in the UK
Terms & Conditions A.T. Sack Fillers
Terms & Conditions Of Business
1. In these conditions the expression 'the seller' means A.T Sack Fillers Ltd.
a) In case where A.T Sack Fillers Ltd, company registration number 5407648
2. In the event of any conflict between these conditions and the conditions upon which a buyer seek to buy goods from the seller, these conditions shall prevail except to the extent that any departure there from has been agreed in writing by the sellers
The sellers and their principals if any, shall not be liable for any claim arising as of representation made about the suitability of the goods in question for any particular purpose or application unless such representations have been made in writing. The seller shall in no case be liable for failure by their own suppliers to complete the contract supply the goods or be liable for any claim for losses arising from late delivery of goods. The sellers shall in no case be liable for fundamental breach of the agreement for sale.
The owner of the goods will be transferred to the buyer when he has paid all that is owing to the seller in respect of any goods supplied what so ever. Until such payment has been made the buyer, if so required by the sellers, shall keep the goods in such a way that they are clearly seen to be the property of the sellers and the buyer agrees that if he should incorporate the goods in to another object or if the goods become in any way a constituent of another object the sellers will become the owners of such new object as security for the full amount owed to the seller by the buyer. Until payment of such full amount the buyer shall keep such object as fiduciary owner and if so required by the sellers, shall keep the same in such a way that they are clearly seen to be such. Nevertheless, the buyer shall be entitled to dispose of such objects to a third party in the normal course of trade and to deliver it on condition that if the sellers shall so require and, so long as any sum remains owing by the buyer to the sellers, the ownership of such objects shall still remain with the seller.
a) Unless otherwise agree, a deposit of 30% shall be paid to the sellers with the order, 60% shall be paid prior to the sellers goods being dispatched or on readiness for dispatch whichever is soonest, and the balance paid with in twenty eight days after delivery.
b) The sellers reserve the right to charge interest on overdue accounts at the rate of 6% above the base rate for the time being of Barclays Bank PLC.
c) If discounts are agreed by the sellers then time shall be of the essence with regard to payment.
d) The purchaser shall take delivery immediately the sellers are ready to deliver and if there is any delay in the taking of delivery the sellers reserve the right to make a charge to the purchaser in respect of further costs resulting from such delay.
6. Goods supplied on sale or return basis
Where goods are supplied on the basis that if not sold with in a specified period the purchaser may return them to the seller, then the sellers shall have the right to refuse to accept them in return if in any way damaged or unserviceable and the purchaser shall forthwith become liable to pay full price for such goods.
The buyers shall indemnify the sellers in respect of any claim made against the sellers by their own suppliers or any other third party arising from the buyers failure to take delivery with in fifteen days of receiving notice that the goods are ready for despatch or the buyers failure to take proper precautions in dismantling or collecting the goods or the buyers failure in any way to observe the items of his agreement with the sellers.
The sellers shall not be bound to accept cancellation of any order, which the buyers may request. In the event of the sellers agreeing to negotiate a cancellation of order then the buyers shall pay for the manufacturing cost already incurred together with the cost of the materials purchased to manufacture the goods, plus an amount of not less than 20% of the total order value for loss of profits. Any deposit paid by the buyers shall be used towards the cancellation costs and cancellation shall be deemed to have taken place only when the cost relating there to have been received by the sellers.
9. Health and Safety at work
The buyer shall be deemed by the acceptance of these conditions to have undertaken to take what ever steps are necessary to ensure so far as is reasonably practical that the goods will be safe and with out risk to health when properly used.
The sellers shall not be liable for any loss or damage suffered by the purchasers either directly or indirectly resulting either from applications of machinery not approved of by the manufacturers or from modifications to the machinery without the sellers approval.
11. Any time stated for delivery shall be approximate only and subject to any delay caused by matters outside the sellers control.
Any dispute under the agreement for sale shall be referred to an arbitrator to be appointed by the President for the time being of the Peterborough Incorporated Law Society and his decision shall be binding on both parties and this shall be deemed to be a submission to arbitration under the Arbitration Act 1950 or any statutory modification thereof for the time being in force.
12. These conditions and the agreement for sale shall be subject to and construed in accordance with English Law and shall only take effect Insofar as permitted by statute.
Conditions Of Purchase
1.1 In these Conditions "Company" means A T Sack Fillers Limited and includes its successors and assigns; "Purchase Order" means the Company's order for the purchase of goods or services; "Supplier" means the party to whom the Purchase Order is addressed; "Contract" means the contract between the Company and the Supplier for the sale and purchase of the goods and/or the supply and acquisition of the services described in the Purchase Order.
2. Conditions applicable
2.1 The Purchase Order constitutes an offer by the Company to purchase the goods and/or acquire the services described in it subject to these Conditions.
