The Customer warrants that unless it otherwise instructs the Company in writing it is and shall throughout the Services remain the owner of the Goods.
2.CUSTOMER’S UNDERTAKINGS AND INDEMNITY
The Customer undertakes that:-
- When presented for the Services, the Goods shall be securely and properly packed in compliance with any statutory regulations or official or recognised standards and in such condition as not to cause damage or injury or the likelihood of damage or injury to the property of the Company or any persons on the premises of the Company or to any other goods, whether by spreading of damp, infestation, leakage or the escape of fumes or substances or otherwise howsoever.
- Before presentation of the Goods for the Services, the Customer will inform the Company in writing of any special precautions necessitated by the nature, weight or condition of the Goods and of any statutory duties specific to the Goods with which the Company may need to comply.
- It will reimburse and fully indemnify and keep indemnified the Company against all duties and taxes, increased costs of labour, foreign exchange fluctuations, currency regulations, increased cost of materials or other costs beyond the Company’s control that the Company may be required to pay in respect of the Goods, except to the extent that the Company is required to accept responsibility for them in accordance with Condition 4.
- It has paid all duties, taxes, foreign exchange fluctuations and currency regulations to the relevant authority whether in the United Kingdom or elsewhere in relation to the importation of the Goods.
- Unless prior to delivery of the Goods to the Company the Company receives written notice containing all appropriate information, none of the Goods are or contain substances the storage of which would require the obtaining of any consent or licence or which, if they escaped from their packaging, would or may cause pollution of the environment or harm to human health.
3(i) Except as provided in Condition 3(iii) below, the Company doers not insure the Goods and the Customer shall make arrangements to cover the Goods against all risks to the full insurable value thereof.
3(ii) The Company excludes liability for any claim relating to loss, damage, deterioration, delay, non-delivery, mis-delivery, unauthorised delivery or miscompliance with instructions of or to or in connection with the Goods (“Claim”). This exclusion does not apply if a Claim arises from the neglect or wilful act or default of the Company, its employees acting in furtherance of their duties as employees) or sub-contractors (acting in furtherance of their duties as sub-contractors). In this case the Company’s liability shall not exceed a total of £10 per tonne weight of that part of the Goods in respect of which a claim arises. In no case shall the Company be liable for any loss of profit or indirect or consequential loss of any kind.
3(iii) The limit of liability in Condition 3(ii) may be increased by written notice, in which event:-
- The Customer shall give written notice to be received by the Company at least 7 days before the date on which the increased liability is required to be operative and shall specify the nature and the maximum value of the Goods to be at risk inclusive of duty and taxes paid or payable thereon. Under no circumstances will the Company’s liability to the Customer exceed the value given under this notice.
- The Customer shall accept an increase in the Company’s charges to cover the costs incurred in insuring against the Company’s additional liability hereunder.
- The Company shall not be liable for any Claim unless it has received written
notice of the Claim from the Customer within 21 days (7 days in the case of
sub-contract carriage) of the cause of the Claim coming to the Customer’s
knowledge or of the Goods being delivered by the Company to or to the use of
the Customer, whichever is later.
- No legal proceedings may be brought against the Company unless they are issued and served, and no counterclaim may be raised unless full written details are received by the Company, within 9 months of the event giving rise to the Claim.
3(v) The Company shall not be liable hereunder for any loss or damage to the
extent that the same is caused or contributed to by a breach of any of the
Customer’s warranties or undertakings (or by any of the circumstances by
virtue of which the Company is relieved of its contractual obligations in
accordance with Condition 10).
4.EXCLUSION OF LIABILITY
4. 1 The Company, whilst making every effort to comply with any instructions of the Customer including anticipated delivery dates for the Goods, cannot accept any liability for late delivery of the Goods (the time for which shall not be of the essence of the Contract) on the basis that the Goods are delivered by Carrier and the Services in relation to the Goods and the cost of those Services are a small percentage of the value of the Goods, which have been manufactured by a third party.
4.2 Liability for late delivery and/or damage or loss during transit shall be the responsibility of the Carrier and any such claims made by the Customer shall be against the Carrier. However, the Company agrees that it will assign such rights as it may have (if any) against the Carrier to the Customer upon written notice in accordance with Condition 4.4(a) from the Customer that the Goods have been lost, damaged or delayed during transit.
4.3 The Company shall not be liable to the Customer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract or these Conditions.
- The Company shall not be liable for any breach under the Contract or these Conditions unless it has received written notice including all material details of the breach from the Customer within 21 days (7 days in the case of a breach during delivery both to the Company and the Carrier) of the breach, reasonably coming to the Customer’s knowledge in the case of latent defects or of the Goods being delivered to the Customer in the case of patent defects.
- The Goods in respect of a claim must be preserved as delivered for a period of 14 days from notification of a written claim at which time the Company shall be at liberty to attend at the Customer’s premises and inspect the Goods or may, at the Customer’s cost, require the Goods to be returned to its premises for inspection.
- No legal proceedings may be brought against the Company unless they are issued and served, and no counterclaim may be raised unless full written details are received by the Company, within 6 months of the Customer’s knowledge or delivery.
