Forward Composites Ltd Standard Terms & Conditions of Sale
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions:-
1.1.1 "Authorised Representative" means a commercial manager or director of the Seller or the Buyer where applicable and as the case may be.
1.1.2 "Buyer" means the person who accepts a quotation of the Seller for the sale of the Products and whose Order for the Products is accepted by the Seller.
1.1.3 "Conditions" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
1.1.4 "Contract" means the contract for the sale and purchase of the Products and/or Services on the Conditions attached.
1.1.5 "Deposit" means any money payable by the Buyer to the Seller as a deposit in respect of Products and/or Services to be provided as specified in these Conditions or the Order.
1.1.6 "Intellectual Property Rights" means any and all of the following in any and all legal jurisdictions around the world: (a) patents, patent applications, patent disclosures and all related continuations, continuations-in-part, divisions, reissues, re-examinations and renewals, (b) design rights (whether or not registered, (c) trademarks, service marks, logos, trade names, service names, domain names and corporate names, and registrations and applications for registration thereof, (d) copyrights (including rights in computer software), and registrations and applications for registration thereof (e) trade secrets, database rights, rights in undisclosed or Confidential Information including without limitation, software, drawings, electronic data, product or programme descriptions, layouts and renderings, timing and planning schedules, calculation procedures and data, samples, parts and components and systems, models, prototypes, know-how, manufacturing and product processes and techniques, research and development information, and technical data, and (f) other proprietary rights relating to any of the foregoing whatever nature (whether registered or not and including applications to register or rights to apply for registration) which may now or in the future subsist anywhere in the world.
1.1.7 "On-Event Services" means any services provided by the Seller's personnel away from the Seller's premises (located currently in Huntingdon) including but not limited to services provided at the Buyer's premises.
1.1.8 "Order" means the Order submitted by the Buyer in the form approved by the Seller for the sale of the Products and/or the supply of Services.
1.1.9 "Premises" means 9/10 Clifton Road, Huntington, Cambridgeshire PE29 7EJ and any other permanent address of the Seller.
1.1.10 "Products" means the products (including any instalment of the Products or any parts for them) and/or Services which the Seller is to supply specified in the Order.
1.1.11 "Seller" means [Forward Composites Limited (registered in England and Wales under number 8378898 ("Forward") and any other company which is for the time being a subsidiary or holding company of Forward or a subsidiary of Forward's holding company.
1.1.12 "Services" means any services specified in the Order.
1.1.13 "Tooling" means jigs, moulds, casts patterns, test equipment or other items used by the Seller for the manufacture, fabrication or production of any Product for and on behalf of the Buyer.
1.1.14 "Working Day" means any day excluding Saturday and Sunday and public holidays in the United Kingdom.
1.1.15 "Writing" includes cable, facsimile transmissions, e-mails and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 Unless the context otherwise requires words denoting the singular shall include the plural and vice versa, references to any gender shall include all other genders and references to persons shall include bodies corporate, unincorporated associations and partnerships, in each case whether or not having a separate legal identity.
2. BASIS OF THE SALE
2.1 1 The Seller shall sell and the Buyer shall purchase the Products and/or the Services in accordance with any Order submitted by the Buyer which is accepted by the Seller and/or Services in Writing and such sale shall be subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 Quotations are made without commitment and are subject to the Seller sending confirmation of acceptance of an Order received from the Buyer in Writing. A price given in any quotation shall be valid for a period of 30 days, unless otherwise agreed in writing, from the date of issue or the date the quotation is withdrawn if earlier.
2.3 A Deposit may be required at Order placement. 2.4 No variation to these Conditions shall be binding unless agreed in Writing between Authorised Representatives of the Buyer and the Seller.
2.5 The Seller's personnel or agents are not authorised to make any representations concerning the Products unless confirmed by an Authorised Representative of the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.6 Any advice or recommendation given by the Seller or its personnel or agents to the Buyer or its personnel or agents as to the storage, application or use of the Products which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.7 The descriptions and illustrations contained in catalogues, price lists and other leaflets or descriptive matter produced by the Seller in any medium or form do not form part of the Contract and are not binding on the Seller. Any description or sample given of any Products and/or Services is by way of identification only and does not constitute a sale by description or sample. In entering into the Contract the Seller agrees that it does not rely on and waives any claim for breach of any representation arising from such documentation.
2.8 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller and any such documents do not constitute offers made by the Seller.
3. ORDERS AND SPECIFICATIONS
3.1 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by an Authorised Representative of the Seller.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Products and/or the Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties thereon.
3.4 The quantity, quality and description of and any specification for the Products shall be those set out in the Buyer's Order.
3.5 If the Products are to be manufactured or any process is to be applied to the Products by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against drawing design and/or loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any Intellectual Property Rights of any other person which results from the Seller's use of the Buyer's specification.
3.6 The Seller will not without the prior consent in Writing of the Buyer, make any changes in the drawing design and/or specification of the Products and/or Services which will in the Seller's opinion improve the safety or performance of the Products, but where consent for such purpose is given, the Seller shall be entitled to charge any costs associated with this to the Buyer.
