ADVANCE SPARES LIMITED – TERMS AND CONDITIONS OF TRADING
The Buyer’s attention is specifically drawn to Conditions 4, 5, 10 and 11.
1.1 The definitions and rules of interpretation in this Condition apply in these Conditions.
business days: any day other than a Saturday, Sunday, or public holiday in the United Kingdom)
Buyer: the person, firm or company who purchases the Goods from the Company.
Bespoke Goods: any Goods which are manufactured for the Buyer to a Specification and are not Catalogue Goods
Catalogue Goods: Goods which are advertised by the Company including without limitation in its price lists brochures or catalogues or on its website time to time and which goods are supplied by the Company without modification or adaption
Company: Advance Spares Limited (company number 02013999) whose registered office address is Unit 2A Park Road Rhosymedre Wrexham LL14 3YR.
Conditions: these terms and conditions set out above and below as amended from time to time in accordance with Condition 15.7 and ‘Condition’ followed by a number means the condition referred to by that number
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions.
Contract Price: the price of the Goods the subject of the Contract but excluding all those costs referred to in Condition 8.2 and for the avoidance of doubt notwithstanding that Goods may be an instalment of Goods which are the subject of one Order and or Quotation and or a Guaranteed Order Amount the contract price shall be the price of the Goods which are the subject of the instalment such instalment being a separate Contract in accordance with Condition 5.10.
Delivery Location: as defined in Condition 5.1 or 5.2 as the case may be.
Force Majeure Event: shall have the meaning given in Condition 14
Goods: any goods (including without limitation Bespoke Goods and/or Catalogue Goods) agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
Guaranteed Order Amount: where Goods the subject of one Order are for a bulk supply to be supplied by the Company to the Buyer in instalments, the amount of Goods which the Buyer has committed in writing to purchase for a set period of time (whether in its Order or otherwise) and which the Company has agreed to supply
Order: the Buyer’s order for Goods as set out in its purchase order form or in the Buyer’s written acceptance of the Company’s Quotation and in the case of Bespoke Goods where samples are supplied by the Company, acceptance of those samples
Quotation: any quotation supplied by the Company to the Buyer in respect of the sale and purchase of Goods.
Specification: any specification for the Goods, including without limitation any related plans and drawings that are supplied to the Company by the Buyer or as amended by the Company to comply with the Buyer’s requirements for the Goods or with the agreement of the Buyer or at the instruction of the Buyer during the Contract or to comply with any sample(s) produced by the Company or in accordance with Condition 3.3.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these Conditions.
2. Application of terms
2.1 Subject to any variation under Condition 2.3 the Contract shall be on these Conditions (but shall also include any terms specified in the Quotation (including without limitation those relating to the costs of delivery, tooling, samples and any other terms which are specific to the Contract) to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document or any terms or conditions which are implied by trade, custom, practice or course of dealing).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each Order or acceptance of a Quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions and to any terms specified in the Quotation. The Buyer shall be responsible for ensuring that the terms of the Order and any Specification are complete and accurate.
2.5 Where a Quotation relates to a proposed contract for the bulk supply of Bespoke Goods the Company will within a reasonable period following receipt of an Order from the Buyer (and payment of the cost of producing samples if applicable) produce samples of Goods). The Buyer shall be responsible for approving the Specification and the sample(s) of Goods and such approval shall be deemed to be confirmation by the Buyer that the sample(s) corresponds with the (then) Specification (and where there has been any amendment to any part of the Specification that the Buyer accepts and approves those amendments); and
2.6 If any samples of Goods produced or supplied by the Company in accordance with Condition 2.5 are not approved by the Buyer and the Buyer requires further samples to be produced or supplied the Company reserves the right to charge the Buyer an additional amount to produce or supply such samples.
2.7 An Order placed by the Buyer shall be deemed to be accepted by the Company on receipt by the Company, receipt to be governed by the terms of Condition 16.2, unless the Company informs the Buyer (in accordance with the provisions of Condition 16.2) within the expiry of five business days of the deemed date of its receipt of the Buyer’s Order that it has not accepted the Order.
2.8 The Buyer shall ensure that the terms of its Order and any parts of the Specification supplied by it to the Company are complete and accurate.
