Industrial Clutch Parts Terms & Conditions
The customer's attention is drawn in
particular to the provisions of clause 8.
1.
Interpretation
1.1
Definitions:
Business Day:
a day other than a Saturday, Sunday or public holiday in England, when banks in
London are open for business.
Business Hours:
the period from 9.00 am to 5.00 pm on any Business Day.
Conditions:
the terms and conditions set out in this document as amended from time to time
in accordance with clause 11.4.
Contract:
the contract between the Supplier and the Customer for the sale and purchase of
the Goods in accordance with these Conditions.
Customer:
the person or firm who purchases the Goods from the Supplier.
Delivery Location:
has the meaning given in clause 4.1.
Force Majeure Event:
an event, circumstance or cause beyond a party's reasonable control.
Goods:
the goods (or any part of them) set out in the Order.
Order:
the Customer's order for the Goods, in the Customer's written acceptance of the
Supplier's quotation OR in the
Customer's purchase order form.
Specification:
any specification for the Goods, including any related plans and drawings, that
is agreed in writing by the Customer and the Supplier.
Supplier:
Industrial Clutch Parts Limited (registered in England and Wales with company
number 02763370).
Warranty Period:
has the meaning given in clause 5.1.
1.2
Interpretation:
(a)
A
person includes a natural person,
corporate or unincorporated body (whether or not having separate legal
personality).
(b)
A
reference to a party includes its successors and permitted assigns.
(c)
A
reference to legislation or a legislative provision is a reference to it as
amended or re-enacted. A reference to legislation or a legislative provision
includes all subordinate legislation made under that legislation or legislative
provision.
(d)
Any
words following the terms including, include, in particular,
for example or any similar expression shall be interpreted as
illustrative and shall not limit the sense of the words preceding those terms.
(e)
A
reference to writing or written excludes fax but not email.
2.
Basis of contract
2.1
These
Conditions apply to the Contract to the exclusion of any other terms that the
Customer seeks to impose or incorporate, or which are implied by law, trade
custom, practice or course of dealing. Specifically any additional terms
sought to be introduced by the Customer in a Customer’s purchase order.
2.2
The
Order constitutes an offer by the Customer to purchase the Goods in accordance
with these Conditions. The Customer is responsible for ensuring that the terms
of the Order and any applicable Specification are complete and accurate.
2.3
The
Order shall only be deemed to be accepted when the Supplier issues a written
acceptance of the Order, at which point the Contract shall come into existence
governed solely by these terms.
2.4
The Customer
waives any right it might otherwise have to rely on any term endorsed upon,
delivered with or contained in any documents of the Customer that is
inconsistent with these Conditions.
2.5
Any
samples, drawings, descriptive matter or advertising produced by the Supplier
and any descriptions or illustrations contained in the Supplier's catalogues or
brochures are produced for the sole purpose of giving an approximate idea of
the Goods referred to in them. They shall not form part of the Contract nor
have any contractual force.
2.6
A
quotation for the Goods given by the Supplier shall not constitute an offer. A
quotation shall only be valid for a period of 2 Business Days from its date of
issue.
3.
Goods
3.1
The
Goods are described in the Supplier's catalogue as modified by any applicable
Specification.
3.2
To the extent
that the Goods are to be manufactured in accordance with a Specification
supplied by the Customer, the Customer shall indemnify the Supplier against all
liabilities, costs, expenses, damages and losses (including any direct,
indirect or consequential losses, loss of profit, loss of reputation and all
interest, penalties and legal and other professional costs and expenses)
suffered or incurred by the Supplier in connection with any claim made against
the Supplier for actual or alleged infringement of a third party's intellectual
property rights arising out of or in connection with the Supplier's use of the
Specification. This clause 3.2
shall survive termination of the Contract.
3.3
The
Supplier reserves the right to amend the Specification if required for any
reason, and the Supplier shall notify the Customer in any such event.
4.
Delivery
4.1 Each delivery of the Goods should
be accompanied by a delivery note that shows the date of the Order, the type
and quantity of the Goods (including the code number of the Goods, where
applicable), special storage instructions (if any) and, if the Goods are being
delivered by instalments, the outstanding balance of Goods remaining to be
delivered. The Supplier shall deliver the Goods to the location set out in
the Order or such other location as the parties may agree (Delivery
Location) at any time after the Supplier notifies the Customer that the
Goods are ready. On occasion, the Customer can collect the Goods from the
Supplier's premises at Unit
11, Bingswood Industrial Estate, Whaley Bridge High Peak, Cheshire, SK23 7LY
or
such other location as may be advised by the Supplier prior to delivery (Delivery Location).
4.2
Delivery
is completed on the completion of unloading or loading of the Goods at the
Delivery Location.