3.7 The Seller shall be entitled to sub-contract any part of the design or manufacture of the Products and to sub-contract the Services with the consent of the Buyer (such consent not to be unreasonable withheld or delayed).
3.8 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of an Authorised Representative of the Seller and on terms that the Deposit and all payments to the date of agreed cancellation are forfeited to the Seller and the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including without limitation the cost of all labour and materials used), damages, charges and expenses incurred or contracted by the Seller.
4. PRICE OF THE GOODS
4.1 The price of the Products and/or the Services shall be the Seller's quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery of the Products and/or performance of the Services, to adjust the price of the Products and/or the Services to take account of and charge for any increase in the cost of raw materials or other cost of manufacture, third party labour, or services or any currency fluctuations, increases of taxes or duties, any change in delivery dates, quantities or specifications for the Products and/or Services which is requested by the Buyer, any change in specifications arising from a modification made by the Seller under clause 3.6.and/or clause 3.7 or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices given for Products are given on the basis that delivery is ex works, and where the Seller agrees to deliver the Products otherwise than at the Premises, the Buyer shall be liable to pay the Seller's charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable Value Added Tax, which the Buyer shall be additionally liable to pay to the Seller or where applicable, directly to the appropriate authorities.
4.5 Any quotation or price which the Seller gives in any currency other than pounds sterling is provided for the purpose of guidance only and is not binding on the Seller unless otherwise agreed in Writing by an Authorised Representative of the Seller.
4.6 The price for the Products and/or the Services only covers delivery on the Seller's Working Days during normal working hours. Upon request provided that reasonable notice is given and in the Seller's absolute discretion delivery or where agreed, collection of the Products and/or Services may be made or effected at any time outside normal working hours but will be charged for by the Seller as an increase to the price.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Products and/or the Services on or at any time after accepting the Buyer's Order for the Products and/or the Services.
5.2 A Deposit paid in relation to an accepted Order is non-refundable. The Deposit must be paid in accordance with the payment schedule set out in the Order or if not included in the Order then as set out in Schedule 1 attached.
5.3 The Buyer shall pay the full price of the Products and/or the Services together with VAT (which shall be chargeable unless the Buyer provides clear evidence it is not chargeable) and all other applicable duties and charges and all other monies due pursuant to these Conditions without deduction or set-off on or before the due dates specified in the Order, or if not specified in the Order as specified in Schedule 1 attached and in all cases prior to delivery or despatch or performance as the case may be. The time of payment of the price shall be of the essence of the Contract.
5.4 Where any costs are incurred under the Contract in respect of the Products and/or the Services after delivery or performance the Buyer shall pay/reimburse all such costs within 15 days of the end of the month in which the Seller's invoice is issued.
5.5 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to exercise all or any of the following remedies with immediate effect:
5.5.1 to suspend the Seller's obligations under the Contract; and
5.5.2 to cancel the Contract and forfeit any Deposit and payments the Buyer has paid; and
5.5.3 to sell the Products at the best price readily obtainable and after deducting its reasonable costs (including any charges for any work carried out to the Products, insurance, storage, interest and administration charges incurred) charge the Buyer for any shortfall between the price obtained (after such deductions) and the price due under the Contract; and
5.5.4 to appropriate any payment made by the Buyer for such of the Products (or other products supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported allocation by the Buyer); and
5.5.5 to charge the Buyer compound interest (both before and after any judgement) on the amount unpaid under the Late Payment of Commercial Debs (Interest) Act 1998, until payment in full is made (interest be payable on demand and to accrue daily on the basis of a year of 365 days) together with all costs and expenses incurred by the Seller in the collection of overdue monies; and
5.5.6 where the Seller has not cancelled the Contract, to suspend any further deliveries of the Products and/or the Services to the Buyer and the Seller shall not be bound to deliver the Products and/or the Services within any previously agreed timescale and reserves the right to allocate such Products and/or the resources for the Services to other customers and to deliver such Products and/or Services to the Buyer within as reasonable time period after payment has been made by the Buyer in full (together with all accrued interest) giving priority to customers who have agreed delivery times and have made payments to the Seller on time.
5.6 If for any reason payment by the Buyer is not made in the currency required/agreed under the Contract (the "Contractual Currency") then the Seller will convert the payment into the Contractual Currency at the rate of exchange prevailing at the bank used by the Seller from time to time. If the rates and cost of exchanging the currency together with any premiums, commissions, bank charges or other consequential costs incurred by the Seller when deducted from the payment made result in the Seller receiving less than full payment in the Contracted Currency then the Seller shall pay the shortfall upon demand.
5.7 In addition to the payments made under the Contract the Seller shall pay on demand all receiving bank charges that are charged to the Seller from time to time in respect of the Contract.
5.8 Each Contract with the Buyer is subject to the Seller being satisfied with the Buyer's credit status. The Buyer agrees that the Seller may carry out enquiries with a licensed credit reference agency before processing the Buyer's order. If the Seller in its absolute discretion becomes dissatisfied with the Buyer's credit status the Seller may require security for payment before continuing with or delivery of any Order.
