1. DEFINITIONS
1.1 In these Conditions the following words have the following meanings:
“Acknowledgement of Order” means an acknowledgement by Us stating Our acceptance of the offer in Your Order subject to these Conditions;
“Conditions” means those terms and Conditions of sale;
“Contract” means any contract between Us and You for the sale and purchase of the Goods and/or the Services;
“Delivery Point” means the place where delivery of the Goods and/or performance of the Services is to take place in accordance with Condition 5;
“Goods” means any goods agreed in the Contract to be supplied to You by Us (including any part or parts of them);
“Order” means the purchase order to Us in which You make Us an offer to supply Goods and/or Services to You;
“Our Materials” means any documents or other materials and any data or other information provided by Us relating to the Goods or Services;
“Services” means any work or services agreed in the Contract to be supplied to You by Us (including any part or parts of them);
“You” means the person(s), firm or company who purchases the Goods and/or the Services from Us;
“Your Materials” means any documents or other materials and any data or other information provided by You relating to the Goods or Services;
“We, Us or Ours” means I Holland Limited (company number: 3503148) with registered office at Meadow Lane, Long Eaton, Nottingham, NG10 2GD.
2. BASIS OF CONTRACT
2.1 These Conditions apply to all Contracts entered into by Us for the sale of Goods or the provision of Services to You to the exclusion of all other terms and Conditions (including any terms or conditions which you purport to introduce under any purchase order, confirmation of order, specification, designs and quotations, estimates, descriptive literature or otherwise or other document) and shall override any standard or other terms, conditions or stipulations referred to by You and supersede any earlier sets of conditions appearing in Our catalogues or elsewhere.
2.2 Each order for Goods and/or Services by You to Us shall be deemed to be an offer by You to purchase Goods and/or Services subject to these Conditions. No Order shall be deemed to be accepted by Us until an Acknowledgement of Order is issued by Us.
2.3 You expressly acknowledge that it is Your responsibility to ensure that the terms of any Order and any applicable specification are complete and accurate in all respects and for checking that any Goods delivered to You meet Your requirements.
2.4 It is Your responsibility to provide such information and other materials as sufficient and necessary to enable Us to comply with Our responsibilities to You here under.
2.5 For the avoidance of doubt, nothing in any written correspondence between the parties by letter or email before, on or after acceptance shall expressly or by implication form part of and/or be incorporated into any Contract or shall be deemed to vary the Contract or any of the Goods or Services (in whole or part) unless such letter or email originates from and is written and sent by Us and specifically states that the provisions contained therein are intended to form part of and be incorporated into and/or vary the terms and conditions of any such Contract.
2.6 Any quotation is given on the basis that no contract will come into existence until we despatch an Acknowledgement of Order to you. Any quotation we provide to you is valid for a period of [30] days provided that we have not previously withdrawn it.
2.7 No purported alteration or variation of these Conditions shall be effective unless it is in writing, refers specifically to these Conditions and is signed by a director or authorised representative of each of the parties to these Conditions.
3. INTERNATIONAL CONTRACTS
In the case of a Contract for the Supply of Goods and/or Services outside the United Kingdom the payment and delivery terms set out in the quotation shall apply.
4. DESCRIPTION
4.1 The description of the Goods and/or the Services shall be as set out in Our quotation.
4.2 All drawings, descriptive matter, specifications and advertising issued by Us and any descriptions or illustrations contained in Our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or the Services described in them. They will not form part of this or any Contract.
5. DELIVERY
5.1 Unless otherwise agreed in writing by Us delivery of the Goods and/or performance of the Services shall take place at Our place of business.
5.2 You will take delivery of the Goods within 7 days of Us giving You notice that the Goods are ready for delivery.
5.3 Any dates specified by Us for delivery of the Goods and/or performance of the Services are intended to be an estimate and time for delivery and/or performance shall not be of the essence by notice. If no dates are so specified, delivery and/or performance will be within a reasonable time.
5.4 Any period of time specified by Us for the despatch or delivery of Goods shall commence from the date of Our Acknowledgement of Order or from the date when We receive full instructions and information from You (whichever shall be the later). Although We shall Use Our reasonable endeavours to despatch or deliver Goods by the due date, any date or time stated by Us for despatch or delivery or for the completion of any work is given and intended as an estimate only and We shall not be liable to make good any damage or loss arising directly or indirectly out of delay on such despatch or delivery or in completing work.