4.3
Any
dates quoted for delivery are approximate only, and the time of delivery is not
of the essence. The Supplier shall not be liable for any delay in delivery of
the Goods that is caused by a Force Majeure Event or the Customer's failure to
provide the Supplier with adequate delivery instructions or any other
instructions that are relevant to the supply of the Goods.
4.4
If
the Supplier fails to deliver the Goods, its liability shall be limited to the
costs and expenses incurred by the Customer in obtaining replacement goods of
similar description and quality in the cheapest market available, less the
price of the Goods. The Supplier shall have no liability for any failure to
deliver the Goods to the extent that such failure is caused by a Force Majeure
Event or the Customer's failure to provide the Supplier with adequate delivery
instructions or any other instructions that are relevant to the supply of the
Goods.
4.5
If
the Customer fails to take or accept delivery of the Goods within three
Business Days of the Supplier notifying the Customer that the Goods are ready,
then, except where such failure or delay is caused by a Force Majeure Event or
the Supplier's failure to comply with its obligations under the Contract in
respect of the Goods:
(a)
delivery
of the Goods shall be deemed to have been completed at 9.00 am on the third
Business Day after the day on which the Supplier notified the Customer that the
Goods were ready; and
(b)
the
Supplier shall store the Goods until actual delivery takes place, and charge
the Customer for all related costs and expenses (including insurance).
4.6
If
ten Business Days after the day on which the Supplier notified the Customer
that the Goods were ready for delivery the Customer has not taken or accepted
actual delivery of them, the Supplier may resell or otherwise dispose of part
or all of the Goods and, after deducting reasonable storage and selling costs,
account to the Customer for any excess over the price of the Goods or charge
the Customer for any shortfall below the price of the Goods.
4.7
The
Supplier may deliver the Goods by instalments, which shall be invoiced and paid
for separately. Each instalment shall constitute a separate contract. Any delay
in delivery or defect in an instalment shall not entitle the Customer to cancel
any other instalment.
5.
Quality
5.1
The
Supplier warrants that on delivery, and for a period of 12 months from the date
of delivery (Warranty Period),] the Goods shall:
(a)
conform
with their description and any applicable Specification;
(b)
be
free from material defects in design, material and workmanship; and
(c)
be of
satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2
Subject
to clause 5.3,
if:
(a)
the
Customer gives notice in writing to the Supplier[during the Warranty Period
within a reasonable time of discovery that some or all of the Goods do not
comply with the warranty set out in clause 5.1;
(b)
the
Supplier is given a reasonable opportunity of examining such Goods; and
(c)
the
Customer (if asked to do so by the Supplier) returns such Goods to the
Supplier's place of business at the Customer's cost,
the Supplier
shall, at its option, repair or replace the defective Goods, or refund the
price of the defective Goods in full.
5.3
The
Supplier shall not be liable for the Goods' failure to comply with the warranty
set out in clause 5.1
if:
(a)
the
Customer makes any further use of such Goods after giving notice in accordance
with clause 5.2;
(b)
the
defect arises because the Customer failed to follow the Supplier's oral or
written instructions as to the storage, commissioning, installation, use and
maintenance of the Goods or (if there are none) good trade practice regarding
the same;
(c)
the
defect arises as a result of the Supplier following any drawing, design or
specification supplied by the Customer;
(d)
the
Customer alters or repairs such Goods without the written consent of the
Supplier;
(e)
the
defect arises as a result of fair wear and tear, wilful damage, negligence, or
abnormal storage or working conditions; or
(f)
the
Goods differ from their description and any applicable Specification as a
result of changes made to ensure they comply with applicable statutory or
regulatory requirements.
5.4
Except
as provided in this clause 5,
the Supplier shall have no liability to the Customer in respect of the Goods'
failure to comply with the warranty set out in clause 5.1.
5.5
The
terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the
fullest extent permitted by law, excluded from the Contract.
5.6
These
Conditions shall apply to any repaired or replacement Goods supplied by the
Supplier.
6.
Title and risk
6.1
The
risk in the Goods shall pass to the Customer on completion of delivery.
6.2
Title
to the Goods shall not pass to the Customer until
the Supplier receives payment in full (in cleared funds) for the Goods.
7.
Price and payment
7.1
The
price of the Goods shall be the price set out in the Order, or, if no price is
quoted, the price set out in the Supplier's published price list in force as at
the date of delivery.
