Total Maintenance & Engineering Ltd
Conditions of Sale
In these conditions “the Company” means Total Maintenance & Engineering Ltd, “the Buyer” means the Customer who shall order or buy the Products or Contractual \services; “the Product” means the goods supplied by the Company under the terms of the Contract; “the Contract” means any Contract for the supply of the Products or the Contractual Services by the Company to the Buyer; “the Price means the amount payable in respect of the Products (including delivery charges where applicable) and the Contractual Services (including any ancillary charges notified by the Company to the Buyer).
- CONTRACT ACCEPTANCE
- A quotation shall constitute an invitation to the Buyer to negotiate with the Company. An order placed with the Company shall be accepted by the Company at the time an unqualified acknowledgement and acceptance of such order is issued to the Buyer by post or any other means operated by the Company. The placing of an order implies acceptance of the following terms and conditions, upon which alone such an order is accepted and no purported term or condition proposed by the Buyer which is inconsistent with any of these conditions, shall have any effect and these conditions shall in all circumstances prevail unless agreed otherwise, by the Company, in writing
- No employee or agent of the Company is authorised to give any guarantee or warranty or to make any representation which may vary these Conditions. Unless otherwise agreed in writing no previous communications between the parties relating to the Products and the Contractual Services shall be incorporated into the Contract.
- All quotations provided by the Company are based on the Buyer’s specifications as supplied to the Company and the Company shall not be responsible for the sufficiency or otherwise of the Products or the Contractual Services supplied in accordance with such specifications. The Buyer shall pay for all of the Products and the Contractual Services supplied by the Company in accordance with such specifications.
- The acceptance by the Buyer of the Company’s quotation must be accompanied by sufficient technical information to enable the Company to proceed with the Contract forthwith and failure to supply such information shall leave the Company at liberty to amend the quoted prices to cover any increase in costs which may arise subsequent to acceptance.
- The Company reserves the right at the expense of the Buyer to make any changes in any specification which are required to conform with any applicable safety or other statuary requirement.
- If the Contract requires the product or Contractual Services to be provided on a scheduled or from time to time basis then any schedule provided by the Buyer will not form part of the Contract until accepted in writing by the Company.
- Any quotation is valid for up to 30 days from the date of quotation, unless otherwise stated. At the Company’s sole discretion quotations submitted are subject to withdrawal by the Company at any time prior to Contract
- The Company reserves the right to subcontract all or part of its obligations under the Contract.
- INFORMATION SUPPLIED BY THE COMPANY
No warranty, express or implied, is given by the Company as to the accuracy or
completeness of information supplied by the Company (whether that information is supplied in connection with a quotation or otherwise) and, to the extent that such exclusion of liability shall be permitted by law, the Company shall have no liability for any loss (including consequential loss), damage, costs or expenses (whether the same shall result from the negligence of the Company, its employees, agents, or others for whom it may in law be responsible or otherwise) which may be incurred by the Buyer.
- DRAWINGS AND SPECIFICATIONS
- Any drawings, specifications and particulars or weights and dimensions submitted with a quotation are approximate only, and the descriptions and illustrations contained in the Company’s literature are intended merely to present a general idea of the Products and Contractual Services described therein, and none of this documentation shall form part of the Contract.
- Unless expressly so agreed, any specifications, drawings or technical documents intended for use in relation to the Products or the Contractual Services and submitted to the Buyer prior or subsequent to the formation of the Contract remain the exclusive property of the Company. They may not, without the written consent of the Company be utilised by the Buyer or copied, reproduced, transmitted or communicated to a third party.
- The Company undertakes not to disclose to any third party any confidential information, drawings or specifications supplied by the Buyer.
- DELIVERY AND DESPATCH
- Any delivery times quoted are to be treated as estimates only and do not involve any contractual obligation unless otherwise agreed in writing. Any time stated for delivery will be from the date of receipt of a written order to proceed together with and not until delivery of all necessary information, drawings, specifications and free issue material from the Buyer to enable the Company to proceed.
- Unless otherwise agreed all deliveries are ex-works and in accordance with the terms defined in Incoterms 1990 and have the same meaning when used in these conditions.
- The Company undertakes to render the Buyer every assistance in obtaining any export licence or other official authorisation necessary for the exportation of the goods.
