CONDITIONS FOR THE SUPPLY OF GOODS AND ASSOCIATED SERVICES BY Arrose Engineering.
1. GENERAL AND INCORPORATION OF TERMS
(a) In these conditions, “the Company” means Arrose engineering and the “Customer” means the individual, firm, company or other party with whom the company contracts. “Supply” includes (but is not limited to) any supply under a contract of sale. “International supply contract” means such a contract as is described in section 26(3) of the Unfair Contract Act 1977.
(b) The Company reserves the right to refuse any order. The Customer shall submit with any other sufficient information, including any necessary drawings, to enable the Company to accept the order and proceed with the Contract.
(c) No order in pursuance of any quotation or otherwise shall be binding on the Company unless and until such order is accepted by the Company. Any contract made between the Company and the Customer (herein called “the Contract”) shall be subject to these conditions and save as after mentioned no representative or agent of the Company has authority to agree any terms or make any representations inconsistent with them or to enter into any contract except on the basis of them; any such term representation or contract will bind the Company only if in writing signed by a director.
(d) The Customer shall notify the Company in writing within 21 days of the date of the acknowledgement of order of any discrepancy between the Customer’s order and the acknowledgement of order.
(e) Unless otherwise agreed in writing by the Company these conditions shall override any terms and conditions stipulated or referred to by the Customer in his order or pre-contract negotiations or any inconsistent terms implied by law or trade customs, practice or course of dealing.
(f) Any description, technical specification, illustration, or particulars of weights and/or dimensions contained in the Company’s catalogues, or other advertising material is intended merely to present a general picture of the Company’s products and shall not form a representation or be part of the Contract.
(g) In the event that the Company has not given a written acknowledgement of the Customer’s order these conditions, provided the Customer shall have prior notice of them, shall nonetheless apply to the Contract.
(h) The Company reserves the right to correct any clerical or typographical errors made by its employees at any time.
(i) The Company reserves the right to sub-contract the whole or part of the Contract.
2. SPECIFICATIONS, INSTRUCTIONS,DESIGN & AMENDMENTS TO DESIGN
(a) Where goods are made to the Customer’s specification; instructions, drawings or design, the Customer undertakes full responsibility for the suitability and accuracy of the specification, instructions drawings or design and undertakes to indemnify the Company against any inadequacy, unsuitability or inaccuracy of such specification, instructions, drawings or design or any infringement of any third party’s intellectual property rights including but not limited to patent, registered design, trade mark, trade name or copyright and any loss, damage or expense which it may incur by reason of such infringement in any country.
(b) The Company reserves the right to cease work on any order being undertaken by it if it should come to the Company’s notice that the goods in question are the subject or claimed to be the subject of any intellectual property rights of any third party and shall have no liability to deliver the same to the Customer, but shall be entitled to be reimbursed by the Customer forthwith upon submission of invoice, for all work undertaken and for all cost or expenses incurred up to the date of cessation of work.
(c) Once the Customers purchase order is accepted for manufacture, design modifications or amendments may only be introduced with the agreement of the Company, at an agreed point in time and at a cost that covers all tooling, gauges, materials and other associated costs that the Company will invoice to the Customer. All goods already manufactured shall be despatched and invoiced immediately by the Customer at the full purchase price prior to goods being despatched to the new design.
3. QUOTATIONS AND PRICES
(a) Subject to any agreement to the contrary the Company’s quotations cease to be valid 30 days after the date thereof, it may be withdrawn by the Company before the expiry of such period, and are provisional and may be altered to take account of any changes or fluctuations taking place between the date of quotation and the date on which the Company receives the Customer’s order in the price of raw material’s (using the published raw material basis), rates of wages and other costs of production or in the Customer’s specification, instructions or design or in the event that the Customer orders part of the quantity referred to in any quotation.
(b) The Company shall be entitled to increase its prices at any time to take account of any increase in the cost to the Company of purchasing any goods or materials or manufacturing working on or supplying any goods arising from any error or inadequacy in any specification, instructions or design provided by the Customer or any modification carried out by the Company at the Customer’s request.
(c) All prices quoted are exclusive of VAT and the Customer shall pay any and all taxes duties and other government charges payable in respect of the goods.
