In these Conditions: -
“Company” means The Concordia Electric Wire and Cable Company Limited.
“Buyer” means the person, firm or company purchasing goods or services from the Company.
“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods incorporating these Conditions.
“Goods” means the goods and/or services agreed in the Contract, which the Company is to supply to the Buyer in accordance with these Conditions (including any part or parts of them).
“UCTA” means the Unfair Contract Terms Act 1977
“SGA” means the Sale of Goods Act 1994
“writing” or “written” means includes faxes and emails (subject to Condition 17.8).
2. Basis of the Sale
2.1. Subject to any variation under Condition 2.3, the Company contracts on these Conditions only, and acceptance by the Company of any order from a Buyer shall be upon these Conditions and shall override any other conditions stipulated or incorporated by the Buyer (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation order, specification or other document or in any negotiations) (save as shall have been expressly agreed in writing by the Company).
2.2. No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3. These Conditions apply to all the Company’s sales and any variation to these Conditions and any representation about the Goods shall have no effect unless confirmed in writing by an authorised officer of the Company. Subject to Condition 16, the Buyer 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. Nothing in this Condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4. The Company reserves the right to make substitutions and modifications to the specification of the Goods provided that this does not materially affect their performance.
2.5. Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.6. No order placed by the Buyer shall be deemed to be accepted by the Company until the Company has issued an acknowledgement of order, unless such requirement is waived by the Company in writing or by performance of an order.
2.7. The Buyer shall ensure that the terms of its order and any applicable specifications are complete and accurate.
2.8. Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for the period specified in the quotation.
3. The Goods
3.1. All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions and illustrations contained in the Company’s catalogues, price lists or brochures or otherwise communicated to the Buyer are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract and this is not a sale by sample.
3.2. The Company reserves the right to deliver a quantity of Goods of up to 10% more or less than the quantity stipulated on the acknowledgement of order and the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods at the pro rata Contract rate.
4.1. The price of Goods is as stated on the acknowledgement of order and excludes VAT which will be added to the net invoice value at the appropriate rate.
4.2. Except for international sale of goods contracts the Goods will be delivered carriage paid unless the value of the order is minimal (that is, below a value specified from time to time by the Company) when the Company may, at its discretion, make an additional charge for goods delivered by its own transport or a carrier.
4.3. In the case of international sale of goods contracts, the price quoted will normally be ex works the Company, but the Company may arrange carriage to a destination specified by the Buyer, if so requested in writing by the Buyer. The Buyer shall be responsible for paying for all taxes, import duties, delivery charges and other costs arising and for obtaining and paying for all applicable export and import licences and permits.
4.4. The price of the Goods stated may be increased by the Company if the costs of raw materials, labour, transport or other base costs to the Company rise, to the price current at despatch unless a fixed price has been agreed. The Buyer will be notified as soon as possible of any such alteration and in any event before delivery. Any quotation for services is based on the work being done in normal working hours and if done in overtime at the Buyer’s request an additional charge may be made.
4.5. Except where stated to the contrary the cost of drums, reels, packing cases or other packing materials will be included in the price.
The Buyer may not cancel the Contract without the written consent of the Company which, if given, shall be deemed to be on the express condition that the Buyer shall indemnify the Company against all loss, damage, claims or actions arising out of such cancellation unless otherwise agreed in writing.
6.1. Subject to Condition 6.6, unless otherwise agreed in writing the price and all other charges are payable in full in pounds sterling by the end of the month following the date of despatch but the Company reserves the right to require payment before Goods sold are despatched or taken from the Company’s premises. Time for payment shall be of the essence.
6.2. If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 3% above the Lloyds TSB base rate from time to time accruing on a daily basis until payment is made, whether before or after judgment, without prejudice to any other rights of the Company. The Company reserves the right to claim interest under the Late Payments of Commercial Debts (Interest) Act 1998.
6.3. Where the Company has agreed to deliver Goods by instalments or has agreed to allow the Goods to be paid for by instalments, any failure by the Buyer to pay any instalments shall entitle the Company at its discretion and without prejudice to any other rights or remedy available to it to:
6.3.1. treat such failure as the Buyer’s repudiation of the whole Contract and recover damages for that breach; or
6.3.2. stop manufacture, delivery or performance under the Contract or any other contract, and performance by the Company will only recommence upon payment in full by the Buyer of all outstanding amounts due on completion of the Buyer’s obligations hereunder. If the Company exercises its said rights any Goods to be delivered to a Buyer following default shall be paid for on a pro forma invoice before or at the time of despatch of the Goods and payment will become due on receipt of such pro forma invoice. The Company shall not be liable for loss of any nature suffered by the Buyer as a result of the application of this Condition nor shall it be a reason for cancellation by the Buyer of this or any other contract which shall at the Company’s option remain in full force and effect.