- If the products or Contractual Services are subject to import control the Buyer must obtain at his own risk and expense an Import Licence, details of which should be provided to the Company to enable the Contract to proceed.
- Unless otherwise specified by the Buyer all products shall be strapped, boxed or crated as the company deems proper for protection during normal handling.
- If within 7 days after the date of notification that the products are ready for despatch they have not been collected the Company will be entitled to but not obliged to arrange insurance and storage at its own works or elsewhere on behalf of the Buyer and all costs for storage, insurance and demurrage shall be payable by the Buyer.
- If the buyer fails to accept delivery of the Product the price together with any additional costs incurred shall be payable by the buyer.
- The Buyer must satisfy himself as to the condition of the Products at the time of delivery and the Products must be inspected and accepted in writing by the Buyer at the time of delivery. The Company shall have no liability in respect of any defects which could have been revealed by examination on delivery unless the said defects are reported within 3 days of delivery.
- DAMAGE IN TRANSIT
Subject to the terms of shipping and/or Incoterms 1990, the Company shall replace or (at its discretion) repair free of charge any Products damaged in transit, provided the Company shall receive notification of such damage within twenty four hours of delivery, confirmed in writing within 3 days.
- DELAY IN DELIVERY
- Any proposed delivery date specified by the company for the completion of the Contract is the Company’s considered estimate of the date on which the Products will be delivered to the Buyer or the Contractual Services will be completed by the Company. The Company will make every reasonable endeavour to ensure that Products are delivered to the Buyer and the Contractual Services duly completed on that date. Time shall not be of the essence with regard to delivery of the Products or the completion of the Contractual Services under the terms of the Contract. Save in so far as such exclusion of liability may be precluded by law from time to time, the Company shall have no liability (in contract, tort or otherwise) to the Buyer in respect of any loss, damage, costs or expenses (including consequential loss or damage) which may be incurred by the buyer and which may arise from any delay in the delivery of the Products or the completion of the Contractual Services, and whether or not the said delay shall result from the negligence of the Company, its employees, agents or others for whom it may in law be responsible or otherwise.
- The Buyer shall not be entitled to refuse to accept delivery or take collection of the Products, or repudiate or cancel the Contract as a result of any delay in delivery of the products or in the completion of the Contractual Services. Late delivery or late completion shall not affect the obligations of the Buyer to pay the price.
- Where the Products and/or the Contractual Services are to be supplied by instalments each such instalment shall constitute a separate Contract and failure by the Company to perform any one or more instalment in accordance with the Contract or any claim by the buyer in respect of any one or more instalment shall not entitle the Buyer to treat the Contract as a whole as repudiated.
- PRICE AND PRICE ESCALATION
- Unless otherwise stated all prices are quoted ex-works in Pounds sterling.
- The price is based upon the costs of materials, labour, overhead, insurance, duties, currency regulations, or any other similar costs which are current at the date of the earlier of the Company’s quotation and the Buyer’s order. The Price may be varied to take account of any reasonable increase in any of such costs or charges or changes in currency regulations or foreign exchange fluctuations which may occur before the Contract is fulfilled. In addition to the Price the Buyer shall pay Value Added Tax, or any other taxes, as appropriate.
- In the event of variations or suspension of work due to the Buyer’s instruction or lack of instructions the Company shall have the right to vary the Contract Price and/or the despatch date as the case may be when work is resumed.
- If such a variation is substantial or the suspension of work is lengthy the Company shall be entitled to terminate the Contract on terms that the Buyer shall indemnify the Company in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages, charges, and expenses incurred by the Company.
- Payment shall be made within 30 days from the date of an invoice submitted to the Buyer.
- In the case of progress, stage, materials, procured in advance, payment will be made on demand by the Company.
- In all other cases payment shall be made cash against delivery or on a pro-forma invoice at the Company’s option.
- For export unless otherwise agreed, payment will be by a confirmed irrevocable letter of credit, drawn on a United Kingdom bank in favour of the Company and to satisfactory conditions approved by the company.
- The Buyer shall not be entitled to make any deduction from, or retention of, the amount due under the contract.
- In the event that any amount due under the contract shall not have been paid in full by the due date, the Company shall be entitled to charge interest on all monies outstanding at the rate of 3.5 per centum per annum above the base rate of LloydsTSB plc accruing daily on all amounts due and outstanding.
