Terms & conditions of sale

The Buyer’s attention is in particular drawn to the provisions of Condition 13.4.

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this condition apply in these conditions.

‘Business Days’ days which are not Saturdays Sundays or bank or public holidays in England and Wales on which commercial banks in the United Kingdom are open for business.

‘Buyer’ the person(s), firm or company who purchases the Goods and/or Services from the Company.

‘Buyers Order’ the order for the Goods and where required the Services in Writing sent by the Buyer to the Company where appropriate following receipt by the Buyer of a Quotation from the Company.

‘The Company’ Ingimex Ltd. (company Number 1058472) whose registered office address is Halesfield 19 Telford Shropshire TF7 4QT

‘Company’s Price List’ the product and services price list of the Company as updated from time to time.

‘Conditions’ the Conditions set out below including any special conditions agreed in Writing by the parties.

‘Contract’ a contract between the Company and the Buyer for the sale and purchase of the Goods and where applicable the provision of Services incorporating these Conditions.

‘Delivery Point’ is the place where delivery of the goods is to take place under condition Condition 7.

‘Goods’ the goods (including any instalment(s) or component(s) of the Goods) which the Company manufactures fabricates or assembles and supplies to the Buyer under and in accordance with these Conditions.

‘Invoice’ the Company’s invoice for the Goods and where provided the Services

‘Price’ the total price to be paid by the Buyer to the Company in accordance with the Company’s Price List or any Quotation provided by the Company to the Buyer for the Goods and where applicable the provision of the Services.

‘Quotation’ any quotation sent by the Company to the Buyer for the purchase of the Goods and where applicable the provision of Services

‘Company Services’ the service(s) which the Company agrees to provide under and in accordance with these Conditions.

‘VAT’ means value added tax or any other tax of a similar nature and unless otherwise expressly stated all references to Price or any other sums payable by the Buyer are exclusive of VAT.

‘In Writing’ includes any signed correspondence addressed to the registered office (or such other address as notified by either party to the other from time to time) of either the Buyer or Company and a reference to ‘written’ or ‘in writing’ includes faxes and emails.

‘Warranty Period’ the period of 3 years from the date of invoice, or upon new vehicles reaching 60,000 miles, whichever is sooner.

1.2 A reference to any 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.
1.6 All the obligations assumed by the Buyer under these Conditions are entered into jointly and severally where the Buyer is more than one person.
1.7 A reference to a party includes its successors or permitted assigns.

2. APPLICATION OF TERMS

2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions 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 which may be 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 the Managing 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 or Services by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods and/or Services subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods or supplies the Services to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any Quotation is given on the basis that it shall not constitute an offer and that no Contract shall come into existence until the Company dispatches an acknowledgement of order to the Buyer. Any Quotation is valid for the period as shown on the official quotation document or, if no official document has been supplied, 14 (fourteen) days from its date, provided that the Company has not previously withdrawn it.
2.8 These Conditions shall not be affected by any previous dealing or course of dealing between the Company and the Buyer.
2.9 The Buyer acknowledges that;

(a) the Company’s employees are not authorised to make any representation about the Goods or (where provided) the Services unless it is confirmed by the Company in Writing.
(b) the Buyer does not rely on any representation by an employee of the Company not confirmed in accordance with this Condition 2.9.
(c) Nothing in these Conditions affects the liability of the Company or the Buyer for representations made fraudulently by the other party.
(d) Any error or omission in any sales literature, or the Company’s Price List, or Quotation, or the Buyer’s Order, Invoice or any variation in Writing of these Conditions shall be subject to correction, but is without liability to the Company.

3. DESCRIPTION

3.1 The quantity and description of the Goods shall be as set out in the Company’s Quotation or acknowledgement of order.
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 or Services described in them. They shall not form part of the Contract and this is not a sale by sample.

 

4. ORDERS AND SPECIFICATIONS

4.1 The Buyer undertakes to the Company that;

(a) The Buyer’s Order accurately reflects the terms of any Quotation provided by the Company subject to any variation required by the Buyer and confirmed by the Company.
(b) Any vehicles, materials or components provided by the Buyer in accordance with Condition  4.1(d) are the absolute property of the Buyer are free from defects and of appropriate quality for the work required to be done on or with them by the Company under the contract.
(c) Any samples drawings designs specifications or instructions given to the Company by the Buyer for work to be done by the Company on vehicles materials or components provided by the Buyer for the purpose are accurate specific and complete.
(d) All vehicles, materials and components and any relevant samples drawings designs specifications or instructions shall be made available by the Buyer to the Company within a reasonable time prior to the commencement of the work required to be done by the Company.

