- Definitions and Terms of Contract
- In these conditions CARBIS LOADTEC GROUP LTD is referred to as “the company” and the party to which a quotation has been given or with which the company has entered into a contract is referred to as “the customer”.
- The contract between the company and the customer shall comprise these conditions and any other terms appearing in the company’s quotation but no terms or conditions presented by the customer or to which any acceptance of a quotation is made subject shall form part of the contract unless expressly accepted in writing by the company.
- No amendment of or addition to these conditions or to any contract entered into shall be binding unless accepted by both the company and the customer or to any contract entered into in writing.
- No terms, conditions or warranties put forward by the customer or which might otherwise be implied by law or by custom shall form part of any contract between the customer and the company.
- The customer acknowledges that in entering into a contract with the company it does not rely on any representations or statements which may have been made by the company or its servants or agents and all such representations or statements are hereby excluded save as may be expressly accepted in writing by the company.
- These conditions apply to all goods and services supplied by the company.
- Copyright Materials
All drawings, quotations, illustrations, descriptions, leaflets, samples and models relating to any goods (in this condition 2 together referred to as “materials”) which are supplied by the company are the copyright of the company or its suppliers and may not be passed to any third party or be copied or used by the customer for the manufacture of any articles. All materials are returnable to the company forthwith on demand.
- Descriptions and specifications
The customer shall not rely on the disposition, shape, dimensions, materials, weights and any other particulars of goods which appear or are stated in any leaflets, catalogues, drawings, illustrations or advertisements relating to the goods save to the extent expressly referred to in the company’s quotation.
- All prices and terms quoted shall remain valid for acceptance by the customer for 30 days from the date on the quotation form unless otherwise stated in writing.
- All prices are on a net ex-factory basis and do not include packaging or V.A.T. unless otherwise stated in writing.
- The company reserves the right to charge the customer an additional amount to cover extra costs and expenses resulting from delay caused by lack of instructions from the customer or arising where the company has agreed to requests by the customer to suspend work or to changes by the customer to its requirements.
- Delivery and risk
- All delivery and performance dates or periods quoted by the company are the company’s best estimates and time shall not be of the essence in relation to such dates or period.
- All risk of loss of or damage to the goods shall pass to the customer and delivery shall occur when the goods enter the customers premises.
- In the case of failure to deliver by the estimated time the customer shall not rescind the contract for this reason unless on or within 14 days after the estimated delivery date the customer gives to the company notice in writing specifying a reasonable period within which the goods in question are required to be delivered and the company fails to deliver within that period and in any other case of failure to deliver the customer shall not rescind the contract for this reason unless it has given the company notice in writing specifying a reasonable period within which the goods are required to be delivered and the company fails to deliver within that period.
- No claim for short delivery or in respect of damage in transit will be accepted by the company unless the shortage or damage where manifest is noted on the delivery note or in any other case is reported to the company and the carrier within five working days of delivery and in either such event the sole responsibility of the company shall be within a reasonable period to make up the shortfall or to repair or replace the damaged goods.
- Save as set out in conditions 5(c)(i) and (ii) above, the company shall have no liability whatsoever in respect of non-delivery, short delivery or damage in transit.
- Where goods are to be delivered in instalments and the company fails to deliver any one or more instalments in accordance with the terms of the contract or the customer claims that the goods in any one or more instalments have not been delivered in accordance with the terms of the contract, the customer shall not be entitled to treat the contract as a whole to be repudiated.
- The customer shall be responsible for obtaining all necessary licenses and permissions for the import of the goods into the country of destination.
- If the customer does not take delivery of the goods when tendered by the company, the customer shall be liable for any loss occasioned to the company by its neglect or refusal to take delivery and also for such costs and expenses as the company may incur in storing the goods and, if applicable, re-delivering the same.
- Passing of property
- The company shall retain full legal and beneficial ownership to the goods supplied by the company until payment in full of all monies owing by the customer to the company in respect of such goods has been received by the company; and
- Until ownership passes to the customer under condition 6(a):-
- The customer shall hold the goods as bailee for the company and acknowledges the existence of a fiduciary relationship with the company in respect of the goods;
- The customer shall be entitled to use the same in the ordinary course of its business and to resell the same at full market value provided always that the entire proceeds of any such resale shall be held on trust by the customer for the company until such time as the company has received payment in full of all monies owing by the customer in respect of such goods. Such proceeds shall not be mingled with any funds of the customer nor paid into any overdrawn bank account;
- The company shall be entitled to sue the customer for the price of such goods if not paid on the due date;
- The goods shall be kept stored on the customer’s premises separately from all other goods in such a way that they can be readily identified as the goods of the company and shall be insured by the customer with a reputable insurer for no less than the invoice value of such goods and any proceeds of such insurance shall be held on trust for the company. The company shall produce a copy of the policy of insurance whenever requested by the company;
- The company shall be entitled at any time to repossess the goods and the customer hereby grants to the company, its agents and employees a licence to enter upon any premises where such goods are stored or are reasonably thought to be stored for the time being for the purpose of repossessing the same and agrees to give the company such assistance as the company may require for such purpose.
