1.1 In these conditions:
“Buyer” means the person whose Order is accepted by Seller;
“Goods” means the goods (including any instalment of the goods or any part for them) described in the Order;
“Order” means the order placed by Buyer with Seller for the supply of the Goods: “Seller” means CaviTech Solutions Limited
“These Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Buyer and Seller;
“Order Confirmation Form” means the form on which Seller confirms and acknowledges receipt of or accepts Buyer’s enquiry or order;
“Contract” means the contract for the purchase and sale of the Goods incorporating these Conditions;
“Writing” includes telex, cable, facsimile transmission and comparable means of communications.
1.2 Any reference in these Conditions to any provision of a status shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the sale.
2.1 Seller shall sell and Buyer shall purchase the Goods in accordance with any Order which is accepted by Seller on an Order Confirmation Form subject in every case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any Order is made of purported to be made by Buyer and Buyer hereby acknowledges and confirms that it is not purchasing the Goods in reliance upon any written, oral or implied representation (unless confirmed by Seller in Writing in accordance with Condition 2.3) or any collateral agreement or after receiving any inducement to enter into any agreement to purchase the Goods or to agree with any term of these Conditions.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of Buyer and Seller.
2.3 Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Seller in Writing. In entering into the Contract Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by Seller or its employees or agents to Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by Seller is followed or acted upon entirely at Buyer’s own risk and accordingly Seller shall not be liable for any such advise or recommendation which is not so confirmed.
2.5 Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, Order Confirmation Form, invoice or other document or information issued by Seller shall be subject to correction without any liability on part of Seller.
3. Orders and specifications
3.1 No Order submitted by Buyer shall be deemed to be accepted by Seller unless accepted on an Order Confirmation Form or otherwise confirmed in Writing by the Seller’s authorised representative and any such confirmation shall be deemed to incorporate these Conditions.
3.2 Buyer shall be responsible to Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by Buyer, and for giving Seller any necessary information relating to the Goods within a sufficient time to enable Seller to perform the Contract in accordance with its terms.
3.3 If the Goods are to be manufactured or any process is to be applied to the Goods by Seller in accordance with a specification submitted by Buyer, Buyer shall indemnify Seller against all losses, damages, cost and expenses awarded against or incurred by Seller in connection with or paid or agreed to be paid by Seller in settlement of any claim for infringement of any letters patent, copyright, registered or unregistered design, trademark or other industrial or intellectual property rights of any other person which result from Seller’s use of Buyer’s specification.
3.4 Seller reserves the right to make any changes in the specifications of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to Seller’s specification, which do not materially affect their quality or performance.
3.5 Where Buyer’s contract with a third party requires submission of drawings or calculations to a third party for approval Seller accepts no responsibility for costs involved in changes to the Goods or the Contract brought about by the third party’s requirements, opinion, suggestions or instructions.
3.6 No Order which has been accepted by Seller may be cancelled or varied by Buyer expect with the agreement in Writing of Seller and on terms that Buyer shall indemnify Seller in full against all loss (including loss of profit and loss of machine utilisation), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Seller as a result of such cancellation or variation and that Buyer shall pay Seller for all equipment which Seller has ordered and obtained to meet Buyer’s Order. In the case of a variation, these Conditions shall apply to the Order as so varied.
4. Price of the Goods
4.1 The price of the Goods shall be Seller’s quoted price or, where no price has been quoted, a sum calculated by the Seller having regard to the cost of the materials used and the time employed. Where the Goods are supplied for export from the United Kingdom, Seller’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by Buyer, after which time they may be altered by Seller without giving notice to Buyer.
4.2 Seller reserves the right, by giving notice to Buyer at any time or times before delivery, to increase the price of the Goods to reflect any increase in the cost to Seller which is due to any factor beyond the control of Seller (such as, without limitation, any foreign exchange rate fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by Buyer, or any delay caused by any instructions of Buyer or failure of Buyer to give Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of Seller, and unless otherwise agreed in Writing between Buyer and Seller, all prices are given by Seller on an ex works bases and, where Seller agrees to deliver the Goods otherwise than at Seller’s premises, Buyer shall be liable to pay Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which Buyer shall be additionally liable to pay to Seller.
