(i) In these conditions “the Company” shall mean Calmore Machinery Company Limited and the “Customer” shall mean any person, firm or company placing an order with the above mentioned company. “UK” shall mean the mainland of Scotland, England, Wales and Northern Ireland. “The Conditions” means the standard terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between the Company and the Customer. The “Goods” means all or any products or materials supplied by the Company to the Customer under this Agreement.
(ii) All contracts entered into, quotations given and purchase orders accepted by the Company are subject to the terms and conditions contained herein or overleaf and no others, unless otherwise agreed by the Company and the Customer in writing signed by both parties. The provisions of this contract supersede any prior representations, agreements or undertakings between the parties.
(i) Whilst every effort is made to deliver Goods on the dates or within the periods specified by the Company, such dates or periods shall be deemed to be estimates only and time of delivery shall not be of the essence unless specifically agreed between the Company and Customer in writing. In the absence of such agreement the Company accepts no liability whatsoever for any direct or indirect loss or damage howsoever arising suffered by the Customer as a result of any failure on the part of the Company to deliver the Goods within such dates or periods.
(ii) In any event the Company shall not be liable for any loss or damage for delay or non-delivery if delivery be either prevented or hindered by reason of acts or omissions of the customer or “force majeure” which shall mean any cause not reasonably within the control of the Company (including, but not limited to, Acts of God, war, riot or insurrection, blockades, embargoes, sabotage, epidemics, fires, accidents, strikes, lockouts or other industrial disturbances (whether or not at the Company’s works), delays of carriers or inability to source materials, labour or manufacturing facilities).
(iii) No claim for loss, damages or for shortage in delivery can be entertained under any circumstances unless (in the case of Goods which are accepted without being examined or counted) notice in writing is given to the appropriate carrier and to the Company within three (3) days of receipt of Goods. Where the Goods have not been delivered within twenty-one (21) days of the advised date the Customer must inform the Company in writing forthwith in order that the Company may seek redress from the carrier.
- PROPERTY AND RISK
(i) The Goods shall remain in the Company’s ownership until the Customer has paid in full all sums due from it to the Company on any account whatsoever. Until such time the Customer shall hold the Goods as bailee and store them in such a way that they can be clearly and easily identified as the Company’s property, keeping them separate at all times from the Customer’s own property and property of any third party. The Customer shall also maintain the Goods in a satisfactory condition and ensure that there is proper and adequate insurance cover.
(ii) The Goods shall be at the Customer’s risk from the time of delivery and the Customer shall insure them against loss or damage accordingly. In the event of any loss or damage to the Goods before payment is made for the Goods, the Customer shall hold the proceeds of any insurance payment on behalf of the Company as trustees for the Company.
(iii) The Customer’s right to possession of the Goods shall cease if:
(a) it has not paid for the Goods in full by the expiry of any credit period allowed by this Contract; or
(b) it is declared bankrupt or makes any proposal to its creditors for a composition or other voluntary arrangement; or
(c) a receiver, liquidator or administrator is appointed in respect of the Customer’s business.
(iv) Should the Goods be incorporated in or used as material for other goods before full payment is made to the Company then property in the whole of such goods shall be and remain with the Company until such payment has been made, or the other goods have been sold to a third party, and the Company’s rights hereunder in the Goods shall extend to those other Goods.
(v) Where the Customer is purchasing the Goods from the Company for resale, and it has not paid for the Goods in accordance with these Conditions the Customer may as agent for the Company sell and deliver the Goods to a third party on condition that until full payment is made as aforesaid the Customer shall hold all sale proceeds in trust for the Company and in a separate account made known to the Company. The Customer hereby assigns to the Company all rights and claims which the Customer may have against its customers arising from such sale until payment is made in full.
(vi) Until such time as property in the Goods passes from the Company the Customer shall upon request deliver up such goods as have not ceased to be in existence or resold to the Company. Should the Customer fail to do so the Company may enter on any premises owned occupied or controlled by the Customer where the goods are situated and repossess the Goods. On the making of such a request the rights of the Customer shall cease.
Unless otherwise stated in writing, the Goods shall be at the Customer’s risk from the time at which the delivery is deemed to take place. The reservation of title contained in Clause 3 above of these Conditions shall not affect the Customer’s responsibility to effect the appropriate insurance cover for full replacement value.
(i) The Price shall be the Company’s quoted price unless otherwise stated herein. All prices are net, unpacked ex-works and the Customer shall pay to the Company in addition to the price any and all packaging, transportation and insurance charges, VAT and any other tax or duty applicable from time to time and any other expenses for which the Customer is liable under these Conditions or otherwise.
(ii) Prices are subject to increases which the Company decides are necessary to take into account of the cost of:-
(a) implementing any requests by the Customer for the changes of delivery, quantities, designs or specifications and/or
(b) delays caused by any instruction by the Customer or by any failure of the Customer to give adequate information or instructions.
