In these conditions.
(a) Albert Jagger Engineering is called 'the Company' and the individual, firm, company or other party with whom the Company contracts is called 'the Customer'.
(b) 'Goods' means the goods, articles and materials which are to be supplied by the Company pursuant to the Contract (as herein after defined):
(c) Special Goods' means goods made or adopted specifically to the Customer's designs and specifications.
(d) 'Services' shall include any design or other services to be provided by the Company pursuant to the Contract whether in relation to the supply of goods or otherwise and where the Contract is for or includes work or work and materials, the supply of labour:
(a) Any quotation or estimate given by the Company is an invitation to the Customer to make an offer only and no order of the Customer placed with the Company in pursuance of a quotation or estimate or otherwise shall be binding on the Company unless and until it is accepted by the Company;
(b) Any contract howsoever made, between the Company and the Customer ('the Contract') shall incorporate and be subject to these Conditions and receipt of goods or services by the Customer shall be deemed to be conclusive proof that the Customer has accepted these Conditions in the absence of any express or other implied acceptance of these Conditions by the Customer:
(c) Without prejudice to the generality of the foregoing all other terms and Conditions except those implied in favour of a seller which are not inconsistent with these Conditions whether or not the same are endorsed upon, delivered with or referred to in any purchase order or any other document delivered or sent by the Customer to the Company are expressly excluded. Any reference in the Contact to the Customer's order specification or like document will not be deemed to imply that any terms or conditions endorsed upon, delivered with or referred to such order, specification or like document will have effect.
Unless otherwise provided in the Contract:-
(a) The price of the goods does not include the cost of cases or other packing materials which shall remain the property of the Company and will be returnable at the Customer's expense at the request of the Company. Any such cases or packing materials not returned by the Customer within thirty days of such request shall be paid for by the Customer at their then value:
(b) The price of the goods and services is exclusive of Value Added Tax, which will be charged at the rate applicable at the appropriate tax point;
(c) The price of the goods does not include the cost of carriage to the contracted place of delivery nor does it include the cost of off-loading the goods which shall be arranged by the Customer and performed at his risk and expense. If the Customer instructs the Company to send the goods by passenger train, parcel post, air freight or other special transport the additional cost will be for the account of the Customer.
(d) If after the date of the Company's acceptance of order any increase occurs in the costs necessarily incurred by the Company in supplying the goods, and/or services including overheads which the Company has to pay or incur in the performance of the Contract, then, the amount of any increase in such costs shall be added to the Contact price. A certificate of the Company's auditor's certifying the amount of such increase shall be conclusive and binding on the Customer and the Company.
(e) Where the price has been quoted in the Company's quotation or estimate based on stated production runs and specific delivery periods, the company reserves the right to vary the price for the goods should the Customer order different quantities from those stated and/or require delivery over a different period;
(f) The cost of any variation or modification in the design, specification, materials or drawings of the goods or services, or any development thereof requested by the Customer after the date of the Company's acceptance of order shall, if such variations or modifications are accepted by the Company, be borne by the Customer.
Delivery and Risk
(a) Delivery of the goods shall be made to the Customer at the place specified in the Contact or as subsequently agreed between the parties and the risk in respect of all goods shall pass to the Customer at the time of delivery. If no place for delivery is specified or agreed, delivery shall take place at the Company's works immediately prior to loading for despatch to the Customer. Notwithstanding such delivery, the property in and title to the goods shall not pass to the Customer except as provided in Condition 5. Where the Company does not deliver on its own transport and unless otherwise agreed in writing, the Company shall on behalf of the Customer and the Customer's expense arrange for the carriage of the goods and the carrier selected by the Company shall be the agent of the Customer. Special notice is directed to the fact that in accordance with the provisions of Section 32 of the sale of Goods Act 1979 delivery to the carrier will, in such circumstances constitute delivery to the Customer;
(b) If delivery is to be made at the premises of the Company's warehousemen or other bailee, delivery shall be deemed to have been made by the delivery to the Customer by the Company of an order on, or by the transfer to the Customer of the warrant of such warehouse-man or bailee for the release or delivery of the goods: (c) The Company shall be entitled to make delivery of the goods by instalments and to Invoice the Customer for each instalment dispatched;
(d) Where damage to or loss of the goods occurs before delivery thereof to the Customer the Company undertakes (subject as provided below) to replace or (at its discretion) to repair free of charge any goods so damaged or lost in which event the time for delivery of the damaged or lost goods shall be extended for such periods as the Company is conditional upon:-
(I) the Customer giving written notice of such damage or loss with reasonable particulars there of to the Company and to the carrier (if other than the Company) within seven days of the receipt of the goods or in the case of total loss within three days of receipt of the Company's or carrier's delivery advice or other notification of despatch; and
(II) the Customer is requested by the Company and at the Customer's cost returning damaged goods to the Company's works within one month of receipt thereof;
(e) Where the goods are not manufactured or supplied directly by the Company and are delivered direct to the Customer or collected by the Customer from the manufacturer or supplier the Company shall not be liable for any damage to or loss of goods whatsoever or whensoever occuring;
(f) Save as expressly provided in this Condition, the Company shall not have any liability whatsoever for or in connection with any damage to or loss of the goods in transit to the contracted place of delivery.