4.5 The cost of pallets, bins, packages, cases and returnable containers will be charged to Buyer in addition to the price of the Goods, but full credit will be given to Buyer provided they are returned undamaged to Seller before the due payment date specified on the relevant invoice.
5. Terms of payment
5.1 Seller shall be entitled to invoice Buyer for the price of the Goods on or at any time after Seller shall have accepted the Order.
5.2 Buyer shall pay the price of the Goods without any lien, deduction, set-off or counterclaim whatsoever within 30 days of the date of invoice, notwithstanding that delivery of the Goods may not have taken place and the property in the Goods has not passed to Buyer. The time for payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request and Seller shall be entitled to appropriate any payment received to such of the Goods (or the Goods supplied under any other contract between Buyer and Seller) as Seller may think fit notwithstanding any purported appropriation by Buyer.
5.3 If Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Seller, Seller shall be entitled to:
5.3.1 cancel the Contract or suspend any further deliveries to Buyer; and
5.3.2 appropriate any payment made by Buyer to such of the Goods (or the Goods supplied under any other contract between Buyer and Seller) as Seller may think fit (notwithstanding any purported appropriation by Buyer); and
5.3.3 charge Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 3 per cent per annum above Bank of Scotland base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Delivery of the Goods shall be made by Buyer collecting the Goods at Seller’s premises at any time after Seller has notified Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by Seller, by Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be nor be capable of becoming of the essence. The Goods may be delivered by Seller in advance of the quoted delivery date upon giving reasonable notice to Buyer. Delay in delivery shall not entitle Buyer to terminate the Contract.
6.3 Seller may deliver the Goods in instalments and invoice Buyer as if each instalment comprised a separate contract under these Conditions.
6.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by Buyer in respect of any one or more instalments shall not entitle Buyer to treat the Contract as a whole as repudiated.
6.5 If Seller fails to deliver the Goods for any reason other than any cause beyond Seller’s reasonable control or Buyer’s fault, and Seller is accordingly liable to Buyer, Seller’s liability shall be limited to the excess (if any) of the costs to Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.6 If Buyer fails to take delivery of the Goods or fails to give Seller adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to Seller, Seller may:
6.6.1 store the Goods until actual delivery and charge Buyer for the reasonable costs (including insurance) of storage; or
6.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to Buyer for the excess over the price under the Contract or charge Buyer for any short fall below the price under the Contract.
6.7 Seller shall be entitled to require Buyer to give security (whether by way of provision of a surety, guarantor or performance bond or otherwise howsoever) or to pay monies on account of or as security for Buyer’s obligations under the Contract and in any such case as a pre-condition to the performance by Seller of any of its obligations thereunder.
Any Goods other than Goods made specifically to Buyer’s requirements and supplied in accordance with Buyer’s Order, which are subsequently returned will only be credited if Seller’s written agreement has been obtained. The amount credited shall be 10% less than the value at which the Goods were invoiced and in the event that the Goods are damaged Seller reserves the right to charge Buyer the cost of repairing the Goods.
8. Risk and property
8.1 Risk of damage to or loss of the Goods shall pass to Buyer;
8.1.1 in the case of Goods to be delivered at Seller’s premises, at the time when Seller notifies Buyer that the Goods are available for collection; or
8.1.2 in the case of Goods to be delivered otherwise than at Seller’s premises on the date the Goods are despatched from Seller’s premises.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to Buyer until Seller has received in cash or cleared funds payment in full of the price of the Goods.
8.3 Until such time as the property in the Goods passes to Buyer, Buyer shall hold the Goods as Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of Buyer and third parties and properly stored, protected and insured and identified as Seller’s property. Until that time Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
8.4 Seller may at any time revoke Buyer’s power of sale by written notice. Buyer’s power of sale shall automatically cease if Buyer being a firm or individual shall become bankrupt or have a receiving order made against him or enter into any arrangement or composition with his creditors or allow execution to be levied against his goods or being a company shall enter into liquidation (other than voluntary liquidation for the purpose of reconstruction or amalgamation) or have a receiver, administrative receiver or administrator appointed of the whole or any part of its assets and/or undertaking or enter into any arrangement or composition with its creditors or allow execution to be levied against its goods or any of them.
