INTERPRETATION
1. (A) The following conditions shall be applied and deemed to be incorporated in all orders contracts and quotations or tenders for the supply sale installation repair, hire of goods by Tankbusters and its subsidiaries (‘The Company’) to any customer (‘The Customer’) unless otherwise expressly agreed in writing by the Company and the Customer. (B) These conditions shall supersede any terms or conditions embodied in any order by the Customer or any other documentation issued by the Customer which relates to any order or contract: (C) Quotations and tenders are open for acceptance for a period of 30 days from the date of the quotation or tender unless stated differently. (D) Where goods are supplied under a contract by instalments these conditions shall apply to each and every instalment as if it were a separate contract. (E) Changes to or cancellation of any contract cannot be effected by the Customer except with the Company’s agreement in writing.
ACCEPTANCE OF ORDERS
2. Acceptance of this order tender or contract constitutes a guarantee and representation by the Customer that he or his agents have complied and will comply with every applicable Statute, Order-in-Council, Regulation or Direction, Bye-Law or other lawful requirement or instruction, whether of Government, Local or other lawful authority and in particular that the Customer has lawfully obtained every Licence permit or authority as may be necessary in connection with the installation sale repair or hire of the goods concerned.
COMPLETION PERIOD
3. (A) Where a period is named for the performance of a Contract or delivery of goods and such period is not extended by mutual consent in writing or under the provisions of Clause 8 hereof the Customer shall accept delivery within that period. (B) Any time for performance of a contract or delivery named by the Company is an estimate only and the Company shall not be liable for the consequences or costs of any delay occasioned due to failure to deliver at that time or date.
CARRIAGE CHARGES
4. Carriage charges ex-works will be invoiced to the Customer at the Company’s rates prevailing at the time the goods are despatched. Any incoming carriage charges made by the Manufacturer or Supplier may be passed on to the Customer at the Company’s discretion.
ACCESS AND UNLOADING
5. (A) The Customer shall ensure that the Company has full and clear access to and from the place where delivery is to be made or work performed and that conditions of working are safe in all respects. (B) The Customer shall if necessary provide at his own expense the appropriate equipment for off loading and moving any goods or equipment as may be required for the performance of the contract. (C) The Customer at his own expense will provide all light and power required whilst the Company is engaged on any work at the Customers premises or site and shall provide for the Company at his own expense storage facilities and protection for and whilst any goods or equipment are being installed supplied repaired or hired.
PRICE VARIATIONS
6. The price quoted by the Company or applied to any order or Contract is based on prices ruling at the time of quotation. The Company reserves the right to amend the price to take full account of:- i) any change after the date hereof that might occur in the costs of goods or materials the Company’s overheads and transport and ii) any variation in duty tax surcharge or levy of any kind whatsoever affecting the cost of goods or materials iii) unless otherwise specified by the Company packing cases will be charged to the Customer. All chargeable and returnable packing cases are to be returned to the Company carriage paid to qualify for credit. This charge cannot be deducted by the Customer until the Company’s official credit note has been received iv) the price quoted by the Company is exclusive of VAT which shall be charged in addition at the appropriate rate at the relevant tax point. The Company has a minimum order charge and this will be applied at the current rate.
ADDITIONAL EXPENSES
7. In the event of the Company incurring additional expenses not allowed for in any quotation owing to suspension of delivery on the Customer’s instructions or owing to any other circumstances whatsoever beyond the Company’s control such additional expenses shall be added to the price quoted and paid for by the Customer.
PAYMENT TERMS
8. Subject to a suitable credit rating having been established payment is net cash fourteen days following delivery of goods or completion of installation or service and there is no discount or allowance. None Account Customers payment is by pro former invoice for goods being supplied. For work carried out, payment is by return of raised invoice. Interest upon any overdue account shall be charged on a day to day basis at the rate of 10% over the Base Rate of the Company’s Bankers from time to time ruling whether before or after judgement. If the Customer fails to comply with these terms of payment the Company reserves the right to discontinue any services contracted to be supplied or further delivery of goods to the Customer and the Company shall be entitled to claim against the Customer for any loss, damage or costs sustained in consequence of the non-completion of the Contract or Order.
