Standard Conditions of Business

STANDARD CONDITIONS OF BUSINESS

GENERAL

1. Norman Hay Engineering Limited (company number 02184186)(“the Company”) shall sell and install (if applicable) and the customer named overleaf (“the Customer”) shall purchase the goods named overleaf (“the Goods”, which definition shall include any installation thereof (if applicable)) in accordance with the terms set out overleaf and subject to the terms and conditions printed below.  No modifications or variations to these conditions and no other terms and conditions shall be valid or effective and in particular (but without prejudice to the generality of the foregoing) no modifications or variations to these conditions shall apply merely by acknowledgement or acceptance by the Company of any purchase order containing terms and conditions at variance with or in addition to these Conditions unless such modifications or variations and other terms and conditions are expressly accepted in writing by a Director of the Company.
2. Any subsequent orders placed with the Company shall be deemed to be placed subject to these Conditions unless expressly agreed otherwise in writing by a Director of the Company.
3. No order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company’s authorised representative; quotations, prices lists and other publications of the Company do not constitute offers.
4. The Company’s employees, servants and agents are not authorised to make any representations concerning the goods unless confirmed by an authorised representative of the Company in writing.The Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
5. Any advice or recommendation given by the Company or its employees, servants and agents to the Customer or its employees, servants and agents as to the application or use of the Goods, which is not confirmed in writing by an authorised representative of the Company, is followed or acted upon entirely at the Customer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
6. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
7. No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of a Director of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the costs of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.

SPECIFICATIONS

8. The Customer shall be responsible to the Company for ensuring the accuracy of the terms overleaf (including any applicable specification) and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform its obligations in accordance with the terms of any accepted order.
9. The quantity, quality and description of and any specification for the Goods shall be those set out overleaf.
10. If the goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with any specification submitted by the Customer, the Customer shall indemnify the Company against all 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 claims for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Customer’s specification.
11. The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or which changes do not materially affect the quality or performance of the Goods.

PRICE

12. The price quoted by the Company overleaf or comprised in the acknowledgement of order or contract relating thereto is based on the price as ruling at the time of the quotation.All prices quoted are valid for 30 days only or until earlier acceptance by the Customer, after which time they may be altered by the Company without giving notice to the Customer.  Prices are subject to variation by the Company on or after submission of quotation or acceptance of order to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including [but without prejudice to the generality of the foregoing] any foreign exchange fluctuation, currency regulation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which are requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions and the Customer shall pay any such varied price.
13. The price is exclusive of any applicable Value Added Tax, which the Customer shall be additionally liable to pay to the Company.

TERMS OF PAYMENT

14. Subject to any special terms agreed in writing between the Company and the Customer, the Company shall be entitled to invoice the Customer for the price of the Goods on or at any time after delivery of the Goods or (if earlier) when the Goods are ready for delivery save that in the event of the contract to which these Conditions form part providing for installation of the Goods the Company shall be entitled to invoice the Customer for the price of the Goods on or at any time after completion of such installation in accordance with such contract.
15. The Customer shall pay the price of the Goods within 28 days of the date of the Company’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence.  Receipts for payment will be issued only upon request.
16. If the Customer fails to make any payment on the due date to the Company or fails to make any payment on the due date therefore to any other member of the Company’s Group (being any holding company [as defined in Section 736 of the Companies Act 1985] of the Company or any subsidiary [as defined in such Section 736] of the Company or of any such holding company) then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:

(a) Cancel the contract to which these Conditions form part or suspend any further deliveries to the Customer,

(b) Appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Company and the Customer) as the Company may think fit (notwithstanding any purported appropriation by the Customer);

(c) Cancel any other contract or the balance of any other contract which the Customer may have with the Company and to recover from the Customer damages for any loss suffered by the Company as a result of such cancellation; and

(d) Charge the Customer interest at the rate of two per cent per annum above Bank of Scotland Plc’s base lending rate for the time being on the amount due to the Company from the due date to the date of actual payment thereof (both before and after any judgement) such interest to be paid on demand therefore by the Company.

DELIVERY AND INSTALLATION

17. Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods howsoever caused.Time for delivery shall not be of the essence                   unless         previously agreed by the Company in writing.  The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.
18. If the Company fails to deliver the Goods (for any reason other than any cause beyond the Company’s reasonable control or the Customer’s fault), and the Company is accordingly liable to the Customer, the Company’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
19. If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to the Company, the Company may:

(a) Store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or

(b) Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the contract to which these Conditions form part or charge the Customer for any short fall below the price under the contract to which these Conditions form part.

