“Customer” means the person described as such in quotations, invoices and acknowledgment of orders.
“ The Company” means the Collective Person, with juridical personality, that make the sales.
“Goods” means the articles or things or any of them described in the acceptance or confirmation of order.
“Expenses” means the monetary value of losses suffered by a customer as a direct result of any default and reasonably and necessarily incurred by the Customer in using the Goods or any alternative Goods.
“Proofs” shall mean samples.
All quotations given and contracts for sale of Goods that form part of any contract made by The Company with any Customer shall be deemed to incorporate these terms & conditions which shall prevail over and take the place of any other terms or conditions contained in any purchase or order invoice or any other document or communication with the Customer.
No other agreement representation or promise of any kind shall form part of, vary, supersede or operate as a waiver of these conditions or any of them unless expressly made or accepted as such by The Company in writing.
This contract is entered into on the basis of the specification.
CREATION OF CONTRACT
Unless a Customer explicitly requests a written acknowledgment of order The Company will assume that an order from the Customer, whether written or verbal, shall be confirmation of that order. A Contract of Sale will be in place unless The Company are notified within a period of 7 days that the Customer wishes to refuse or reject that order.
Quotations do not constitute an offer from The Company to supply the goods or perform the services referred to therein. All quotations given by The Company expire automatically after 30 days after the date of issue unless explicitly reinstated or unless an earlier or later date is specified in the quotation. Clerical errors and omissions are subject to correction. The Company may at any time withdraw a quotation before the creation of the Contract of Sale.
No order (whether or not it has been accepted by The Company) may be cancelled or withdrawn by the customer except with the consent in writing of The Company and on terms that the Customer shall indemnify The Company in full against all loss costs damages, charges and expenses incurred by The Company as a result of such cancellation or withdrawal.
Where because of factors beyond the reasonable control of The Company it becomes unduly difficult or expensive for The Company to supply the goods as originally ordered or specified, The Company reserves the right to renegotiate the contract notwithstanding any order for the Goods has been acknowledged, accepted, or confirmed by The Company. In such circumstances The Company shall not incur any obligations to supply the Goods or any item comprised therein as originally ordered or specified or to supply any such item which has become obsolescent or unduly difficult to obtain.
TOLERANCE The Customer accepts that:
Manufactured quantities are subject to a variation of plus +/- 10 per cent. The price to be adjusted pro rata.
Specified dimensions are subject to a tolerance of plus or minus 10 per cent.
Where the Goods are specified in a particular colour or colours then reasonable slight variations of such colour or colours or in the likeness or shade of such colour or colours shall be permitted particularly having regard to the fibre to which any colouring material is added. In any event The Company shall not be liable for colour variations when no sample has been supplied by or to The Company prior to the order.
USE OF GOODS OUT SIDE THE BUYING TERRITORY Where the Customer orders the goods for use outside the buying territory it shall be the Customer's sole responsibility to draw to The Company attention in writing any operating, handling, transportation or climatic conditions, which may affect the suitability of the Goods for the purpose required by the Customer. Otherwise The Company shall be entitled to assume that if the Goods are suitable for use under normal operating handling, transportation or climatic conditions as existing in the buying territory they are reasonably fit for the purpose required by the Customer and of satisfactory quality.
The price as stated in the acceptance or confirmation of order form is that currently in effect and should not be increased nor should any reduction be made for any reason whatsoever save as provided by these conditions;
Unless otherwise stated in writing the price is ex-works and exclusive of value-added tax;
Unless otherwise stated in writing the price may be increased by The Company at any time before commencement of manufacture on giving the Customer reasonable notice in writing in which event the Customer may by giving reasonable notice to The Company (such notice only being effective if received by The Company within a reasonable time before ordering of material or commencement of manufacture whichever is the earlier) cancel his order in total or with respect to that part of the Goods for which the price is being increased without further obligation or liability on the part of either party;
In any event The Company shall be entitled upon notice to the Customer who (without entitling the Customer to cancel the order or part of) to adjust the stated price to take account of:
Any cost to The Company resulting from delay by the Customer in giving The Company sufficient information to enable it to supply the Goods or resulting from any alteration made by the request of the Customer to the specification or to the place to which they are to be delivered or shipped;
Any increase in the cost to The Company of producing or delivering the Goods caused by factors beyond The Company control between the date of the contract and the date when delivery is complete including but without limitation fluctuation in currency exchange rates;
Any extra cost to The Company resulting from Goods being carried at the request of the Customer by methods more rapid or expensive than normal Goods rail and/or road transport and where applicable cargo ship;
RETENTION OF TITLE Until such time as the price of the goods and all the monies owing by the customer to The Company on any account whatsoever have been paid to The Company in full, the property in and title to the Goods will remain invested in The Company. Such property in the Goods shall remain in The Company not withstanding that the risk in the Goods has passed to the Customer and not withstanding that the Customer may have possession of the Goods. The Customer shall hold the Goods as bailee for The Company until the date of payment and the Customer will insure the Goods to their full replacement value without charge to The Company. Until the happening of any of the events set out in Clause 25 below, the Customer shall have the right to use or dispose of the Goods in the ordinary course of its business for the account of The Company.