2.9 Any Quotation shall not constitute an offer to the Buyer and is given on the basis that no Contract shall come into existence except in accordance with Condition 2.7. Any Quotation is valid only for the period stated therein, provided that the Company has not previously withdrawn it but the price stated therein may at the Company’s option be increased if any factor referred to in Condition 8.3 occurs or is applicable.
3.1 The quantity and description of the Goods shall be as set out in the Company’s Quotation or acknowledgement of Order (if any).
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract (or any other contract between the Company and the Buyer for the sale of Goods) and this is not a sale by sample unless samples of Goods are provided to the Buyer by the Company.
3.3 The Company reserves the right to amend any Specification if required by any applicable statutory or regulatory requirements.
3.4 To the extent that the Goods are to be manufactured in accordance with a Specification wholly or partly supplied by the Buyer the Buyer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Specification. This Condition 3.4 shall survive termination of the Contract.
4.1 For the purpose of this Condition 4 an “Authorised Officer” shall be the officer or employee who has signed the Quotation or Advice.
4.2 Any advice or recommendation given by the Company or its employees, contractors or agents to the Buyer or its employees, contractors or agents in connection with the Goods including, without limitation, the storage, application use or suitability of the Goods (“Advice“).
4.3 Any Advice which is not confirmed in writing by an Authorised Officer is followed or acted on entirely at the Buyer’s own risk.
4.4 Subject to Condition 11.3 the Company excludes all liability for all and any damage or loss arising under or in connection with the Contract whether in contract, tort (including negligence) breach of statutory duty or otherwise and whether direct indirect or consequential (and including without limitation loss of profits howsoever arising) which may arise from the Buyer following or acting on any Advice or recommendation not confirmed by an Authorised Officer of the Company in writing nor does the Company guarantee or warrant any such unconfirmed Advice.
4.5 In respect of any Advice confirmed in writing by an Authorised Officer (“Confirmed Advice”) the Company warrants that the Authorised Officer has used reasonable care and skill in giving the Confirmed Advice and to a standard which conforms to generally accepted industry standards and practices.
4.6 Save as set out in Condition 4.5, the Company does not warrant any Confirmed Advice or that any result or objective, whether stated in the Confirmed Advice or not shall be achieved or attained by following or acting on any Confirmed Advice.
4.7 Subject to Condition 11.3 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with Confirmed Advice shall not exceed the Contract Price.
4.8 Where the Buyer requires Advice it is strongly advised to either obtain independent advice and/or make a request in writing to the Company for Confirmed Advice to be given, PROVIDED ALWAYS that the Company shall be entitled to adjust the Contract price to take into account any Confirmed Advice to be given to the Buyer. For the avoidance of doubt any Contract price quoted or agreed upon prior to the Company providing Confirmed Advice is quoted or agreed on the basis that no Confirmed Advice is required by the Buyer.
5.1 Unless the Quotation or Order states that the Buyer is to collect the Goods from the Company’s premises or arrange for the collection of the Goods from the Company’s premises, in which case the provisions of Condition 5.2 shall apply, the Company shall deliver the Goods to the location set out in the Quotation (or such other location as the parties may together agree) (Delivery Location) at any time after the Company notifies the Buyer that the Goods are ready but subject always to the provisions of Condition 5.3.
5.2 If the provisions of Condition 5.1 do not apply the Buyer shall collect or arrange for collection of the Goods by carrier or otherwise from the Company’s premises or such other location as the parties may agree (Delivery Location) at any time after the Company notifies the Buyer that the Goods are ready (but subject always to the provisions of Condition 5.3)
5.3 Any dates specified by the Company or the Buyer whether in the Quotation, Order of otherwise for delivery of the Goods are intended to be an estimate and time for delivery shall not be of the essence. If no dates are so specified, delivery shall be within a reasonable time.
5.4 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location if delivery occurs in accordance with Condition 5.1 or on the completion of loading of the Goods at the Delivery Location if delivery takes place in accordance with the provisions of Condition 5.2.
