Terms & Conditions of Sale
1. General
1.1 In this document the following words and phrases shall have the following meanings unless the context requires otherwise :
"Company" means W. H. Leary Limited
"Contract" means the contract made between the Company and the Buyer for the supply of the Equipment comprising the terms set out herein and any Special Terms.
"Equipment" means the equipment systems or components parts or other items or materials supplied under the contract.
"Export Contract" means a Contract for the supply of Equipment to a Buyer situated outside the United Kingdom
"UK Contract" means a Contract other than an Export Contract.
"Special Terms" means any special term or any other term additional to or varying these terms agreed in writing between the parties and designated a special term.
"the Premises" means the address of the Buyer to which the Equipment is to be delivered .
1.2 In the event of any conflict between an Special Term and these terms the Special Term shall prevail.
2. Price
2.1 Unless otherwise indicated and save as provided in Term 2.2. in the case of a UK Contract the price stated is exclusive of transportation and insurance for delivery to the Premises and in the case of an Export Contract is ex works (as defined in Incoterms 1980). Prices are exclusive of VAT.
2.12 The Company shall be entitled to increase the price of the Equipment if the Buyer does not accept the quotation given by the Company
2.2.1 In the case of UK Contracts within 30 days of the date thereof ;
and
2.2.2 In the case of Export Contracts within 60 days of the date thereof
and/or does not provide the Company with such details and information as the Company may require from the Buyer in order to manufacture or produce the Equipment.
3. Delivery and installation
3.1 The Company will use reasonable commercial endeavours to make the Equipment available for delivery by any time or date agreed with the Buyer but time for manufacture or delivery shall not be of the essence of the Contract. Any dates for manufacture or delivery of the Equipment are approximate only and the Company accepts no liability for any loss damage or expense resulting from any delay in delivery for any reason whatsoever nor shall this constitute a breach or a repudiation of the Contract.
3.2 The Company shall in its sole discretion be entitled to manufacture and/or make the Equipment available for delivery by instalments.
3.3 In the case of UK Contracts the Company shall unless excluded by a Special Term install the Equipment at such additional charge to the Buyer as the Company shall specify. The Buyer shall provide at its own cost such assistance and facilities as the Company may require in connection with such installation. The Buyer shall be entitled to return the Equipment to the Company if the Equipment is not fit for any purpose expressly included as a Special Term provided that the Buyer shall notify the Company in writing of such wish within 30 days from delivery of the Equipment to the Premises and the Buyer shall at the Buyer's risk and expense (including the cost of transport and insurance) forthwith return the Equipment in such manner and to such premises as the Company shall direct. Provided that the Company accepts that all or any part of the Equipment is not fit for any purpose expressly included as a Special Term the Company shall issue a credit note to the Buyer in respect of the price of such Equipment or part thereof less a sum equivalent to the costs of installation and the costs of replacing any components of the Equipment which are damaged or worn. If the buyer retains the Equipment for more than 30 days from delivery without giving such notification as is referred to in the Term 3.3 the Buyer shall be deemed to have accepted the Equipment and shall be liable to pay the price of the Equipment.
3.4 In the case of Export Contracts installation of the Equipment is not provided by the Company unless this is a Special Term.
4. Safety and regulations
4.1 In the case of UK Contracts the Buyer undertakes that all necessary steps will be taken to ensure that the Equipment will be safe and without risks to health when properly used in accordance with Section 6 (8) of the Health and Safety at Work etc Act 1974.
4.2. The Buyer shall be responsible for complying with any legislation or regulations governing the use of the Equipment and in the case of Export Contracts for complying with any legislation or regulations governing the importation into and/or use of the Goods in the country of destination and for the payment of any duties thereon.
5. Payment
5.1 In the case of UK Contracts:
5.1.1 The Buyer shall pay the price of the Equipment plus VAT thereon in sterling in England upon presentation of the Company's invoice in the manner appearing on the front of this document.
5.1.2 All payments made by the Buyer pursuant to Term 5.1 shall be made without any deduction or deferment in respect of any disputes or claims whatsoever and/or in respect of any taxes imposed by or under the authority of any government or public authority.
5.1.3 Where the Company does not receive payment of any of its invoices on or before the last day of the month following the month of the Company's invoice interest shall thereafter accrue on the sum due and owing to the Company at the rate of 3% per annum above NatWest Bank base rate from time to time without prejudice to the Company's right to receive payment within such period.
5.1.4 Time for payment shall be of the essence of the Contract. In the event of delay or default in any payment by the Buyer hereunder the Company in its sole discretion shall be entitled to suspend manufacture or delivery of any outstanding instalments and/or treat the Contract as repudiated and/or sell any of the Equipment in its possession and the Buyer shall indemnify the Company for any loss or damage that the Company suffers as a result.