2.2 These Conditions are to apply to the Contract to the exclusion of all other terms and conditions on which any quotation has been given to the Company or subject to which the Purchase Order is accepted or purported to be accepted by the Supplier.
2.3 The Purchase Order may be withdrawn by the Company at any time prior to its unconditional acceptance by the Supplier. Supply of goods and/or services under the terms of the Purchase Order will be deemed unconditional acceptance.
2.4 No variation to the Purchase Order or these Conditions will be binding unless agreed in writing by an authorised representative of the Company.
3.1 The quantity, quality and description of the goods and/or services are to be as specified in the Purchase Order and/or in any applicable specification supplied by the Company to the Supplier.
3.2 Any applicable specification and/or quantities may be subject to alteration at the instance of the Company at its sole discretion. The Supplier will give effect to any such variation as soon as received by it. In such case the company and the supplier will agree an adjustment in the price.
3.3 Any specification supplied by the Company to the Supplier, or specifically produced by the Supplier for the Company, in connection with the Contract, together with the copyrights, design rights and/or any other intellectual property rights in the specification, are to be the exclusive property of, and confidential to, the Company. The Supplier must not use or disclose any such specification except as required for the purpose of the Contract.
3.4 Unless otherwise agreed in writing by an authorised representative of the Company the Supplier must comply with all applicable British Standards and all regulations or other legal requirements concerning the design, manufacture, testing, packaging, packing, labelling and delivery of the goods and/or the performance of the services.
3.5 Goods must be marked in accordance with the Company's instructions and all lawful requirements and properly packed and secured for delivery to the Company in an undamaged condition.
4.1 The price of the goods and/or services will be as stated in the Purchase Order and may not be varied by the Supplier.
4.2 Unless otherwise stated in the Purchase Order the price is inclusive of all charges for packaging, packing, crates or containers, handling, shipping, carriage, loading, unloading, insurance and delivery of the goods to the point of delivery stated in the Purchase Order and any duties, imposts or levies (other than VAT).
4.3 The price is exclusive of any applicable VAT which will be payable by the Company subject to receipt of a VAT invoice.
5. Terms of payment
5.1 The Supplier will be entitled to invoice the Company on or at any time after delivery of the goods or performance of the services, and each invoice must quote the number of the Purchase Order.
5.2 Unless otherwise agreed in writing by an authorised representative of the Company, payment of the price will be due 60 days after the end of the month of receipt by the Company of a proper invoice or, if later, 60 days after acceptance of the goods or services by the Company.
5.3 The Company will be entitled to set off against the price any sums owed to the Company by the Supplier, whether under the Contract or otherwise.
6. Delivery and Acceptance
6.1 Delivery is to be made in the manner stated in the Purchase Order and must be accompanied by a delivery note.
6.2 Signature of a delivery note by the duly authorised representatives or agents of the Company is proof of delivery only.
6.3 The time of delivery of the goods and performance of the services is of the essence of the Contract.
6.4 The Company will be entitled to reject any goods delivered which are not in accordance with the Contract. The Company will not be deemed to have accepted any goods until the Company has actually inspected them following delivery or, if later, within a reasonable time after any latent defect in the goods has become apparent.
6.5 Notwithstanding clause 6.4 and section 35 of the Sale of Goods Act 1979 as amended by the Sale and Supply of Goods Act 1994, where the goods are to be commissioned by the Supplier on the premises of the Company (or elsewhere at the Company's request) acceptance of the goods will not take place or be deemed to take place until such commissioning has been carried out and completed satisfactorily in all respects.
6.6 Notwithstanding that the Supplier's obligations under this clause may have otherwise been fulfilled, performance of the Contract will not be deemed to have taken place until such time as all documentation specified in the Purchase Order has been furnished.
7. Risk and property
7.1 Risk of damage to or loss of the goods will pass to the Company on delivery in accordance with the Contract.
7.2 The property in the goods will pass to the Company on delivery, unless payment of the goods is made prior to delivery, when it will pass to the Company once payment has been made and the goods have been appropriated to the Contract.
8.1 The Supplier warrants that the goods: -
8.1.1 Will be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier at the time the Purchase Order is placed;
8.1.2 Will be free from all defects in design, material and workmanship.
8.1.3 Will correspond with any relevant specification or sample;
8.1.4 Will not infringe the rights of any third party.
8.2 The Supplier warrants that any services will be performed by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as is reasonable for the Company to expect in all the circumstances.
