Terms of Sale
Terms of Sale
1. DEFINITIONS ETC.
(1) In these Conditions
“the Seller – shall mean PROCESS CONTROL PANELS LTD of Units 12/13 USAM Trading Estate, Wood Lane Wolverhampton “the Buyer” – shall mean the person to whom the Goods and/or the Services (as hereinafter defined) are to be supplied.
“ the Goods” – shall mean all the goods specified in the Acknowledgement of Order (as hereinafter defined) with such changes (if any) as may be mutually agreed between the parties hereto or incorporated by the Seller pursuant to Clause 8 hereof ;
“the Services” shall include any design or other services to be provided by the Seller pursuant to the Contract whether in relation to the supply of Goods or otherwise and where the Contract is for or includes work or work and materials, the supply of labour;
‘Special Goods” means goods made or adapted specifically to the Buyer’s designs and/or specifications. ‘Acknowledgement of Order” shall mean the Seller’s formal written acknowledgement of the Buyers order for the supply of the Goods and/or the Services which incorporates some or all of these Conditions; and
“The Contract” shall mean the agreement between the parties hereto comprising the Acknowledgement of Order, these Conditions and any other documents (or parts thereof) incorporated by reference in the Acknowledgement of Order and any terms and conditions relating to erection and installation of the Goods and/or the Services mutually agreed in writing between the parties hereto subsequent to the Acknowledgement of Order and in the event of any terms or conditions of the Contract being incompatible the latest to be considered by the parties hereto shall have precedence provided always that these Conditions shall only be overruled by any express provisions in the Acknowledgement of Order which are inconsistent herewith.
(2) Unless incorporated in the Contract by express reference in the Acknowledgement of Order any document or documents emanating from the Buyer which contain printed or standard conditions have been and will be sent by the Buyer and received by the Seller on the understanding that such conditions appear on the Buyer’s documents because they are printed thereon but have no legal effect whatever, and the Buyer waives any rights which the Buyer otherwise might have to rely on such conditions.
2. SCOPE OF THE CONTRACT
The seller shall sell and the Buyer shall buy the Goods and/or (as the case may be) the seller shall supply and the Buyer shall accept the Services on the terms and conditions of the Contract. The Contract contains the entire agreement between the parties relating to the sale of the Goods and/or the Supply of the Services and supersedes all prior written oral communications between the Seller and the Buyer. The Buyer acknowledges that it does not place and has not placed any reliance on any representations, agreements, statements or undertakings (oral or in writing) made prior to the Acknowledgement of Order other than those expressly incorporated in the Acknowledgement of Order. The Contract may not be released or modified in any manner except by an instrument in writing signed by duly authorised representatives of both parties.
3. TERRITORIAL CONDITIONS
It shall be a condition of the Contract that neither the Goods nor any part thereof shall without the Seller’s written consent, be exported from the United Kingdom. It is a further condition of the Contract that upon any resale or other disposition by which the Buyer ceases to be possessed of the Goods or any part thereof the Buyer will procure that any person who is or will be possessed of the Goods or any part thereof shall be bound in his contract with the Buyer by a condition similar in substance to this condition, provided that notwithstanding the foregoing, the Goods, if built into any composite product assembled in the United Kingdom may be exported therefrom, without restriction hereunder, if the entire such composite product is included in the same bill of lading, it being understood and agreed that neither the Goods nor any parts thereof may be exported as separate units. It is hereby further provided that notwithstanding any of the foregoing conditions nothing in this Clause shall prevent the Buyer, or any person acquiring the Goods from the Buyer hereunder, from exporting them into the United States of America or into countries or territories forming part of the European Union.
4. CANCELLATION ON ACCOUNT OF INSOLVENCY
If before all the moneys payable under the Contract are paid, the Buyer (being an individual or individuals) shall be the subject of a bankruptcy order or shall make any assignment or deed of arrangement for, or any composition with creditors generally, or (being a company) shall become the subject of a winding-up, or administration or the appointment of a receiver, or receiver and manager, or administrative receiver or shall make any arrangement with its creditors generally, or if any execution is levied or any distress is threatened or made at any premises occupied by the Buyer, or if the Buyer ceases to carry on business then without prejudice to the rights of the Seller to exercise any other remedies, the Seller shall be entitled to rescind the Contract by giving written notice to the Buyer.
