1.1. Any quotation given by us is an invitation to you to make an offer only and no order placed by you with us in pursuance of a quotation or otherwise shall be binding on us unless and until it is accepted in writing by Support Comms Limited.
1.2. Any contract made with us for the sale of goods or work shall incorporate and be subject to these conditions and any representation or warranty, written or orally made or given prior to the contract is hereby expressly excluded and all brochures, specifications, drawings, catalogues, particulars, shapes, descriptions and illustrations, price lists and other advertising matter are intended only to present a general idea of the goods described therein. Any conditions stipulated by you which are in rejection of, in addition to, or inconsistent with these terms and conditions and any others agreed to in writing by us shall be deemed to be a counter offer to us and shall not be binding upon us save as agreed in writing and signed by one of our Directors. If we reject or do not accept such counter offer, then such rejection or non-acceptance shall be deemed to be a renewed offer to proceed on these terms and conditions and any others so agreed by us and accordingly performance by us shall in such event be deemed to be so governed. Any waiver or waivers by us of any one or more of these conditions does not constitute a permanent waiver of any conditions so waivered nor a general waiver of these conditions as a whole.
1.3. In the event that no quotation is given by us and we have received an order from you then provided that you shall have notice of these conditions, in such circumstances all goods are supplied and all work is done subject to these conditions.
1.4. Unless otherwise agreed in writing, we reserve the right to deliver goods of a modified design provided that any difference does not make the goods unsuitable for any purpose you have made known to us.
1.5. Where goods other than our standard products are made by us to your order, the goods may vary in accordance with normal trade tolerances from dimensions specified by you in the order and you shall not be entitled to make any claim against us in respect of any such variations.
1.6. We shall not be required to supply test certificates unless the same are requested at the time of placing the order and we may charge a fee for any certificate supplied.
1.7. Subject to the provisions of these Terms and Conditions goods supplied by us will comply with the specification and standard, if any, detailed on our despatch documents.
1.8. Without prejudice to the foregoing, no statement or undertaking contained in any British Standard, Euro norm, ISO Recommendation, or other standard or technical specification as to the suitability of the goods for any purpose shall give rise to any legal liability. You shall satisfy yourself that the goods are suitable for any product or application for which they are to be used before the goods are incorporated into such product or application.
1.9. Notwithstanding that a sample of the goods be exhibited to and inspected by you, such sample is so exhibited or inspected solely to enable you to judge for yourself the quality of the bulk, and not so as to constitute a sale by sample. You shall take the goods at your own risk as to their corresponding with the said sample, and subject to the normal variation between the bulk and sample accepted by the trade. 1.10. Without prejudice to the generality of the foregoing any particular purpose for which you propose to use the goods and services shall be deemed not to be known by or have been made known to us unless specifically recorded in a schedule signed by one of our directors. You hereby acknowledge that any purpose stated in such schedule shall be deemed to have been specified by you.
The contract between us shall be subject to the proviso that if at any time thereafter we are advised of circumstances casting doubt on your creditworthiness or satisfactory security for payment is not given on request, we may require payment of the whole or part of the purchase price from you in advance and pending such payment the contract shall be suspended. In the event of such advance payment not being made within a reasonable period stipulated by us, we may cancel your order without liability and you shall be responsible for any resulting loss to us. Notwithstanding anything herein contained to the contrary upon the happening of any of the events listed in Clause 13 all monies shall be due and payable to us automatically.
The price of all goods supplied or repairs done under the contract does not include the cost of cases or packing materials or packing or loading for shipment. All prices are ex works Birmingham unless otherwise agreed in writing and are exclusive of Value Added Tax, which will be charged at the rate applicable at the date of invoice. We reserve the right at any time prior to delivery of the goods to adjust the price to take account of any increase in the costs to us of materials, taxes, labour or services or transport or of any currency fluctuations, which increase the costs to us of goods imported into the United Kingdom. In the case of small orders we are entitled to make a minimum order charge or/and a surcharge.