5.5 Subject to the other provisions of these Conditions We will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods and/or performance of the Services where due to circumstances beyond our reasonable control, nor will any such delay entitle You to terminate or rescind the Contract unless such delay exceeds [180] days.
5.6 If for any reason You will not accept delivery of any of the Goods when they are ready for delivery, or We are unable to deliver the Goods on time because You have not provided appropriate instructions, documents, licences or authorisations:
5.6.1 risk in the Goods will pass to You (including for loss or damage caused by Our negligence);
5.6.2 the Goods will be deemed to have been delivered; and
5.6.3 we may store the Goods until delivery where upon You will be liable or all related costs and expenses (including without limitation storage and insurance).
5.7 You will provide at Your expense at the Delivery Point adequate and appropriate equipment for manual labour for loading and or unloading (where applicable) the Goods.
5.8 We shall have the right to deliver any Goods ordered by instalments at Our unfettered discretion and following the exercise of such right each instalment delivery shall be deemed for the purpose of these Conditions to have been made pursuant to a separate Order and payment in respect of each such instalment delivery shall be made accordingly.
5.9 You shall within 7 days after the date of delivery or discovery of any defect give written notice to Us of any matter or thing by reason of which it is alleged that the Goods supplied are not in accordance with the original Order or subsequent agreed amendments (time being of the essence).
6. NON-DELIVERY
6.1 The quantity of any consignment of Goods and/or Services as recorded by Us upon despatch from Our place of business shall be conclusive evidence of the quantity received by You on delivery unless You can provide conclusive evidence proving the contrary.
6.2 We will not be liable for any non-delivery of Goods and/or non-performance of the services (even if caused by Our negligence) unless written notice is given to Us within 7 days of the date when the Goods and/or Services would in the ordinary course of events have been received.
6.3 Subject to Condition 12, Our liability for non-delivery of the Goods and/or non-performance of the Services shall be limited to replacing the Goods and/or performing the Services within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods and/or Services.
6.4 In the case of a partial completion of an Order We shall be entitled on a quantum merit basis in respect of all the work done by Us without prejudice to Our rights should non-completion be occasioned by Your act or default or by reason of the unsuitability of materials supplied by You or by a supplier nominated by You.
7. RISK/TITLE
7.1 The Goods are at Your risk from the time of delivery or in the case of machinery manufactured by Us for You the risk shall pass 7 days after the date when such machinery is or was ready for delivery and notice thereof has been provided to You.
7.2 Whilst in Our possession or that of any sub-contractor or in transit Your Materials shall be at Your risk.
7.3 Ownership of the Goods shall not pass to You until We have received in full (in cash or cleared funds) all sums due to Us in respect of:
7.3.1 the Goods; and
7.3.2 all other sums which are or which become due to Us from You on any account.
7.4 Until ownership of the Goods has passed to You, You must:
7.4.1 hold the Goods on a fiduciary basis as Our bailee;
7.4.2 store the Goods (at no cost to Us) separately from all other goods of You or any third party in such a way that they remain readily identifiable as Our property;
7.4.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.4.4 maintain the Goods in satisfactory Condition insured on Our behalf for their full
price against all risks to Our reasonable satisfaction. On request You shall produce the policy of insurance to Us;
7.4.5 hold the proceeds of the insurance referred to in Condition 5.4 on trust for Us and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
7.5 You may resell the Goods before ownership has passed to You solely on the following Conditions:
7.5.1 any sale shall be effected in the ordinary course of Your business at full market value; and
7.5.2 any such sale shall be a sale of Our property on Your behalf and You shall deal as principal when making such a sale.
7.6 The Contract and Your right to possession of the Goods shall terminate immediately if:
7.6.1 You breach any of these Conditions;
7.6.2 You have a bankruptcy order made against You or You make an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation(whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for Your winding up or for the granting of an administration order in respect of You, or any proceedings are commenced relating to the insolvency or possible insolvency of You; or
7.6.3 You suffer or allow any execution, whether legal or equitable, to be levied on Your property or obtained against You, or fail to observe/perform any of Your obligations under the Contract or any other contract between Us and You, or You are unable to pay Your debts within the meaning of section 123 of the Insolvency Act 1986 or You ceases to trade; or
7.6.4 You encumber or in any way charge any of the Goods.
7.7 We shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Us.
7.8 You grant Us, Our agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where Your right to possession has terminated, to recover them.