(a) Unless otherwise agreed in writing by the Company the Company shall deliver the goods by the means most convenient to the Company to the address or addresses specified by the Customer or (in the event that the customer fails to specify an address) to any address which the Customer resides or carries on business and the Company shall not be liable to the Customer in any way for the arrangements so made.
(b) The Company shall, at its absolute discretion, deliver the goods in accordance with one of the delivery terms set out in sub-paragraphs (i) to (iii) below and shall notify the Customer of which such delivery term is to apply in its acknowledgement of order.
(i) The Company shall deliver the total quantity of goods ordered in a single delivery ; or
(ii) The Company shall deliver the total quantity of goods ordered in fixed, pre-agreed delivery quantities over a specified period; or
(iii)The Company shall deliver the total quantity of goods ordered over a specified period, which will be no longer than 12 months from the date of the Customer’s purchase order date, in accordance with a written call off schedule supplied in a timely manner by the Customer to the Company prior to each delivery quantity being despatched. The end of the specified period will be known as the Closure Date. Under these circumstance the customer will be asked to sign an Unspecified Supply Agreement so that he may clearly recognise his obligations regarding material and parts liability which are:-
That if the Customer fails to take delivery of the total quantity of goods ordered by the agreed Closure Date the Company shall submit an invoice for the Material Liability amount (as shown on the Unspecified Supply Agreement and at the Prevailing Basis Price shown thereupon) less goods manufactured, plus an amount for the full purchase price of the balance of goods for which the Customer has not specified delivery prior to the Closure Date plus any cost of storing goods and material and all other associated costs. This invoice is due for payment 14 days after the invoice date irrespective of any normal payment terms agreed.
(c) If the contract is an international supply contract it shall be deemed to incorporate the latest edition of Incoterms current at the date of the Contract save that in the event of any inconsistency between Incoterms and any express term of the Contract the later shall prevail. The Company shall be under no obligation to give the Customer notice specified in section 32(3) of the Sale of Goods Act 1979.
(d) Save in the case of international supply contracts and subject to any agreement in writing by the Company, the risk in goods which the Company agrees to supply shall pass to the customer at the time at which;
(i) The goods are delivered to the Customer’s premises for off-loading; or
(ii) The Customer takes delivery of the goods at the Company’s premises
which ever shall first occur.
(e) The Company shall not be liable for any loss of or damage sustained by any goods left within the Company howsoever caused and whether or not attributable to negligence on the part of the Company or negligence or wilful default on the party of any servant or agency of the Company.
(f) Should the Company be delayed in or prevent from making delivery of the goods due to war, governmental or parliamentary restrictions, strike, lock-outs, fire, floods, explosions, labour disturbances, trade disputes, damage to or destruction of the goods, breakdown of machinery, shortages of labour or of raw materials or Act of God due to any other cause whatsoever beyond the reasonable control of the Company, the Company shall be at liberty to cancel or suspend the order placed by the Customer without incurring any liability for any loss or damage arising there from.
(g) While the Company will endeavour to deliver the goods by any date or within any period agreed upon, such dates and periods are estimates only given in good faith and the Company will not be liable for any failure to deliver by such a date or within such a period. Moreover, the Company shall be entitled to defer delivery until any monies due from the Customer has been received.
(h) While the Company will endeavour to deliver the exact quantity of goods ordered by the Customer the Company reserves the right to deliver plus or minus 5% of the quantity so ordered. In such a case the Customer will be invoiced for the actual quantity of the goods delivered and the agreed contract price will be adjusted proportionately.
Where the Company produces a sample of the goods ordered by the Customer and the Customer notifies the Company that the sample produced is in accordance with the Customer’s order then provided that the goods delivered to the Customer are in accordance with the sample, the Customer shall not be entitled to reject the goods so delivered.
(a) A Customer having no established account with the Company shall provide at least one bank reference and two credit references before the Company will accept its order. If for Whatever reason, the Customer is unable to provide such bank and credit references or if such references are invalid or unacceptable to the Company, the Company reserves the right to refuse or accept the Customer’s order.
(b) Unless otherwise specified in writing by the Company payment for the goods or any instalment thereof shall be made by the Customer net cash not later than 30 days after the date of invoice. Time for payment shall be the essence of the Contract. Without prejudice to any other rights of the Company interest will be payable on all overdue accounts at barclays bank plc base rate plus 4% calculated on a daily basis and compounded monthly and for the purpose of paragraphs 7 and 9 hereof the full purchase price of the goods shall include all interest payable hereunder.