4.2 The quantity, quality and description of the Goods and the provision (where applicable) of the Services and any relevant specifications or instructions for or about them shall be as set out in the Buyer’s Order.
4.3 Where any vehicles materials or components are provided by the Buyer and are to be manufactured fabricated or assembled in accordance with any drawing design sample specification or instructions provided by the Buyer the Buyer shall indemnify the Company against all liabilities, loss, damages, costs and expenses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and legal and other reasonable professional costs and expenses) awarded against or incurred by the Company:

(a) arising from or in consequence of any breach by the Buyer of Condition 4.1(a);
(b) in respect of the infringement of any patent copyright design trademark or other industrial or intellectual property rights of any other person resulting from or in consequence of the Company’s user of such drawing design specification or instructions of the Buyer.

4.4 The Company reserves the right to make changes to the Buyer’s specification for the Goods required to conform with any applicable statutory or European Union requirement when the Goods are to be fabricated by the Company to the Buyer’s specification or instructions which do not materially affect the quality or performance of the Goods.
4.5 No Buyer’s Order accepted by the Company may be cancelled by the Buyer unless the cancellation is confirmed in Writing by the Company.
4.6 If the Company shall agree to the cancellation of the Buyers Order in accordance with Condition 4.5 the Buyer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all materials used, development costs and (where applicable) Services provided and other liabilities incurred by the Company as a result of the cancellation).

 

5. SERVICES

5.1 Where the Company agrees to perform the Services it shall perform them with reasonable care and skill and in all material respects in accordance with any specification or instructions of the Buyer agreed in Writing by the Company.
5.2 The Buyer shall provide all relevant information and give the Company proper explanations and reasonable assistance where necessary or requested by the Company in performing the Services.
5.3 The Company shall use its reasonable endeavours to perform the Services within the time agreed with the Buyer or if no time is agreed within a reasonable time of receiving and accepting the Buyer’s Order but shall not be liable to the Buyer for any delay in performing the Services and time shall not be of the essence for the performance of the Services.
5.4 If before the Contract is completed the Buyer notifies the Company in Writing of any defect or alleged defect in the performance of the Services the Company shall investigate the complaint without undue delay.
5.5 If on proper investigation in accordance with Condition 5.4 the Company;

(a) identifies a defect in the provision of the Services it shall correct the defect as soon as reasonably practicable at no additional costs to the Buyer;
(b) is unable to identify any defect in the provision of the Services the Buyer shall if required by the Company pay or reimburse to the Company the Company’s costs in carrying out the investigation on demand by the Company.

5.6 Any request by the Buyer or the Company to vary the provision of the Services shall be made and confirmed in writing.
5.7 If the Company agrees to a request by the Buyer to vary the provision of the Services in accordance with Condition 5.6 the Buyer shall indemnify the Company in full against any loss or additional costs incurred by the Company in implementing the variation.

 

6. DELIVERY

6.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business and delivery shall be completed on completion of loading of the Goods or, if the Company has agreed to deliver the Goods to an alternative location, on the arrival of the Goods at that location.
6.2 The Buyer shall take delivery of the Goods within 10 (ten) business days of the Company giving it notice that the Goods are ready for delivery.
6.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
6.4 The Goods may be delivered or made available for collection by the Buyer in advance of any quoted or agreed delivery or collection date on the Company giving reasonable notice in writing to the Buyer.
6.5 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
6.6 If for any reason the Buyer fails 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, vehicles, parts, licenses 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 at 9.00am on the 11th Business Day following the day on which the Company notified the Buyer that the Goods were ready for delivery and
(c) the Company may store the Goods (at the Buyer’s risk) until actual delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

6.7 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
6.8 If the Company delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity accepted by the Company, 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.
6.9 The Buyer shall be bound to take delivery of the quantity of any bulk Goods regardless of discrepancy in quantity.
6.10 The Company may deliver the Goods by separate installments. Each separate installment shall be invoiced and paid for in accordance with the provisions of the Contract.
6.11 Each installment shall be a separate Contract and no cancellation or termination of any one Contract relating to an installment shall entitle the Buyer to repudiate or cancel any other Contract or installment.

