1. GENERAL
1.1 In these conditions “the Company” means Martin Robey Sales Limited whose registered office is at Pool Road, Camp Hill Industrial Estate, Nuneaton, Warwickshire, England CV10 9AE: “the Customer” means the person, firm or company or body entering into any contract with the Company: “Goods” means those items to be supplied by the Company to the Customer pursuant to the terms of any contract between the Company and the Customer: “Delivery Date” means the date on which risk passes in accordance with the terms of Condition 7: “Warranty Period” means the period of six calendar months from the Delivery Date of the Goods.
1.2 All contracts or offers to contract made by the Company with or to the Customer are subject to these conditions unless the same are varied in writing, signed by a Director of the Company and such signed variation is endorsed upon the Company’s formal written Advice/Delivery Note to the Customer.
1.3 These conditions are stipulated by the Company on its own behalf and on behalf of all its servants and agents and apply for the protection of all of its servants and agents as for the Company.
1.4 These conditions shall apply to the contract between the Company and the Customer in the contract set out overleaf and to all subsequent contracts between the Company and that Customer unless and until replaced by a revised edition of which the Customer has received a copy.
1.5 The Company’s quotation is a quotation only for the Goods actually specified. The Company do not accept that any obligations are to be implied from those expressed.
1.6 No indulgence granted or delay permitted by the Company shall constitute any bar to its enforcement of its rights at any time.
1.7 The Company shall not be obliged to pay over to the Customer any money credited to the Customer in the Company’s books so long as the Company has any actual or prospective claim of any nature against the Customer.
1.8 If any part of these conditions shall be found to be unreasonable, invalid or unlawful under any statue or rule of law pertaining thereto, the Court or other competent tribunal shall have the power to strike out or over-ride that part, whether it be an entire Condition or Conditions, or some part or parts thereof, to the extent that it be so found and no further.
2. PRICE AND PAYMENT
2.1 Unless otherwise expressly stated on the Advice/Delivery Note, the Customer shall pay for all Goods at the price or prices therefore which are being charged by the Company to its customers as at the Delivery Date.
2.2 Where the Company agrees to arrange for delivery of the goods to the Customer (or to any place nominated by the Customer) the cost of delivery (including carriage packaging and any insurance) shall be payable by the Customer in addition to the price for the Goods at the same time as the Customer shall be liable to pay the price for the Goods.
2.3 Unless otherwise expressly stated on the acceptance of order payment for any Goods is due:
2.3.1 where the Customer has a written agreement with the Company providing for credit, forthwith at the expiry of the credit period.
2.3.2 in all other cases by payment in cash on delivery.
2.4 The Customer shall pay Value Added Tax in addition to the payment of all other sums due hereunder in respect of all amounts on which such tax is chargeable under the provision of any legislation relating to Value Added Tax.
2.5 All monies due from the Customer which are overdue shall carry interest at the rate of 2 per centum per month of four weeks calculated on the total balance outstanding at the end of each four week period and pro rata for any broken period until payment.
2.6 Any payment by the Customer may be appropriated by the Company in the Absolute discretion of the Directors of the Company to any debt due from the Customer however longstanding.
3.0 DELIVERY
3.1 Any dates given for delivery shipment or manufacturing are estimates only and in no circumstances shall the Company be liable for any delay in delivery or performance howsoever arising.
3.2 Delivery is ex-works but where the Company agrees to arrange for the delivery of the Goods to the Customer (or to any place nominated by the Customer), the Company shall make delivery by post, road or rail transport or such other method as the Company deems fit.
3.3 Where for any reason howsoever arising the Company considers that it is unable to make complete delivery of any parcel or installment of Goods the Company may delay such delivery or make such partial delivery on one or more occasion as it considers possible and the Customer’s obligation to pay shall be correspondingly delayed or as the case may be proportionately reduced.
