1.1 In these Terms Conditions:

““COMPANY” means Alwayse Engineering Limited
““CONTRACT” means the contract for the purchase and sale of the Goods
““CUSTOMER” means the person or company who accepts a quotation of the Company for the sale of the Goods, or whose order for the Goods is accepted by the Company
““GOODS” means the goods which the Company is to supply in accordance with these Terms and Conditions

1.2 Any reference in these Terms and Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

2 Basis of the Sale

2.1 The Company shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Company which is accepted by the Buyer within 60 days of its date, or any written order of the Buyer which is accepted by the Company, subject in either case to these Terms and Conditions, which shall govern this Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.

2.2 No order submitted by the Buyer shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company’s authorised representative.

3 Price of the Goods

3.1 The price of the Goods shall be the Company’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company’s published price list current at the date of delivery of the Goods

3.2 The Company reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company.

3.3 The price is exclusive of delivery, handling, administration and packaging charges and any applicable value added tax, which the Buyer shall be additionally liable to pay to the Company.

4 Delivery

4.1 Unless otherwise provided in the Contract, delivery of the Goods shall be made by the Company at the Buyer’s premises

4.2 The Contract price does not include the cost of off-loading and assembly, which shall be arranged by the Buyer and performed at its own expense and risk unless otherwise agreed in writing.

4.3 Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods but shall use its reasonable endeavours to deliver on the quoted date. Time for delivery shall not be of the essence of the Contract

4.4 If the Buyer does not accept delivery when tendered by the Company the Buyer shall be liable for any storage, administration, carriage and re-delivery charges.

5 Risk and Property

5.1 Risk of damage to or loss of the Goods shall pass to the Buyer:

5.1.1 in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Buyer that the Goods are available for collection; or

5.1.2 in the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods

5.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, the property in the Goods shall not pass to the Buyer until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Company to the Buyer for which payment is then due.

5.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Company’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business providing that the proceeds of such sale shall be held upon trust for the Company. Where the Buyer does sell or pledge the Goods it shall hold the proceeds of sale or charging as fiduciary agent of the Company and forward the same to the Company upon a written request from the Company.

5.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Buyer to deliver up the Goods to the Company and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

5.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Buyer does so all moneys owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.

6 Limitation of Liability

6.1 All warranties, conditions or other terms employed by statute or common law are excluded to the fullest extent permitted by law.

6.2 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Company within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within 2 months after delivery of the Goods. If delivery is not refused, and the Buyer does not notify the Company accordingly, the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

6.3 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet Company specification is notified to the Company in accordance with these Terms and Conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Company shall have no further liability to the Buyer.

6.4 Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms and Conditions.

6.5 The Company shall have no liability whatsoever where the Goods have not been maintained or used in accordance with their recommended specifications and maintenance schedules as updated from time to time by the Company.

6.6 The Seller shall not be liable for any delay or failure attributable to any cause beyond the Seller’s reasonable control including without limitation fire, strike, act of god and embargo.

7 Terms of Payment

7.1 The Buyer shall pay the price of the Goods in pounds sterling (without any deduction) within 30 days of the date of the Company’s invoice, and the time of payment of the price shall be of the essence of the Contract.

7.2 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:

7.2.1 cancel the Contract or suspend any further deliveries to the Buyer;

7.2.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Company) as the Company may think fit; and

7.2.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 3 per cent per annum above Barclays Bank Plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

7.2.4 set of any monies due to the Buyer on any account whatsoever against monies due to the Buyer from the Company

7.3 Where the Company agrees to invoice in a currency other than sterling the Buyer shall be liable for all currency conversion brokerage or other charges and ensure that the sum payable to the Company when converted to pounds Sterling is not less than the amount payable in pounds sterling on the date of quotation

8 Insolvency of Buyer

8.1 This clause applies if:

8.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

8.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or

8.1.3 the Buyer ceases, or threatens to cease, to carry on business; or

8.1.4 there is a change in control of the ownership of the Company or its shares

8.1.5 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

8.2 If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

9 General

9.1 No waiver by the Company of any breach of the contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

9.2 This Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.

CO.LG0049.ALWAYSE.T&C.19.03.99 VER2