20. In the event of the contract to which these Conditions form part providing for installation of the Goods at site, the Customer will provide the Company, at the Customer’s expense, with suitable access to and possession of the site, proper foundations, gullies and trenches ready to receive the Goods and when delivered, adequate crane, lifting tackle and scaffolding (unless the Company agrees in writing to provide the same), suitable protection for the Goods from the time of delivery, all necessary facilities and adequate assistance for erection and testing, necessary services including, where required, hot water, cold water, steam, electricity, gas, drainage (of suitable capacity, pressure, temperature and purity) to allow proper functioning of the Goods and process and upon delivery will (unless the Company agrees to do so in writing) unload the Goods, convey to the site and place in a position on prepared foundations or steelwork for erection.In the event that the Goods are to be installed in a new factory or on the construction site, the Customer is responsible for the provision of necessary toilet and washing facilities, temporary electric power supply, lighting, heating and weather-proofing of site (where required) and security of equipment, materials and tools delivered to site.The Goods will be supplied and installed in accordance with the Company’s standard electrical, mechanical and ventilation specifications (from time to time).

RISK AND PROPERTY

21. Risk of damage to or loss of the Goods ordered shall pass to the Customer:

(a) in the case of the Goods to be delivered to the Customer at the Company’s premises or other place of storage of the Goods, at the time of delivery of the Goods or (if earlier) seven days after the date when the Company shall notify the Customer that the Goods are available for delivery; and

(b) in any other case

(I)        at the time when the Goods are loaded onto the carrier’s transport vehicle at the Company’s premises or other place of storage of the Goods; or

(ii)        where delivery to the Customer is expressly agreed in writing to be at the Company’s risk, at the time when the Goods are actually delivered to the Customer or, if the Customer wrongfully fails to take delivery of  the Goods, at the time when delivery of the Goods is tendered to the Customer,

(c) where delivery is made or effected in part then the provisions of this Condition 21 shall apply separately to each such part and references to the Goods shall be constructed accordingly.

22. Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions, the Goods shall remain the sole and absolute property of the Company until such time as the Company or anyother member of the Company’s Group (as defined in Condition 16 hereof) (as the case may be) has received in cash or cleared funds payment in full of the price of the Goods and payment in full of all other sums due to the Company or any other such member of the Company’s Group (as the case may be) by the Customer.
23. The Customer acknowledges that until such time as property in the Goods shall pass to the Customer, the Customer is in possession of the Goods solely as agent of the Company.
24. Until such time as property in the Goods shall pass to the Customer, the Customer shall keep the Goods separate from any other goods of the Customer and of third parties and properly stored, protected, insured and identified as the Company’s sole and absolute property.
25. Until such time as property in the Goods shall pass to the Customer and provided that the Goods are still in existence and have not been sold by the Customer, the Customer’s right to possession of the Goods shall cease forthwith on the occurrence of any of the events specified in Condition 41 hereof or at such earlier time as the Company may at any time stipulate.For the purpose of recovering possession of the Goods, the Company shall be entitled to enter onto any premises where the Goods are stored or where they are reasonably thought to be stored and may repossess the same.
26. Subject to the terms hereof and until such time as property in the Goods shall pass to the Customer, the Customer is authorised by the Company to sell the Goods in the ordinary course of its business, subject to the express conditions that any such sale shall be made by the Customer as agent for the Company and that the entire proceeds of such sale are held in trust for the Company and are not mingled with other monies and shall be at all times identifiable as the Company’s monies.
27. In the event of the sale of the Goods by the Customer prior to the time when property in the Goods shall have passed to the Customer, then, if the Customer has not received the proceeds of such sale, the Customer will, on being called upon to do so by the Company at any time, forthwith assign to the Company, in such manner as the Company shall require, all rights (including but without prejudice to the generality of the foregoing, the right to receive the proceeds of sale of the Goods) against the person or persons to whom the Customer shall have sold the Goods.
28. Upon property in the Goods passing to the Customer, it is agreed that in consideration for the Customer’s agreement to the provisions of Conditions 22 to 27 hereof, the proceeds of sale of the Goods received by the Customer shall thereupon become the absolute property of the Customer save and except in the case where an assignment of such proceeds of sale shall have been made pursuant to Condition 27 hereof.
29. The Company shall have a general and particular lien and right of detention on all goods of the Customer whether manufactured by the Company or not including goods sent to the Company for treatment by the Customer which are in the possession, custody or control of the Company for all sums due at any time from the Customer to the Company or any other member of the Company’s Group (as defined in Condition 16 hereof).  The Company shall be entitled to sell or dispose of such goods by auction or otherwise at its sole discretion as agent for and at the expense of the Customer and apply the proceeds in or towards the payment of such sums on 28 days notice in writing to the Customer.  Upon accounting to the Customer for any balance remaining after payment of any such sums due to the Company and the costs of sale or disposal the Company shall be discharged from any liability whatsoever in respect of such goods.

