Throughout these conditions “the Company” is to be taken to mean NDC and “the customer”, “the purchaser” or “the buyer” is to be taken to mean any person, business, company or organisation to whom the Company directs a quotation or with whom it is involved in any contract of sale of goods or provision of services. Clauses of the contract are always to be construed in such a way as to provide the greatest benefit and protection to the Company and headings used in relation to the terms and conditions are to facilitate reference and are not to affect the interpretation or construction of the contract.
2. Statutory and Other References
Statutory and other references in these conditions are to refer to current statutes and rules and to any amendments in relation to them.
3. Terms to be Essence
Where it is not clearly indicated that terms are to be of the essence, then none-the-less it is to be understood that any obligations imposed upon the buyer are to be taken as being of the essence.
4. Scope of Agreement
The terms and conditions of this contract are to apply in preference to and supersede any terms and conditions in negotiation or at any stage in the dealing between the Company and buyer with reference to the goods or services to which this contract relates. They represent the entire agreement between the parties except insofar as any other rules of common law or equity might operate for the sole benefit of the Company. Complete Plant Maintenance Engineering Limited as to which the Company shall be the sole judge. They constitute the only conditions upon which the Company is willing to supply goods and services to any customer to whom a quotation, acceptance of order or contract is addressed. These terms and conditions shall prevail over any terms and conditions in the purchaser's order or such other documents as may be furnished by the customer except where specifically agreed to the contrary in writing by a duly authorised executive of the Company and any subsequent variations, amendments, modifications, deletions or alterations must be similarly agreed.
5. Effect of Representations
Representations made prior to the formation of the contract, including any literature, descriptions, specifications, oral or written statements or any combination, you hereby acknowledge were not relied on by yourself. You hereby acknowledge that you have not entered into this contract on the basis of any representation, made orally or in writing, by the Company, its employees or agents and that you relied on your judgment alone when entering into this contract.
Where the Company's contracts, are not consumer contracts as that term is defined in the Unfair Contract Terms Act 1977, they are not to be taken to include terms and stipulations that would be otherwise implied by the Sale of Goods Act 1979, the Supply of Goods (Implied Terms) Act 1973 and the Supply of Goods and Services Act 1982 and any such terms and stipulations are hereby excluded. All implied terms, conditions or warranties statutory, common law or otherwise, as to merchantable quality of the goods, fitness of the goods for any purpose whatsoever (whether made known to the seller or not), and correspondence of the goods with description, are hereby excluded from the contract. Furthermore no liability whatsoever shall be incurred by the seller in respect of any express term of the contract that relates or refer in any way to quality of the goods, the fitness of the goods for any purpose whatsoever or correspondence of the goods to any description. However, the provisions of this paragraph are not to be taken to apply to consumer contracts.
7. Negligence Liability
Except in any case where a negligent act or omission on our part results in death or personal injury, we accept no liability for any loss, damage or injury caused to you or your property, or property for which you are responsible, caused directly or indirectly by any such act or omission.
8. Limit of Liability
The Company's liabilities in relation to goods or services supplied shall be construed subject of these Conditions and in circumstances where the Company is prepared to accept liability in relation to such goods or services supplied the amount involved shall in no circumstances exceed the contract price. As an alternative the Company may, at its discretion, repair any damage or defect or replace any defective goods. If any part of these conditions hereto, then a Court or competent tribunal shall have the power to strike out such part, whether an entire condition or conditions, or some part or parts thereof, and enforce the conditions as if such part or parts aforesaid had not been included. However, the buyer agrees and is taken to have accepted that these terms satisfy the test of reasonable specified in the Unfair Contract Terms Act.
9. Variation and Tolerance
The buyer in appropriate circumstances, is to accept reasonable tolerance and the Company reserves the right to make alterations to the goods to be provided under this contract where it has good reason to do so and where the Company considers it reasonable in all circumstances to do so.
Contract dates for the delivery or collection of the goods are to be accepted by the buyer as estimates only and no action will lie for failure on our part, however caused, to meet any such dates. The seller reserves the right to make any delivery charges that may be reasonable in the circumstances.
11. Failure to Accept Delivery
Where the buyer fails to accept delivery of the goods, or fails to arrange for their collection, the Company may, without prejudice to any other right or may have, make such of the following provisions as it considers appropriate: -
- Store the goods at the buyer's expense;
- Insure the goods at the buyer's expense;
- Make additional charges for any transport costs;
- Proceed to sell the goods, on giving written notice to the buyer, and any loss suffered by ourselves shall be a debt owed by you to the Company as though it were part of the invoice price;
- Maintain a lien on any property of the buyer's with a right to sell any such property, which is in our possession, until such time as the buyer has paid in full all amounts under the clause. Where the Company exercises its right to sell, it will account to the buyer for any surplus after allowing for all amounts outstanding and for any costs and expenses incurred in relation to the goods.