SALE BY SAMPLE Where The Company has supplied to the Customer a sample of the Goods to be supplied to the Customer under this contract and the Customer accepts that the sample so long as the bulk supplied under this contract materially corresponds with the sample, any implied condition, warranty, or term of the contract that the goods are fit for the purpose for which they are required, or are of satisfactory quality shall be deemed to have been complied with in every respect and no liability shall attached to The Company in respect thereof.
The place of delivery is as agreed in writing between The Company and the Customer.
All dates specified as to delivery and installation (where applicable) of the Goods are estimates only and The Company shall not be liable for delay or any damage or inconvenience sustained by the Customer as a result of any such date not being met. In all cases time shall not be of the essence;
Where Goods are ready for delivery without prejudice to any other right or remedy available to The Company – The Company may, unless otherwise agreed:
Postpone delivery at the request of the Customer.
Invoice the Customer as if the Goods were delivered at the date The Company informs the Customer that the goods are ready for delivery.
Store the Goods and until actual delivery either at its own premises or elsewhere at the Customer's sole risk and charge the Customer for all reasonable cost storage (including insurance and transport).
If the Customer fails to take delivery of the Goods or fails to give The Company adequate delivery instructions, sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer all excess over the price under the contract or charge the Customer for any shortfall below the price under the contract.
Where reasonably necessary delivery may be made in instalments and any failure or default in one instalment will not vitiate the contract and the remaining instalments The Company will make all reasonable efforts to complete delivery within a reasonable time.
When delivery is expedited at the request of the Customer an additional charge may be made for expedition at The Company 's discretion and any defects reasonably attributable to such expedition shall be the Customer's sole responsibility.
Unless otherwise stated in the acceptance, acknowledgment or confirmation of order form, payment will be due to The Company within 30 days of the invoice date;
When the price is payable by instalments payment is due on the date stated without demand being made and in default of payment of any one instalment of the price the entire balance of the price shall forthwith become due and payable;
Unless otherwise expressly stated in writing all prices stated are payable in pounds sterling;
Where Goods are to be delivered outside the buying territory the contract is subject to payment by confirmed irrevocable letter of credit or by such other method as The Company may specify in writing. Unless otherwise agreed payment will be made in sterling;
If full payment is not made by the due date:
The Company shall be entitled to charge and receive interest on the unpaid balance at the rate of four per cent above National European Bank plc base rate for the time being from the due date into the date, actual payment;
The Company may suspend any further deliveries under the contract or any other contract with the customer until payment is made or (us without prejudice to any of its other rights) The Company may cancel the contract or any other contract in relation to such further deliveries and recover any Goods already delivered at the Customer's expense.
RISK The risk in the Goods should immediately pass to the Customer upon delivery of the Goods into custody, care or control of the Customer or its warehouse men, bailees or agents and the Customer thereafter shall be responsible for all claims, actions and losses arising out of or in any way associated with the Goods. Risk in the Customer's own samples, proofs and specifications shall at all times remain with the Customer not withstanding they are in the possession of The Company and the Customer shall be responsible at his own expense for effecting any requisite insurance.
PRODUCTION MATERIALS PROOFS & SAMPLES Unless otherwise agreed all proofs, sketches, samples or work produced at the Customer's request either experimentally or otherwise will be charged. All charges on and after first samples including alterations in style will be charged extra. No responsibility will be accepted for any errors improves, sketches, samples or work which has been approved by the Customer. Any preliminary work which The Company considers necessary to materials all samples supplied by the Customer may be charged for. Unless otherwise agreed in writing The Company shall be under no obligation to preserve without limitation work or materials required to produce the Goods save as provided in Clause 21. Any production materials should remain the property of The Company.