(i) Payment of all sums due hereunder shall be made in the currency quoted by Company within thirty (30) days of the date of the Company’s invoice. If payment is in arrears the Company has the right to charge interest on all overdue balances. Interest shall accrue on a daily basis as from the due dates of payment at the rate of 2% above the base lending rate from time to time of HSBC Bank base rate per annum both before and after judgement until actual payment. Time for payment shall be of the essence.
(ii) In the event of any amounts not being paid on the due date the Company reserves the right (any previous waiver notwithstanding) to withhold any further deliveries of goods (whether under the same or any other contract) until all arrears of payment have been settled and/or to require payment in full in advance for any further goods before making any deliveries for such goods. If for any reason the Company is unable to despatch the Goods in the ordinary course of business by the virtue of the Customer’s default payment for the Goods in full shall be deemed to be due and payable on such date or dates as would have been appropriate under these provisions if there had been no delay or default by the Customer.
Any application for credit is subject to final approval by an authorized officer of the Company. The Company terms are net monthly payment due by the end of the month following date of invoice.
(i) In the absence of default by the Company in relation to Goods, no Goods may be returned for credit or replacement except on prior written approval of Company. Orders placed with and accepted by the Company may not be cancelled except with the prior written consent of Company and upon payment of the Company’s reasonable cancellation charges.
(ii) If the Customer shall fail to make any payment when it becomes due or shall enter into any composition or any arrangement with its creditors, or if being an incorporated company shall have a receiver appointed, or shall pass a resolution for winding up or a Court shall make an order to that effect, or if not being an incorporated company shall have a receiving order made against it, or if there shall be any breach by the Customer of any of the terms and conditions hereof, the Company may defer or cancel any further deliveries and treat the contract of which these Conditions form part as determined, but without prejudice to its right to any unpaid purchase price for Goods delivered and to damages for any loss suffered in consequence thereof.
In the event that the ultimate destination of the Goods is outside the United Kingdom, the Customer shall be responsible for the timely obtaining of and the costs of obtaining any required authorisation such as an Export Licence, Import Licence, Exchange Permit or any other governmental authorisation even though any such authorisation may be applied for by the Company. The Company and the Customer shall assist each other in every reasonable manner in securing such authorisation as may be required. The Company shall not be liable if any such authorisation is delayed, denied, revoked, restricted or not renewed and the Customer shall not thereby be relieved of its obligations hereunder.
- LIMITATION OF LIABILITY
The liability of the Company, any subsidiary of its holding company (as defined by Section 154 Companies Act) and their servants or agents arising from any cause of action or claim whatsoever (including delay in performance, non-performance or partial performance or negligence) relating to the Goods under this contract or otherwise shall be limited to in aggregate the price to be allocated to and paid for the part of the Goods which gives rise to the cause of action or claim provided that liability for death or personal injury caused by the negligence of the Company shall not be so limited. Except as expressly set forth herein and to the extent permitted by law, the Company accepts no liability whatsoever (including any liability in tort) for any consequential loss or damage of any kind arising from any defect in or failure of or unsuitability for any purpose of the Goods supplied by the Company even if the same be due to any act, omission, negligence or wilful default of the Company, any such subsidiary or other servants or agents or to any other cause whatsoever. The Company warrants that the goods will be at the time of delivery correspond to the description given by the Company. Except where the Customer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977 Section 12) all other warranties conditions or terms relating to fitness for purpose merchantability or condition of the Goods and whether implied by statute or common law or otherwise are excluded. In the event of any breach of contract by the Company the remedies of the buyer shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of Goods.
- PRODUCT MODIFICATION
Company reserves the right to change or modify the dimensions, design and/or construction of the Goods if in the opinion of the Company the operating characteristics or product use are not adversely affected.
- CUSTOMER PROPERTY
All property supplied to the Company by or on behalf of the Customer which is held by the Company for the purposes of the Contract or in transit to or from the Customer, shall be deemed to be entirely at the Customer’s risk and the Company shall not be liable for any loss of or damage to such property whilst in possession of the Company or in transit as aforesaid unless such loss or damage is due directly to the negligence of the Company, its employees or agents. In no circumstances whatsoever will the Company be liable for any consequential loss or damage arising therefrom. The Customer shall insure all such property for all risks.
The Customer and its agents or employees shall keep confidential and not disclose to third parties or make use of in any way except in relation to the Goods supplied or to be supplied any information or data which is confidential to the Company unless within the public domain.
- VARIATION AND WAIVER
Variations of this contract can only be made by written agreement signed by the parties. Failure or delay by either party to exercise any right or remedy hereunder (or part thereof) shall not operate as a waiver therefore of any remaining part thereof.
Any provision or part thereof in these Conditions which is void or unenforceable in any applicable jurisdiction shall be to the extent of such invalidity or enforceability, be deemed severable and shall not affect any other provisions or parts thereof.
This contract shall be governed by the laws of England and Wales as a contract made in England and the Customer hereby submits to the non-exclusive jurisdiction of the English courts.