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Terms and Conditions

Clarke International Terms of Business

Definition and Contract

1.1 In these Terms of Business ‘the Goods means any goods or other items sold by the Supplier to the Customer, “the Customer” means the company, individual or other entity purchasing the Goods or Services hereunder and “the Supplier” means the company supplying the Goods or Services which company is identified on the Order; “the Order” means the order form or other document which incorporates these Terms of Business, “Services” means the repair and maintenance services to be provided hereunder; and “the Terms” means these Terms of Business.

1.2 All sales of Goods and Supply of Services by the Supplier are subject to these Terms unless varied by written document signed by a director of the Supplier. Howsoever the same may be qualified the placing of an order with the Supplier shall be deemed acceptance of these Terms. Unless otherwise stated thereon any offer or tender by the Supplier shall be open for acceptance for thirty days from the date thereof unless previously withdrawn.

Delivery and Acceptance

2.1 Dates for delivery are estimated dates only. The Supplier shall endeavour to comply with such estimated delivery dates but the Customer shall not be entitled to cancel an order on the basis of failure to meet such delivery dates. The Supplier shall be entitled to make delivery of part only of any Goods ordered and to receive payment therefore.

2.2 Goods delivered in accordance with an Order may not be returned without prior written consent of the Supplier, and must be accompanied by an advice note stating the reason for the return and the date and number of the Supplier’s invoice. All goods returned must be securely packed and, unless the Supplier arranges collection, be consigned carriage paid. The Supplier reserves the right to make a handling charge if the Supplier arranges collection of the Goods. The issue of a collection note will not bind the Supplier to issue any credit in respect of the Goods.

2.3 Any claim by the Customer for shortage or damage shall be conditional upon a clear writtenstatement being made by the Customer on the delivery note or similar receipt for the Goods, and upon a written statement of the facts signed by or on behalf of the Customer being received by the Supplier and by the carrier if not the Supplier) within 3 working days after the date of delivery and upon the package and contents being retained for examination. Any claim for non-delivery of Goods shall be conditional upon the Customer giving to the Supplier written notice thereof within 7 days after the date of the invoice for those Goods. If these Conditions or any of them) are not satisfied then the Supplier shall have no liability for any non-delivery or any shortage or damage to the Goods. Time shall be of the essence for the giving of any notice under this sub clause.

2.4 The Supplier’s liability in respect of any claim for non-delivery, shortage or damage to Goods is limited to making up the shortage or replacing any Goods proved to have been damaged or lost in transit to the point of delivery and the Supplier accepts no liability for any loss or damage suffered by the Customer whether direct or consequential and howsoever arising.

2.5 Unless the Customer gives to the Supplier written notice within 7 days of the date of delivery (time being of the essence) that the Goods are not in conformity with the Order (which notice shall give full particulars of the failure of the Goods to conform to the Order) the Customer shall be deemed to have accepted the Goods.

3 The following terms shall (unless otherwise agreed in writing) apply to any prices agreed for Goods supplied hereunder:

3.1 Prices to not include value added tax or other lanes or duties

3.2 Any additional cost to the Supplier of performing the contract arising out of the making passing or amendment of any law order regulation bye-law or similar matter after the date of the tender or offer shall be invoiced by the Supplier to the Customer and payable as an addition to the purchase price (and the Customer shall not be entitled to cancel or otherwise terminate the contract on account thereof)

3.3 Prices are no-works and do not include delivery save where the Order otherwise provides. Where prices are stated to include delivery they do not include off-loading unless stated in writing by the Supplier

3.4 The Supplier shall be entitled to invoice and be paid in addition to the contract price a sum in respect of any variation in the Order or the specifications requested by the Customer after the date of the Order

3.5 The Customer shall pay to the Supplier sums in respect of storage, insurance or demurrage incurred by the Supplier as a result of failure of the Customer to give instructions or make payment for Goods and in any such case storage shall be undertaken by the Supplier at the sole risk of the Customer and the Supplier shall be entitled but not obliged to insure the Goods.

3.6 The Supplier shall have the right at its sole discretion to increase the price of the Goods supplied hereunder in the event that the cost to the Supplier of obtaining from the manufacturers or suppliers any of or raw materials used in the production thereof are increased (including increases arising out of currency fluctuations) between the date of the Order and the date of delivery.

3.7 Unless otherwise stated any samples submitted by the Supplier are the Supplier’s property and shall be returned or paid for by the Customer within one month of delivery.

Terms of Payment/Deposit

4.1 Unless otherwise agreed in writing by the Supplier payment in full land without deduction for any reason whatsoever) shall be made at the Supplier’s offices on notification to the Customer that Goods sold hereunder are ready for delivery and, in the case of the supply of Services, within 7 days of the date of the invoice therefore.