(a) Title to and property in the goods shall remain vested in the Company (notwithstanding the delivery of possession of the same and the passing of the risk therein to the customer) until;
(i) the price of the goods and/or services comprised in this contract; and
(ii) all other money due from the Customer to the Company on any other account has been paid or satisfied in full.
(b) Until the title to and property in the goods pass to the Customer as aforesaid the following provisions shall apply:
(1) The Company may at any time without prior notice to the Customer repossess and resell the goods if any of the events specified in Condition 18 hereof shall occur or if any sum owed by the Customer to the Company under this or any such other Contract is not paid on the due date for payment. For the purpose of exercising its rights under this sub-paragraph (1) the Company, its employees or agents together with all vehicles and plant considered by the Company to be necessary shall be entitled at any time without prior notice to the Customer to free and unrestricted entry upon the Customer’s premises and/or other locations where any of the goods are situated.
(2) The Customer shall store the goods in a proper manner without charge to the Company and ensure that they are clearly identified as belonging to the Company. Without prejudice to sub-paragraph (1) of this Condition, the Company shall be entitled to examine the goods in storage at any time during normal business hours and upon giving the customer reasonable notice of its intention to do so.
(3) The rights and remedies conferred upon the Company by this Condition 5 are in addition to and shall not in any way prejudice, limit or restrict any other rights or remedies of the Company under the Contract.
(a) The Company will use its reasonable endeavours to comply with any date or dates for despatch or delivery of the goods and for the supply or completion of the services (as the case may be) as stated in the Contract, but unless the Contract otherwise expressly provides such date or dates shall constitute only statements of expectation and shall not be binding. If the Company having used its reasonable endeavours fails to despatch or deliver the goods or to supply or complete the services by such date or dates, such failure shall not constitute a breach of the Contract nor shall the Customer be entitled to treat the Contract as thereby repudiated or to rescind it or any related contract in whole or in part or claim compensation for such failure or for any consequential loss or damage resulting therefrom;
(b) If the Company is prevented or hindered from performing the Contract or any part thereof by any circumstances beyond its reasonable control including (but without limiting the generality of the fore going) strikes, lock-outs or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure, fire, flood, civil commotion or any cause of whatsoever kind and whenever occurring, further performance of the Contract shall be suspended for so long as the Company is so prevented or hindered provided that if the performance of the Contract is suspended for more than three consecutive calendar months the Customer shall be entitled by notice in writing to the Company forthwith to terminate the Contract or to cancel any outstanding part thereof and in such circumstances the Customer shall pay at the Contract rate for all goods and services supplied and materials used by the Company to the actual date of such termination. The Company shall not have any liability to the Customer for any direct or consequential loss or damage suffered by the Customer as a result of the Company’s inability to perform its obligations under the Contract by reason of any such circumstances;
(c) Where goods are delivered or services are supplied by instalments each such by instalment shall be deemed to be sold or supplied under a separate contract to which these Conditions shall apply (mutatis mutandis) and save as provided in Condition 9
(d) no default in respect of any one instalments shall affect or prejudice due performance of the Contract as regards any other instalments; (d) Where goods are to be supplied or delivered by the Company in accordance with periodic delivery schedules or similar notification of the delivery requirements of the Customer, the customer shall not be entitled to cancel or vary any such delivery schedule or requirement which is expressed by the Customer to be a firm requirement without the prior written consent of the Company and the Company shall be entitled to reimbursement of any additional costs and expenses incurred or suffered as a result of such cancellation or variation;
(e) When expedited delivery or completion is agreed to by the Company and necessitates overtime or other additional costs, the Customer shall reimburse the Company for the amount of such overtime payment or other costs. Where postponement of delivery or completion is agreed by the Company the customer shall, if required by the Company pay all costs and expenses (including a reasonable charge for storage and insurance of the goods and interest on the contract price) occasioned thereby but the goods shall be held at the Customer’s risk as from the time of postponement;
(f) If performance of the Contract is suspended at the request of or delayed through default of the Customer including (without prejudice to the generality of the foregoing) lack of, incomplete or incorrect instructions or refusal to collect or accept delivery of the goods or services for a period of thirty days, the Company shall be entitled to payment at the Contract rate for services already per formed, goods supplied or ordered and any other additional costs thereby incurred including storage insurance and interest PROVIDED THAT if the customer fails to collect or accept delivery of the goods or any part thereof within 28 days of written notification from the Company that the goods are ready for collection or delivery, the Company shall be entitled (without prejudice to its other remedies under the Contract for such breach) to sell or at its option destroy the goods and to apply the proceeds of sale thereof if sold and the scrap value if destroyed towards payment of all sums due to the Company under the Contract;
(g) The Company shall be entitled without the prior approval of the Customer to assign, sub-contract or sub-let the Contract or any part thereof, but the Customer shall not be so entitled without the prior approval of the Company.
