| 1. | DEFINITIONS |
| 1.1 | In these Conditions the following expressions shall have the following
meanings: |
| 1.1.1 | "Additional Items" means the following were incurred:
(i) Packaging costs under conditions 7.3;
(ii) Any taxes (including value added tax), duties or other charges levied by
any governmental or other authority in respect of or by reason of the
sale, delivery, export or import of the Goods or any part thereof but
excluding taxes assessed on profits or gains;
(iii) Transportation costs under Condition 7.1 where the Customer has
requested express, same day, overnight delivery or any other similar
service or an additional £10 where the price payable (exclusive of Value
Added Tax) is £30 or less;
(iv) Storage costs under Condition 7.4;
(v) The cost of samples under Condition 3.5; |
| 1.1.2 | "Contract" means the quotation, these Conditions of Sale, and any other
document incorporated in a contract between the seller and the customer; |
| 1.1.3 | "the customer" means any person firm or company receiving a quotation from
and/or placing an order with the seller; |
| 1.1.4 | "Delivery/Period" means 10 working days after the estimated delivery date; |
| 1.1.5 | "Goods" means all and every item of goods or part thereof supplied by the
Seller and where relevant includes any work carried out by the Seller on items
supplied by the Customer; |
| 1.1.6 | "Seller" means Bunzl UK & Ireland (trading as Bunzl Cleaning & Hygiene Supplies) and reference to the acknowledgement,
consent, authority or agreement of the Seller shall mean acknowledgement,
consent, authority or agreement in writing signed by a Director of the seller; |
| 1.1.7 | "Transgression" means any breach of contract or tort or any other act, default,
omission or statement of the Seller, its employees, agents or subcontractors in
respect of which the Seller is liable to the customer; |
| 1.1.8 | "Warranty Period" means 1 month from the date of delivery. |
| 2. | GENERAL |
| 2.1 | These Conditions apply to all contract for sale of Goods by the seller and
supersede any previous Conditions of Sale published by the Seller. No
additions or modification to or terms or conditions inconsistent with these.
Conditions shall be binding upon the Seller unless agreed by the Seller in a
document referring to a modification, alteration, variation or addition of or to the
relevant Condition or Conditions. |
| 2.2 | All brochures, catalogues, price lists, samples, particulars or dimensions and
other advertising or descriptive material submitted to the Customer are
intended to be approximate only and to give a general impression of the Goods.
Unless expressly incorporated the same shall or form part of the Contract. In
particular, price lists are only of a limited duration and Customers should check
the validity of any price lists in their possession before relying on them. The
Seller reserves the right to make alterations to the design specification or
source of manufacture of the Goods without prior notification to the Customer
provided the Goods are of equivalent quality and perform the same function. |
| 2.3 | The Customer shall be responsible for complying with any legislation or
regulations (of the United Kingdom or any other country) governing the export
and import of the Goods into the country of destination (and any other country
through which the Goods pass in transit) and for the payment of any duties
thereon. The Customer shall fully indemnify the Seller against any fines,
penalties, costs, claims, damages, losses and the expenses suffered by the
Seller as a result of the Customer failing to comply with the Clause 2.3.