- PASSING OF RISK
The risk in the Products supplied shall pass to the Buyer in accordance with Incoterms 1990 or at the time when such Products are loaded on to the Buyer’s transport or onto the transport of any person acting for the Buyer.
- RETENTION OF TITLE
The Company and the Buyer expressly agree that, until the Company has been paid in full for the Products comprised in the contract or any other contract between them:-
- The Products comprised in this Contract remain the property of the Company and the Buyer shall store such Products in a proper manner without charge to the Company so that they are clearly identified as belonging to the Company.
- The Company may recover those Products on demand from the Buyer if still in the Buyer’s passion if any of the circumstances set out in Clause 20 occurs; and for the purpose of such recovery the Company, its agents or servants may enter upon any land or buildings upon which it is reasonably believed that the Products are situated.
- If the Buyer incorporates such Products into other products (with the addition of its Products or those of others) or uses such Products as materials for other products (with or without such addition) the property in those products is, upon such incorporation or use, transferred to the Company and the Buyer as bailee of them for the Company will store the same for the Company in a proper manner without charge to the company.
- The Buyer has the right to dispose of the Products or such other products in the ordinary course of its business for the account of the Company and to pass good title to the Product or such other Products to the Buyer’s customer being a bona fide purchaser for value without notice of the Company’s rights.
- In the event of such disposal the Buyer has the fiduciary duty to the Company to account to the Company for the sale proceeds but may retain there from an excess of such proceeds over the amount outstanding under this or any other contract between the Company and the Buyer, and the Company has the additional right to recover the Buyer’s price from the Buyer’s customer to the extent unpaid; if the Company avails itself of such right the Company will account to the Buyer for any such excess as aforesaid less any expenses incurred by the company in or about the recover.
- WARRANT AND DEFECTS
- Notwithstanding the provisions of Clause 18 and subject to the Conditions set out below the Company warrants that the Products and Contractual Services shall correspond with their specification at the time of delivery or in the case of the Contractual at the time of the performance and will be from defects in design, material and workmanship for a period of 12 calendar months from the date of delivery, or a period of 12 calendar months from the date of installation, whichever is the first to expire.
- The above warranty is given by the company subject to the following conditions;
- The Company shall be under no liability in respect of any defect in the products or Contractual Services arising from any drawing, design or specification supplied by the Buyer. In accordance with EC Machinery Directive, where applicable, all Products sold to EC Member Countries will carry the CE Mark of the European Union.
- The Company shall be under no liability for latent defects in free issue materials supplied by the Buyer or any other party for processing or incorporation into the Products. The Company shall be under no obligation to examine any such materials prior to such processing or incorporation.
- The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing)’ misuse or alteration or repair of the products and/or the Contractual Services without the Company’s approval.
- The Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the price has not been paid by the due date for payment.
- The above warranty does not extend to parts, materials or equipment not manufactured by the Company in respect of which the Buyer shall only be entitled to the benefit of such warranty or guarantee given by the manufacturer to the Company.
- The Company shall not be liable for any costs incurred in the event that Products are returned, unless such costs have been agreed, in writing, by the Company prior to their return.
- Subject: as expressly provided in these Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
- Where any valid claim in respect of any of the Products or Contractual Services which is based on any defect in the quality of condition of the Products or Contractual Services or their failure to meet specification is notified to the Company in accordance with these conditions, the Company shall be entitled to replace the Products, or to re-perform the Contractual Services (or the parts in Question), free of charge or, at the Company’s sole discretion, refund to the Buyer the Price (or a proportionate part of the Price), but the Company shall have no further liability to the Buyer.
- If the Company or its agents are on the site or sites of the Buyer through the Buyer’s instructions for the purpose of the Contract or Contractual Services and until the guarantee period on the Product shall have expired the Company’s sole liability for accidents and damage to property shall accordingly without prejudice to the provisions of Clauses 3, 7, 12 and 13 the Company’s entire liability under the Contract and the Buyer’s exclusive remedy is contained under the provisions of clause 18 hereof.