 

7. NON-DELIVERY

7.1 The quantity of any consignment of Goods as recorded by the Company upon dispatch 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.
7.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 2 Business Days of the date when the Goods would in the ordinary course of events have been received.
7.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
7.4 If the Buyer fails or refuses (except for any reason beyond the Buyers reasonable control) to take delivery of the Goods or to give the Company adequate delivery instructions before or at the time stated for delivery or as appropriate to collect the goods;
7.5 the Company may;

(a) store the Goods until actual delivery takes place and charge the Buyer for the cost of storage (including insurance); or
(b) sell the Goods at the best price reasonably obtainable and (after deducting reasonable storage and selling expenses) account to the Buyer for any balance over and above the Price or charge the Buyer for any shortfall below the Price.

7.6 The remedies referred to in Condition 7.5 shall not restrict or replace any other legal right or remedy available to the Company.

 

8. RISK/TITLE

8.1 Risk of damage to or loss of the Goods shall pass to the Buyer on delivery or deemed delivery as described in condition 6.
8.2 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.

8.3 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.
(e)  Notify the Company immediately if it becomes subject to any of the events listed in condition 8.5.

8.4 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.

8.5 The Buyer’s right to possession of the Goods shall terminate immediately if:

(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.

8.6 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.
8.7 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.
8.8 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.
8.9 The Buyer shall not be entitled to pledge or charge the Goods or any of them as security whilst any of them remain the property of the Company.
8.10 If the Buyer pledges or charges any of the Goods in default of Condition 8.9 all money owed by the Buyer to the Company shall become due and payable to the Company immediately.
8.11 The remedy referred to in 8.10 shall not restrict or replace any other legal right or remedy available to the Company.
8.12 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this Condition 8 shall remain in effect.

 

9. PRICE

9.1 Unless otherwise agreed by the Company in writing, the price for the Goods and/or Services shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery unless the Company has otherwise agreed in Writing.
9.2 10.2The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
9.3 If the Company shall have provided the Buyer with a Quotation the Price shall be valid until the date as stated in the quotation document, or for 14 (fourteen) days where no official document has been supplied, or until acceptance of the Buyers Order by the Company.
9.4 Subject to clause 9.3, the Company reserves the right to increase the Price on giving notice in Writing to the Buyer at any time before delivery to reflect:

(a) any increase in costs to the Company of manufacturing fabricating or assembling the Goods or providing the Services;
(b) any change in delivery date(s) quantities or specification for the Goods required by the Buyer and agreed by the Company or
(c) any delay caused by the failure of the Buyer to provide any relevant sample drawing design specification instructions vehicle materials or components.

9.5 The Company reserves the right without giving notice in Writing to the Buyer to alter its prices at any time after expiry of the shorter of the periods referred to in Condition 9.3.

 

10. PAYMENT

10.1 Payment of the price for the Goods and/or Services is due in pounds sterling unless otherwise agreed between the Company and Buyer in Writing.
10.2 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
10.3 No payment shall be deemed to have been received until the Company has received cleared funds.
10.4 The Company may invoice the Buyer for the Price of Goods on or at any time after the Company has given notice to the Buyer that the Goods are ready for delivery (or deemed delivery) in accordance with condition 6. In respect of Services, the Company shall invoice the Buyer on or at any time after the Services have been provided.
10.5 The Buyer shall pay the Price in full and in cleared funds within twenty eight (28) days of the date of the Invoice or as otherwise agreed in Writing between the Company and the Buyer.
10.6 The Company shall be entitled to recover the Price whether or not actual delivery or collection of the Goods has taken place.
10.7 Time for payment of the Invoice shall be of the essence.
10.8 If the Buyer fails to pay the Invoice in full by the Invoice payment date the Company may;

(a) cancel the Contract or;
(b) if the Goods are to be delivered suspend delivery of the Goods or any other goods deliverable to or to the order of the Buyer;
(c) if the Goods are to be collected and have not been collected refuse collection of the Goods by the Buyer or the Buyers authorised representative;
(d) appropriate any payment made by the Buyer to any of the Goods (or goods supplied under any other contract between the Buyer and Company) as the Company in its absolute discretion may decide regardless of any purported appropriation by the Buyer.

