CONDITIONS FOR THE SUPPLY OF GOODS BY MALTHOUSE ENGINEERING LIMITED
The Customer’s attention is drawn in particular to the provisions of paragraph 7
1. Basis of Contract
(a) In these conditions “the Company” means Malthouse Engineering Company Limited Incorporating Lynrose Engineering, Dennic Engineering, Empyrium Profilers and MSP and “the Customer” means the individual, firm, company or other party with whom the Company contracts. “Supply” includes (but is not limited to) any supply under a contract of sale. “International Supply Contract” means such a contract as is described in section 26(3) of the Unfair Contract Terms Act 1997. “Force Majeure Event” means any of the events specified in clause 9. The wording of headings is not intended to limit the scope of the clauses which they identify, or to have any other effect on their interpretation and they are for convenience only. ;
(b) Any contract made between the Company and the Customer (herein called “the Contract”) shall be subject to these conditions and unless otherwise agreed in writing by the Company these conditions shall apply to the exclusion of any other terms and conditions and shall override any terms and conditions stipulated or referred to by the Customer in his order or pre-contract negotiations, or which are implied by trade, custom, practice or course of dealing.
(c) The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. No representative or agent of the Company has authority to agree any terms or make any representations inconsistent with them or to enter into any contract except on the basis of them. Any such term representation or contract will bind the Company only if in writing and signed by a director. Any description contained in the Company’s catalogues, drawings, descriptive matter, samples, price lists or other advertising material is intended merely to present a general picture of the Company’s products and services and shall not form a representation or be part of the Contract.
(d) A quotation for goods and/or services given by the Company shall not constitute an offer. A quotation shall only be valid for a period of [28] days from its date of issue.
(e) Subject to any agreement to the contrary the Company’s quotations are provisional and may be altered to take account of any changes taking place between the date of quotation and the Company’s acceptance of the Customer’s order in the price of raw materials, rates of wages and other costs of production or in the Customer’s specification, instructions or design or in the event that the Customer orders part only of the quantity referred to in any quotation. In particular, and without prejudice to the generality of the Document Ref : 2149689248 Page 2 of 10 7506/28208
foregoing, the Company reserves the right to amend the price to take account of any metal price fluctuation taking place between the date of quotation and the Company’s acceptance of the Customer’s order.
(f) No order in pursuance of any quotation or otherwise shall be binding on the Company unless and until such order is accepted by the Company.
(g) An order constitutes an offer by the Customer to purchase goods and/or services in accordance with these Conditions. The Customer shall ensure that the terms of the order are complete and accurate.
(h) An order placed by the Customer shall only be deemed to be accepted when the Company issues a written acceptance of that order, at which point the Contract shall come into existence.
(i) Notwithstanding clause 1.(h) above in the event that the Company has not given a written acceptance of the Customer’s order but supplies goods pursuant to that order these conditions; shall nonetheless apply to the Contract.
(j) The Company reserves the right to correct any clerical or typographical errors made by its employees at any time.
2. Obligations of the Customer
(a) Where goods are made to the Customer’s specification, instructions or design, the Customer undertakes full responsibility for the suitability and accuracy of the specification, instructions or design and undertakes to indemnify and hold harmless the Company against any infringement of any patent, registered design, unregistered design, trade mark, service mark, trade name or copyright and any loss, damage or expense which the Company may incur by reason of such infringement in any country and the Customer undertakes further to indemnify and hold harmless the Company for any loss, damage or expense in respect of any liability arising under or by reason of the provisions of the Consumer Protection Act 1987 in relation to any specification or design of such goods.
(b) The Customer warrants that it will pass on to all third parties to whom it may supply the goods all information as to the use and safe handling of the goods as may have been passed on to the Customer by the Company
3. Pricing
It shall be a condition of the Contract that the Company shall be entitled to increase its prices at any time to take account of any increase in the cost to the Company of purchasing any goods or materials (and, in particular, any increase in metal prices) or manufacturing working on or supplying any goods or services (including any such increase arising from any error or inadequacy in any specification, instructions or design provided by the Customer or any modification carried out by the Company at the Customer’s request) and such increased prices ruling at the date of despatch by the Document Ref : 2149689248 Page 3 of 10 7506/28208
Company shall be substituted for the previous Contract price. All prices quoted are exclusive of VAT and the Customer shall pay any and all taxes, duties and other government charges payable in respect of the goods and services.
