INDUSTRIAL REMOTE CONTROL SYSTEMS LTD
GENERAL TERMS AND CONDITIONS OF SALE (1st November 2000)
1. DEFINITIONS
The SELLER means Industrial Remote Control
Systems Ltd. (IRCS).
The PURCHASER means the person, firm, company
or other legal entity to whom the SELLER supplies goods and services or to whom
the SELLERS quotation or tender is addressed.
The PRICE means the total value specified in
the SELLERS quotation or tender.
The GOODS or SERVICES means all the work and
all of the services to be performed together with the equipment and material
which are the subject matter of the CONTRACT.
The CONTRACT means the agreement formed in
accordance with clause 2.1 of these terms and conditions.
The SPECIFICATION means the detailed
description of the WORK or SERVICES to
be provided by the SELLER which the SELLER and PURCHASER agree comprises,
subject to these Terms and Conditions of Sale which take precedence thereto,
the scope of its responsibility concerning merchantability, fitness for
purpose, size, weight or any other attribute of the GOODS or SERVICES
whatsoever.
2. ESTABLISHMENT OF CONTRACT
2.1 The
quotation of the SELLER is valid for 28 days from the date thereon, however,
any
CONTRACT arising between the
parties shall only be formed by the SELLERS acknowledgement of the PURCHASERS
order. Such CONTRACT shall be conditional upon the availability of productive
capacity and materials, mutual agreement of a programme at the time of the
CONTRACT and the PURCHASERS creditworthiness being approved by the SELLER.
2.2 The CONTRACT shall be governed by the
SELLERS acknowledgement of order, these
Terms and Conditions of Sale and any documents made part of the CONTRACT by specific
reference in the tender of the SELLER or any foregoing documents.
For the avoidance of doubt, any
terms and conditions of PURCHASE which conflict with these Terms and Conditions
of Sale shall be null and void. This is the only basis upon which the SELLER is
prepared to contract and do business with the PURCHASER, and acceptance of the
goods shall be conclusive evidence that the SELLERS terms and conditions
apply.
2.3 No servant or agent of the SELLER has
any authority to make any representation or give any warranty in relation to
the materials, design or work carried out, or to agree to any variation of or
in addition to these terms and conditions, unless such representation warranty
variation or addition is expressed in writing and signed on behalf of the
SELLER by a director or other person authorised in writing by a director of the
SELLER.
2.4 If and so far as the work has been
necessarily commenced in advance of the agreed programme in order to provide in
accordance with normal process time for delivery dates indicated on the face of
the quotation the PURCHASER shall be liable to accept delivery of that work at
the times and in the quantities as indicated and pay therefore in accordance
with the rates and prices set out in the SELLERS tender and terms hereof.
3. SCOPE OF SUPPLY
3.1 Only those GOODS and SERVICES
expressly stated in the SELLERS quotation or tender are included in the prices
shown.
3.2 Notwithstanding the generality of
clause 3.1, unless otherwise agreed in writing, quotations or tenders for the
supply of GOODS or SERVICES exclude delivery and or any installation and erection
work in respect of such GOODS or SERVICES.
4. SPECIFICATIONS AND DRAWINGS
4.1 All descriptive material, drawings
and particulars of weights, finishes, tolerances, dimensions and speeds
contained in the SELLERS quotation or tender are intended merely to present a general
idea of the GOODS or SERVICES and none of these shall form part of the CONTRACT,
nor shall the SELLER be liable for any misrepresentations or inaccuracy
therein, unless and to the extent such representation or accuracy comprised
part of the SELLERS scope of WORK, GOODS or SERVICES to be provided as set out
in the CONTRACT SPECIFICATION.
4.2 The PURCHASER shall accept the GOODS
or SERVICES as satisfactory fulfilment of the CONTRACT notwithstanding
variations which are reasonable or attributed to any chance in construction
techniques or design within the limitations which are imposed by availability
of materials and components and by production techniques.
4.3 No responsibility is accepted by the
SELLER for accuracy or correctness of information or design information or
specifications supplied by the PURCHASER. The PURCHASER shall be responsible
for checking any drawings prepared by the SELLER to ensure they satisfy the needs
of the PURCHASER.
4.4 Without prejudice to the other
provisions of these Terms and Conditions of Sale where GOODS are manufactured
to the design and or specification of the PURCHASER then the SELLER does not
warrant that such GOODS will e fit for the PURCHASERS purpose.