5.2. In the case of Export Contracts it is a condition precedent that the Buyer shall forthwith open or procure the opening of a confirmed irrevocable letter of credit in favour of the Company in respect of all amounts due to the Company and with a bank and on terms acceptable to the Company or as provided by any Special Terms.
6. Passing of property and risk/lien
6.1 The Company retains ownership of the Equipment the property in which shall not pass to the Buyer and the Buyer shall keep any Equipment delivered to it as bailee for and on behalf of the Company until the Company has received payment of the price of all of the equipment (whether or not the equipment is delivered in instalments and some have been paid for by the Buyer pursuant to these terms) such time the Buyer shall store the Equipment separately or in some other way ensure that the Equipment is readily identifiable as the property of the Company and at the Company's request either shall deliver up the Equipment to the Company or shall permit the Company to repossess the Equipment and subsequently resell it and the Company shall be entitled to retain the proceeds of sale thereof.
6.2 The provisions of this Term 6 shall survive the termination of the Contract for whatever reason and in particular but without limitation termination of the Contact by the Company by the acceptance of any repudiation of the Contract by the Company by the acceptance of any repudiation of the Contract by the Buyer.
6.3 Risk of loss or damage of any kind to the Equipment shall pass to the Buyer upon delivery of the Equipment.
6.4 The Company shall be entitled to exercise a general lien or right of retention on all Equipment or any parts thereof in the Company's possession which are the Buyer's property or which are supplied to the Company by the Buyer for any sums whatsoever due to the Company.
7. Liability
7.1 Save as expressly set out in these terms the Buyer shall not be entitled to rely or seek to rely upon any representations statements or warranties concerning the Equipment and in particular but without limitation any representations statements or warranties concerning the performance or fitness for purpose of the Equipment howsoever and whensover made nor shall the Company be liable to the Buyer for any loss or damage incurred or suffered by any such reliance unless such representation statement or warranty is specifically made a Special Term and is authorised by a Director of the Company.
7.2 The Buyer shall examine the Equipment forthwith following delivery of the Equipment and if the Company has arranged for transportation of the Equipment to the Premises the Buyer shall notify the Company in writing or by facsimile within 2 working days of delivery of any defects in the Equipment which have or appear to have occurred during transportation or of any short or over delivery together with details of the defects. In the absence of the receipt of such notice within such period by the Company it shall be discharged from all liability in respect of all such defective Equipment where such defects have occurred during transportation. The buyer shall make available all such defective Equipment or inspection by the Company and/or the carrier in the Company's sole discretion. Subject to compliance by the Buyer with these provisions the Company shall in its sole discretion repair or replace Equipment damaged or lost during transportation arranged by it.
7.3 Subject to Term 7.4 and save as otherwise provided by any Special Term the Company warrants that the Equipment will be free from defects in materials and workmanship for a period of 3 months from the date of despatch of the Equipment from the Company's premises.
7.4 If during the period specified in Term 7.3 the buyer becomes aware that the Equipment is defective in material and workmanship provided that the Buyer gives the Company written notice of any defect in the material or workmanship of the Equipment within 14 days of the appearance thereof and at the Buyer's expense and at the Company's option either returns the defective Equipment to the Company's premises for inspection and testing or permits representatives or employees of the Company to inspect and test the Equipment at the Premises and provided that the Company accepts that the Equipment is defective then the Company shall in its sole discretion either repair or replace the defective Equipment or refund the price of the Equipment or issue a credit note in respect of the price provided that this warranty shall not apply:
7.4.1 if the Buyer has without the prior written approval of the Company attempted to repair or dismantled or in any other manner tampered with the Equipment. If such approval is given by the Company all costs and expenses incurred in connection with any such activities carried out by or upon behalf of the Buyer shall be the sole responsibility of the Buyer; and/or
7.4.2 if the Equipment has been used by the buyer in a manner contrary to the Company's manuals or other instructions or have been stored or used in detrimental environmental or other conditions or have been used in a manner likely to cause excessive wear and tear or have been otherwise improperly used.
7.5. The Company shall subject to normal rules concerning causation and remoteness of damage be responsible for:-
7.5.1 Liability for death or personal injury caused by the Equipment or by the Company's servants if it is established that such death or personal injury has arisen as a direct result of negligence of the Company or its servants; and
7.5.2 Liability for damage to property caused by the Equipment or the Company's servants as a direct result of negligence of the Company or is servants to a maximum of £500,000 per claim or series of claims.