4.0 EXPORT SALES
Prior to the anticipated delivery of any Goods, the Customer shall obtain all consents licences and permissions which are required for the export of the Goods from England and/or the transport to and import into the country or place where the Goods are to be delivered, in the event that any such consents, licences or permissions are not obtained prior to the anticipated date of delivery, the same shall not in any way relieve the Customer of its obligations to pay for the Goods but the Customer shall forthwith notify the Company in writing of the failure to obtain the same and (notwithstanding any other terms in this or any other contracts relating to the Goods) the Company shall be deemed to have made complete delivery when such Goods are available for collection ex-works from the Company’s premises.
5.0 QUANTITY AND SHORTAGES
If the Customer notifies the Company in writing received by the Company within 14 days of the Delivery Date of any shortages, and the Company is satisfied that such shortages occurred before despatch then the Company will make good the shortages at its own cost within such time as may be reasonable for the Company having regard to its commitments or, at the option of the Company, reduce the price by the price of the Goods not delivered. In no other circumstances shall the Company be liable for any shortages nor shall the Customer by entitled to any other relief in respect of shortages.
6.0 EXTENT OF OBLIGATIONS, OF LIABILITIES AND OF REMEDIES
6.1 The description of Goods appears on the quotation/order forms and/or delivery/advice notes; the Goods shall be deemed to comply with the Contract if they comply with the manufacturer’s specifications therefore as at the date the same are delivered to the Company (or, where the Company manufactures such Goods) where they comply with the Company’s specification and/or design and/or pattern therefore current as at Delivery Date.
6.2.1 Any advice or recommendation given by the Company or its servants or agents to the Customer or its servants or agents as to the storage 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.
6.2.2 The Company reserves the right to make any changes in the specification in the Goods which are required to conform with any applicable safety or other statutory requirements and, where the Goods are to be supplied to the Company’s specification, which do not materially affect their quality or performance.
6.2.3 Except where the Company has given advice or recommendations in Writing as to the suitability of any Goods, the Customer relies solely on his own skill and judgment as to the suitability for any purpose of the Goods to be supplied by the Company.
6.3 Subject as expressly provided in these Conditions, and other than where the Customer is dealing as a consumer (as defined by the Unfair Contract Terms Act 1977), all conditions warranties or other terms in respect of the Goods, whether express or implied by common law or by the Sale of Goods Act 1979, the Supply of goods and Services Act 1982 or any other statute or otherwise howsoever are excluded to the fullest extent permitted by law, save that the Company warrants that:
6.3.2 the Goods correspond with their description as defined in 6.1 above and
6.3.3 the Goods are free from defects which would not be apparent at the time of delivery and which have not been drawn to the Customer’s attention and
6.3.4 the Goods shall (provided that the Goods are subjected to normal usage only and that the provisions of 6.5.3.1 and 6.5.3.2 below are observed) remain free of defects (other than those resulting from fair wear and tear) for the Warranty Period.
6.4 Other than where the Customer is dealing as a consumer (as defined by the Unfair Contract Terms Act 1977) the Company’s liability for and the Customer’s remedies in respect of any breach of any condition or any warranty of any contract including where such breach arises by reason of the negligence or negligent default of the Company its servants or agents and whether or not amounting to a repudiatory or fundamental breach shall be limited and defined as follows:
6.4.1 in no case shall the Company’s liability as aforesaid exceed the greater of the price payable or paid in respect of the Goods.
6.4.2 in no case shall the Company be under any liability as aforesaid where the Customer fails to observe and follow the steps out in 6.4.3. 6.4.4 and 6.4.6 hereunder.
6.4.3 at any time before the expiry of seven days after the expiry of the Warranty Period the Customer shall notify the Company in writing of any alleged defects in the Goods, the nature thereof and the respect in which the Company is alleged to be in breach of contract or duty.
6.4.4 The Company shall be afforded reasonable opportunity to inspect and to test the Goods. Where requested by the Company the Customer shall return the Goods at the Customer’s expense to the Company’s premises.