4.5 Any plans, drawings or technical
documents prepared by the SELLER and submitted to the PURCHASER prior or
subsequent to the formation of the CONTRACT shall remain the property of the
SELLER and shall be returned to the SELLER on request. The PURCHASER shall not
without the SELLERS written consent copy the said plans, drawings or technical
documents or any part of them, or part with possession of them or disclose them
or any part of them to others or allow others to use or copy them, nor will the
PURCHASER use or allow any third party to use the said plans, drawings or
technical documents other than in connection with the installation of the
goods.
4.6 Where approval of the PURCHASER is
required in relation to any GOODS or SERVICES to be provided by the SELLER then
such approvals will be given within a reasonable time having regard to the
SELLERS programme and the expected date for completion of the GOODS and or
SERVICES.
5. DELIVERIES AND COLLECTION
5.1 The period for delivery shall
commence from the date of the SELLERS said acknowledgement or from the date of
receipt by the SELLER of all necessary information, drawings and a fully phased
programme to enable the SELLER to properly commence the WORK, whichever is
later.
5.2 The SELLER shall make reasonable
efforts to maintain delivery schedules or programmes. Except as previously
agreed in writing the SELLER shall not be liable for any loss or damage, direct,
indirect or consequential, whether foreseeable or unforeseeable due to any
delay in delivery.
5.3 Delivery shall be made in normal
working hours as near to site as, in the opinion of the SELLER or its haulier,
safe hard access permits. It is the PURCHASERS responsibility to ensure that
there is suitable access for the heaviest legally permitted articulated
vehicles.
5.4 Unless specifically agreed in writing
to the contrary, the PURCHASER shall unload the vehicle and provide all
necessary plant and/or equipment for such unloading. An allowance of up to two
hours is made for the PURCHASER to unload the SELLERS vehicles and SELLER
reserves the right to charge for extra time involved.
5.5 The PURCHASER shall not be entitled
to claim in respect of short delivery or GOODS damaged in transit unless the
delivery ticket or document is suitably endorsed by the PURCHASER or his agent
and verbal notification is made to SELLERS head office within twenty four
hours of delivery and separate written confirmation is received by SELLER
within seven working days of delivery.
5.6 If the SELLER so agrees the GOODS may
be collected from the SELLERS production works by the PURCHASER and in such
event, when the PURCHASER is notified that the GOODS are ready for collection
at the SELLERS works, the PURCHASER shall collect them without delay. If the
GOODS are not collected by the PURCHASER within three days of being notified,
the SELLER may despatch the GOODS itself at the PURCHASERS expense and at the
risk of the PURCHASER. Such despatch shall be deemed a collection by the
PURCHASER for the purposes of these Terms and Conditions of Sale.
5.7 The PURCHASER shall not be entitled
to refuse to accept the GOODS on the grounds of delay in delivery.
5.8 All delivery notes and/or consignment
notes which should be checked must be retained by the PURCHASER or his agent
and handed to the SELLERS erection personnel upon arrival to site.
6. VARIATION, CANCELLATION AND
SUSPENSION
6.1 Should the SELLER incur any expenses,
costs or losses as a consequence of a variation and/or cancellation and/or
suspension of WORK due to the PURCHASERS instructions or lack of instructions,
such additional expenses, costs or losses shall be added to the contract and
paid for accordingly.
6.2 No amendment or variation to the
scope of supply or the CONTRACT price will be accepted by the SELLER unless
received by the SELLER at least ten working weeks before the date of delivery.
6.3 If for any reason the PURCHASER is
unable to or will not accept delivery of the GOODS at the time when they are
due and ready for delivery, the SELLER shall be entitled at his option to
invoice and be paid for the GOODS as if delivered, and/or so long as storage
facilities permit, store the GOODS until actual delivery and the PURCHASER
shall be liable to the SELLER for a charge in respect of demurrage of five
percent per month (or pro rata) of the contract price of the GOODS stored
and/or suspend or cancel future deliveries. These rights shall be in addition
to those in clause 6.1.
7. PRICES AND TERMS OF PAYMENT
7.1 Payment shall be made before the end
of the calendar month following the month in which the SELLERS invoice was
raised provided that before delivery or collection of the GOODS or SERVICES is
made the SELLER may require adequate security for payment from the PURCHASER
before being obliged to make delivery or allow collection or suspend deliveries
or take such action as may appear suitable to protect the interests of the
SELLER without incurring any liability to the PURCHASER whatsoever.
7.2 Should the PURCHASER default in
payment on the due date for any sum, for whatever reason, without prejudice to
any other right which SELLER may have, the SELLER shall be entitled to be paid
interest at the statutory rate from time to time applying to judgement debts
(calculated on a day to day basis on any outstanding balance) to run from the
date on which such amount was due until receipt by the SELLER of the full
amount due (whether before or after any judgement). The SELLER shall also have
the right to suspend further deliveries and SERVICES without prejudice to the
right to payment for deliveries or collections already made and payment for the
WORK carried out on the suspended items.
