In these conditions, ‘the Company’ means Blundell Production Equipment Limited ‘the Customer’ means any person or Company whose order for goods is accepted by the Company ‘The Goods’ means the goods (including any instalment of the goods or any parts of them) which the Company has supplied to the Customer in accordance with these Conditions. ‘Delivery date’ means the date on which risk passes, in accordance with the terms of Condition 8. ‘Warranty Period’ means the period of twelve months from the Delivery date of the Goods
2. BASIS OF THE SALE
2.1 The Company shall sell, and the Customer shall purchase the Goods subject to these conditions, which shall govern the Contract to the exclusion of all other terms and conditions
2.2 The Company’s quotation is not an offer capable of acceptance, but an invitation to treat. A Contract shall come into existence only when an order placed by the Customer is accepted in writing by the Company.
2.3 No variations to these conditions shall be binding unless they are varied in writing and Signed by a Director of the Company
2.4 These conditions will apply to the first and all subsequent Contracts between the Company and the Customer until replaced by a revised edition of which the Customer has received a copy.
2.5 The Company’s quotation is only for the Goods actually specified. The Company does not accept that any obligations are to be implied other than those actually expressed
2.6 If a court should find that any of these conditions are invalid or unlawful they shall have the power to strike out only those parts and the remainder of the contract shall remain unaffected.
3. PRICE OF THE GOODS
3.1 The price of the Goods shall be the Company’s quotation price. Quotations are valid for a maximum of 90 days. The price is exclusive of any VAT, which, where applicable, the Customer shall be additionally liable to pay the Company.
3.2 Unless otherwise agreed in writing all prices given by the Company are on an ex-works basis. If the Company shall agree to deliver the same, the cost of delivery shall be payable by the Customer in addition to the price of the Goods, and is payable at the same time as payment for the Goods.
4. TERMS OF PAYMENT
4.1 The time of payment of the price shall be the essence of the Contract
4.2 Payment for any Goods shall be made upon delivery of the Goods, or upon collection from the Company’s works, except where the Company has previously agreed in writing to allow credit to the Customer, in which case the Customer shall pay in accordance with the agreed terms If the Customer fails to make payment on the due date, then without prejudice to any other right or remedy available the Company shall be entitled to;
(a)Cancel the Contract or suspend any further deliveries to the Customer,
(b) Reposes the Goods and resell them
(c) Charge the customer interest (both before and after any judgment) on the amount unpaid at the rate of 6% above base rate from time to time of Barclays Bank plc payable on the balance outstanding.
5.1 Unless otherwise expressly stated on the quotation and/or acceptance of order form, any dates given for delivery, commissioning or Installation are estimates only and the Company Shall not be liable for any delay in delivery or performance howsoever arising. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Company in writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.
5.2 Where the Company agrees to arrange for the physical delivery of the Goods to the Customer (or any place nominated by the Customer), the Company shall make delivery by such method as the Company sees fit
5.3 Where the Goods are delivered in instalments, each instalment shall constitute a separate Contract.
6. QUANTITY AND SHORTAGES
6.1 If the Customer notifies the Company in writing received by the Company within 21 days of the Delivery date of the Goods of any shortages, and the Company is satisfied that such shortages occurred before despatch, then the Company will make good the shortages at its own cost within a reasonable time, or at the option of the Company, reduce the price by the value of the Goods not delivered.
7. EXTENT OF OBLIGATIONS, OF LIABILITIES AND REMEDIES
7.1 Any advice or recommendation given by the Company or its servants to the Customer or its servants or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Company is followed or acted upon entirely at the Customer’s own risk, and the Company shall not be liable for any such advice or recommendation which is not confirmed.
7.2 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving the Company any necessary information relating to the Goods, within sufficient time to enable the Company to perform the Contract in accordance with its terms.
7.3 The description of the Goods is as appears on the face of the quotation and/or on the face of the acceptance of order.
7.4 The Company reserves the right to make any changes in the specification of the Goods which do not materially affect their quality or performance.