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch to the Carrier from the Company’s premises shall be conclusive evidence of the quantity received by the Customer at its premises or at the Customers nominated destination on delivery unless the Customer can provide conclusive evidence proving the contrary both to the Company and the Carrier.
5.2 If for any reason the Customer or persons at the nominated destination will not accept delivery of any of the Goods when they are delivered by the Carrier, or the Carrier is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
- the Goods will be returned to the Company but shall be deemed to have been delivered; and
- the Company may continue to store the Goods as previously until delivery whereupon the Customer will be liable for all related costs and expenses (including without limitation and additional storage and insurance);
- If, after a period of 14 days, the Customer still has not taken and/or arranged for delivery of the Goods the Company may sell the Goods at the best price readily obtainable and (after deduction of all its costs and expenses) account to the Customer for the excess over the price for the Services or charge the Customer for any shortfall below the price for the Services.
6 EMPLOYEES AND SUB-CONTRACTORS The Company shall be entitled to sub-contract all or any part of the Services and in this event these Conditions shall apply to such Services. The Company shall be entitled to sub-contract with others for the security, cleaning, maintenance, repair and other services and works at the premises where the Goods are located.
7.CHARGES, PAYMENTS AND TERMINATION
7.1 The Company reserves the right by giving notice to the Customer at any time before delivery to increase the price of the Goods to reflect any increases in the cost to the Company which is due to any fact beyond the control of the Company (such as without limitation, foreign exchange, fluctuation in currency, regulations, operation of duties, significant increase in cost of labour, materials or other costs of manufacture) provided always if such increase shall represent more than 5% of the cost of the Goods (excluding VAT) the Customer shall have the right to cancel the Contract by giving notice to the Company of such its decision within two weeks of the date of the Company’s notice of increase. If the Company receives no such Customer’s notice within the said period the Customer shall be deemed to accept the increased price.
7.2 The cost of despatching Goods by Carrier or otherwise at the request of the Customer will be charged to the Customer in addition to which the Company reserves the right to pass on any supplementary charges incurred in arranging Special Delivery through the Carriers at the Customer’s request. Details are available on request through the Sales Office of the Company.
7.3 The Company and the Customer shall have the right to terminate the agreement at any time by giving one month’s notice in writing to the other party or to terminate the agreement forthwith in any of the following events.
7.3.1 The other has a receiver, administrative receiver, liquidator or provisional liquidator appointed over all or part of its assets;
7.3.2 An event takes place which would entitle the appointment of a receiver over the assets of the other or which could cause any floating charge on its assets to crystallise;
7.3.3 A petition is presented or an order is made or a resolution is passed for the winding up of the other or a meeting is convened for the purpose of winding it up;
7.3.4 An administration order is made or a petition for such an order is presented in respect of the other;
7.3.5 The other has stopped payment of, or is unable to pay, its debts;
7.3.6 The other enters into an arrangement with its creditors or some action is taken to terminate its business;
7.3.7 If any event analogous to the events described in clauses 7.3.1 to 7.3.6 shall occur in any jurisdiction in which the other is incorporated or resident or carries on business or if the other ceases for any reason to carry on business.
The Company and the Customer may terminate the Services immediately by notice in writing to the other in the event that such other shall have committed a breach of the Services which in the case of a breach capable of remedy shall not have been remedied within forty five days of the receipt by such other of a notice specifying the breach and requiring its remedy.
7.3.8 If the Company or the Customer persistently breaches the agreement the other has an absolute right to terminate the Services.
8. TERMS OF PAYMENT AND LIEN
8.1 The customer will pay within 30 days of receipt of invoice. The company will normally invoice on a monthly basis within seven days after month end. If the Customer fails to pay all or part of its outstanding account at the due date and any Goods of the Customer remain in the possession of the Company thus creating a general lien, by operation of law, the Company shall have the right, upon giving 14 days notice of its intention to do so, to sell the Goods, and failing repayment during that period to sell sufficient quantity of the Goods to discharge the amount due including any accrued interest, costs, expenses or losses of the Company. If any sums remain after such discharge this shall be paid to the Customer. Nothing in this Condition shall create a contractual lien.
9. GOVERNING LAW. All the contracts between the company and the customer shall be governed in all respects by the laws of England and the customer hereby submits to the exclusive jurisdiction of the English courts.
10. FORCE MAJEURE The Company shall not be liable to the Customer or be deemed to be in breach of the Contract or these Conditions by any reason of any delay in performing, or any failure to perform any of the Company’s obligations in relation to the Goods or the Services if the delay or failure was due to any cause beyond the Company’s reasonable control and without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the reasonable control of the Company:-
- Act of God, explosion, flood, tempest, fire or accident.
- War or threat of wars sabotaging civil disturbance or requisition.
- Acts restrictions, regulations, bylaws, prohibitions or measures of any kind.
- Import and export regulations or embargoes.
- Strikes, lockouts or other industrial actions or trade disputes, whether involving employees of the Company or any third party.
- Difficulty in obtaining raw material, labour, fuel parts or machinery.
- Unavailability of materials from the usual source of supply.
In such circumstances the Company shall be entitled at its option to give notice to the Customer declaring that the Company is unable to complete the work in the time specified. Provided that if the event continues for a period in excess of 3 months the Customer shall be entitled to give the Company notice to terminate the Contract.