6.1 Delivery of the Products and/or the Services shall not be made until the Buyer has paid in full to the Seller any agreed milestone payment.
6.2 Unless otherwise agreed in Writing by an Authorised Representative of the Seller delivery of the Products and performance of the Services will be made at the Premises.
6.3 Any date or period quoted for delivery of the Products and/or performance of the Services is given in good faith by way of an estimate only and while the Seller shall endeavour to deliver/perform within the period stated the Seller shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by delay in delivery of the Products and/or performance of the Services.
6.4 Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing by an Authorised Representative of the Seller. The Products may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.5 Where the Products are to be packed by the Seller, all such packaging shall be at the Seller's sole discretion. If the Buyer directs special or different packaging from that included in the price then such additional expenditure on packaging shall be at the Buyer's expense.
6.6 Where the Products are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.7 If the Seller fails to deliver the Products (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the actual cost incurred by the Buyer (in the cheapest available market) of similar products and/or services to replace those not delivered/performed over the price of the Products and/or the Services.
6.8 If the Buyer requests delivery of the Products and/or Services to be postponed or refuses to accept delivery of the Products in accordance with the terms of the Contract or fails to collect the Products when notified by the Seller that they are available for collection or otherwise fails to give the Seller adequate delivery instructions then:
6.8.1 With immediate effect any risk of damage to or loss of Products will pass to the Buyer;
6.8.2 The Products will be deemed to have been delivered;
6.8.3 The Seller may store the Products until actual delivery and charge the Buyer for all related costs including but not limited to insurance, storage and administrative charges;
6.8.4 The Seller may (in relation to the Products) increase the price according to price lists supplied at the time of actual delivery.
6.9 After one calendar month of any postponement, refusal to accept delivery or failure to deliver under the terms of Condition 6.8, the Seller may:
6.9.1 lease the Products upon such terms as the Seller in its absolute discretion thinks fit; or
6.9.2 cancel the Contract and forfeit the Deposit and any other payments made; and
6.9.3 sell the Products at the best price readily obtainable and after deducting its reasonable costs (including any charges for work carried out to the Products, insurance, storage and administrative charges incurred) charge the Buyer for any shortfall below the price under the Contract.
6.10 The Buyer undertakes that at the time of delivery of the Products it will inspect the Products to ensure that they comply with the terms of the Contract ("Acceptance"). The Seller recommends that such inspection should include the examination of the Products by a properly qualified engineer prior to acceptance of the Products. It is the Buyer's responsibility to arrange for Acceptance of the Products immediately on delivery and to sign an Acceptance receipt if required by the Seller.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Products shall pass to the Buyer:-
7.1.1 in the case of Products to be delivered at the Premises, at the time when the Seller notifies the Buyer that the Products are available for collection; or
7.1.2 in the case of Products to be delivered otherwise than at the Premises, at the time of despatch; from which point the Seller shall have no further responsibility for loss, damage or
deterioration to the Products. For the avoidance of doubt Condition 7.1.2 means that where the Seller agrees to deliver the Products to the Buyer the Seller will have no liability for any such damage incurred up to and including the time of delivery. The Buyer is advised to insure against any such liability
7.2 Notwithstanding delivery and the passing of risk in the Products, or any other provision of these Conditions, the property in the Products shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Products and all other products agreed to be sold to the Buyer or Services to be performed by the Seller for the Buyer for which payment is then due without deduction or set-off.
7.3 Until such time as the property in the Products passes to the Buyer, the Buyer shall:-
a) hold the Products as the Seller's fiduciary agent and bailee, and shall keep the Products separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property.
b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products
c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery
d) notify the Seller immediately if the Buyer becomes subject to any of the events listed in clause 12.1
7.4 The Buyer shall give the Seller such information relating to the Goods as the Seller may require from time to time.
7.5 Until such time as the property in the Products passes to the Buyer the Seller shall be entitled at any time to require the Buyer to deliver up the Products to the Seller and, if the Buyer fails to do so forthwith, the Buyer hereby irrevocably grants to the Seller the right to immediately enter upon any premises of the Buyer or any third party where the Products are stored to repossess the Products.
7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) become immediately due and payable.
7.7 If the Buyer provides property to the Seller to provide the Products and/or the Services or for any other purpose:
7.7.1 The risk of damage to or the loss of any such property remains with the Buyer or the owner (as the case may be) and the Seller shall have no responsibility for damage to or deterioration of such property whilst in its possession which shall remain the Buyer's responsibility to insure;
7.7.2 Such property will be returned once the Seller has received payment in full for all Products and/or Services provided to the Buyer.
8. WARRANTIES AND LIABILITY
8.1 The Seller may charge a fee for storing the Tooling at the Seller's premises, such fee being based on a fee agreed between both parties from time to time.
8.2 The above warranty is given by the Seller subject to the following conditions:- 8.2.1 the Seller shall be under no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by the Buyer;
8.2.2 the Seller shall be under no liability under any condition or guarantee if the total price for the Products has not been paid by the due date for payment;
8.3 Subject as expressly provided in these Conditions, and except where the Products are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 The Buyer must satisfy himself as to the suitability of the Products and/or the Services and must rely on the Buyer's own safety and general testing and regular inspection of the Products.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Products or their failure to correspond with any drawing, design or specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within five days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time not exceeding one month after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Products and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Products had been delivered in accordance with the Contract.