8.3 Without limiting any other available remedy, if any goods or services are not supplied or performed in accordance with the Contract or develop a defect within 12 Months after acceptance of the goods by the company. The Company, at its option, will be entitled, notwithstanding any acceptance of the goods by the Company:
8.3.1 To reject the goods, to require the Supplier to repair the goods or to supply replacement goods or services in accordance with the Contract; or
8.4 The Supplier will indemnify the Company in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Company as a result of or in connection with any breach by the Supplier of the Contract or any of these Conditions.
9. Product Safety
The Supplier warrants and undertakes to the Company:
9.1 That it will promptly supply to the Company from time to time such information as is necessary to enable the Company to assess the nature and extent of any product safety risks associated with the goods or their use and will take such steps as may be reasonably necessary to enable the Company to comply with the requirements of all applicable safety legislation.
9.2 That the goods or materials shall be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health and comply with all British and European standards or other recognised standards of health and safety including the health and safety requirements of the Health & Safety at Work etc Act 1974, the Consumer Protection Act 1987 and the General Product Safety Regulations 1994.
9.3 That any goods or materials which are (or will be upon supply in the European Union) within the scope of the CE marking requirements of any relevant EU directive or local laws implementing the same will satisfy the relevant requirements and shall bear a properly affixed CE mark, have a certificate of conformity and all necessary technical specifications, and will meet all relevant health and safety requirements applicable to the goods both in the state or form supplied to the Company and when combined with other goods. It is the responsibility of the Supplier to acquaint itself with the purpose for which the goods are to be supplied.
9.4 That the Supplier will before delivery furnish the Company in writing with a list by name and description of any harmful or potentially harmful properties or ingredients in any goods or materials to be supplied whether in use or otherwise and thereafter information concerning any changes in such properties or ingredients. The Company will rely on the supply of such information from the Contractor in order to satisfy its own obligations under relevant health and safety requirements including the Health and Safety at Work etc. Act 1974 and the Control of Substances Hazardous to Health Regulations 1988.
10. Termination and Cancellation
10.1 The Company will be entitled to require the suspension of deliveries or to cancel the Contract without incurring any liability to the Supplier, and without limiting any other rights it may have against the Supplier, by giving written notice to the Supplier at any time if: -
10.1.1 The Supplier ceases, or threatens to cease, to carry on business; or
10.1.2 The Company reasonably apprehends that the Supplier is about to cease business or is unable to pay its debts; or
10.1.3 Delivery is not made within the time specified; or
10.1.4 The Supplier commits any other material breach of any term or condition of the Contract and has failed to remedy the same on receipt of notice from the company.
And in any such circumstances any payments made by the Company to the Supplier under the Contract shall immediately become repayable.
10.2 In addition to its rights under clause 10.1 the Company may cancel the Contract by written notice to the Supplier given at any time in which case the Company (unless at the time of such cancellation it could have terminated the contract under clause 10.1) will be liable to pay a fair and reasonable price to the Supplier:
10.2.1 For goods and services already supplied under the Contract and finally accepted by the Company prior to cancellation
10.2.2 For finished goods in respect of which manufacture had commenced at the date of such termination and which the Supplier subsequently delivers to the Company, provided that the goods and delivery would (if the Contract were then in force) conform with the Contract in all respects
10.2.3 For all stocks of raw materials which at the date of termination the Supplier has acquired or is committed to acquire for the purposes of the Contract and which the Company is satisfied could not otherwise be utilised by the Supplier
And the Company will not be liable for any consequential loss or damage or loss of profit incurred by the Supplier by reason of such cancellation.
11.1 Without prejudice to the right of the Company to reject goods or to any other right or remedy of the Company, the Company may (but will not be obliged to) inspect the goods during manufacture and before despatch and carry out such tests as are called for in the Purchase Order or any specification referred to therein and the Supplier will allow facilities to the Company's representatives for this purpose and where appropriate notify the Company when the goods are ready for inspection and testing.
11.2 Where the Purchase Order comprises a number of similar items and an inspection or test carried out by or for the Company would entitle the Company to reject one or more items, the Company may reject all items comprised in the Purchase Order except to the extent that they are shown to be satisfactory in tests carried out at the Supplier's expense.
12.1 The Purchase Order is personal to the Supplier and the Supplier may not assign or transfer, or purport to assign or transfer, to any other person any of its rights or sub-contract any of its obligations under the Contract.
12.2 No waiver by the Company of any breach of the Contract by the Supplier will be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 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 provision in question will not be affected.
12.4 The Contract is subject to the law of England and Wales.
12.5 All disputes arising out of the Contract will be subject to the non-exclusive jurisdiction of the courts of England and Wales.
Conditions Of Sale
In these conditions (unless the context otherwise requires) the following words have the following meanings:
The Seller = A T Sack Fillers Ltd
The Purchaser = The person, firm or company.