7.3 All prices referred to herein exclude
Value Added Taxes, or any other tax or duty which may be levied or charged. The
amount of such taxes or duties calculated at the rate prevailing at the appropriate
time will be added to such prices and shall be payable by PURCHASER to the SELLER.
7.4 GOODS held in stock beyond the
programmed delivery or installation date shall be paid for as if delivery or
installation had been made at the due time. For the purpose of the passing of
risk in such GOODS, such GOODS shall also be deemed delivered or erected at the
due time.
7.5 Unless otherwise agreed in writing,
any costs incurred due to the PURCHASERS inability to accept full loads, shall
be to the PURCHASERS account.
7.6 Except as otherwise expressly agreed
in writing no deduction in respect of retention monies shall be allowed.
7.7 The PURCHASERS obligation to pay on
the due date is absolute. The PURCHASER shall not make any deduction or set off
any money or claim against the SELLER whatsoever.
8. DEFECTS AND LIABILITY
8.1 Subject as hereinafter provided the
SELLER will at his option repair or replace at his own cost any of the GOODS or
SERVICES which he supplies and which are or become faulty or defective as a
consequence of the default of the SELLER within a period of twelve months from
the date of delivery or collection whichever is the earlier but in respect of
GOODS or equipment to be utilised by the PURCHASER for the purpose of hiring
out, the period shall be reduced to three months, provided in each case, as a
condition precedent, that the PURCHASER
has notified the SELLER in writing of the fault within that period. The SELLERS liability is for the SELLERS repair
or replacement costs only. The liability of the SELLER as described aforesaid is in substitution of any and
all other liabilities, conditions or warranties, express or implied, whether in
contract, tort, by reason of Statute or otherwise at law, as to (by way of
example and not by way of limitation) quality or fitness for any purpose of the
GOODS or SERVICES. All such liabilities, conditions and warranties are hereby expressly
excluded.
8.2 Save for cases of death or personal
injury resulting from the SELLERS negligence, the SELLER shall have no other
liability for defective materials or defective workmanship than that stated
herein whether in contract, tort, by reason of Statute or otherwise at law.
8.3 The PURCHASER shall indemnity the
SELLER in respect of any claims or liabilities of the SELLER save as provided
in 8.1 and 8.2 above.
8.4 The GOODS and SERVICES must be
handled and stored by the PURCHASER in the manner recommended by the SELLER
from time to time in the Maintenance Book and Installation and Operations and
Maintenance Instructions, which shall be treated as being a CONTRACT document,
which accompany the SELLERS acknowledgement and in respect of which copies can
be made available on request.
8.5 The SELLER shall not be liable for
defects arising from the PURCHASERS methods of erection, installation or
maintenance nor alterations as the GOODS and SERVICES carried out without the
SELLERS written consent nor from repairs carried out improperly nor from determination
or inadequate protection while being stored by the PURCHASER or during and after
construction.
8.6 Whilst the SELLER undertakes to use
its best efforts to ensure that free issue materials or parts which are
supplied by the PURCHASER or its client for the purpose of provision of GOODS or
SERVICES by the SELLER are not spoiled or damaged. The SELLER accepts no
liability for, and shall be held harmless by the PURCHASER from, the cost of
replacement in the event of loss and or damage to such materials or parts.
9. FORCE MAJEURE
9.1 The SELLER shall not be liable for
any delay in performing its obligations or for any loss, damages or costs to the extent that the delay, loss, damages
or costs it caused by a force majeure event. In addition, should a force
majeure event occur, the SELLER shall not be liable to take alternative
measures to perform its obligations if such alternative measures will result in
increased costs, charges or expenses to the SELLER. Force majeure events shall
be (by way of example and not
limitation) acts of God, acts of civil or military authorities, war, fire, tempest,
lock-outs, industrial disputes, strikes, accidents, breakdowns of plant and
equipment, non-availability of materials, labour or equipment, inclement weather
or other circumstances beyond SELLERS control.
Should any instance of force
majeure cause the CONTRACT to be determined, the SELLER shall be entitled to
payment for all work executed under the contract up to the date of termination,
plus all costs and expenses reasonably incurred in giving effect to the termination,
plus the cases of any obligations with third parties reasonably undertakes
prior to the termination in anticipation of the CONTRACT continuing. The SELLER
shall not be liable for any loss damages or costs of the PURCHASER resulting
from such a termination.
10. ERECTION AND/OR INSTALLATION
10.1 PURCHASER will be responsible for all
building work including but not limited to foundations,
brickwork, cutting away and making good and other work in the PURCHASERS steel
or concrete structures.
