J.K FRANCIS & SON LTD
STANDARD CONDITIONS FOR THE PROVISION OF SERVICES AND GOODS
1. In these conditions “the Company” refers to J.K Francis & Son Ltd. “The Customer” shall refer to any individual firm company or other person with whom the Company contracts. “The goods” shall refer to any goods or property the subject matter of a transaction between the Company and the Customer. “Package” shall mean and include a case, crate, parcel, carton whether single or banded into one unit on a skid pallet or other similar base.
2. All and any business of the Company including any advice information or service provided whether gratuitously or not is transacted subject to these conditions and each and every condition shall be deemed to be a condition of any agreement between the Company and its Customer, unless otherwise agreed in writing and signed by a director of the Company and all other statements or representations written or oral express or implied are hereby excluded.
3. In any transaction entered into between the Company and the Customer the Company’s obligations and liabilities will not exceed those stated in these conditions, unless otherwise agreed in writing and signed by a director of the Company, the application of the conditions to the transaction does not however indicate that the Company has agreed to carry out each and every act referred to herein.
4. When the Company uses its own transport for the purpose of collecting or delivering goods, the Company undertakes obligations as a principal to the Customer. When the Company arranges for the issue of a carrier’s Bill of Lading or any other carrier’s document evidencing a transport transaction arranged with some person or company other than the Company, the Company will have acted and will be acting purely as agent. When the Company arranges import customs clearance of goods on behalf of a Customer the Company acts purely as agent.
5. If the Company issues its own Bill of Lading, combined Transport Document, Combined Transport Bill of Lading, House Air Waybill, or Certificate of Shipment, (referred to below as “the Documents”) the Company undertakes obligations as a principal to the Customer.
(A) Where the Company issues one or more such Documents the Company will, where appropriate, insert therein the matters set out in Article 6 (1) (insofar as the same are required) and the matters set out in Article 6 (2) when applicable of the Convention on the Contract for the International Carriage of Goods by Road as amended from time to time.
(B) The value of the goods will not normally be stated in the Documents. If the value is stated such value will not constitute a declaration of value within the meaning of any convention applying to the contract of carriage or any law and such statement of value will not constitute instructions to the Company to make any declaration of value so as to vary any limit on the Company’s liability unless a special agreement has been reached in writing between the Customer and the Company and a surcharge, if requested, has been paid by the Customer.
7. The Company at all times reserves to itself the right to take what business it likes in relation to whatever type of goods it likes and to act either as principle or as agent as the Company in its total discretion deems fit. The Company at no time whatever as principal or agent acts:
(i) as a carrier by sea within the meaning of the rules scheduled to the Carriage of Goods by Sea Act 1981;or
(ii) as a common carrier unless specifically agreed in writing and signed by a director of the Company.
(A) The Customer entering into any transaction with the Company expressly warrants that he is either the owner or authorised agent of the owner of any goods and by entering into the transaction he accepts these conditions for himself as well as for all other parties on whose behalf he is acting.
(B) The Customer will indemnify the Company and keep the Company indemnified against any demand or claim made and any action or other proceeding brought against the Company arising out of or in connection with any dispute as t o the ownership of the goods or as to the person entitled in law to possession thereof.
9. Unless otherwise expressly agreed in writing between the Company and the Customer and whether the Company contracts as principal or agent the Company reserves to itself complete freedom in respect of arranging the means, routes and procedure to be followed in the handling, packing and transportation of the goods and in the method and place of storage if required. Without prejudice to the generality of the foregoing the Company reserves the right at all times:
(i) to consign goods by any route and to allow deviation from the usual or intended route, and/or a stoppage at any place on route;
(ii) to arrange a store, warehouse, or hold goods in any place, store or warehouse wheresoever and whatsoever and irrespective of other goods there stored warehoused or held;
(iii) to change the day or time of intended movement of the goods without prior notice;
(iv) all such dealings with the goods shall be within the scope of the contract.
10. No insurance will be effected for the benefit of the Customer except upon express instructions given in writing and acknowledged in writing by the Company by the Customer and all insurance effected by the Company is subject to the usual conditions of the policies of the insurance company or underwriters taking the risk. Unless expressly instructed in writing and acknowledged by the Company in writing the Company shall not in any event effect separate insurance on each consignment but may declare it on any open or general policy. Should the insurers dispute liability for any reason the Customer shall have recourse against the insurers only and the Company shall be under no liability whatsoever for negligence or otherwise in relation thereto.