Goods are despatched in accordance with your instructions and at your expense and risk.
Subject to the provisions of Clause 4 above, the risk in respect of all goods supplied under the contract shall pass to you upon the delivery of the goods, which shall be ex works, but notwithstanding such delivery, the property in the goods shall not pass to you except as provided in Clause 6.
6. TITLE RETENTION
6.1. Until the purchase price of the goods or work comprised in this or any other contract between us and all other sums whatsoever which are or shall become outstanding from you to us shall have been paid or satisfied in full (and if by cheque, then only upon clearance):
6.1.1. The property in the goods comprised in this contract remains vested in us (notwithstanding the delivery of the same and the passing of the risk therein).
6.1.2. You shall store the goods in such a way that they can be readily identified as being our property.
6.1.3. You shall on request inform us of the precise location of each item of the goods identified where applicable by its serial number, by supplying us at your expense within seven days of our request with a written schedule of the said locations.
6.1.4. You may sell the goods in the normal course of your business and may pass good title to your customer being a bona fide purchaser for value without notice of our rights on the following conditions:
22.214.171.124. We shall be entitled immediately, as a result of our ownership of the goods, to the beneficial ownership of the proceeds of such sale, which you shall accordingly hold as fiduciary for us:
126.96.36.199. You shall account to us on demand with the said proceeds of sale provided that no such demand shall be made by us in the absence of our having reasonable cause to believe that you might default in making payment for the goods on the terms contained herein;
188.8.131.52. We shall be entitled to make a claim directly against your customer for any purchase monies unpaid by such customer provided that no such claim shall be made by us in the absence of our having reasonable cause to believe that you might default in making payment for the goods on the terms contained herein:
184.108.40.206. We may at any time revoke your said power of sale in the circumstances set out in Clause 2 of these conditions:
220.127.116.11. Your power of sale shall automatically cease in any of the circumstances set out in Clause 13 of these conditions: 18.104.22.168. You shall notify us without delay of any attachment of the goods or actions by third parties, which might infringe our title to the goods.
6.1.5. Upon determination of your power of sale we shall be entitled by ourselves our servants or agents to enter upon any of your premises for the purpose of removing and repossessing such goods or their proceeds of sale and we shall be entitled to claim from you the costs and expenses incurred by us in and ancillary to the process of such removal and repossession.
6.1.6. Until title in the goods has passed to you, you shall not purport to be the owner of the goods and shall not show the goods as stock in your accounts.
22.214.171.124. You shall insure the goods against theft or any damage howsoever caused until their price has been paid or until sale, whichever shall first occur and we shall be entitled to call for details of the insurance policy.
126.96.36.199. If you shall not insure the goods or shall fail to supply details of your insurance policy on demand to us then you shall reimburse us for the cost of any insurance which we may reasonably arrange in respect of any goods during the whole or any part of the period from the date of our delivery of the goods until the date of payment to us of their full purchase price.
6.2. Nothing in these conditions shall:
6.2.1. Entitle you to return the goods or to delay payment thereof; or
6.2.2. Constitute or be deemed to have constituted you as our agent; or
6.2.3. Render us liable to any third party for any unauthorised representation or warranty made or given by you to such third party in relation to the goods; or
6.2.4. Prevent us from maintaining an action for the price notwithstanding that the property in the goods may not have passed to you.
6.3. The provisions of sub clauses 188.8.131.52., 184.108.40.206. and 220.127.116.11. hereof impose obligations upon you, which are separate from and additional to the other terms hereof and shall be regarded as a separate contract between you and us.
7.1. Any date given in the contract for despatch of the goods or completion of the work (as the case may be) shall constitute statements of expectation only and shall not be binding unless the contract otherwise expressly provides and subject to the provisions of sub clauses 7.3 and 7.4 below you shall accordingly accept delivery of the goods when tendered and the work when completed.