5.5 If for any reason the Buyer fails or unreasonably refuses to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
(b) the Goods shall be deemed to have been delivered on the second business day after the Company notified the Buyer that the Goods were ready for delivery or collection as the case may be; and
(c) the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5.6 If 10 business days after the date on which the Goods were ready for delivery or collection (as the case may be), the Buyer has still not taken or accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and after deducting reasonable storage and selling costs and management time, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods. However in the case of any Bespoke Goods the Buyer accepts that the Company may be unable to resell such Goods and the Company shall not be under any obligation to do so.
5.7 The Buyer shall provide at the Delivery Location and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
5.8 If the Company delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity ordered, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
5.9 The Company may deliver the Goods by separate instalments (and those instalments may differ from any delivery schedule specified in or attached to the Quotation or the Order). Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment notwithstanding that the Buyer has ordered a Guaranteed Order Amount.
5.10 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.11 For the avoidance of doubt the Company shall not be liable for any delay in delivery or failure to deliver arising from:
(a) any delay by the Buyer in supplying the Company with any free issue parts or components or tooling as required or envisaged under the Contract; and or
(b) any changes in the Specification required, requested or agreed to by the Buyer; and or
(c) the Buyer amending the delivery schedule, any delivery date or dates, delivery location or delivery details; and or
(d) any amendment to the quantity of Goods requested by the Buyer; and or
(e) the Buyer failing to provide the Company with adequate delivery instructions or other instructions or equipment and manual labour relevant to the delivery of the Goods; and or
(f) any Force Majeure Event.
5.12 Notwithstanding that each instalment of Goods shall be a separate Contract and subject otherwise to these Conditions the Buyer shall be liable for the payment of the price of any Guaranteed Order Amount.
6. Partial Non-delivery
6.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.2 The Company shall not be liable for any partial non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the partial non-delivery within 21consecutive days of the date when the non-delivered Goods would in the ordinary course of events have been delivered at the Delivery Location.
6.3 Any liability of the Company arising under this Condition 6 for partial non-delivery of all or any of the Goods shall be limited to replacing the non delivered Goods within a reasonable time or issuing a credit note in respect of those non delivered Goods at the pro rata Contract rate against the invoice raised for those Goods.
7.1 The Goods are at the risk of the Buyer from the time of delivery at the Delivery Location unless the provisions of Condition 5.5(a) apply.
7.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
7.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
7.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
7.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) any of the matters set out in condition 12.1 (a) to (o) inclusive occur; or
(b) the Buyer encumbers or in any way charges any of the Goods.
7.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
7.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
7.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this Condition 7 shall remain in effect.
8.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s catalogue or if Bespoke Goods as set out in the Quotation subject to any amendment or variation arising under or in accordance with Condition 8.3.
8.2 The price for the Goods shall be exclusive of any VAT and all costs or charges in relation to packaging, loading, unloading, carriage and insurance and the costs of producing samples or carrying out tests required by the Buyer or any other additional items required by the Buyer, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods unless otherwise stated in the Quotation.
8.3 The Company reserves the right, by giving written notice to the Buyer at anytime before delivery (whether relating to delivery of all of the Goods or an instalment of the Goods), to increase the price of any instalment of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the reasonable control of the Company (including without limitation, any increase in packaging, insurance, transportation costs, costs of labour, materials or other costs of manufacture, taxes, tariffs or import duties (where applicable) or changes in legislation or regulations) or any changes in delivery dates, quantities or Specification of the Goods which are requested by the Buyer, or by any amendments or alterations required or requested by the Buyer to any samples produced by the Company, or if any additional samples of Goods are required or requested by the Buyer or any delay caused by failure of the Buyer to give the Company adequate information or instructions, free issue parts or if the provisions of Condition 9.6.3 applies.
8.4 The Buyer agrees and acknowledges that the price for the Goods is based upon the limitations of liability set out in Conditions 4, 5 and 11 and upon the limited warranties given in Condition 10.
