These Conditions shall apply to any Contract (“the Contract”) made between Advanced Machinery Services Ltd (“the Seller”) and any person, firm or company (“the Buyer”) placing any order with the Seller for the manufacture and/or supply of any goods or services (“the Goods”) and the placing of an order with the Seller is deemed to constitute an acceptance of these Conditions by the Buyer. No variation or modification of these Conditions shall be effective unless set out overleaf or expressly accepted in writing by a duly authorised representative of the Seller. In the event of there being any conflict between these general Conditions and anything appearing on the face of the order the latter shall prevail.
i. Delivery may at the option of the Seller be made in instalments and each delivery made hereunder shall constitute a separate contract.
ii. All dates specified for delivery of the Goods shall be regarded as estimates only and shall not be or be capable of being made of the essence of the Contract. The specified time for delivery shall be reckoned from the date of receipt by the Seller of the last of the following items:
(a) the order signed by the Buyer;
(b) all information necessary to enable the Seller to commence work;
(c) the deposit and letter of credit (if applicable); and
(d) Proof of issue of an import license (if required).
If any of the above items is not received within a reasonable time the Seller may at its option either extend the time for delivery or cancel the Contract. Specific delivery dates are subject to all the above items being received by the Seller within 14 days of the date of acceptance of the Order. Unless otherwise specified delivery shall take place ex-works.
iii. Seller shall not in any event be liable for any penalty, loss, damage or expense whether directly or indirectly resulting from or conseque4nt upon any delay in delivery or failure to deliver the Goods. No such delay in delivery shall entitle the Buyer to cancel the Contract or to refuse to accept delivery of the Goods provided that the Buyer shall be entitled to cancel the Contract or refuse to accept delivery of the Goods and to obtain a refund of any deposit paid if the Goods are not delivered within 3 months of the quoted delivery date or any agreed extension.
iv. In the event of performance of Seller’s obligations being prevented, delayed or in any way interfered with due to any order of a local, national or international authority; riot, civil commotion, war, rebellion, national or international emergency; strikes, lock-outs or other labour disputes (whether occurring as regards Seller’s works or as regards any of the Seller’s suppliers); fire, flood or explosion; shipping or transportation delays howsoever caused; epidemic of sickness, non-delivery by Seller’s suppliers; damage or destruction of the whole or any part of the Goods; force majeure or (without prejudice to the foregoing) any other cause whatsoever beyond the Seller’s reasonable control. Seller may at its option suspend performance of or cancel its obligations under the Contract without liability for any damages or consequential loss arising therefrom, such suspension or cancellation being without prejudice to Seller’s rights to recover all sums owing to it in respect of Goods delivered to Buyer prior to the date of suspension or cancellation.
v. Where insurance against loss of/or damage to the Goods during transit is arranged by the Seller any claim must be notified to the Seller in writing not later than three days after the date of delivery.
vi. Where the Goods are sold F.O.B. the responsibility of the Seller shall cease immediately the Goods are placed on board ship and the Seller shall not be under any obligation to give the Buyer the notice specified in Section 32(3) of the Sale of Goods Act 1979.
3. TITLE AND RISK
i. Title to the Goods shall not pass to the Buyer until payment in full has been made of all sums due from the Buyer to the Seller under this or nay other contract. The Seller shall be entitled at any time on giving not less than 24 hours notice to enter upon the premises where the Goods are for the purpose of inspecting the same and in the event of payment not being made on the due date for the purpose of taking possession of the same. In the event of the Goods being sold by the Buyer prior to the Seller having been paid therefore the entire proceeds of sale shall be held in trust for the Seller. The Buyer shall promptly on receipt thereof account to the Seller in respect of such proceeds of sale and pending such payment to the Seller being made such moneys shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Seller’s money. Further the Buyer authorises the Seller to require the Buyer’s customer to make payment directly to the Seller whose receipt therefore shall be a good and sufficient discharge for the payment obligation owed by the Buyer’s customer to the Buyer in respect thereof.
ii. For export deliveries the Buyer shall bear all risks in the Goods from the time when they shall have effectively passed the ship’s rail at the port of shipment. For U.K. deliveries the Buyer shall bear all risks in the Goods from the time they leave the Seller’s works. Pending payment in full being made therefore the Buyer shall keep the Goods in the full replacement value thereof and shall indemnify the Seller against any loss or damage thereto.
i. All sums due shall be payable in the U.K. in the currency in which the price for the Goods is quoted without any deduction whatsoever and the time specified for payment by the Buyer shall be of the essence of the Contract.
ii. Any deposit paid by the Buyer shall be irrevocable in all circumstances.
iii. Unless otherwise agreed payment of the purchase price shall be due in full on the signing hereof. If it is agreed that payment may be made in instalments in accordance with terms set forth on the face of the order the whole of the purchase price or the balance thereof as appropriate shall in any event become immediately due an payable in the event of:
(a) non-payment of any instalment on its date, or
(b) the Buyer committing or suffering any of the acts or things mentioned in Clause 11, or
(c) the Buyer committing to open a Letter of Credit or otherwise arrange payment in accordance with the terms of the Contract, or
(d) the Seller for any reason outside its control not being able to complete the erection or installation of the Goods (where such erection or installation is included in the Contract) within three months of the date of delivery of the Goods.