6.4. All payments due from the Buyer pursuant to these Conditions shall be made without any deduction or deferment whether by way of set-off, counterclaim, discount, abatement or otherwise for breach of contract, negligence or any other remedy by any other means whatsoever whether statutory or otherwise unless the Buyer has a valid court order requiring any amount equal to such deduction to be paid by the Company to the Buyer.
6.5. No payment shall be deemed to have been received until the Company has received cleared funds.
6.6. All payments payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
7.1. The Company will do its best to deliver the Goods to be sold (or, if applicable, have them ready for delivery) by any date or time agreed upon, but such dates and times are estimates only and given in good faith and time for delivery shall not be made of the essence by notice. If no dates are specified, delivery shall be within a reasonable time.
7.2. Subject to the other provisions of these Conditions, the Company shall not be liable for any direct, indirect or consequential loss or damage (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (or, if applicable any delay in the readiness of the Goods for delivery) (even if caused by the Company’s negligence).
7.3. If the Company is unable for whatever reasons to fulfil any order or part thereof within 30 days of any agreed delivery or collection date, then, unless otherwise agreed in writing, the Company shall cease to be under any obligation to fulfil such order or such part of any order and the Buyer shall cease to be under any obligation to pay therefor.
7.4. Where the Company has undertaken to effect delivery then it shall be entitled to deliver the Goods in one or more instalments unless otherwise expressly agreed. Each separate instalment may be invoiced and paid for in accordance with the provisions of the Contract. No cancellation or termination in relation to any one instalment shall entitle the Buyer to repudiate or cancel any other instalment or contract.
7.5. Unless otherwise agreed and except in the case of international supply contracts the Company shall deliver the Goods to the address stated on the Company’s acknowledgement of order. Without prejudice to Condition 12.1 if delivery is not taken, the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
7.6. The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can prove conclusive evidence proving the contrary.
7.7. The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
7.8. Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
8. Passing of Risk and Property
8.1. Property in the Goods agreed to be sold shall remain in the Company until the Company has received payment in full of:-
8.1.1. the price of the Goods; and
8.1.2. all other sums which are or which become due to the Company from the Buyer on any account.
8.2. Risk shall pass on delivery of the Goods to the Buyer unless the Buyer elects to collect the Goods from the Company when risk shall pass ex-works the Company or if the contract is an international supply contract when risk shall pass in accordance with the express terms of the Contract.
8.3. If for any reason, the Buyer fails to take delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations, or the Buyer does not collect the Goods at the time the Company has notified to the Buyer:
8.3.1. risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence) at the time when the Company has tendered delivery of the Goods or when the Goods are ready for collection (at the time notified to the Buyer); and
8.3.2. the Goods shall be deemed to have been delivered.
8.4. Without prejudice to any of its other rights until such time as property in the Goods passes to the Buyer the Company shall be entitled at any time to require the Buyer to deliver up the Goods to the Company and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored to repossess the Goods.
8.5. The Buyer hereby grants the Company, its agents and employees an express irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them or, where the Buyer’s right to possession has terminated, to recover them.
8.6. Until property in the Goods has passed to the Buyer hereunder:-
8.6.1. the relationship between the Company and the Buyer will be that of bailor and bailee and the Buyer will store the Goods (at no cost to the Company) on its premises separately from its own goods or those of any other person and in a such a way that they remain readily identifiable as the goods of the Company.
8.6.2. the Buyer shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.6.3. the Buyer shall not pledge the Goods or documents of title thereon, or allow any lien to arise thereon:
8.6.4. the Buyer shall not deal with or dispose of the Goods or documents of title thereto or any interest therein (other than by a sale to an independent purchaser buying for full value in the ordinary course of the Buyer’s business):
8.6.5. the Buyer shall not hold itself out as the Company’s agent in respect of the Goods;
8.6.6. the Buyer shall hold the proceeds of any insurance referred to in Condition 8.7 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
8.7. The Buyer will indemnify the Company against any loss or deterioration in the goods while they remain the property of the Company and will keep the Goods properly insured for not less than their contract value against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
8.8. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of the Goods has not passed from the Company.
8.9. Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
8.10. On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this Condition 8 shall remain in effect.
9.1. Unless otherwise specified by the Buyer to the Company all Goods are sold on the basis that the Buyer is neither a consumer nor deals as a consumer within the meaning of the UCTA and that the Buyer has satisfied itself as to the suitability of the Goods for use or resale in accordance with its own specialised knowledge and skill.
9.2. Subject to the other provisions of these Conditions above the Goods shall conform in all respects with any written specifications agreed between the Buyer and the Company at the time of delivery and for such further period (if any) as may be stated in such written specifications.