8.6 Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the Products or their failure to meet any drawing, design or specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Products (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Products (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.7 Any Products which are returned to the Seller by the Buyer under this Condition 8 or for any other reason whatsoever must be returned to 9/10 Clifton Road, Huntington, Cambridgeshire PE29 7EJ or such other place as the Seller may from time to time direct.
8.8 In the case of any Products not manufactured by the Seller and supplied by the Seller or incorporated with the Seller's Products the Seller is unable to provide any warranty or guarantee.
8.9 Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation, (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Buyer or the supply of the Services to the Buyer, and the entire liability of the Seller under or in connection with the Contract (except in relation to death or personal injury as aforesaid) shall not exceed the price of the Products.
8.10 The Buyer hereby acknowledges that the Buyer shall be solely responsible for and shall hold the Seller, its officers, employees and agents fully indemnified and harmless against all claims, demands, liabilities, losses, damages, proceedings, costs (including without limitation legal costs) and expenses which may be brought against or incurred by the Seller, its officers, employees or agents as a result of any accident or incident involving the Products or the Services sold to the Buyer (other than for death or personal injury resulting from the negligence of the Seller, its officers, employees or agents).
8.11 The Buyer undertakes to indemnify, keep indemnified and hold harmless the Seller against any loss, costs, claims, liability, expenses or fees the Seller may incur arising directly or indirectly out of any breach of the Contract by the Buyer.
9. SAFETY & GENERAL TESTING
9.1 For the purpose of safety and general testing the Buyer should inspect the Products on delivery, installation, or collection as the case may be and also upon the completion of any Service(s) performed by the Seller. Such inspection should include the examination of the Products and/or the Services by a properly qualified engineer/quality person.
10. SUSPENSION OF ORDERS
10.1 Subject to the agreement of the Seller in writing the Buyer may suspend all or any part of an Order or the Contract as the case may be by giving the Seller a written notice ("Stop Work Order") for a maximum period of twenty (20) working days (Monday to Friday inclusive) from and including the date the Stop Work Order is delivered to the Seller and for any other longer period the parties may agree in writing. Upon receipt of the Stop Work Order the Seller shall forthwith comply with its directive to stop work by taking all reasonable steps to minimise the costs relating to the work covered by the Stop Work Order. Before the expiry of the Stop Work Order the Buyer shall write to the Seller informing the Seller that it shall on or prior to expiry either:
10.1.1 cancel the Stop Work Order; or 10.1.2 terminate the Work covered by such Stop Work Order in which instance the Buyer shall pay to the Seller the sums set out in Condition 10.3.
10.2 If a Stop Work Order is cancelled or the period of the Stop Work Order or any extension thereof expires, the Seller shall resume work. If the Stop Work Order results in an increase in the time required for, and/or the cost of, performance of the Contract, and if the Seller asserts a claim for such increase within ninety (90) calendar days after the end of the period of work stoppage then subject to the Seller's obligation to minimise its costs under these circumstances (in accordance with Condition 10.1), the Buyer shall reimburse the Seller for the direct costs incurred by the Seller as a result of the Stop Work Order. In such circumstances an equitable adjustment shall be made to the delivery schedule and/or price and/or other affected contractual provisions, and the Contract shall be amended in writing accordingly.
10.3 In the event of termination of an Order or a Contract for any reason, the Seller shall be entitled to claim a termination charge consisting of all costs and expenses which have been reasonably and properly incurred by the Seller in connection with the Products and Services at the date of termination and all costs and expenses which shall arise following the date of termination as a direct result of termination of the Order or the Contract as the case may be, which costs shall comprise expenditure on materials, labour, overheads and payments to subcontractors and any other committed costs at the date of termination.
11. FORCE MAJEURE
11.1 The Seller shall not be liable for any failure to deliver the Products or provide the Services arising from circumstances outside the Seller's reasonable control (hereafter a "Force Majeure Event")
11.2 Force Majeure Events shall include (but are not limited to) Acts of God, war, threat of war, riot, terrorism, explosion, weather conditions, disease, explosion, flood, tempest, fire or accident, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery, computer hardware or software failure and interruptions to or breakdown of the national or international telecommunications systems, sporting or technical regulation (including without limitation governing body regulation), changes introduced by championship or motorsport event organisers (including but not limited to changes to the motorsport events calendar) delay by suppliers, travel delays or cancellations or breach by the Buyer of its obligations under these Conditions.
11.3 Should the Seller be prevented from delivering the Products or providing the Services pursuant due to a Force Majeure Event it will provide notice in Writing of this fact as soon as reasonably practicable after discovering it.
11.4 In the event that the Seller is prevented from delivering the Products or providing the Services pursuant to condition 10.1, the Seller shall use reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which the Contract may be performed despite the continuance of the Force Majeure Event.