10.9 The remedies referred to in Condition 10.8 may at the discretion of the Company be exercised by it individually or in combination and do not restrict or replace any other legal right or remedy available to the Company.
10.10 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.
10.11 If the Buyer fails to pay the Company any sum due pursuant to the Contract, 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 7% above the base lending rate from time to time of THE BANK OF ENGLAND, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
10.12 The Company shall have the right to exercise a lien over any samples drawings designs specifications vehicles materials components or other property of the Buyer from time to time in the possession of the Company for the purpose of manufacture fabrication assembly or otherwise until the Price and all (if any) other sums due under the Contract have been paid in full.
10.13 The Company shall have the right in the event of non-payment by the Buyer of the Price or any other sums due under the Contract to sell any vehicles materials components but not other property of the Buyer held in accordance with Condition 10.12 as agent for and at the expense of the Buyer and appropriate the proceeds of sale towards the Price and any other sums due to the Company under the Contract, or any other Contract under which the money remains due to the Company from the Buyer on giving not less that 30 Business days notice in Writing to the Buyer.
10.14 If the Company shall sell any materials components or other property of the Buyer pursuant to Condition 10.13 the Company shall;

(a) discharge any sums due to the Company under the Contract out of the sale proceeds of such property
(b) pay any balance of the sale proceeds remaining to the Buyer

10.15 The Company will use its reasonable endeavours to procure the market price for any property of the Buyer sold pursuant to Condition 10.13 but shall be under no obligation to do so.
10.16 Once the Company has accounted to the Buyer for any balance of the sale proceeds of any property sold pursuant to Condition 10.13 the Company shall be discharged from any further liability to the Buyer in respect of the sale of such property.

 

11. QUALITY

11.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company in respect of the Goods. On request from the Buyer, the Company shall provide details of any applicable warranties provided by or on behalf of third party manufacturers.
11.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery, and for the Warranty Period, Goods that have been manufactured by the Company shall:

(a) Conform in all material respects with their description;
(b) be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
(c) be reasonably fit for purpose; and
(d) be free from material defects in materials and workmanship; and
(e) any work done by the Company on vehicles or materials provided by the Buyer will be free from material defects in workmanship.

11.3 The Company shall not be liable for a breach of any of the warranties in Condition 11.2 unless:

(a) the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 7 days of the time when the Buyer discovers or ought 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 (or one of its authorised repair agents) at the Buyer’s cost for the examination to take place there.

11.4 The Company shall not be liable for a breach of any of the warranties in Condition 11.2 if:

(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer 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 none) good trade practice; or
(c) the Buyer alters, modifies or repairs such Goods at an unauthorised repair shop or otherwise without the written consent of the Company.
(d) The defect arises as a result of the Company following any drawing, design, instruction, specification, supplied or materials by the Buyer;
(e) The defect arises as a result of fair wear and tear, wilful damage, negligence, misuse, abnormal working conditions or failure by the Buyer to carry out proper maintenance;
(f) The Price or any part of the Price has not been paid by the due date for payment; or
(g) Any defect arises in any vehicles, materials or components not manufactured, fabricated or assembled by the Company.

11.5 Subject to Condition 11.3 and Condition 11.4, if any of the Goods do not conform with any of the warranties in Condition 11.2 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, at the Buyer’s expense, return the Goods or the part of such Goods which is defective to the Company or one of its authorized repair agents.
11.6 If the Company complies with Condition 11.5 it shall have no further liability for a breach of any of the warranties in Condition 11.2 in respect of such Goods.
11.7 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the period.

 

12. LIMITATION OF LIABILITY

12.1 Subject to Conditions 6, 7 and 11, 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 subcontractors) 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 tortious act or omission including negligence arising under or in connection with the Contract.

12.2 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.
12.3 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 the negligence of its employees, agents or sub-contractors; 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.

12.4 Subject to Condition 12.2 and Condition 12.3:

(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
(b) the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

13. FORCE MAJEURE

The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of sixty 60 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.