5. EXCUSABLE DELAY
Should the Seller directly or indirectly be prevented from carrying out its obligations under the Contract before or after the due date for delivery owing to lock-outs, strikes, work slow-down, labour troubles causing cessation or dislocation of work, or owing to riots, insurrection, mutiny, civil commotion, loss, damage, detention or delay caused by fire, explosion, storm, flood, tempest, Act of God, war, the action or legislation of any Government, accident, epidemic, quarantine restrictions, accident in the course of test, malicious act of third party, railway embargoes, delay in delivery of materials by a third party, failure after due and timely diligence to obtain any material or part not of the Seller’s manufacture to be incorporated in Goods, and/or the Services failure of the Buyer to comply with its obligations relating to payment or the supply of information under the Contract or any other cause whatsoever whether or not of a similar nature to the foregoing which is not within the control of the Seller, (whether in the Seller’s business or that of any of its suppliers or sub-contractors) the Seller reserves the right (without prejudice to any other rights it may have) in its absolute discretion and at the Seller’s election to do one or more of the following:-
(a) To suspend or delay despatch or supply of the Goods and/or services until such time as it may be reasonably practicable to despatch or deliver or supply the same;
(b) To use substituted materials for any specified in the Contract provided that such substituted materials are in the Seller’s view an adequate substitute for the materials so specified;
(c) To cancel Contractor or any uncompleted portion thereof and on such cancellation neither party shall have any claim of whatever nature against the other save in respect of work done and services rendered in relation to goods delivered or Services supplied prior to such cancellation. The Buyer shall have no right to terminate the Contract by reason of the Seller being prevented from carrying out its obligations under the Contract owing to any of the above-mentioned events.
6. SELLER’S RIGHT OF RE-SALE
in the event of:-
(a) the Seller demanding any of the information, drawings, documents, authorisations or consents referred to in Clause 11, or if the Seller has agreed to arrange delivery of the Goods, sufficient forwarding instructions to enable the Seller to despatch the Goods or any of them and not receiving the same within 28 days of the said demand, or if the Buyer is responsible for the collection of the Goods, the Buyer failing to collect the goods or any of them within 28 days of the seller demanding that the Buyer should make the said collection or
(b) the Buyer failing to pay in full the whole or any part of the price payable under the Contract when due the Seller shall be released from the Contract and shall be entitled to re-sell the Goods or any part thereof without notice to the Buyer and to recover from the Buyer any loss occasioned by the Buyers default. The rights conferred on the Seller in this Clause shall not prejudice any other right it may have under the Contract or any common law or statutory remedy which the Seller may have in relation to the Goods and/or the Service.
7. DRAWINGS, TECHINICAL DATA, ETC.
(1) All sketches, drawings, descriptive matters, weights, dimensions and shipping specifications provided by the Seller and the descriptions and illustrations contained in the Seller’s catalogues, price lists and other advertising matter are approximate only, and are intended merely to represent a general idea of the Goods and shall not form part of the Contract.
(2) All tenders, plans, drawings, specifications and other documents supplied by the Seller to the Buyer are the Seller’s copyright and remain the property of the Seller and must not be reproduced or disclosed to any third persons or used except for the purpose of implementing the Contract and must be returned to the Seller on demand.
(3) All patent copyright and design rights and any other intellectual property rights whatsoever relating to the Goods and/or the Services or any part thereof shall remain the property of the Seller.
8. ALTERATION TO SPECIFICATION
Notwithstanding anything to the contrary contained in these Conditions, or mutually agreed in writing between the Seller and the Buyer , the Goods and/or the Services or any part thereof may be altered by the Seller or the manufacturer thereof without the Buyer’s prior consent to incorporate such changes as the Seller or manufacturer considers necessary to correct defects, improve the Goods and/or Services or to make the Goods and/or the Service safer, prevent delay or ensure compliance with these conditions and which have no materially adverse effect on any of the matters which might affect any application to which the Seller is aware that the Buyer wishes to put the Goods and/or the Services provided always that the Seller shall notify the Buyer of such changes if, in the opinion of the Seller, they alter materially the specifications of the Goods and/or Services.
9. SPECIAL GOODS
(1) The Seller shall be entitled to reject any materials supplied or specified by the Buyer which the seller in its judgement considers unsuitable. Additional costs incurred by the seller if such materials are judged by the Seller to be unsuitable, will be charged to the Buyer.
