Parkes Machine Tools Ltd

CONDITIONS OF SALE - GENERAL

FOR THE SUPPLY OF GOODS AND SERVICES BY PARKES (MACHINE TOOLS) LIMITED

1. (a.) In these conditions ‘the Company’ means Parkes (Machine Tools) Limited and ‘the Customer’ means the individual, firm, company and other party whom the Company contracts.

‘Supply’ includes (but is not limited to) any supply under a contract of sale. ‘International supply contract’ means a contract as is described in section 26 (3) of the Unfair Contract Terms Act 1977

(b.) No order is pursuance of any quotation or otherwise shall be binding on the Company unless and until such order is acceptable by the Company. Any contract made between the Company and the Customer (herein called ‘the Contract’) shall be subject to these conditions and save as aftermentioned no representative or agent of the Company has authority to agree with any terms or make any representations inconsistent with them or to enter into any contract except on the basis of them; any such term representation or contract will bind the Company only if in writing and signed by a Director.

(c.) Unless otherwise agreed in writing by the Company these conditions shall override any conditions stipulated or referred to by the Customer in his order or pre-contract negotiations.

(d.) Any description contained in the Company’s catalogues, samples, price lists or other advertising material is intended merely to present a general picture of the Company’s products and services and shall not form a representation or be part of the Contract.

(e.) In the event that the Company has not given a written acknowledgement of the Customer’s orders these conditions, provided the Customer shall have had prior notice of them, shall nonetheless apply to the contract.

(f.) The Company reserves with right to correct any clerical or typographical errors made by its employees at any time.

2. (a.) Where goods are made to the Customer’s specification, instruction and design, the Customer undertakes full responsibility for the suitability and accuracy of the specification, instructions or design and undertakes to indemnify the Company against any infringement of any patent, design right, registered design, trade mark, trade name or copyright and any loss, damage or expense which it may incur by reason of such infringement or alleged infringement in any country and the Customer undertakes further to indemnify the Company for any loss damage or expense in respect of any liability arising under or by reason of the Consumer Protection Act 1987 in relation of the specification and design of such goods.

(b.) The Customer warrants that it will pass on to all third parties to whom it may supply the goods all information as to the use and safe handling of the goods as may have been passed onto the Customer by the Company.

(c.) The Company shall be entitled to increase its prices at any time to take account of any increase in the cost to the Company of purchasing any goods or materials or manufacturing working on or supplying any goods or services (including any such increase arising from any error or inadequacy in any specification, instructions or design provided by the Customer or any modification carried out by the Company at the Customer’s request) and such increased prices ruling at the date of despatch by the Company shall be substituted for the previous Contract price. All prices quoted are exclusive of VAT and the Customer shall pay any and all taxes duties and other government charges payable in respect of the goods or services.

3. Where the Company is unable to accept a Customer’s order but is able to recommend an alternative supplier who fulfills the Customer’s requirements the Customer shall, unless otherwise agreed in writing with the Company, pay to the Company a commission of 10% of the sale price charged by the alternative supplier to the Customer.

4. (a.) Unless otherwise agreed in writing the Company

i. the Customer shall take delivery of the goods or any installment thereof at the Company’s premises within 14 days after the receiving of notification from the Company that such goods are ready

and

ii. if the Company agrees to deliver goods elsewhere the Customer shall when so required by the Company forthwith give to the Company all necessary instructions; the Company shall be entitled to add to the Contract price a reasonable charge for packaging and delivery and off-loading shall be at the Customer’s risk and expense.

(b.) If the Contract is an international supply contract it shall be deemed to incorporate the latest edition of Incoterms current at the date of the Contract save that in the event of any inconsistency between Incoterms and any express term of the Contract the latter shall prevail. The Company shall be under no obligation to give the Customer the notice specified under Section 32 (3) of the Sale of Goods Act 1979.

(c.) Save in the case of international supply contract and subject to any agreement in writing by the Company, the risk in goods which the Company agreed to supply shall pass to the Customer on delivery at the Company’s premises or despatch to the Customer or the date (if earlier) on which, the goods being ready for delivery, delivery is postponed at the Customer’s request.