|
| 3. | QUOTATION AND ORDERS |
| 3.1 | No contract for the supply of Goods will be created by the acceptance of a
quotation or an order until the Seller acknowledges the order or commences
work on the order. |
| 3.2.1 | The Seller may refuse to accept any order based upon a quotation if the
quotation is open for acceptance in an unlimited period: |
| 3.2.2 | Where any order is based upon the standard price list of the Seller then,
subject to Condition 3.3 the price shall be valid provided that delivery is to take
place within 30 days from the date of order. |
| 3.3 | The Seller reserves the right to increase the price quoted per unit for Goods if
the Customer orders less than the number of units upon which the quotation
was based or if the Seller’s supplier’s price increase. |
| 3.4 | The Seller reserves the right to increase or decrease the number of items in the
Goods to be supplied by a variation not exceeding 5 per cent and to make an
appropriate increase or decrease (as the case may be) to the price. |
| 3.5 | Any samples submitted with the quotation or at the Customers request must be
returned within 90 days of receipt and if not so returned the cost of samples be
added to the Contract price or invoiced separately. |
| 3.6 | The Seller reserves the right to make any changes in the specification 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 specification,
which do not materially affect their quality or performance. |
| 4. | PRICE, AND PAYMENT TERMS |
| 4.1 | Unless otherwise stated any Additional Items shall be added to the price or may
be invoiced separately. |
| 4.2 | Payment in full (without any deduction by way of set off or counter claim) for the
Goods (and Additional items if any) shall be due and payable in POUNDS
STERLING within 30 days of the date of the Seller’s invoice. |
| 4.3 | The Seller reserves the right to charge interest at 4% above the Midland Bank
PLC base lending rate for the time being on or any overdue payments until
repaid in full. |
| 4.4 | The Seller reserves the right to recover form the Customer all direct expenses
reasonably incurred by the Seller in the collection of any overdue sums. |
| 4.5.1 | Without prejudice to any other rights of the Seller, if there is reason to doubt
that the amounts due from the Customer under the terms of the Contract will be
paid in full according to the terms thereof, then the seller reserves the right to
require payment in full before delivering or performing any other work or
services whatsoever for the Customer; |
| 4.5.2 | The Customer shall indemnify the Seller against all losses sustained or extra
expenditure incurred as a result of such a suspension of ordering, delivery or
other work or services including a reasonable allowance for storage; |
| 4.5.3 | Where payment requested in accordance with this Condition is not received
within 30 days of date of the invoice, the Seller reserves the right to sell or
dispose of the Goods produced for the Customer and to recover any additional
loss from the Customer. |
| 5. | TITLE |
| 5.1.1 | Legal ownership of the Goods is to remain vested in the Seller until both the
Goods and any Additional items have been paid for in full, and until full
payment has been received by the Seller under any other contract with the
Customer for which payment is outstanding; |
| 5.1.2 | If the Customer obtains possession of the Goods prior to such payment, the
Customer shall hold the Goods in a separate and identifiable form as bailee
and fiduciary agent for the Seller; |
| 5.1.3 | Failure to pay the full amount when due shall give the Seller, or its employees
or agents, the right to repossess the Goods (and enter the Customer’s
premises for that purpose if necessary) with or without notice and without
liability and, at its option, to avail itself of any other legal remedy; |
| 5.1.4 | The Seller shall have the right to sell the Goods once they have been repossessed
under this Condition. |
| 5.2 | Notwithstanding this Condition 5, the Seller shall be entitled to maintain an
action for the price of the Goods and Additional items at any time after the date
when payment is due. |
| 5.3 | The Customer may contract to sell the Goods to a third party in return for
valuable consideration provided always that the Customer shall account in a
fiduciary capacity to the Seller for the proceeds of sale (to the extent of the
Customer’s indebtedness to the Seller) keeping the same separate and
identifiable from its other monies. The Customer’s rights under this Condition
5.3 shall cease if an event specified in clause 9.1.1 occurs to the Customer. |
| 5.4 | If prior to payment in full being made the Goods become comingled with similar
goods belonging to the Customer and/or any third party the Customer shall hold
the Seller’s proportion of the comingled Goods or their proceeds of sale on trust
for the Seller. The Seller shall be treated as a tenant-in-common of the
comingled goods and the Customer shall hold as trustee for the Seller’s
proportion and (if the comingled goods have been sold) pay to the Seller its due
proportion of the proceeds of sale. |
