(e) The Company shall be entitled to interest as well after as before judgment on any part of the Contract price not paid by its due date from that date until actual payment at the rate of three (3) per cent per annum above the Base Lending Rate of Lloyds Bank Plc prevailing from time to time during such period
(f) Where the Company specifies that payment will be made by letter of Credit, the Customer must establish and maintain in favour of the Company an irrevocable and unconditional Letter of Credit with or confirmed by a bank in England satisfactory to the Company. All bank charges (whether of the overseas or United Kingdom bank) in
connection with the Letter of Credit and the opening thereof shall be borne by the Customer. If for any reason the bank is liable to make payment to the Company under any Letter of Credit established for that purpose fails to do so, the Customer shall nevertheless remain liable to pay for the goods supplied and/or services performed.
DRAWINGS AND SPECIFICATIONS
10 (a) Unless it is expressly stated in the Contract that any figures or statements therein or in the Company’s catalogues, sales literature or in any relevant drawings or other documents supplied by the Company as to the performance of the goods are guaranteed to be accurate, such figures and statements shall be approximate and subject to a margin of five (5) per cent. The Company gives no guarantee or representation that the goods will in all cases be identical with the illustrations weights and dimensions specified in such catalogues and literature drawings or other documents due to improvements and modifications to the goods or their specifications that may be made from time to time. The Company will notify the Customer in writing of any material alterations to any specifications relating to the goods and the Customer shall be deemed to have accepted such alterations unless notice in writing to the contrary is received by the Company within ten (10) days of the Company’s notice to the Customer.
(b) If in the Contract the Company expressly guarantees the accuracy of such performance, figures or statements (whether subject to specific margins or otherwise) then in the event of the goods after delivery installation or commissioning failing to achieve and comply with the same, the Company shall thereafter be entitled to a reasonable period and to reasonable facilities to enable it to bring the goods up to the guaranteed standard of performance and the contractual time for delivery of the goods or the installation or commissioning thereof shall be extended for such reasonable period.
11 If the Contract provides for testing and inspection of the goods or services, such testing and inspection shall be conclusive. If requested in writing arrangements will be made for the Customer’s representative to be present at such tests and inspection. The Customer will be deemed to have accepted the goods and services as satisfactory after the completion of such testing and inspection unless written notice to the contrary specifying the matters complained of is received by the Company within ten (10) days of completion of such testing and, or inspection.
12 (a) Where any goods or services (or any part thereof) are shown to the reasonable satisfaction of the Company, to be defective by reason of faulty material or workmanship or (in the case of goods other than Special Goods) design, within a period of twelve (12) months from the date of their original despatch or supply, (fair wear and tear excepted)
the Company shall at its sole option:-
(1) deliver replacement goods and, or supply further services to the Customer free of charge; and/or
(2) refund to the Customer the Contract price of such goods and/or services; and/or
(3) require the Customer to retain the goods and/or services and grant to the Customer a reasonable allowance in respect of such defects
PROVIDED that :-
(i) the Customer notifies the Company in writing within fourteen days of becoming aware of any such defect; and
(ii) if so required by the Company all defective goods are first returned to the Company’s premises carriage paid by the Customer;
(iii) the goods have been properly and correctly stored and/or used by the Customer;
(iv) and the liability of the Company under this paragraph (a) shall be accepted by the Customer in substitution for and to the exclusion of any other claims for direct loss which the Customer has or may not have;
(b) The liability of the Company for any claim or claims other than those falling within paragraph (a) above for direct injury, loss or damage made by the Customer against the Company whether in contract or in tort (Including negligence on the part of the Company, it’s servants or agents) arising out of or in connection with any defect in the goods and/or services or any act, omission, neglect or default (whether or not the same constitutes a fundamental breach of the Contract or the breach of a fundamental term thereof, of the Company its servants or agents in the performance of the Contract (including, without limiting the generality of the foregoing, breach of any condition or warranty whether express or implied by statute, common law or otherwise howsoever) shall be limited to the contract price of such goods and/or services;
(c) The Company shall not be liable for any claims for economic loss, loss of production, loss of profit, loss of opportunity, loss of bargain or other indirect or consequential injury loss or damage made by the Customer against the Company whether in contract or in tort (including negligence on the part of the Company its servants or agents)
arising out of or in connection with any such defect, act, omission, neglect or default referred to in sub-clause (b) of this Clause:
(d) Nothing in these Conditions shall :- (1) limit or exclude the liability of the Company in respect of death or personal injury resulting from the negligence of the Company, its employees or agents ; or
(2) limit or exclude the respective rights and remedies of the Company and the Customer under the Unfair Contract Terms Act 1977; or
(3) exclude the conditions and warranties implied by Section 12 of the Sale of Goods Act1979 and, where the Customer deals as a consumer, the conditions implied by Sections 13 to15 inclusive of the said Act and by sections 3 and 4 of the Supply of Goods and Services Act 1982.