(A) Without the express written instructions of the Customer, acknowledged in writing by the Company the Company will not either when acting as agent in making a contract on behalf of the Customer or when acting as principal (except when required by the carrier):
(i) make any declaration of value or procure the insertion of any value of the goods in any document evidencing a transport transaction or evidencing any sub-contract or take any other action so as to impose any greater limit on the liability of the other contracting party or sub-contractor than the limit imposed, without the declaration, insertion or other action by such other contracting party or sub-contractor and/or by any international convention applicable to the particular transport transaction or other transaction in question;
(ii) in relation to goods to be carried by sea attempt to agree with the carrier by sea that goods packed in a container, package or other article of transport capable of being carried on deck are carried otherwise than on deck.
(B) Goods will be forwarded or dealt with at owner’s risk unless express instructions in writing are received to the contrary, and acknowledged by the Company in writing.
(A) The Customer in contracting with the Company hereby authorises the Company to contract as agent for the Customer with any packer, transport or storage contractor, wharfinger, lighterman, ship owner, carrier by sea or air or road or rail or any other person in connection with any business undertaken by the Company. The Customer shall be deemed to have knowledge of and consented to any terms and conditions of any contract entered into by the Company on the Customer’s behalf including terms imposed by the Carriage of Goods by Sea Act 1971, the Carriage of Air Act 1961, Carriage by Air (Supplementary Provisions) Act 1961 and the Carriage of Goods by Road Act 1965 or any amendments there of or extensions thereto.
(B) The Company shall be under no obligation to attempt to contract on terms more favourable to the Customer than those normally obtainable from the persons with whom the Company contracts on the Company’s behalf.
(C) The Customer shall indemnify the Company against any claim arising out of the contract entered into by the Company on behalf of the Customer and shall be liable for any duty, tax imposed or outlays of whatever nature levied by the authorities at any Port or place for or in connection with the goods or for any payments fines expenses loss or damage incurred or sustained by the Company.
(A) If changes occur in the rates of freight, rates of exchange of currencies, insurance premiums (where applicable) or other charges affecting the rates on which goods are carried, the Company reserves the right to revise charges at any time whether before or after acceptance of the Company’s quotations.
(B) The Customer shall be liable to pay the Company’s charges rates and other remunerations notwithstanding any term of the agreement that some other person will pay where that other person fails to pay. Where the Company has made a demand to the other person in writing and payment has not been received within the period stated in the demand or 28 days whichever is the longer the same shall constitute a failure to pay.
(C) The Company is entitled to retain and be paid all brokerages commissions allowances and remunerations customarily retained by or paid to freight forwarders and (but only where insurance is arranged) insurance brokers.
(A) Where the Company as principal undertakes a contract of carriage by road or rail to which the convention on the Contract for the International Carriage of Goods by Road or the Convention Concerning International Carriage by Rail, as the case may be apply the provisions of that Convention shall apply and liability of the Company shall be limited in accordance with those provisions.
(B) Where the Company as principal undertakes a contract of carriage of goods by air to which the Warsaw Convention, the Amended Warsaw Convention and the Carriage by Air Acts 1932 1961 and 1962 apply the provisions thereof shall apply and the liability of the Company shall be limited in accordance with those provisions.