CUSTOMERS OWN SAMPLE OR SPECIFICATION Where goods are produced based on an original sample or specification supplied by the Customer, then so long as the Goods reasonably correspond with such original sample or specification all warranties conditions or terms express or implied relating to fitness of the Goods for the purpose of the Customer or the satisfactory quality are expressly excluded.
STANDING MATERIALS Metal, wood, glass and other materials owned by The Company and used in the production of moulds, masters, jigs and the like shall remain The Company 's exclusive property. Subject to the provisions of clause 21 such items when supplied by the Customer shall remain the Customer's property.
Subject to the remainder of this sub-clause The Company will accept for return replace or (at its option) refund the purchase price for any Goods which are defective or otherwise damaged or where the quantity delivered is not equal to the quantity stated on the delivery note or invoice provided that:
All goods have been examined when delivered but if this has not been possible the carrier sheet has been signed “unexamined”
Only personnel or agents of the Customer have signed for deliveries received;
The Company or its representatives shall have first had the opportunity to inspect the Goods and be satisfied that the damage or defect or quantity shortfall referred to above existed at the time of delivery to the Customer and has not arisen by reason of misuse, neglect or accident after the passing of risk to the Customer. To this end the Customer is advised to examine all goods at the time of delivery;
The Customer shall have notified The Company of such damage or defect or shortfall in quantity referred to above in writing within 72 hours of its delivery;
The Customer shall have kept the Goods separate can the part in a suitable condition until such time as The Company is able to inspect the Goods in accordance with clause 15 A part 3 above and the Customer shall not be entitled to make any charge to The Company in respect of such storage;
The Customer shall not have processed the Goods in any way nor have converted them in any way;
The Company 's whole liability and the Customer's sole remedies for any default shall be as follows save that this Clause shall not confer any rights or remedies to which the Customer would not otherwise be legally entitled:-
The Company does not exclude liability for:
Death or personal injury and subject to the provisions of clause (e) below direct physical damage to tangible property of the Customer to such extent that such damage death or injury is caused by the negligence of The Company; and
Any breach by The Company of any term as to title quiet possession and freedom from encumbrances which may be implied under the Sale of Goods.
Damage caused by a defect in the Goods for which The Company is liable under the terms of Consumer Protection .
The Customer's remedies (whether in contract or in tort including negligence) for any default shall be limited to damages;
For any default relating to Goods delivered hereunder whether occurring at the time of delivery or thereafter then subject to the other provisions of this clause the Customer shall give written notice of any default within 72 hours of its being discovered by the Customer. The Customer is advised to examine the Goods upon delivery and no claim will be entertained unless notified within 28 days of the date of delivery. Thereafter the Customer shall allow The Company every reasonable opportunity to correct the default. If, after a reasonable time following notification, The Company fails to correct the default the Customer may recover from The Company damages equal to the expenses thereafter incurred except to the extent that The Company gives the Customer a reasonable opportunity to reduce those expenses by using alternative Goods. The Company 's total liability to damages shall be limited to this extent.
The Company shall not be liable for expenses incurred after the earlier of correction of the default of 28 days after the Customer first notified The Company of the default;
The Company 's total liability for any one default shall not exceed 125 per cent of the purchase price of the Goods in respect of which The Company is liable except as specified in sub-clause (b) (i) above (death personal injury title quite possessions freedom from encumbrances). Should any limitation in these conditions be held invalid any liability there by arising shall never the less be subject to monetary limit;
Except as provided in sub-clause (a) above in no event shall The Company be liable for the following loss or damage howsoever caused even if foreseeable by The Company;
Economic loss (loss of profits, business revenue, goodwill or anticipated savings); or
Any other special indirect consequential loss or damages (except expenses incurred within sub-clause (d) above); or Claims against the Customer by any other parties;
In consideration of the conditions, warranties and remedies provided hereunder it is agreed that except as expressly set forth in this agreement or representations conditions or warranties, express or implied statutory or otherwise (including but not limited to any concerning fitness for a particular purpose or satisfactory quality) are hereby excluded;
Except as expressly stated in writing on the acceptance acknowledgment or confirmation of order form no agent, officer, servant, crew or employee of The Company has authority to make any representation to the Customer on behalf of The Company with regard to the fitness for purpose or satisfactory quality of any goods which may form the subject matter of this agreement. Where the Goods are to be used for a purpose which shall involve special perils or hazards within a reasonable time prior to commencement of manufacture of the Goods and or failure to do so shall fully and effectually indemnify The Company against any damage loss or liability including but not limited to any consequential loss arising directly or indirectly from the Goods or any use of the Goods for any purpose for which they are not suitable.