(a) Without prejudice to the Customer’s rights under Condition 12, the Customer shall be deemed to have accepted the goods as being in conformity with the Contract and shall be bound to pay for them, unless written notice of rejection thereof is received by the Company within thirty (30) days of delivery. Save in the circumstances referred to in Condition 12 goods accepted by the Customer can not subsequently be returned and any claim which the Customer might otherwise have shall be deemed to have been waived;
(b) If after notice of rejection has been given, the customer deals with the goods as owner thereof or if any conduct of the Customer is inconsistent with such rejection or with the ownership of the goods by the Company, the Customer shall be deemed to have accepted the goods and be bound to pay for them.
Each Contract shall be subject to the Company being satisfied as to the Customer’s credit agency check, of which will be retained on file and renewed on a yearly basis.
(a) Unless the Contract otherwise provides, the Contract price for the goods and/or services shall be payable in cash not later than the last day of the month following the month of delivery or supply of the goods and/or services;
(b) Where goods and/or services are delivered or performed by instalments, the Customer shall be obliged to pay for each instalment upon the terms sets out in sub-paragraph (a) of this Condition;
(c) The time stipulated for payment shall be of the essence of the Contract and failure to pay within the period specified shall entitle the Company upon the expiration of seven days’ notice in writing to the Customer to suspend further performance of the Contract pending payment and in addition the Company shall be entitled without liability wholly or partially to cancel the Contract or any other contract between the Company and the Customer without prejudice to any other remedy available to the Company;
(d) Unless otherwise agreed in writing the Customer shall not be entitled to set off against any monies due to the Company under the Contract, any amount claimed by or due to the Customer from the Company whether pursuant to the Contract or on any other account whatsoever;
(e) The Company shall be entitled to interest as well after as before judgment on any part of the Contract price not paid by its due date from that date until actual payment at the rate of three (3) per cent per annum above the Base Lending Rate of Lloyds Bank Plc prevailing from time to time during such period.
(f) Where the Company specifies that payment will be made by letter of Credit, the Customer must establish and maintain in favour of the Company an irrevocable and unconditional Letter of Credit with or confirmed by a bank in England satisfactory to the Company. All bank charges (whether of the overseas or United Kingdom bank) in connection with the Letter of Credit and the opening thereof shall be borne by the Customer. If for any reason the bank is liable to make payment to the Company under any Letter of Credit established for that purpose fails to do so, the Customer shall nevertheless remain liable to pay for the goods supplied and/or services performed.
Drawings and Specifications
(a) Unless it is expressly stated in the Contract that any figures or statements therein or in the Company’s catalogues, sales literature or in any relevant drawings or other documents supplied by the Company as to the performance of the goods are guaranteed to be accurate, such figures and statements shall be approximate and subject to a margin of five (5) per cent. The Company gives no guarantee or representation that the goods will in all cases be identical with the illustrations weights and dimensions specified in such catalogues and literature drawings or other documents due to improvements and modifications to the goods or their specifications that may be made from time to time. The Company will notify the Customer in writing of any material alterations to any specifications relating to the goods and the Customer shall be deemed to have accepted such alterations unless notice in writing to the contrary is received by the Company within ten (10) days of the Company’s notice to the Customer.
(b) If in the Contract the Company expressly guarantees the accuracy of such performance, figures or statements (whether subject to specific margins or otherwise) then in the event of the goods after delivery installation or commissioning failing to achieve and comply with the same, the Company shall thereafter be entitled to a reasonable period and to reasonable facilities to enable it to bring the goods up to the guaranteed standard of performance and the contractual time for delivery of the goods or the installation or commissioning thereof shall be extended for such reasonable period.