| 5.5 | Where the Goods are attached to either buildings or plant machinery of the
Customer, the Customer agrees that it is not its intention that the Goods
thereby become fixtures and fittings or part of the plant or machinery, but the
Goods shall remain as chattels and be severable from the buildings or plant or
machinery. |
| 6. | PERFORMANCE AND FORCE MAJEURE |
| 6.1 | The seller shall take reasonable steps to perform its obligations and deliver
within the time specified, but such times are estimates only. The Seller shall not
be liable for expenses losses or damages caused by late performance or delay
in delivery and delays shall not entitle the Customer to rescind the Contract. |
| 6.2 | Without prejudice to the generality of Condition 6.1, the Seller shall have no
liability for any expenses losses or damages caused by the delay or default in
performance of any obligation caused directly or indirectly by breakdown or
unavailability of plant or machinery, failure of supplies from the Seller’s own
suppliers or failure of supply or raw material, inability to obtain sufficient labour
or sufficient skilled labour or any other cause or causes beyond the reasonable
control of the Seller. If such cause or causes prevent delivery of goods within
the Delivery Period either party may cancel the order on giving written notice to
the other at least 5 days before the Seller may reasonably expect to complete
the order without liability to compensate the other party for any loss or damage
whatsoever sustained by reason of the non delivery or non acceptance of those
Goods. |
| 6.3 | The Seller reserves the right to make part deliveries and to submit invoices for
Goods supplied as part of an order. |
| 6.4 | The Sellers may substitute alternative Goods for those ordered by the
Customer provided the alternatives are of equivalent quality and perform the
same function. |
| 7. | RISK CARRIAGE PACKAGING AND STORAGE |
| 7.1 | Where no specific instructions about the matter in which the Goods are to be
delivered to the Customer or the delivery address are given, the Seller reserves
the right in its absolute discretion to choose the means of carriage to the
Customer and to direct the Goods to the Customer’s last known business
address. Any such specific instructions must be given to the Seller at the time
or order and where such specific instructions are given the Seller reserves the
right to charge for delivery. |
| 7.2 | In the case of sales where the Seller delivers directly or contracts directly with
the carrier then the Seller will repair or (at its option) issue a credit note in
respect of Goods lost or damaged in transit (other then by default of the
Customer), provided that: |
| 7.2.1 | the customer specifies on the Carrier’s Consignment Note details of such loss
or damage; and |
| 7.2.2 | In respect of complete non arrival of all of the Goods comprised in the Contract
notification is made to the seller within 7 days of the date of dispatch of the
Goods (the date of despatch to be identified from the invoice) and separately to
the carrier within the period stipulated by the Carrier’s terms of carriage for
claims against the Carrier; and |
| 7.2.3 | in respect of damage to all or part of the Goods or loss of part of the Goods
comprised in the Contract notification is made to the Seller within 5 days of
delivery of the Goods (which will normally be stated on the invoice) and
separately to the Carrier within the period stipulated by the Carrier’s terms of
carriage for claims against the Carrier. On request, the Seller will inform the
Customer of the name and address of the Carrier and any time limit for claims,
stipulated by them. |
| 7.3 | If it is necessary to despatch Goods in crates, cases, pallets, stillages or skids
the Seller reserves the right to charge for packaging. The amount charged for
packaging will be credited in full to the Customer if the packaging is returned in
good condition at the expense of the Customer within 1 month of delivery. |
| 7.4 | Once the Goods are ready for delivery the Seller shall be entitled to invoice and be
paid for the goods as if they had been delivered if for any reason the Customer
does not arrange for or accept delivery. The Seller shall arrange storage for the
Goods and the cost of storage shall be added to the Contract price. |
| 7.5 | Where the Goods are to be delivered in instalments, each delivery shall
constitute a separate contract and failure by the Seller to deliver any one or
more of the instalments in accordance with these conditions or any claim by the
customer in respect of any one or more instalments shall not entitle the
customer to treat the Contract as a whole as repudiated. |
| 8. | TERMS AND REPRESENTATIONS |
| 8.1 | THESE CLAUSES DEFINE THE CUSTOMER’S RIGHTS IN RESPECT OF
ANY LOSS OR DAMAGE CAUSED BY THE GOODS OR FOR ANY
STATEMENTS MADE BY THE SELLER THEIR EMPLOYEES OR AGENTS,
CUSTOMERS ARE ADVISED TO READ THESE PROVISIONS CAREFULLY.
The Seller’s prices are kept as low as practical and the circumstances of their
business preclude full indemnity insurance being obtained at a price which
would enable the Seller to sell Goods at a competitive price.