7.2. If notwithstanding our best endeavours we fail to despatch or deliver the goods or to complete the work by such date, such failure shall not constitute a breach of the contract and you shall not be entitled to claim compensation for such failure or for any consequential loss or damage resulting there from.
7.3. Subject to the provisions of sub clause 7.2 above, where despatch or delivery or completion of the work is delayed by more than 4 weeks beyond the date given in the contract, you shall grant us a reasonable extension period and if upon the expiry of this extension period the goods have not been despatched or delivered or the work has not been completed, you shall be entitled to withdraw from the contract upon written notice PROVIDED that if we are prevented from supplying the goods or any part thereof or completing the work by any circumstances beyond our reasonable control further performance of the contract shall be suspended for so long as we shall be so prevented or hindered. In the event of the performance of the contract being suspended for more than 3 consecutive months you may forthwith by notice in writing terminate the contract and in such circumstances you shall pay at the contract rate for all goods supplied or work done by us to the actual date of termination.
7.4. If at the date on which we are ready to deliver the goods you delay acceptance thereof for any reason whatsoever, the goods will be stored by us but you shall pay us an amount equivalent to what you would be liable to pay if the goods had in fact been delivered together with reasonable storage charges for the period of delay and the cost of any additional handling and transporting incurred. If on the expiry of 3 months after our tendering delivery the goods remain undelivered we reserve the right immediately to cancel your order. This cancellation shall entitle us to dispose of the goods and obtain from you compensation for loss of profit in addition to any other sums due to us under these conditions. 7.5. Claims in respect of incomplete or incorrect supplies must be notified to us in writing within 1 week of receipt of the consignment.
8. CONTRACTS FOR WORK
If the contract is for and includes work to be done by us whether of installation commissioning repair rectification or improvement, then unless the contract otherwise provides the following additional provisions apply thereto:
8.1. We shall be obliged to carry out such work only during normal working hours. If you request that overtime be worked and we agree thereto such overtime shall be paid by you at the rate stipulated by us.
8.2. If the work is to be carried out at your premises or on your request at the premises of any other person then you shall undertake to provide or to procure the provision of:
8.2.1. Proper and safe storage and protection of all goods, tools, plant, equipment and materials on site; and
8.2.2. Free and safe access to the site and to the place at which the work is to be carried out; and
8.2.3. All facilities and services necessary to enable such work to be carried out safely and expeditiously; and
8.2.4. If such work includes the installation of any goods, all builders’ work, foundations, cutting away and making good required and the ready availability of all plant and equipment so as to permit the goods to be tested forthwith on completion of such work.
8.3. You shall pay us the amount of any expense incurred by us by reason of any breach by you of your undertakings in sub-clause 8.2 above (but without prejudice to our rights to recover further damages therefore) and a certificate of our auditors certifying such amounts shall be conclusive and binding upon you and us.
9.1. U.K. Orders
All accounts are payable on demand and are strictly net. If no demand is made, then all accounts must be paid within 30 days of invoice date. If at the date on which we are ready to deliver the goods you delay delivery for any reason, we may present invoices for full settlement within 30 days of that date. In default of payment and without prejudice to any other rights or remedies we reserve the right to demand payment of all outstanding balances whether or not due and/or cancel all outstanding orders. Interest shall be charged on outstanding balances at the rate of 3% per month or part thereof. You shall not be entitled to withhold or set-off payment for goods delivered or work done for any reason whatsoever.
9.2. Export Orders
In the case of export orders, Clause 9.1. hereof shall apply except that payment shall be in pounds sterling through a Prime London Bank on presentation of shipping documents unless otherwise agreed in writing signed by one of our directors.
