Terms and Conditions
In these terms unless expressly stated to the contrary the following expressions shall have the following meanings:- Buyer-the person to whom ECC agrees to sell the Goods and/or Services, Business Day- any day other than a Saturday, Sunday or any day that is a statutory public holiday in England, Contract- each agreement for the supply of Goods and/or Services, comprising these terms & any additional terms agreed in accordance with these terms, Delivery Address- the delivery address (if any) specified in the Contract or otherwise agreed between the parties, Goods- the goods (including any instalment of the goods or any part of them) referred to in the contract, Intellectual Property Rights- includes without limitation all patents, copyrights, trade or service marks, design rights, whether registered or unregistered and all other intellectual property rights of any kind, ECC- English Chain Co. Ltd, (registered no. 427960) whose registered office is at The Clock House, 140 London Road, Guildford, Surrey GU1 1UW, Services- the services (if any) described in the Contract or ancillary to the sale of the Goods including any advice, Writing- includes letter, telex, cable, facsimile transmission, e-mail & comparable means of communication. Any reference in these terms to any statute or regulations shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. The headings in these terms are for ease of reference only & shall not in any way affect their construction or interpretation. Words denoting the singular include the plural & vice versa, words denoting any one gender include all genders & vice versa, & reference to persons include individuals, partnerships, bodies corporate & unincorporated associations. Reference to the words "including” shall be construed as referring to "including without limitation”.
2. Basis of Sale
ECC shall sell & the Buyer shall purchase Goods and/or perform the Services subject to these terms & conditions. Any quotation of ECC which is accepted by the Buyer of any order of the Buyer which is accepted by ECC shall be subject to these terms and conditions. Quotations shall be open to acceptance for 30 days from the date thereof. Orders by the Buyer shall not be binding on ECC unless accepted by ECC either in writing or by its actions. All Quotations & Orders which have been accepted shall form a binding contract subject to these terms. These terms shall apply to the Contract to the exclusion of any other terms & conditions of the Buyer notwithstanding anything to the contrary specified, incorporated or referred to by the Buyer, whether in negotiations or in any course of dealing between ECC and the Buyer. No conduct of ECC shall be deemed to constitute acceptance of any terms put forward by the Buyer. No variation of the Contract shall be effective unless it is made in Writing & signed by duly authorized representatives of both parties. For the purpose of this clause, the expression "variation” includes any supplement, deletion or replacement however effected.
The price of the Goods and/or Services shall be as stated in the Contract & shall be ex-works. Prices shall be in sterling unless agreed otherwise in the Contract. The price shall be inclusive of any applicable VAT (which shall be payable by the Buyer subject to receipt of a valid VAT invoice) but exclusive of all other duties, imposts & levies which shall be borne by the Buyer. Prior to delivery, ECC may vary prices reasonably to reflect increases in the cost of supplying the Goods and/or Services. Unless otherwise agreed the Buyer shall be responsible for all import/export clearances, transport & insurance costs.
4. Terms of Payment
Payment is due 30 calendar days nett after the date of ECC’s invoice. Without prejudice to any other rights ECC may have, if the Buyer fails to make any payment when due ECC shall be entitled immediately to; suspend deliveries or performance of services until paid; deduct outstanding sums from any sums owed by ECC to the Buyer under the Contract or otherwise; require the Buyer to pay any costs of storage of undelivered Goods; charge interest on the overdue amount at a rate of 3% above base rate which shall accrue from day to day from the due date until payment in full is received by ECC; terminate the Contract and/or recover damages for breach; resell any Goods not yet delivered to the Buyer; retain any sums paid as deposit for the Goods; or demand return of the Goods. Settlements by cheque or credit transfer shall not be deemed paid until ECC’s account is credited with cleared funds. The Buyer may not withhold, make deduction from or set off against payments for any reason.
Delivery shall take place when either:- ECC notifies the Buyer the Goods are available for collection or if ECC agrees to transport them to the Delivery Address, when they are despatched from ECC’s premises. At the request & cost (including insurance) of the Buyer, ECC may agree to transport Goods to the Delivery Address. The appointment by ECC of the Carrier shall be as agent for the Buyer. Delivery dates & times are estimates only. Time is not of the essence. ECC shall use reasonable endeavours to meet estimated dates for delivery & in the agreed quantities. The Buyer may not terminate the Contract by reason of any delay in delivery and/or any over or short delivery. Delivery may take place by way of instalments in such quantities as ECC may reasonably decide. Such instalments shall be separate obligations and no breach in respect of one or more of them shall entitle the Buyer to cancel any subsequent instalment or repudiate the Contract as a whole.