- Payment Terms
- Unless otherwise noted on the quotation all sums due in respect of goods or services supplied by the company shall be payable within 30 days net of the date on which the company’s invoice was issued. All amounts shall be paid in cash without deduction or set-off unless allowed in writing by the company.
- Interest shall be due on all overdue payments both before and after judgement at the rate of 2% above the base rate from time to time of the company’s bank until such time as payment in full is received by the company.
- Where any sum payable by the customer to the company remains unpaid in breach of the terms of conditions 7(a) or (b) above the company shall be entitled to suspend the supply of any goods or services contracted to be supplied until such time as said sum has been paid in full together with interest.
- Subject as provided in this condition 8, the company warrants that: –
- For a period of twelve months from the date of delivery, goods shall be free of all defects in workmanship and materials; and
- All services shall be provided with reasonable care and skill
- The company warrants that for a period of six months from the date of delivery the goods shall be substantially in accordance with such specifications as have been noted on the quotation form.
- The sole obligation for the company for the breach of condition 8 (a)(i),(b) or (c) shall be at its option to grant the customer a credit at the price at which the goods were invoiced or to repair or replace the defective or non-complying goods with all reasonable despatch provided that all cases the allegedly defective or non-complying goods are promptly returned to the company carriage paid and have been found after examination by the company not to have complied with any of the aforesaid warranties. If following return of goods and their inspection by the company, goods are found not to comply with the warranties in condition 8(a)(i) or (b), the cost of carriage reasonably incurred by the customer shall be reimbursed by the company.
- The company shall have no liability under conditions 8(a)(i),(b) or (c) above to the extent that the defect in the goods or their non-compliance with specification has been caused or contributed to by the goods having been stored, used or maintained otherwise than in compliance with any specifications laid down by the company or the customer having performed or permitted to be performed any unauthorised maintenance or repair of or alteration to the goods. The company shall have no liability under the aforesaid warranties where the goods have been accepted by the customer after testing as referred to in condition 9.
- The company’s sole liability for a breach of condition 8(a)(ii) shall be to re-perform the services in question within a reasonable period provided that the customer reports the breach in question within one month of the circumstances alleged to constitute the breach becoming evident and in any event within twelve months of the date on which the services in question were performed.
- The goods shall comply with all legal requirements imposed in the United Kingdom, but no responsibility is accepted by the company in relation to compliance with laws and regulations of countries outside the United Kingdom.
- Save as set out in conditions 8(a) to (f) above, the company shall have no liability whatsoever to the customer arising out of or in connection with the sale or supply of goods by the company to the customer, or the performance of services for the customer whether for direct, indirect, consequential or any other type of loss and whether the same shall have been caused by the negligence, misrepresentation or any other tort of the company or by any breach or non-performance by the company of the contract with the customer and all conditions, warranties or the terms that are express or implied by law or otherwise inconsistent with this condition 8 are hereby excluded, provided always that nothing in these conditions shall exclude the liability of the company for death or personal injury caused by its negligence.
- The liability of the company arising out of this contract or out of or in connection with the supply of goods or services by the company whether in connection with the sale or supply of goods by the company whether in contract, tort (including negligence) or otherwise shall in any event be limited to £250,000 (in respect of any one event or series of events arising from the same cause).
- The customer shall indemnify the company against all claims, damages, costs and expenses for which the company may become liable through executing any order in accordance with the specifications of the customer and which may involve infringement of any patent, copyright, registered design, design right or any other intellectual property right.
- The customer shall notify the company of any claim, action, demand or any other proceeding of which it may become aware alleging that the goods or any part of the goods infringe any patent, copyright, registered design, design right or any other intellectual property right.
- The customer shall indemnify the company against all claims, losses, costs and expenses made against or suffered by the company arising from or incurred by reason of any loss, injury or damage suffered by a third party and arising out of the operation of the goods.
- Subject as provided in this condition 8, the company warrants that: –
At the request of the customer, goods may be tested in the presence of the customer at the premises of the company in order to verify the compliance of such goods with the contract. The customer shall supply all necessary items to be agreed specifications in order to permit such testing to be performed.
Where the company agrees in writing to commission the goods at the premises of the customer the customer shall, at its own expense and in such a manner as the company may specify, prepare its premises for the installation of the goods and shall provide such materials, facilities and personnel as the company may require for the purpose of commissioning the goods. Any extra cost or expense incurred by the company as a result of the failure of the customer to comply with its obligations under this condition10 or because of any problems in installation and commissioning shall result in an extra charge being levied by the company at its then current rates. For the avoidance of doubt, the company shall not be liable for any failure to install or commissioning goods where the reason therefore is the incompatibility of, defect in or unsuitability for the purpose of any equipment supplied other than by the company.
- Force Majeure
The company shall have no liability to the customer for any delay or failure in performance to the extent that any such delay or failure arises from causes beyond the control of the company including but not, limited to fire, floods, acts of God, acts or regulations of any governmental or supranational authority, war, riot, strike, lockouts, industrial disputes and any failure by the company’s suppliers to deliver any items in accordance with an order from the company.
- Governing Law
The contract between the company and the customer shall be governed by and construed in accordance with English law and both parties shall submit to the exclusive jurisdiction of the English courts.