11.5 If the circumstances preventing delivery of the Products or providing the Services are still continuing six months after the Buyer receives the Seller's notice then either party may give notice in Writing to the other cancelling the Contract with immediate effect.
11.6 If the Contract is cancelled, the Seller will refund any payment which the Buyer has already made on account of the price, subject to deduction of any amount the Seller is entitled to claim from the Buyer under the Contract and deduction of any payment for any Products which have been delivered and/or Services already provided but the Seller will not be liable to compensate the Buyer for any claims, loss or damage caused or expenses incurred by the failure to deliver.
12. INSOLVENCY OR CHANGE IN CREDIT STATUS OR MATERIAL BREACH OF CONTRACT
12.1 In the event that:
12.1.1 The Buyer makes any voluntary arrangement with its creditors or becomes bankrupt or appoints a receiver, administrative receiver or administrator or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986) or the Buyer appoints a manager or official receiver over its affairs; or goes into liquidation, unless for the purpose of a solvent reconstruction or amalgamation; or has distress, execution, sequestration levied or issued against any part of its assets or are otherwise unable to pay its debts as they fall due within the meaning of section 123 Insolvency Act 1986; or
12.1.2 The Buyer ceases or threatens to cease to carry on its business or a substantial part of it or the Seller reasonably apprehends that the Seller will do so; or
12.1.3 The Buyer suffers any similar proceedings under foreign law; then, without prejudice to any other right or remedy available to the Seller, the Seller will be entitled to cancel the Contract forthwith or to suspend any further deliveries under the Contract without any liability to the Buyer, and if the Products have been delivered but not paid for then the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and if the Buyer fails to pay immediately the Seller shall be entitled to immediate possession of the Products and to exercise the rights included in Condition 7.4.
12.2 The Seller shall be entitled to terminate the Contract forthwith upon notice in Writing to the Buyer if the Buyer is in material breach of the Contract and where such breach is capable of remedy, the Buyer fails to remedy the same within 21 days of written notice from the Seller requesting remedy or such shorter period as may be reasonable in the circumstances.
12.3 Termination of a Contract shall not release either of the parties from any liability which at the time of termination has already accrued to the other party, nor affect in any way the survival of any other right, duty or obligation of the parties which is expressly stated in these Conditions to survive such termination. Conditions 8, 9, 12, 13 and 15 shall survive the expiry of the Contract for any reason.
12.4 Upon termination under this clause 11 all amounts due for payment in respect of any Order for Products and/or Services completed and/or delivered to the Buyer shall be paid by the Buyer to the Seller without deduction or set-off within 5 working days from and including
the date of termination. In respect of Products ordered by the Buyer but not yet delivered to the Buyer such amounts shall be due and payable by the Buyer to the Seller without deduction or set-off within 5 working days from and including the date of termination. Where the Seller has incurred any costs relating to unfinished Products or part performed Services or has contracted to incur costs relating to the Products and/or Services at the date of termination, the Seller shall be entitled in addition to be reimbursed such costs without deduction or set-off within 5 working days of a statement being provided to the Buyer by the Seller.
13.1 For the purposes of this condition "Confidential Information" means all information, data or materials received by the Buyer from the Seller which relates to the Seller's or its associated or group companies" business, business affairs or technical matters, customers or suppliers, business methods, prices, finances, marketing, research, development, manufacturing processes, market opportunities, computer systems or software, Product information (including without limitation Intellectual Property Rights) new product details, business plans and such other matters as may be reasonably regarded by the disclosing party or its associated or group companies as confidential.
13.2 The Buyer agrees that Confidential Information will be maintained in strict confidence by the Buyer and that the Buyer will only use Confidential Information provided to it exclusively for the purpose authorised in Writing by the Seller. It shall be made accessible to only those personnel of the Buyer who need to be in possession of it insofar as it is required for such purpose, and may be disclosed to third parties only after receipt of the consent of the Seller in Writing and only on the basis that it remains confidential and the third party receiving signs a confidentiality condition on the same terms as this Condition 12.
13.3 All Confidential Information shall remain the property of the Seller save as expressly specified in Writing by an Authorised Representative of the Seller.
13.4 Immediately upon the Seller's request the Buyer shall (at the direction of the Seller), deliver up to the Seller or destroy all Confidential Information received under this Contract and shall deliver up to the Seller any other property of the Seller in the Buyer's possession or control (including in each case transcriptions, copies, records and further developments thereof) any time such a request is has been received, and automatically after termination of the Contract. If and to the extent the Seller requests the Buyer to destroy or have destroyed the Confidential Information then following destruction the Buyer shall certify that all such Confidential Information has been destroyed and evidence of compliance will be provided to the Seller on request. 13.5 The obligations of confidence and non-disclosure do not apply to Confidential Information which:
13.5.1 was public knowledge or already known to the Buyer at the time of disclosure;
13.5.2 subsequently becomes public knowledge other than by breach of the Contract;
13.5.3 subsequently comes lawfully into the Buyer's possession via a third party.