4.2 Any sum overdue for payment from the Customer to the Supplier (whether under this agreement or otherwise) shall bear interest at the rate of 5% over the then current base rate of National Westminster Bank PLC from time to time for the period during which the sum remains unpaid whether before or after judgment in a court

4.3 If the Customer has not paid in full for the Goods within 21 days after the Supplier has notified the Client that the Goods are ready for delivery the Supplier may without prejudice to any other right of the Supplier) give to the Customer notice to pay the purchase price (or balance thereof). Upon service of such notice it will be a term of the contract time to be of the essence thereof) that the Customer will pay for the Goods and accept delivery thereof within 14 days after service of such notice. If the Customer fails to pay for the Goods and accept delivery thereof any deposit paid may be forfeited by the Supplier and, if the Supplier sells the Goods within 6 months of giving such notice, the Supplier shall be entitled to recover from the Customer the amount of any loss including the expenses of or incidental to such re-sale or any diminution in the price.

Title and Risk

5.1 Risk in the Goods sold hereunder shall pass to the Customer on delivery save that, if the Customer wrongly refuses or delays in taking or accepting delivery, then risk shall pass to the Customer on the date upon which delivery should reasonably have taken place.

5.2 Title to the Goods shall remain with the Supplier and shall not pass to the Customer until payment in full is received by the supplier in cash or cleared funds) of the price of the Goods and all other sums due at that time from the Customer to the Supplier whether this agreement or otherwise). Until the Customer has acquired title to the Goods the Customer shall thereafter be in possession of the Goods as bailee and fiduciary agent for the Supplier and shall store and protect the Goods and insure the Goods for their full value against all usual risks and shall identify the Goods as the property of the Supplier and keep them separate from all other goods of the Customer or any third party.

5.3 Until the Customer has obtained title to the Goods the Customer shall not save as hereafter provided) use, sell, lease, charge or transfer the Goods for any part thereof) to any third party nor grant any third party any interest whatsoever in the Goods. The Customer shall be entitled subject to sub-clauses 5.4 and 5.5) to use or sell the Goods in the normal course of the Customer’s business. Until title in the Goods has passed to the Customer the Supplier may at any time demand delivery up of the Goods and shall be entitled to enter any premises of the Customer or any third party to repossess the Goods.

5.4 If the Customer shall sell or otherwise deal with the Goods then the full amount of any proceeds thereof or the right to recover the full amount of any proceeds thereof) and the proceeds of any insurance claim in respect of the Goods shall be held by the Customer as trustee for the Supplier. The Customer shall pay any such proceeds into a separate bank account designated for the purpose.

5.5 If before title to the Goods passes to the Customer the Goods become mixed or intermingled with other goods or materials or become so changed as a result of any manufacturing process so as to lose their original identity then, and in any such case, the provisions of sub-clauses 5.2 to 5.4 inclusive) shall apply so that Goods shall include any goods with or into which the Goods have become mixed, intermingled or changed.

5.6 Any of the Customer’s property which is delivered to the Supplier shall be at the risk of the Customer as regards accidental damage occurring to such property while in the possession of the Supplier.

Warranty and Performance

6.1 If and only if the Customer has made payment when due) in full to the Supplier for the Goods the Supplier warrants the Goods save for Goods manufactured to the Customer’s specification or otherwise than to the specification of the Suppliers or the manufacturers thereof) to be free from defects caused by faulty design or materials or poor workmanship where such defect becomes apparent within a period of 12 months from delivery thereof PROVIDED

6.1.1 That the Customer gives written notice to the Supplier within 7 days of any defect becoming apparent with full details thereof and returns the Goods to the Supplier’s warehouse carriage paid within a period of 21 days of any defect becoming apparent, and

6.1.2 That examination of the items by the Supplier shall disclose to its satisfaction that such defects exist and were caused by faulty design or materials or poor workmanship, and

6.1.3 That the liability of the Supplier hereunder shall be limited to the replacement or repair at the Supplier’s discretion) of the defective Goods (excluding consumables and service parts such as gaskets, valves, oil etc) during normal business hours and re-delivery thereof free of charge) to the Customer and PROVIDED THAT in respect of items returned more than six months after delivery the client shall pay all labour charges included and PROVIDED FURTHER that where labour is so chargeable the Supplier may at its discretion charge the Customer all travel time for warranty calls at the Supplier’s standard current charge rate.

6.1.4 That this warranty is contingent on proper use of the Goods in the application intended and does not apply to any item which has been modified, subjected to unusual process or physical or electrical stress or incorrect installation, improper lubrication, operation in an environment containing paint, dust, abrasives or similar contaminants or which has been overloaded or has had the original identification marks removed or altered or has been used otherwise than in accordance with the manufacturer’s instructions.

6.1.5 That the Customer shall pay the Supplier the cost of any test and transport of items in respect of which the Supplier does not admit liability hereunder, and

6.1.6 Details of the Supplier’s current charges for labour and travel are available from the service manager.

6.2 The Supplier shall not be liable for failure of the Goods sold hereunder to meet any specification or attain any performance or any British or other standard unless the Supplier shall have previously expressly guaranteed attainment of the same in writing.

6.3 Any advice or recommendation made by the Supplier or its employees or agents as to the storage, use or application for the Goods shall not be binding upon the Supplier unless confirmed in writing and signed by a director of the Supplier. The Customer should rely upon manufacturer’s instructions for all instructions and advice. The Customer must satisfy itself that the Goods are suitable for the purpose and application for which they are purchased and the Supplier gives no warranty that the Goods are suitable for any particular purpose or application or that they meet any other specification or requirement.