- SITE VISITS
The Buyer shall at all times indemnify the Company against all liabilities to other persons (including the servants and agents of the Company or the Buyer) for bodily injury, damage to property or other costs which may arise out of or in consequence of the execution of the Contract or Contractual Services and against all costs, charges and expense that may be occasioned by the Company by the claims of such persons. Provided that the Buyer shall not be bound to indemnify the Company against any such liability or claim if the injury, damage or loss in question was caused solely by the wrongful acts or omissions of the Company, its agents or servants.
- Without prejudice to the Buyer’s liability to indemnify the Company under Clause 13 the Buyer shall maintain as follows:-
- Such insurances as are necessary to cover all liability of the Buyer in respect of personal injuries or death arising out of or in the course of or caused by the carrying out of the Contract or Contractual Services and;
- Such insurances as are necessary to cover the liability of the Buyer in respect of injury or damage to property, real or personal arising out of or in the course of or by reason of the carrying out of the Contract or Contractual Services and caused by any negligence, omission or default of the Buyer, his servants or agents provided that the company may without prejudice to the generality of the foregoing require by written notice not later than the date of the commencement of the Contract or Contractual Services the Buyer to effect and keep in force such additional insurance as may be necessary to comply with any specific requirement of the Contract.
- If the Buyer fails to comply with the provisions of this Clause the Company (without prejudice to any other rights and remedies) may affect the said insurances and recover the cost of doing so from the Buyer.
The Buyer shall from time to time make available to the Company such parts of the site and such means of access thereto as shall be necessary to enable the Company to execute the Contract or Contractual Services.
- BUYER’S FACILITIES
- The Buyer shall provide at the site such facilities, (if necessary) as are specified by the Company for the purpose of completing the Contract or Contractual Services
- The Buyer shall indemnify the Company against any damage or loss whatsoever arising from the use by the Company, its agents or servants of the facilities provided by the Buyer.
- HEALTH AND SAFETY
The Company and the Buyer shall comply with the Health and Safety at Work Act 1974 and may statutory modifications thereof or regulations published there under. Without prejudice to the generality of the foregoing the Company and the Buyer shall submit to one another all information required by the Act in accordance with the safe handling, installation and use of the Product, equipment and facilities as specified for the purpose of completing the Contract or Contractual Services.
- LIMITATIONS OF LIABILITY
- The potential losses that might be caused or be alleged to be caused by the failure of the Company, its agents, employees or sub-contractors to complete the Contract or to take any particular precaution or care (whether as a result of breach of Contract or Tort, including negligence) or to avoid doing any act are so great in proportion to the sums which can reasonably charge by the Company that the Company and its agents, employees and sub-contractors cannot and will not assume any liability whatever in respect of any loss or damage howsoever caused outside or beyond the express terms of these Conditions. However, the Company is prepared to negotiate special indemnity cover in any particular case at the request and expense of the Buyer.
- Accordingly, without prejudice to the provisions of Clauses 3, 7 and 12, the Company’s entire liability under the Contract and the Buyer’s exclusive remedy shall be as follows:-
- The Buyer’s remedies (whether in Contract or Tort, including negligence) against the Company for any breach of the Company’s obligations hereunder or otherwise for any act, omission or statement of the Company its employees, agents or sub-contractors in connection with or in relation to the subject matter of the Contract, shall subject to sub-Clause iii below be limited to actual money damages not exceeding the Price for the purpose of this sub-clause i a number of causes, whether successive or concurrent, which together result in or contribute to substantially the same loss or damage shall be treated as one cause occurring at the date of the last of such causes.
- Subject to sub-Clause iii below, the Company will accept liability for direct physical injury to or death of persons which is caused by the negligence of the Company or its employees, agents, or sub-contractors and the above money limits shall not apply.
- In no event will the Company be liable for any loss of profits, business or anticipated savings or for damages in respect of special, indirect or consequential loss howsoever caused even if the Company has been advised of the possibility of such loss or damages. Furthermore the Company will not be liable in respect of any claim against the Buyer by any other party (except with regard to personal injury claims under the foregoing Sub-Clause) for any loss or damage caused by the Company’s failure to perform its responsibilities.
- No action, (whether in Contract or in Tort, [including negligence]) and regardless of form including arbitration proceedings arising out of the Contract or any other services of any kind supplied or to be supplied hereunder may be brought by either party more than two years after the party concerned becomes aware of the facts constituting the cause of the action.