8.5 Until such time as the property in the Goods passes to Buyer (and provided the Goods are still in existence and have not been resold), Seller shall be entitled at any time to require Buyer to deliver up and, in any event, Buyer shall upon termination of its power of sale pursuant to Condition 8.4 deliver up the Goods to Seller and, in either case, if Buyer fails to do so forthwith, to enter upon any premises of Buyer or any third party where the Goods are stored and repossess the Goods.
8.6 Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Seller, but if Buyer does so all moneys owing by Buyer to Seller shall (without prejudice to any other right or remedy of Seller) forthwith become due and payable.
8.7 If the Goods are prior to sale by Buyer made up or incorporated in or mixed with other goods and remain separately identifiable Seller shall not thereby be deemed to have relinquished its title and the foregoing provisions of this Condition shall nonetheless apply.
9. Warranties and liability
9.1 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.2 Seller shall not be liable for any defect in the quality or condition of the Goods unless the defect would not have been apparent upon reasonably thorough examination and inspection of the Goods by Buyer (whether or not such examination or inspection is actually made by Buyer).
9.3 Any claim by buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by Buyer) be notified to Seller within 7 days from the date of delivery or (where the defect of failure was not apparent on reasonable inspection) within 7 days of discovery of the defect or failure. If delivery is not refused, and Buyer does not notify Seller accordingly, Buyer shall not be entitled to reject the Goods and Seller shall have no liability for such defect or failure, and Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. If Seller so requests any Goods the subject of a complaint must be returned to Seller at Buyer’s risk and expense in their original condition.
9.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to Seller in accordance with these Conditions, Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at Seller’s sole discretion, refund to Buyer the price of the Goods (or a proportionate part of the price), but Seller shall have no further liability to Buyer.
9.5 Except in respect of death or personal injury caused by Seller’s negligence, Seller’s liability to Buyer shall be limited to the cost of the materials comprised in the Goods and Seller shall not be liable to Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract (including for the avoidance of doubt any stipulation as to the time for delivery of the Goods), for any indirect or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever including loss or damage arising in respect of Buyer’s liabilities to any third party (and whether caused by the negligence of Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by Buyer, except as expressly provided in these Conditions.
9.6 Seller shall not be liable to Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond Seller’s control. Without prejudice to the generality of the forgoing, the following shall be regarded as causes beyond Seller’s control:
9.6.1 Act of God, explosion, flood, tempest, fire or accident;
9.6.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition; 9.6.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
9.6.4 import or export regulations or embargoes;
9.6.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Seller or of a third party);
9.6.6 difficulties in obtaining raw materials, labour, fuel, parts of machinery; and 9.6.7 power failure (whether local or national) or break down in machinery and in any such case Seller shall be entitled to suspend performance of the Contract for so long as the impediment shall last or to treat the Contract as discharged in which event Buyer shall pay to Seller all costs incurred by Seller in relation to the Goods up to and including the date of such discharge and payment in full for all Goods previously supplied under the Contract.
9.7 Save to the extent that Seller is by this Condition 9 made expressly liable therefore Buyer shall indemnify and hold harmless Seller against any expense, liability, loss, claim or proceedings whatsoever arising out of or caused or occurring in the course of the carrying out of the Contract by Seller.
10. Dimensions, Quality and Design
10.1 Goods will be supplied in accordance with the tolerances of dimension, quality and design criteria specified on Seller’s final drawings and quotations. Tolerances specified on Buyer’s documentation or enquiry do not form part of the Contract unless expressly agreed in writing by Seller before or at the time of acceptance of Buyer’s Order in accordance with Condition 2.1 hereof. Deviations within the tolerances so specified or, if none are so specified, within a reasonable tolerance shall no give rise to any liability on the part of Seller.
10.2 Buyer shall be responsible for the accuracy of all drawings, designs and specifications submitted by Buyer to Seller and Buyer shall be responsible for all costs arising from any omissions, errors or inaccuracies in the said drawings, designs or specifications and shall indemnify and hold harmless Seller against any liability of Seller arising as a result of any such omissions, errors or inaccuracies.