(d.) The Company shall not be liable for any loss of or damage sustained by any goods left with the Company howsoever caused and whether or not attributable to negligence on the part of the Company or negligence or wilful default on the part of any servant or agent of the Company.

(e.) Should the Company be delayed in or prevented from taking delivery of the goods or carrying out the services due to war, government or parliamentary restrictions, strike, lock-out, fire, floods, explosions, labour disturbances, trade disputes, damage to or destruction of the goods, breakdown of machinery, shortages of labour or of raw materials or Act of God or due to any other cause whatsoever beyond the reasonable control of the Company the Company shall be at liberty to cancel or suspend the order placed by the Customer without incurring any liability for any loss or damage arising therefrom.

(f.) While the Company will endeavour to deliver the goods or complete the services by any date or within any period agreed upon, such dates and periods are estimates only given in good faith and the Company will not be liable for any failure to delivery or complete by such a date or within such a period, Moreover, the Company shall be entitled to defer delivery until any monies due from the Customer’s have been received.

5. (a.) Unless otherwise specified in writing by the Company payment shall be made by the Customer net cash upon notification that the goods are ready and before delivery. Time of payment shall be of the essence of the Contract. Without prejudice to any other rights of the Company interest will be payable on all overdue accounts at HSBC Bank Plc base rate plus 4% and for the purposes of paragraphs 6 and 8 hereof the full purchase price of the goods shall include any interest payable hereunder.

(b.) Commission due pursuant to paragraph 3 hereof shall be paid at the time payment of the sale price becomes due to the supplier.

6. (a.) If the Customer shall fail to make any payment when it becomes due or shall enter into any composition or any arrangement with his creditors or if a partnership shall have a winding-up order made against it or if being an incorporated company shall have an administrative receiver or administrator appointed or shall pass a resolution for winding-up or a Court shall make an order to that effect or if there shall be any breach by the Customer of any of the terms and conditions hereof the Company may defer or cancel any further deliveries and treat the Contract as determined but without prejudice to its right to the full purchase price of the goods delivered and services provided and damaged for any loss suffered in consequence of such determination.

(b.) If the Customer wishes to cancel its order such cancellation will only be accepted at the discretion of the Company. Where cancellation is accepted the Customer will pay the Company forthwith all costs of expenses incurred by the Company arising from the cancellation.

(c.) In circumstances where the Customer cancels its order having previously paid a deposit with the order then the Company will be entitled to retain the deposit as compensation for the costs, expenses, loss and damaged incurred by the Company arising from the cancellations. The Customer agrees that the retention of the deposit by the Company in such circumstances would be reasonable, bearing in mind the loss and damage which it is anticipated the Company would suffer as a result of the cancellation.

(d.) Acceptance of such cancellation will only be binding on the Company if in writing.

(e.) A charge will be made for any costs incurred by the Company due to suspension or deferment of any order by the Customer or in the event of the Customer defaults in collection, or giving instructions for the delivery of, any goods or the performance of any services.

7. (a.) No claim for damage in transit, shortage of delivery or loss of goods will be entertained unless the Customer shall have given the Company written notice of such damage, shortage or loss with reasonable particulars thereof within 3 days of receipt of the goods or (in the case of total loss) of receipt of the invoice or other notification of despatch. The Company’s liability, if any, shall be limited to replacing or (in its discretion) repairing such goods and it shall be a condition precedent to any such liability that the Customer shall if so requested have returned damaged goods to the Company within 14 days of such request. The Customer shall not be entitled to make any claim against the Company for consequential loss arising out of such damage shortage or loss of the aforesaid.