(c) Without prejudice to any other rights of the Company if the Company has not received payment in full within 7 days of the Company’s “Final Demand” request the Customer shall immediately incur a debt recovery charge of £50 in addition to any other costs incurred by the Company in obtaining payment.
7. FAILURE TO PAY AND CANCELLATION
(a) If the Customer shall fail to make any payment when it becomes due or shall enter into any composition or any arrangement with his creditors or if, being in partnership shall have a winding up order made against it, or if being an incorporated company shall have an administrative receiver or administrator appointed or shall pass a resolution for winding up or a Court shall make an order to that effect of or if the Customer ceases to trade or appears to the Company to be likely to cease trade if there shall be any breach by the customer of any of the terms and conditions hereof the Company may defer or cancel any further deliveries stop any goods in transit and treat the Contract of which these conditions form part as determined but without prejudice to its right to full purchase price for goods delivered and damages for any loss suffered in consequence of such determination.
(b) Cancellation by the Customer will only be accepted at the discretion of the Company and in any case on condition that any costs or expenses incurred by the Company up to the date of cancellation, including but not limited to the cost of raw materials that have been ordered by the Company in respect of the order, and all loss or damage resulting to the Company by reason of such cancellation will be paid by the Customer to the Company forthwith. Acceptance of such cancellation will only be binding on the Company in writing.
(c) Any request by the Customer to alter the delivery terms specified in the Company’s acknowledgement of order will only be accepted by the Company in writing and at its absolute discretion. A charge will be made for any costs incurred by the Company (including without limitation the costs of storing and insuring the goods, a reasonable fee for the Company’s services in connection with the storage of the goods and all other associated cost) due to suspension or deferment of any order by the Customer or in the event that the Customer defaults in collecting, or giving instructions for the delivery of, any goods.
8. LIABILITY AND INDEMNITY
(a) No Claim for damage in transit, shortage of delivery or loss of goods will be entertained unless the Customer shall have given to the Company written notice of such damage, shortage or loss with reasonable particulars thereof within 14 days of receipt of the goods or (in the case of total loss) of receipt of the invoice or other notification of despatch. The Company’s liability, if any, shall be limited to replacing or (in its absolute discretion) repairing or issuing credit for such goods and it shall be a condition precedent to any such liability that the Customer shall if so requested have returned damaged goods to the Company within 14 days of such request. The Customer shall not be entitled to make any claim against the Company for consequential loss arising out of such damage or shortage or loss as aforesaid.
(b) (i) Save as otherwise provided in these conditions the Company’s liability in respect of any defect in or failure of goods supplied or work done is limited to replacing or (in its absolute discretion) issuing credit for or repairing or paying for the repair or replacement of goods which (in the case of defects apparent upon inspection) within 28 days of delivery and (in the case of defects not so apparent) within 12 months of delivery to the Customer are found to be defective of faulty or incorrect design workmanship parts or materials and the Customer that it shall inspect all goods so delivered within 28 days of delivery to it.
(ii) In the event of any error in weight, dimension, capacity, performance or other description which has formed a representation or is part of a contract the Company’s liability in respect of any direct loss or damage sustained by the Customer as a result of such error shall not exceed the price of the goods in respect of which the description is incorrect.
(iii) Conditions precedent to the Company’s liability hereunder shall be that as soon as reasonably practicable the Customer
(A) Shall have given to the Company reasonable notice of the defect, failure or error
(B) Shall have either returned the goods to the Company or provided authority for the Company’s servants or agents to inspect them, as the Company may request.
(iv) The Company shall have no other or future liability in respect of any direct or consequential loss or damage sustained by the Customer arising from or in connection with any such defect failure or error as aforesaid.
(c) Where the Company agrees to repair or replace goods in accordance the foregoing provisions of this paragraph any time specified for delivery under the Contract shall be extended for such period as the Company may reasonably require.
(d) The Company will not entertain any claim made in accordance with this paragraph where the Customer has altered of made additions to the goods without the prior written consent of the Company or where the Customer has misused the goods or failed to observe strictly any instructions provided by the Company relating to the operation or use of the goods.