The foregoing provisions are also to apply where delivery or collection of the goods has been delayed or deferred at the buyer's request, even though the Company may have agreed to such a request.
12. Effect of Delivery
Where the goods have been received by the buyer, whether or not such receipt is acknowledged in writing, the buyer hereby agrees that on receipt he will be deemed to have examined the goods and to have accepted that they meet fully the obligations imposed by this agreement on the Company.
13. Product Information
Any information provided for you by the Company and relating to the use or suitability of the contract goods, whether requested by you or not, is to be accepted by you as accurate and suitable for the purpose in question and will rise to no liability on the Company's part, save where negligence on the part of the Company leads to death or personal injury. Where specifications, drawing etc., are provided by you, you accept full responsibility for the accuracy of such information and the Company is not to be held in any way liable where such information proves to be erroneous or inaccurate. However, where such exclusion of liability is deemed invalid under the Unfair Contract terms Act, or under any other statute or rule of law, then the Company will accept liability in an amount not exceeding the contract price. This clause is taken to apply to representations as defined in Clause 5 but not limited to such representation.
The buyer's obligation under the contract are absolute but where the Company is prepared to accept a contract cancellation at the buyer's request the Company will have a right to make a charge to cover handling, administrative costs and any other costs that might reasonably be incurred.
15. Customer's Handling and Treatment of Goods Supplied
Where goods are supplied to the customer, or work is undertaken on the customer's goods, the Company accepts no liability where subsequent treatment, fitting or any misuse of the goods by the customer causes such goods to become in any way defective.
Where the Company requires the contract, or any part of it, to be carried out by an assignee, sub-contractor or any other party so nominated, the buyer will co-operate fully in the performance of the contract. The buyer also agrees that no liability shall fall on the Company in any way whatsoever arising from, or related to, any goods provided by and work undertaken by such third party and that any remedies the buyer wishes to pursue must be pursued directly with the third party. The contract cannot be assigned by the buyer without the prior consent of the Company in writing. Where the Company consents to such assignment, the buyer will nonetheless remain fully liable and will be required to ensure the due performance of the contract.
17. Passing of Risk
Without prejudice to the provisions of Clause 18, the risk in the goods supplied to the buyer shall pass to the buyer when the goods are unconditionally appropriated to the contract by either party.
18. Reservation of Title
The property in the goods does not pass until the purchaser has paid the entire invoice under any contract with the Company. Until such price is paid in full goods held in possession are held by you as bailee on the Company's behalf.
As bailee on the Company's behalf you will ensure that: -
- The goods will be stored separately and be identifiable as belonging to the Company;
- The goods are covered by your policy of insurance and you will assign the benefits of such policy to the Company at its request;
- Any monies received by you for goods sold or supplied to you by the Company, will be retained in a separate account and you will hold such monies as trustees on the Company's behalf;
- The goods are maintained in a usable condition;
- The Company shall, subject to written notice, be entitled to enter any premises where the contract goods are stored and take possession of such at any time before full payment is received;
- Where the contract goods, or any part of such goods, are incorporated with any other goods, you will make every reasonable endeavour to ensure that the title in such goods (or in goods that may result from the incorporation of the contract goods), passed to the Company and the foregoing provisions of this clause shall be considered to apply to such goods. Where goods are produced to your specification directions or instruction or where any goods are to be prepared in any way on your behalf, the title in such goods shall not pass before you have paid the entire invoice price under the particular contract or under any other contract between the Company and yourself. Reference to invoice price is a reference to the price to be charged to the customer on due performance of the contract, and shall include any further sums the Company are entitled to claim.
19. Product Hazard Information
The buyer is required to advise the Company as a matter of urgency in relation to the suitability of the goods for the purpose they were intended or on any matters that may affect their safe use or incorporation in other finished products. Where the occasion arises the buyer is required to ensure that any interested authority or organisation is similarly advised. To assist in tracing products subject to any subsequent form of enquiry the buyer is required to keep necessary records of transactions and to make such information available to the Company where so requested. The buyer shall further ensure that all reasonably practicable steps are taken to eliminate any risks to health and safety to which use or storage of the goods could give rise. Where the customer has a complaint about goods or work undertaken, he must notify the Company's authorised personnel without delay and produce the goods for inspection. Only after inspection will the Company consider recompense or replacement. The customer is required to co-operate fully with the Company in the handling and investigation of such complaints.
20. Customer Design, Product Recall etc
Goods manufactured to the buyer's design shall not give rise to any liability on the part of the seller for any loss or damage, direct, indirect, consequential or otherwise, attributable to such design and the buyer undertakes to indemnify the Company against claims relating to infringement of patent or other intellectual property rights that may be involved in such design. The buyer's design shall further comply with and statutory or common law requirements in respect of design and manufacture. In the event of it being necessary to recall goods supplied by the Company, due to a product defect, it shall be the buyer's duty to fully co-operate in any product recall campaign which might be launched by an appropriate party, whether such campaign is required by law or not.