The Contract = The contract for the provision of Goods and the services made between the Seller and the Purchaser of which these conditions comprise part.
The Goods = The goods or any part thereof agreed to be sold and as described in the Particulars on Contract as repaired or replaced by the Seller pursuant to the Contract.
The Services = The services which the Seller has agreed to provide as described in the Particulars of Contract which are ancillary to the sale of Goods such as, without implying limitation, installation, erection and/or testing.
Particulars of Contract = The particulars of Contract on the front-page hereof (or attached hereto) including the Specifications and any special conditions agreed by the Seller and the Purchaser and attached hereto or otherwise agreed in writing after the date hereof.
Specification = Means the description and technical specification of the Goods and/or Services, set out in or attached to the Particulars of Contract.
Estimated = The estimated period for delivery of the goods or the relevant instalment of.
Delivery = The Goods, as the case may be, and for the completion of the Services or part.
Period = Of the services relating to the relevant instalment as the case may be, as specified in the Particulars of Contract.
a) These conditions govern all contracts made by the Seller for the supply of goods and/or the performance of services.
b) All quotations given, and all contracts made by the Seller are subject to the terms and conditions contained herein, and all conditions referred to by the Purchaser, or contained in any order or acceptance of quotation or otherwise brought to the notice of the Seller are hereby excluded, and no action on the part of the Seller (whether by delivery of goods or otherwise) shall be construed as an acceptance of any other condition.
c) No employee or agent of the Seller has authority to make any representation or give any warranty relating to the Goods and/or Services or to agree any variation of or addition to these conditions unless such representation, warranty, variation or addition is in writing and signed on behalf of the Seller by a person duly authorised.
d) These conditions together with the Particulars of Contract embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications.
3. Acceptance of Order
The Contract shall come into force when accepted by the Seller in writing, but may at the Seller's option cease to be binding on the parties, (save for this Clause 3) if within 30 days from the date the Contract comes into force, the Purchaser has not.
a) Obtained all necessary licenses, consents and approvals and given particulars to the Seller or,
b) Given to the Seller all necessary technical information required by the Seller and signed agreed technical specifications, or
c) Paid the deposit, referred to in the Particulars of Contract (if any) or
d) Fulfilled any other conditions referred to in the Particulars of Contract and in any of such circumstances the Purchaser shall reimburse the Seller for all loss and expenses it may have already incurred or may thereafter incur in connection with this Contract.
a) Unless provided otherwise in the Particulars of Contract the price quoted shall be ex works and is exclusive of VAT and all charges for any erection, packing, insurance, freight and delivery charges.
b) The Seller is free to increase quoted prices (whether accepted or not) to cover variations in cost of materials, manufacture, carriage, and insurance when such variations in such costs arise between the date of quotation and the date of the Contract coming into force
5. Additions, Alterations and Improvements
a) The Seller may carry out, without notice to the Purchaser, alterations or improvements in design, materials or methods of manufacture from time to time and may substitute other reasonably similar parts for any proprietary parts ordered by the Purchaser, which the Seller considers to be unprocurable, or unprocurable within a reasonable time, or unprocurable with difficulty or at an excessive cost.
b) Further, the Seller may supersede, materially alter or abandon the design or type of the Goods contracted for and may substitute another design or type. In exercising this right, the Seller shall give written notice to the Purchaser and the Purchaser may within 14 days after such notice is given, terminate the Contract by giving notice to the Seller. If the Contract is so terminated the deposit paid to the Seller, if any shall be returned to the Purchaser, but the Seller shall have no other liability whatsoever for any loss, damage, cost, expense, action and/or claim which may be suffered or incurred by the Purchaser.
c) The Seller shall be entitled to charge the Purchaser for all goods and/or services additional to and not included in the Goods and the Services. Charges shall be raised at the Seller's rate of charge current at the date of execution or supply of the additional Goods and/or Services. While the Seller will endeavour to advise the Purchaser before such changes are incurred the Purchaser shall be deemed to have authorised the Seller to execute and/or supply such additional goods and/or services as the Seller may consider to be appropriate in the best interests of the Purchaser.
a) Save to the extent provided otherwise in the Particulars of Contract, the provisions of this clause 6 shall apply.
b) Payment shall be in accordance with the Seller's standard terms of payment in the United Kingdom applicable from time to time and unless such terms provide otherwise, payment for any sum invoiced shall be due in cash not later than 14 days from the date of invoice.
c) The deposit (if any) paid in accordance with the Particulars of Contract is irrevocable, non-refundable (except in accordance with clause 5(b)) and non-interest bearing and for the avoidance of doubt shall be appropriated by the Seller against costs incurred in connection with this Contract.