(2) Quantities of materials supplied by the Buyer shall be adequate to cover normal spoilage.
(3) The Seller shall have no responsibility for the accuracy or suitability of patterns, designs, tools, drawings, particulars or specifications relating to Special Goods which shall be supplied by the Buyer and the Seller shall be entitled to accept the same as being without defect. The Seller shall have no responsibility for the quality or fitness of Special Goods for any particular purpose whether or not such purpose is made known to the Seller and the conditions implied by Sections 13 to 15 inclusive of the Sale of Goods Act 1979 as amended by the Sale and Supply of Goods Act 1994 shall be excluded. The Buyer undertakes to indemnify the Seller and to keep the Seller fully and effectually indemnified from and against all actions, proceedings, claims, costs, loss, damage or expense whatsoever arising in contract, tort or otherwise which the Seller may suffer or incur as a result of any defect in the Special Goods whether due to quality. design, fitness for purpose or in any other way whatsoever unless the same is due directly to the negligence of the Seller, its servants of agents;
(4) The Buyer represents and warrants to the Seller that neither the Special Goods nor the manufacture thereof by the Seller will infringe any patent, copyright, registered design or any other proprietary right of any third party and the Buyer further undertakes to indemnify the Seller and keep the Seller fully and effectually indemnified from and against all actions, proceedings, claims, costs, loss, damage or expense whatsoever in respect of any infringement by the Seller of any patent, copyright, design, trademark or any other proprietary right which the Seller may suffer or incur in connection with the execution and performance of the Contract and such indemnity shall extend to any amount paid by the Seller in its absolute discretion in settlement of any claim out of court.
Unless otherwise expressly provided in the Acknowledgement of Order
(a) the price stated therein in respect of the Goods and/or the Services is calculated ex the factory of the manufacturer of the Goods and excludes all packing, carriage, loading, unloading, transport, insurance and other ancillary costs and all taxes (including V.A.T. ) and duties. The Seller will arrange packing, carriage and insurance against usual transit hazards at t Buyer’s written request but at the risk and expense of the Buyer.
(b) the Seller reserves the right to amend the said price to cover any increase in costs and/or expenses of the Seller arising between the date of the Acknowledgement of Order and the despatch of the Goods and/or the Service to the Buyer or which may arise out of special requirements not indicated in the Buyer’s order and it is agreed that the Seller’s written certificate shall be conclusive evidence of any such increase and of the extent thereof.
(c) the Buyer shall not be released from the Contract by any increase in the said price or in duties or taxes to be paid by the Buyer whether arising before or after the making of the Contract.
(d) charges for cases and packing materials will be credited to the Buyer if returned in good condition carriage paid and the Seller duly advised within 14 days.
(1) Any times quoted for completion, delivery, despatch, supply and, where applicable, for erection and installation are to be computed from the date specified for that purpose in the Acknowledgement of Order, and after the Seller has received all necessary information and drawings to enable the Seller to put the work in hand together with all documents, licences and other authorisations and consents to be obtained by the Buyer and the Buyer has paid any initial payment and secured his or its finance for the purchase to the satisfaction of the Seller.
(2) Such quoted times are to be treated as estimates only notwithstanding any express undertaking as to delivery or supply and, where applicable, erection and installation and shall not be of the essence of the contract nor involve any contractual obligation on the Sellers part. Delivery shall be deemed to be effected when the goods have left the Seller’s factory or the Buyer has been notified that the Goods are ready for despatch.
(3) Without prejudice to the foregoing provisions of this Clause and notwithstanding any express undertaking as to delivery or supply the Seller shall be entitled to a reasonable extension of time without payment of any agreed liquidated damages should completion, despatch or delivery or supply, where applicable, completion of erection and installation to be delayed by reason of the Buyer’s failure to perform his or its obligations under the Contract or the Buyer’s omission to give to the Seller necessary instructions, or by reason of the Seller conforming with any written instructions given by the Buyer, or by reason of any of the matters referred to in the first paragraph of this Clause or for any other reason solely or substantially attributable to the Buyer.
