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Terms & Conditions

Penguin Engineering Terms & Conditions  

CONDITIONS OF SALE

1.      Interpretation

1.1.    In these Conditions: ‘Buyer’ means the person who accepts a quotation of the Seller for the sale of the Goods or whose order is accepted by the Seller. ‘Goods’ means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions. 'Seller' means PENGUIN ENGINEERING LIMITED (registered in England under number 1626206). ‘Conditions' means the standard terms and conditions of the sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller. 'Contract' means the contract for the Purchase and sale of the goods. 'Writing' includes telex, cable, facsimile transmission, electronic communication and comparable means of communication.

1.2.    The headings of these Conditions are for convenience only and shall not affect their interpretation.

2.      Basis of the Sale

2.1.    The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted or any such order is made or purported to be made, by the Buyer.

2.2.    The Seller's employees or agents are not authorised to give advice or to make any representations concerning the goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

2.3.    Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3.      Orders and Specifications

3.1.    No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller's authorised representative.

3.2.    The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.3.    The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller).

3.4.    The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller's specification, which do not adversely affect their quality or performance.

3.5.    No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms (unless waived by the Seller in each case) that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

4.      Price of the Goods

4.1.    The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

4.2.    The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase costs of labour, materials or other costs of manufacture) any change in delivery dates, quantities of specification for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.3.    Except as otherwise stated under the terms of any quotation or any price list of the Seller and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.

4.4.    The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller where appropriate

5.      Terms of Payment

5.1.    Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

5.2.    The Buyer shall pay the price of the Goods within 30 days of the due date (being the date of the Seller's invoice), notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.3.    If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

5.3.1. cancel the contract or suspend any further deliveries to the Buyer.

5.3.2. appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and

5.3.3. charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 5 per cent per annum above Barclay Bank base rate from time to time, from the due date until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

5.4.    The Buyer shall not be entitled by reason of any dispute relating to the equipment or any claim made by the Buyer under this or any other contract to withhold payment of any amount which is due to the company hereunder or to set off against any such amount or payment any cross claim whether liquidated or unliquidated for any sum or sums for which the company does not admit liability.

6.      Delivery

6.1.    Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.

6.2.    Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.3.    Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.4.    If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

6.5.    If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than any reason or any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:

6.5.1. store the Goods until actual delivery and charge the buyer for the reasonable costs (including insurance) of storage or

6.5.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

6.6.    Delivery of Goods by the Seller does not include the provision of labour and equipment for unloading which the Buyer shall be liable to provide at the Buyer’s own cost and risk. The Seller will deliver the Goods as near to the place where the Goods are required as possible on safe hard roads. If in any particular case the Seller should agree to relax this condition, the relaxation shall be deemed have been given in consideration of an indemnity from the Buyer against all losses costs and expenses which the Seller may incur or pay as a result of such relaxation.

7.      Risk and Property

7.1.    Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1. in the case of Goods delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

7.1.2. in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the goods, the time when the Seller has tendered delivery of the Goods.

7.2.    Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3.    Until such time as the property in the goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property. Until that time the Buyer shall be entitled to re-sell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored protected and insured.

7.4.    Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith to enter upon premises of the Buyer or any third party where the Goods are stored and repossess the Goods for which purpose the Buyer hereby expressly grants the Seller the right to enter the premises, including the right to effect entry by force if necessary.

7.5.    The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

7.6.    Should property in the goods pass to any third party, as a result of resale or use of the goods by the Buyer in the ordinary course of its business, the Seller shall be entitled to a charge over the proceeds of sale and all other assets of the company including book debts and property of all sorts in respect of all sums due under this or any other contract between the Buyer and Seller including all sums due in respect of interest and costs (this clause shall only apply if noted on the Order Form or acknowledgment of Order).

 

8.      Warranties and Liability

8.1.    Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions, or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.2.    Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected by these conditions.

8.3.    Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery Is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

8.4.    Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to the Seller in accordance with these conditions the Seller’s liability shall be limited to replacing the Goods (or the part in question) such replacement taking place at the Seller's premises if the goods were collected by the Buyer and at the place of delivery if the Goods were delivered by the Seller. The Seller may at its sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.

8.5.    Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these conditions.

8.6.    The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:

8.6.1. Act of God, explosion, flood, tempest, fire or accident;

8.6.2. War or threat of war, sabotage, insurrection, civil disturbance or requisition;

8.6.3. Acts, restrictions, regulations, bye-laws, prohibitions or measure of any kind on the part of any governmental, parliamentary or local authority.

8.6.4. Import or export regulations or embargoes;

8.6.5. Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party),

8.6.6. Difficulties in obtaining raw materials, labour, fuel, parts, or machinery;

8.6.7. Power failure or breakdown in machinery.

 

9.      Insolvency of Buyer

9.1.    This clause applies if:

9.1.1. The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

9.1.2. an encumbrancer takes possession, or a receiver is appointed or any of the property or assets of the Buyer; or

9.1.3. the Buyer ceases, or threatens to cease, to carry on business; or

9.1.4. the Seller reasonable apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

9.2.    If this clause applies then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the buyer, and if the goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

 

10.General

10.1.      Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principle place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

10.2.       No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision

10.3.        If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provisions in question shall not be affected thereby.