d) When the Goods are or any instalment of the Goods is made available for delivery to the Purchaser, the Seller may submit an invoice for the Price or the appropriate instalment of the Price as the case may be.
e) If upon the terms applicable to the Contract, the Price shall be payable by instalments or if the Purchaser has agreed to take specified quantities of Goods at specified times, a default by the Purchaser of the payment of any due instalment of the Price or the failure to give delivery instructions in respect of the quantity of Goods outstanding shall cause the whole of the balance of the Price to become due forthwith.
f) Payment of the Price or the relevant instalment of the Price, as the case may be, shall be made in full to the Seller in accordance with the terms of the Contract and the Purchaser shall not be entitled to exercise any right of set off, lien, deduction withholding or any other similar right or claim whatsoever which the Purchaser would otherwise have saved for this provision (including but without implying any limitation, any such right or claim arising after an instalment of the Goods has been delivered, because of non-delivery of other instalments or other subsequent default by the Seller.)
g) If any payment that is to be made hereunder to the Seller is more than 30 days overdue, the Seller shall be entitled (without prejudice to any other rights ore remedies and without giving prior notice) to charge interest thereon, from the date of default until the sum due is paid (as well after as before judgement) on a day to day basis at a rate of 4% above the Midland Bank Plc Base Rate from time to time applicable with a minimum rate of 10% per cent per annum.
h) Time of payment shall be of the essence and failure to make any payment on the due date, or any other breach by the
(i) Purchaser shall entitle the Seller without prejudice to its other rights hereunder: to suspend performance of this Contract until arrangements as to payment have been established to the satisfaction of the Seller or
(ii) on giving 14 days notice to terminate this Contract and on such termination the relevant provisions of clause 19 shall apply.
i) In the event that the Seller may decide to take any legal steps for the recovery of any overdue payment then the Purchaser shall indemnify the Seller for the cost of all such steps (before as well as after judgement).
j) Any warranty of the Seller under, pursuant to or in connection with the Contract is condition upon payment of all amounts due to the Seller under, pursuant to or in connection with the Contract, and for the avoidance of doubt, the Seller shall have no liability at common law, pursuant to statute or otherwise for any breach of any such warranty unless such amounts have been paid in full.
a) Unless otherwise specified in the Particulars of Contract delivery shall take place at the Seller's works or at the place of performance of the Services.
b) The Seller will endeavour to give delivery of the Goods or each Instalment of the Goods at or about the end of the Estimated Delivery Period or within a reasonable time thereafter, but in respect of delivery, time is not to be the essence of the Contract and any delay in delivery of the Goods and/or one or more instalments thereof beyond a reasonable time after the Estimated Delivery Period shall not entitle the Purchaser to rescind or otherwise terminate the Contract. Further the Seller shall not be responsible nor liable for any loss, damage, cost, expense, action and/or claim arising directly or indirectly from the Seller's breach of contract or statutory duty and/or negligence or other tortuous act or omission.
c) The Estimated Delivery Period shall be calculated as from the date on which all the conditions specified in Clause 3 hereof shall have been complied with.
d) Where the Goods are handed to a carrier for carriage to the Purchaser any such carrier shall be deemed to be the agent of the Seller and not the Purchaser for the purposes of Sections 44, 45 and 46 of the Sale of Goods Act 1979.
e) Unless within 10 days of receipt of an invoice in respect of the Goods or one or more instalments of the Goods which the Seller alleges have been delivered to the Purchaser, the Purchaser shall notify the Seller in writing that the Goods or any relevant instalments of the Goods, as the case may be, have not been delivered to the Purchaser, the Goods or the relevant instalments of the Goods shall be deemed to be delivered to the Purchaser.
f) The Purchaser shall inspect the Goods or any instalment of the Goods upon delivery thereof. Unless the Purchaser shall notify the Seller, in writing within 7 days of delivery, of any defects and/or damage in the Goods or any instalment of the Goods, which would have been apparent upon a reasonable inspection of the same at delivery thereof, the Seller shall have no liability at common law, pursuant to statute or otherwise to the Purchaser, for any such defect and/or damage (whether arising directly or indirectly from any breach of contract or statutory duty, negligence or other tortuous act or omission or otherwise) and the Goods or the instalment of the Goods as the case may be shall be deemed to be in all respects with the Contract and the Purchaser shall be bound to pay for the same accordingly.
a) The Seller shall entitled to store the Goods (or any instalment of them) at its own premises or elsewhere in either case at the Purchaser's expense if: (i) where the Goods are or the instalment is, as the case may be, delivered at the seller's premises and the Purchaser fails to take delivery of the same when made available for delivery or
(ii) where the Goods are or the instalment is as the case may be, delivered to some other place and either a) the Seller is unable to despatch the Goods or the instalment as the case may be, by reason of any act or omission on the part of the Purchaser: or b) the Seller has made the Goods or the instalment, as the case may be but the Purchaser fails to take delivery or
(iii) the Seller is withholding delivery of the Goods or the instalment as the case may be pursuant to Clause 6 (h) (i) hereof.
b) The expenses that the Seller shall be entitled to reclaim from the Purchaser shall include all reasonable costs incurred by the Seller (whether by way of storage, insurance or otherwise). In respect of the Goods or the instalment, as the case may be and it is expressly declared that it shall be reasonable for the Seller to affect insurance in respect of the same notwithstanding that the risk therein has passed to the Purchaser.
