1.1 In these Conditions:
‘Customer’ means the person, firm or company whose order for goods is accepted by the Company
‘Goods’ means the goods (including any installment of the goods or any parts for them), which the Company is to supply in accordance with these Conditions
‘Company’ means Forbes Group
‘Conditions’ means the standard conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company
‘Contract’ means the contract for the purchase and sale of the Goods
‘Writing’ includes facsimile and email transmission and comparable means of communication.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Contract
2.1 The Customer shall buy the Goods and the Company shall sell the Goods in accordance with any written order of the Customer, which is accepted by the Company; any such acceptance shall be subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in Writing by an authorised representative of the Company.
2.3 The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the application or use of the Goods which is not confirmed in Writing by 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.
3. Orders and Specifications
3.1 No order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in writing by an authorised representative of the Company.
3.2 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specifications) submitted by the Customer, and for giving the Company any necessary information, materials or assistance relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Company’s quotation or the Customer’s order (if accepted by the Company).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a 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 claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Customer’s specification.
3.5 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, where the Goods are to be supplied to the Company’s specification, which do not materially affect the quality or performance of the Goods.
3.6 No order which has been accepted by the Company may be cancelled or suspended by the Customer except with the agreement in Writing of the Company and on terms that the Customer shall pay an administration fee of 20% of the value of the order (net of VAT) which sum represents the Company’s estimate of the losses and costs which will be incurred by the Company as a result of cancellation or suspension.
4.1 The price of the Goods shall be the Company’s quoted price which reflects the limitations on the Company’s liability contained in these Conditions. All prices quoted are open for acceptance by the Customer within 30 days only (or, where the Company’s quotation specifies a different period during which the offer made therein remains open for acceptance by the Customer, that longer period shall apply) after which time they may be altered by the Company without giving notice to the Customer.
4.2 The Company reserves the right, on giving notice to the Customer at any time before the delivery of the Goods, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any change in delivery dates, quantities or specifications for the Goods which is 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 or (where the Contract so provides) materials.
4.3 The price is exclusive of any applicable value added tax, customs, import or export duties and any other applicable taxes or duties (whether payable in the United Kingdom or elsewhere) which the Customer shall be additionally liable to pay to the Company.
5. Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Customer and the Company, 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, unless the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, in which event the Company shall be entitled to invoice the Customer for the price at any time after the Company has notified the Customer that the Goods are ready for collection or (as the case may be) the Company has tendered delivery of the Goods.
5.2 Save where agreed to the contrary in Writing the Customer shall pay the price for the Goods in the currency stated in the relevant invoice without any deduction set off or withholding whatsoever within 30 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 of the Contract.
5.3 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
5.3.1 cancel the Contract or suspend any further deliveries to the Customer; and
5.3.2 charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 5% per annum above the Barclays Bank plc base rate from time to time, until payment in full is made (such interest to accrue from day to day and to be compounded and added to principal at such regular intervals as the Company may determine).
6. Delivery and Performance
6.1 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. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.
6.2 If the Customer fails to take delivery of the Goods or fails to give the Company adequate instructions by the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may
6.2.1 store the Goods until actual delivery and charge the Customer for reasonable storage costs (including insurance); and
6.2.2 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 or charge the Customer for any shortfall below the price under the Contract.
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Customer at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the company has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price for the Goods and all other goods agreed to be sod by the company to the Customer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Customer the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the customer fails to do so forthwith, to enter upon any premises of the customer or any third party where the goods or any such items are stored and repossess the same or any part thereof.
8. Warranties and liability
8.1 Subject to the conditions set out below the Company warrants that the Goods will correspond with their specification and will be free from defects in materials and workmanship at the time of delivery.
8.2 The above warranty is given by the Company subject to the following conditions:
8.2.1 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;
8.2.2 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
8.2.3 the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment
8.2.4 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 to the Company.
8.3 Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by the statute or common law are excluded to the fullest extent permitted by law.
8.4 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 specification shall (whether or not delivery is refused by the Customer) be notified to the Company within 7 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 delivery is not refused, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall be 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.
8.5 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 specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace or repair 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.
8.6 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 any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Customer, except as expressly provided in these Conditions.
8.7 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract 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.
9. Insolvency of Customer
9.1 This clause applies if:
9.1.1 the Customer makes voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer or
9.1.3 the Customer ceases, or threatens to cease, to carry on business; or
9.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.2 If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered (in whole or in part) but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.1 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 the notice. Notice sent by facsimile transmission or email or by hand delivery shall be deemed to have arrived upon delivery or receipt of the same; notices sent by first class inland post or airmail post from overseas shall be deemed to have arrived 48 hours and seven days after posting respectively.
10.2 If any provision of these 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 Conditions and the remainder of the provision in question shall be affected thereby.
10.3 The Contract shall be governed by and construed in accordance with the laws of England and the English Courts shall have the non-exclusive jurisdiction to determine any dispute arising in connection with the Contract.
10.4 The Company shall have a general lien over all goods and property of the Customer whether worked on or not in the possession of the Company in respect of all unpaid debts due from the Customer to the Company.
10.5 Save where otherwise agreed in Writing by the Company the ownership of all intellectual property rights relating to the Goods shall vest and remain in the sole ownership of the Company and, save as provided in any license specifically granted in Writing to the Customer by the Company, the Customer shall acquire no right to use or otherwise exploit any such intellectual property rights.