| 1. |
FORMATION OF CONTRACTS |
| |
| a) |
All contracts for sale made
by Compulogic Ltd ('the Company') shall be
deemed to incorporate these terms and conditions.
No variation or additions to these terms and
conditions shall form part of any contract
unless made or specifically accepted by the
Company in writing. |
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| b) |
These terms and conditions
shall override and take the place of any other
terms and conditions in any document or other
communication used by the Purchaser in concluding
the contract with the Company. |
|
| c) |
The application of the Uniformed
Laws on International Sales shall be excluded.
The construction, validity and performance
of all contracts shall be governed by the
laws of England and the Purchaser hereby accepts,
for itself and in respect of its assets, generally
and unconditionally, the jurisdiction of the
Courts of England and, if different, the courts
of the country of the principal office of
the Purchaser, with respect to any proceedings
relating to any contract. |
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| 2. |
PRICES |
| |
Unless otherwise expressly stated
in writing by the Company, orders are accepted on
the basis that: |
| |
| a) |
The price stated in the Acknowledgement
of Order ('the stated price') is the net price
of the goods (after deduction of any volume
discount but not after deduction of any discount
for prompt payment) for delivery in accordance
with the contract. |
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| b) |
The Company is entitled without
prior notice to adjust the stated price to
take account of any change in specification
made at the request of the Purchaser or any
alteration before the date of delivery in
the cost to the Company in labour, materials,
overheads or import or export duties or tariffs,
or transport, which directly affects the cost
to the company of supplying the goods or any
exchange rate fluctuation which would, in
the opinion of the Company, cause the sterling
equivalent of the stated price (if payable
in a currency other than sterling) when paid
to be significantly less than the sterling
equivalent at the date of the contract. |
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| c) |
Prices quoted are only valid
in respect of orders received within 30 days
of the date of quotation. |
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| 3. |
PAYMENT |
| |
| a) |
Prices are to be paid in currency
stated in the contract and, unless otherwise
stated, are due and payable 28 days from the
date of the Company's invoice. |
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| b) |
If the purchaser
fails to make payment in full accordance with
sub-paragraph (a) of this Condition, then
(without prejudice to any other rights of
the Company: "the Purchaser shall, without
any need for the Company to give notice, become
liable to pay to the Company interest on the
amount for the time being unpaid at the rate
which is two per cent per annum above the
base rate from time to time of Barclays Bank
PLC calculated from the date of due payment
until the date of actual payment.
|
| i) |
The Company shall be
entitled to suspend all or any other
deliveries to be made under that or
any other contract with the Purchaser
in which event the Purchaser shall not
in any respect be released from it's
obligations to the Company under that
or any such contract, or |
|
| ii) |
instead of suspension
in accordance with paragraph (I) above,
the Company shall be entitled to terminate
the relevant contract or any other contract
with the Purchaser in accordance with
condition 12 below and to claim damages
(including but not limited to loss of
profit) from the Purchaser for breach. |
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|
| c) |
Where carriage, packing or
other changes are stated separately from the
price, they will nevertheless be payable by
the Purchase at the same time as if they formed
part of the price and shall be treated as
such. |
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| d) |
"Time of payment is the
essence of every contract entered into upon
and subject to these terms and conditions". |
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| 4. |
DESPATCH AND DELIVERY |
| |
| a) |
While the company will use
all reasonable endeavours to keep any stated
despatch or delivery date: it accepts no liability
whatsoever for any loss or damage resulting
from delay, howsoever the same shall have
been caused. |
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| b) |
Unless the contract
expressly provides for the method of carriage
of the goods, the Company reserves the right
to select the same. |
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| c) |
Unless the contract expressly
provides that the stated price includes the
cost of carriage, the Company reserves the
right to charge the Purchaser for the cost
of the carriage. |
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| d) |
Notwithstanding that the stated
price may include the cost of carriage from
the Company's premises, the risk in the goods
sold shall pass to the Purchaser upon their
transfer at such premises or, to the carrier's
or Purchaser's transport, save that:
|
| i) |
if the goods are to
be transported by the Company's transport
the risk shall pass to the Purchaser
when delivered to the Purchaser's premises,
and |
|
| ii) |
where the contract is
stated to be F.O.B. or C.I.F. the risk
shall pass to the Purchaser when the
goods are delivered onto the ship or
aircraft |
|
|
| e) |
In cases where the Company
concludes the contracts of carriage and/or
arranges for insurance of the goods for transit,
the Company shall be deemed to be acting solely
as agents of the Purchaser, and sub-section
(2) and (3) of section 32 of the Sales of
Goods Act 1979 shall not be applicable. |
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| f) |
"The Purchaser shall
keep the goods fully insured in their full
replacement value against all risks prudently
insured against at least throughout the period
between the risk therein passing to the Purchaser
and the property therein ceasing to remain
with the Company. |
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| g) |
The contract will contain
the expected date(s) of delivery of the goods.
