STANDARD CONDITIONS OF CONTRACT
All NOVA Acoustics Ltd projects are carried out to the terms and conditions set out below unless alternative terms are agreed in writing prior to instruction
In these conditions:-
- “The Client” means the addressee of the Proposal.
- “The Consultant” means NOVA Acoustics Ltd or any person sub-contracted by them to carry out work in connection with the project.
- “The Project” means the consulting work, the title, nature and scope of which are set out in the proposal.
- “The Proposal” shall mean the technical proposal and any supporting documents referred to thereon together with The Consultant’s price estimate set out therein. Unless otherwise agreed in writing, “The Proposal” is valid for acceptance by the Client for a period 30 days from the date hereof and no longer. The Consultant’s price is chargeable in accordance with Clause 4 below.
- “The Contract” means the Agreement formed between The Consultant and the Client.
- “Booking Confirmation” means the agreement emailed to the client to confirm the project details.
- A “business day” means any day other than a Saturday, Sunday or bank holiday.
- The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
- Words imparting the singular number shall include the plural and vice-versa
- These Terms and Conditions shall apply to the provision of the services detailed within the quotation and/or scope of work issued by NOVA Acoustics Ltd a company registered in England & Wales under number 08884665 whose registered office is at 2 Woodside Mews, Clayton Wood Close, Leeds, Yorkshire, LS16 6QE to the person(s), firm or corporate body (“Client”) that instructs NOVA Acoustics Ltd to proceed with the works.
- If the quotation provided by NOVA Acoustics Ltd for the carrying out of the Consultancy or Testing Services is accepted by the Client, then such acceptance shall be deemed to include the full acceptance of these Terms and Conditions.
- No other conditions or terms shall be incorporated in The Contract. An acceptance by The Consultant of an order of The Client shall be exclusively upon these terms.
QUOTATION, CONTRACT AND VARIATION
- NOVA Acoustics Ltd proposes to enter into a contract for the provision of the Acoustic Consultancy and/or Testing Services detailed within the quotation subject to NOVA Acoustics Ltd subsequently accepting the order.
- NOVA Acoustics Ltd reserves the right to decline an order without providing a reason.
- The quotation is valid for a period of 30 days only from the date of issue unless expressly withdrawn by NOVA Acoustics Ltd at an earlier time.
- NOVA Acoustics Ltd reserves the right to amend all quotations to account for cost fluctuations including but not limited to staff salaries, external accreditation fees, certification fees and travel expenses.
- NOVA Acoustics Ltd or the Client may cancel the order for any reason prior to the Client’s acceptance (or rejection) of this quotation.
The Consultant shall not be liable for any loss, destruction of, theft of or damage to items or property owned, leased or loaned by The Client and supplied to The Consultant in connection with The Project, except to the extent that the same can be shown to be due to negligent acts or omissions of The Consultant or anyone employed by them.
CONSULTANCY AND TESTING SERVICES
- Upon receiving the Client’s acceptance of the quotation and in consideration of the Fees being paid in accordance with these Terms and Conditions, NOVA Acoustics Ltd shall provide the Consultancy and/or Testing Services detailed within the quotation and/or proposal to the Client.
- Prior to commencement of any Consultancy and/or Testing Services undertaken by NOVA Acoustics Ltd a “Booking Confirmation” is sent to the client outlining the agreed work to be carried out, the fee incurred and terms and conditions associated with the work.
- All works associated with completing the Consultancy and/or Testing Services shall be undertaken by, or overseen and approved by persons accredited by relevant bodies to undertake the scheduled works (or by persons with suitable experience where no formal accreditation scheme exists for a particular Test Service type). Evidence of individual accreditations or qualifications will be provided upon request.
- Test equipment used by NOVA Acoustics Ltd shall be tested and calibrated regularly in accordance with the terms of our accreditation scheme in order to ensure compliance.
- By prior agreement, all tests may be witnessed by the Client or their appointed representative.
- Unless otherwise stated, a normal working day for NOVA Acoustics Ltd Technicians is 08:00 – 17:00, Monday – Friday. If the on-site duration extends beyond standard working hours through no fault of NOVA Acoustics Ltd, then any additional quoted hourly rates shall also attract the quoted Out of Hours Surcharge.