10.1. Where the contract provides for testing or inspection of the goods or work by you or on your behalf before delivery whether at our site or elsewhere, then upon our giving notice of the availability of the goods or work for inspection/testing you shall inspect and/or test the goods or work within 7 days of such notice. If you do not inspect or test the goods within the time specified or within 14 days of such testing or inspection you do not notify us in writing that the goods or work are not in accordance with the contract, specifying the matter complained of, then you shall conclusively be deemed to have accepted the goods or work as being in accordance with the contract and shall not thereafter be entitled to reject the goods or work on the grounds of anything which such testing or inspection has or would have revealed. Defects that are not detectable by a careful examination within this period shall be notified as soon as they are discovered but in any event not later than 12 months after delivery of the goods or the completion of the work.
10.2. We shall make good either by repair or replacement or renewal at our option defects which under proper storage and use appear in the goods or work within the time limits set out in sub clause 10.1 above and which arise solely from faulty material or workmanship. In the event that you shall agree with us that you will provide the labour necessary to carry out such repair replacement or renewal, then you shall be entitled to be paid for the said labour at a rate not exceeding our current labour rate. Defects due to negligence or inexpert handling by you, your servants, agents or customers shall be repaired at your expense.
10.3. The foregoing undertaking shall be in lieu of any warranties and conditions whether express or implied by statute common law or otherwise howsoever which warranties and conditions are hereby expressly excluded.
10.4. Save as aforesaid and save in respect of death or personal injury resulting from the negligence of ourselves our servants or agents, we shall not be liable for any claim or claims for direct or indirect consequential or incidental injury loss or damage made by you against us whether in contract or tort (including negligence on the part of ourselves, our servants or agents) arising out of or in connection with any defect in the goods or work or any act, omission, neglect or default (whether or not the same constitutes a fundamental breach of the contract or breach of a fundamental term thereof) of ourselves our servants or agents in the performance of the contract.
10.5. WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, NOTHING HEREIN CONTAINED SHALL OPERATE TO EXCLUDE ANY WARRANTY OR CONDITION IMPLIED BY THE UNFAIR CONTRACT TERMS ACT 1977 IN THE EVENT OF YOU DEALING AS A “CONSUMER” AS DEFINED BY SECTION 12 OF THE SAID ACT.
10.6. Our obligations contained in this clause shall apply only to you but you shall not be prevented from having recourse to them solely by reason of your selling the goods in the normal course of your business to a third party.
10.7. You shall indemnify us against all claims, damages, penalties, costs and expenses to which we may become liable as a result of negligence on the part of you your servants or agents in the installation or use of the goods or the object of our work.
10.8. You shall indemnify us for any liability, loss, claim or proceedings suffered by us arising from any injury to or death of any person arising from any defect in any product of which the goods sold hereunder form a part.
10.9. Save where advice on the contract forms part of the services offered, the Company disclaims liability for any advice given or opinion expressed by any of its officers, employees, servants or agents and the Buyer follows such advice or acts on such opinion entirely at his own risk.
10.10. You accept as reasonable that our total liability for any goods or work which are defective shall be as set out in these conditions: in fixing that limit we have had regard to the contract price of the goods, their nature, the use they will receive, and the resources available to each party including servicing facilities and insurance cover, to meet any liability.
We retain a general lien on any of your tools, moulds, equipment or other goods in our possession for any unpaid balance you may owe to us.
12. HEALTH AND SAFETY
Your attention is drawn to the provisions of Section 6 of the Health and Safety at Work Act 1974. We will make available on written request such information on the design and construction of the goods as is in our possession to ensure that as far as is reasonably practicable it is reasonably safe and without risk to health when properly used.
13. INSOLVENCY AND BREACH OF CONTRACT
In the event of any breach of these conditions not being remedied by you within 30 days of our written notice requesting such remedy or upon your entering into any composition or arrangement with your creditors or passing a resolution for winding up or entering into liquidation (whether voluntary or compulsory) or any similar arrangement or a Receiver or Administrator is appointed of your assets we shall be entitled without prejudice to our other rights hereunder to suspend all further deliveries and/or determine the contract or any unfulfilled part thereof and you shall be responsible for any resulting loss to us.