ACCORDINGALLY CUSTOMERS ARE ADVISED TO CHECK THAT THEY
ARE COVERED BY INSURANCE AGAINST ANY LOSS OR DAMAGE THEY
MAY SUSTAIN. THE SELLER DOES NOT INCLUDE ANY RESERVE FOR
POTENTIAL LIABILITY. |
| 8.2 | The Seller aggress to repair or (at its discretion) replace or (at is discretion)
issue a credit note in respect of Goods which are found to be defective (fair
wear and tear expected) and which are returned to the Seller within the
Warranty Period provided that each of the following are satisfied; |
| 8.2.1 | notification of any defect is given to the Seller immediately upon it
becoming apparent to the customer; |
| 8.2.2 | the Goods have only been used under normal operating conditions and have
only been subject to normal use; |
| 8.2.3 | the Goods are returned to the Seller’s premises at the Customer’s expense; |
| 8.2.4 | any Goods or parts of Goods replaced shall become the property of the Seller; |
| 8.2.5 | no work whatsoever (other than normal and proper maintenance) has been
carried out to the Goods or any part of the Goods without the seller’s prior
written consent; |
| 8.2.6 | the defect has not arisen from design made, furnished or specified by the
Customer; |
| 8.2.7 | the defect has not arisen from a design modified by the Customer. |
| 8.3 | The Seller accepts liability; |
| 8.3.1 | for death or personal injury to the extent that it results from the negligence of
the Seller, its employees (whilst in the course of their employment) or its agents
(in the course of the agency); |
| 8.3.2 | for any breach by the Seller of any statutory undertaking as to title, quiet
possession and freedom from encumbrance. |
| 8.4 | Subject to Conditions 8.2 and 8.3 from the time of delivery of the Goods the
Customer shall be responsible for any defect in the Goods or loss, damage,
nuisance or interference whatsoever consequential economic or otherwise or
wastage of material resulting from or caused by or to the Goods. In particular
the Seller shall not be liable for any loss of profits or other economic losses.
The Seller accordingly excludes all liability for the same. |
| 8.5 | No condition, warranty or other term, express or implied (by statute or
otherwise) is given by the Seller that the Goods (whether or not the Seller or its
employees or agents have recommended their use) are of any particular quality
or will enable the Customer to attain any particular performance or result, or will
be suitable for any particular purpose or use under specific conditions or will
provide any particular capacity, notwithstanding that the requirement for such
performance, result or capacity or that such particular purpose or conditions
may have been known (or ought to have been known) to the Seller, its
employees or agents. |
| 8.6.1 | To the extent that the seller is held legally liable to the Customer for any single
Transgression, the Seller’s liability for the same shall not exceed the price of
the order of which the defective Goods were a part of Ten Thousand Pounds
(whichever is the lower) provided that a number of Transgressions, whether
successive or concurrent, which together result in or contribute to substantially
the same loss or damage shall be treated as a single Transgression; |
| 8.6.2 | The restriction of liability in Condition 8.6.1 shall not apply to any liability
accepted by the Seller in Condition 8.3. |
| 8.7 | If any exclusion or limitation of liability or any other provision contained in the
Contract is held invalid any applicable satute or rule of law, it shall to that
extent be deemed omitted, but if the Seller thereby becomes liable for any
liability which would otherwise have been excluded or limited, such liability
shall be subject to the other exclusions limitations or provisions set out in
Condition 8. |
| 8.8 | The Customer shall fully indemnify the Seller against all losses, damages,
costs, actions, claims, demands, fees and other expenses (legal or otherwise)
the Seller may incur in consequence of the Goods or Connected Goods being
(whether in whole or in part and directly or indirectly) invoiced in a claim under
the Consumer Protection Act 1987 except to the extent that the alleged defect
in the product the subject of such claim was directly caused by an act or
omission of the Seller |
| 9. | TERMINATION |
| 9.1 | The Seller shall, at its option, be entitled by notice to terminate all or any of its
contracts with the Customer forthwith and recover all expenses, losses and
damage resulting to the Seller including (but without limitation to) loss of profit
or other consequential loss if; |
| 9.1.1 | (a) the customer has a bankruptcy petition presented against him or a
bankruptcy order is made;
(b) the customer makes or seeks to make any composition or arrangement with
his creditors;
(c) the customer makes a proposal to his creditors for a voluntary arrangement
or applies for an interim order (without the meaning of Section 286 Insolvency
Act 1986);
(d) an encumbrancer takes possession of any of the Customer’s assets, or any
of the Customer’s property is taken in execution or process of law;