4. Delivery
(a) Unless otherwise agreed in writing by the Company:
(i) the Customer shall take delivery of the goods or any instalments thereof at the Company’s premises within 14 days after receiving notification from the Company that such goods are ready; or
(ii) if the Company agrees to deliver goods elsewhere (the “Delivery Location”) the Customer shall when so required by the Company forthwith give to the Company all necessary instructions: the Company shall be entitled to add to the Contract price a reasonable charge for packaging and delivery and off-loading shall be at the Customer’s risk and expense.
[(iii) if the Company requires the Customer to return any packaging materials to the Company that fact will be indicated on an appropriate delivery note accompanying the goods and the Customer shall make any such packaging materials available for collection at such times as the Company shall reasonably request. Returns of packaging materials shall be at the Company’s expense.]
(b) Delivery of the goods shall be completed:
(i) should clause 4.(a)(i) apply, on the completion of loading of the goods at the Company’s premises;
(ii) should clause 4.(a)(ii) apply, on the arrival of the goods at the Delivery Location.
(c) If the contract is an International Supply contract it shall be deemed to incorporate the [Incoterm specified in the [Company’s order acknowledgment]] save that in the event of any inconsistency between Incoterms and any express term of the Contract the latter shall prevail. The Company shall be under no obligation to give the Customer the notice specified in section 32(3) of the Sale of Goods Act 1979.
(d) Save in the case of International Supply Contract and subject to any agreement in writing by the Company, the risk in goods which the Company agrees to supply shall pass to the Customer on the relevant date as defined in sub paragraph 5(a) hereof or the date (if earlier) on which, the goods being ready for delivery, delivery is postponed a the Customer’s request.
(e) The Company shall not be liable for any loss or damage sustained by any goods left with the Company howsoever caused and whether or not Document Ref : 2149689248 Page 4 of 10 7506/28208
attributable to negligence on the part of the Company or negligence or wilful default on the part of any servant or agent of the Company.
(f) While the Company will endeavour to deliver the goods by any date or within any period agreed upon, such dates and periods are estimates only given in good faith and the Company will not be liable for any failure to deliver or complete by such a date or within such a period. If the Company fails to deliver the goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the goods that the Company has failed to deliver. The Company shall not be liable for any delay in delivery of goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the goods. Moreover, the Company shall be entitled to defer delivery until any monies due from the Customer have been received.
(g) Where goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more instalments in accordance with these conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat that Contract as a whole as repudiated.
(h) If the Customer fails to take delivery of the goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then without prejudice to any other right or remedy the Company may store the goods until actual delivery and charge the Customer for the reasonable cost of storage, including insurance. If [14] days after the Company notified the Customer that the goods were ready for delivery the Customer has not taken delivery of goods pursuant to clause 4 (a) (i) or accepted delivery of goods pursuant to clause 4 (a) (ii), the Company may resell or otherwise dispose of part or all of the goods and/or services and, after deducting the reasonable cost of storage, including insurance, account to the Customer for any excess over the price of the goods or charge the Customer for any shortfall below the price of the goods.(i) The Customer shall not be entitled to reject goods if the Company delivers up to and including [5]% more or less than the quantity of goods ordered.
5. Price and Payment
(a) For the purposes of this paragraph “the goods” shall mean the whole or any instalment of the goods which the Company has agreed to supply or to which the Company has agreed to carry out work and “the relevant” date shall be the date on which (i) the Customer takes delivery of the goods at the Company’s premises or (ii) the Company despatches the goods or (iii) the Customer defaults in his obligations under sub-paragraph 4(a) hereof Document Ref : 2149689248 Page 5 of 10 7506/28208
whichever shall first occur or (iv) (in the case of services) the services or any part thereof are carried out.