9.1 Subject to Condition 9.4, and unless otherwise agreed by the Company in writing payment for the price of the Goods plus
(i) any charges made by the Company to the Buyer in respect of any tooling required for the Contract or any part of it; and
(ii) any costs or charges in relation to packaging, loading, unloading, carriage and insurance; and
(iii) VAT and any other relevant tax or taxes; and
(iv) where applicable the costs of samples and or testing or any other charges which are specified in the Quotation
is due in cleared pounds sterling on the :
(a) last working day of the month immediately following the month in which the Goods are delivered or deemed to be delivered (’30 day accounts’); or
(b) last working day of the second month immediately following the month in which the Goods are delivered or deemed to be delivered (’60 day accounts’); or
(c) the day on which the Goods are delivered or deemed to be delivered; or
(d) the date of the Order
(i) the Company shall notify the Buyer which of the payment terms set out in Conditions 9.1(a) to (d) inclusive shall apply and in the absence of such notification Condition 9.1(d) shall be deemed to apply; and
(ii) the Company reserves the right at any time to notify the Buyer that it has changed which of the payment terms set out in this Condition 9.1 apply to it; and
(iii) in the case of any Goods which the Buyer requires the Company to export, Condition 9.1 (d) shall apply.
9.2 Time for payment shall be of the essence.
9.3 No payment shall be deemed to have been received until the Company has received cleared funds.
9.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
9.5 Unless the Company otherwise first agrees in writing the Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
9.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract:
9.6.1 the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank, accruing on a daily basis until payment is made, whether before or after any judgment but the Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
9.6.2 the Buyer shall, without prejudice to any other costs and expenses to which the Company may be entitled, incur an administrative charge of £75 plus VAT if the Company is required to instruct a third party in respect of the recovery of any such sum plus the Buyer shall be responsible for the costs and expenses of such third party and in addition any court fees which the Company incurs in pursuing payment of any sum due under the Contract; and
9.6.3 the Company shall be entitled to suspend or cancel all future deliveries of Goods to the Buyer.
9.7 In the event that any variation is agreed between the Company and the Buyer regarding payment terms, which results in credit terms being extended to the Buyer, any such variation will cease and the amount of any debt owed will be payable forthwith on the occurrence of any of the matters set out in Condition 12.1 (a) to (o) inclusive.
9.8 Without prejudice to any other right or remedy of the Company any payment by the Buyer by cheque, which results in a cheque being referred to the drawer for whatever reason, will incur an administrative charge of £50 plus VAT per cheque so referred payable by the Buyer.
9.9 The Company may apply all or any part of any sum owing by the Company, its subsidiaries, or associates to the Buyer in relation to any matter whatsoever in or towards payment of any sum owing to the Company hereunder. For this purpose references to the Company or the Buyer include any company which is a holding company, subsidiary or associate of the Company or the Buyer respectively.
9.10 The Company may appropriate any payment made by the Buyer to the Company against amounts that are owed by the Buyer to the Company for the longest period not withstanding any prior appropriation of that payment by the Buyer.
9.11 In the event of default of payment by the Buyer to the Company under the Contract for any reason (for the avoidance of doubt including without limitation bankruptcy, insolvency or re-financing) then the directors partners or members (as appropriate) of the Buyer if it is a company, limited partnership or limited liability partnership shall jointly and severally undertake to indemnify the Company and guarantee such payment immediately on demand for all and any losses claims damages costs charges expenses liabilities demands proceedings and actions which the Company may sustain or incur or which may be brought or established against the Company by any person which arises out of in relation to or by reason of any such breach or breaches of any term or terms of the Contract.
10.1 Where the Company is not the manufacturer of the Goods, the Company shall use its reasonable endeavours to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
10.2 The Company warrants that (subject to the other provisions of these Conditions) on delivery, and for a period of 12 months from the date of delivery, the Goods shall:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
(b) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company;
(c) conform in all material respects with their description if Catalogue Goods or with the Specification or any sample(s) if the Goods are Bespoke Goods;
(d) be free from material defects in design, material and workmanship
For the avoidance of doubt, the warranties given in this Condition 10.2 are given in lieu of and shall exclude from the Contract the operation of all warranties, conditions and other terms implied by statute, or common law to the fullest extent permitted by law;
10.3 Subject always to Condition 10.4 the Company shall not be liable for a breach of any of the warranties in Condition 10.2 unless:
(a) the Buyer gives written notice of the defect to the Company within a reasonable period of discovering the defect, and, if the defect is as a result of damage in transit where delivery is undertaken by the Company in accordance with Condition 5.1, within 14 days of the time when the Buyer discovers or ought reasonably to have discovered the defect; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business for the examination to take place there PROVIDED THAT the Company shall be responsible only for the reasonably and properly incurred costs of transporting such Goods between the Delivery Location and the Company’s premises and the Buyer shall be responsible for any costs in connection with the transportation of the Goods if the Goods are not at the Delivery Location.