6.4.5 Within a reasonable time after carrying out such inspection and tests as are considered necessary by the Directors of the Company, the Company shall inform the Customer in writing. EITHER that it rejects the complaint entirely, OR that it offers an allowance against the price paid or to be paid in respect of the allegedly defective Goods OR that it offers to replace allegedly defective Goods or to return or credit the price paid or to be paid in respect of those goods, subject (in those cases where Goods have not been returned to the Company pursuant to 6.4.4) to those goods being returned to the Company within a stated time at the Customer’s risk and expense.
6.4.6 Within 10 days of receipt of the Company’s notification the Customer shall inform the Company whether it accepts the Company’s decision or not. If not the Company and the Customer shall then be deemed to be in dispute.
6.4.7 Where pursuant to 6.4.5. additional goods are to be supplied the same shall be treated as being supplied under a new contract subject to the terms and conditions set out herein.
6.5 WITHOUT PREJUDICE TO THE FOREGOING AND FOR THE AVOIDANCE OF DOUBT:
6.5.6 Except in respect of death or personal injury caused by the Company’s negligence, and save as aforesaid, the Company shall be under no liability whatsoever for any breach of contract whether of an express or an implied term howsoever arising and whether amounting to a repudiatory or fundamental breach or not, and whether tortuous or not, nor for any act of negligence whether in contract, tort or otherwise.
6.5.7 save as aforesaid the Company shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or term, or any duty at common law, or under the express terms of the contract to pay or credit the customer with any damages or loss whether direct or indirect or consequential: and in no event whatsoever shall the Company’s liability exceed the contract price of the Goods.
6.5.3.1 the requirements and recommendations within the vehicles service manual and/or of the Company and/or the manufacturer of the Goods relating to fitting, servicing, inspection, testing and use of any Goods must be strictly adhered to and (without prejudice to the generality of the foregoing conditions or any other conditions herein contained) the Company shall be under no liability whatever for or in respect of any damage or loss arising directly or indirectly from the failure to observe such requirements and recommendations.
6.5.3.2 All Goods must be carefully checked for any evidence of defects and for compliance with specification before the same are used or fitted; Goods must not be fitted other than by skilled persons familiar with such goods and the vehicle or vehicles to which such goods are to be fitted and (without prejudice to the generality of the foregoing conditions or any other conditions herein contained) the Company shall be under no liability whatever for or in respect of any damage or loss arising directly or indirectly from a failure to observe the requirements of this Condition.
6.6 THE CUSTOMER SHALL INSURE AGAINST ALL RISKS OF LOSS OR DAMAGE (WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR OTHERWISE) ARISISING OUT OF OR IN CONNECTION WITH THE SUPPLY OF GOODS UNDER THIS OR ANY OTHER CONTRACT WITH THE COMPANY.
6.7 CUSTOMERS WHO ARE CONSUMERS ARE REMINDED THAT THE FOREGOING RESTRICTIONS DO NOT AFFECT THE STATUTORY RIGHTS GIVEN TO CONSUMERS
7 RISK AND TITLE
7.1 The risk in the Goods shall pass to the Customer (notwithstanding that the property may not have been passed to him) on the earlier of the following:
7.1.1 where delivery is to be ex-works, as soon as the Goods are made available to the Customer ex-works or
7.1.2 where the Company agrees to arrange for delivery of the Goods, in the case of delivery by post, as soon as the Goods are placed in the postal system or, in the case of delivery by any other form of carriage, as soon as the Goods are received by the carrier.
7.2 The property in the Goods shall remain in the Company and shall not pass to the Customer until the Customer shall have paid the full price due in respect of Goods supplied under this or any other contract.
7.3 If payment for Goods supplied under this or any other contract between the Company and the Customer is overdue, or if any act proceeding involving the Customer’s solvency is commenced, the Company may (without prejudice to any of its other rights) repossess the Goods as it sees fit and may enter upon the Customer’s premises by its servants or agents for that purpose.
7.4 If the Company repossesses the Goods it may resell the same. If the proceeds of the resale exceed the amount of the Customer’s indebtedness to the Company, however arising and including damages for breach of any contract or duty, the Company shall account to the Customer for such surplus.
7.5 Until payment of the price as aforesaid the Customer shall hold the Goods as bailee. The Customer must retain the Goods in a separate and identifiable state so as to show that the same are the property of the Company.