(b) The Company shall be entitled to invoice the Customer in respect of the goods or services on or at any time after the relevant date. Unless otherwise specified in writing by the Company payment shall be made by the Customer not later than the last day of the month immediately following the month of invoice without any deduction or set off whatsoever. Time for payment shall be of the essence of the Contract. Without prejudice to any other rights of the Company interest will be payable on all overdue accounts (both before and after any judgment) at Barclays Bank PLC base rate plus 4% and for the purpose of paragraphs 6 and 8 hereof the full purchase price of the goods shall include any interest payable hereunder.
6. Cancellation
(a) If the Customer shall fail to make any payment when it becomes due or shall enter into any composition or any arrangement with his creditors or if being an incorporated company shall have an administrative receiver or administrator appointed or shall pass a resolution for winding up or a Court shall make an order to that effect or if there shall be any breach by the Customer of any of the terms and conditions hereof or if the Customer ceases or threatens to cease, to carry on business or the Company reasonably apprehends that any of the foregoing events is about to occur in relation to the Customer and notifies the Customer accordingly, the Company may defer or cancel any further deliveries without any liability and treat the Contract as determined but without prejudice to its right to the full purchase price for goods delivered and services provided and damages for any loss suffered in consequence of such determination and if goods have been delivered or services performed, but not paid for, the Contract price shall become immediately due and payable.
(b) Cancellation by the Customer will only be accepted at the discretion of the Company and in any case on condition that any costs or expenses incurred by the Company up to the date of cancellation and all loss or damage resulting to the Company by reason of such cancellation will be paid by the Customer to the Company forthwith. Acceptance of such cancellation will only be binding on the Company if in writing.
(c) A charge will be made for any costs incurred by the Company due to suspension or deferment of any order by the Customer or in the event that the Customer defaults in collecting, or giving instructions for the delivery of any goods.
(d) The Company may appropriate any payment made by the Customer to any goods supplied by the Company, whether under the Contract or otherwise, as the Company shall think fit and notwithstanding any purported appropriation by the Customer.
(e) The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
7. Limitation of liability
(a) No claim for damage in transit, shortage of delivery or loss of goods will be entertained unless the Customer shall have given to the Company written notice of such damage, shortage or loss with reasonable particulars thereof:
(i) in the case of a defect that is apparent on normal visual inspection, within 3 days of delivery of the goods;
(ii) in the case of a latent defect, within a reasonable time of the latent defect having become apparent; or
(iii) in the case of total loss, within 3 days of receipt of the invoice or other notification of despatch.
(b) The Company’s liability, if any, shall be limited to replacing or (in its discretion) repairing such goods and it shall be a condition precedent to any such liability that the Customer shall if so requested have returned damaged goods to the Company within 14 days of such request. The Customer shall not be entitled to make any claim against the Company for consequential loss arising out of such damage shortage or loss as aforesaid. If the Customer does not so notify the Company the Company shall have no liability for such damage, shortage or loss and the Customer shall be bound to pay the Contract price as if the goods had been delivered in accordance with the Contract.
(c) Save as otherwise provided in these conditions the Company’s liability in respect of any defect in or failure of goods supplied is limited to replacing or (in its discretion) repairing or paying for the repair or replacement of goods which within 12 months of delivery to the Customer are found to be defective by reason of faulty or incorrect design workmanship parts or materials. In the event of any error in any weight, dimension, capacity, performance or other description or information which has formed a representation or a part of a Contract the Company’s liability in respect of any direct loss or damage sustained by the Customer as a result of such error shall not exceed the price of the goods in respect of which the description or information is incorrect. Conditions precedent to the Company’s liability hereunder shall be that the Customer:
(i) shall have given to the Company as soon as reasonably practicable, reasonable notice of the defect, failure or error;
(ii) shall have as soon as reasonably practicable, either returned the goods to the Company or provided for the Company’s servants or agents to inspect them, as the Company may request; Document Ref : 2149689248 Page 7 of 10 7506/28208
(iii) shall not have made any further use of such goods after giving notice in accordance with clause 7. (c) (i);
(iv) shall not have failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the goods or (if there are none) good trade practice;
(v) shall not have altered or repaired such goods without the written consent of the Company;
and that
(vi) any defect in goods supplied shall not have arisen as a result of the Company following any drawing, design or specification supplied by the Customer; or
(vii) as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
(d) Where the Company agrees to repair or replace goods or carry out again any services in accordance with the foregoing provisions of this paragraph any time specified for delivery under the Contract shall be extended for such period as the Company may reasonably require.