7.9 The property and any copyright or other intellectual property rights in:-
7.9.1 any of Your Materials shall (subject to any such rights of any third party) belong (or continue to belong) to You;
7.9.2 Our Materials shall, unless otherwise agreed in writing between You and Us, belong to Us, subject only to a licence in favour of You to use Our Materials for the purposes of receiving the Goods or Services; and
7.9.3 Subject to clause
7.9.4 we shall assign to you any such property or other rights which you may have and such of our materials for no further consideration upon the completion of the Contract subject to payment in full of Our standard charges and any additional sums payable
7.10 Any of Your Materials or other information provided by You which is so designated by You and any of Our Materials shall be kept confidential by Us and all of Our Materials or other information provided by Us shall be kept confidential by You, but the foregoing shall not apply to any documents, materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
7.11 You warrant that Your Materials and their Use by Us for the purpose of providing the Services and supplying the Goods, will not infringe the copyright or other intellectual property rights of any third party and You shall indemnify Us against any loss, damages, costs, expenses or other claims arising from any such infringements.
7.12 Master copy hobs, tools and fixtures essential to Our manufacture remain Our property and in Our possession notwithstanding that You shall be charged for a proportion of the manufacturing costs thereof.
7.13 All drawings, designs and samples prepared by Us for the information and approval of the Customer remain Our property (including all copyright) and as such may not be copied or reproduced or transferred to any third party without Our prior written consent.
8. PRICE
8.1 All prices stated in Our quotations, tenders, prices lists or elsewhere are subject to alteration without notice at any time and in the event of any such alteration being made before the date of Our formal Acknowledgement of Order. We reserve the right to charge the full price for the Goods at such date (except where it has been agreed by Us in writing that the stated price for particular Goods shall apply for a specified validity period).
8.2 Unless otherwise agreed by Us in writing the price for the Goods and/or the Services shall be the price set out in Our price list published on the date of delivery or deemed delivery.
8.3 The price for the Goods and/or the Services shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage, packing materials, postage, import and export duties and insurance all of which amounts You will pay in addition when You are due to pay for the Goods and/or the Services.
8.4 Should We incur additional costs through delay in starting work or suspension of work due to problems with Your instructions or lack of instructions or through any request by You to amend any Contract or Order, such additional costs may be added to the price of the Goods.
9. PAYMENT
9.1 Unless otherwise agreed by Us in writing, payment of the price for the Goods and/or the Services is due on the last working day of the month in which the Goods were despatched from Our works or the Services were delivered. For the avoidance of doubt, time for payment shall be of the essence.
9.2 No payment shall be deemed to have been received until We have received cleared funds.
9.3 All payments payable to Us under the Contract shall become due immediately upon termination of this Contract despite any other provision.
9.4 You shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless You have a valid court order requiring an amount equal to such deduction to be paid by Us to You.
9.5 If You fail to pay Us any sum due pursuant to the Contract You will be liable to pay interest to Us on such sum from the due date for payment at the annual rate of [6%] above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
10. TEST, DEMONSTRATIONS AND COMMISSIONING
10.1 You must supply at Your own expense all components and materials required for the testing of machinery to be supplied by Us and such components and materials must be in a Condition suited to the requirements of the operation concerned. Any such test required by You must be arranged not less than 28 days before the due delivery date.
10.2 We will arrange demonstrations of equipment for You and Your representatives at Our premises provided that the costs thereof shall be borne by You.
10.3 Unless otherwise agreed by Us in writing the cost of commissioning any equipment and/or providing training to staff on the use of such equipment supplied by Us at Your premises shall be borne by You.
11. QUALITY
11.1 Where We are not the manufacturer of the Goods, We will endeavour to transfer to You the benefit of any warranty or guarantee given to Us.
11.2 We warrant that (subject to the other provisions of these Conditions) upon delivery and for a period of 3 months from the date of delivery, the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994.
11.3 We will not be liable for a breach of any of the warranties in Condition 11.2 unless:
11.3.1 You give written notice of the defect to Us or if the defect is as a result of damage in transit, to the carrier, within 7 days of the time when You discover or ought to have discovered the defect; and
11.3.2 We are given a reasonable opportunity after receiving the notice of examining such Goods and You (if asked to do so by Us) return such Goods to Our place of business at Your cost for the examination to take place there.
11.4 We will not be liable for a breach of any of the warranties if:
11.4.1 You make any further use of such Goods after giving such notice; or
11.4.2 a defect arises because You failed to follow Our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
11.4.3 You alter or repair such Goods without Our written consent.
11.5 Subject to Conditions 11.3 and 11.4, if any of the Goods do not conform with any of the warranties in Condition 11.2 We will at Our option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if We so request, You shall, at the Your expense, return the Goods or the part of such Goods which is defective to Us.