We shall use all reasonable endeavours to keep confidential all information relating to your business to the extent that we safeguard information relating to our own business for so long as and to the extent that such information is and remains unpublished and is not known to us at the time of disclosure by you or is not thereafter lawfully obtained by us from a third party.
15. PROTECTION OF OUR ‘KNOW HOW’
15.1. You, subject as hereinafter provided, shall be responsible for keeping and procuring to be kept secret and confidential all information (hereinafter referred to as ‘the know-how’) supplied by us of a secret or confidential nature provided that we shall first have given notice in writing to you of the secret or confidential nature of such information before so supplying it.
15.2. The obligations under this Paragraph shall cease within six months of the publication by us or any third party of information comprising or being part of the know-how to the extent of such publication, or of agreement by us that such information or part thereof is in the public domain.
15.3. You shall not allow the goods to be exposed to public view or allow visitors in that part of your premises where the goods are visible, except where such visit is essential to assist sales and the person in question signs an undertaking to us (which may be in the form of a visitors’ book) to keep confidential particulars thereof.
16. INTELLECTUAL PROPERTY
16.1. The copyright subsisting or which subsequently subsists in all documents, drawings, specifications, designs, programmes or any other material prepared by us whether readable by humans or by machines shall belong to us absolutely and they shall not be reproduced or disclosed or used in their original or translated form by you without our written consent for any purpose other than that for which they were furnished.
16.2. We accept no responsibility for the accuracy of drawings, patterns or specifications supplied by you. You shall indemnify us against all claims whatsoever for damages and costs and against all liability in respect of any infringement of patent or other intellectual property rights resulting from compliance with your instructions express or implied.
16.3. Notwithstanding any implied warranty or condition as to title or otherwise in relation to the goods supplied hereunder, our liability to indemnify you in respect of any claim made or threatened by a third party whether by legal proceedings or otherwise based on a right claimed under letters patent, trade mark, copyright (whether registered as a design or not) or breach of confidence, to interfere with the free use and disposal of the goods by you,
16.3.1. Shall not arise unless:
18.104.22.168. We shall have been promptly notified of the claim or threat and;
22.214.171.124. No admissions shall have been made by you such as would prejudice the defence of any such claim or threat; and
126.96.36.199. The goods shall have been designed by us or made to our design.
16.3.2. Shall be limited to damages and costs awarded by a court of competent jurisdiction in proceedings conducted in accordance with our wishes or such sums as may be paid in compromise of such proceedings with our assent.
17. SUB CONTRACTING
We reserve the right to sub-contract the fulfillment of the order (including any installation) or any part thereof.
18. FORCE MAJEURE
In the event of war, invasion, act of foreign enemy, hostilities (whether war has been declared or not) civil war, rebellion, revolution, insurrection or military or usurped power we shall be relieved of liabilities incurred under this contract wherever and to the extent to which the fulfillment of such obligations is prevented, frustrated or impeded as a consequence of any such event or by any statute, rules, regulations, orders or requisitions issued by any government department, council, or other duly constituted authority or from strikes, lock-outs, breakdown of plant or any other causes (whether or not of a like nature) beyond our control.
You shall not assign any rights under this agreement without the prior consent in writing of one of our directors.
Any notice given under the provisions of this agreement shall be in writing and shall be deemed to have been sufficiently served if delivered personally or sent by fax or telex or (within the U.K.) by first class post or (outside U.K.) by airmail, and the address of service shall be that shown in this agreement or such other address as the relevant party shall notify from time to time. Any notice served by first class post shall be deemed to have been served 48 hours after the date of despatch, any notice served by airmail shall be deemed to have been served 10 days after the date of despatch and any notice served by telex or fax shall be deemed to have been served at 10 o’clock on the business day of the recipient next following the date of despatch.
Each of your obligations herein shall be a separate and independent obligation.
The titles of the Clauses hereof shall not be taken into account in the construction hereof.
19.5. Governing Law
Any contract to which these terms relate shall be governed by English Law and the parties shall submit to the sole jurisdiction of the English Courts.