1. APPLICATION OF THESE CONDITIONS
1.1 All goods are supplied by the Company subject to these Terms and Conditions which override any terms and conditions which the Buyer may seek to impose in negotiations or in his order or otherwise.
1.2 All orders for goods shall be deemed to be an offer by the Buyer to purchase goods subject to these Terms and Conditions. No order shall be deemed to be accepted unless and until the Company shall have issued an acknowledgement of the order in the Company’s standard form.
1.3 The acceptance of delivery of goods by the Buyer shall be deemed conclusive evidence of acceptance of these Terms and Conditions.
1.4 No variation of these Terms and Conditions or of any other terms or conditions specifically agreed by the Company shall be valid unless agreed by a Director or the Sales Manager of the Company in writing.
The Company’s employees and agents are not authorised to make any representations about goods or services which are not confirmed by a Director or the Sales Manager of the Company in writing. In entering into the contract the Buyer acknowledges that it has not relied on any representation which is not so confirmed.
The Company reserves the right to correct any error in any sales literature quotation price list invoice or other document or information issued by the Company at any time and without any liability.
4. ORDERS AND CANCELLATION
4.1 The Buyer is responsible for ensuring the accuracy of any order (including any specification) submitted by the Buyer and for co-operating and providing to the Company all necessary information and facilities relating to the goods to enable the Company to perform the contract.
4.2 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 profits), damages, charges, costs and expenses incurred by the Company as a result of cancellation; the Company shall be entitled to retain any deposit or prepayment paid by the Buyer in satisfaction or part satisfaction of the same.
5.1 The price shall be the Company’s quoted price or (where no price has been quoted or a quoted price is no longer valid) in accordance with the Company’s standard charges current at the date of acceptance of the order unless otherwise stated.
5.2 All prices quoted are valid if made in writing and for 30 days only.
5.3 The Company reserves the right to increase the price of any goods to reflect any increase in cost to the Company which is due to factors occuring after the contract is made and which are beyond the reasonable control of the Company including (without limitation) any currency exchange fluctuations imposition of laws and regulations increased taxes and duties cost of labour materials and other manufacturing costs and any variation of or addition to his order or delay or failure of the Buyer.
5.4 All prices are exclusive of VAT unless otherwise stated in writing and the Buyer shall pay all applicable VAT in addition to the price.
5.5 Unless otherwise stated in writing all prices are exclusive of charges for transport and insurance which shall be paid by the Buyer in addition to the price and inclusive of the Company’s standard packaging. Any other packaging supplied at the Buyer’s request shall be charged in addition to the price.
6.1 Unless otherwise agreed in writing the Company shall be entitled to invoice the Buyer on or at any time after delivery of any goods or (where goods are to be collected by the Buyer) at any time after the Company has notified the Buyer that the goods are ready for collection.
6.2 The Company reserves the right to supply goods by instalments and to render a separate invoice in respect of each instalment.
6.3 All payments shall be made promptly by the Buyer in full without any deduction, set off or counter claim. Unless agreed otherwise in writing payment shall be due within 30 days of the date of the Company’s invoice. Time of payment shall be of the essence of the contract.
6.4 All payments shall be made in pounds sterling.
6.5 All sums due to the Company which are not paid on the due date (without prejudice to the Company’s other rights and remedies) shall bear interest at the rate of 2% above the base rate of National Westminster Bank plc from time to time in force accruing on a daily basis from the due date of payment until the date of actual payment.
6.6 If any sum is not paid to the Company on the due date the Buyer shall be deemed to be in breach of contract and the Company may (without prejudice to its other rights and remedies) suspend the supply of any further goods to the Buyer or cancel the contract.
7. DELIVERY OF GOODS
7.1 Unless otherwise agreed in writing all goods are supplied by the Company on an ex works basis. Delivery of goods shall be made by the Buyer collecting the goods at the Company’s premises at any time after the Company has notified the Buyer that the goods are ready for collection or, if some other place for delivery has been agreed by the Company, by the Company delivering the goods to that place.
7.2 If the Buyer so requests the Company shall arrange for carriage and insurance in accordance with the Buyer’s reasonable directions or in the absence of any specific directions as the Company shall determine. Insurance arranged by the Company will be limited normally to the value of the goods. Unless otherwise agreed in writing the costs of carriage and insurance and other costs of freight forwarding incurred by the Company shall be paid by the Buyer and payment shall be made in accordance with the provisions of Clause 6 above.
7.3 If the Company arranges carriage of the goods to some other place the Buyer shall provide such equipment and personnel as shall be necessary for the safe unloading of the goods from any delivery vehicle and the Buyer shall be responsible for supervising the same.
7.4 If the terms of the contract provide for the Buyer to make a deposit or prepayment the Company reserves the right not to commence manufacture of goods until the prepayment is received in cleared funds. If the Buyer makes the deposit or prepayment late then the delivery date shall be extended accordingly.
7.5 The Company will use all reasonable endeavours to deliver goods as specified in the contract but any date or time specified for delivery or performance is (unless it is expressly agreed by the Company in writing that the delivery or performance date is of the essence of the contract) an estimate only and late delivery or performance shall not entitle the Buyer to reject any goods or services terminate the contract withhold any payment claim damages or any other remedies.