- The Client shall accept NOVA Acoustics Ltd professional judgement and decisions in ensuring the tests are conducted and reported correctly. The Client will not try to influence NOVA Acoustics Ltd.
General Client Obligations for ALL Consultancy and/or Testing Services
- All information provided by the Client shall be accurate and in no way, whether by action or omission be misleading.
- The Client shall provide NOVA Acoustics Ltd with a full set of drawings for the premises to be tested including floorplans, elevations and sections at least 7 working days prior to the agreed test date.
- The Client shall ensure that the owners / occupiers of the premises have sufficient insurance to cover all liabilities arising from:
- Injury to NOVA Acoustics Ltd staff whilst onsite.
- Accidental damage to NOVA Acoustics Ltd equipment / property whilst onsite.
- Damage or injury to third parties whilst onsite.
- The Client shall be responsible for obtaining the necessary permission or permits for NOVA Acoustics Ltd employees to have access to all relevant parts of the premises in order to complete all necessary testing and inspections.
- The Client shall ensure that the Site Manager is fully aware of the scheduled Consultancy and/or Testing Services and shall brief all other relevant site personal and contractors of the scheduled test, including the limitations that this will have on their entering or exiting the premises. If NOVA Acoustics Ltd are delayed in completing the Consultancy and/or Testing Services beyond the specified time detailed within the quotation or emailed booking confirmation as a result of other site activities then the additional quoted hourly rates shall apply. These may also attract the Out of Hours Surcharge of +25% on any invoiced amount.
- The Client shall ensure that there are at least 2 x 240V uninterrupted mains power sockets available for use by NOVA Acoustics Lt within 20 meters of the test location.
- NOVA Acoustics Ltd will require a parking space for a small van type vehicle within a reasonable distance to the test area. Where site parking is unavailable any parking charges including fines shall be chargeable to the Client.
- The client shall ensure the site is fully prepared in accordance with the Site Readiness Check sheet provided with the booking confirmation email. If a site is not prepared for testing, NOVA Acoustics Ltd may elect to undertake some of the preparatory works at safe working heights only. This may result in additional costs owing to the extra time required on site. In all such circumstances, NOVA Acoustics Ltd reserve the right to deem the premises as being unready for a test and to charge the full quoted fee.
Sound Insulation Testing for Building Regulations Part E
- Unless instructed in writing by the Client, NOVA Acoustics Ltd will specify the quantity of partition walls and floors to be testing in accordance with the latest version of the building regulations.
- The client shall ensure that the quantity of testing quoted for by NOVA Acoustics Ltd is acceptable to the Building Control Authority or Building Inspector/Surveyor involved in the project or site under test.
- Any additional testing requested by the Building Control Authority or Building Inspector/Surveyor that does not comply with the latest version of the building regulations may incur additional site visits and thus will be subject to the charges at the same rate as outlined within the initial quotation.
- Any sounds insulation testing undertaken that is found not to comply with the building regulations Part E, may be subject to a re-test and thus will be subject to the charges at the same rate as outlined within the initial quotation. Discounts for re-testing are at the discretion of NOVA Acoustics Ltd. Re-tests are only undertaken once the initial failed testing has been paid for.
- Any sound insulation consultancy undertaken by NOVA Acoustics Ltd does not guarantee satisfactory performance of the partition wall or floor under test. The performance is reliant on the appropriate selection and installation of the materials advised and NOVA Acoustics Ltd accepts no liability for the performance of the designed partition wall or floor.
- Free Advice is limited to 1 No. 15 minute phone call to discuss the technical requirements of the Clients project. Any further request for consultation will be charged at the hourly rate of £75 per hour exclusive of VAT.
Acoustic Consultancy & Noise Survey Services
- All Acoustic Consultancy and Noise Surveys are quoted for and a scope of work will be sent to the client for agreement via email. All scopes of work are prepared with due diligence, experience and best endeavours to ensure the quoted service meets the requested service.
- The scope of works outlines the service requirements of NOVA Acoustics Ltd and the fixed fee for the service. Any services or requests for work outside the scope of work provided will incur additional fees. Any request for work outside the scope of work will be reviewed by NOVA Acoustics Ltd and the additional charges will be advised to the Client.