(e) Save for such terms as may be implied in the Contract by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods Act 1982, all conditions, warranties and other terms express or implied, statutory or otherwise, are expressly excluded, save insofar as contained herein or as otherwise expressly agreed by the Company in writing.
(f) Nothing in the Contract shall limit or exclude the Company’s liability for:
(i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(ii) fraud or fraudulent misrepresentation; or
(iii) breach of terms implied by section 12 of the Sale of Goods Act 1979; or
(iv) defective products under the Consumer Protection Act 1987; or
(v) any matter of which it would be unlawful for the Company to exclude or restrict liability.
(g) Save as hereinbefore provided the Company shall not be liable to the customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
(i) loss of profit; or
(ii) loss of goodwill; or
(iii) loss of business; or
(iv) loss of business opportunity; or
(v) loss of anticpated saving; or
(vi) loss or corruption of data or information; or
(vii) special, indirect or consequential damage
Suffered by the Customer that arises under or in connection with the Contract
8. Title
The following provision shall apply (without prejudice to the Company’s rights under these conditions or otherwise by statute or common law) to all contracts relating to goods which under the Contract the Company agrees to supply to the Customer. No failure by the Company to enforce strict compliance by the Customer with such provisions shall constitute a waiver thereof and no termination of the Contract shall prejudice, limit or extinguish the Company’s rights under this paragraph:
(a) Upon delivery of the goods the Customer shall hold the goods solely as bailee for the Company and the goods shall remain the property of the Company until such time as the full purchase price due under all contract between the Company and the Customer have been paid in full. Until such time the Company shall be entitled at any time to require the Customer to deliver up the goods to the Company and if the Customer fails to do so forthwith to enter upon any premises of the Customer or any third party where the goods are stored and repossess the goods and for that purpose the Customer hereby authorises and licenses the Company its officers, employees and agents to enter upon any land or building upon which the goods are situated to recover those goods.
(b) Until such time as property in the goods passes to the Customer, the Customer shall be entitled to use the goods in the normal course of its business but on the conditions that:
(i) the property in the goods shall vest in the Company and the Customer shall notify any sub-buyer of the fact that the Customer is not in a position to pass title to the goods until such time as the conditions herein contained may have been satisfied by payment;
(ii) the Customer holds the goods on a fiduciary basis as the Company’s bailee;
(iii) the Customer stores the goods separately from all similar items held by the Customer so that they remain readily identifiable as the Company’s property;
[(iv) the Customer does not remove, deface or obscure any identifying mark or packaging on or relating to the goods.]
(c) The Customer shall maintain all appropriate insurance in respect of the goods from the date or dates on which the risk therein passes to it. In the event of any loss or damage accruing while the goods remain the property of the Company the Customer shall immediately on receipt of the insurance monies, remit to the Company the full purchase price of the goods lost or damaged less any part hereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Company.
(d) The licence granted under sub-paragraph(b) above shall be terminable forthwith at any time upon notice by the Company to the Customer.
9. Force Majeure
Should the Company be delayed in or prevented from performing its obligations under the Contract due to war, governmental or parliamentary restrictions, strike, lock-outs, fire, floods, explosions, labour disturbances, trade disputes, damage to or destruction of the goods, breakdown of machinery, shortage of labour or of raw materials or Act of God or due to any other cause whatsoever beyond the reasonable control of the Company (a “Force Majeure Event”) the Company shall be at liberty to cancel or suspend the order placed by the Customer without incurring any liability for any loss or damage arising therefrom.
10. Governing Law and Jurisdiction
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
11. Third Party Rights
The Customer and the Company agree that a person who is not a party to a Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of any Contract but this does not affect any right or remedy of a third party which is available apart from that Act.
12. Waiver
Document Ref : 2149689248 Page 10 of 10 7506/28208 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13. Assignment
The Customer shall not be entitled to assign the whole or any part of the Contract without the prior written consent of the Company.
14. Severance
(a) If any court or competent authority finds that any Provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