(C) Save as aforesaid, in all transactions and for all goods and services provided by the Company to the Customer the following provisions apply: –
(i) the Company shall be under no liability for any loss damage or delay caused by any act, default or neglect of the Customer or by the instructions of the Customer or any person acting on behalf of the Customer, or by inherent vice of the goods or through circumstances which the Company could not avoid and the consequences of which it was unable to prevent;
(ii) in any event in respect of any delay in delivery of the goods the Company shall not be liable for any loss or damage whatsoever (whether direct or consequential) in excess of the carriage charges. In any event it is agreed that times given for delivery by whatever means shall not be of the same essence;
(iii) where the goods have been lost or damaged the limit of the Company’s liability should be a follows:
(a) in the case where the loss or damage occurs during transportation or storage by a person whose services the Company has procured as agent or utilised while acting as principle, the amount which the Company may recover from the person whose services were procured or utilised for the performance of the contract carriage or storage; where the Customer’s goods have been part of a consignment sent to the Company containing the goods of other Customers the amount shall be that proportion of the amount recovered by the Company from such persons which the value of the Customer’s goods bear to the total consignment sent by the company;
(b) in the case of furniture, plate, china, glass and household effects of any kind, £100 per article. For the purpose of this condition a suite of furniture, a set of plates and glass and items in one package or unit shall constitute an article;
(c) in any case where the loss or damage occurs for whatever reason during any transportation loading unloading or storage which has been arranged by the Customer or some other person on his behalf and/or has not been arranged or procured by the Company, the Company shall not be liable for any such loss or damage whatsoever, whether direct or consequential;
(d) in any other case (or if the above limits are held for whatever reason to be unreasonable) in any event the value of the goods up to a maximum figure of £1,300 per tonne (1000 kilos);
(iv) the Company shall be discharged from all liability whether for any act, default, neglect or otherwise in respect of loss or damage for which the Company may be liable and for the general nature of such loss or damage has not been given in writing to the Company within 7 days of the arrival of the goods at the agreed destination or of the date when the goods are available to the Customer for unpacking and in any event the Company shall be discharged from all liability whether for wilful default neglect or otherwise in respect of loss or damage unless an action is brought within 1 year after delivery of the goods or in the case of non-delivery 15 months from the date of the contract.
(D) By special arrangement agreed in writing the Company may accept liability in excess of the limits set out in clause 14 (A), (B) and (C) above upon the Customer agreeing to pay the Company’s additional charges for accepting such increased liability. Details of the Company’s additional charges will be provided upon request.
(E) If expressly instructed so to do in writing by the Customer the Company will use its best endeavours to procure insurance (where available) to indemnify the Customer in respect of any loss which he may suffer in excess of the amounts recoverable in accordance with these conditions.
(F) Subject to the above the Company shall in no event be under any greater liability than a carrier pursuant to the Convention on the Contract for International Carriage of Goods by Road whether or not the contract between the Company and the Customer is a contract of the type described in Article 1 (1) of the Convention.
(i) all the clauses herein are subject to the following: the Company shall not be liable for any direct or indirect loss damage or expense arising from damage to goods unless the Company expressly warrants in writing that the packing loading and any securing thereof is adequate sufficient or correct;
(ii) without prejudice to the generality of sub-clause 14G(i) the Company will under no circumstances warrant the adequacy or sufficiency of any loading packing or securing of any goods undertaken by the Customer or any third party or by the Company following the specification or direction of the Customer or such third party.
(A) The Company may give instructions for perishable goods, which in the opinion of the Company are likely to perish during the course of transit or which are not taken up immediately upon arrival or which are insufficiently addressed or marked or otherwise not readily identifiable to be sold or otherwise disposed of without any notice to the Customer, owners or consignees of the goods and payment or tender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery. All charges and expenses arising in connection with the sale of or disposal of the goods shall be paid by the Customer.
(B) Except under special arrangements previously made in writing the Company will not handle or deal with bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or plants, and if the Company does handle or deal with same it will not accept any liability whatever whether in negligence or otherwise for any such goods.
16. Where the Customer or his agent has packed, stowed or stuffed goods into any vehicle crate package or container the
Customer warrants the goods are properly and effectively packed, stowed stuffed and will indemnify the Company against
any loss damage or charges suffered by or made upon the Company arising from any defective stowage packing or stuffing including overloading unsafe or inbalanced stowing packing or stuffing or damaging the vehicle crate package or container.
17. Pending forwarding and delivery goods may be warehoused or otherwise held in any place or places at the sole discretion of the Company and at the owner’s risk and expense.
(A) All servants and agents of the Company shall be entitled to the benefit of these terms and conditions and the Company contracts hereunder on their behalf.
(B) If the Customer or any person(s) on whose behalf he purports to or is deemed to contract takes proceedings against any of the Company’s servants or agents following upon any loss damage or expense in respect whereof liability on the part of the Company is excluded or limited hereunder and succeeds in recovering a sum greater than the Company would be liable for hereunder the Customer and /or other person(s) on whose behalf he contracts shall repay to the Company any sum which the Company may legally be liable to pay or shall pay by way of indemnity to such servant or agent in excess of the Company’s liability hereunder.
