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TERMS AND CONDITIONS FOR THE SALE AND SUPPLY OF MATERIAL HANDLING EQUIPMENT

 

  1. INTERPRETATION

 

1.1               

Definitions. In these Conditions, the following definitions apply:

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for  business.

Conditions: the terms and conditions set out in this document (as amended from time to time in accordance with clause 13.6).

Contract: the contract between the Customer and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.

Customer: means the person or corporation who is entering into this Contract for the purchase of Goods.

Goods: the goods (or any part of them) set out in the Order.

Order: the order by the Customer for the Goods, as set out in the purchase order form of the Customer.

Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.

Supplier: means Briggs Equipment UK Limited or any appointed subcontractor.

Term: means the period from acceptance of the Order until Delivery of the Goods to the Customer by the Supplier, subject to certain clauses surviving expiry of the Agreement.

1.2               

Construction. In these Conditions, the following rules apply:

(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 personal representatives, successors or permitted assigns.

(c)            A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or  statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(d)            Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(e)            A reference to writing or written includes e-mails.

 

  1. 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 trade, custom, practice or course of dealing.

2.2          The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.

2.3          The Order shall be deemed to be accepted on the earlier of:

(a)           the Supplier issuing a written acceptance of the Order; and/or

(b)           the Supplier doing any act consistent with fulfilling the Order,

at which point the Contract shall come into existence.

 

  1. GOODS

 

3.1         The Supplier shall ensure that the Goods shall:

(a)            correspond with their description and any applicable Specification;

(b)            be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the skill and judgement of the Supplier;

(c)            where applicable, be free from defects in design, material and workmanship and remain so for 12 months after delivery subject to the Customer completing the warranty information for the Goods; and

(d)            comply with all applicable statutory and regulatory requirements relating to the manufacture, health and safety regulations, labelling, packaging, storage, handling and delivery of the Goods.

3.2            The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.

 

  1. DELIVERY

 

4.1            The Supplier shall ensure that:

(a)            the Goods are properly packed and secured in  such manner as to enable them to reach their destination in good condition.

(b)            each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), 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.

(c)            if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.

4.2            The Supplier shall deliver the Goods:

(a)            on the date specified in the Order, or, if no such date is specified, a date agreed with the Customer;

(b)            to the premises of the Customer as is set out in  the Order, or as instructed by the Customer prior to delivery (Delivery Location); and

(c)            during the normal business hours of the Customer, or as instructed by the Customer.

4.3            Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.

4.4                The Supplier shall not deliver the Goods in instalments without the prior written consent of the Customer. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall not entitle the Customer to any remedies.

 

  1. REMEDIES

 

5.1            If the Goods do not comply with the undertakings set out in clause 3.1, then, without limiting any of its other rights or remedies, the Customer shall have the right to any of the following remedies, if the Goods have been accepted:

(a)            to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);and

(b)            to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods from a third party.

5.2            These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

5.3         The Supplier shall keep the Customer indemnified in full against all costs, expenses, damages and direct losses, including any penalties, and legal and other professional fees and expenses awarded against or incurred or paid by the Customer as a result of or in connection with:

(a)            any claim made against the Customer for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;

(b)            any claim made against the Customer by a third party arising out of, or in connection with, the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and

(c)            any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors,

This clause 5.3 shall survive termination of the Contract.

5.4            The rights and remedies of the Customer under these Conditions are in addition to its rights and remedies implied by statute and common law.

 

  1. TITLE AND RISK

 

Risk in the Goods shall pass to the Supplier on completion of delivery. Title in the Goods shall pass upon full payment in accordance with Clause 7.

 

  1. 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 published price of the Supplier list in force as at the date the Contract came into existence.

7.2           The price of the Goods is exclusive of amounts in respect of value added tax (VAT), but includes the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by the Customer.

7.3           The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

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 rendered invoices within 7 days of receipt of the invoice, unless otherwise agreed between the parties. Payment shall be made to the bank account nominated in writing by the Supplier.

7.6           If the Customer fails to make any payment due under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the base rate of Bank of England from time to time. Such interest shall accrue on a daily  basis  from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

 

  1. CUSTOMER PROPERTY

The Supplier acknowledges that all materials, equipment and tools, drawings, Specifications and data supplied by the Customer (if any) to the Supplier (Customer Materials) and all rights in the Customer material are and shall remain the exclusive property of the Customer. The Supplier shall keep the Customer Materials in safe custody at its own risk, maintain them in good condition until disposed of.

  1. INSURANCE

During the Term of the Contract, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover such heads of liability as may arise under or in connection with the Contract, and shall, on the request of the Customer, produce the insurance certificate giving details of the cover.

 

  1. CONFIDENTIAL INFORMATION

 

A party (receiving party) shall keep in strict confidence all technical or commercial know-how, Specifications, inventions, processes or initiatives which are disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products or its services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents or subcontractors who need to know the same for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors shall keep such information confidential.

 

  1. TERMINATION

 

11.1            The Customer may not terminate the Contract in whole or in part at any time after acceptance of the Order by the Supplier  in accordance with Clause 2.3. If the Customer does seek to terminate the Contract at any time after acceptance of the Order by the Supplier, then the full invoice amount shall be payable in accordance with the terms of the Order.

11.2            The Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer becomes subject to any of the following events:

(a)            the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

(b)            the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(c)            (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(d)            (being an individual) the Customer is the subject of a bankruptcy petition or order;

(e)            a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole  or any part of its assets and such attachment or process is not discharged within 14 days;

(f)             (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

(g)            (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;

(h)         a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

(i)             any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(a) to clause 11.2(h) inclusive;

(j)             the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on, all or substantially the whole of its business; or

(k)            the financial position of the Customer deteriorates to such an extent that in the opinion of the Supplier the capability of the Customer adequately to fulfil its obligations under the Contract has been placed in jeopardy.

11.3           Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

 

  1. FORCE MAJEURE

 

Neither party shall be liable to the other for any delay or failure in performing its obligations under the Contract to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party or, if  it could have been foreseen, was  unavoidable, provided that the Supplier shall use all reasonable endeavours to cure any such events or circumstances and resume performance under the Contract. If any events or circumstances prevent the Supplier from carrying out its obligations under the Contract for a continuous period of more than 30 Business Days, the Customer may terminate this Contract immediately by giving written notice to the Supplier.

 

  1. GENERAL

 

13.1          Assignment and subcontracting.

(a)            The Customer may not at any time assign,  transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

(b)            The Supplier may assign, transfer, charge, subcontract or deal in any other manner with all  or any of its rights or obligations under the Contract without the prior written consent of the Customer.

13.2          Notices.

(a)         Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier ore-mail.

(b)            A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a); if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.

(c)            The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

13.3          Severance.

(a)            If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not beaffected.

(b)            If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

13.4            Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single  or partial exercise of such right or remedy shall preclude or  restrict the further exercise of that or any other right or remedy.

13.5            Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.

13.6         Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Customer and the Supplier.

13.7            Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.