7.5 Except where the Company has given advice or recommendations in writing as to the suitability of any Goods, the Customer relies solely on his own skill and judgment as to the suitability for any purpose of the Goods supplied by the Company
7.6 All conditions, warranties or other terms in respect of the Goods, whether express or implied by common law or by the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982 or any other statue or otherwise are excluded to the fullest extent permitted by law, save that the Company warrants as follows:
7.6.1The Goods correspond with their description as defined in 7.3 above 7.6.2 In relation to the mechanical and electrical components in the Goods, the Company warrants that such components shall (provided the Goods are subjected to normal usage only and subject to the conditions and exclusions referred to in conditions 7.8 and 7.9 below) remain free of defects (other than those resulting from fair wear and tear) for the Warranty period.
7.7 In no case shall the Company be under any liability where the Customer fails to observe and to follow the steps set out in conditions 7.7.1 to 7.7.3 below
7.7.1 Immediately upon becoming aware of any alleged defect, the Customer shall notify the Company in writing of such alleged defect in the Goods, the nature thereof and the respect in which the Company is alleged to be in breach of Contract or duty.
7.7.2 The Company shall be offered reasonable opportunity to inspect and test the Goods. Where the Company so requests, the Customer shall return the Goods to the Company’s premises.
7.7.3 Within a reasonable time after carrying out such inspections and tests as are considered necessary by the Company, the Company shall inform the Customer in writing EITHER that it rejects the complaint, OR that it offers an allowance against the price paid, OR that it offers to repair the Goods at its own cost. OR that it offers to replace the allegedly defective Goods OR to credit the price paid or due to be paid
7.7.4 Within 10 days of receipt of the Company’s notification the Customer shall inform the Company whether or not it accepts the Company’s decision. If not, the Company and the Customer shall be deemed to be in dispute.
7.7.5 Where pursuant to Condition 7.7.3 additional Goods are to be supplied the same shall be treated as being supplied under a new Contract subject to the terms and conditions set out in this Contract.
7.8 Except In respect of death or personal injury caused by the Company’s negligence, and save as aforesaid.
7.8.1 The Company shall be under no liability for any breach of Contract whether for an express or implied term nor for any act of negligence.
7.8.2 The Company shall not be liable to the Customer by reason of any representation or any implied warranty, condition, term, or duty. Under any express term of this Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever which arise out of or in connection with the supply of Goods or their use or resale by the Customer nor for any other loss (except such as may be expressly provided for in these conditions) and in no event whatsoever shall the Company’s liability exceed the Contract price of the Goods
7.9 The requirements and recommendations of the Company relating to the installation, maintenance, servicing, inspection and use of any Goods must be strictly adhered to without prejudice to any other conditions contained herein, the Company shall be under no liability whatever in respect of any damage or loss arising directly or indirectly from any failure by the Customer to adhere to these requirements and recommendations.
7.10 The Customer should insure against all risks of loss or damage (whether direct, indirect, consequential or otherwise arising out of or in connection with any connection with the supply of Goods
8. RISK AND TITLE
8.1 The risk in the Goods shall pass to the Customer (notwithstanding that the property may not have been passed to him) on the earlier of the following;
8.1.1 Where the delivery is to be ex-works, at the time when the Company notifies the Customer that the Goods are available for collection or.
8.1.2 Where the Goods are to be delivered, as soon as the Goods have been received by the carrier, or are placed in the postal system, or if the Goods are delivered by the Company’s own transport as soon as the delivery vehicle arrives on the Customer’s premises.
8.1.3 If the Customer wrongly fails to take delivery of Goods, at the time when the Company tenders delivery.
8.2 Notwithstanding the delivery and passing of risk, or any other condition, the property in the Goods shall not pass to the Customer until the Company has received in cleared funds, payment in full of the price of the Goods and all other Goods agreed to be sold by the Company to the Customer for which payment is then due.
8.3 Until payment of the full price, the customer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property until that time the Customer shall be entitled to use the Goods in the ordinary course of its business. Unless the Customer has been appointed in writing as an authorised resale Agent or Distributor, the Customer is not entitled to resell the Goods before payment of the price to the Company. Where the Customer is acting as an appointed Agent or Distributor of the Company and the Goods are resold, the Customer shall account to the Company for the proceeds of sale, and shall keep all such proceeds separate from any monies of the Customer or third parties.
8.4 The benefit and/or proceeds of any dealings with the Goods by the Customer in contravention of the Company’s rights shall be held in trust for the Company, and any such proceeds shall be paid by the Customer into a separate bank account in the Company’s name.