- If the acoustic consultancy services, noise surveys or technical reports provided by NOVA Acoustics Ltd is to be provided to a Local Authority, such as a planning case officer or environmental protection officer. The Client is responsible for ensuring the scope of work is acceptable to the Local Authority. If the Client accepts the scope of work without consulting the Local Authority it does so at its own risk.
- Any amendments required for acoustic consultancy services, noise surveys or technical reports undertaken by NOVA Acoustics Ltd will be undertaken at the discretion of NOVA Acoustics Ltd.
- ALL acoustic consultancy services, noise surveys or technical reports will be provided to the client within 28 days of the environmental measurements being undertaken.
Air Tightness Testing for Residential Dwellings1
For Air Tightness Testing Services, the Client shall provide NOVA Acoustics Ltd with the maximum air permeability target as detailed within the project specification or targeted within the corresponding SAP or SBEM calculation at least 2 working days prior to the scheduled test. Where this information is not provided, NOVA Acoustics Ltd shall base the test on the maximum figure of 10m3/hour/m2 as permitted by Part L of the Building Regulations.
Air Tightness Testing for Commercial Buildings
For Air Tightness Testing Services on commercial buildings, the Client shall ensure that the premises are suitably prepared for testing in accordance with the Site Readiness Checklist supplied. Similarly the costs of any temporary sealing consumables used shall be chargeable to the Client. In all such circumstances, NOVA Acoustics Ltd reserve the right to deem the premises as being unready for a test and to charge the full quoted fee.
(a) The price shall be exclusive of Value Added Tax. The Client is responsible for any VAT arising from the Contract price and this will be payable at the date of payment as specified in Clause 5.
(b) Subject to (c) and (d) below the price will be as stated in the Proposal.
(c) Before carrying out any alterations or additions to The Contract, The Consultant shall advise The Client in writing of the estimated price and effect on the program and completion date. The Client shall then have an opportunity to consider the said estimated price and effect and if acceptable will provide written authority within 14 days of the written notification to The Consultant for any alterations or additions to The Contract.
(d) The Consultant reserves the right to vary The Price on the happening of any of the following:
- i) Any increase in costs arising after submission of The Proposal and during the period of The Contract due to an increase in costs for the work specified due to factors outside The Consultant’s control including without prejudice to the generality of the foregoing; changes in taxation affecting the services, purchase of additional equipment, bought out materials and consumables.
- ii) Any variation in, delay, interruption or suspension of work due to instructions from or lack of information or decision on the part of the Client or any additional work caused by alterations in The Client’s instructions.
The right to vary The Price under Clause 4(d) is not dependant on any authority given by The Client.
(a) All payments will be made by The Client within 30 days of the date of The Consultant’s invoice. In the case of extended projects, progress payments at monthly intervals may be required at the discretion of The Consultant. No report shall be submitted to the client by the company until full funds are cleared unless agreed in writing.
(b) Where any payment due has not been received by The Consultant within terms stated on the invoice, The Consultant (without prejudice to its other rights howsoever arising) reserves the right to claim statutory interest and compensation for debt recovery costs under the late payment legislation.
(c) In the case of projects terminated by either party after full discussion with the other party. The Client is responsible for paying in full within 30 days of the termination all payments due up to the date of termination and for any costs incurred after termination but which are incurred as a result of termination.
(d) All payments shall be made by The Client in Sterling either to The Consultant by cheque drawn on a United Kingdom bank or by BACS transfer in the name of NOVA Acoustics Ltd at Lloyds; Account No 6479 1468 Sort Code: 30-65-22.
- If the Consultancy and/or Testing Services is cancelled or postponed by the Client within one business day of the agreed test date then 100% of the quoted Fee is chargeable.
- If the Consultancy and/or Testing Services is cancelled or postponed by the Client within three business days of the agreed test date then 50% of the quoted Fee is chargeable.
- Any cancellations or postponements of the Consultancy and/or Testing Services due to adverse weather will not incur a cancellation fee.
Work by The Consultant may be wholly or partly suspended and the time of such suspension may be added to the original period of The Project in the event of overdue payments, stoppage, delay or interruption of work during the period of The Project as a result of strikes, of the industrial location, other industrial disputes, breakdowns, accident, sickness, failure by The Client to give adequate instructions or approvals, or any cause whatsoever beyond the control of The Consultant. The Client shall pay all accounts in full and shall not exercise any rights of set-off or counter-claims against invoices submitted.