If the Contract provides for testing and inspection of the goods or services, such testing and inspection shall be conclusive. If requested in writing arrangements will be made for the Customer’s representative to be present at such tests and inspection. The Customer will be deemed to have accepted the goods and services as satisfactory after the completion of such testing and inspection unless written notice to the contrary specifying the matters complained of is received by the Company within ten (10) days of completion of such testing and, or inspection.
(a) Where any goods or services (or any part thereof) are shown to the reasonable satisfaction of the Company, to be defective by reason of faulty material or workmanship or (in the case of goods other than Special Goods) design, within a period of twelve (12) months from the date of their original despatch or supply, (fair wear and tear excepted) the Company shall at its sole option:-(
(1) deliver replacement goods and, or supply further services to the Customer free of charge; and/or
(2) refund to the Customer the Contract price of such goods and/or services; and/or
(3) require the Customer to retain the goods and/or services and grant to the Customer a reasonable allowance in respect of such defects PROVIDED that :-
(i) the Customer notifies the Company in writing within fourteen days of becoming aware of any such defect; and
(ii) if so required by the Company all defective goods are first returned to the Company’s premises carriage paid by the Customer;
(iii)the goods have been properly and correctly stored and/or used by the Customer;
(iv) and the liability of the Company under this paragraph
(a) shall be accepted by the Customer in substitution for and to the exclusion of any other claims for direct loss which the Customer has or may not have;
(b) The liability of the Company for any claim or claims other than those falling within paragraph (a) above for direct injury, loss or damage made by the Customer against the Company whether in contract or in tort (Including negligence on the part of the Company, it’s servants or agents) arising out of or in connection with any defect in the goods and/or services or any act, omission, neglect or default (whether or not the same constitutes a fundamental breach of the Contract or the breach of a fundamental term thereof, of the Company its servants or agents in the performance of the Contract (including, without limiting the generality of the foregoing, breach of any condition or warranty whether express or implied by statute, common law or otherwise howsoever) shall be limited to the contract price of such goods and/or services;
(c) The Company shall not be liable for any claims for economic loss, loss of production, loss of profit, loss of opportunity, loss of bargain or other indirect or consequential injury loss or damage made by the Customer against the Company whether in contract or in tort (including negligence on the part of the Company its servants or agents) arising out of or in connection with any such defect, act, omission, neglect or default referred to in sub-clause (b) of this Clause:
(d) Nothing in these Conditions shall :-
(1) l limit or exclude the liability of the Company in respect of death or personal injury resulting from the negligence of the Company, its employees or agents ; or
(2) limit or exclude the respective rights and remedies of the Company and the Customer under the Unfair Contract Terms Act 1977; or
(3) exclude the conditions and warranties implied by Section 12 of the Sale of Goods Act1979 and, where the Customer deals as a consumer, the conditions implied by Sections 13 to15 inclusive of the said Act and by sections 3 and 4 of the Supply of Goods and Services Act 1982.
(a) The Company reserves the right to supply ten (10) per cent more or less than the exact quantity of Special Goods ordered such overs and shortages to be charged for or deducted pro rata; the
(b) (i ) Company shall be entitled to reject any materials supplied or specified by the Customer which the Company in its judgement considers unsuitable. Additional costs incurred by the Company if such materials are judged to be unsuitable, will be charged to the Customer; (ii) Quantities of materials supplied by the Customer shall be adequate to cover normal spoilage.
(c) The Company accepts no responsibility for the accuracy or suitability of patterns, designs, tools, drawings, particulars or specifications relating to Special Goods which are supplied by the Customer and the Company shall be entitled to accept the same as being without defect. The Company shall have no responsibility for the quality or fitness of Special Goods for any particular purpose whether or not such purpose is made known to the Company and the conditions implied by Sections 13 to 15 inclusive of the Sale of Goods Act 1979 and by Sections 3 to 5 inclusive, 7 to 10 inclusive and 13 to 15 inclusive of the Supply of Goods and Services Act 1982 shall be excluded. The Customer under takes to indemnify the Company and to keep the Company fully and effectually indemnified against all actions, proceedings, claims, costs, loss, damage or expense whatsoever arising in contract or tort which the Company may suffer or incur as a result of any defect in the Special Goods whether due to quality, design, fitness for purpose or in any other way whatsoever unless the same is due directly to the negligence of the Company, its employees or agents ;
(d) The Customer represents and warrants to the Company that neither the Special Goods nor the manufacture thereof by the Company will infringe any patent, copyright, registered design or any other proprietary right of any third party and the Customer further undertakes to indemnify the Company and keep the Company fully and effectually indemnified against all actions, or proceedings, claims costs, loss, damage or expense whatsoever in respect of any infringement by the Company of any patent, or copyright, design, trademark or any other proprietary right which the Company may suffer of incur in connection with the execution and performance of the Contract and such indemnity shall extend to any amount including costs paid by the Company (upon legal advice) in settlement of any claim out of Court.