10.4.        The Contract shall be governed by the laws of England.

 

 

 

 

CONDITIONS OF SALE

1.      Interpretation

1.1.    In these Conditions: ‘Buyer’meansthepersonwhoacceptsaquotationoftheSellerforthesaleoftheGoods or whose order is accepted by the Seller. ‘Goods’ means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions. 'Seller' means PENGUIN ENGINEERING LIMITED (registered in England under number 1626206). ‘Conditions' means the standard terms and conditions of the sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller. 'Contract' means the contract for the Purchase and sale of the goods. 'Writing' includes telex, cable, facsimile transmission, electronic communication and comparable means of communication.

1.2.    The headings of these Conditions are for convenience only and shall not affect their interpretation.

2.      Basis of the Sale

2.1.    The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted or any such order is made or purported to be made, by the Buyer.

2.2.    The Seller's employees or agents are not authorised to give advice or to make any representations concerning the goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

2.3.    Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3.      Orders and Specifications

3.1.    No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller's authorised representative.

3.2.    The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.3.    The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller).

3.4.    The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller's specification, which do not adversely affect their quality or performance.

3.5.    No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms (unless waived by the Seller in each case) that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

4.      Price of the Goods

4.1.    The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

4.2.    The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase costs of labour, materials or other costs of manufacture) any change in delivery dates, quantities of specification for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.3.    Except as otherwise stated under the terms of any quotation or any price list of the Seller and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.

4.4.    The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller where appropriate

5.      Terms of Payment

5.1.    Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

5.2.    The Buyer shall pay the price of the Goods within 30 days of the due date (being the date of the Seller's invoice), notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.3.    If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

5.3.1. cancel the contract or suspend any further deliveries to the Buyer.

5.3.2. appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and

5.3.3. charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 5 per cent per annum above Barclay Bank base rate from time to time, from the due date until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

5.4.    The Buyer shall not be entitled by reason of any dispute relating to the equipment or any claim made by the Buyer under this or any other contract to withhold payment of any amount which is due to the company hereunder or to set off against any such amount or payment any cross claim whether liquidated or unliquidated for any sum or sums for which the company does not admit liability.

6.      Delivery

6.1.    Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.

6.2.    Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.3.    Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.4.    If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

6.5.    If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than any reason or any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:

6.5.1. store the Goods until actual delivery and charge the buyer for the reasonable costs (including insurance) of storage or

6.5.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

6.6.    Delivery of Goods by the Seller does not include the provision of labour and equipment for unloading which the Buyer shall be liable to provide at the Buyer’s own cost and risk. The Seller will deliver the Goods as near to the place where the Goods are required as possible on safe hard roads. If in any particular case the Seller should agree to relax this condition, the relaxation shall be deemed have been given in consideration of an indemnity from the Buyer against all losses costs and expenses which the Seller may incur or pay as a result of such relaxation.

7.      Risk and Property

7.1.    Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1. in the case of Goods delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

7.1.2. in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the goods, the time when the Seller has tendered delivery of the Goods.

7.2.    Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3.    Until such time as the property in the goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property. Until that time the Buyer shall be entitled to re-sell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored protected and insured.

7.4.    Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith to enter upon premises of the Buyer or any third party where the Goods are stored and repossess the Goods for which purpose the Buyer hereby expressly grants the Seller the right to enter the premises, including the right to effect entry by force if necessary.

7.5.    The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

7.6.    Should property in the goods pass to any third party, as a result of resale or use of the goods by the Buyer in the ordinary course of its business, the Seller shall be entitled to a charge over the proceeds of sale and all other assets of the company including book debts and property of all sorts in respect of all sums due under this or any other contract between the Buyer and Seller including all sums due in respect of interest and costs (this clause shall only apply if noted on the Order Form or acknowledgment of Order).

 

8.      Warranties and Liability

8.1.    Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions, or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.2.    Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected by these conditions.

8.3.    Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery Is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

8.4.    Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to the Seller in accordance with these conditions the Seller’s liability shall be limited to replacing the Goods (or the part in question) such replacement taking place at the Seller's premises if the goods were collected by the Buyer and at the place of delivery if the Goods were delivered by the Seller. The Seller may at its sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.

8.5.    Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these conditions.

8.6.    The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:

8.6.1. Act of God, explosion, flood, tempest, fire or accident;

8.6.2. War or threat of war, sabotage, insurrection, civil disturbance or requisition;

8.6.3. Acts, restrictions, regulations, bye-laws, prohibitions or measure of any kind on the part of any governmental, parliamentary or local authority.

8.6.4. Import or export regulations or embargoes;

8.6.5. Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party),

8.6.6. Difficulties in obtaining raw materials, labour, fuel, parts, or machinery;

8.6.7. Power failure or breakdown in machinery.

 

9.       Insolvency of Buyer

9.1.    This clause applies if:

9.1.1. The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

9.1.2. an encumbrancer takes possession, or a receiver is appointed or any of the property or assets of the Buyer; or

9.1.3. the Buyer ceases, or threatens to cease, to carry on business; or

9.1.4. the Seller reasonable apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

9.2.    If this clause applies then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the buyer, and if the goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

 

10.   General

10.1.                     Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principle place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

10.2.                     No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision

10.3.                     If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provisions in question shall not be affected thereby.

10.4.                     The Contract shall be governed by the laws of England.

 

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