9. Title, Risk and Property Reservation
a) Until the Goods have been paid for in full to the Seller:
(i) The legal title and property in the Goods shall not pass to the Purchaser.
(ii) The Purchaser shall after delivery keep the Goods or any instalment thereof insured to their full value and the Seller's interest noted thereon.
(iii) If the Purchaser is in breach of any of the terms of this agreement, including but not limited to non-payment of monies due to the Seller, and title has not passed, the Seller shall have the right, upon giving not less than 48 hours notice in writing, to enter the Premises of the Purchaser and remove the Goods. The Seller shall not be responsible for any damages caused thereto except such damage caused by the negligence of its servants or agents.
(iv) The Purchaser hereby grants to the Seller an irrevocable licence to enter on to the land and premises of the Purchaser where the Goods are situate for the purposes of removing them in accordance with this clause.
b) From the time when the Goods are or any instalment thereof is made available for delivery to the Purchaser, the Goods or such instalment, as the case may be shall, notwithstanding that the legal title may have remained with the Seller, be at the sole risk of the Purchaser.
c) Where property in the Goods has not passed, the Seller may nevertheless maintain an action against the Purchaser for the purchase price and all other monies owing to the Seller by the Purchaser notwithstanding Section 49 of the Sale of Goods Act 1979.
10. Intellectual Property
a) The copyright in all drawings, patterns, data, literature photographs, illustrations, specifications, performance data, dimensions, weights, manufacturing and operating techniques and the like ("the information") shall remain the property of the Seller and (except marked as or otherwise indicated) the Information shall be confidential and shall not be disclosed or used except where the Purchaser has paid all sums due to the Seller under the Contract and only as necessary for the purpose of application and use by the Purchaser of the Goods in relation to which they were supplied.
b) All the Information, whether contained in the Contract or made by way of representation, have been provided by the Seller in the belief that it is as accurate as reasonably possible, but it does not, save for the Specification, constitute a description of the Goods and shall not be taken to be a representation made by the Seller, and is not warranted to be accurate.
c) The Purchaser shall not alter or deface any of the Seller's registered trade marks as marked on the Goods when the Goods are so marked or apply to them such other trade mark or written matter which is likely to injure the reputation of the Seller's trade mark.
d) The Seller shall indemnify the Purchaser against damage and costs awarded as a consequence of the Goods themselves and the delivery or importation thereof infringing any patent rights published (at the date of the Contract) in the United kingdom provided always that:
(i) this indemnity shall not apply to any infringement which is due to the Seller having followed an instruction, furnished or given by the Purchaser, or to the use of such material, in a manner or for a purpose, or in a foreign country not specified or disclosed to the Seller, or in combination with any other materials or process.
(ii) this indemnity is conditional, on the Purchaser giving to the Seller the earliest possible notice in writing of any claim being made or action threatened against the Purchaser, and on the Purchaser permitting the Seller, at the latter's expense to conduct any litigation that may ensue and all negotiations for a settlement of the claim.
e) There is no licence granted, (implied or express) to manufacture, produce or sell or otherwise use the Goods in a manner, which may infringe any patent rights, owned by the Seller and others.
f) The Purchaser warrants that any instructions furnished or given by the Purchaser shall not be such as will cause the Seller to infringe any letters patent, copyright, utility model, registered design, right of confidence, or trade mark in execution of the Purchaser's order.
The Seller is entitled at any time to sub-contract the Contract or any part thereof to any person, firm or company as it sees fit.
Where the Seller delivers any goods to and/or provides any services at the Purchaser's premises or other premises, the Purchaser shall indemnify the Seller against cost, loss expense and/or damage suffered or incurred by the Seller and against all actions and/or claims by third parties (including the Seller's employees) arising directly or indirectly from the carrying out of other works at such premises or from defects in or unsuitability of other works being carried out at such premises or apparatus or plant (other than apparatus or plant supplied by the Seller) or from negligence or other tortuous acts or omission and/or breach of contract or statutory duty on the part of the Purchaser, its employees or any third party (other than the Seller's own employees) and howsoever arising.