You will also undertake to defray the cost of any such campaign or to recompense the Company for any expense it may incur, where the Company makes a request in writing. You will also take prompt action and accede to any reasonable request from an interested party to secure the withdrawal of the goods, or goods incorporating the goods, from sale or supply.
Payment is required within 28 dates of invoice date and if full payment is not made by the due date interest shall be charged on any outstanding amount at the rate of 4% per annum above Barclays Bank base lending rate accruing daily. The Company shall also have the right to withhold further supplies or service under this or any other contract.
22. Recovered Material and Installments Deliveries
The Company shall have a right to retain any materials removed in repair or service of the buyer's goods. It shall have a further right, notwithstanding any rule of law which might otherwise be applicable, and notwithstanding any agreement to the contrary, to supply any relevant goods in installments. It is further agreed that, where goods are so supplied whether or not with your agreement, any breach or infringement by the Company affects that installment only.
23. Proper Law
This contract shall be deemed to have been made in Manchester, England and the parties to the contract hereby submit to the jurisdiction of the local courts. The contract being considered to have its closest and most real connection with England disputes or actions hereunder shall be decided in accordance with the law of England. However, the parties may agree to refer all matters arising under or out of this contract to arbitration.
A waiver of any of these conditions, or any right arising thereunder, shall be valid only for the particular occasion and shall not affect the operation of such conditions or rights for the future.
25. Force Majeure
In the event of delivery being delayed by fire, accident, strikes, lockouts, delays in receipt of materials or bought-in goods or any other cause beyond the reasonable control of the seller, a reasonable extension of time of delivery shall be granted and the buyer shall pay such reasonable extra charges as shall have been occasioned by the delay. However the seller shall have the right to suspend or terminate the contract on giving written notice. During any period of such suspension the Company shall have the right to terminate the contract, subject to further notice in writing. Where the contract is suspended by the Company all obligations imposed on either party by the contract shall be held in abeyance for the period of such suspension. Where the Company elects to terminate the contract such termination shall be without prejudice to the Company and shall not affect liabilities on your part which fell due before termination.
26. Returnable Packaging
Where the Company's goods are delivered in returnable packaging the buyer will be charged the full price of such packaging where it is not returned within a reasonable time or on request by the Company.
27. Delivery Discrepancies
The buyer must give notice of any delivery discrepancies at the time of delivery otherwise no claims in relation to such discrepancies can be entertained. Claims for alleged non-delivery must be made within 48 hours of such time as the goods ought reasonably to have been delivered.
28. Data Protection
Where the Company enters any detail of a contract concerning living individuals on a computer database the buyer hereby gives his consent thereto and consents to the further use or disclosure of such details.
29. Product Inspection
The buyer is required to make appropriate inspection of the goods on delivery and is required to ensure that they are in such condition that no risk or hazard could arise from their use. In the event of any such possibility arising he is required to notify the Company, without delay.
30. Effect of Insolvency etc
The Company may terminate or suspend the contract, by notice in writing without liability to itself, but without prejudice to liability on your part accruing before such termination or suspension and treat you in breach of contract, in the following circumstances: -
- Where you cease to pay your debts in the ordinary course of business or cannot pay your debts as they become so due;
- Where you have a receiver or administrator appointed for the whole or part of your assets;
- Where third parties cease, with apparent good cause, to regard you as of good financial standing;
- Where we have reasonable cause to suspect that all or any of the above are likely to occur.
Where the Company has elected to suspend the contract, it may at any later date, by notice in writing, elect to terminate the contract with results as aforesaid.
31. Service of Notice
Any notice served under the foregoing terms, if delivered to the buyer's last known address or principal place of business, shall be treated as validly served. This shall apply to all notices in writing including notice by telex or facsimile transmission and where sent through the post such notices shall be regarded as received within two days of despatch and received simultaneously where sent by telex and facsimile transmission. Proof of despatch is to be treated as proof of receipt.
32. Special Conditions, Warranties & Exclusion Provisions
Any special conditions or warranties relating to this contract shall be construed subject to these Conditions and in as far as they are inconsistent with these Conditions they shall be excluded except where such provisions were agreed in writing by a duly authorised executive of the Company. No exclusion or limitation on the Company's liability is to be taken to apply to situations involving death or personal injury arising from the Company's negligence and there is no intention to avoid liability in such circumstances. Neither is it intended to exclude or limit the Company's obligations under Section 12 of the Sales of Goods Act 1979.
Furthermore in any situation where the Company contracts with a buyer who deals as a consumer, as defined in the Unfair Contract Terms Act 1977, there is no intention to exclude or limit the Company's statutory obligations as laid down in Sections 13, 14 and 15 of the Sale of Goods Act 1979 or relevant provisions of the Supply of Goods and Services Act 1982.