The Company reserves the right to perform all and any of its obligations under the contract by one or more sub-contractors of its choice. All these terms and conditions apply equally to that work which is performed by sub-contractors.
10. INSTALLATION AND COMMISSIONING
10.1 If the Company has stated on the face of its quotation that it shall carry out installation and commissioning, the Customer shall ensure that, prior to the anticipated delivery date of the Goods or any part thereof, the site (and all access routes thereto) is clear, can be used without danger or difficulty by vehicles transporting the Goods. and has full facilities for offloading the Goods (and there is sufficient labour available for this purpose) and storing the same (pending completion of Installation and commissioning) in a safe and suitable environment The Customer shall also ensure that, prior to the intended date of any commissioning or installation works there is available to the Company suitable lifting equipment, fuel, power, compressed air supplies, labour and test facilities as required by the Company to install, test and commission the Goods.
10.2 When the Company considers it has completed its works of installation and commissioning it shall carry out such tests as it considers reasonably necessary to demonstrate that the Goods are functioning correctly. If not the Company shall carry out such further works as may be required to ensure that the Goods function correctly, at which point the Company will issue a written statement to that effect.
10.3 If the Company should fail to carry out such works of commissioning, Installing or testing (or should fail to carry the same completely or properly) the Company’s sole liability shall be to carry out such further works as are required in order for a written statement to he issued as described in condition 10.2. The Company shall not be liable to pay or to credit the Customer with any damages or loss whether direct, Indirect or consequential.
11. FORCE MAJEURE
The Company shall not be liable to the Customer or deemed to be in breach of the Contract by any reason of delay or failure to perform any obligations in relation to the Goods if the delay or failure is due to any cause beyond the Company’s reasonable control. In such circumstances the Company shall be entitled, on notice to the Customer, to make partial deliveries only or to determine the Contract without liability and without prejudice in any case to rights which have already accrued to the Company for deliveries already made.
12. CANCELLATION AND DEEMED CANCELLATION
12.1 This condition applies If (a) the Customer makes any voluntary arrangement with its creditors or becomes subject to any administration order or (being an individual or firm) becomes bankrupt or (being a Company) goes into liquidation (other than for the purpose of a bona fide amalgamation or reconstruction) or (b) any resolution or petition to wind up the Customer’s business is passed or presented, or, (c) an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer, or (d) The Customer has any distress or execution levied upon it, it’s property or assets, or (e) The Customer ceases or threatens to cease to carry on in business, or (f) A Partner in the Customer (being a firm) has any distress or execution levied upon him, his property or assets or becoming insolvent or makes any arrangement or composition with his creditors, or commits any act of bankruptcy or has a petition or receiving order in bankruptcy presented or made against him, or (g) The Company reasonably suspects that any of the above is about to occur in relation to the customer and notifies the Customer accordingly.
12.2 If the Customer defaults or commits any breach of its obligations to the Company, or if condition 12.1 above applies to the Customer, the Customer shall be deemed to have cancelled the Contract and any other Contract subsisting between it and the Company. The following provisions shall apply to such cancellation which shall take effect without prejudice to the Company’s accrued rights and existing remedies against the Customer.
12.3 If any order for Goods given by the Customer is cancelled or deemed to have been cancelled by the Customer after acceptance of order by the Company for any reason other than as herein permitted, the Company shall be entitled to recover from the Customer as liquidated damages the cost to the Company of any Goods, works or materials expended in the execution and in preparation for the execution of the Contract, plus, the profit which the Company might reasonably have made on the Contract but the Company shall give credit for the amount of any such costs (but not profit) recovered in respect of the same Goods or materials by virtue of any other Contract and for the amount of any deposit recovered from the Customer. Such sum shall be certified by the Auditors of the Company, and their certificate shall be final.
13.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing to the other party at its registered office or principal place of business.
13.2 No Waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver for any subsequent breach of the same or any other provision.
13.3 Any dispute between the Company and the Customer arising out of the Contract shall be determined in the first place by these Conditions and in the last resort by reference to arbitration under the provisions of the Arbitration Act 1996. 13.4 The Contract between the Company and the Customer shall be governed exclusively by English law.