12. SUSPENSION OF WORK
Notwithstanding that the Buyer is not entitled hereunder to require the manufacturer of the Goods or the Suppliers of the Services to suspend work, should the Seller accede to any request from the Buyer to that effect, the price payable to the Seller under the Contract shall be increased to cover any extra costs and/or expense incurred by the Seller as a direct or indirect consequence of any such suspension. Likewise, the said price shall be similarly increased if work is suspended as a consequence of the Buyer’s failure or omission to perform his obligations hereunder. In no case shall the Seller be liable to the Buyer for any direct or indirect loss suffered by the Buyer as a result of any suspension made at the request of or in consequence of any such failure or omission by the Buyer.
13. ERECTION AND INSTALLATION
Erection and installation of the Goods is not include in the price unless specified in the Acknowledgement of Order or mutually agreed in writing between the parties hereto subsequent to the issue of the Acknowledgement of Order and when erection and installation is to be carried out by the Seller it will be upon the terms and conditions expressly relating to erection and installation agreed between the Buyer and the Seller, which terms and conditions if applicable shall form an integral part of the Contract.
14. PASSING OF PROPERTY
Notwithstanding the provisions of Clause 20 hereof the Seller and the Buyer expressly agree that until the Seller has been paid in full for the Goods and/or the Services and until all other sums due from the Buyer to the Seller or any accounts whatsoever have been paid in full.
(a) property in the Goods shall remain in the Seller and the Goods shall be received and held by the Buyer as agent of and bailee for the Seller and the Buyer shall store the Goods without charge to the Seller in such manner that they are clearly identified as the property of the Seller.
(b) the Seller may recover all or any of the Goods from the Buyer without notice at any time they are in the possession of the Buyer and for that purpose the Seller and its servants and agents may enter upon any land or building upon which the Goods are situated.
(c) without prejudice to the foregoing provisions of this Clause the Buyer has the right to dispose of the Goods or such other products in which they are incorporated but only for the account of and as agent for the Seller and in the event of such disposal, the Buyer has the fiduciary duty to the Seller to account to the Seller for the proceeds of the sale, but may retain therefrom any excess of such proceeds over the total amount outstanding under this and any other sale contracts between the parties hereto.
(d) the Buyer shall without charge to the Seller ensure that the Goods and any products in which they are incorporated are kept in good condition and repair and shall keep such goods and products insured against all risks to their full replacement cost under a policy which provides for all moneys payable thereunder to be paid to the Seller as agent for the Buyer for the purpose of satisfying from such moneys any outstanding claims by the Seller against the Buyer and paying the balance (if any) to the Buyer.
(a) the Buyer shall be deemed to have accepted the Goods and/or the Services as being in conformity with the Contract and shall be bound to pay for them, unless written notice of rejection thereof is received by the Seller within five days of delivery.
(b) if after notice of rejection has been given, any conduct of the Buyer is inconsistent with such rejection or in relation to the Goods the buyer deals with the same as owner thereof or undertakes any conduct inconsistent with the ownership of the Goods by the Seller, the buyer shall be deemed to have accepted the Goods and/or the Services and be bound to pay the Contract price.
If despatch of the Goods is delayed by any act or omission of the Buyer and the Buyer does not arrange promptly for the Goods to be stored elsewhere the Seller shall be entitled to arrange for the Goods to be stored at the Buyer’s risk and the Buyer shall indemnify the Seller against all costs and expenses arising out of such storage. Further, if the goods are stored at the Seller’s premises the Buyer premises the Buyer shall pay the current charges for the same. Charges for such storage shall be paid at the rates and in the manner provided for in the next following clause.
17. TERMS OF PAYMENT
(1) Any terms of payment specified in the Acknowledgement of Order shall apply. Subject to any such terms payment of all sums payable under the Contract shall be made in full when the Goods are ready for despatch and/or the Services are ready for supply. Any further sums which shall become due to the Seller over and above the terms specified in the Acknowledgement of Order, however arising, shall likewise be paid at the time when the Goods are ready for despatch or the Services ready for supply, or if arising after that time, be payable on demand.
(2) If for any reason the Buyer is unable or unwilling to take delivery when the Goods are ready for despatch or to accept the Services or if delays of any account arise through causes beyond the Seller’s control, or if there be minor defects in the Goods and/or the Services which do not substantially affect their commerical use, then payment shall not be withheld or deferred. In the event of special terms for payment having been arranged, then each of the respective instalments shall be paid by the date stipulated and agreed.