(C) The Customer will indemnify the Company against any claims or demands made by the consignee or any third party against the Company insofar as such claims or demand exceeds the Company’s liability as defined and laid down by these conditions.
(A) The Customer warrants the accuracy of all descriptions values and other particulars supplied to the Company for Customs or any other purpose for any document evidencing a transport transaction. The Customer further undertakes to indemnify the Company against all losses damages expenses and fines arising from any inaccuracy or omission even if the same is not due to any negligence.
(B) The Company will not be liable under any circumstances for any loss or damage or expense arising from or in any way connected with marks weight numbers brands contents quality or description of any goods.
(C) The Company will not be liable for any failure to enter the requisite particulars in any consignment note or any other document evidencing a transport transaction unless such details were supplied to the Company in writing and received by the Company and it is shown that the same was not inserted as a result of wilful default;
in any event any liability of the Company shall be limited as shown in clause 14 (A), (B), (C) above.
20. If any goods cannot be delivered because they are incorrectly or insufficiently addressed or because they are not collected or accepted by the consignee or the consignees cannot be reasonably found then the Company may give notice to the Customer that the same may be disposed of within 21 days of the notice, at the Company’s sole discretion, and the Customer will indemnify the Company for the costs thereof insofar as they are recovered as a result of such disposal.
21. The Company shall not be liable for any damage caused to private roadways, mains, pipes, manholes, weighbridges, bridges or approaches of any kind to such premises or property thereon when collecting or delivering goods at the premises of the Customer or the consignee or at any premises visited while carrying out the instructions of the Customer or consignee by reason of the weight or the vibration of any vehicle or load or the nature of the goods carried and the Customer shall indemnify the Company in respect of any claim arising therefrom.
22. While storing goods, the Company:
(i) may give notice requiring the removal of the goods within 7 days or may increase the rent for charges for storing at the expiration of 7 days after giving written notice thereof;
(ii) may charge 5% more than its normal rate if the Customer requires the goods or any part thereof to be available for immediate collection delivery or inspection;
(iii) shall charge storage for a minimum period of 7 days, and any part thereof shall count as such period.
(A) Without prejudice to any right the Company may have to lien without this condition the Company shall have a particular and a general lien on the goods and any documents relating to the goods for money due under th e contract or any contract with the Company expended on behalf of the Customer for whatever reason.
(B) The Company shall be entitled to suspend delivery collection or any other act otherwise required of it under the contract if any sum due to the Company by the Customer remains unpaid for more than 28 days.
(C) While any such sum remains due any delivery made by the Company shall be on trust for the Company and the Company shall be entitled to re-take the goods and treat the same as subject to this or any other lien applicable.
(D) If the Company gives notice in writing that it holds goods subject to the lien, and after 1 month the sums due remain unpaid, then the Company may sell or otherwise dispose of the goods as it sees fit without further notice, and it may apply any proceeds towards satisfaction of this or any other lien applicable.
24. Any notice under this contract may be sent by first class post addressed to the Customer, his consignee or his agent at the last known address.
(A) All accounts shall be deemed to be due when rendered. All sums so due shall be paid immediately without deduction, and payment shall not be withheld or delayed on account of any claim counter-claim or set-off. Any sum not paid within 28 days shall bear interest from the due date at 6% over Lloyds Bank base rate in force from time to time.
(B) Please note that all accounts which are not paid within our normal credit terms will be passed to our nominated debt collection agency. This will incur a fee from the nominated agency of 15% plus VAT of the amount recovered to cover the costs of recovery. As soon as the account is passed to our nominated agency that fee will be added to the invoice amount due and will be payable in addition to the invoice amount. This is an entirely separate charge to any legal costs or disbursements which may also be properly incurred in obtaining payment.
26. Except pursuant to specific instructions previously received in writing and accepted in writing by the Company then the Company will not accept or deal with goods of a dangerous or damaging nature, nor goods likely to harbour or encourage vermin or other pests, nor goods liable to taint or affect other goods. If such goods are accepted pursuant to a special arrangement but thereafter and in the opinion of the Company constituted a risk to other goods, property, life or health the Company shall where reasonably practical contact the Customer in order to require him to remove or otherwise deal with the goods but reserve the right in any event to do so at the expense of the Customer.