7.2
The
Supplier may, by giving notice to the Customer at any time before delivery,
increase the price of the Goods to reflect any increase in the cost of the
Goods that is due to:
(a)
any
factor beyond the Supplier's control (including foreign exchange fluctuations,
increases in taxes and duties, and increases in labour, materials and other
manufacturing costs);
(b)
any
request by the Customer to change the delivery date(s), quantities or types of
Goods ordered, or the Specification; or
(c)
any
delay caused by any instructions of the Customer or failure of the Customer to
give the Supplier adequate or accurate information or instructions.
7.3
The
price of the Goods:
(a)
excludes
amounts in respect of value added tax (VAT),
which the Customer shall additionally be liable to pay to the Supplier at the
prevailing rate, subject to the receipt of a valid VAT invoice; and
(b)
excludes
the costs and charges of packaging, insurance and transport of the Goods, which
shall be invoiced to the Customer.
7.4
The
Supplier may invoice the Customer for the Goods on or at any time after the
completion of delivery.
7.5
The
Customer shall pay for
the Goods up front and in cleared funds before any delivery of the Goods takes
place.
7.6
If
the Customer fails to make a payment due to the Supplier under the Contract by
the due date, then, without limiting the Supplier's remedies under clause 9,
the Customer shall pay interest on the overdue sum from the due date until
payment of the overdue sum, whether before or after judgment. Interest under
this clause 7.6
will accrue each day at 4% a year above the Bank of England's base rate from
time to time, but at 4% a year for any period when that base rate is below 0%.
7.7
All
amounts due under the Contract shall be paid in full without any set-off,
counterclaim, deduction or withholding (other than any deduction or withholding
of tax as required by law).
8.
Limitation of liability
8.1
The
Supplier has obtained insurance cover in respect of certain aspect of its own
legal liability for individual claims not exceeding £5,000,000.00 (£5m) per
claim. The limits and exclusions in this clause reflect the insurance cover the
Supplier has been able to arrange and the Customer is responsible for making
its own arrangements for the insurance of any excess liability.
8.2
References
to liability in this clause 8
include every kind of liability arising under or in connection with the
Contract including liability in contract, tort (including negligence),
misrepresentation, restitution or otherwise.
8.3
Nothing
in the Contract limits any liability which cannot legally be limited, including
liability for:
(a)
death
or personal injury caused by negligence;
(b)
fraud
or fraudulent misrepresentation;
(c)
breach
of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d)
defective
products under the Consumer Protection Act 1987.
8.4
Subject
to clause 8.3,
the Supplier's total liability to the Customer shall not exceed £100.
8.5
Subject
to clause 8.3,
the following types of loss are wholly excluded:
(a)
loss
of profits;
(b)
loss
of sales or business;
(c)
loss
of agreements or contracts;
(d)
loss
of anticipated savings;
(e)
loss
of use or corruption of software, data or information;
(f)
loss
of or damage to goodwill; and
(g)
indirect
or consequential loss.
8.6
This
clause 8
shall survive termination of the Contract.
9.
Termination
9.1
Without
limiting its other rights or remedies, the Supplier may terminate this Contract
with immediate effect by giving written notice to the Customer if:
(a)
the
Customer commits a material breach of any term of the Contract and (if such a
breach is remediable) fails to remedy that breach within 10 Business Days of
that party being notified in writing to do so;
(b)
the
Customer takes any step or action in connection with its entering
administration, provisional liquidation or any composition or arrangement with
its creditors (other than in relation to a solvent restructuring), obtaining a
moratorium, being wound up (whether voluntarily or by order of the court,
unless for the purpose of a solvent restructuring), having a receiver appointed
to any of its assets or ceasing to carry on business or, if the step or action
is taken in another jurisdiction, in connection with any analogous procedure in
the relevant jurisdiction;
(c)
the
Customer suspends, threatens to suspend, ceases or threatens to cease to carry
on all or a substantial part of its business; or
(d)
the
Customer's financial position deteriorates so far as to reasonably justify the
opinion that its ability to give effect to the terms of the Contract is in
jeopardy.
9.2
Without
limiting its other rights or remedies, the Supplier may suspend provision of
the Goods under the Contract or any other contract between the Customer and the
Supplier if the Customer becomes subject to any of the events listed in clause 9.1(b)
to clause 9.1(d),
or the Supplier reasonably believes that the Customer is about to become
subject to any of them, or if the Customer fails to pay any amount due under
this Contract on the due date for payment.
9.3
Without
limiting its other rights or remedies, the Supplier may terminate the Contract
with immediate effect by giving written notice to the Customer if the Customer
fails to pay any amount due under the Contract on the due date for payment.
9.4
On
termination of the Contract for any reason the Customer shall immediately pay
to the Supplier all of the Supplier's outstanding unpaid invoices and interest
and, in respect of Goods supplied but for which no invoice has been submitted,
the Supplier shall submit an invoice, which shall be payable by the Customer
immediately on receipt.