(e) a petition is presented or an order is made or a resolution is passed for the
winding-up of the Customer;
(f) a petition is presented or an order is made for an administration order to be
made in relation to the Customer;
(g) the Customer’s directors make a proposal for a voluntary arrangement with
the Customer’s creditors;
(h) The Customer is unable to pays its debts (within the meaning of section 123
Insolvency Act 1986);
(i) a receiver or administrative receiver is appointed over any of the Customer’s
assets; or |
| 9.1.2 | the Customer fails to make any payment owed to the Seller on the due date;
or |
| 9.1.3 | the Customer fails to make payment in advance, when requested in
accordance with Condition 4.5 above, within 7 days being requested to do so;
or |
| 9.1.4 | the Customer fails to take delivery of or to collect the Goods within 14 days of
being notified by the Seller that they are to be delivered or are ready to be
collected, or |
| 9.1.5 | the Customer is in breach of the terms and conditions of any contract with the
Seller (including breach of these Conditions) and shall fail to remedy the same
within 21 days of notice specifying the breach and requiring remedy (if the
breach shall be remediable). |
| 10. | NOTICES |
| 10.1 | Any notice, consent, notification, acknowledgement, authority or agreement
required or referred to in the Contract shall be; |
| 10.1.1 | In writing; and |
| 10.1.2 | given to the party for whom it is intended at such party’s registered office or last
known address; and |
| 10.1.3 | given by registered or recorded delivery post, telex, or telefax transmission and
shall be deemed to have been received 5 days after the date of posting or 1
day after the date of transmission as the case may be. |
| 11. | JURISDICTION |
| 11.1 | The Contract shall be governed in all respects by English Law and be subject to
the sole jurisdiction of the English Courts. |
| 1 | DEFINITIONS |
| | In these Terms and Conditions of Purchase: |
| 1.1 | "the company" means Bunzl UK Ltd (trading as Bunzl Cleaning & Hygiene Supplies). |
| 1.2 | "the supplier" means the supplier named overleaf and any assignee and sub-contractor permitted under clause 12. |
| 1.3 | "the goods" means all or any of the goods stated overleaf for supply to the Company (Provided always that where the Order is for the provision of services the words “the Goods” shall be constructed as meaning the services which the Supplier has contracted to provide). |
| 1.4 | "the Order" means the contract formed by the acceptance of the Order stated overleaf on these terms and conditions. |
| 2 | THE CONTRACT |
| 2.1 | All the terms of the contract for the supply of the Goods between the Company and the Supplier are set out on the face of the Company's order form and these Terms and Conditions, and all other written printed or standard terms are herby excluded. |
| 2.2 | Unless any terms discussed or arising from any previous course of business between the Company and the Supplier are specifically incorporated into the Order in writing they shall not form part of the Contract. |
| 2.3 | Any written acceptance of the Order (unless clearly stated on its face to be a counter offer) or delivery of the Goods shall be unconditional acceptance of the Order. |
| 3 | VARIATION AND WITHDRAWAL OF OFFER |
| 3.1 | No variation or waiver of the Order shall be binding on the Company and the Supplier unless agreed in writing and signed by a director of the Company. |
| 3.2 | The details set out overleaf constitute an offer to contract with the Supplier and may be withdrawn by the Company at any time before the Supplier's written acceptance has been received by the Company. |
| 4 | WARRANTIES AND REPRESENTATIONS |
| 4.1 | The Goods shall: |
| 4.1.1 | conform in every respect to the specification, designs, drawings, samples,
instructions or descriptions furnished to or adopted by the Company and to any latest relevant British Standard Specification; and |
| 4.1.2 | be of the very best quality; and |
| 4.1.3 | be fit for their purpose where such purpose was expressly drawn to the attention of the Supplier or was apparent by implication from the nature of the Goods; and |
| 4.1.4 | be free from defect in tolerance, performance, safety, materials and workmanship. |
| 4.2 | The Supplier warrants that he Goods will be safe as persons generally are entitled to expect in all the circumstances and that therefore appropriate quality control
and testing will have been carried out on the Goods. |
| 4.3 | The Supplier warrants that the design, construction, quality, packaging and labeling of the Goods comply in all respects with the relevant requirements of any statute, statutory rule instrument or order including (without prejudice to the generality of the forgoing) COSHH and environmental regulations. |
| 4.4 | The Company shall be entitled to rely on any representation made to the Company by or on behalf of the Supplier concerning the Supplier or any aspect of the Goods to the Company by or on behalf of the Supplier. |