7.6 The benefit and/or proceeds of any dealings with the Goods by the Customer in contravention of the Company’s rights shall be held in trust for the Company and any such proceeds shall be paid by the Customer into a separate bank account in the name of the company.
7.7 The Company shall have a general lien over all property of the Customer in possession of the Company for all debts from such Customer howsoever and wherever arising.
8 FORCE MAJEURE
Should the performance by the Company of any of its obligations under the contract be prevented, hindered or delayed by or in consequence of an outbreak of hostilities (whether or not involving the United Kingdom and whether war is declared or not) strikes, lock-outs, trade disputes or other labour difficulties, breakdown, delays in transport, accidents, fire, delay in delivery of raw material or components, or in the event of national emergency, or if the Company’s works should be either directly or indirectly so engaged on government contracts or contracts under priority directions as to prevent, hinder or delay work on other contracts, the Company shall be entitled at any time, on notice to the Customer, to make partial deliveries only or to determine the contract without liability and without prejudice in any case to rights which have already accrued to the Company in respect of deliveries already made.
9 SUB CONTRACT
The Company reserves the right to perform all and any its obligations under the contract by one or more sub-contractors of its choice. All these terms and conditions apply notwithstanding that the work is performed by sub-contractors.
10 DEEMED CANCELLATION AND CANCELLATION
10.1 If the Customer shall make default in or commit any breach of its obligations to the Company or if the Customer or a partner in the Customer (being a firm) shall have any distress or execution levied upon him, his property or assets, or if he shall become insolvent or make or offer to make any arrangements or composition with his creditors, or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against him, or (if the customer shall be a limited company) any resolution or petition to wind up the Customer’s business shall be passed or presented otherwise that for the reconstruction or amalgamation, or if a receiver of the Customer’s undertaking property or assets or any part thereof shall be appointed, or if the Customer shall have any distress or execution levied upon it, its property or assets, the Customer shall be deemed to have cancelled the contract and any contract then subsisting between it and the Company. The following provisions shall apply to such cancellation which shall take effect without prejudice to the Company’s accrued rights and existing remedies against the Customer.
10.2 If any order for Goods given by the Customer shall be cancelled or be deemed to be cancelled by the Customer after acceptance of order by the Company for any reason otherwise as herein permitted, the Company shall be entitled to recover from the Customer as liquidated damages the cost to the Company of any goods, works or materials expended in the execution and in preparation for the execution of the contract and further in every case the profit which the Company might reasonably have made on such contract but the Company shall give credit to the amount of any such costs (but not profit) recovered in respect of the same goods or materials by virtue of any other contract and the amount of any deposit recovered from the Customer. Such sum ascertained as aforesaid shall be certified by the auditors to the Company and their certificate shall be final.
11 INSTALMENT CONTRACTS
11.1 Where any contact is to be performed by the Company in stages or by installments each stage and each installment shall be treated as a separate contract regulated by these conditions and the times herein set out for the performance of any act shall relate to each stage and each installment as if it were a separate contract.
11.2 Where payment is to be made to the Company by installments, each installment shall be treated as a balance due under a separate contract.
11.3 If any installment of any payment in respect of any contract is in arrear the Company may at any time while such arrears continue withdraw from further performance until the same is paid together with interest in full up to date of payment and may commence proceedings to recover the same but this right shall be without prejudice to any other right of the Company under any one or more of the other conditions herein.
11.4 This Condition 11 shall apply where the Company makes partial deliveries pursuant to 3.3 hereof.
12 GOVERNING LAW
12.1 The contract between the Company and the Customer shall be governed exclusively by English law.
12.2 Any dispute between the Company and the Customer arising in any way in connection with the contract between them shall be determined in the first place in the manner, if any, provided in these conditions for resolution of such disputes in any other case by reference to arbitration under the provisions of the Arbitration Acts 1950-1979 and award of such arbitrator shall be a condition precedent to either party to sue the other except for an action by the Company for debts due from the Customer.