DURATION AND DELIVERY
- The Consultant will make every reasonable effort to perform and carry out The Project from the Commencement Date until the Completion Date specified.
- No extension of the duration of The Project may be made by The Consultant other than arising out of the events specified in 5(b) and clause 6 above unless agreed in writing by The Client.
- Delays in delivery shall not render The Consultant liable under any circumstances for damages, consequential loss or loss of profits.
NOVA Acoustics Ltd may terminate the provision of the Consultancy and/or Testing Services immediately if:
- the Client commits a material breach of its obligations under these Terms and Conditions; or
- the Client is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors.
- the Client enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or
- the Client convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertakings or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Client, notice of intention to appoint an administrator is given by the Client or any of its directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Client or for the granting of an administration order in respect of the Client, or any proceedings are commenced relating to the insolvency or possible insolvency of the Client.
EXCLUSIONS AND INDEMNITY
- The liability of The Consultant to the client for any loss, damage or expense arising from any cause whatsoever and whether in contract or negligence (other than negligence covering death, or personal injury) shall not, in any one contract exceed £1,000,000.
- The Consultant cannot guarantee that the objectives set out in The Proposal will be attained, but will use every reasonable effort to do so. The Consultant accepts no liability whatsoever for the accuracy or use of data supplied by third parties.
- The Client shall at all times indemnify and keep indemnified The Consultant in respect of all loss or damage or expense suffered by any third party for which The Consultant may become liable in connection with the carrying out of The Project.
- The obligations of The Consultant shall cease upon delivery of any reports information or device. No liability whatsoever either direct or indirect shall rest upon The Consultant for the effects of any product or process that may be produced by The Client or any other party, notwithstanding that the formulation of such product or process or commercial transaction may be based on the findings of The Project.
- The Client shall supply free of charge all pertinent data and information and give such assistance as shall be required by the Consultant for the carrying out of The Project.
- Any drawings, samples, or other matter submitted by The Consultant to The Client and vice versa with the proposal and used during the course of The Project are confidential and must not be copied or transmitted to any third party, excepting those advising The Client on matters pertaining directly to the contract, or used for any other purpose whatsoever. The drawings, models, samples and other matter remain the property of whichever party supplies them unless specifically agreed otherwise in writing and must be returned on request.
- The Consultant shall be entitled to make, use and return copies of the technical information referred to above (but specifically excluding technical information acquired from The Client) free of charge for its own purposes.
- The Consultant shall be entitled to sub-contract his work out wherever necessary and it shall be permitted for the sub-contractors to have access to all information and data and be subjected to confidentiality of information supplied independent of any warranties given by the Consultant relating to the confidentiality of the information.
CONFIDENTIALITY OF INFORMATION
- Any information relating to The Client’s operations shall be regarded as confidential and will not without the prior written consent of The Client be used (except in connection with The Project), published or disclosed by The Consultant. This restriction does not apply to information which is, or at the time of publication or disclosure, has become public knowledge through no act or default of The Consultant.
- When the laboratory is required by law or authorized by contractual arrangements to release confidential information, the customer or individual concerned shall, unless prohibited by law, be notified of the information provided.
- Information about the customer obtained from sources other than the customer (e.g. complainant, regulators) shall be confidential between the customer and the laboratory. The provider (source) of this information shall be confidential to the laboratory and shall not be shared with the customer, unless agreed by the source.
- Personnel, including any committee members, contractors, personnel of external bodies, or individuals acting on the laboratory's behalf, shall keep confidential all information obtained or created during the performance of laboratory activities, except as required by law.
- The project shall be maintained on a confidential basis between The Consultant and The Client and no information shall be released during The Project to any third party except by mutual consent of both The Consultant and The Client.
- Findings arising out of a project relating specifically to The Client’s product or design will not be published except by mutual consent of both The Consultant and The Client.
- Copyright in all original drawings, designs, proposals, reports, and other written matter originating from The Consultant whether made pursuant to The Proposal or otherwise shall remain vested in The Consultant at all times.
- All Intellectual Property developed by The Consultant during The Project other than in clause (a) above shall belong to The Consultant. In the case of projects terminated as a result of liquidation, bankruptcy or receivership, all patentable inventions, drawing designs, proposals, reports and other written matter submitted to The Client with The Proposal and used during the course of The Project remain the property of The Consultant and must be returned on request.