13. Installation and Testing
a) Where the Seller undertakes the erection, installation and/or testing of Goods (or any part thereof) the Purchaser shall at its own expense provide such layout and other drawings and information and such power, compressed air, water and other facilities as the Seller may require and changes and costs in connection with such provision shall be done by the Purchaser.
Where the Seller undertakes the erection, installation and/or testing of Goods (or any part thereof) the Purchaser shall at its own expense provide such layout and other drawings and information and such power, compressed air, water and other facilities as the Seller may require and changes and costs in connection with such provision shall be done by the Purchaser.
b) The Purchaser shall bear and indemnify the Seller against all travel and subsistence costs incurred by the Seller's employees and agents in providing any erection installation, start-up, testing, maintenance and other related services, where such services are provided otherwise than at the Seller's premises.
c) The Purchaser shall be responsible for compliance with all statutory requirements and third party rights in connection with the siting, installation, erection and use by the Seller of the Goods to the Purchaser's order and shall indemnify the Seller accordingly.
d) The Seller's prices for any installation and erection are based on free and continuous access to the site with hard standing, carnage and transport adjacent to the erection position. Should delays occur beyond the control of the Seller such extra costs and expenses as may be incurred due to such delays shall be done by the Purchaser.
14. Conditions and Warranties
a) Any conditions or warranties (whether express or implied by statute, common law, or arising from conduct or a previous course of dealing, trade custom or usage) that the Goods shall correspond with such description or specification given by or on behalf of the Seller (other than the Specification) are expressly negatived and the use of any such description or specification shall not constitute a sale by description.
b) The Seller will exercise reasonable skill and care in the performance of its obligation under the Contract. Any conditions or warranties (whether express or implied by statute, common law or arising from conduct or a previous course of dealing, trade custom or usage) as to the quality or fitness of the Goods for any particular purpose, even if the purpose is made known expressly or by implication to the Seller are expressly negatived.
c) Notwithstanding that a sample of Goods may have been exhibited to and inspected by the Purchaser, or results of standard tests upon a sample given to the Purchaser, any condition or warranties (whether express or implied by statute, common law or arising from conduct or a previous course of dealing, trade custom or usage) that the Goods shall correspond with such sample or will produce equivalent results to such standard tests is expressly negatived and the exhibition and/or inspection of such sample or the giving of such results shall not constitute a sale by sample or description.
15. Defective Goods
a) Where the Goods are or any part thereof is manufactured by the Seller, the Seller shall have no liability for any defect in the Goods or that part thereof as the case may be, at common law, pursuant to statue or otherwise and whether arising directly or indirectly from any negligence or other tortuous act or omission of and/or any breach of contract or statutory duty by the Seller, its employees, suppliers, sub-contractors or agents or otherwise save where:
(i) such defect is a serious defect which arose from the negligence or other tortuous act or omission of and/under any breach of contract or statutory duty by the Seller and which appeared within 26 weeks of delivery and
(ii) the Purchaser has notified the Seller within 14 days when such defect appeared or ought reasonably to have been discoverable and has, if required by the Seller, sent the allegedly defective Goods to the Seller's premises at the Purchaser's expense (which expense shall be refunded by the Seller if the Seller admits the Goods or part thereof contain a defect as described to in clause 15(a)(i) and
(iii) the seller has, after the later of the notification or if required, return of the allegedly defective goods as referred to in Clause 15(a)(ii), failed to replace or repair free of charge the Goods or that part thereof, as the case may be.
b) Where the Goods (or any part thereof) are not manufactured by the Seller, the Seller will pass on to the Purchaser any benefits obtainable under any warranty given by the Seller's supplier, provided that the Goods have been accepted and paid for by the Purchaser, but shall have no greater or other liability for any defect in the Goods or that part thereof, as the case may be, at common law, pursuant to statute or otherwise and whether arising directly or indirectly from any negligence or other tortuous act or omission of and/or any breach of contact or statutory duty by the Seller, its employees, suppliers, sub-contractors or agents or otherwise.
c) Nothing herein shall impose any liability upon the seller in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Purchaser, its servants and agents including in particular but without prejudice to the generality of the foregoing any failure by the Purchaser to comply with any recommendations of the Seller as to storage and handling of Goods.
d) Where the Goods are to be delivered by instalments, any defect in any instalment shall not entitle the Purchaser to rescind or otherwise terminate the Contract and the Purchaser shall be bound to accept delivery of the remaining instalments.
e) Nothing herein contained shall have the effect of excluding or restricting the liability of the Seller for death or personal injury resulting from negligence.