10.2 The PURCHASER shall be responsible for
providing such suitable and unhindered access to the construction works as will
enable the SELLERS crane and articulated lorries to off-load at such a point
and flat level surface for lay-out purposes, defined in the SELLERS quotation,
as will eliminate double handling of units prior to placing in their final
positions.
10.3 The PURCHASER shall be responsible for
providing a suitable power supply both for the operation of equipment and for
portable electric tools, and all necessary weights, slings and measuring
instruments.
10.4 The final line and level of the GOODS
is the responsibility of the PURCHASER. Suitable hard level bearing must be
provided by the PURCHASER.
10.5 The
responsibility in suitably and safely store the GOODS rests with the PURCHASER.
10.6 When erection has been completed, the
PURCHASER will be notified accordingly and will be asked to provide a witness
to attend the commissioning of the equipment and to sign the handling over
certificate. In the event that the PURCHASER does not provide such a witness the
equipment will nevertheless be deemed to have been handed over and a
certificate to that effect will be issued and will be deemed to have been
signed by the PURCHASER. Erection is deemed to be complete if the equipment is
fit to commercial use notwithstanding minor omissions or defects which do not
materially affect such use.
10.7 SELLER must be provided with all
facilities under the relevant Health Welfare and Safety Regulations. The
PURCHASER shall comply with each health and safety provision having the force
of law which is relevant to the supply or use of the GOODS.
10.8 The SELLER shall be entitled to employ
members of any signatory Trade Union to the Mechanical Construction Engineering
Agreement or any site work.
10.9 If the SELLER is responsible for only
supervision of the erection, the PURCHASER shall supply suitable labour and
tackle to carry out erection of the equipment under the supervision of one of
the SELLERS foreman erectors.
11. PROPERTY AND RISK
11.1 Until payment in full has been received
for this CONTRACT, property in the goods supplied by the SELLER shall remain
the property of the SELLER and be separately stored and clearly so marked. The
SELLER may enter any premises occupied by the PURCHASER and re-take possession
of the goods forthwith upon the PURCHASER becoming bankrupt, going into
liquidation or receivership or failing to make payment in accordance with this
CONTRACT. Until payment in full has been received by the SELLER, the PURCHASER
shall have possession of the GOODS as bailee only and the PURCHASER shall
account to the SELLER for all proceeds of sale or other disposition of the
GOODS. If any of the GOODS are incorporated into a product property or chattel
of the PURCHASER before payment has been made, the property of such property,
product of chattel shall be and remain with the SELLER until such payment has
been made. If the GOODS are incorporated as aforesaid into something belonging
to someone other that the PURCHASER, then the property in such property, product
or chattel shall be deemed to be owned by the SELLER in common with that other person.
11.2 Notwithstanding the foregoing, the risk
of loss or damage to the GOODS (from whatsoever cause arising) shall be borne
by the PURCHASER from the time of delivery or collection, whichever occurs
first.
12. BANKRUPTCY AND INSOLVENCY
If the PURCHASER shall become
bankrupt or insolvent; or have a receiving order made against him or compound
with his creditors; or being a corporation commences to be wound up (such
winding up not being voluntary for the purpose of reconstruction or
amalgamation whilst solvent); or carry on its business under an administrative
receiver for the benefit of its creditors or any of them; or have an
administrator appointed; or have any distress levied on the GOODS the SELLER
will be at liberty at his option to terminate the CONTRACT forthwith by notice
in writing to the PURCHASER or to the administrative receiver, liquidator, administrator
or other person the option of performing the obligations of the PURCHASER including
but not limited to those concerning payment.
13. CONSEQUENTIAL AND INDIRECT LOSSES
Notwithstanding any other
provision in the CONTRACT, the SELLER shall not be liable to the PURCHASER,
whether in CONTRACT, tort, (including negligence) or otherwise, for any loss of
use (whether partial or total), loss of profits, loss of contracts or indirect
or consequential loss or damage whatsoever and howsoever arising which is
suffered or incurred by the PURCHASER and which is directly or indirectly
connected with the CONTRACT.
13. WARRANTY
Warranty is to be 12 months from
date of despatch to PURCHASER and only with respect to major component items.
The SELLER is only liable for replacement of any faulted major parts and shall
not be liable to the PURCHASER for any costs incurred by the replacement of
warranty parts. All warranty must be notified in writing to the SELLER and all
items must be returned to the address SELLER for repair/replacement.
14. LAW OF THE CONTRACT
The proper law of the CONTRACT
shall be English law, and the parties to the CONTRACT submit to the exclusive
jurisdiction of the English Courts.