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.
Without prejudice to any other rights and remedies which the Company may have under Contract, the Company shall in respect of all debts of the Customer to the Company have a general lien on all goods and property belonging to the Customer in its possession (whether worked on or not) and shall be entitled upon the expiration of fourteen days’ notice to the Customer, to dispose of such goods or property as it thinks fit and to apply any proceeds of sale thereof towards the payment of such debts.
Health and Safety
(a) The attention of the Customer is drawn to the provisions of Section 6 of the Health and Safety at Work etc. Act 1974, et al. The Company will make available such information as is appropriate relating to the goods and materials supplied as is in its possession to ensure that as far as is reasonably practicable they are safe and without risk to health when properly used ;
(b) The Customer hereby undertakes pursuant to Section 6 (8) of the Health and Safety at Work etc. Act 1974, et al, to take such measures as are communicated in writing to the Customer by the Company and to take such other steps as are sufficient to ensure, so far as is reasonably practicable, that the goods will at all times be safe and without risk to health when properly used. The goods and materials shall not be regarded as properly used when they are used without regard to any relevant information or advise relating to their use which has been communicated to the Customer pursuant to this clause;
(c) The company shall not be liable to the Customer in any civil proceedings brought by the Customer against the Company under any Health and Safety Regulations made pursuant to the Health and Safety at Work etc. Act 1974 , et al, where such exclusion of liability is permitted by law;
(d) The Customer shall indemnify and keep indemnified the Company in respect of any liability, monetary penalty or fine in respect of or in connection with the goods or services incurred directly or indirectly by the Company under the Health and Safety at work etc. Act 1974, et al, or any regulations orders or directions made thereunder.
Insolvency and Breach
If any of the following events occur, are threatened or in the opinion of the Company are reasonably likely to occur :-
(a) The Customer shall commit any breach of the Contract and shall fail to remedy such breach (if capable of remedy) within a period of thirty days from receipt of notice in writing from the Company, requesting such breach to be remedied; or
(b) Any distress or execution is levied upon any of the goods or property of the Customer; or
(c) The Customer (or where the Customer is a partnership any partner thereof) offers to make any arrangements with or for the benefit of its or his creditors or commits any act of bankruptcy; or
(d) The Customer (being a Limited Company) has a receiver appointed of the whole or any part of its undertaking property or assets or an order is made or a resolution is passed or analogous proceedings are taken for the winding up of the Customer (save for the purpose of reconstruction or amalgamation without insolvency and previously approved in writing by the Company) the Company shall remain thereupon be entitled without prejudice to its other rights hereunder, forthwith to suspend further performance of the Contract and any other contract between the Company and the Customer until the default has been made good to determine the Contract or any other contract between the Company and the Customer or any unfulfilled part thereof or at the Company’s option to make partial supplies of goods and/or services. Notwithstanding any such termination, the Customer shall pay to the Company at the Contract rate for all work done materials used and goods delivered up to and including the date of termination and shall in addition indemnify the Company against any resulting loss, damage or expense incurred by the Company in connection with the supply or non-performance of the contract including the cost of any material, plant or tools used or intended to be used therefore and the cost of labour and other overheads including a percentage in respect of profit.
If at any time any one or more of these conditions (or any paragraph, sub-paragraph or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted herefrom and the validity and/or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired thereby.
The rights and remedies of the Company under the Contract shall not be diminished waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies.
These conditions and each and every Contract made pursuant thereto shall be governed by and construed in all respects in accordance with the Laws of England and the Company and the Customer irrevocably submit to the exclusive jurisdiction of the English Courts.
FOR THE ATTENTION OF ACCOUNTS DEPARTMENT
Our terms are net monthly a/c payment due by the end of the month following date of invoice. Please comply as this enables us in turn to pay for raw materials and similar and give continuity of supply. You are requested to send remittances or queries concerning accounts to our Head Office, Walsall. The title to the goods shall not pass until payment has been made.
IMPORTANT - The carriers will not recognise any claim for non-delivery of goods lost in transit if they are not notified by the senders within fourteen days from the date of despatch. We cannot accept liability unless we are advised in time to allow us to comply with the above conditions. No responsibility can be accepted by us for either shortages or damage unless you advised carriers same day as goods received with copy advice to us. NO PACKAGES can be credited unless returned in good condition, carriage paid, within 4 weeks of Date of Invoice, with advice to us. A 10% handling returns charge will be imposed on items correctly supplied against order but returned to us