27. Force Majeure. The Company shall be relieved of all liability for any loss, damage or delay if, and to the extent that such loss, damage or delay is caused by:
(i) strike lock out, stoppage or restraint of labour, the consequence of which the Company is unable to avoid by the exercise of reasonable diligence;
(ii) or any cause or event including inclement weather, flood or fire or the unavailability of utilities which the Company is unable to avoid and the consequence of which the Company is unable to prevent by the exercise of reasonable diligence.
28. Jurisdiction and Law. These conditions and any act or contract or agreement to which they apply shall be governed by English law and any dispute or claim arising directly or indirectly out of or in connection with the contents or formation of such contract or agreement (including any non-contractual dispute) to which these conditions apply shall be subject to the exclusive jurisdiction of the English courts.
SALE OF GOODS
The following additional terms also apply in respect of the sale of goods to a Customer.
1.1 Definitions. In these Standard Conditions for the provision of services and goods, the following definitions also apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions: these terms and conditions.
Contract: the contract between the Company and the Customer for the supply of Goods in accordance with these
Customer: the person or firm who purchases the Goods and/or Services from the Company.
Delivery Location: has the meaning set out in clause 2.1. Force Majeure: has the meaning set out in clause 27 Part 1. Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Company.
1.2 Order: the Customer’s order for the supply of Goods as accepted by the Company. Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its [personal representatives,] successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes [and e-mails].
2. DELIVERY OF GOODS
2.1 The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree
(Delivery Location) at any time after the Company notifies the Customer that the Goods are ready.
2.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
2.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
2.4 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provide the Company with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
2.5 If the Customer fails to accept or take delivery of the Goods within 5 Business Days of the Company notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Company’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 6th Business Day following the day on which the Company notified the Customer that the Goods were ready; and
(b) the Company shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
2.6 If 20 Business Days after the Company notified the Customer that the Goods were ready for delivery the Customer has not taken OR accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
2.7 The Customer shall not be entitled to reject the Goods if the Company delivers up to and including 5 per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
2.8 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
3. QUALITY OF GOODS
3.1 The Company warrants that the Goods shall:
(a) conform in all material respects with their description and any applicable Goods Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Company.
3.2 Subject to clause 3.3, if:
(a) the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 3.1;
(b) the Company is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost,
the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective
Goods in full.
3.3 The Company shall not be liable for the Goods’ failure to comply with the warranty in clause 3.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 3.2;
(b) the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of the Company following any drawing, design or Goods Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Company;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Goods differ from their description OR the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
3.4 Except as provided in this clause 3, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 3.1.
3.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Company under clause
4. TITLE AND RISK
4.1 The risk in the Goods shall pass to the Customer on completion of delivery.
4.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 4.4.
4.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the
Company’s behalf from the date of delivery;
(d) notify the Company immediately if it becomes subject to any of the events listed in clause 7; and
(e) give the Company such information relating to the Goods as the Company may require from time to time.
4.4 Subject to clause 4.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise)
before the Company receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Company’s agent; and
(b) title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.
4.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7 then, without limiting any other right or remedy the Company may have:
(a) the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Company may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
5. CHARGES AND PAYMENT
5.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Company published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.
6. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
6.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
6.2 Subject to clause 6.1 and 6.2(b):
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort
(including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any direct or indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
6.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the
Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
6.4 This clause 6 shall survive termination of the Contract.
7.1 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 10 days after receipt of notice in writing to do so;
(b) the Customer party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or [(being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply];
(c) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that Customer with one or more other companies or the solvent reconstruction of that Customer];
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of that Customer;
(e) the Customer (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
(h) the holder of a qualifying charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the Customer party or a receiver is appointed over the assets of the Customer;
(j) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.1(a) to clause 7.1(i) (inclusive);
(k) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
(l) the Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s
capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
7.2 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
7.3 Without limiting its other rights or remedies, the Company may suspend the supply of Services or all further deliveries of
Goods under the Contract or any other contract between the Customer and the Company if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in
clause 7.1(b) to clause 7.1(m), or the Company reasonably believes that the Customer is about to become subject to any of them.
7.4 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.