(3) In all cases time of payment shall be of the essence of the Contract.
(4) Should it be neccsary for any reason to depatch any major item comprised in the Goods separately this will be invoiced and the invoice will be payable by the Buyer when such item is ready for despatch notwithstanding that any other items conprised in the Goods not essential for the work in hand shall not be ready for despatch or have not been despatched.
(5) Unless otherwise indicated in the Acknowledgement of Order all payments shall be by cash, cheque, bill of exchange or bank transfer to the Seller at Leacroft Road, Birchwood, W arrington, Cheshire free of any deductions whatsoever. Cheques and bills of exchange are to be treated as payment only after honour and the Seller shall not be responsible for presenting or protesting the same in due time. All discounts and transfer charges shall be for the account of the Buyer.
(6) Without prejudice to the Seller’s rights for immediate payment there shall be paid to the Seller interest on any sum payable to it in accordance with the agreed terms of payment at the rate of 4 % above the base lending rate of Barclays Bank PLC from time to time computed from the date at which such sum becomes payable until the date of actual payment.
(7) If the Buyer decides to make any payment within 4 weeks of the due date for the payment all sums payable to the Seller under the Contract and any other contract between the Buyer and the Seller shall become immediately due for payment without regard to the time of the payment of any outstanding bill of exchange or other deferred terms for that other contract. In the event of such failure as aforesaid the Seller may in addition require payment in advance of any amount outstanding or to become payable under the Contract and of any such amount under any other contract between the Buyer and the Seller without regards to the terms of the contract.
(8) Without prejudice to the provisions of Clause 19 all liability of whatsoever account of the Seller under the Contract is subject to the above mentioned terms of payment and in particular and without prejudice to any other right it may have the Seller may postpone the performance of all or any of its obligations under the Contract whilst any amount due from the Buyer to the Seller remains unpaid.
(9) The Buyer shall not be entitled to withhold or set off payment for the Goods and/or the Services for any reason whatsoever.
(1) Subject to Clauses 19, 20 and 25 the Seller expressly guarantees for a period of 12 calendar months computed from the date of despatch of the Goods from the Seller’s works and/or the supply of the Services (in the case of Goods) to repair or replace any defective parts in the Goods and (in the case of Services) to remedy any defect in the services, which defect in either or both such cases has developed under proper use and arises solely from faulty material, workmanship or (in the case of Goods other than Special Goods) design, provided that the Seller’s responsibility under this Clause shall be limited to the cost of repairing the part or the cost of the replacement part and delivery as mentioned in the second sentence of this sub- clause or remedy of the defect (as the case may be) PROVIDED THAT in each of the above situations:-
(a) the Buyer shall have notified the Seller in writing within fourteen days of becoming aware thereof; and
(b) if so required by the Seller all defective Goods are first returned to the Seller’s premises carriage paid by the Buyer and accompanied by a written report; and
(c) the Goods shall have been properly and correctly stored and/or used by the Buyer. Repaired or new parts will be delivered to the Buyer at the place of destination on the British mainland specified in the Acknowledgement of Order.
(2) The Buyer shall indemnify the Seller against all other costs incurred by the Seller in repairing or replacing the part or remedying the defect including but not limited to any labour costs and expenses incurred in diagnosing the defect or refitting the part or replacement.
(1) The Seller does not exclude liability for damage for death or personal injury resulting from negligence proved against the Seller in the performance of its duties under the Contract.
(2) Subject to sub-clause (1) of this Clause the Seller’s total liability whether in contract tort or otherwise and whether in respect of one claim or in the aggregate shall be limited to the amount of the purchase price of the Goods and/or the Services payable under the Contract.
(3) Subject to sub-clause (1) of this Clause the Seller shall not be liable in any event at any time for any indirect or consequential loss or damage (including but not limited to any loss of production or of profits) howsoever caused suffered by the Buyer or any other person firm or company. The Buyer shall keep the Seller fully and effectively indemnified against all or any liability including liability under the Consumer Protection Act 1987 mentioned in the last preceding sentence.
(4) Without prejudice to the foregoing provisions of this Clause the Buyer shall in particular keep the Seller indemnified against any liability including liability under the Consumer Protection Act 1987 the Seller may incur at any time whether in tort or otherwise to any person whatsoever in respect of any defect or failure of the Goods and/or the Services or any part thereof or replacement therefore howsoever caused.