RESERVATION OF TITLE
9. (A) Neither the legal nor beneficial title in the goods supplied shall pass to the Customer until all sums due from the Customer to the Company in respect thereof (the debt) shall have been paid in full and until such payment the Customer shall be the bailee on behalf of the Company of the goods supplied and shall if the Company so requests store the goods supplied in such a manner that they are clearly identifiable as being the property of the Company. If the debt shall become due or overdue in whole or part or the Customer shall become insolvent then the Company may (without prejudice to any of its other rights) recover or resell the goods supplied for which purpose the Customer hereby grants an irrevocable licence to the Company its servant and agents to enter on any premises of the Customer and remove the goods supplied. (B) Should any goods supplied be utilised within the process of manufacturing a new product or products (the new product) by being incorporated in used as materials for, used as a model or basis, or mixed with other goods prior to payment of the debt then the property (but not the risk) in the new product shall pass to the Company at the time of such processing, incorporation use duplication or admixture and title shall remain with the Company until payment of the debt and until such payment the customer shall be a bailee on behalf of the Company of the new product and shall if the Company so requires store the new product in such manner that the new product is clearly identifiable as the property of the Company. If the debt shall become due or overdue in whole or part or the Customer shall become insolvent then the Company may (without prejudice to any of its other rights) recover or resell the new product for which purpose the customer hereby grants an irrevocable licence to the Company its servants and agents to enter on any premises of the Customer and remove the new product. (C) If notwithstanding clause (A) above the Customer shall sell the goods supplied the Customer shall hold all proceeds of any such sale on trust for the Company in a clearly identifiable state in a separate account. Acting on any directive by the Company the Customer shall meet the debt out of the said trust fund insofar as the said trust fund is sufficient for that purpose, but without prejudice to the rights which the Company have under the terms of this contract under statute or common law. (D) If notwithstanding clause (A) above the Customer shall sell the new product the Customer shall hold the entire proceeds of any such sale on trust for the Company in a clearly identifiable state in a separate account. Acting on any directive by the Company the Customer shall pay the debt out of the said trust fund insofar as the said trust fund is sufficient for that purpose but without prejudice to the rights which the Company have under the terms of this contract or under statute or common law.
ILLUSTRATIONS SPECIFICATIONS AND DRAWINGS
10. All specifications, drawings and manufacturers leaflets containing particulars of weights, dimensions, electrical and hydraulic performance etc., submitted by the Company with any quotation or tender are approximate only and descriptions and illustrations contained in catalogues, price lists and other matters are intended only as a guide to Customers of the goods described therein and the said descriptions and illustrations shall not form part of any contract between the Company and the Customer.
PERFORMANCE FIGURES
11. (A) Where work is performed or goods are offered and supplied by the Company in accordance with the Customer’s own specific and detailed instructions (as opposed to a general description of the goods or work required or supplied) no condition is made or to be implied nor is any warranty given or to be implied as to the life or wear of the goods supplied or work performed or that they will be suitable for any individual purpose or for use under any specific conditions notwithstanding that such purpose or conditions may be known to the Company. (B) Unless performance figures have been quoted by the Company and have been specifically warranted by the Company the Company shall be under no liability for any failure to attain such figures. Where performance figures have been quoted and specifically warranted, they shall be subject to any tolerances specified by or agreed to by the Company and its liability shall be limited to such sum if any as may have been agreed as liquidated damages. If performance figures obtained on any test provided for in the contract are outside the acceptance limits therein specified the Customer will be entitled to reject the goods, but before rejecting the goods or claiming any liquidated damages, the Customer will give the Company reasonable time and opportunity to rectify their performance.
STORAGE AND HANDLING
12. If for any reason the Customer is unable to accept delivery of goods at the time the goods are due and ready for delivery the Company shall at its discretion if its storage facilities permit store the goods until delivery can be affected. Storage costs (including insurance) to be charged to the Customer and the goods shall be stored at the Customer’s risk.
DEFECTS LIABILITY GUARANTEE
13. (A) If the Company supplies any goods or spare parts or materials which the company has itself obtained from a manufacturer or supplier the Company will use its best endeavours to enforce trade guarantees or warranties given by the original manufacturer or supplier of the goods spare parts or materials to the Company and no other conditions or warranties whatsoever statutory or otherwise shall be implied or construed as applying to the goods spare parts or materials aforesaid. (B) Work carried out by the Company represented by the Customer to be defective shall not form the subject of any claim for work done by the Customer or for any loss damage or expense whatsoever arising directly or indirectly from such defects but such work if reported to the Company as defective under proper use within twelve months of the date of delivery or completion by the Company and which arise solely from faulty workmanship or materials and are accepted by the Company as such and have been paid for by the Customer will at the request of the Customer be rectified by the Company at its sole discretion and returned to the Customer carriage paid. (C) Goods manufactured by the Company represented by the Customer to be defective shall not form the subject of any claim for work done by the Customer for any loss damage or expense whatsoever arising directly or indirectly from such defects but such goods if reported to the Company as defective under proper use within twelve months of the date of delivery or completion by the Company and which arises solely from faulty workmanship or materials and are accepted by the Company as such and have been paid for by the Customer will at the request of the Customer be repaired or replaced by the Company at its sole discretion and returned to the Customer carriage paid. After the said period of twelve months all liability on the part of the Company shall cease. All costs and expenses of any deliveries to the Company required by such repair or return of goods shall be met by the Customer. The Company shall not be held liable for defects caused by normal wear and tear, incorrect installation by others, abnormal conditions of operation, accident, misuse and neglect. Defects in respect of parts of the works to be performed or goods supplied shall not be a ground for cancellation of the remainder of the Contract.