| 4.5 | Except to the extent that they embody designs prepared by the Company the Supplier warrants that neither the Goods nor the use thereof by the Company or its assignees will infringe any patent, trade mark, registered designs or other proprietory right and the Supplier undertakes to indemnify the Company against all actions claims demands and costs arising from or by reason of any actual infringement of any such right. |
| 5 | DELIVERY AND PACKING |
| 5.1 | The Goods must be delivered in quantities and at the times and dates stated in the
order (and if no time is stated delivery must be during normal working hours). |
| 5.2 | The Company may by notice in writing cancel the Order if the supplier fails to deliver any or all of the Goods by the specified dates without any liability (in particular for payment on a partial performance or quantum meruit basis). The right of cancellation is without prejudice to any other remedy the Company may have on exercising the right of cancellation the Company may, as its option in respect of Goods already delivered comprising of an Order. |
| 5.2.1 | choose to make payment in full or part; or |
| 5.2.2 | return such Goods at the Supplier's expense or require the Supplier to collect such goods at the Supplier's expense without any liability to make any payment either in respect of such Goods or in respect of further instalments of the order. If the Company exercises its right of cancellation the Company may recover from the supplier any expenditure incurred by the Company (whether directly on indirectly) in obtaining goods in substitution for those which have not been delivered or accepted. |
| 5.3 | Subject to clause 5.5, time shall be of the essence of the contract, but the
Company reserves the right to adjust the specified rate or date of delivery at any time. |
| 5.4 | All Goods must be delivered to and off loaded carriage and packing paid at the Supplier's risk to such destination as the Company may direct. Any third party carrier shall be deemed to be agent of the Supplier and not of the Company. The Company reserves the right to make alternative delivery arrangements and to claim an allowance equal to any carriage charge. The Company will not pay for non return packing materials unless previously agreed. |
| 5.5 | If for any reason the Company is unable to accept delivery when the Supplier is ready willing and able to deliver, and the date for delivery has passed at the written request of the Company the Supplier shall store and keep safe the Goods until delivery is requested by the Company, the Company undertaking to pay the reasonable costs of the Supplier for such storage and safekeeping. |
| 5.6 | The Supplier warrants that the packing materials will be such that the Goods will resist pilferage, distortion, corrosion, leakage or contamination. |
| 6 | INSTALMENTS AND CALL-OFF |
| 6.1 | Where the Goods are contracted to be delivered by instalments or by call-off by the Company:- |
| 6.1.1 | the Company shall have the right to treat any breach by the Supplier of its obligations as regards one or more instalments or call-off as a repudiation entitling the Company itself to repudiate further performance and to recover damages for the breach; |
| 6.1.2 | the acceptance by the Company of any one or more instalments or call-off notwithstanding a breach of its obligations by the Supplier shall not prejudice or restrict any of the Company's rights in respect of any other breach by the Supplier. |
| 7 | INVOICES AND ADVICE NOTES ETC. |
| | The Supplier shall provide the Company with such invoice invoices advice notes delivery notes and other documentation as the Company shall have from time to time specified. |
| 8 | NO PUBLICITY |
| | Neither this order nor the Company's name shall be used by the Supplier for advertisement or publicity or be disclosed to any third party without the Company's prior written consent. |
| 9 | PRICE |
| 9.1 | No increase in price will be accepted by the Company without prior written agreement. The Supplier shall give a minimum of 6 weeks prior written notice of intention to increase prices. The price quoted by the Supplier shall include the cost of delivery and packing. |
| 10 | PAYMENT |
| 10.1 | Unless otherwise agreed in writing the Company shall pay for the Goods as outlined overleaf. |
| 10.2 | The Company shall have the right to set off against any sums due to the Supplier the amount of any claim to the Company has against the Supplier or the amount of any monies due to the Company from the Supplier. |
| 11 | INDEMNITIES |
| | IMPORTANT: THE SUPPLIER IS ADVISED TO READ THIS CLAUSE |
| 11.1 | The supplier shall fully and effectively indemnify the Company against all losses (including loss of profit and other consequential loss), costs, claims, demands, expenses (legal or otherwise) interest, damage or injury directly or indirectly suffered by the Company (or claims in respect thereof made against the Company by third parties and any costs and expenses arising in connection therewith) which result from failure to comply with or being in breach of the Order (including these Terms and Conditions) or the supplier's performance of the Order (whether negligent or otherwise) and in particular but without prejudice to the generality of their foregoing which result from late delivery, a defect in the Goods or their material construction workmanship or design (where design is the Supplier's responsibility) and from the expense of obtaining replacement goods in respect of Goods which have been rejected or have not been delivered. |