(5) Each of the preceding sub-clauses of this Clause shall be deemed to be separate and severable and enforceable accordingly.
(1) Subject to Clause 16 the risk in the Goods or any part thereof shall pass from the Seller to the Buyer immediately the same are deemed to have been delivered under the provisions of Clause 11 irrespective of any duties which the Seller may have undertaken with regard to packing, delivery, erection, installation or assembly and the Seller shall not be liable for loss or damage to the Goods after the risk in them is passed to the Buyer.
(2) Where the Goods and/or the Services are not manufactured or supplied directly by the Seller and are delivered direct to the Buyer by, or collected by the Buyer from the manufactured or supplier the Seller shall not be liable for any damage to or loss of the Goods and/or the Services whatsoever or whensoever occurring.
(3) All property supplied to the Seller by or on behalf of the Buyer which is held by the Seller for the purposes of the Contract or in transit to or from the Buyer, shall be deemed to be entirely at the Buyer’s risk and the Seller shall not be liable for any loss of or damage to such property whilst held by the Seller or in transit as afordsaid unless such loss or damage is due directly to the negligence of the Seller, its servants or agents. In no circumstances whatsoever will the Seller be liable for any consequential loss or damage arising therefrom. The Buyer shall insure all such property for all risks.
21. BUYER’S DEFAULT
If the Buyer makes default in or commits any breach of its obligations to the Seller then the Seller shall immediately become entitled (without prejudice to any other rights or claims which it may have) to suspend further performance of or to terminate the Contract.
The responsibility for insuring the Goods after the risk in them has passed to the Buyer shall be that of the Buyer.
23. DAMAGE IN TRANSIT
The Seller shall not be liable for loss or damage to the goods after the risk in them has passed to the Buyer.
24. PATENTS ETC.
(1) Insofar as the Goods or any part thereof are the subject of any patent rights belonging to the Seller the Seller grants to the Buyer under such patent rights to use the Goods in the normal and intended manner but not otherwise.
(2) The Seller shall not be liable to the Buyer in respect of any loss or damage whatsoever (including but not limited to loss of profits in respect of or occasioned by any loss of use of the Goods) resulting from the infringement or alleged infringement of any copyright patent or registered design by the Goods or any part thereof.
25. GOODS NOT MANUFACTURED BY THE SELLER
(1) In respect of any part of the Goods not manufactured by the Seller or any part of the Services not supplied by the Seller in relation to which the supplier of that part accepts liability to the Seller more restricted than the liability of the Seller to the Buyer under Clauses 18 or 19 above or under any guarantee condition warranty or other obligation the said Clauses guarantee condition warranty or obligation shall apply subject to the proviso that the liability of the Seller in respect of such part shall be further restricted in the same terms as the liability of the supplier to the Seller is restricted provided further that such proviso shall not apply if as a result of such application any restriction or exclusion of liability by the Seller is unenforceable.
(2) Without prejudice to the generality of the remainder of the Contract the Seller shall not be responsible for ensuring that any combination of equipment included in the Goods and/or the Services of which all or part has been selected or nominated by the Buyer and not manufactured by the Seller is in any way satisfactory or fit for the purpose for which it is intended and the onus of ensuring this shall be on the Buyer.
26. SAFETY AND TECHNICAL INSTRUCTIONS
The Buyer undertakes to ensure that it and all its servants and agents will observe all safety and technical instructions in the Seller’s or manufacturer’s operating manuals, bulletins and other directions.
In the event of any dispute arising out of the contract the Buyer and the Seller undertake to make every effort to reach an amicable settlement. Failing such settlement, the dispute shall be referred to the Arbitration in London of a single Arbitrator to be agreed upon by such parties, or, in default of agreement for 28 days, to be appointed by the President for the time being of the Institute of Arbitrators, upon the application of either such party. Such Arbitrator shall have the powers conferred upon him by the Arbitration Act 1950, or any statutory amendment or re-enactment thereof for the time being in force, and his decision will be final and binding upon both such parties.
28. GOVERNING LAW AND JURISDICTION
The validity extent and performance of the Contract and any variation thereof, or any agreements entered into by the parties hereto ancillary to the Contract shall be governed by English Law. Insofar as the Buyer is not already subject to the jurisdiction of the English Courts, it shall subject to Clause 27 to be deemed to submit itself to the jurisdiction of the English Courts hereby. Subject to the provisions of Clause 27 no action or proceeding in relation to the Contract or arising therefrom shall be initiated against the Seller except in the Courts of England.