- All patentable inventions, non-patentable processes, designs, copyrights, improvements or know-how originating from The Consultant arising wholly and exclusively from this Agreement and relating to its objectives shall be the property of The Consultant. Terms for assignment to The Client or joint exploitation shall be the subject of negotiation between The Consultant and The Client upon completion of the Services and payment of a reasonable royalty and other reasonable conditions to be agreed between the parties. On payment of all sums to The Consultant from The Client in respect of the assignment or otherwise, The Consultant shall transfer to The Client all patents and other intellectual property rights arising directly from work on the assignment. Prior to such payment, The Consultant does not authorize The Client to deal in, apply or use any such goods, information, designs and know how.
Any dispute or difference arising out of The Agreement shall be referred to the arbitration of a person to be mutually agreed upon or failing agreement to some person nominated by the President of the Law Society. The decision by the Arbitrator shall be final and binding upon and enforceable against the parties.
The Conditions together with The Proposal shall be read, construed and governed by The Laws of England.
EXISTENCE OF CONTRACT
Terminations by notice of this agreement by whatever means shall not affect the provision of ANY Clauses present within these terms and conditions.
All communications to The Client shall be sent to the address appearing in The Proposal unless some other address has been notified in writing to the Consultant. All communications to The Consultant shall be sent to the address of The Consultant set out in the Proposal or such other as may be properly notified.
In the event that either party is delayed or impeded in the performance of its obligations here under by any cause beyond its reasonable control it shall be entitled to such extension or time for such performance as may be fair and reasonable in all the circumstances.
PRODUCTS & ECOMMERCE TERMS AND CONDITIONS
In these conditions the following expressions shall have the following meanings:
(a) "the Seller" shall mean NOVA Acoustics Limited. and also where the context so permits any sub-contractor or end user of, or to, the said company.
(b)"Goods" shall where the context so permits include raw materials, processed materials or fabricated products, whether of the manufacture of the Seller or not.
(c)"the Buyer" shall mean the person, firm or company with whom any contract to sell goods is made by the Seller whether directly or indirectly through an agent or factor who is acting for or instructed by any such person , firm or company or whose actions are subsequently to the contract ratified by the actual Buyer.
These conditions shall be deemed to be incorporated in all contracts of the Seller to sell Goods and in the case of any inconsistency with any letter or quotation incorporating or referring to these conditions of any order, letter or form of contract sent by the Buyer to the Seller or any other communication between the Buyer and the Seller, whatever may be their respective dates the provisions of these conditions shall prevail unless expressly varied in writing and signed on behalf of the Seller.
Any concession made or latitude allowed by the Seller to the Buyer shall not affect the strict rights of the Seller under contract. In any particular case, if any of these conditions shall be held to be invalid or shall not apply to the contract, the other conditions shall continue in full force and effect.
Notwithstanding the Seller may have given a detailed quotation, no order shall be binding on the Seller unless and until it has been acknowledged in writing by the Seller.
4. Returns & ORDER cancellation Policy
(a) We will accept returns on non customised products providing the customer returns them to us in a re saleable condition. The customer is responsible for insuring the products return to us. We will then refund the amount paid excluding any original delivery costs and less a 25 % re stocking and handling fee. Customers MUST provide a copy of their invoice from their original sale.
(a) The price payable for the Goods shall unless otherwise stated by the Seller in writing and signed on its behalf be the list price of the Seller current at the date of delivery of the Goods and in the case of an order for delivery in installments, the price payable for each instalment shall be the selling price of the Seller current at the date of delivery of such instalment. Unless otherwise expressly stated to be firm for a period, the Seller's prices are subject to variation to take account of the variations in wages, materials or other costs since the date of the order. The Seller accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted and the invoice price so adjusted shall be payable as if it were the original contract price.
(b) The Seller reserves the right to deliver Goods within plus or minus ten percent of the quantities stipulated in the contract and the contract price shall be adjusted accordingly.
6. ADDITIONAL COSTS
The Buyer agrees to pay for any loss or extra cost incurred by the Seller through the Buyer's instructions or lack of instructions, through failure or delay in taking delivery or through any act or default on the part of the Buyer, its servants, agents or employees.