If the goods are not delivered, or upon delivery
are found to be damaged or short, the Company
shall not in any event be liable unless:
|
| i) |
The Purchaser gives
written notice to the Company and to
the carrier within 15 days of receipt
of the goods for United Kingdom deliveries
(or 30 days of such receipt for deliveries
outside the United Kingdom) or in the
case of non-delivery within 30 days
of the expected date of delivery as
stated in the contract and |
|
| ii) |
in the case of short
or damaged delivery the purchaser gives
the Company or its representative(s)
a reasonable opportunity to inspect
the goods concerned in the state and
condition and location in or at which
they were delivered. |
|
|
| h) |
The Company reserves the right
(without any prejudice to any other rights
it may have) to charge to the Purchaser any
costs, charges or expenses incurred by the
Company as a result of vehicle or wagon detention,
demurrage of ships warehousing, insurance
and/or handling or otherwise inconsequence
or any act or omission of the Purchaser, not
provided for in the contract.
|
| i) |
Any times quoted for
despatch are to date from the latest
of the Acknowledgement of Order from
the Company, receipt by the Company
of a written order from the Purchaser
and receipt by the Company of all necessary
information and drawings to enable the
Company to put the work in hand. |
|
| ii) |
Despatch times are dependent
upon any requisite authorisation being
obtained, including any necessary export
and import licences and may be charged
in the event of the Purchaser modifying
his requirements subsequent to the Company's
acceptance of his order. |
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| iii) |
Where the Company has
quoted for goods ex-stock, despatch
times are subject to goods not having
been sold between date of quotation
and receipt of order. |
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|
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| 5. |
PROPERTY |
| |
| a) |
Notwithstanding delivery of
the goods or of any documents representing
time, the property in each item of the goods
shall remain with the Company until the earlier
of
|
| i) |
receipt by the Company
of payment in full for such item: and |
|
| ii) |
sale by the Purchaser
of such item to a third party on arm's
length terms in the ordinary course
of business (and for the avoidance of
doubt such sale by the Purchase shall
be as principal and not as the Company's
agent or trustee). |
|
|
| b) |
The Purchaser
shall (accept to the extent otherwise agreed
in writing by the Company) ensure that all
goods which have been delivered to the Purchaser
and the property in which remains with the
Company are stored separately or marked so
that they may be readily identified as the
property of the Company. |
|
|
| 6. |
CANCELLATION |
| |
Once a contract has been formed
the Purchaser will not be entitled to cancel the
same wholly or in part save with the express written
agreement of the Company. Such agreement may include
providing for appropriate compensation in particular
(but without limitation) in the event of the Company
having commenced work under the contract of having
purchased special raw materials. |
|
| 7. |
RETURNS |
| |
Save as provided in Condition 10
a) below, the Company shall not in any circumstances
be obliged to accept the return of any goods. However,
if the Company agrees in any particular case to
accept such return the agreement so to do shall
only be binding if made if writing and the Company
reserves the right to deduct from the purchase monies
being refunded all reasonable costs. |
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| 8. |
PATENTS |
| |
The Company's goods are manufactured
under the various letters patent. The Purchase undertakes
not at any time without the Company's consent in
writing, to manufacture or sell to any third party
any goods the manufacture or sale which would infringe
any letters patent of which the Company from time
to time the licensee. |
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| 9. |
SPECIFICATIONS, DESCRIPTIONS AND
DRAWINGS |
| |
| a) |
All specifications, descriptions
and drawings of goods including descriptions
and illustrations contained in catalogues,
lists and advertising matter are approximate
only being intended to serve merely as a guide
and accordingly the Company shall not be liable
for their accuracy. Such specifications, descriptions
and drawings are liable to be altered as necessary
for the purpose of introducing improvements. |
|
| b) |
All drawings prepared by the
Company shall remain property of the Company
and shall be returned to it by the Purchaser
on demand. All such drawings shall not be
reproduced or copied or disclosed to any third
party without prior written consent of the
Company. |
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|
| 10. |
GENERAL LIABILITIES |
| |
| a) |
The Company hereby warrants
that all goods supplied are free from defects
in material and workmanship BUT the Company's
liability under this warranty shall be limited
to making good without charge by repair or
(at the discretion of the Company) replacement
any defects which the Company is satisfied
are defects of material or workmanship in
goods and the Company shall be so liable only
if within three calendar months of the date
of the delivery of the goods concerned the
Purchaser has given written notice of such
defects to the Company and the liability of
the Company to the Purchaser under this paragraph
(a) shall not exceed in aggregate the sum
of £50,000 or its equivalent in respect
of a particular type of defect. |
|
| b) |
Save in relation to death
or personal injury the Company shall be under
no liability to the Purchaser (including the
Purchaser's employees and agents) for any
injury, damage or loss howsoever caused in
respect of or arising from the goods or any