9.3. In the event that the Buyer is or deals as a consumer within the terms of Section 12 of UCTA then the Buyer shall also have the benefit of terms implied by Section 13 (correspondence with description) Section 14 (satisfactory quality and fitness for purpose) and Section 15 (sample) of the SGA.
9.4. The Company shall not be liable for any breach of any of the warranties in Conditions 9.2 and (if applicable) 9.3 (whether or not delivery is refused by the Buyer) unless:-
9.4.1. the Buyer gives written notice of the defect to the Company within four days of the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within ten days after discovery of the defect or failure but, in any event, by no later than twelve months from the original delivery date; and
9.4.2. the Company is given a reasonable opportunity after receiving notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost for the examination to take place there.
9.5. The Company shall not be liable for any breach of any of the warranties in Conditions 9.2 and (if applicable) 9.3 if:-
9.5.1. the Buyer makes any further use of such Goods after giving notice; or
9.5.2. the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
9.5.3. the Buyer alters or repairs such Goods without the written consent of the Company.
9.6. Subject to Conditions 9.4 and 9.5, if any of the Goods do not conform with any of the warranties in Conditions 9.2 or (if applicable) 9.3 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company. If the Company complies with this Condition 9.6 it shall have no further liability for a breach of any of the warranties in this Condition 9 in respect of such Goods.
9.7. Where the Company is not the manufacturer of the Goods the Company will at the request and expense of the Buyer endeavour to transfer to the Buyer the benefit of any warranty, guarantee or undertaking given to the Company.
10.1. Subject to Condition 7 and Condition 9 the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:-
10.1.1. any breach of these Conditions;
10.1.2. any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2. Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by statute or common law (save for the conditions implied by section 12 of the SGA) are excluded from the Contract to the fullest extent permitted by law.
10.3. Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence, under Section 2(3) of the Consumer Protection Act 1987, for the Company’s fraud or fraudulent misrepresentation or for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability for.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10.4
10.4. Subject to Conditions 10.2 and 10.3:-
10.4.1. the Company’s total liability in contract, tort (including for negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to £10,000,000 (ten million pounds);
10.4.2. the Company shall not be liable to the Buyer for any:-
10.4.2.1. loss of profit;
10.4.2.2. loss of business;
10.4.2.3. depletion of goodwill or otherwise; in each case whether direct, indirect or consequential; or
10.4.2.4. any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract, including damage to property and personal injury (so far as not caused by the Company’s negligence).
10.4.3. However, if and only to the extent that such liability is covered by the Company’s insurance arrangements applicable at the relevant time, the exclusion in Condition 10.4.2 shall not apply in respect of accidental financial loss or financial loss caused by any Goods which is incurred by the Buyer provided such loss is not occasioned:-
10.4.3.1. by loss of or damage to property; or
10.4.3.2. by any passing off or infringement of patent, copyright, design, trademark or trade name; or
10.4.3.3. by or arising from or in connection with defamation or wrongful arrest.
10.4.4. The Company’s aggregate liability in respect of any claim under Condition 10.4.3 shall be limited to £10,000,000 (ten million pounds).
10.4.5. The Company shall not be liable to the Buyer in respect of damage to Goods in transit caused as a result of actions of the Crown’s enemies, revolution, civil unrest or terrorism.
11. Force Majeure
The Company shall bear no liability for loss, damage or delay howsoever arising caused in circumstances outside its reasonable control (including, without limitation, acts of God, government actions, war or national emergency, acts of terrorism, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce)) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials and in these circumstances may suspend or cancel the whole or part of any delivery without liability to the Buyer.
12.1. If the Buyer fails to take and pay for Goods sold in accordance with the Contract the Company shall be entitled to treat the Contract as repudiated, and without prejudice to the Company’s rights to recover from the Buyer by way of damages, any loss or expense which the Company may incur or suffer by reason of the default the Company shall be entitled to dispose of the Goods as it thinks fit and shall not be under any liability to account to the Buyer for the proceeds of sale.
12.2. Without prejudice to any other rights it may have the Company may by notice in writing to the Buyer terminate any Contract forthwith if:
12.2.1. any payment due by the Buyer to the Company is overdue in whole or in part; or
12.2.2. the Buyer shall breach any of the terms of any Contract with the Company provided that if the breach is remediable the Company has given to the Buyer notice of such breach which has not been remedied within seven days thereafter; or
12.2.3. the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (other than for the purpose of a solvent amalgamation or reconstruction) or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
12.2.4. an encumbrancer takes possession of or a receiver, administrative receiver or administrator is appointed over all or any of the assets of the Buyer; or
12.2.5. the Buyer ceases or threatens to cease to carry on trading; or
12.2.6. the Buyer encumbers or in any way charges any of the Goods; or
12.2.7. the Company reasonably considers that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
12.3. If the Contract is terminated under these provisions and the Company has manufactured or supplied Goods to the Buyer’s specifications, the Buyer shall take over and pay for at the current price such materials as have been allocated by the Company to the Contract.