10.3 Buyer shall be responsible for obtaining all necessary consents, licences or permits in relation to the purchase of the Goods, the purposes for which the Goods are to be used and the manner of such use.
10.4 As regards any Goods supplied by Seller. Seller shall be deemed not to have any knowledge of the particular purpose, use or market for which the Goods are required unless such purpose, use or market is expressly stated in the Contract. 10.5 If performance of the Contract involves the carrying out of any test on the Goods or any associated testing such test shall be conducted by Buyer on Seller’s premises but at Buyer’s cost.
10.6 Title to all drawings, plans and specifications prepared by Seller in connection with goods or services supplied under the Contract and the copyright and all and any industrial and intellectual property rights therein shall in all circumstances be retained by Seller and Buyer shall not be entitled to use or duplicate the same without the express written consent of Seller and Buyer shall treat all such drawings, plans and specifications as strictly private and confidential and shall not disclose any of the same to any third party.
10.6.2 in the event of any breach by Buyer of Condition 10.6.1 then without prejudice to Seller’s other rights hereunder or under the general law the sum of £20,000 shall become immediately due and payable by Buyer to Seller and Buyer acknowledges that such sum represents reasonable compensation for the loss and damage to Seller arising from any such breach.
11. Insolvency of Buyer
11.1 This Condition applies if:
11.1.1 Buyer makes any voluntary arrangements with its creditors or becomes subject to any administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
11.1.2 an encumbrancer takes possession, or a receiver administrative receiver or administrator is appointed, of any of the property or assets of Buyer; or
11.1.3 Buyer ceases, or threatens to cease, to carry on business; or
11.1.4 Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to Buyer and notifies Buyer accordingly ; or
11.1.5 Buyer commits a breach of the Contract or any other obligation to Seller.
11.2 If this Condition 11 applies then, without prejudice to any other right or remedy available to Seller, Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12. Buyer’s Indemnity
12.1 Seller shall be under no liability to Buyer in respect of any design or scheme provided by Seller if Buyer in the execution of the design or scheme uses with the Goods other goods not manufactured or supplied by Seller;
12.2 any information given by Seller on the performance of materials, components or otherwise relates only to Goods manufactured or supplied by Seller;
12.3 if Buyer uses the Goods with goods not manufactured or supplied by Seller then Buyer shall indemnify Seller against all claims, expenses, costs, penalties and damages made against Seller or which Seller may sustain, incur or be put to or become liable for either directly or indirectly as a result of any such use of the Goods by Buyer.
13.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.2 No waiver by Seller of any breach of the Contract by Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. 13.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provision of these Conditions and the remainder of the provision in question shall not be affected thereby.
13.4 Any dispute arising under or in connection with these Conditions or the sale of the Goods may at the option of Seller be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Law Society.
14. Export terms
14.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chambers of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
14.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 14 shall (subject to any special terms agreed in writing between Buyer and Seller) apply notwithstanding any other provision of these Conditions.
14.3 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.
14.4 Unless otherwise agreed in Writing between Buyer and Seller, the Goods shall be delivered FOB the air or sea port of shipment and Seller shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.
14.5 Buyer shall be responsible for arranging for testing and inspection of the Goods at Seller’s premises before shipment. Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is discovered after shipments, or in respect of any damage during transit. 14.6 Payment of all amounts due to Seller shall be made by irrevocable letter of credit opened by Buyer in favour of Seller and confirmed by a bank in London acceptable to Seller or, if Seller has agreed in Writing on or before acceptance of Buyer’s order to waive this requirement, by acceptance by Buyer and delivery to the Seller of a bill of exchange drawn on Buyer payable 30 days after sight to the order of Seller at such branch of Bank of Scotland in England as may be specified in the bill of exchange.
14.7 Buyer undertakes not to offer the Goods for resale in any country notified by Seller to Buyer at or before the time Buyer’s Order is placed, or to sell the Goods to any person if Buyer knows or has reason to believe that that person intends to resell the Goods in any such country.
15. Governing law
15.1 The Contract shall be governed by the laws of England and Buyer and Seller irrevocably submit to the exclusive jurisdiction of the English Courts.