defect in the goods other than for direct
physical loss or damage arising from the sole
negligence of the Company or its employees
BUT the liability of the Company to the Purchaser
under this paragraph (b) shall not save in
relation to death or personal injury exceed
in aggregate the sum of £50,000 or its
equivalent. |
|
| c) |
The warranty contained in
paragraph (a) of this condition and the rights
set out in paragraph (b) on this Condition
are given in lieu of and shall be deemed to
exclude all other representations and conditions
(whether express or implied, whether arising
by common law, stature or otherwise) other
than relating to title to the goods and all
other liabilities (whether in contract, tort
(including negligence), misrepresentations
or otherwise) of the Company, and any rights
which the purchaser might otherwise have in
relation to the description, condition or
quality of the goods or their fitness for
any particular purpose. |
|
| d) |
The Purchaser shall not rely
upon any representation concerning any goods
supplied unless the same shall have been made
by the Company in writing. |
|
| e) |
The Purchaser shall hold the
Company fully and effectually indemnified
against any loss, liability or expense arising
directly or indirectly from use of any of
the goods by the Purchaser for the purpose
other than incorporation in pianofortes operated
by mechanical action or as otherwise specified
in the contract. |
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| f) |
The Purchaser shall keep the
Company fully indemnified in respect of any
claim which may be made against the Company
by any third party arising out of the supply
of any goods howsoever such claim might arise. |
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|
| 11. |
FORCE MAJEURE |
| |
The Company shall be entitled to
cancel or rescind any contract without liability
for loss or damage resulting from therefrom if the
performance of its obligations under the contract
is in any way adversely affected by war, strike,
lock-out, sit-in, trade dispute, flood, severe or
adverse weather conditions, accident to plant or
machinery shortage of any material or labour or
any causes whatsoever beyond the Company's reasonable
control. |
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| 12. |
DEFAULT |
| |
The Company may, without prejudice
to any other rights it may have, by notice in writing
to the Purchaser terminate any contract forthwith,
if:
| a) |
the Purchaser shall commit
any breach of any of the terms (including
without limitation terms concerning the time
for payments of the purchase price) of that
or any other contract with the Company and
on its part to be observed or performed PROVIDED
if such breach is remediable that the Company
has previously given to the Purchaser notice
thereof and the same has not been remedied
within seven days thereafter. |
|
| b) |
the Purchaser compounds with
or negotiates for any composition with its
creditors generally or permits any judgement
against it to remain unsatisfied for seven
days. |
|
| c) |
being an individual the Purchaser
shall die or have a receiving order made against
him or commit any act of bankruptcy or become
insolvent. |
|
| d) |
being a company, the Purchase
shall call any meeting of its creditors, or
have a receiver of all or any parts of its
assets appointed or enter into liquidation.
In the event of any such termination (which
shall act as a recession of the contract for
the goods referred to below).
|
| i) |
The Purchaser shall
forthwith on demand deliver to the Company
any goods which have been delivered
to the Purchaser and the property in
which it remains with the Company and
in default therefore the Company may
repossess them and for that purpose
enter the premises where they are without
liability for any resulting damage and
the Purchaser shall indemnify the Company
against such damage and any resulting
losses liabilities, costs, expenses,
claims and proceedings, and |
|
| ii) |
the Company may by written
notice to the Purchase declare (and
there shall forthwith become) immediately
due and payable amounts outstanding
from the Purchase to the Company under
that and/or any other contract between
the Company and the Purchaser and all
such amounts shall bear interest as
set out in Condition b) above. |
|
The Condition and the exercise by the Company of
any rights under it are without prejudice to any
other rights of the Company. |
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| 13. |
MISCELLANEOUS |
| |
| a) |
Typing and clerical errors
are subject to correction. |
|
| b) |
No goods made to the Purchaser's
special design requirements, and which vary
from the Company's standard designs, can be
accepted back if found unsuitable, or for
any other reasons. |
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| c) |
In the event of the suspension
of the work by the Purchaser's instructions
or lack of clarity of instructions, the contract
price shall be increased to cover any extra
expense thereby incurred by the Company. |
|
| d) |
Where it is agreed that delivery
shall be made in instalments on failure or
delay in delivery of any particular instalment,
and no defect in any goods comprised therein,
shall affect the validity of the contract
with respect to subsequent instalments. |
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|
| 14. |
FORBEARANCE |
| |
| a) |
The Company's rights shall
not be prejudiced or restricted by any indulgence
or forbearance extended to the Purchaser and
no waiver by the Company in respect of any
breach shall operate as a waiver in any subsequent
breach. |
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| 15. |
HEADINGS |
| |
The headings used in these terms
and conditions are for convenience only and shall
not affect the construction thereof. |
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