PATENTS & DESIGNS The Company gives no indemnity in respect of any actual or alleged infringement of patents, trademarks, trade names, registered designs, design copyright license or any other intellectual property right to relating to the Goods.
INDEMNITIES Where the Goods are manufactured to the Customer's own specification or sample then the Customer shall indemnify The Company against any claims by any third party arising directly or indirectly out of the performance of this contract including without prejudice to the generality of the foregoing any alleged defamation of such third-party any fines impositions and penalties incurred by or levied upon The Company by reason of any act or default whatsoever by the Customer or any person responsible to the Customer.
LICENSES & CONSENTS The Customer shall obtain and maintain in force at his own expense all consents, licenses and permissions necessary for the manufacture storage and use of the Goods in accordance with any relevant statute regulation or by law or within the general law.
Where The Company has produced original designs and specifications (whether for the Customer's own samples or Goods) the copyright, technical design or manufacturing rights in the Goods whether produced experimentally or by way of sample or in bulk shall remain invested in The Company at all times unless otherwise agreed in writing;
The Customer warrants that in respect of all samples supplied to The Company by a Customer the manufacture of bulk Goods in accordance with such sample cannot constitute a breach of copyright patent or manufacturing license or other intellectual property right of any third party.
CUSTOMERS OWN MATERIALS Where the Customer supplies the Customer's own materials for work to be done by The Company:
The Customer warrants that such materials are of good quality and suitable in all respects for work on by The Company;
The Customer shall indemnify The Company against any damage or loss caused to The Company reasonably attributable to the Customer's own materials being in any way inadequate or of inferior quality;
The Company shall have a lien on the Customer's own materials in respect of all monies due to The Company on any account whatsoever;
After The Company has started work on the Customer's own materials the property in any resulting product of such materials and such work should be vested in The Company and The Company shall be entitled to retain title thereto in accordance with provisions of condition 7.
FORMS AND JIGS All forms, jigs and other materials produced by or supplied to The Company to enable it to supply the Goods will be stored by The Company for six months after the date of the Customer's last order for Goods to which the forms, jigs or other materials relate. The Company shall have the right to dispose of the forms, jigs or other materials after the expiry of that six month period and it is hereby agreed and declared that The Company shall have no liability to the Customer arising from the disposal of such forms, jigs or other materials.
CREDIT REFERENCE At any time prior to the commencement of Manufacture The Company shall be entitled to determine any order by giving 7 days notice in writing should the Customer's credit worthiness or standing not be to The Company 's satisfaction.
ASSIGNABILITY Orders are not assignable or transferable by the Customer without the previous written consent of The Company nor may the Goods be pledged or transferred to third parties except in the ordinary course of business and without prejudice to The Company is rights under these conditions.
FORCE MAJEURE No liability shall result from delay in performance or non-performance of any contract directly or indirectly caused by fire, explosion, accident, flood, labour trouble, strike, civil commotion, acts of war or government inability to obtain suitable materials, equipment, fuel, power or transportation, act of God or force majeure or other cause or act beyond the control of The Company whether or not arising out of such contingencies.
TERMINATION If the Customer shall commit any breach of any of its obligations to The Company or if any distress or execution shall be levied upon a Customer its property or assets or if the Customer shall make or offer to make any arrangement of composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against the Customer or if the Customer shall be a limited company and any resolution of petition to wind up such companies business shall be passed or presented otherwise then for reconstruction or amalgamation (not involving insolvency) or if a receiver or manager of such companies undertaking property or assets or any part thereof shall be appointed or if the effect of any legislation regulation, judgement, decree or order (including but without limitation any involving the imposition of additional duties or trading restrictions) of the European economic community or of any other governmental or administrative agents or authority having jurisdiction directly or indirectly over The Company or its suppliers shall adversely affect trading conditions or the terms of trade between such suppliers and The Company then and in any such event The Company shall have the right forthwith to determine any order then subsisting and upon written notice of such termination being posted to the Customer's last known address any subsisting order shall be deemed to have been determined without prejudice to any claim or right The Company might otherwise make or exercise.
WAIVER No forbearance or indulgence on the part to The Company in enforcing these terms and conditions shall prejudice its strict rights hereunder nor should be construed as a waiver thereof.
REASONABLENESS These conditions are considered to be reasonable but in the event of any condition or part thereof in adjudged unreasonable it shall be modified to the extent necessary to make it a reasonable and the remaining conditions or part conditions shall never the less remain in full force and effect.
LAW These conditions and any contract they form part shall be governed by and construed in accordance with European Law.