13 (a) The Company reserves the right to supply ten (10) per cent more or less than the exact quantity of Special Goods ordered such overs and shortages to be charged for or deducted pro rata;
(b) (i) the Company shall be entitled to reject any materials supplied or specified by the Customer which the Company in its judgement considers unsuitable. Additional costs incurred by the Company if such materials are judged to be unsuitable, will be charged to the Customer; (ii) Quantities of materials supplied by the Customer shall be adequate to
cover normal spoilage.
(c) The Company accepts no responsibility for the accuracy or suitability of patterns, designs, tools, drawings, particulars or specifications relating to Special Goods which are supplied by the Customer and the Company shall be entitled to accept the same as being without defect. The Company shall have no responsibility for the quality or fitness of Special Goods for any particular purpose whether or not such purpose is made known to the Company and the conditions implied by Sections 13 to 15 inclusive of the Sale of Goods Act 1979 and by Sections 3 to 5 inclusive, 7 to 10 inclusive and 13 to 15 inclusive of the Supply of Goods and Services Act 1982 shall be excluded. The Customer under takes to indemnify the Company and to keep the Company fully and effectually indemnified against
all actions, proceedings, claims, costs, loss, damage or expense whatsoever arising in contract or tort which the Company may suffer or incur as a result of any defect in the Special Goods whether due to quality, design, fitness for purpose or in any other way whatsoever unless the same is due directly to the negligence of the Company, its
employees or agents ;
(d) The Customer represents and warrants to the Company that neither the Special Goods nor the manufacture thereof by the Company will infringe any patent, copyright, registered design or any other proprietary right of any third party and the Customer further undertakes to indemnify the Company and keep the Company fully and effectually indemnified against all actions, or proceedings claims costs, loss, damage or expense whatsoever in respect of any infringement by the Company of any patent, or copyright, design, trademark or any other proprietary right which the Company may suffer of incur in connection with the execution and performance of the Contract and such indemnity
3/4 shall extend to any amount including costs paid by the Company (upon legal advice) in settlement of any claim out of Court.
14 All property supplied to the Company by or on behalf of the Customer which is held by the Company for the purposes of the Contract or in transit to or from the Customer, shall be deemed to be entirely at the Customer’s risk and the Company shall not be liable for any loss of or damage to such property whilst in possession of the Company
or in transit as aforesaid unless such loss or damage is due directly to the negligence of the Company, its employees or agents. In no circumstances whatsoever will the Company be liable for any consequential loss or damage arising therefrom. The Customer shall insure all such property for all risks.
15 Without prejudice to any other rights and remedies which the Company may have under Contract, the Company shall in respect of all debts of the Customer to the Company have a general lien on all goods and property belonging to the Customer in its possession (whether worked on or not) and shall be entitled upon the expiration of fourteen days notice to the Customer, to dispose of such goods or property as it thinks fit and to apply any proceeds of sale thereof towards the payment of such debts.