(b.) Save as otherwise provided in these conditions the Company’s liability in respect of any defect in or failure of goods supplied or work done is limited to replacing or (in its discretion) repairing or paying for the repair or replacement of goods which within three months or (in the case of used machines) 30 days of delivery to the Customer are found to be defective by reason of faulty or incorrect design workmanship parts or materials and carrying out again any services which the Company has failed properly to perform in accordance with the Contract. The Company shall have no such liability in respect of used machines sold ‘as seen and inspected’. In the event of any error in any weight, dimensions, performance or other description or information which has formed a representation or is part of a Contract the Company’s liability in respect of any direct loss or damage sustained by the Customer as a result of such error not exceed the price of the goods or services in respect of which the description or information is incorrect. Conditions precedent to the Company’s liability hereunder shall be that as soon as reasonably practicable, the Customer

i. shall have given to the Company reasonable notice of the defect, failure or error

ii. shall have either returned the goods to the Company or provided authority for the Company’s servants or agents to inspect them, as the Company may request.

The Company shall have no other or further liability in respect of any direct or consequential loss or damage sustained by the Customer arising from or in connection with such defect failure or error as aforesaid.

(c.) In no circumstances shall the age or performance of used machines be a term of the contract, nor shall any statement relating thereto form a representation.

(d.) Where the Company agrees to repair or replace goods or carry out again any services in accordance with the foregoing provisions of this paragraph any time specified for delivery under the Contract shall be extended for such period as the Company may reasonably require.

(e.) Save for such terms as may be implied in the Contract by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982, all conditions, warranties and other terms express or implied, statutory or otherwise are expressly excluded, save insofar as contained or as otherwise expressly agreed by the Company in writing PROVIDED that if and insofar as any legislation or any order made thereunder shall make or have made it unlawful to exclude or purport to exclude from the Contract any term or shall have made unenforceable any attempt to exclude any such term, the foregoing provisions of this paragraph will not apply to any such term.

8. The following provisions shall apply to all goods which under the Contract the Company agreed to supply to the Customer. No failure by the Company to enforce strict compliance by the Customer with such provisions shall constitute a waiver thereof and no termination of the Contract shall prejudice limit or extinguish the Company’s rights under this paragraph.

i. Upon delivery of the goods the Customer shall hold the goods solely as bailee of the Company and the goods shall remain the property of the Company until such times as the Customer shall have paid to the Company the full purchase price thereof. Until such time the Company shall be entitled to recover the goods or any part thereof and for the purposes of exercising such rights the Company its employees and agents with appropriate transport may enter upon the Customer’s premises and any other location where the goods are situated.

ii. The Customer is hereby licensed to sell on the goods. The customer shall, immediately upon receipt of the proceeds of sale, and whether or not payment has become due, remit to the Company the full purchase price of the goods sold on less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent of the Company.

iii. The customer shall maintain all appropriate insurance in respect of the goods from the date on which the risk therein passes to him. In the event of any loss or damage occurring while the goods remain the property of the Company the Customer shall, immediately on receipt of this insurance monies, remit to the Company the full purchase price of the goods lost or damaged less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Company.

iv. The license granted under sub-paragraph (ii) above shall be terminable forthwith at any time upon notice by the Company to the Customer.

9. The Company reserves a general lien over any goods or items owned by the Customer which may be if the Company’s possession where pursuant to the Contract or otherwise for any sums of money due from the Customer to the Company whether under the Contract or otherwise. The Company shall have express power to sell the goods or items in pursuance of its lien upon giving 30 days notice in writing of its intention to do so to the Customer.

10. Save as hereinbefore provided and subject to the provisions of section 2 (1) of the Unfair Contract Terms Act 1977 the Company shall not be liable to the Customer for any damage or for any direct of consequential loss incurred by the Customer in consequence of any negligence on the part of the Company or negligence or willful default on the part of its servants or agents in or in connection with the supply of any goods or the design or manufacture thereof or in the carrying out of any work or the provision of any information.

11. Nothing in these Conditions shall exclude or restrict any liability that the Company may have by virtue of the Consumer Protection Act 1987.

12. The proper law of all contracts with the Company shall be English law which shall govern in all respects the construction and effect of such contracts and these conditions. The Customer agrees that in the event of any dispute arising out of the contract or the performance thereof he will submit to the jurisdiction of the English Courts.