10.4 Notwithstanding Condition 10.3 the Company shall not be liable for a breach of any of the warranties in Condition 10.2 or otherwise under the Contract if:
(a) the Goods were damaged in the course of transit by a carrier when the Delivery Location arises under Condition 5.2
(b) the Buyer makes any further use of such Goods after giving notice under Condition 10.3(a); or
(c) the defect or default arises because or in consequence of the Buyer (or its employees, agents, sub-contractors or customer) having failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are no oral or written instructions) good trade and or commercial practice regarding the same; or
(d) the Goods are damaged in fitting or installation or use or the defect arises due to improper or negligent fitting, installation or maintenance or use of the Goods (or any part of them) by the Buyer or its employees, agents, sub-contractors or customer ; or
(e) the Buyer carries out, repairs or alterations itself (without the Company’s prior written consent) or brings about changes in the nature, composition or packaging of the Goods delivered, or has these carried out or brought about by third parties, or if the Goods delivered are used improperly or for any purpose other than that for which they are meant and/or stored improperly, negligently or contrary to any written or oral instructions of the Company or agreed or legal regulations or to good trade and or commercial practice or if the defect of the Goods can be ascribed to another party in any way;
(f) the defect arises as a result of the Company following in material respects any drawing, design or any part of the Specification supplied by the Buyer; or
(g) the defect arises as a result of fair wear and tear or wilful damage or negligence where such wilful damage or negligence is not that of the Company’s; or
(h) the Goods differ from their description (in the case of Catalogue Goods) or their Specification in the case of Bespoke Goods either case as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
10.5 Subject always to Condition 10.3 and condition 10.4 if any of the Goods do not conform with any of the warranties in Condition 10.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, return the Goods or the part of such Goods which is defective to the Company and the provisions of Condition 10.3(b) shall apply as regards the cost of returning the Goods).
10.6 If the Company complies with Condition 10.5 it shall have no further liability for a breach of any of the warranties in Condition 10.2 in respect of such Goods.
10.7 Any Goods replaced shall belong to the Company and these Conditions shall apply to any repaired or replacement Goods which shall be guaranteed for the unexpired portion of the 12 month period referred to in Condition 10.2.
11. Limitation of liability
11.1 Subject as otherwise provided in Conditions 4-6 inclusive and Condition 10 the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or wrongful act or omission including without limitation negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation; or
(e) for breach of the terms implied by section 12 Sale of Goods Act 1979.
11.4 Subject to Conditions 11.2 and 11.3 or any of the foregoing Conditions which limit or exclude liability:
11.4.1 the Company shall not be liable to the Buyer whether in contract, tort (including negligence) breach of statutory duty, or otherwise, for any loss of profit whether direct or indirect, or any other indirect or consequential loss arising under or in connection with the Contract;
11.4.2 the Company’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence) breach of statutory duty or otherwise shall not exceed the Contract Price.
12.1 The Company may terminate the Contract without liability to the Buyer immediately (or following such notice period as it sees fit), by giving notice to the Buyer if:
(a) the Buyer fails to pay any amount due under the Contract (as varied) on the due date for payment and remains in default for more than 7 days; or
(b) the Buyer commits a breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days; or
(c) the Buyer repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
(d) the Buyer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(e) the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole bona fide purpose of a scheme for a solvent amalgamation of that Buyer with one or more other companies or the solvent reconstruction of the Buyer; or
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer other than for the sole bona fide purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer; or
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer; or
(h) a floating charge holder over the assets of the Buyer has become entitled to appoint or has appointed an administrative receiver; or
(i) a person becomes entitled to appoint a receiver over the assets of the Buyer or a receiver is appointed over the assets of the Buyer; or
(j) the Buyer, being an individual, is the subject of a bankruptcy petition or order; or
(k) a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(l) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 12.1(d) to Condition 12.1(k) (inclusive); or
(m) the Buyer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(n) the Buyer, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or
(o) there is a change of control of the Buyer.
