1.1 In these Conditions the following words have the following meanings: "the Buyer" the person(s), firm or company that purchases the Goods from the Company; "the Company" EPS Services & Tooling Limited; "Contract" any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions; "Goods" any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to one gender include the other genders and references to the singular include the plural and vice versa as the context admits or requires.
1.4 In these Conditions headings are for convenience only and do not affect the construction of these Conditions.
2. Application of terms
2.1 Subject to any variation under condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by Mr N Palmer of the Company.
2.4 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 14 days only from its date, provided that the Company has not previously withdrawn it. PROVIDED that prices quoted are subject to any increase by the Company in the prices for such Goods which increase become effective before the date of delivery of the Goods which will be invoiced at the price applicable at the date of despatch.
2.8 The attention of the Buyer is drawn particularly to clause 10 in which the liability of the Company under the Contract is limited.
3.1 The description of the Goods shall be as set out in the Company’s quotation.
3.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
4.1 Unless otherwise expressly agreed in writing Goods will be sent by the Company to the address specified by the Buyer by road, rail or post (as the Company shall in its absolute discretion determine the most suitable) and the Buyer shall be responsible for offloading the Goods.
4.2 If delivery if the Goods shall take place at the Company's place of Business the Buyer shall be responsible for offloading the Goods.
4.3 The Buyer will reimburse to the Company on demand the cost of delivery of the Goods and any packaging material.
4.4 If the Goods are supplied with saw boards or cases these may be non-returnable and will be charged to the Buyer at cost.
4.5 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.6 Subject to the other provisions of these Conditions the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract.
4.7 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
(b) the Goods will be deemed to have been delivered; and
(c) the Company may store the Goods until delivery when the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
4.8 The Buyer will provide at its expense at the place where delivery takes place adequate and appropriate equipment and manual labour for loading the Goods.
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence
proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within 3 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
(e) hold the proceeds of the insurance referred to in condition 6.3(d) on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale. The Buyer shall not mix proceeds of any such sale with any other moneys or transfersuch moneys into an overdrawn account.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a
receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company
and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them or, where the Buyer’s right to possession has terminated, to recover them.
7.1 Unless otherwise agreed by the Company in writing the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
8.1 Payment for the Goods is due on the last working day of the month following the month in which the Goods are invoiced.
8.2 Time for payment shall be of the essence. Any payment which is not paid in full by the relevant due date will render all sums due from that Buyer to the Company on any account whatsoever payable immediately.
8.3 Monthly credit accounts for a Buyer may (at the discretion of the Company) be opened upon receipt by the Company of satisfactory bank reference and two trade references in respect of the relevant Buyer. Alternatively, arrangements may be made for the supply of Goods C.O.D or against proforma invoices.
8.4 No payment shall be deemed to have been received until the Company has received cleared funds.
8.5 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
8.6 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer. Any payment received by the Company from a Buyer may be utilised to satisfy any amount due to the Company from that Buyer notwithstanding any purported allocation of such payment by the Buyer.
8.7 If the Buyer fails to pay the Company any sum due under the Contract then (a) the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the rate set by order of the Secretary of State from time to time for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998 accruing on a daily basis until payment is made, whether before or after any judgment and (b) the Company may, without prejudice to any available remedy and without prior notice to the Company, re-
sell any Goods that have been appropriated to the Contract and which the Company has not paid for.
9.1 Where the Company is not the manufacturer of the Goods, the Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company warrants that subject to the other provisions of these Conditions) upon delivery the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994;
9.3 The Company shall not be liable for a breach of the warranty in condition 9.2 unless:
(a) the Buyer gives written notice of the defect to the Company before the Goods are used and within 14 days of delivery or, if the defect is latent within 14 days of the time when the Buyer ought to have discovered the defect;
(b) in the case of a defect or damage to the Goods caused during transit the Buyer gives written notice of the defect to the Company and the carrier with 3 days of delivery; and
(c) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost for the examination to take place there.
9.4 The Company shall not be liable for a breach of the warranty in condition 9.2 if:
(a) the Buyer makes any use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company.
9.5 Subject to conditions 9.3 and 9.4 if any of the Goods do not comply with the warranty in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided
that, if the Company so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goods which is defective to the Company.
9.6 If the Company complies with condition 9.5 it shall have no further liability for a breach of the warranty in condition 9.2 in respect of such Goods.
9.7 The Company shall not be responsible for the suitability for purpose of the Goods which shall be the responsibility of the Buyer.
9.8 Any goods sent by the Buyer for servicing must be carriage paid and clearly marked with the sender's name, address and contract numbers.
10. Limitation of liability
10.1 Subject to condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these Conditions; and
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Conditions excludes or limits the liability of the Company for death or
personal injury caused by the Company’s negligence or fraudulent misrepresentation.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF
10.4 Subject to conditions 10.2 and 10.3:
(a) the Company’s total liability in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the net invoice cost of the Goods in respect of which the breach of warranty relates or at the option of the Company replacement thereof; and
(b) subject to condition 10.4.1, the Company shall be liable to the Customer in respect of all direct loss or damage caused by the acts or omissions of the Company, its employees, agents or sub-contractors, other than Excluded Loss. In this condition 10.4.2 the expression "Excluded Loss" means all special loss (whether or not the possibility of such loss arising on a particular breach of
contract or duty has been brought to the attention of the Company at the time of making the Contract) and all third party claims, economic loss or other loss of business, production, revenue, profit, goodwill or anticipated savings and loss of
data, whether arising in contract, tort, negligence, breach of statutory duty or otherwise.
10.5 For the avoidance of doubt, in no event shall either party be liable to the other for any indirect or consequential loss of any nature and howsoever caused.
10.6 The Buyer acknowledges that the prices charged by the Company for the Goods have been calculated on the basis that the Company may rely upon the exclusions and limitations of liability set out in this clause.
11.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
11.2 The Company may assign the Contract or any part of it to any person, firm or company.
12. Force majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances
beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
13.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
13.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
(b) if delivered by hand, on the day of delivery;
13.3 Communications addressed to the Company shall be marked for the attention of N Palmer.
14.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
14.4 Any person, firm or company that is not a party to the Contract may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 ("the Act") or otherwise.
14.5 All aspects of the Contract and these Conditions shall be governed by English law and the parties irrevocably submit to the non-exclusive jurisdiction of the English courts.