6. Risk & Property
Unless otherwise agreed, risk of loss or damage to the Goods and/or Services shall pass to the Buyer upon delivery as referred to in clause 5. Property to the Goods shall pass to the Buyer on receipt by ECC in full of; the price for those Goods under the Contract; all other sums due from the Buyer under the Contract; & all sums due from the Buyer under any other contracts, agreements or arrangements between the Buyer & ECC. Until such time as the property in the Goods passes to the Buyer, the Buyer shall; hold such Goods on a fiduciary basis as bailee for ECC & keep them readily identifiable as the property of ECC; shall demand account to ECC for part of the proceeds of sale of the Goods (ECC’s part of the proceeds) which is equivalent to the price at which the Goods were invoiced by ECC to the Buyer whether tangible or intangible including without limitation, insurance proceeds, & shall keep all such proceeds separate from all monies or property of the Buyer & third parties (& shall not pay any such monies into any overdrawn bank account & shall ensure that at all times such monies are identified as ECC’s money) &, in the case of tangible proceeds, properly stored, protected & insured; the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business. The Buyer’s right to resell or use the Goods may be revoked by service by ECC of notice in writing at any time & shall automatically cease upon the occurrence of any of the events referred to in clause 11. Upon determination of the Buyer’s rights of resale under clause 6. ECC shall be entitled at any time to require the Buyer to; deliver up the Goods (which have not ceased to be in existence or resold) to ECC &, if the Buyer fails to do so to enter upon any premises of the Buyer or any third party where the Goods are stored & repossess the Goods without prejudice to ECC’s right to payment for the price of the Goods or balance of it & the Buyer shall pay to ECC the proceeds then held by the Buyer as trustee for ECC in accordance with clause 6. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness of any of the Goods which remain the property of ECC but if the Buyer does so all monies owing by the Buyer to ECC shall (without prejudice to any other right or remedy of ECC) become due & payable forthwith. ECC shall be entitled to recover the price of the Goods (plus VAT) in accordance with the terms of this Contract, notwithstanding that property in any of the Goods shall not have passed to the Buyer. If the Goods are incorporated in or used as a component for other goods before full payment of all amounts due has been made, the property in such goods shall be conclusively deemed to be, or to include, the Goods which are the property of ECC until such payment has been made, & ECC’s rights to the Goods under this Contract shall extend to such other goods or such part thereof as ECC shall at its discretion nominate as its property. If any terms of or provisions of this clause 6 are or become invoked, illegal or unenforceable, the remainder shall survive unaffected.
7. Inspection & Rejection of Goods on Delivery
The Buyer shall make a responsible inspection of the Goods immediately upon receipt and must notify ECC in writing of defect or shortage within 4 days of receipt. Otherwise it will be deemed that the Buyer has accepted them to be in all respects in accordance with the contract.
ECC warrants that on delivery the Goods are reasonably free from defects in material & workmanship; that the Services will be performed by appropriately qualified & trained personnel, with reasonable care & diligence; that on delivery the Goods shall comply with any written specification supplied by the Buyer & agreed with ECC in writing.