LIABILITY

30. Subject to the Conditions set out below, the Company warrants that the Goods will correspond to the specification referred to overleaf at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire.
31. The above warranty is given by the Company subject to the following conditions:

(a) The Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer,

(b) 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 Goods without the Company’s approval.

(c) The Company shall be under no liability (or any other warranty, condition or guarantee) if the total price of the goods has not been paid by the due date for payment, and

(d) The above warranty does not extend to parts, materials or equipment not manufactured by the Company in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer thereof to the Company.

32. Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
33. Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the specification referred to overleaf shall (whether or not delivery is refused by the Customer) be notified to the Company within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure if the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the contract to which these Conditions form part.
34. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet the specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Customer the price of the Goods (or a proportionate part of the price) but the Company shall have no further liability to the Customer.
35. Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation, or implied warranty, condition or other term, or any duty of common law, or under the express terms of the contract to which these Conditions form part, for any consequential loss or damage (whether for loss or profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees, servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or re-sale by the Customer, except as expressly provided in these Conditions.
36. Where the Goods are sold under a Consumer Transaction (as defined by the Consumer Transactions [Restrictions and Statements] Order 1976) the statutory rights of the Customer are not affected by these Conditions.
37. The Company shall not be liable to the Customer or be deemed to be in breach of the contract to which these Conditions form part by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control.Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control.

(a) Act of God, explosion, flood, tempest, fire or accident,

(b) War or threat of war, sabotage, insurrection, civil disobedience or requisition;

(c) Acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

(d) Import or expect regulations or embargoes,

(e) Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);

(f) Difficulties in obtaining raw materials, labour, fuel, parts or machinery; and

(g) Power failure or breakdown in machinery.

CLAIMS FOR DAMAGE, SHORTAGE OR LOSS

38. Notwithstanding that risk shall have passed from the Company to the Customer in accordance with Condition 21 hereof the Company will at its option repair or replace free of charge all of the Goods lost or damaged in transit provided that:

(a)        (save in respect of a total loss or non delivery of the Goods) details of any loss or damage have been marked on the copy of the consignment note or delivery document signed by the Customer and advised separately in writing to the Company and to the carrier concerned within three days of delivery and within five days of delivery full particulars thereof in writing are given to the Company and the carrier concerned and;

(b)        in respect of a total loss or non delivery of the Goods details are advised separately in writing to the Company and to the carrier concerned within seven days of the transit commencing (otherwise then on a consignment note or delivery document) and within fourteen days of the date of transit commencing full particulars thereof in writing are given to the Company and the carrier concerned.

39. Condition 38 hereof will not apply where the Goods are collected by or on behalf of the Customer from the Company’s premises or other place of storage of the Goods.
40. The Company shall not be responsible for any short delivery unless details thereof are marked on the copy of the consignment note or delivery document signed by the Customer (and in the case of loss in transit all the requirements set out in Condition 38(a) hereof are fulfilled).

TERMINATION OF CONTRACT

41. In the event of the occurrence of any of the following the Company shall have the right forthwith to terminate the contract to which these Conditions form part and upon written notice of such termination being posted bythe Company to the Customer’s last known address any subsisting contract between the Company and the Customer shall be deemed to have been terminated without prejudice to any claim or right the Company might  otherwise make or exercise:

(a) The Customer shall make default in or commit a breach of any contract or other obligations to the Company or to any other member of the Company’s Group (as defined in Condition 16 hereof);

or,

(b) Any distress or execution shall be levied upon the Customer’s property or assets; or
(c) The Customer shall make or offer to make any arrangements or composition with creditors, or commit any act of bankruptcy; or

(d) Any petition or receiving order or bankruptcy shall be presented or made against the Customer; or

(e) (If the Customer shall be a limited company) any resolution or petition to wind-up such a company (other than for the purposes of any amalgamation or reconstruction) shall be passed or presented; or

(f) (If the Customer shall be a limited company) a receiver of such company’s undertaking, property or assets or any part thereof shall be appointed.

ASSIGNMENT

42. The Company reserves the right to sub-contract the fulfilment of the contact to which these Conditions form part or any part thereof.
43. The Customer shall not transfer its rights under these Conditions to any third party without the written consent of the Company.

VALIDITY

44. In the event that any provision of these Conditions shall be determined to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the validity and enforceability of the remaining provisions of these Conditions which shall be construed as if such illegal or invalid or unenforceable provision or provision had not been inserted.

NOTICES

45. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.

GOVERNING LAW AND JURISDICTION

46. The contract to which these Conditions form part shall in all respects be governed by English law and all disputes which may arise out of or in connection with these Conditions or the contract to which these Conditions form part shall be subject to the exclusive jurisdiction of the English Courts save that the Company shall be at liberty to bring any legal proceedings against the Customer in the courts of any other country which itconsidered appropriate and the Customer hereby submits to such jurisdiction.