13.6 The Buyer accepts that any breach of this Condition could cause injury to the Seller and that monetary damages would not be an adequate remedy. In the event of a breach of threatened breach by the Buyer the Seller shall be entitled (without prejudice to any other remedy available to it) to injunctive relief in any court of competent jurisdiction and the Buyer shall reimburse the Seller for any costs (including without limitation legal costs), claims, demands or liabilities arising directly or indirectly out of such breach.
14. INTELLECTUAL PROPERTY
14.1 All Intellectual Property Rights in any Product designed or manufactured by the Seller before the date of any Contract entered into by the Seller and the Buyer and any Intellectual Property Rights arising after the date of any such Contract shall belong exclusively to the Seller. No licence is hereby granted by the Seller to the Buyer in respect of any such Intellectual Property Right save for the right of the Buyer to use and/or sell the Products.
14.2 In particular but without limiting the Seller's Intellectual Property Rights:
14.2.1 The Buyer shall not add any image/decals/logos/trademarks relating to the Seller to the Products or alter any image/decals/logos/trademarks relating to the Seller that are on the Products on delivery without the prior consent in Writing of an Authorised Representative of the Seller; and
14.2.2 The Buyer shall not alter any software included in the Products without the prior consent in Writing of an Authorised Representative of the Seller.
14.3.3 The Buyer shall not do or authorise any third party to do any act (including without limitation the copying or exploitation of any design or other specification of the Products or the Services) in respect of the Products or the Services which would or might invalidate or be inconsistent with the Intellectual Property Rights of the Seller or any of its associated companies and shall not omit or authorise any third party to omit to do any act in respect of the Products which, by its own omission, would have that effect or character.
14.4 The Buyer shall not use or apply any trade mark, name, logo, copyright, image or other Intellectual Property Rights of the Seller or its sponsors without the prior consent in Writing of an Authorised Representative of the Seller.
Any notice to be served under these Conditions shall be in writing and is deemed to have been properly served if sent or delivered to the party concerned at its address specified in the Order or such other address as that party may from time to time notify in Writing. Any notice may be delivered personally, or by first class recorded delivery post or first class air mail letter or facsimile transmission or by e-mail and shall be deemed to have been served, if sent by first class post, 3 Working Days after posting or if sent by first class air mail then 5 Working Days after posting or if delivered by hand, upon delivery, if by facsimile transmission then upon transmission (subject to a successful delivery receipt) or if by e-mail then 6 hours after the e-mail was sent (subject to the e-mail address being correct and the sender has received a delivery receipt).
16.1 With the prior agreement of the Buyer, not to be unreasonably withheld or delayed, the Seller shall be entitled to refer to the Buyer as the customer of the Seller and refer to the fact that the Buyer has purchased Products and/or Services and in the case of motorsport vehicles to refer to the success of the motorsport vehicle and to use any image of the Products in the Seller's advertising or promotional material and the Buyer shall use its best endeavours to procure from any third parties including any sponsors any necessary consents or licences in order for the Seller to use such images for such purpose and such rights shall continue beyond the term of the Contract.
16.2 The Buyer may promote the fact that it has purchased Products and/or Services from the Seller but shall not and shall ensure that its personnel, agents, sub-contractors and drivers do not make any adverse comments about the Products and/or the Services or the Seller's name, business or its personnel to the media or public.
16.3 Any failure by the Seller to exercise or delay exercising any right or remedy shall not constitute a waiver of that right or remedy. Any waiver by the Seller must be in Writing by an Authorised Representative to be effective and any waiver so given by the Seller shall not be considered a waiver of any subsequent breach of the same or any other provision.
16.4 The Buyer confirms that it is contracting with the Seller as principal and not as agent for any other party.
16.5 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 remainder of the provision in question and the remaining Conditions shall not be affected.
16.6 Unless expressly provided in the Contract, no Condition is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Contract.
16.7 The Contract shall be governed by English Law, and all disputes arising under the Contract shall be submitted to the non-exclusive jurisdiction of the English courts.
Forward Composites Ltd Terms and Conditions of Order
In these conditions: "Order" shall mean a Forward Composites Ltd Purchase Order under which Goods are to be supplied and/or Services performed. "The Purchaser" shall mean FORWARD COMPOSITES LTD. "The Supplier" shall mean the person, firm or company stated on the face of the Order form. "The Goods" shall mean all the goods and articles, whether raw material or finished products, covered by the Order. "Services" shall mean all work and/or services to be performed by the Supplier pursuant to the Order.
2. ACCEPTANCE OF ORDER
The Order shall not be binding upon the Purchaser until these terms and conditions are accepted by receipt of an acknowledgement or commencement of work on the Order whichever is the earlier. The Purchaser reserves the right to reject any acceptance which is received by the Purchaser more than fourteen working days after the date of the Order. These terms and conditions shall have precedence over any other purported conditions appearing on any document or correspondence from the Supplier, and any such other purported conditions shall have no effect whatever except insofar as they are expressly agreed in writing by the Purchaser. No amendments or variations to the Conditions of Order shall be valid unless agreed to in writing by the parties, such agreement being evidenced on an official Order Form.
The Purchaser shall not be liable for any order, order amendment or instructions to proceed with orders unless and until authorised or confirmed on the Purchaser's printed Order or Amendment form.