- The Buyer agrees that it is fair and reasonable for the Company to limit its liability hereunder and accordingly the Buyer agrees that except as expressly set forth in this Clause 18 all conditions or warranties expressed or implied statutory or otherwise are hereby excluded.
- PATENT RIGHTS AND INTELLECTUAL PROPERTY
- The Company will not accept liability or give any warranty in respect of any patent infringement or alleged infringement which arises as a result of the Buyer’s instructions expressed or implied.
- The Buyer shall indemnify the Company against all liability arising from any infringement of patent rights, registered design, trademarks, trade name or copyright caused by the manner of the buyer’s use or sale of the Products.
- The Buyer shall pay all damages and costs (whether direct or indirect) in respect of any claim against the Company.
- If the Buyer fails to make any payment when it becomes due or enters into any voluntary arrangement with its creditors or if, being an incorporated company, has a receiver appointed or becomes subject to an administration order or if the Buyer ceases or threatens to cease to carry on its business or if the Buyer shall be taken over by or amalgamate with a competitor of the Company or become part of a group of companies of which any member is a competitor of the Company or passes a resolution for winding up or a Court makes an order to that effect or if not being an incorporated Company has a receiving order made against it or if there is a breach by the Buyer of any of these Conditions then the Company may defer or cancel any further deliveries of the Products or the completion of Contractual Services and treat the Contract as determined but without prejudice to the Company’s rights to any unpaid purchase price of Products delivered and Contractual Services supplied and to damages for any consequential loss incurred.
- No order which has been accepted by the Company may be cancelled by the Buyer except with the agreement in writing of the Company and on terms that the Buyer shall indemnify the Company in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages, charges and expenses incurred by the Company as a result of such cancellation.
- Products manufactured, where applicable, are submitted to standard tests at the Company’s works before despatch, if tests other than standard or tests in the presence of the Buyer or representatives are required these, unless otherwise agreed, must be made at the company’s works or at some place nominated by the Company and will be charged as extras.
- If the Buyer or representatives fail or are unable to attend such tests after being given reasonable notice by the Company (in any case not more than 7 days) that the Company are ready to carry out tests will proceed in the absence of the Buyer or its representatives but will be deemed to have been made in the Buyer’s presence. All costs and expenses incurred by the Buyer and the Buyer’s representatives are to the Buyer’s account.
No indulgence or forbearance extended to the Buyer shall limit or prejudice any right of claim available to the Company.
- FORCE MAJEURE
The Company shall not be responsible or liable in any manner for any loss, (direct, indirect or consequential), arising from any delay or default arising from any delay in the performance of any of the Company’s obligations under the Contract where such delay or default arises as a result of any circumstances beyond the control of the Company including ( but without prejudice to the generality of the foregoing) war, industrial action riot, malicious damage, fire storm, flood, Act of God accident, non-availability or shortage of material or labour, failure by any sub-contractor or supplier to perform, failure of production equipment, or any statute, rule, bylaw, order, regulation or requisition made or issued by any government department, local or other duly constituted authority. If performance of the Contract shall be delayed by any such circumstances then the company shall have the right to suspend further performance of the Contract until such times as the cause of the delay shall no longer exist. If the performance of the Contract by the Company shall be prevented by any such circumstances then the Company shall also have the right to be discharged from further performance of and liability under the Contract. If the Company exercises such right the Buyer shall thereupon pay all sums due under the Contract less a reasonable allowance for such part of the Contract as has not then been performed.
The Buyer shall not, without the Company’s prior consent, assign or transfer or purport to assign or transfer the Contract to any other person whatever.
- LIMIT OF CONTRACTS
Any quotation includes only such goods, materials and services as are specified therein. In the event of any material information, specification or instructions supplied by the Buyer being defective, the Buyer shall be responsible to the Company for all additional work occasioned by such defect.
This contract shall be governed by the laws of England.
Each of the Clauses and Sub-Clauses contained in these conditions shall be construed as independent of every other Clause and sub-clause and in the event of any Clause or Sub-Clause being determined by any court of law as being unenforceable then such determination shall not affect the applicability of any other Clause or Sub-Clause and the unaffected provisions of any Clause or SubClause shall remain in full force and effect.