2.3 No order accepted by the Company may be cancelled by the Customer except with the written agreement of the Company and on terms that the Customer forfeits any deposit paid and indemnifies the Company in full against all losses (including loss of profit) and expenses resulting from that cancellation.
3.1 The price of the goods and services (if any) shall be as set out on the Order Form. The Customer shall be responsible for all additional cost to the Company resulting from amendments in Customer instructions or lack of instructions, or any other cause attributable to the Customer.
3.2 Unless otherwise agreed in writing between the Customer and the Company, all prices are given by the Company on an ex works basis. Removal, packing, loading, transport, delivery and insurance costs will be charged extra to the Customer.
4.1 Unless otherwise specified on the Order Form, the Company’s terms of payment are net cash, payment in full to be made upon receipt of invoice and prior to removal of the goods from site or from the Company’s premises. Deposits are non-refundable. No discount or allowance will be made unless agreed in writing by the Company prior to the date of the order. If the Company’s invoice specifies “Account strictly net monthly” then the Customer must pay the account on or before the last day of the month in which the invoice is dated.
4.2 In any case where the Company agrees to there being a retention from the purchase price payable against performance, the amount of that retention and the applicable conditions shall be clearly stated on the Order Form. That retention sum shall be paid at the time of delivery of the goods/services in question into an escrow account with the Company’s solicitors, to be released immediately on fulfillment of the escrow conditions.
4.3 If the Customer fails to comply with these terms of payment, the Company reserves the right to cancel any and all other agreements with the Customer subsisting at the time relating to goods to be sold.
4.4 Interest will be charged on all outstanding accounts at the rate of 2% per month.
5.1 The Company will endeavour to effect delivery by the estimated date set out on the Order Form but shall not incur any liability whatsoever for failure to do so. For the avoidance of doubt, the time for performance by the Company of its obligations under these conditions shall not be of the essence.
5.2 Unless otherwise agreed in writing by the Company, delivery of the goods shall take place at the Company’s factory/warehouse on collection by the Customer within 21 days of being notified by first-class post of availability. Notification shall be deemed to have been given on the day after posting.
5.3 If the Customer fails to collect goods by the due date or, where delivery elsewhere has been agreed, fails to take delivery of the same, the Company shall be entitled (but not obliged) to treat the order as cancelled and to seek damages accordingly from the Customer and in any event to make a reasonable charge for transport, storage and insurance, applying any deposit received towards this liability. Failure to accept delivery shall not affect the Customer’s obligation to pay for the goods.
5.4 Where the goods are supplied for export from the UK, the Customer shall be responsible for obtaining any necessary export licences, for arranging the contract of carriage and insuring the goods on board ship, for complying with any legislation or regulations governing the importation of the goods into the country of destination and for the payment of duties on them.
5.5 Where the Company agrees to deliver the goods otherwise than at the Company’s warehouse, the Customer shall bear the risk of the goods during transit and provide such labour as is necessary to unload the goods. Further, the Customer will keep the Company fully indemnified against all damage to property and injury to persons resulting from any cause whatsoever whilst on the Customer’s premises (unless caused by the negligence of the Company or the carrier or its or their employees or agents).
5.6 If delivery of the goods is not effected within seven days of the date of the Company’s advice or despatch note (or, in the case of export orders, such longer period as specified on the Order Form), the Customer must immediately notify the Company in writing.
6. Risk of damage to or loss of the goods shall pass to the Customer at the time of delivery, whether to the Customer or to a carrier for delivery to the Customer This is regardless of whether an installation service is also provided.
7.1 Notwithstanding delivery and the passing of risk in the goods, or any other provision of these conditions, the goods shall remain owned by the Company until the contract price has been paid in full in respect of all and any goods delivered by the Company but after delivery the Customer shall accept full responsibility for and shall fully indemnify the Company against any loss or damage to the goods from whatever cause. Immediately on delivery of the goods, the Customer must arrange insurance for the full reinstatement value of the goods. Until such time as ownership of the goods passes to the Customer on full payment, the Company’s interest shall be noted on the policy and the proceeds of the insurance shall be assigned to the Company, which shall be supplied with a copy of the insurance cover note on request.
7.2 Until it becomes owner of the goods on making full payment of the contract price, the Customer shall hold those goods as the Company’s fiduciary agent and bailee and shall keep the goods separate, protected and insured (as set out above) and identified as the Company’s property. Without prejudice to any other rights or remedies arising out of any breach of contract by the Customer, if any part of the contract price for goods is overdue the Company shall be entitled to recover and sell all or any of the relevant goods and the Customer hereby irrevocably authorises and licenses the Company, its employees and agents to enter the relevant premises at any time in order to recover those goods and agrees that full and free access will be given in this respect. The Customer shall keep the Company fully indemnified against all costs incurred by the Company in pursuing its rights under this condition.
7.3 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods still in the ownership of the Company. Any breach of this condition shall result in all monies owing by the Customer to the Company in respect of those goods becoming immediately due and payable (without prejudice to any other right or remedy of the Company).