7.6 Where goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments or any claim by the Buyer in respect of any one or more of the instalments shall not entitle the Buyer to treat the contract as a whole as repudiated.
7.7 If the Company fails to deliver any goods for any reason and the Company is liable to the Buyer the Company’s liability shall be limited to the excess (if any) of the cost to the Buyer in the cheapest available market of similar goods to replace those not delivered over the price of such goods.
7.8 If the Buyer fails to take delivery of any goods then (without prejudice to any other right or remedy of the Company) the Company may store the goods at the cost and risk of the Buyer or sell the goods at the best price readily obtainable (after deducting all storage, insurance and selling expenses) and charge the Buyer for any shortfall below the contract price.
8. RISK AND PROPERTY
8.1 Goods shall be at the risk of the Buyer at the time when the Company notifies the Buyer that the goods are available for collection; in the case where the Company arranges carriage of goods the risk of the goods will pass to the Buyer at the time of delivery.
8.2 Notwithstanding delivery and/or the passing of risk in the goods title in goods supplied by the Company shall not pass to the Buyer until all money due to the Company from the Buyer on all accounts has been received by the Company in cleared funds.
8.3 Until such time as title in the goods has passed to the Buyer:
8.3.1 the Buyer shall hold the goods on trust for the Company and shall store the goods properly protected and insured in such a way that they can be identified as the goods of the Company;
8.3.2 the Company (without prejudice to its other rights and remedies) shall have the right to recover and sell the goods and to enter onto the premises where the goods are stored for that purpose;
8.3.3 if the goods are destroyed by an insurable risk the Buyer shall hold the proceeds of the insurance (limited to the amount owing to the Company) on trust for the Company;
8.3.4 if the Buyer shall sell the goods (or any other goods in which the Company’s goods shall have been incorporated or mixed in any way) the Buyer shall do so as principal but shall hold the proceeds of sale (limited to the amount owing to the Company) on trust for the Company; and
8.3.5 the Buyer’s rights to possession of the goods shall cease immediately if (being a body corporate) it commits or omits to do any matter or thing which would entitle any person to present a petition for winding up or (being other than a body corporate) commits an available act of bankruptcy or if the provisions of Clause 13 shall apply.
8.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any goods which remain the property of the Company but if the Buyer does so all money owing by the Buyer to the Company shall (without prejudice to any other rights or remedy of the Company) become immediately due and payable.
9. EXCLUSIONS AND LIMITATIONS
9.1 Goods shall be manufacturered and supplied in accordance with the description contained in the Company’s specification and in accordance with all applicable standards required by English law.
9.2 The Company may from time to time make changes in the specification of goods which are required to comply with applicable standards required by English law or which do not affect materially the quality or fitness for purpose of the goods.
9.3 The Buyer must inspect and test goods on delivery. The Buyer must notify in writing the Company:
9.3.1 within 7 days of delivery of any defect or damage apparent on delivery; and
9.3.2 within 7 days of discovery of any latent defect;
The Buyer shall store the goods in a safe and suitable place and shall permit the Company to inspect the goods before further use is made of them. If the Buyer shall fail to comply with these provisions the goods shall be presumed conclusively to be free from defect or damage and in accordance with the contract and the Buyer shall be deemed to have accepted the goods and the Buyer shall not be entitled to reject the goods claim damages or any other remedy and the Company shall have no liability for such defect.
9.4 The Company shall not be liable for any consequential or indirect loss suffered by the Buyer whether this loss arises from a breach of duty in contract or tort or otherwise. Non-exhaustive illustrations of consequential or indirect loss would be loss of profits loss of contract damage to property and personal injury (but only insofar as such injury is not caused by the Company’s negligence).
9.5 The Company carries public liability insurance and product liability insurance cover in respect of the goods. Without prejudice to any other of these Terms and Conditions and subject always to Clause 9.6 below in the event of any breach of contract by or negligence breach of statutory duty or other act neglect or default of the Company the remedies of the Buyer shall be limited to damages and the liability of the Company shall not exceed the amount of insurance cover available in respect of such breach under any policy of insurance maintained by the Company. A copy of the relevant policy of insurance will be made available to the Buyer on request. It is the responsibility of the Buyer to check that the insurance cover of the Company is adequate and meets the requirements of the Buyer. The Company shall use all reasonable endeavours to procure such additional or other insurance cover in the UK insurance market on reasonable terms and at the Buyer’s cost as the Buyer shall request prior to the Buyer placing his order. The Company shall confirm to the Buyer whether or not such additional or other insurance cover is available and the Buyer shall state its requirements for additional or further cover in its order.
9.6 All warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law but nothing in these conditions shall limit the liability of the Company for death or personal injury resulting from the Company’s negligence.
10.1 Subject to the conditions set out below the Company warrants that goods will correspond with their specification and will be free from defects in material and workmanship for the period of six months from the date of delivery.