16. Consequential Loss
The Seller's liability at common law, pursuant to statute or otherwise for any losses, costs, claims, actions, damages or expenses arising directly or indirectly from any negligence or other tortuous act or omission or any breach of contract or statutory duty by itself or its employees, suppliers, sub-contractors or agents or otherwise, (including but without implying limitation any losses, costs, claims, damages or expenses calculated by reference to profits, income, production or accruals or loss of profits or loss of such profits, income , production or accrual of such costs, claims, damages or expenses on a time basis,) shall be limited to the direct cost and reasonable cost of repair, replacement or re-instatement of the Goods for which the Purchaser is liable either directly or by way of financial contribution for the same.
17. Limitation of Liability
Without prejudice to Clause 16, the Seller's liability at common law, pursuant to statue or otherwise for any losses, costs, claims, actions, damages or expenses arising directly or indirectly from any negligence or other tortuous act or omission or any breach of contract or statutory duty by itself, its employees, suppliers, sub-contractors, or agents or otherwise shall not exceed the higher of the Price or the sum of 1,000,000 (one million pounds). For the avoidance of doubt nothing in Clause 15, Clause 16, or this Clause 17 shall give rise to any liability to the Purchaser which the Seller would not have had save for those provisions.
18. Force Majeure
Without prejudice to Clause 7(b) the Seller shall not be liable for any loss, costs, claim, action and/or damage caused by the delay in the performance or non-performance of any of obligations hereunder where the same is occasioned by any cause whatsoever that is beyond the Seller's control, including but not limited to an Act of God, war, civil disturbance, requisition, government or parliamentary restrictions, prohibitions or enactment of any kind, import or export regulations, strikes, lockouts or trade dispute (whether involving its own employees or those of any other person) difficulties in obtaining workmen or materials, breakdown of machinery fire or accident. Should any such event occur the seller may cancel or suspend the Contract without incurring liability for any loss cost, expense, claim, action, and/or or damage thereby occasioned.
Without prejudice to any other rights the Seller may have, the Seller shall be entitled, on giving written notice to the Purchaser, to terminate this Contract forthwith or on 14 days notice in the case of Clause 5 (d) and to demand immediate payment of any amount due or accruing due to the Seller hereunder and to retain any deposit if:
a) The Purchaser, not being a body corporate, becomes bankrupt or compounds or makes any arrangements with his creditors or commits any act of bankruptcy.
b) The Purchaser being a body corporate goes into liquidation, whether compulsory or voluntary (say for the purposes of amalgamation or reconstruction) or has a Receiver appointed of its undertaking or assets or any part thereof or makes a proposal for voluntary arrangement for a composition of debts or scheme of arrangement to be approved in accordance with the Companies Act 1985 or the Insolvency Act 1986 as the case may be or any amendment to re-enactment thereof or has an administrator, a provisional liquidator or an administrative receiver appoint under the Insolvency Act 1986 or any amendment or re-enactment thereof.
c) The Purchaser commits any breach of Clause 5 hereof or of its other obligations hereunder and after reasonable notice by the Seller fails to remedy such breach.
a) If any of these conditions or part of these conditions is rendered void by any mandatory rule of law, it shall be void to that extend and no further. If any of these conditions or any part of these conditions is rendered unenforceable by any mandatory rule of law it shall be unenforceable to the extent that it is not fair or reasonable to allow reliance on such a condition or part thereof but no further.
b) In the event of any inconsistency between the provisions of the specification, any special conditions and these conditions, then the Specification shall take precedence followed by an special conditions and them these conditions.
21. Disputes and Claims
a) The parties will attempt in good faith to resolve any dispute or claims arising out of or relating to this Contract promptly.
b) If the matter is not resolved through negotiation, the parties will attempt in good faith to resolve the dispute or claim through an Alternative Dispute Resolution (ADR) procedure as recommended to the parties by the Centre for Dispute Resolution (CEDR).
c) If the matter has not been resolved by an ADR procedure within 28 days of the initiation of such procedure, or if either party will not participate in an ADR procedure, the dispute shall be referred to the English Courts subject to the rights of either party to enforce a judgement obtained in the English Courts in any other jurisdiction.
Any notices given under this Contract shall be in writing (which shall include telex and fax) and be sent to the address specified of the party to whom it is sent and shall be deemed to have been received 72 hours after it had been sent.
Failure by the Seller to insist upon strict performance of the terms and conditions of this Contract shall not be deemed a waiver of any of its rights or remedies nor be deemed a waiver of any subsequent default hereof.
This Contract shall in all respects be governed and construed in accordance with English Law.
The headings in these Conditions are intended for reference only and shall not affect their construction.
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A.T. Sack Fillers,12 Biggin Lane, Ramsey, Cambs, PE26 1NB, UK - Telephone: 01487 711114 - E-mail: firstname.lastname@example.org
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