The Buyer shall indemnify the Seller against all costs, claims and damages incurred or threatened arising out of any alleged infringement of patents, trademarks or copyright occasioned by the manufacture or sales of the goods made to the specification or special requirements of the Buyer.
MUTECLIP is a registered trade mark of Ikoustic Limited
8. TERMS OF PAYMENT
(a) Payment shall be in accordance with the standard terms of payment of the Seller in the United Kingdom, applicable from time to time and will, unless otherwise stated, be due with placement of order for Goods.
(b) If the Goods are delivered in installments, the Seller shall be entitled to payment when each instalment is despatched unless otherwise stated.
(c) If upon the terms agreed for any order the price shall be payable in installments or if the Buyer has agreed to take specified quantities of the Goods at specified times, any default by the Buyer of the payment of any due instalment shall cause the cancellation of the balance of any order and amounts due shall be payable forthwith.
(d) The price of the Goods shall be due in full according to the terms of the order and the Buyer shall not be entitled to exercise any set off lien or any other similar right or claim.
(e) A purchaser will not be entitled to withhold payments of any amount in respect of any disputed claim or charge. Interest may be charged to the purchaser at 3% per month in cases of late payment.
(f) Should payment be overdue from any previous deliveries, the Seller is entitled to withhold further deliveries called for on existing orders or schedules until such payment has been received by the Seller without it affecting the validity of the original order.
(a) The period for delivery shall be the period within which the Goods are intended to be delivered at the Buyers chosen address and shall be calculated from the time of receipt by the Seller of the order, or from receipt of all necessary information accepted by the Seller to supply or procure the manufacture of the Goods whichever shall be the later and the Buyer shall take delivery of the Goods within that period.
(b) All times or dates given for delivery of the Goods are given in good faith but without any responsibility on the part of the Seller. Time shall not be of the essence of any contract nor shall the Seller be under any liability for delay in delivery, whether occasioned by the negligence of the Seller, or any other circumstances whatsoever whether or not beyond the Seller's reasonable control, unless otherwise expressly agreed in writing at or before the date of the order, in which case the Seller's liability shall be limited to such liquidated damage as may be specifically agreed in writing at or before that date.
(c) Where the Goods are handed to a carrier contracted by the Seller for delivery to the Buyer, any such carrier shall be deemed to be the agent of the Seller and not of the Buyer for all purposes.
(d) Where Goods are sold and delivered to a port of departure, the responsibility of the Seller shall cease immediately the Goods have been delivered and signed for and the Seller shall be under no obligation to give the Buyer any notice that may be specified in the current Sale of Goods Act.
(e) No liability for non-delivery, partial loss or damage to the Goods occurring prior to delivery or for any claim that the Goods are not in accordance with the contract will attach to the Seller unless claims to that effect are notified in writing by the Buyer to the Seller (and in the case for claims for non-delivery, partial loss or damage with a copy to the carrier if the Seller's own vehicles have not been used to deliver the Goods).
(i) Within three days of delivery for partial loss, damage or non-compliance with the contract or
(ii) Within ten days of the date of the invoice for non-delivery
(f) In the event of a valid claim for non-delivery, partial loss, damage or non-compliance with the contract, the Seller undertakes at its option either to reprocess or replace the Goods at its expense but shall not be under any further or other liability to any person in connection with such non-delivery, partial loss, damage or non-compliance.
(g) If the Buyer shall fail to give notice in accordance with condition 8(i) above, the Goods shall be deemed to be in all respects in accordance with the contract and the Buyer shall be bound to accept and pay for the same accordingly.
(h) If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery, The Seller may at its sole discretion without prejudice to its other rights, store the goods at the risk of the Buyer and take all reasonable steps to safeguard and insure them all at the cost of the Buyer, provided that the Buyer shall be immediately informed thereof.
If the Buyer fails to accept delivery of the Goods at a time when they are due to be delivered, a re-delivery charge will be applicable and charged to the Buyer.
10. PASSING OF TITLE AND RISK
(a) For all orders supplied on account, from the time of delivery, the Goods shall be at the risk of the Buyer who shall be solely responsible for their custody and maintenance as if it were the owner but, unless otherwise expressly agreed in writing, the Goods shall remain the property of the Seller until payment due under the contract between the Seller and the Buyer has been made in full and unconditionally or until resale of the Goods by the Buyer bona fide in the ordinary course of its business and at full market price and the Buyer shall sell as principle only.