Unless specifically agreed in writing otherwise all prices shall be fixed firm and not subject to any form of surcharge or variation.
Any time or period for delivery despatch performance or completion by the Supplier shall be of the essence. Without limitation, the Purchaser shall be entitled to cancel the Order and/or claim reimbursement for all losses, costs and expenses suffered in the event (a) the Supplier fails to deliver Goods or provide Services in accordance with the terms of the Order or (b) the Supplier fails to make progress with the Order so as to jeopardise the purpose of the order the Supplier undertakes to notify the Purchaser in writing without delay of any change in circumstances which may delay delivery and/or performance.
6. SUB-CONTRACTING AND ASSIGNING
None of the Goods or Services shall be sub-contracted without the prior written permission of the Purchaser except as is customary in the trade. The Supplier shall remain responsible for the performance of the Order and shall not assign the Order or his right to payment hereunder.
The Purchaser's inspector or representative and any inspector or representative of the Purchaser's customer or his agent or of any government department shall be entitled on the Purchaser's authority to have access to the Supplier's premises, and those of his subcontractors, to witness the progress, inspection or testing of the Goods and/or Services at any reasonable time. If required by the Purchaser the Supplier shall give the Purchaser adequate notice of the Supplier's works tests which the Purchaser shall be entitled to attend. Reasonable facilities shall be provided at the Supplier's expense for the inspector or representative. The Supplier shall provide the Purchaser with such certificates as the Purchaser may require. Neither such inspection nor the absence of any such inspection shall relieve the Supplier of any liability nor imply acceptance of the Goods or Services.
The supplier shall be subject to whichever of the following Quality Assurance conditions are called up on the order:
8. PACKING, DELIVERY AND MARKING
All Goods supplied against the Order must be adequately protected against damage and deterioration in transit and delivered to the Purchaser's address, carriage paid, or as otherwise notified in writing to the Supplier and must bear the Purchaser's Order number on the packages thereof. The Goods shall be at the Supplier's risk until delivered to the Purchaser at the point specified in the Order unless the Purchaser otherwise agrees in writing. Unless otherwise provided in the Order all containers and packing materials supplied by the Supplier shall be considered non-returnable and their costs included in the price. Where the Purchaser receives Goods or Services unexamined the Purchaser's right subsequently to inspect and reject them if they do not comply with the Order or claim for shortage shall not be prejudiced. When Goods are rejected, they will be returned at the Supplier's risk and expense.
9. PASSING OF PROPERTY
Property in the subject matter of the Order shall pass to the Purchaser upon delivery provided that any passing of title shall not prejudice either the Purchaser's right to reject for nonconformity with Order or any other rights that the Purchaser may have under the Order, and provided that where advance or progress payments are made, title but not risk shall pass to the Purchaser as soon as items are allocated to the Order. All items so allocated shall be adequately marked and recorded as being the property of the Purchaser.
In attention to the following details may mean delay in payment but no prompt payment discount shall be forfeited by the Purchaser on account of the Supplier's failure:
(a) to send on the day of despatch for each consignment such advice(s) of despatch and invoice(s) as may be indicated in the Order or,
(b) to send a monthly statement of account by the 10th of the month quoting the invoice numbers applicable to each item thereon, or
(c) to mark clearly the Order number on the consignment package, packing notes, advice notes, invoices, monthly statements and all other correspondence, or
(d) to provide any certificate or other documentation required under the Order.
All payments made shall be without prejudice to the Purchaser's rights should the Goods and/or Services prove unsatisfactory or not in accordance with the Purchaser's Order or instructions.
In the event of any interruption of the Purchaser's business due to circumstances beyond the Purchaser's control such as but not limited to any industrial dispute, fire explosion or accident which would prevent or hinder the use of Goods or Services the Purchaser shall have the right to suspend the Order until such circumstances have ceased. Any time for performance of the Order shall be extended by the period of suspension.
12. JIGS TOOLS, TEST EQUIPMENT AND MATERIALS
a) Jigs, tools, test equipment or other materials supplied directly or indirectly by the Purchaser solely for use in connection with Orders placed by the Purchaser shall remain the property of the Purchaser. Responsibility for establishing fitness for purpose and their subsequent safe custody and maintenance in good condition, fair wear and tear excepted, shall rest with the Supplier.
b) Where the Order price includes the cost of making or purchasing jigs, tools, etc., these shall become the property of the Purchaser.
c) On completion of the Order or its earlier termination all items supplied under this clause must be held in safe custody and maintained in good condition until such time as disposal instructions are received from the Purchaser.
d) Any such jigs, tools test equipment or other materials shall be used by the Supplier only for performing the work placed by the Purchaser and shall be returned at the Supplier's expense at the completion of the work unless otherwise agreed by the Purchaser in writing. Surplus materials and/or scrap shall be disposed of in accordance with the Purchaser's instructions.
a) The Supplier shall not disclose any interest of any kind arising as a result of the Order by way of advertisement, publicity or purposes of trade without the prior written consent of the Purchaser.
b) Technical information, drawings, design and other data supplied by the Purchaser are confidential and shall not without prior written consent of the Purchaser be disclosed to any third party and shall be used solely for the purpose of the Order.
c) Where drawings or other data are issued, the Supplier shall exercise proper custody and control and return/dispose of such in accordance with the Purchaser's instructions.
