In the Conditions:
(a) ‘The Company’ means PACEPACKER SERVICES LIMITED who shall enter into a Contract with the Purchaser subject to these Conditions:
(b) ‘The Purchaser’ means the Person, Company or firm who shall enter into a Contract subject to these conditions with the Company.
(c) ‘The Contract’ means any Contract incorporating these Conditions.
(d) ‘Plant’ means machinery, equipment, materials and things of all kinds to be supplied by the Company under the Contract.
1. All tenders are open for a period of thirty days from the date hereof or for the period which may be specially stated therein.
2 The prices for the Plant are those stated in the Tender of which these Conditions form part of as have otherwise been agreed. Any increase in such costs up to the date of delivery or installation shall be added to the purchase price and paid by the Purchaser upon completion of the Contract. Deposits are non refundable.
3. Any variation required by the Purchaser in design, quantities or specification shall only bind the Company upon acceptance in writing by them of such variation and the Purchaser shall pay the Company’s quoted price for such variations or, if no price is quoted, a reasonable price. Additional costs incurred by the Company in consequence of variations in instructions or lack of instructions by the Purchaser shall be added to the Contract Price.
4. Until payment shall have been made in full, the property in Plant shall remain in the Company, but the risk of loss or damage there shall pass to the Purchaser on delivery.
5. If the Purchaser makes a default in any payment under the Contract or commits an act of bankruptcy or, being a Company with limited liability, enters into liquidation or suffers a Receiver to be appointed, the Company may, at any time thereafter, without prejudice to any other remedy, either:
(a) Suspend performance of the Contract pending receipt of outstanding moneys in full, in which case the Purchaser shall pay the Company all additional costs occasioned by such suspension (including additional financing charges), or
(b) Treat the Contract as repudiated and sue for any resultant losses: if the Company exercises its option under this paragraph, it may enter the premises of the Purchaser and retake possession of the Plant in minimisation of its loss and the Purchaser hereby irrevocably authorises the Company to enter the premises of the Purchaser for the purpose of retaking possession under this condition.
6. The exercise of its rights under paragraph (5a) of this clause shall not preclude the Company from exercising its rights under Paragraph (5b) hereof in respect of any continuing or repeated breach by the Purchaser.
7. All prices quoted in the tender are exclusive of Value Added Tax which will be added to the invoice for the Plant at the standard rate applicable at the date of invoice. Overdue invoices (invoices not paid on or before contractual dates) will be subject to an additional interest payment calculated daily at 3% per annum above the base rate.
INSPECTION AND TESTS
8. Plant will be subject to the Company’s standard works inspection or tests, details of which will be provided by the Company on request. Any other inspection or test requirements of the Purchaser shall only be binding upon the Company if accepted by them in writing and upon payment of the additional costs as quoted by the Company prior to such acceptance and subject also to any other conditions which may be quoted by the Company.
9. Delivery shall be ex works unless otherwise stated.
10. Where a time for delivery or completion is specified, the Company will make every effort to adhere thereto, but save where liquidated damages for delay have been agreed by the Company in writing, no liability whatsoever shall attach to the Company for delay in meeting such specified time.
11(a) If the Company in the Contract gives any guarantee as to the performance of the Plant, and the Plant fails to meet such guarantee for reason solely attributable to the Company’s design of such Plant or in the workmanship or materials used by the Company in manufacture of such Plant, the same shall be deemed to be defect in the terms of sub-clause.
11(b) thereof and treated accordingly. 11(b) The Company shall make good by repair or at its option by the supply of a replacement, defects which under proper use appear in the Plant within a period of 12 months after delivery and which arise solely from faulty design, materials or workmanship supplied or performed by the Company. Provided that defective parts are promptly returned by the Purchaser at its own costs to the Company’s works unless otherwise arranged. The required or new parts shall be delivered by the Company free of charge and shall also be subject to these conditions.
11(c) When Plant is not of the Company’s manufacture the Company shall so far as reasonably practicable extend to the Purchaser the benefit of any warranty or guarantee given to the Company in respect thereof.
EXCLUSION OF LIABILITY
12. Except as set out in Condition
12(a) All conditions, warranties and guarantees, whether express or implied, written or oral, statutory or otherwise, relating to performance of or defects in the Plant are hereby excluded.
12(b) The Company accepts no liability whatsoever for any loss, damage, injury or expense suffered by the Purchaser, whether direct or indirect, or whether or not resulting from the Company’s negligence or from defects in the Plant or from any failure to achieve performance, or from any other cause and the Company shall in no circumstances be liable for any claim by the Purchaser for loss of use (total or partial), loss of Contracts or loss of Profits.
13. Where the Contract includes for off-loading, supervision of erection, commissioning or testing of the Plant or for any other service to be performed by the Company the Purchaser shall indemnify the Company from and against all liabilities for damage, costs and expenses arising out of the death of or personal injury to any person or damage to any property including such Damage occasioned by negligence or other default by the Company.
14. Notwithstanding anything contained in these Conditions or in any agreed term for payment of liquidated damages, the Company shall not be liable to the Purchaser or other in any way for loss or damage, or delay arising from industrial disputes, official or unofficial and including disputes of employees of sub-contractors or sub-suppliers work people or circumstances beyond the Company’s control.
15. The Company may apply any money due to the Purchaser, under an order in or towards payment, of any money owing by the Purchaser to the Company in relation to any matter whatsoever. For this purpose, reference to ‘The Company’ and ‘The Purchaser’ include any Company which is for the purpose of the Company Act 1948, a holding Company or a subsidiary of the holding Company, of the Company and the Purchaser respectively.
16. The contract and any dispute or claim arising from it or in connection with it or its subject matter or formation, 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.
17. These Conditions of Sale are to be read in conjunction with, and to be treated as part of all tenders and quotations issued by the Company.
18. We reserve the right to make alterations in the design and technical specifications of equipment without giving prior notice to the Purchaser provided such alterations do not materially affect the performance and capacity of the equipment in question.