10.2 The Company shall be under no liability under the above warranty:
10.2.1 for any defect arising from any drawing design or specification supplied by the Buyer;
10.2.2 for any defect arising from ground or other environmental factors fair wear and tear wilful damage negligence abnormal operating conditions failure to follow the Company’s instructions (whether oral or in writing) poor fitting mis‑use or alteration or repair which (in the case of alteration or repair) has not been approved in writing by the Company or other factor beyond the control of the Company;
10.2.3 if the price for the goods has not been paid by the due date or any other monies are owing by the Buyer to the Company;
10.2.4 if it is not permitted such facilities for inspection testing and investigation as may be reasonably requested by the Company;
10.3. The above warranty does not extend to parts materials or equipment manufactured by any sub-contractor nominated by the Buyer in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company (to the extent that the same is assignable).
10.4 Any claim under the warranty must be notified to the Company in accordance with Clause 9.3 above.
10.5 Where the Company is satisfied that the Buyer has a valid claim under the warranty the Company shall be entitled to replace the goods (or any part in question) free of charge or (at the Company’s sole discretion) refund to the Buyer the price of the goods (or a proportionate part of the price) which shall be the limit of the Company’s liability.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 The specification and design of the goods supplied by the Company (including any copyright design right or other intellectual or industrial property right in them) shall as between the parties be the property of the Company.
11.2 The copyright design right or other intellectual or industrial property right in any specifications designs or drawings produced by the Company even to the order or request of the Buyer shall belong to the Company unless otherwise agreed in writing.
11.3 No right or licence is granted by the Company under any contract with the Buyer in relation to any patent trade mark copyright or other intellectual or industrial property right except the right to use the goods.
11.4 If goods are to be manufactured or any process is to be applied to goods by the Company in accordance with any design drawing specification or request submitted by the Buyer the Buyer shall indemnify the Company against all liability loss damages costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for the infringement of any patent copyright design trade mark or other industrial or intellectual property rights of any third party which results from the Company’s use of the Buyer’s design drawing or specification or otherwise in relation to the manufacture or supply of the goods.
12. EXPORT TERMS
12.1 In these Terms and Conditions “Incoterms” means the International Rules for the Interpretation of Trade Terms 2000 of the International Chamber of Commerce. Unless the context otherwise requires any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Terms and Conditions but if there is any conflict between the provisions of Incoterms and these Terms and Conditions the latter shall prevail.
12.2 Where the goods are supplied for export from the United Kingdom the provisions of this Clause 12 shall (subject to any special terms agreed in writing between the Company and the Buyer) apply notwithstanding any other provisions of these Terms and Conditions.
12.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the goods into the country of destination and for the payment of any duties on them.
12.4 Unless otherwise agreed in writing between the Company and the Buyer the goods shall be delivered EXW.
12.5 The Buyer shall co-operate fully with the Company and carrier as shall be necessary to procure the export of the goods from the UK and their importation into the country of destination. Without prejudice to the generality of the foregoing the Buyer shall pay all necessary export and import duties in respect of the goods.
If the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being a body corporate) goes into liquidation or (being a non corporate body) becomes bankrupt or an encumbrancer takes possession or a receiver administrative receiver or administrator is appointed of any of the assets of the Buyer (or anything analogous to any of the foregoing events in any other jurisdiction shall occur in relation to the Buyer) or the Buyer ceases or threatens to cease to carry on business or there shall be a change in control of the Buyer or the Company reasonably apprehends that any of the events mentioned above is about to occur then (without prejudice to any other right or remedy of the Company) the Company shall be entitled to cancel the contract or suspend any further delivery performance under the contract without any liability to the Buyer and if goods have been supplied but not paid for the price shall become immediately due and payable. In this Clause 13 “control” has the meaning given to it in s839 Income and Corporation Taxes Act 1988.
14.1 Every effort will be made to carry out the contract but its due performance is subject to cancellation or variation by the Company if the Company is unable to secure labour goods or materials as a result of an act of God fire war riots civil commotions strike national emergency legislation regulations accidents break down of machinery carriers default or other cause (whether of the foregoing class or not) beyond the Company’s control.
14.2 No waiver by the Company of any breach of contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.3 The Company may assign sub-contract or licence all or any of its rights and obligations under the contract.
14.4 Any notice to be given by either party to the other shall be in writing and shall be given by pre‑paid first class post or hand delivery to that other party at its registered office address or principal place of business.
14.5 Headings contained in these Conditions are for reference purposes only and shall not affect their interpretation.
14.6 In these Terms and Conditions where the context so requires words importing the singular shall include the plural and vice versa and words importing one gender shall include all genders.
14.7 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.
14.8 The contract shall be deemed to be made in England and shall be subject to English law and the parties shall submit to the non-exclusive jurisdiction of the English Courts in relation to it.
14.9 In these Terms and Conditions:
“Company” means Cablepoint Limited (Company registered no: 02099359); where the context so requires references to ”the Company” includes reference to the Company’s employees and agents;
“Buyer” means the person firm or company who or which places an order for goods with the Company;
“goods” means the goods (including any instalments of the goods or any part or parts of the goods) which the Company is to supply under the contract;
”contract” means the contract for the sale and purchase of the goods.