(e) The Company shall indemnify the Customer:-
(i) against liability for personal injury to or death of the Customer and damage to the property of the Customer intended for private use and in fact so used, arising by reason of the goods proving defective within the meaning of Consumer Protection Act 1987;
(ii) save in the case of an international supply contract, against liability for personal injury to or death of any person caused by the negligent act or omission of the Company or its employees in the course of their employment; and
(iii) against liability for loss of or damage to property caused by the negligent act or omission of the Company or its employees in the course of their employment; provided always that the Company’s liability for such loss or damage shall not in any event exceed £250,000 for any one event or connected series of events and £500,000 in aggregate save that the Company’s liability for such loss or damage in the U.S.A. shall not in any event exceed £50,000 for any one event or connected series of events and £100,000 in aggregate.
(f) The Company shall have no liability for loss of profits or contracts or other economic, indirect or consequential loss, weather arising from negligence, breach of contract, breach of statutory duty or otherwise however.
(g) All goods sold by the Company are supplied with the benefit of the terms implied by section 12 of the Sale of goods Act 1979. Subject thereto, and whether or not the Contract is a contract of sale, all conditions, warranties and other terms expressed or implied, statutory or otherwise, are expressly excluded, save insofar as contained herein or as otherwise expressly agreed by the Company in writing PROVIDED that if and insofar as any legislation or any order made there under shall make or have made it lawful to exclude or purport to exclude from the Contract any term or shall have made unenforceable any attempt to exclude any such term, the foregoing provisions of this paragraph will not apply to any such term.
9. RETENTION OF TITLE
The following provisions shall apply to all goods which under the Contract the Company agrees to supply to Customer. No failure by the Company to enforce strict compliance by the Customer with such provisions shall constitute a waiver thereof and no termination of the Contract shall prejudice limit or extinguish the Company’s rights under this paragraph.
(j) Upon delivery of the goods the Customer shall hold the goods solely as bailee for the Company and the goods shall remain the property of the Company until such time as the Customer shall have paid to the Company the full purchase price of all goods supplied under the Contract or any other contract. Until such time the Company shall be entitled to recover the goods or any part thereof and for the purpose of exercising such rights the Company its employees and agents with appropriate transport may enter upon the Customer’s premises and any other location where the goods are situated.
(ii) The Customer shall keep the goods separate from all similar goods in its possession so that the goods remain clearly identifiable as the Company’s goods.
(iii) The Customer is hereby granted a licence by the Company to incorporate the goods in any other products.
(iv) The Customer is hereby licensed to sell on the goods and any products incorporating any of them. The Customer shall, immediately upon receipt of the proceeds of sale, and whether or not payment has become due under paragraph 6 hereof, remit to the Company the full purchase price of the goods sold on less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Company.
(v) The Customer shall maintain all appropriate insurance in respect of the goods from the date or dates on which the risk therein passed to him. In the event of any loss or damage occurring while the goods remain the property of the Company the Customer shall immediately on receipt of the insurance monies, remit to the Company the full purchase price of the goods lost or damaged less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Company.
(vi) The licence granted under sub-paragraphs (iii) and (iv) above shall be terminable forthwith at any time upon notice by the Company to the Customer.
Subject always to the provisions of paragraph 8(e) and (g) the Customer agrees to indemnify the Company against any damages, losses, costs, claims or expenses incurred by the Company in respect of any claim brought against the Company by any third party for:
(i) any loss, injury or damage wholly or partly caused by the goods or their use;
(ii) any loss, injury or damage in any way connected with the performance of this contract.
11. INSTRUCTIONS AND WARNINGS
The Customer shall ensure that all information and instructions relating to and warnings in respect of the goods supplied by the Company are passed on to, and, in proper and responsible manner, drawn to the attention of all persons using or proposing to use the goods.
All tooling shall at all times remain the property of the Company.
The headings to the paragraphs of the Contract are for ease of reference only and shall not effect the interpretation or construction of the Contract.
14. LAW AND JURISDICTION
The proper law of all contracts with the Company shall be English law which shall govern in all respect the construction and effect of such contracts and of these Conditions. The Customer agrees that in the event of any dispute arising out of the Contract or the performance thereof he will submit to the jurisdiction of the English Court.