11.6 If We comply with Condition 11.5 We shall have no further liability for a breach of any of the warranties in respect of such Goods.
11.7 Any Goods replaced will belong to Us and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 3 month period.
11.8 We warrant that (subject to the other provisions of these Conditions) the Services will be provided using reasonable care and skill.
11.9 If any of the Services do not conform with the warranty in Condition 11.8 We will at Our option re- perform such Services (or the defective part) or refund the price of such Services at the pro rata contract rate.
11.10 If We comply with Condition 11.9 it shall have no further liability for a breach of the warranty in Condition 11.8 in respect of such Services.
11.11 We shall have no liability to You for any loss, damage, costs, expenses or other claims for compensation arising from any of Your Materials or instructions provided by You which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or arising from their late arrival or non-arrival, or any other fault by You.
11.12 We shall have a lien on any of Your equipment or goods in Our possession for any unpaid balance which You may owe to Us.
11.13 Any performance figures or production rates given by Us are based on Our own experience and on Our understanding of the relevant factors but for such figures and rates are estimates only and We shall not be liable if such figures or rates are not obtainable by You.
11.14 We reserve the right to make any changes to the specification of any Goods (in whole or part) which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to Our specification, which do not materially affect their quality or performance.
11.15 Your attention is drawn to the provisions of Section 6 of the Health and Safety at Work Act 1974. We will make available on written request such information on the design and construction of the Goods as is in Our possession to ensure that as far as is reasonably possible Your are able to use the Goods in a safe manner without risk to health when properly used.
12. LIMITATION OF LIABILITY
12.1 Subject to Condition 11, the following provisions set out Our entire liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) in respect of:
12.1.1 any breach of these Conditions; and
12.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 All warranties, Conditions and other terms implied by statute or common law (save for the Conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these Conditions excludes or limits Our liability for death or personal injury caused by Our negligence or for fraudulent misrepresentation.
12.4 Subject to Conditions 12.2 and 12.3:
12.4.1 Our total liability in contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with the Contract is limited to the value paid by You for the Goods and/or Services provided to You; and
12.4.2 without prejudice to the generality of Condition 12.4.1, We shall have no liability for any losses or damages which may be suffered by You (or any person claiming under or through the same), whether the same are suffered directly or indirectly and which fall within one or more of the following categories (whether such losses or damage were foreseen, known or otherwise):
a) loss of profit;
b) loss of anticipated savings;
c) loss of revenue;
d) loss of the use of money;
e) loss of business or contracts;
f) loss of opportunity;
g) loss of goodwill;
h) loss of reputation;
i) losses as a result of any defect in the Goods arising from any drawing, design, or specification supplied by You;
j) losses from any defect arising from fair wear and tear, wilful damage or misuse, failure to follow Our instructions oral or in writing, alteration or repair of the Goods without Our approval;
k) loss through use of parts, materials or equipment not made by or approved for use by Us; or
l) any indirect or special loss or damage howsoever arising (including the types of loss and damage set out in Conditions 12.4.2(a) to 12.4.2(K) above).
13. ASSIGNMENT
13.1 You shall not be entitled to assign the Contract or any part of it without Our prior written consent.
13.2 We may assign or sub-contract the fulfilment of any Order or part thereof or the Contract or any part of it to any person, firm or company.
14. FORCE MAJEURE
We reserve the right to defer the date of delivery and/or performance or to cancel the Contract or reduce the volume of the Goods and/or Services ordered by You (without liability to You) if We are prevented from or delayed in the carrying on of Our business due to circumstances beyond Our reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 30 days, You shall be entitled to give notice in writing to us to terminate the Contract.
15. GENERAL
15.1 These Conditions together with the relevant Acknowledgement of Order constitute the entire agreement between the parties for the supply of the Goods and/or the provision of the Services.
15.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.3 Failure or delay by Us in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of your rights under the Contract, and will in no way affect the other terms of the Contract.
15.4 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.5 All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in the relevant Order or Acknowledgement of Order or such other address in England as the recipient may designate by notice given in accordance with the
provisions of this Condition. Any such notice may be delivered personally or by first class pre-paid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by facsimile transmission when despatched.
15.6 The formation, existence, construction, performance, validity and all aspects of the Contract including without limitation any dispute, action or claim arising out of or in connection with it, shall be construed and interpreted in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.