| 11.2 | The Supplier shall fully and effectively indemnify the Company against all losses, (including loss of profit and other consequential loss), costs, claims, demands, expenses (legal or otherwise) interest, damage or injury which may (directly or indirectly) be suffered by the Company as a result of: |
| 11.2.1 | any claims for infringement of any letters patent or registered design trademark or trade name by reason of the use or sale of the Goods including such costs claims demands and expenses and interest which the Company may incur in any action for such infringement or for which the Company may become liable in such action; and |
| 11.2.2 | any royalties payable by the Supplier or the Company; and |
| 11.2.3 | the Goods being (whether in whole or part and directly or indirectly) involved in a claim under the Consumer Protection Act 1987 except to the extent that the alleged defect in the product the subject of the claim was directly caused by an act or omission of the Company. |
| 11.3 | The Supplier will at all times insure and keep itself insured with a reputable Insurance Company against all insurable liability under the Order and in particular against all liabilities under this clause 11. The Company has contracted with the Supplier on the basis that the Supplier will bar the cost of insuring against all such liabilities. The Supplier will provide all facilities assistance and advise required by the Company and the Supplier's insurers for the purpose of contesting or dealing with any action claim or matter arising out of the Supplier's performance of the Order. |
| 12 | ASSIGNMENT |
| | The Order or any part of it must not be assigned or sub-contracted by the Supplier without the Company's prior written consent. In any legal proceedings between the Company and the Supplier the supplier shall not set the existence of a sub-contract as a defence to such proceedings and shall be responsible for the Supplier's contractors in all respects. |
| 13 | WAIVER |
| | No extension of time or other concessions or waivers granted by the Company shall in any way affect the Company's rights or the Supplier's obligations under the Order. |
| 14 | PROPERTY AND RISK |
| 14.1 | Unless otherwise agreed in writing property and risk in the Goods shall pass to the Company on the latest of delivery at the Company's premises, and the Company's acceptance thereof after any inspection the Company may require, (but without prejudice to the Company's right of rejection). |
| 14.2 | The property and risk in any rejected Goods passes to the Supplier immediately on written notice of rejection being served on the Supplier. |
| 14.3 | The Supplier warrants to the Company that there is no restriction on or impediment against such passing of the property to the Company. |
| 15 | SUPPLIER'S BREACH |
| | IMPORTANT: THE SUPPLIER IS ADVISED TO READ THIS CLAUSE |
| | If the Supplier has failed to comply with the terms of the Order (including any of these terms and conditions and whether as to the whole or part of the Goods comprising the Order) or with any other contract with the Company the Company shall be entitled (whether or not the goods or any part of the Goods have been accepted by the Company) to any one or more of the following remedies at the Company's discretion:- |
| 15.1 | to treat such breach by the Supplier of its obligation as a repudiation entitling the Company itself to repudiate further performance and to recover damages for the breach and without any liability to the Supplier (in particular for payment on a partial performance or quantum meruit basis); |
| 15.2 | to reject and return Goods or require the Supplier to collect them or any part thereof, any costs incurred to be paid by the Supplier. The Company shall be entitled to be repaid in full for any goods so returned; |
| 15.3 | to give the Supplier the opportunity to replace or repair the Goods or reinstate them at the Supplier's expense so that they comply with the terms of the order; |
| 15.4 | to refuse to accept any further deliveries or instalments of the Goods or any part thereof without any liability to the Supplier; |
| 15.5 | to carry out at the Supplier's expense such work as may be necessary to make the Goods or any part thereof comply with the Order; |
| 15.6 | to claim such damage as the Company may have sustained in consequence of any breach of contract including loss of profit and the expenses of; |
| 15.6.1 | Obtaining goods to replace those which have been rejected or have not been delivered; and |
| 15.6.2 | carrying out any further work on the Goods or any items of which the Goods comprise part or to which the Goods relate. |
| | These rights shall be in addition to and without prejudice to any other rights the Company may have. |
