shall not have within the period of 10 working days from the date of delivery of the goods, notified the Company of any damage to or defect in the goods the Company shall have no liability under the warranty.
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) result 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 reasonably practicable be safe and without risk to health.
11.1 Nothing in these Conditions shall limit or exclude Company liability for:
(i) death or personal injury caused by its negligence, or the negligence of its employees, agents of subcontractors (as applicable);
(ii) fraud or fraudulent misrepresentation;
11.2 Subject to clause 11.1:
(i) the Company shall under no circumstances whatsoever be liable to the Purchaser, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the goods; and
(ii) the Company’s total liability to the Purchaser in respect of all other losses arising under or in connection with the goods, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the goods.
12.1 Without limiting its other rights or remedies, the Company may terminate the order for goods with immediate effect by giving written notice to the Purchaser if:
(i) the Purchaser commits a material breach of any term of the order for goods and (if such a breach is remediable) fails to remedy that breach within 10 working days of that party being notified in writing to do so;
(ii) the Purchaser takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(iii) the Purchaser suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(iv) the Purchaser’s financial position deteriorates to such an extent that in the Company’s opinion the Purchaser’s capability to adequately fulfil its obligations under the order for goods has been placed in jeopardy.
12.2 Without limiting its other rights or remedies, the Company may suspend provision of the goods if the Purchaser becomes subject to any of the events listed in clause 12.1(i) to clause 12.1(iv), or the Company reasonably believes that the Purchaser is about to become subject to any of them, or if the Purchaser fails to pay any amount due under the order on the due date for payment.
12.3 Without limiting its other rights or remedies, the Company may terminate the order for goods with immediate effect by giving written notice to the Purchaser if the Purchaser fails to pay any amount due to the Company on the due date for payment.
12.4 On termination for any reason the Purchaser shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest.
12.5 Termination shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach that existed at or before the date of termination.
12.6 Any term hereunder that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
Any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the goods shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute of claim (including non-contractual disputes of claims) arising out of or in connection with the goods.