9.5
Termination
or expiry of the Contract, however arising, shall not affect any of the
parties' rights and remedies that have accrued as at termination or expiry,
including the right to claim damages in respect of any breach of the Contract
which existed at or before the date of termination or expiry.
9.6
Any
provision of the Contract that expressly or by implication is intended to come
into or continue in force on or after termination or expiry of the Contract
shall remain in full force and effect.
10.
Force majeure
Neither party
shall be in breach of the Contract or otherwise liable for any failure or delay
in the performance of its obligations if such delay or failure results from a
Force Majeure Event. The time for performance of such obligations shall be
extended accordingly. If the period of delay or non-performance continues for 8
weeks, the party not affected may terminate the Contract by giving 10 Business Days
written notice to the affected party.
11.
General
11.1 Assignment and other dealings
(a)
The
Supplier may at any time assign, transfer, mortgage, charge, subcontract,
delegate, declare a trust over or deal in any other manner with all or any of
its rights or obligations under the Contract.
(b)
The
Customer may not assign, transfer, mortgage, charge, subcontract, delegate,
declare a trust over or deal in any other manner with any or all of its rights
or obligations under the Contract without the prior written consent of the
Supplier.
11.2 Confidentiality
(a)
Each
party undertakes that it shall not at any time during the Contract and for a
period of two years after termination or expiry of the Contract, disclose to
any person any confidential information concerning the business, assets,
affairs, customers, clients or suppliers of the other party, except as
permitted by clause 11.2(b).
(b)
Each
party may disclose the other party's confidential information:
(i)
to
its employees, officers, representatives, contractors, subcontractors or
advisers who need to know such information for the purposes of exercising the
party's rights or carrying out its obligations under the Contract. Each party
shall ensure that its employees, officers, representatives, contractors,
subcontractors or advisers to whom it discloses the other party's confidential
information comply with this clause 11.2;
and
(ii) as may be
required by law, a court of competent jurisdiction or any governmental or
regulatory authority.
(c)
Neither
party shall use the other party's confidential information for any purpose other
than to exercise its rights and perform its obligations under or in connection
with the Contract.
11.3 Entire agreement
(a)
The
Contract constitutes the entire agreement between the parties.
(b)
Each
party acknowledges that in entering into the Contract it does not rely on any
statement, representation, assurance or warranty (whether made innocently or
negligently) that is not set out in the Contract. Each party agrees that it
shall have no claim for innocent or negligent misrepresentation [or negligent
misstatement] based on any statement in the Contract.
11.4 Variation
No variation of
this Contract shall be effective unless it is in writing and signed by the
parties (or their authorised representatives).
11.5 Waiver
(a)
A
waiver of any right or remedy is only effective if given in writing and shall
not be deemed a waiver of any subsequent right or remedy.
(b)
A
delay or failure to exercise, or the single or partial exercise of, any right
or remedy shall not waive that or any other right or remedy, nor shall it
prevent or restrict the further exercise of that or any other right or remedy.
11.6 Severance
If any provision
or part-provision of the Contract is or becomes invalid, illegal or
unenforceable, it shall be deemed deleted, but that shall not affect the
validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.6
the parties shall negotiate in good faith to agree a replacement provision
that, to the greatest extent possible, achieves the intended commercial result
of the original provision.
11.7 Notices
(a)
Any
notice given to a party under or in connection with the Contract shall be in
writing and shall be:
(i)
delivered
by hand or by pre-paid first-class post or other next working day delivery
service at its registered office (if a company) or its principal place of
business (in any other case); or
(ii) sent by email to
an email address provided by the parties to each other when placing an order
for the Goods.
(b)
Any
notice shall be deemed to have been received:
(i)
if
delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid
first-class post or other next working day delivery service, at 9.00 am on the
second Business Day after posting; or
(iii) if sent by
email, at the time of transmission, or, if this time falls outside Business
Hours in the place of receipt, when Business Hours resume.
(c)
This
clause does not apply to the service of any
proceedings or other documents in any legal action or, where applicable, any
arbitration or other method of dispute resolution.
11.8 Third party rights
(a)
The
Contract does not give rise to any rights under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of the Contract.
(b)
The
rights of the parties to rescind or vary the Contract are not subject to the
consent of any other person.
11.9 Governing law
The Contract,
and any dispute or claim (including non-contractual disputes or claims) arising
out of or in connection with it or its subject matter or formation, shall be
governed by and construed in accordance with the law of England and Wales.
11.10
Jurisdiction
Each party irrevocably
agrees that the courts of England and Wales shall have exclusive jurisdiction
to settle any dispute or claim (including non-contractual disputes or claims)
arising out of or in connection with the Contract or its subject