 

14. TERMINATION

14.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 20 Business Days after receipt of notice in writing of the breach;
(b) the other party 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 an individual) 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;
(c) the other party 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 (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) 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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party 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;
(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 other party (being a company);
(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(b) to clause 14.1(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

14.2 Without limiting its other rights or remedies, the Company may terminate the Contract:

(a) by giving the Buyer two months’ written notice;
(b) with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under this Contract on the due date for payment.

14.3 Without limiting its other rights or remedies, the Company shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Buyer and the Company if:

(a) the Buyer fails to make payment of any amount due under this Contract on the due date for payment; or
(b) the Buyer becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(l), or the Company reasonably believes that the Buyer is about to become subject to any of them.

15. CONSEQUENCES OF TERMINATION

15.1 On termination of the Contract for any reason:

(a) the Buyer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt;
(b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

16. DISPUTE RESOLUTION

16.1 If any dispute arises between the Company and the Buyer about the meaning or effect of these Conditions or their respective rights and responsibilities under them:

(a) the party in dispute will notify the other in Writing without delay once it is clear that a dispute has arisen stating clearly the reason for and circumstances of the dispute;
(b) the Company and the Buyer will then have thirty (30) Business Days from the date of the notice referred to in Condition 16.1(a) to use all reasonable efforts to negotiate in good faith and settle the dispute between themselves;
(c) if after thirty (30) Business Days the dispute has not been settled to the satisfaction of the Company and Buyer they or their authorised representative will attempt to decide it by mediation in accordance with the Centre for Dispute Resolution Model Mediation Procedure.

16.2 To begin mediation under 16.1 (c) either party will give notice in Writing to the other requesting a mediation take place not later than thirty (30) Business Days after the date of the notice unless the Company and the Buyer and the mediator agree a longer or shorter period.
16.3 If there is any issue on the conduct of the mediation that the Company and Buyer or their authorised representatives cannot agree between themselves within fourteen (14) Business Days of the date of the notice referred to in Condition 16.2 the mediator will at the request of either party given in Writing decide the matter after consulting them both and his decision will be final.
16.4 If the Company and the Buyer are unable to settle their dispute by mediation either of them may refer it to arbitration by a single arbitrator to be appointed in default of agreement within not more than fourteen (14) Business Days of the service by one party on the other in Writing of a request to agree the proposed appointment by the President for the time being of the Law Society.
16.5 The decision of any arbitrator appointed with Condition 16.4 will be final and conclusively binding on the Company and the Buyer in the absence of serious error and his fee will be paid by them in the proportions the arbitrator directs or in the absence of direction in equal shares.
16.6 Nothing contained in this Condition 16 shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy under these Conditions or to protect any proprietary or confidential right of that party.

 

17. ASSIGNMENT

17.1 The Company may assign transfer or sub-contract all or any of its rights under the Contract or any part of it to any person, firm or company.
17.2 The Buyer shall not be entitled to assign transfer, sub-contract, charge or deal in any other manner with all or any of its rights under the Contract or any part of it without the prior written consent of the Company.

 

18. GENERAL

18.1 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.
18.2 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.
18.3 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.
18.4 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.  No single or partial exercise of any right or remedy by the Company shall preclude or restrict the further exercise of that or any other right or remedies.
18.5 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.
18.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
18.7 Except where specifically provided otherwise, nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of the other party.
18.8 Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Company.

 

19. COMMUNICATIONS

19.1 All communications between the parties about the Contract shall be in Writing and delivered by hand, sent by pre-paid first class post, fax or email:

(a) (in case of communications to the Company) to its registered office or such other address as shall be notified to the Buyer by the Company; or in the case of fax, to its main fax number or by email to the email address(es) notified by the Company to the Buyer for that purpose
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer, or, in the case of fax or email, to such number or email address(es) of the Buyer set out in any document which forms part of the Contract.

19.2 Communications shall be deemed to have been received:

(a) if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax or email, on the next Business Day after successful transmission.

19.3 Communications addressed to the Company shall be marked for the attention of the Managing Director.
19.4 This clause 19 shall not apply to the service of any proceedings or other documents in any legal action.

Document number: SD10200
Revision: A
Revision Date: 22/05/13