1 Agreed Terms and Interpretation
1.1 In this Agreement (unless the context requires otherwise) the following words shall have the following meanings:
“Agreement” means these terms and conditions and the use of these defined terms;
“the Company” means COUNTER PRODUCTION LIMITED of Red Kite Works, Watlington Industrial Estate, Cuxham Road, Watlington, OX49 5LU, with registered company Number: 04088860.
”the Buyer” means the persons, firm or company ordering the Goods.
”the Goods” means the items sold by the Company to the Buyer and listed on the Company’s invoice.
“Pro Forma” means the invoice rendered by the Company for the payment of a deposit towards the purchase of the Goods.
2 Terms of Sale
2.1 The Buyer wishes to purchase the Goods from the Company, and the Company shall supply the Goods in accordance with this Agreement.
3 Order Placement
3.1 The Buyer shall place an order based upon a quotation provided by the Company, and the Company shall confirm its acceptance of such orders in writing before it becomes binding on the parties.
3.2 Unless previously amended or withdrawn the Company’s quotation is open for acceptance for the period stated therein or where no period is stated for 30 days after the date thereof. The Company’s quotation is not an offer but merely an invitation to the Buyer to make an order for Goods under this Agreement.
4 Quality of Goods
4.1 The Company warrants that the Goods supplied by it hereunder will be substantially free from defects in labour and materials at the time of delivery. Should any of the Goods prove to the Company’s reasonable satisfaction to be defective in either respect the Company shall accept redelivery thereof and shall, at its own cost and as the Buyer’s sole remedy, replace or rectify the same as may be appropriate.
4.2 Any defects must be notified or confirmed to the Company in writing within 7 days of delivery. Should the Buyer fail to give such notification to the Company within 7 days of delivery the Goods shall be deemed to be accepted and the Company will not accept liability for any of the defects complained of.
5.1 Unless otherwise stated, the quotations do not include VAT, but are inclusive of delivery charges, which shall be calculated depending on the delivery destination and communicated to the Buyer at the time of order confirmation, together with the estimated delivery date. Should the delivery destination change, then the Company shall be entitled to revise its delivery costs. Delivery, fitting and templating costs shall be shown as separate items in any quotations provided.
5.2 The Company reserves the right to reasonably amend the price for any order if the costs of materials or labour change beyond the Company’s reasonable control.
6.1 Unless otherwise agreed by the Company, the Buyer shall pay a 50% deposit of the full value of the order including VAT and any delivery charges upon confirmation of the order.
6.2 The Company will, at the time of written confirmation of any order, provide a Pro Forma stating the exact amount of the deposit payment if required. The Company shall not be required to commence fulfilment of the Buyer’s order until any required payment of the Pro Forma is received in cleared funds.
6.3 The Company reserves the right to require full payment of the total amount due under this Agreement in cleared funds prior to delivery of the Goods, subject to the Company giving the Buyer no less than 7 days written notice prior to the estimated delivery date.
6.4 Except where the Company exercises its rights under Clause 6.3, the Company shall invoice the Buyer for the price of Goods (together with VAT and delivery) on delivery, and payment on the invoice shall be made no later than 30 days from the date of invoice. Any invoice shall include any VAT, delivery costs and take into account any Pro Forma payments and discounts specified in the Company’s original quotation.
6.5 Any payment by the Buyer shall be made by cheque, debit card, BACS transfer, or by credit card (which shall incur a 2.5% surcharge). Any payment by cheque will require at least 5 working days for the payment to clear before payment will be deemed to have been made.
7 Late Payment or Non-payment of Deposit or Invoiced Sums
7.1 If any payment due to the Company from the Buyer is not received in cleared funds by its due date, the Company (without prejudice to its other rights) reserves the right to:
7.1.1 to charge interest on overdue amounts at the rate per annum of 4% above Lloyd’s Bank Plc lending rate ruling on the last date on which payment must be made, until such overdue amounts and any accrued interest is paid;
7.1.2 suspend all deliveries under any contract to the Buyer for so long as the default continues;
7.1.3 to serve notice on the Buyer that if sums due under this Agreement are not paid within 14 days, the Company shall be entitled to terminate this Agreement in accordance with Clause 10; or
7.1.4 take any other reasonable measures it sees fit including seeking Court relief to prevent the Buyer dealing in the Goods, or seeking an judgement against the Buyer.