While ownership of the Seller continues, the Buyer shall keep the Goods separate and identifiable from all other goods in its possession.
(b) If the Goods shall become converted into or incorporated with other products while still in the ownership of the Seller the ownership in such other products shall vest in the Seller as if solely and simply the Goods until such payment or resale as aforesaid.
(c) In the event of any resale by the Buyer of the Goods or such last mentioned products, the beneficial entitlement of the Seller shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Seller and until and subject to such assignment shall be held on trust for the Seller who will stand in a strictly fiduciary capacity in respect thereof.
(d) In the event of failure to pay the price in accordance with the contractual obligations, the Seller shall have the power to resell the Goods or products after reasonable notice, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise.
11. CONDITIONS AND WARRANTIES
(a) Every description or specification of the Goods is given in good faith based on average results of standard tests but any conditions or warranties express or implied that the Goods shall correspond with such description or specification are hereby expressly negative and the use of any such description or specification shall not constitute a sale by description.
(b) Any conditions or warranties (whether express or implied by statute common law or arising from conduct or a previous course of dealing or trade custom or usage) as to the quality or fitness of the Goods for any particular purpose even if that purpose is made known expressly or by implication to the Seller are hereby expressly negative.
(c) Notwithstanding that a sample of the Goods may have been exhibited to and inspected by the Buyer or results of standard tests upon a sample furnished to the Buyer it is hereby declared that such sample was so exhibited and inspected or tested solely to enable the Buyer to judge for itself the quality of the bulk and not so as to constitute a sale by sample. The Buyer shall take the Goods at its own risk as to their corresponding with the sample or as to their quality condition or sufficiency for any purpose.
(d) Without prejudice to the generality of the foregoing sub-clauses (a) (b) and (c) the Seller shall not be liable for any costs, claims, damages or expenses arising out of any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.
(e) The Seller does not guarantee Goods supplied as being suitable for any particular use and therefore, the Buyer must conduct and be responsible for his own tests to assess the suitability for application or use of any Goods supplied by the Seller.
12. DEFECTIVE GOODS
In substitution for all and any other right which the Buyer would or might have had but for these conditions, the Seller undertakes to supply free of charge a replacement of the Goods if of the Seller’s manufacture in which a serious defect in materials or workmanship appears within four weeks of delivery at the place of delivery specified by the Buyer for the original Goods provided that in any case the Goods have been accepted and paid for and are of the Seller’s own manufacture.
In the case of Goods not of the Seller’s manufacture, the Seller will pass on to the Buyer any benefit obtainable under any warranty given by the Seller’s supplier provided that the Goods have been accepted and paid for.
In the case of any claim under this paragraph the Seller reserves the right at its sole discretion of replacing the Goods or crediting to the Buyer in full, the price paid by the Buyer to the Seller.
In order to exercise its rights under this paragraph, the Buyer shall inform the Seller within seven days of the date when such defect appeared or ought reasonably to have been discoverable and shall return the defective Goods carriage paid to the Seller’s works.
Nothing herein shall impose any liability upon the Seller in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Buyer, it’s servants or agents including in particular but without prejudice to the generality of the foregoing, any failure by the Buyer to comply with any recommendations of the Seller as to storage and handling of the Goods.
Where the Goods are for delivery by instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.
No statement, description, information, warranty, condition or recommendation contained in any catalogue or web based price list, advertisement or communication or made verbally by any of the agents or employees of the Seller shall be construed to enlarge, vary or override in any way any of these conditions.
14. FORCE MAJEURE
The Seller shall be entitled to delay or cancel delivery or to reduce the amount delivered if it is prevented from or hindered in or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond the control, including but not limited to strikes, lockouts, accidents, war, fire reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal source of supply.
Save as provided in clause 13 hereof, contracts or orders may not be cancelled except by agreement in writing of both parties and upon the payment to the Seller of such amount as may be necessary to indemnify the Seller against all loss resulting from the said cancellation. However, the Seller reserves the right to cancel the contract in the event the Buyer’s creditworthiness deteriorates if supplied on account.
16. PROPER LAW
The contract shall in all respects be governed by English law and shall have been deemed to have been made in England.
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