12.4. Without prejudice to any other remedies the Company shall in the event of default by the Buyer or any of the situations set out in Condition 12.2 arising have a general lien on all goods and property in its possession (whether worked on or not) and belonging to the Buyer in respect of any sums due from the Buyer and shall be entitled after giving 14 days written notice to the Buyer to dispose of such goods or property as it thinks fit.
13. International Supply Contracts
13.1. In these Conditions and in any invoice or document relating to the supply of Goods to the Buyer “Incoterms” shall mean the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date of the relevant Contract. Where Goods are to be delivered to a Buyer at an address outside the United Kingdom Incoterms shall apply to the relevant Contract save that if there is any conflict between the provisions of Incoterms and these Conditions the latter shall prevail.
13.2. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon in such country.
13.3. The payment of all amounts due to the Company shall be made in pounds sterling or Euro by irrevocable letter of credit confirmed on a bank acceptable to the Company or if the Company so elects in writing by delivery to the Company of a bill of exchange drawn by the Buyer on such branch of Lloyds TSB in England as may be specified in the bill payable on sight to the order of the Company and accepted by that bank.
The Buyer shall indemnify the Company in respect of all damage injury or loss occurring to any person or property against all actions, suits, claims, demands, charges or expenses in connection therewith arising from the condition or use of the Goods in the event and to the extent that the damage, injury or loss shall have been occasioned partly or wholly by the carelessness of the Buyer or his servants or agents or by any breach by the Buyer of its obligations or any warranties made to the Company thereunder.
15. Patents, Design and Copyright
15.1. The Goods are sold and/or supplied subject to the rights of any person, whether in respect of any patent, trademark, registered design, copyright, confidential disclosure or otherwise howsoever to prevent or restrict the sale or use of the Goods in any part of the world and the Buyer will in this respect accept such title to the Goods as the Company may have.
15.2. Where the Goods have been manufactured according to designs or configuration or by processes specified or supplied by the Buyer, the Buyer represents and warrants to the Company that the Goods so designed or configured and the processes so used do not infringe the rights of any person, whether in respect of any patent, trade mark, registered design, copyright, confidential disclosure or otherwise howsoever to prevent or restrict the sale or use of the Goods or materials or the use of such processes in any part of the world. The Buyer shall indemnify the Company against all actions, suits, claims, demands, losses, charges, costs and expenses which the Company may suffer or incur in connection with any claim by any third party alleging facts which if established would indicate a breach of the representations and warranties contained in this paragraph 15.2.
Any advice or representations made by the Company, its employees or agents shall be provided for guidance only and no liability shall attach to such advice or representations. Where expert advice is sought by the Buyer for a particular project or use of the Goods, no liability shall attach to such expert advice requested unless full disclosure of the relevant facts relating to the use of the Goods is made in writing by the Buyer to the Company and the advice given by the Company is made in writing. If expert advice is given under these circumstances, then the liability of the Company shall be limited as set out in Condition 10.4 above.
17.1. The parties hereto agree that the provisions contained in these Conditions are reasonable but that if any provision of these Conditions is held by a Court or competent authority to be wholly or partly illegal, invalid, void, voidable, unreasonable or unenforceable it shall to the extent of such illegality, invalidity, voidness, voidability, unreasonableness or unenforceability be deemed severable and the remainder of such provision shall continue in full force and effect and the validity of the remainder of these Conditions shall not be affected thereby.
17.2. The Buyer shall not assign or transfer any contract to which these Conditions apply nor the benefit thereof to any person whatsoever. The Company may assign the Contract or any part of it to any person, firm or company.
17.3. Failure or delay of the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
17.4. Any waiver by the Company in enforcing or partially enforcing any provision of the Contract shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.5. The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
17.6. The Contract and these Conditions constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter thereof. Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on and shall have no remedy in respect of any statement, representation, warranty or undertaking (whether negligently or innocently made) of any person (whether a party to the Contract or not) other than as expressly set out in the Contract and these Conditions. However, nothing in this Condition shall operate to limit or exclude any liability for fraud.
17.7. Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
17.8. Any notice required to be given under these Conditions shall be in writing addressed to the party to whom the notice is being sent at its the principal place of business or registered office and delivered by hand, sent by pre-paid first class post or sent by fax. Any notice shall be deemed to have been received if (a) sent by pre-paid first class post 2 working days after posting (excluding the day of posting), or (b) if delivered by hand on the day of delivery, or (c) if sent by fax on a working day prior to 4.00pm, at the time of transmission and otherwise on the next working day.
17.9. The construction, validity and performance of any contract shall be governed in all respects by the law of England and the parties submit to the exclusive jurisdiction of the English courts. The Buyer shall at all times provide the Company with an address in England or Wales where it will accept service of proceedings.