7.6 The liability accepted by the Company pursuant to the express terms of the Contract is the absolute limit of the Company's liability arising in connection with the Equipment or the Contract and the Company shall not be liable to the Buyer for any loss damage or expense or costs whatsoever incurred or suffered by the Buyer or by any third party whether direct or consequential arising out of a dispute or contractual tortious or other claim made or brought against the Buyer in connection with the Equipment or the Contract.. The Buyer shall pay discharge and indemnify the Company and its officers servants and agents at all times against all and any such loss damage expense or costs.
7.7 Any conditions or warranty other than relating to title to the Equipment which might otherwise be implied or incorporated in the Contract by reason of statute common law or otherwise is hereby expressly excluded.
7.8 The Buyer expressly acknowledges that the provisions of terms 7.1 to 7.7 satisfy the requirements of reasonableness specified in the Unfair Contract Terms Act 1977 and that is shall be stopped from claiming the contrary at any future date in the event of any dispute with the Company concerning the Company's liability hereunder.
7.9 The Company shall so far as appropriate use its reasonable endeavours to assign to the Buyer the benefit of any warranty which the Company may have from sub-contract manufacturers of the Equipment or from suppliers of components and parts of the Equipment.
8. Proprietary rights
8.1 All intellectual property rights subsisting in or relating to any calculations data specifications designs drawings papers documents procedures techniques acceptance maintenance and other tests special and recommended parts and other equipment and any other items material or information whatsoever given to the Buyer by the Company in connection with the supply of the Equipment (together "Information") are vested in the Company. All intellectual property rights subsisting in or relating to Information conceived originated developed or produced by the Company for the Buyer pursuant to the Contract shall be owned by the Company. The Buyer will not whether by itself its officers servants agents or any of them or otherwise copy or reproduce information in whole or in part and will keep information secret and confidential and will not disclose or permit to be disclosed Information in whole or in part to any third party.
8.2 The Buyer shall not at any time for any reason whatsoever disclose or permit to be disclosed to any person or persons whatsoever or otherwise make use of or permit to be made use of any trade secrets or other confidential information relating to the technology business affairs
or finances of the Company or any associated company or organisation of the Company or relating to the Company's suppliers licensees agents distributors or other customers or in respect of any of the affairs dealings or transactions.
8.3 The Buyer shall not represent in any way that it has any right or title to the ownership of any of the Company's intellectual property rights relating to the Equipment or a part thereof nor seek nor apply to register in its own name any such intellectual property rights.
8.4 The buyer at its own expense shall do all such acts and things and shall sign and execute all such deeds and documents as the Company in is sole discretion may require in connection with intellectual property rights subsisting in or relating to the Equipment or a part thereof.
8.5 Saved as provided by any Special Term the Buyer shall not alter or remove any trade mark of the Company which has been applied to the Equipment nor apply any other trade mark to the Equipment nor make any alteration to their packaging or get-up.
8.6 If Equipment is manufactured or any process applied to the Equipment by the Company materially in accordance with a design specification or other material submitted by the Buyer the Buyer shall indemnify the Company against all loss damages costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent copyright design right design trade mark or other industrial intellectual property rights of any other person which results from the Company's use of the Buyer's design specification or material.
9. Termination
9.1 The Company may terminate the Contract forthwith by notice in writing to the Buyer if prior to delivery of the Equipment or any instalment thereof:
9.1.1 the Buyer is unable to pay its debts or makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) commits any act of bankruptcy or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession or an administrative receiver is appointed of any of the property or assets of the Buyer; or
9.1.3 the Buyer ceases or threatens to cease to carry on business;
or
9.1.4 the Company has reason to believe that any of the events referred to in terms 9.1.1, 9.1.2 or 9.1.3 above is about to occur in relation to the Buyer.
9.2. Termination of the Contract shall not affect the accrued rights of the parties arising out of the Contract.
10. Force majeur
The Company shall not be in breach of the Contract if there is any total or partial failure of performance by it of its duties and obligations under the Contract occasioned by any act of God Fire act of government or state non-issue withdrawal or revocation of any necessary consent or licences or civil commotion insurrection embargo prevention from or hindrance in obtaining any raw materials energy or other supplies labour disputes of whatever nature or any reason beyond the control of the Company.
11. Assignment
The Company may assign transfer sub-licence or sub-contract the benefit and/or burden of the Contract. The Buyer shall not assign or transfer the burden of the Contract.
The construction validity and performance of the Contract shall be governed by English law. Any dispute shall be subject in the case of a UK Contract to the exclusive jurisdiction of the English Courts and in the case of an Export Contract to the non-exclusive jurisdiction of such courts. Each of the parties irrevocably consents to the award or grant of any relief in any such proceedings before the English Courts. Either party shall have the right to take proceedings in any other jurisdiction for the purposes of enforcing a judgement or order obtained from the English Courts.