GOODS IN TRANSIT
14. (A) No claim for damage in transit or delivery or loss of goods will be entertained unless in the case of damage in transit or shortage on delivery an initial notice in writing is given to the Company within three days of receipt of goods followed by a fully detailed claim in writing within a further seven days of receipt of goods and in the case of loss of goods or failure of delivery notice in writing is given to the Company and a complete claim in writing made within fourteen days of the date of the invoice. (B) Where delivery is made by the Company or their carrier beyond the entrance to the Customer’s premises or site the Customer shall accept full responsibility for and indemnify the Company against all damage to property or injury to persons occurring from whatsoever cause on such premises unless caused by the negligence of the Company or its servants or agents.
FORCE MAJEURE
15. Work to be performed or deliveries to be made may be wholly or partially suspended and the duration of such suspension added to the original contract or delivery period in the event of any stoppage delay or interruption of work or operations of the Company as a result of strikes, lock outs, trade disputes, breakdowns, war, hostilities, government regulations, accidents, shortages of raw materials or any cause whatsoever outside of the control of the Company and any such suspension shall not invalidate the Contract or give rise to any claim for damages whatsoever.
HOSTILITIES
16. In the event of any outbreak of hostilities whether war is declared or not in which the United Kingdom is involved and in the event of a national emergency or if the Company’s work should become either directly or indirectly so engaged on government order or orders under priority directions as to prevent or delay of work on or delivery of other orders the Company shall be entitled at any time on notice to the Customer to perform such reduced proportion of the work or order for goods or to determine the Contract without prejudice in any case to the rights accrued in respect of work already done.
SUB-CONTRACTING
17. The Company reserves the right to subcontract the fulfilment of the order for goods or any part thereof and to engage suitably qualified sub-contractors to carry out work on the Company’s behalf to fulfil its obligations to the Customer.
TRANSFER OF RIGHTS
18. The Customer shall not transfer his rights to any third party without the company’s express consent in writing.
DEFAULT OR BREACH
19. If the Customer shall make default in or commit a breach of Contract or any of his obligations whatsoever to the Company or if any distress or execution shall be levied upon the Customer’s property or assets or if the Customer shall make or offer to make any arrangements or composition with creditors or commit an act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against him or if the Customer is a limited company and any resolution or petition to wind up such company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented or if a receiver of such company’s undertaking property or assets or any part thereof shall be appointed the Company shall have the right forthwith to determine any Contract then subsisting and on written notice of such determination being posted to the Customer’s last known address any subsisting Contract shall be deemed to have been determined without prejudice to any claim or right the Company may otherwise make or exercise.
GOODS/MATERIALS EX-STOCK
20. In the event that any goods or materials involved in any quotation or order are materials or goods ex-stock these are offered by the Company subject to being unsold upon receipt of the Customers acceptance.
VARIATION AND EXCLUSION
21. Should the Customer request the Company to vary any quotation or orders for goods or services the terms of such variation shall be subject to separate agreement being reached between the Company and the Customer and the Company reserves the right to delay performance of such variation until written instructions are received and written agreement reached as to the terms for such variation of order or work.
CONFIRMATION OF INSTRUCTIONS
22. All orders placed verbally for goods or services by the Customer shall be given an order number by the Customer and confirmed by the Customer in writing to the Company within forty eight hours and such communication shall be clearly marked by the Customer “Confirmation”.
CANCELLATION OF INSTRUCTIONS
23. (A) An accepted order or contract whether verbal and duly confirmed written or not may only be cancelled by the Customer with the written consent of the Company. The Customer shall be responsible and pay for any goods design work drawings sub-contractor or supplier cancellation charges or expenses whatsoever incurred or expended by the Company up to the time of cancellation including any special purchases already made by the Company even though not delivered or used. Any cancellation charge incurred in respect of the items mentioned in this clause shall also be a chargeable item. (B) Goods may not be returned to the Company except with prior written consent of an authorised officer of the company and the Customer shall pay the Company any handling, restocking, transport or other costs or charges incurred by the Company.
TEST AND INSPECTION
24. Products are inspected and where practicable submitted to standard tests before despatch. Specific test requirements not detailed in any tender or contract will be charged to the Customer. If tests are to be carried out in the Customers or his authorised agents presence and the Customer or his authorised agents delay in attending such tests after being advised by the Company of the date and time of such tests the Company reserves the right to continue with such tests in the Customers absence, which will be for all purposes deemed to have been carried out in the Customers presence.
INFRINGEMENT INDEMNITY
25. The Customer shall keep the Company indemnified against all damage penalties costs and expenses to which the Company may become liable as a result of work done or goods supplied in accordance with the Customers specifications or instructions which involves the infringement of any letters patent or registered design or trade mark.
EMPLOYEES SERVANTS AGENTS
26. In making these conditions the Company does so both for itself and for and on behalf of each and every employee servant or agent of the Company and the Customer hereby confirms that any exemption or liability granted to the Company by these conditions shall also extend to each and every employee servant or agent of the Company whom the Customer hereby agrees to indemnify fully against any such liability.
PROPER LAW AND JURISDICTION
27. Any disputes which may arise out of or in connection with the contract shall be governed by English law and the Customer accepts the jurisdiction of such court whether in England or elsewhere as the Company may nominate.
LEGAL CONSTRUCTION
28. These conditions herein shall be subject to and construed in accordance with English Law.