6.4 The Supplier reserves the right to deliver Goods of a different specification to that ordered if the differences in the specification do not adversely affect the quality of the Goods to any significant degree.

6.5 Subject as expressly provided in these Terms of Business all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law PROVIDED THAT this sub-clause shall not apply where the Goods or Services supplied hereunder are supplied to the Customer dealing as a consumer within the meaning of the Unfair Contract Terms Act 1977.

6.6 It is the sole responsibility of the Customer to comply with the manufacturer’s recommendations for installation, commissioning, operation and maintenance of the Goods.

Default

7. If the Customer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against the Customer or, if the Customer being a limited company, any resolution or petition to windup the Customer (other than for the purposes of reconstruction or amalgamation) shall be passed or presented, or if an administrative receiver of the property undertaking or assets or any part thereof of the Customer shall be appointed, or if the Customer shall purport to cancel any Order or shall commit any breach of its obligations under this or any other agreement between the parties then, and in any such case, the Supplier may forthwith land without prejudice to any other right or remedy of the Supplier):

7.1 Suspend or determine this agreement or any unfulfilled part thereof, and

7.2 Stop any Goods in transit, and

7.3 Recover any Goods from the Customer title to which has not passed to the Customer, and

7.4 Forfeit any deposit paid.

Liability and Indemnity

8.1 The Supplier shall not be liable for any loss of profits, loss of contracts, waste of staff time or consequential loss of any sort whatsoever and howsoever caused (including loss caused by the negligence of the Supplier).

8.2 The Supplier shall not be liable for damages for delay in delivery of Goods or supply of Services hereunder whether or not such delay is caused by the negligence of the Supplier.

8.3 The Supplier’s total liability in respect of any defective Goods sold or Services supplied hereunder or in respect of any other obligation of the Supplier hereunder shall be limited to the price of the Goods or invoice value of the Services. In the case of any claim being accepted by the Supplier which claim is based upon the quality, condition or specification of the Goods the Supplier may at its option replace the defective Goods in full and final satisfaction of such claim.

8.4 Save as provided for in Cause 6 hereof the Supplier shall not be liable for any defect in or short delivery of the Goods unless the Customer shall have given to the Supplier written notice of such defector short delivery within 7 days of the date of delivery of such Goods (time being of the essence for the purposes of this sub-clause).

8.5 The Supplier shall not be responsible for non-performance in whole or in part of its obligations nor under any liability to the Customer under this agreement if such non-performance or liability is due to any cause beyond the control of the Supplier including, without limitation, act of God, war, insurrection, riot, civil commotion, government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire, tempest, power loss, mechanical breakdown of manufacturing plant, machinery or equipment or failure of subcontractors or manufacturers to honour their obligations to the Supplier.

8.6 The Customer shall indemnify and keep indemnified the Supplier against any claim made by any third party against the Supplier arising out of or related to the Goods or the other obligations of the Supplier hereunder including (but not limited to) any claim under Part 1 of the Consumer Protection Act 1987 PROVIDED THAT this sub-clause shall not apply where the Goods or Services supplied hereunder are supplied to the Customer dealing as a consumer within the meaning of the Consumer Protection Act 1987.

8.7 Each foregoing sub-clause of this clause shall constitute a separate and severable agreement. The provisions of this clause shall continue in effect notwithstanding the termination, or completion of this agreement or any other matter which might otherwise cause the agreement to become ineffective.

8.8 The provisions of this clause shall operate to protect every servant, agent and subcontractor of the Supplier and the Supplier shall be deemed to be trustee for itself and such servants, agents and subcontractors so as to make them parties to this agreement for the purposes of this clause only.

8.9 Nothing in this clause shall operate so as to exclude the Supplier’s liability for death or personal injury of the Customer arising out of the Supplier’s negligence.

Miscellaneous

9.1 All pre-contract representations including (but not limited to) catalogues and advertising material (unless specifically incorporated lot this agreement) made by or on behalf of the Supplier are hereby excluded from the contract and the Customer warrants that no reliance has been placed upon them in entering into this agreement.

9.2 Any failure by the Supplier to enforce any or all of the conditions shall not be construed as a waiver of the Supplier’s rights hereunder.

9.3 No binding order may be cancelled by the Customer without the consent in writing of the Supplier. If the Supplier shall consent to such cancellation or if the contract shall otherwise be terminated expect solely as a result of breach by the Supplier then any deposit paid to the Supplier shall be forfeit to the Supplier and the Customer shall pay to the Supplier its louses (including loss of profit, loss of staff time and all charges and expenses incurred by the Supplier).

9.4 Where the Customer consists of more than one person or company then their liability hereunder shall be lost and several. In construing these Terms of Business the clause headings shall be ignored.

10. This agreement shall be construed according to the Law of England and Wales and any disputes in connection therewith shall be tried in the Courts of England and Wales.