(e) The Buyer indicating howsoever and by whatsoever means that it does not intend to be bound by the terms of the Contract or that it is unable or unwilling to accept delivery of or pay for the Goods.
iv. If the Goods are delivered in instalments payment shall be due in respect of the Goods so delivered in accordance with the terms of payment and notwithstanding any delay in or failure to deliver the balance of such Goods.
v. The Seller shall be entitled to charge interest at the rate of 1% per month on any overdue payment from the date on which payment was due to the actual date on which payment is received by the Seller.
vi. Where there is any delay in payment of the price or any instalment thereof the Buyer shall pay all reasonable costs fees and expenses incurred by the Seller in obtaining payment.
5. SPECIFICATION AND PERFORMANCE
i. All descriptive matter specifications and drawings and all particulars of weights and dimensions are approximate only. Developments in the design of the Goods are continually taking place and the Seller reserves the right to make reasonable alterations to its specifications without notice to the Buyer.
ii. Any facts or figures relating to performance and published or communicated by the Seller are given in good faith. They shall not form part of the Contract nor involve the Seller in undertaking to obtain equivalent results in specific cases.
III. If it is claimed that the goods fail to achieve any performance or production figures which have been incorporated in the Contract the Seller shall be given the opportunity to carry out tests and trials in the operation of the goods at the Buyer’s premises but using the Seller’s own period of operation of the goods at the Buyer’s premises but using the Seller’s own employees to operate the goods and raw materials supplied by the Seller. If during such a period of operation of the goods by the Seller the performance or production figures incorporated in the Contract are achieved the goods shall be deemed to comply with the terms of the Contract and the Buyer shall not have any claim against the Seller in respect thereof. The Buyer shall afford the Seller every assistance in carrying out such tests and trials which the Seller shall be entitled to repeat on at least two occasions.
IV. The Seller shall not be responsible for defects in the goods due to compliance with the Buyer’s instructions whether in relation to designs patterns drawings requirements or specifications supplied by the Buyer or otherwise.
Prices quoted are current at the time of quotation but are subject to adjustment in the event of changes in material costs or wage rates occurring prior to delivery of the Goods. Any increase in transport costs tariff rates or import duties or any additional cost to the Seller due to variations in exchange rates shall be borne by the Buyer. All prices are quoted exclusive of VAT except where the contrary is specifically shown.
7. ACCEPTANCE OF GOODS
Unless previously agreed in writing all Goods shall be deemed to have been accepted by the Buyer 7 days after arrival al the Buyer’s premises.
If sufficient forwarding instructions are not received by the Seller within 14 days after notification to the Buyer or its agent that the goods are ready for dispatch or if the Buyer shall not be prepared to accept delivery of the Goods in accordance with the Contract the Goods shall:
(a) be paid for as if they had been delivered;
(b) be deemed to have been accepted by the Buyer; and
(c) be at the risk of the Buyer who shall be responsible for all storage delivery insurance and other charges in respect thereof.
9. ERECTION OR INSTALLATION
i. Erection or installation of the Goods at the Buyer’s premises shall be at the Buyer’s cost and unless otherwise specified does not form part of the Contract.
ii. The Seller shall not be responsible for any damage due to faulty erection or for any failure to reach any performance specification unless the Goods are erected and commissioned by the Seller’s own employees.
iii. The Buyer will make all necessary facilities available and provide such assistance as necessary to enable the erection or installation of the Goods to be completed.
iv. If the erection or installation of the Goods is delayed due to Buyer'’ instructions or lack of instructions or due to any lack of facilities the Buyer shall bear all additional costs or expenses incurred by the Seller.
v. Where the Seller has contracted to undertake the erection or installation of the Goods at Buyer’s premises the Seller will supply at least one engineer. The Buyer will supply one full time assistant to assist such fitter who shall be suitably qualified together with such further assistance and apparatus as the Buyer may be called upon to provide. Any assistant provided by the Buyer shall remain in the Buyer’s employment who will be responsible for all claims arising under Employers Liability Acts or otherwise.
vi. Except where erection or installation of the Goods is expressly included in the price the Buyer will pay the Fitter fares time (including travelling time) overtime premiums accommodation and subsistence expenses as applicable.
vii. The Seller will indemnify the Buyer against direct damage or injury to the Buyer’s person or property or that of others arising due to the Seller’s own negligence or that of its employees or sub-contractors in connection with the erection or installation of the Goods but not otherwise provided that the Seller’s liability hereunder otherwise than for death or personal injury shall not exceed £1,000.000.00 in total and that the Seller shall not in any event be liable for loss of profit indirect or consequential loss or damage of any kind howsoever arising.
i. The Seller shall supply a free of charge replacement or at its option repair any item which fails under proper use
(a) in the case of new Goods within 12 months after delivery or 1500 working hours whichever shall be shorter;
(b) in relation to Goods described as “second hand” , “repaired” or “re-conditioned” within 3 months after delivery or 500 working hours whichever shall be the shorter.