The Buyer may not assign the Contract or any rights thereunder without the consent of the Seller. The Seller may assign the contract or any rights thereunder without the consent of the Buyer.
Where these terms and conditions provide that a notice from either party to the other is required, such notice must be served in writing and conveyed by the fastest reasonable means, having regard to the content thereof, it being understood that normally such a notice could be sent by pre-paid registered letterpost, provided that where there is in these Conditions a specified period within which such a notice is to be given to ensure its validity, such notice must reach the party to whom it is addressed within the period stipulated.
Without prejudice to any other rights and remedies which the Seller may have under the Contract, the Seller shall in respect of all debts due and payable by the Buyer to the Seller have a general lien on all goods and property belonging to the buyer in its possession (whether worked on or not) and shall be entitled upon the expiration of fourteen days notice to the Buyer, to dispose of such goods or property as it thinks fit and to apply any proceeds of sale therefore towards the payment of such debts.
If at any time any one or more of the provisions of these Conditions become invalid, illegal or unenforceable in any respect under any law, the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
The rights and remedies of the Seller under the Contract shall not be diminished waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Seller nor by any failure of or delay by the Seller in asserting or exercising any such rights or remedies.
The Incoterms in force at the date of formation of the Contract shall apply save to the extent they are inconsistent with any of the terms of the Contract.
35. CLAUSE HEADINGS
Clause headings have been inserted in these Conditions merely to facilitate reference and shall have no bearing on the interpretation of any of the provisions.
If the Buyer requests specified tests and specification of the Goods and/or the Services, such tests are to be, in the case of Goods, at the Seller’s premises or, in the case of the Services at the Seller’s premises or on site as the case may be and are to be final there. If requested in writing arrangements will be made for the Buyer’s representative to observe such tests and inspection. The Buyer will be deemed to have accepted the Goods and/or the Services as satisfactory after the completion of such tests and inspection unless written notice to the contrary specifying the matters complained of is received by the Seller within three days of completion of such tests and/or inspection.
37. CONTRACTS FOR SERVICES
If the Contract is for and includes Services to be performed by the Seller whether of installation, commissioning, repair, rectification or improvement then, unless the Contract otherwise provides, the following additional provisions shall apply thereto:-
(a) the Seller shall be obliged to carry out the Services only during normal working hours. If the Buyer requests that overtime be worked and the Seller agrees thereto such overtime shall be paid for by the Buyer in addition to the Contract price at the rate determined by the Seller;
(b) if the Services are to be carried out at the premises of the Buyer or at his request at the premises of any other person then the Buyer undertakes to provide or to procure the provision free of charge of:-
i) proper and safe storage and protection of all goods, tools, plant and equipment and materials on site;
ii) free and safe access to the site and to the point at which the work is to be executed;
iii) all facilities and services necessary to enable such work to be carried safely expeditiously; and
iv) if such work includes the installation of any Goods, all builders work, foundations, cutting away and making good required and the ready availability of all plant and equipment so as to permit such Goods to be tested forthwith on completion of such work and the Buyer shall pay to the Seller the amount of any expenses incurred by the Seller by reason of any breach by the Buyer of any of its undertakings in this sub-clause but without prejudice to the Seller’s right to recover further damages therefore and the Seller’s certificate of such amounts shall be conclusive, and binding upon the Buyer;
(c) where the Goods and/or the Services are to be supplied on site they shall at all times be at the sole risk of the Buyer and if any part thereof is lost, damaged or destroyed through any cause whatsoever the Seller shall be entitled to charge as a variation to the Contract for the restoration of any Goods and/or Services so lost, damaged or destroyed. The Buyer shall for the benefit of itself and the Seller insure and keep insured with such reputable insurers as the Seller shall approve, the full value of the Goods and/or the Services and the cost of any professional fees or services against every kind of loss, damage or destruction. The Buyer shall produce to the Seller on demand the policy or policies under which such insurance is effected together with the latest premium receipts. If the Buyer shall default in effecting such insurance the Seller may effect the same on behalf of the Buyer and the costs thereof shall be reimbursed by the Buyer to the Seller on demand.