12.2 In the event of termination in accordance with Condition 12.1 or of any Order being cancelled by the Buyer, the Buyer shall indemnify the Company against all loss (including profits) costs (including labour and overheads) and all other expenses and damages reasonably and properly incurred by the Company in connection with the Contract and its termination.
13.1 The Company may assign the Contract or any part of it to any person, firm or company.
13.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company. For the avoidance of doubt, the Company shall not be deemed to have accepted an assignment of the Contract due to any circumstance or pursuant to any act or omission of the Company, including without limitation, the acceptance of payments or obligations under the Contract from a third party.
14. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen or if it could have been foreseen, was unavoidable, including without limitation strikes, lock outs or other industrial disputes (whether involving its own workforce or a third party’s) failure of energy sources or transport network, acts of Good, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics, or similar events, natural disasters or extreme or adverse weather conditions or default of suppliers or subcontractors or inability to obtain supplies of adequate or suitable materials.
15.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
15.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
15.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
15.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.6 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
15.7 Any variation to the Conditions or to the terms of the Contract if different, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Company.
16.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
16.2 A notice or other communication shall be deemed to have been received: if delivered personally when left at the address referred to in Condition16.1; if sent by pre-paid first class post or recorded delivery, at 9.00am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed or if sent by fax or e-mail, one business day after transmission.
16.3 The provisions of this Condition 16 shall not apply to the service of any proceedings or other documents in any legal action.
16.4 Communications addressed to the Company shall be marked for the attention of David Wace.
17. Change of Status
17.1 The Company must immediately be notified in writing of any material change of the Buyer including, without limitation, change of name, change of registered or head office, change to a limited company or partnership (including without limitation a change of control), and shall be entitled to its option to terminate the Contract by immediate notice to the Buyer.
17.2 For the avoidance of doubt, failure by the Company to give a notice in accordance with Condition 17.1 shall not constitute acceptance of the relevant change or a waiver of the Company’s right of termination payment to condition 17.1.
18. Additional Special Terms and Conditions
Where any conflict exists between these Conditions and any attached Additional Special Terms and Conditions (which are hereby deemed incorporated into these Conditions) the latter shall prevail.
ADDITIONAL SPECIAL TERMS AND CONDITIONS
Where the Buyer’s usual place of business or habitual residence is outside the United Kingdom and/or the Goods are to be exported outside of the United Kingdom the following additional special terms and conditions shall apply in addition:
i Sections 32(2) and 32(3) of the Sale of Goods Act 1979 shall not apply.
ii. The international rules for the interpretation of trade terms of the International Chamber of Commerce (Incoterms) shall apply provided always that in the extent of any inconsistency between the Incoterms and these terms and conditions then the latter shall prevail.
iii. The Company shall have no liability in respect of and the Buyer warrants to the Company the Buyer’s compliance with all local laws and regulations applicable to the Goods in the territory to which the Goods are to be exported concerning, without limitation, design, manufacture, construction, composition, packaging and labelling.
iv. Except where the Company specifically advises the Buyer in writing to the contrary, the Buyer and not the Company shall be responsible for obtaining all and any licences, registrations, permits or approvals necessary or advisable for the exportation and or importation and use of the Goods in the territory to which they are to be exported.
Where the Goods sold to the Buyer are manufactured or modified by the Company to the Buyer’s own requirements the following additional special terms and conditions shall apply:
i. The Buyer must ensure that the specifications, drawings or requirements given to the Company are clear and accurate;
ii. The Company’s obligation is limited to manufacturing or modifying such Goods within the specifications, drawings or requirements provided by the Buyer (except where in consultation with the Buyer the Company has varied the same, and to the use of individual components and processes of satisfactory quality.
iii. Save as stated in this paragraph and subject to Conditions 11.2 and 11.3 the Company excludes all liability for all and any damage or loss whether direct or indirect or consequential whether arising in contract, tort (including negligence), breach of statutory duty or otherwise which may arise from any use to which the Buyer puts the Goods so manufactured which is not made known to the Company prior to manufacture and in particular the said Goods are not guaranteed or warranted to be fit for any particular purpose not made known to the Company prior to manufacture.