| 16 | FORCE MAJEURE |
| 16.1 | The Company shall not be liable to the Supplier for any failure to fulfil obligations under the Order if such failure is attributable to inability to obtain sufficient labour inability to obtain licences or consents for the import, export or use of the Goods or any item of which the Goods may comprise part, or any other cause beyond the reasonable control of the Company and the Company shall have the right to defer the date of delivery or performance by the Supplier or to cancel the Order without liability. |
| 17 | TERMINATION OF NOTICE |
| | In addition to any rights the Company may have under these Terms and Conditions or at Law the Company shall be entitled to terminate the Order and any other agreement outstanding with the Supplier by written notice without liability and to refuse to accept any Goods not delivered and accepted at the date of such notice PROVIDED THAT:- |
| 17.1 | the Company shall pay to the Supplier the contract price of Goods delivered and accepted by the Company and not already paid for; |
| 17.2 | the Supplier shall if so required complete all Goods partially manufactured at the date of such notice and the Company shall pay the contract price of all such goods as are accepted by the Company. |
| 18 | INSOLVENCY AND CHANGE IN CONTROL |
| 18.1 | The Company shall have the right to exercise any of the rights set out in clause 18.2 forthwith by notice in writing to the Supplier if any of the following events
occurs to the Supplier; |
| 18.1.1 | if there is a change in control of the Supplier (within the meaning of section 840
Income and Corporation Taxes Act 1988); |
| 18.1.2 | if the Supplier has a bankruptcy petition presented against him, or a bankruptcy order is made; |
| 18.1.3 | if the Supplier makes or seeks to make any composition or arrangement with his creditors; |
| 18.1.4 | if the Supplier makes a proposal to his creditors for a voluntary arrangement or applies for an interim order (within the meaning of section 286 Insolvency Act 1986); |
| 18.1.5 | if an encumbrancer takes possession of any of the Supplier's assets, or any of the Supplier's property is taken in execution or process of law; |
| 18.1.6 | if a petition is presented or an order is made or a resolution is passed for the winding-up of the Supplier; |
| 18.1.7 | if a petition is presented or an order is made for an administration order to be made in relation to the Supplier; |
| 18.1.8 | if the Supplier's directors make a proposal for a voluntary arrangement with the Supplier's creditors; |
| 18.1.9 | if the Supplier is unable to pay its debts (within the meaning of section 123 Insolvency Act 1986); |
| 18.1.10 | if a receiver or administrative receiver is appointed over any of the Supplier's assets. |
| 18.2 | The Company shall have the right without liability: |
| 18.2.1 | to terminate the Order forthwith by notice in writing to the Supplier, or to the trustee in bankruptcy administrator or administrative receiver or liquidator, or to any person in whom the contract may become vested; |
| 18.2.2 | to give the Supplier, trustee in bankruptcy, administrator or administrative receiver or liquidator or other person in whom the contract may become vested the option of carrying out the contract subject to its or his providing a guarantee for the due and faithful performance of the contract. |
| 19 | GUARANTEE |
| 19.1 | Without prejudice to any other right of the Company whether express or implied or any other Guarantee given by the Supplier to the Company or which the Company has the benefit of, the Supplier shall without delay repair or replace at its own expense any Goods which are or become defective within 12 months from delivery (or such longer period as may be specified overleaf or such longer period as in normally specified by the Supplier, whichever is the longer) where such defect arises under proper use from faulty design materials or workmanship or the Supplier's incorrect instructions as to use or any other breach of any guarantee, warranty express or implied. Such guarantee shall then apply to the repaired or replaced items for a further period of 12 months from the date of repair of replacement. |
| 19.2 | Any breach by the Supplier of its obligations under paragraph 19.1 shall; entitle the Company after serving written notice of intent to proceed to remedy the defect at the Supplier's risk and expense without prejudice to the Company's other rights. |
| 20 | NOTICES |
| | Any notices may be served by: |
| 20.1 | posting it in a first class prepaid envelope to the last known address of the Supplier or the Company (as the case may be) and shall be deemed to have been served at the time at which the notice so posted would have been delivered in the ordinary course of post; |
| 20.2 | telex or facsimile transmission and shall be deemed served twelve hours after time of transmission. |
| 21 | CONSTRUCTION |
| | The Order and all matters arising therefrom shall be construed and take effect according to the Laws of England and be subject to the sole jurisdiction of the English Courts. |