9. Limits on liability
The liability of ECC to the Buyer or any other person in respect of any claim that the Goods and/or Services fail to comply with the terms of the Contract shall be limited to (at the Seller’s sole discretion) either to replacement of the Goods; repair of the Goods; or refund of the purchase price (or fair proportion thereof) against return of the Goods. Notwithstanding any other provision of this Contract aggregate liability of ECC for any claims arising out of or in connection with this Contract, and/or the provision of (or any delay in providing or failure to provide) the Goods and/or Services, howsoever caused or arising shall not exceed the sums payable to the Buyer to ECC in connection with the Contract per claim or series of claims arising out of the same event(s) or circumstance(s). Notwithstanding any other provision of the Contract ECC shall not under any circumstances be liable to the Buyer or any other person for any claims arising out of or in connection with this Contract and/or the provision of (or any delay in providing or failure to provide) the Goods and/or Services for any indirect or consequential loss or damage or any loss of or damage to profit, revenue, savings, use, contract, goodwill or business, in each case howsoever caused or arising. In addition to clause 7 any claim by the Buyer against ECC under or in connection with this Agreement shall be fully barred & unenforceable unless written notice of such claim (including reasonable details of the claim & the amount thereof) shall have been given to ECC no later than 1 month from the date the cause
of action arose or if later the date the Buyer ought reasonably to have known of the circumstances given rise to cause of the action. The term "howsoever caused or arising” when used in this clause shall be construed widely to cover all causes & actions giving rise to liability, including but not limited to (i) whether arising by reason of any misrepresentation (whether made prior to and/or in this Contract), negligence, breach of statutory duty, other tort, breach of contract, restitution or otherwise (ii) whether caused by any total or partial failure or delay in supply of the Goods and/or Services. Save as set out in this Contract, all other express or implied terms, conditions & warranties (whether statutory or otherwise) on the part of ECC are hereby excluded to the fullest extent permitted by law. All employees, agents & subcontractors of ECC (each being a "TP”) shall each be entitled, in its own right to the benefit of & pursuant to the Contracts (Rights of Third Parties) Act 1999 ("TP” Act), to enforce every defence & limitation available to ECC under this contract to the extent determined by ECC in its absolute discretion as if such defences & limitations were expressed to be for the benefit of the relevant TP, any rescission variation of this Contract shall not be dependent upon the consent of any TP. The aggregate liability of all TPs & ECC collectively shall be no greater than the liability of Hays alone, as set out in this Contract. Save as referred to earlier in this clause, no provision of the Contract shall be enforceable by any person who is not party to it. If any terms or provisions of this clause are or become invalid, illegal or unenforceable, the remainder shall survive unaffected. The Buyer acknowledges that the price of the Goods and/or Services provided for under each Contract reflects the exclusions & limitations on ECC’s liability as set out in this clause & that under the circumstances such exclusions & limitations are reasonable.
10. Buyer’s Responsibilities & Conduct of Claims
The Buyer warrants that it has authority to supply (& to authorise the ECC to use as (contemplated by this Contract) any goods, designs, specifications, instructions or information furnished by it to ECC & that any work undertaken on the basis of them or the sale of goods produced on the basis of such work shall not infringe the rights of any third parties. The Buyer shall indemnify ECC against all claims, demands, costs expenses & liability, loss or damages of any nature (including those relating to any infringement of any Intellectual Property Right) arising out of a breach of this warranty. The Buyer is responsible for obtaining all necessary consents, licences & permits or government or other approvals & for accuracy of all information submitted by or on behalf of the Buyer. The Buyer is responsible for transporting, storing & using Goods in accordance with instructions supplied by ECC who shall not be responsible for any loss or claims arising from failure to comply with such instructions. If the Buyer becomes aware that any third party has made or is likely to make any claim in respect of the Goods (including, without limitation, defects or rights infringed by them) or if the Buyer becomes aware of any potential, threatened, alleged or actual infringement of ECC’s Intellectual Property Rights it shall immediately inform ECC & afford to ECC all assistance including, without limitation permitting ECC to have conduct of any Court or other proceedings which ECC may require to enforce its rights & defend such claim.
Without affecting any other rights it might have ECC may terminate the Contract immediately by giving written notice to the Buyer if the Buyer (i) breaches any terms or purports to cancel any Contract with ECC (ii) has any step, application, order, proceeding or appointment taken or made by or in respect of it for any composition or arrangement with creditors, winding-up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Buyer is incorporated, resident or carries on business; or (iii) fails to pay any monies in accordance with these terms. Any termination however caused shall not affect any right or liabilities which have accrued prior to the time of termination; the continuance in force of any provision which expressly or by implication is intended to come into or continue in force after termination. Upon termination the Buyer shall immediately return any information or materials in its possession or under its control which belong to or were supplied by ECC including any confidential information of ECC. Upon termination all sums outstanding shall be immediately due & payable by the Buyer to ECC.
Neither party shall without the prior written consent of the other party (during & after termination of the Contract) use (other than in the performance of the Contract) or disclose to any other person any confidential information of the other party, save that any obligations contained in this clause shall not prevent any disclosure of confidential information which is required by law, court order or any legal or regulatory authority or disclosures to a party’s professional advisors. The Buyer shall not publicise or disclose the extistence or content of any Contract, nor its relationship with ECC without prior written agreement of ECC.
13. Safe Working Loads
ECC does not itself test the safeworking load of the Goods prior to delivery. The Customer is responsible for ensuring the Goods meet the safeworking loads given & for ensuring the Goods are appropriate for use in the conditions & circumstances for which they are to be used & ECC shall have no liability in respect thereof. Even where ECC has recommended the Goods to the Buyer, ECC has no liability to the Buyer in respect of such recommendations.