14. PATENT AND OTHER RIGHTS
Where development forms part of the Order the ownership of any intellectual property rights including but not limited to patents, registered designs, unregistered design rights and copyright arising from such development shall be transferred to the Purchaser and the Supplier shall co-operate in any measures necessary to make such transfer effective as soon as any such right arises.
15. INTELLECTUAL PROPERTY INDEMNITY
The Supplier shall keep the Purchaser indemnified in respect of any claim of infringement of intellectual property rights by the use or sale of any Goods or Services supplied under the Order and against all losses, expenses, costs and damages for which the Purchaser may become liable or may incur in connection with any such claim.
Where software is to be supplied hereunder the Supplier warrants that the Purchaser has been provided with any conditions of use or licence terms relating to such software prior to the date of the Order. In the event that such conditions or licence terms have not been provided the Supplier agrees to waive their application and the Supplier agrees to fully indemnify the Purchaser against all losses, claims, liabilities, damages, costs and expenses arising from the Purchaser's use or sale of the software in contravention of any such conditions or licence terms. The Supplier warrants that the Supplier is the owner of the copyright and other intellectual property in such software to be supplied or has a valid licence from the owner of the copyright or intellectual property to sell or sub-licence the software to the Purchaser.
17. DEFECTIVE MATERIALS/WORKMANSHIP
The Supplier will, at the Purchaser's request and option remedy, repair or replace any defective item or items free of charge. The Supplier shall keep the Purchaser indemnified in respect of; ill, loss, damage, injury, liability, cost and expense which results during proper use directly or indirectly in whole or part from defective Goods and/or Services, including but not limited to incursion of any Statutory Liability. The Supplier shall also keep the Purchaser indemnified against any damage to the Purchaser's property (including without limitation any materials, tools or patterns sent to the Supplier for; my purpose) and against any claims for loss or injury to any person or death of any person or to the property of any person to the extent caused by the Supplier's negligence or any act or omission on the part of tile Supplier's employees, sub-contractors or agents arising out of the performance of the Order.
18. HEALTH AND SAFETY AT WORK ACT 1974
In accordance with the requirements of the Health and Safety at Work Act, 1974 and any re-enactment or amendment thereof, all safety precautions required for the handling of the material covered by the Order are to be clearly indicated on each consignment.
Without prejudice to any other remedy, the Purchaser shall be entitled at any time by notice in writing to terminate this contract without compensation to the Supplier, and to collect forthwith all material, tools and articles of any description provided to the Supplier by the Purchaser, in the event that :
(a) the Supplier ceases trading or becomes insolvent or makes any composition or arrangement with its creditors or has a receiver, administrative receiver or similar person appointed to it, or
(b) any petition is presented for the Supplier's winding-up, or
(c) the Supplier passes any resolution for the Supplier's winding up, or
(d) the Purchaser reasonably apprehends that any of the above events is about to occur and notifies the Supplier accordingly.
20. GOVERNMENT AND OTHER SPECIAL CONDITIONS
Where any Government or other special condition is incorporated by reference in the Order such special condition shall apply.
Where a security classification appears in the Order the Supplier shall at all times comply with the relevant security procedures for handling classified information including those contained in any security aspects letter issued by the Purchaser's Security Officer which shall form Part of the Order.
Any concession or indulgence made by the Purchaser shall not be considered: a waiver of the Purchaser's rights under the Order unless specifically authorised in writing on the Purchaser's printed order or amendment form.
23. DOCUMENT STORAGE
Notwithstanding any copyright or other restrictive markings relating to any document, item, or other media provided by the Supplier, and without prejudice to any other rights of the Purchaser relating thereto, the Purchaser shall have the right to copy any such document item or media, in any format, as may be reasonably required for its own internal purposes in connection with use under any document/information storage/retrieval system.
24. DIRECTIONS FOR INVOICE AND ACKNOWLEDGEMENTS
Suppliers Invoices are to be sent to the Accounts Department, and acknowledgements of Order to title Purchasing Manager at the Purchaser's address shown overleaf. The Supplier shall present separate invoices for each Order Number.
25. CONFORMANCE TO SPECIFICATIONS
Without limitation, all Goods and Services shall conform as to quantity, quality and description with the particulars and/or specification contained in the Order and unless specifically agreed otherwise all materials to be supplied under the Order are to be new. (Samples or patterns provided by the Supplier and approved by the Purchaser then the Goods or Services shall not be inferior in any respect to the said samples and patterns)
26. PROGRESS REPORTS
The Supplier shall submit to the Purchaser a regular Progress Report detailing progress towards completion of the Order. The contents and frequency of said Progress Report shall be as specified on the face of the Order Form, or otherwise agreed between the Purchaser and the Supplier.
27. LAW AND CONSTRUCTION
The construction validity and performance of the Order shall be governed by the Law of England and subject to the exclusive jurisdiction of the English courts. Clause headings are for convenience only and shall not affect interpretation.
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