HEALTH AND SAFETY
16 (a) The attention of the Customer is drawn to the provisions of Section 6 of the Health and Safety at Work etc. Act 1974, et al. The Company will make available such information as is appropriate relating to the goods and materials supplied as is in its possession to ensure that as far as is reasonably practicable they are safe and without risk to
health when properly used ;
(b) The Customer hereby undertakes pursuant to Section 6 (8) of the Health and Safety at Work etc. Act 1974, et al, to take such measures as are communicated in writing to the Customer by the Company and to take such other steps as are sufficient to ensure, so far as is reasonably practicable, that the goods will at all times be safe and without risk to health when properly used. The goods and materials shall not be regarded as properly used when they are used without regard to any relevant information or advise relating to their use which has been communicated to the Customer pursuant to this clause;
(c) The company shall not be liable to the Customer in any civil proceedings brought by the Customer against the Company under any Health and Safety Regulations made pursuant to the Health and Safety at Work etc. Act 1974 , et al, where such exclusion of liability is permitted by law;
(d) The Customer shall indemnify and keep indemnified the Company in respect of any liability, monetary penalty or fine in respect of or in connection with the goods or services incurred directly or indirectly by the Company under the Health and Safety at work etc. Act 1974, et al, or any regulations orders or directions made thereunder.
INSOLVENCY AND BREACH OF CONTRACT
17 If any of the following events occur, are threatened or in the opinion of the Company are reasonably likely to occur:-
(a) The Customer shall commit any breach of the Contract and shall fail to remedy such breach (if capable of remedy) within a period of thirty days from receipt of notice in writing from the Company, requesting such breach to be remedied; or
(b) Any distress or execution is levied upon any of the goods or property of the Customer; or
(c) The Customer (or where the Customer is a partnership any partner thereof) offers to make any arrangements with or for the benefit of its or his creditors or commits any act of bankruptcy; or
(d) The Customer (being a Limited Company) has a receiver appointed of the whole or any part of its undertaking property or assets or an order is made or a resolution is passed or analogous proceedings are taken for the winding up of the Customer (save for the purpose of reconstruction or amalgamation without insolvency and previously approved in writing by the Company) the Company shall remain thereupon be entitled without prejudice to its other rights hereunder, forthwith to suspend further performance of the Contract and any other contract between the Company and the Customer until the default has been made good to determine the Contract or any other contract between the Company and the Customer or any unfulfilled part thereof or at the Company’s option to make partial supplies of goods and/or services. Notwithstanding any such termination, the Customer shall pay to the Company at the Contract rate for all work done materials used and goods delivered up to and including the date of termination and shall in addition indemnify the Company against any resulting loss, damage or expense incurred by the Company in connection with the supply or non-performance of the contract including the cost of any material, plant or tools used or intended to be used therefore and the cost of labour and other overheads including a percentage in respect of profit.
18 If at any time any one or more of these conditions (or any paragraph, sub-paragraph or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted herefrom and the validity and/or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired thereby.
19 The rights and remedies of the Company under the Contract shall not be diminished waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies.
20 These conditions and each and every Contract made pursuant thereto shall be governed by and construed in all respects in accordance with the Laws of England and the Company and the Customer irrevocably submit to the exclusive jurisdiction of the English Courts.
FOR THE ATTENTION OF ACCOUNTS DEPARTMENT
Our terms are nett monthly a/c payment due by the end of the month following date of invoice. Please comply as this enables us in turn to pay for raw materials and similar and give continuity of supply. You are requested to send remittances or queries concerning accounts to our Head Office, Manchester. The title to the goods shall not pass until payment has been made. IMPORTANT – The carriers will not recognise any claim for non-delivery of goods lost in transit if they are not notified by the senders within fourteen days from the date of despatch. We cannot accept liability unless we are advised in time to allow us to comply with the above conditions. No responsibility can be accepted by us for either shortages or damage unless you advised carriers same day as goods received with copy advice to us. NO PACKAGES can be credited unless returned in good condition, carriage paid, within 4 weeks of Date of Invoice, with advice to us. A 10% handling returns charge will be imposed on items correctly supplied against order but returned to us. E. & O. E.