(a) it is proved to the Sellers’ reasonable satisfaction that the failure was by reason of faulty workmanship or materials:
(b) in respect of Goods or components not of the Seller’s own manufacture the Seller shall give to the Buyer only such guarantee as the manufacturer gives to the Seller; and
(c) the repaired or replaced part shall be supplied free of charge but the Seller’s liability as to delivery and fitting or expenses shall be limited to carriage paid in the UK or f.o.b. U.K. port.
(d) the defective item shall become the property of the Seller and shall be held to its order.
ii. Except as expressly provided in theses Conditions the Seller shall be under no liability whatsoever to the Buyer (whether in contract or in negligence). All other conditions warranties or obligations whether express or implied by law trade custom or practice or otherwise are hereby excluded and the Seller shall not in any event be liable for loss of profit or for indirect or consequential loss or damage of any kind or for direct damage or loss howsoever arising. Further in any case where the Goods are or are capable of becoming the subject of any industrial property rights the Seller shall transfer to the Buyer only such title as it may have to the Goods.
iii. No warranty guarantee or condition is given or shall be implied that the Goods or their use will not infringe the patent design or other intellectual property rights of any third party. Further where the Goods are manufactured in accordance with the Buyer’s specification or design the Buyer shall keep the Seller indemnified in respect of any claim cost expense or loss resulting from any infringement or alleged infringement or any patent design or other intellectual property rights of any third party.
iv. Except where the Buyer is able to prove that the Seller was guilty of any negligence or breach of contract giving rise to the claim the Buyer shall indemnify the Seller in respect of any liability which the Seller may incur whether by way of Court proceedings or by bona fide out of court settlement as a result of any claim against the Seller under Part 1 of the Consumer Protection Act 1987.
If any payment due prior to or after delivery under this or any other Contract made between the Seller and the Buyer is not made on its due date or if the Buyer commits an act of bankruptcy or takes or suffers any step leading to liquidation or has a receiver or administrator appointed of any of its assets, the Seller may suspend or withhold delivery of the Goods (without prejudice to all other rights and remedies the Seller may have) until the full amount of the Contract price is received by the Seller or may at its option immediately cancel this and/or any other Contract between the Seller and the Buyer.
The Buyer shall keep the Seller indemnified against all taxes duties and/or other impositions of a similar nature arising outside the U.K. whether levied upon the Buyer or on the Seller and Whether in respect of the Contract the Goods any services to be provided or any payment to be made in accordance with the terms of the Contract.
i. The granting of any time or other indulgence by the Seller to the Buyer shall not affect the Seller’s rights hereunder.
ii. The Buyer will not without the Seller’s consent in writing assign or transfer the Contract.
iii. The Seller shall be entitled to cancel the Contract if it is unable to obtain the approval of its insurers and/or the competent U.K. authorities thereto and the Buyer shall have no claim in respect of such cancellation.
iv. These Conditions together with any terms appearing on the face of the order constitute the entire agreement between the parties relating to the subject matter hereof and no representation warranty or statement whether written oral or implied shall be capable of being treated as forming part of the Contract or as an inducement by the Seller for the Buyer to enter into the Contract.
v. In the event that any term or provision of the Contract shall for any reason by invalid illegal or unenforceable in any respect such invalidity illegality or unenforceable shall not affect any other term or provision hereof and the Contract shall be construed and interpreted as if such term or provision to the extent that the same shall have been held invalid illegal or unenforceable had never been contained therein.
vi. Nothing herein contained shall exclude or restrict the Seller’s liability for death or personal injury resulting from negligence or for any other loss or damage resulting from negligence provided that the Seller’s liability in respect of such other loss or damage shall not exceed the sum of £1,000.000.00.
vii. The legal construction of the clauses in these Conditions shall not be affected by their titles.
viii. These Conditions and the Contract shall be governed by and construed in accordance with the laws of England and any dispute arising between the parties shall be submitted to the jurisdiction of the English Courts to the jurisdiction of which Courts the Buyer hereby agrees to submit and which Courts shall have exclusive jurisdiction in respect thereof without prejudice however to the Seller’s right to bring proceedings in any Court having jurisdiction over the Buyer.