8. Where the Order Form specifies for the installation of the goods, the Company will arrange for that installation to be carried out by a third party contractor of the Company’s choice on the following basis:
8.1 the Company will nevertheless remain responsible to the Customer for the proper installation of the goods;
8.2 delivery and installation shall be carried out during the Company’s normal working hours unless otherwise agreed in writing with the Customer, in which case an additional charge shall be paid;
8.3 the Customer shall prepare a suitable installation area and environment for the goods, ensuring free and uninterrupted access to the same and with all necessary services and facilities for full installation readily available;
8.4 the Company’s obligations shall be to effect physical installation only of the goods and shall not extend to carrying out operating tests unless so agreed in writing with the Customer at the time of placing the order;
8.5 only if so stated on the Order Form, the Company (or its subcontractor) shall carry out appropriate operating tests in the presence of the Customer’s representative following installation and the parties shall, on satisfactory conclusion of those tests, sign off to the effect that the goods are in working order;
8.6 where default on the part of the Customer has prevented or delayed the installation of the goods at the pre-arranged site, day and time, the Company shall be entitled to charge the Customer for all additional costs incurred.
9. The Company shall not be liable to the Customer or be deemed to be in breach of the order by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the goods if that delay or failure was due to any cause beyond the Company’s reasonable control, including (but not limited to) Act of God, strikes, lock outs or other industrial action, explosion, flood, fire or accident, acts of war or terrorism or threat of the same, civil disturbance, local or national governmental acts, restrictions, bye laws, prohibitions or measures of any kind, power failure or breakdown of machinery.
10.1 Unless specifically stated on the Order Form, no warranties are given in respect of goods, which are sold on an ‘as seen’ basis. It is the Customer’s responsibility to arrange for testing and inspection of the goods at the Company’s premises before accepting delivery and the Company accepts no liability for any claim in respect of any defect that would have been apparent on inspection but which is notified to the Company after delivery.
10.2 Any damage to or defect in goods must be notified in writing to the Company by the Customer within 2 days after delivery. In the case of a valid claim, the Company’s liability shall be limited to repairing or replacing the goods or part in question or, at the Company’s sole discretion, taking back the goods and refunding the purchase price.
10.3 Any warranty given in respect of goods will be valid only if the total price for the goods has been paid by the due date for payment and then only for the period stated on the Order Form, commencing with the date of delivery. Warranty claims must be notified to the Company in writing within 3 working days of the Customer or its agent becoming aware of the problem. No liability under warranty will be accepted by the Company in any case where goods are operated other than on a one-shift basis, under abnormal working conditions, where goods have been modified or otherwise tampered with or where goods have been damaged, misused or operated by untrained operators or otherwise than in accordance with the relevant operating manual or proper working practice.
11.1 Notwithstanding any other provision of these conditions, the Company does not seek to exclude or limit liability for death or personal injury to the extent that the same arises as a result of the negligence or wilful default of the Company, any breach of any undertaking as to title or freedom from encumbrance implied by law and/or fraudulent misrepresentation.
11.2 Subject always to clause 11.1, the Company shall not be liable to the Customer for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with these conditions, the supply or installation of goods, their use or otherwise, except to the extent to which it is unlawful to exclude such liability under the applicable law.
11.3 Notwithstanding the generality of clause 11.2, the Company shall not be liable to the Customer by reason of any misrepresentation (unless fraudulent) or any implied warranty or condition, or other terms or duty at common law or under the express terms of the contract for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever that arise out of or in connection with the supply or installation of goods or their use or resale by the Customer including without limitation all or any of loss of profit, anticipated savings, business, revenue or goodwill or costs relating to the procurement by the Customer of any substitute goods.
11.4 In the event that any exclusion contained in these terms and conditions shall be invalid for any reason and the Company becomes liable for loss or damages to the Customer that can be lawfully limited such liability shall not exceed the contract price for the goods (net FOB).
12. The parties hereby exclude the application of the Contracts (Rights of Third Parties) Act 1999 to the terms of this Agreement. Unless the Company consents in writing, the Customer shall not transfer any contractual rights to a third party.
13. The Customer shall not enter into any agreement in respect of the goods on terms that could result in the Company incurring any liability in excess of the liability of the Company to the Customer under these conditions. The Customer shall when entering into any contract with a third party exclude any and all liability to the fullest extent permitted by law whether arising in contract, tort, by statute or otherwise in respect of any loss of profits and/or for any special, indirect, incidental or consequential loss or damage capable of arising from the goods. In the event of the Customer failing to do so and in the event of the Company incurring liability as a result of that failure, the Customer shall indemnify the Company against all claims, costs and expenses arising from that failure.
14. These conditions (including the Order Form) represent the entire agreement between the parties for the supply and installation of the relevant goods and services and supersede any previous representations or agreements whether recorded in writing or otherwise.
15. The interpretation and enforcement of these conditions shall by governed by English Law and the parties irrevocably submit to the non-exclusive jurisdiction of the English courts provided that the Company may bring proceedings in any other jurisdiction to enforce a judgment of the English courts.