8.1 Unless otherwise specified in the quotation, delivery shall take place when the Goods are delivered to the Buyers premises, or to such other premises as shall be stipulated in the order form, and the Buyer shall be responsible for making all necessary arrangements to ensure that delivery can take place at the designated date and location.
8.2 Estimates of delivery dates and times are to be regarded as approximate only and the Company accepts no liability for any loss, damage or expenses arising from any delay in delivery of goods. Any delay due to circumstances outside the control of the Company shall not entitle the Buyer to cancel any order or refuse to accept delivery.
8.3 If by reason of the Buyer’s default this Agreement, the Goods are not taken up by the Buyer by the estimated delivery date, the Company may, at its sole discretion, store the Goods at the Buyer’s own risk and expense for a period of no more than 30 days, after which time it shall be entitled to sell or dispose of the Goods, without prejudicing any claim to receive compensation from the Buyer for any loss or damage suffered.
8.4 The ownership of Goods supplied under this Agreement will only pass to the Buyer when all monies owed to the Company have been paid in full. Until title passes to the Buyer, the Goods will remain the Company’s property and the Buyer shall store and mark the Goods in such a manner that they shall be readily identifiable as Goods which are the property of the Company, and the Buyer shall fully indemnify the Company for any damage or loss caused to the Goods whilst in the Buyer’s custody.
8.5 If the Buyer sells any Goods which remain the Company’s property, the proceeds of resale and/or the claims to such proceeds shall at all times be held on trust for the Company and the Buyer shall pay all such proceeds into a bank account separate from all other monies and the Company shall account to the Buyer for any sums in excess of the price of the Goods and other sums payable under this contact.
8.6 For the avoidance of doubt, risk shall pass when the Goods are delivered to the Buyer.
9.1 Once an order is placed and confirmed by the Company, it may not be cancelled by the Buyer without the written consent of the Company. All orders are custom made and bespoke, and any cancellation will be subject to restocking charges for materials ordered on your behalf, and payment for any work that has already been undertaken prior to any notice of cancellation becoming effective.
9.2 Orders by e mail, fax or telephone are accepted only at the Buyer’s own risk and are also subject to the cancellation provisions set out in this clause 9.
10.1 Without prejudice to its other rights, the Company may terminate this Agreement with immediate effect without notice and without any liability to pay any remuneration, compensation or damages if at any time:
10.1.1 the Buyer commits any serious or repeated breach or non-observance of any of the provisions of this Agreement;
10.1.2 the Buyer is subject to bankruptcy proceedings, declared bankrupt, makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order is made or an administrator or receiver is appointed in relation to the Company; or
10.1.3 on any other event or default of any nature whatsoever which would cause the Company reasonably to consider that it is unlikely to be paid in full for the Goods by the Buyer in accordance with this Agreement.
10.1.4 if a Force Majeure Event occurs and persists for a period lasting no less than 14 days.
11 Consequences of Termination
11.1 Upon notice of termination being given, all Goods that remain the property of the Company shall forthwith be redelivered to the Company at the Buyer’s risk and expense and for the purpose of taking possession of such Goods, the Buyer, for itself, its administrators, receivers, managers, liquidators or trustees in bankruptcy hereby grant to the Company an irrevocable licence to enter its premises for the purpose of taking possession or repossession of the Goods.
11.2 The Company, as the party with title to the Goods, shall be fully entitled to sell any Goods it repossesses from the Buyer, and to retain all proceeds of sale, and to claim any shortfall between the proceeds and the total amount due from the Buyer.
12 Limitation of Liability
12.1 Nothing in this Agreement shall limit the liability of either party for any personal injury or death caused by negligence, or for fraudulent misrepresentation.
12.2 Save as expressly provided in this clause 6, the Company hereby excludes all liability of whatsoever nature for any direct, indirect and consequential loss or damage sustained by the Buyer arising from or connected to:
12.2.1 The Goods suffering from substantially defective workmanship, quality or materials;
12.2.2 Any act or omission of the Company, its employees, permitted agents or sub-contractors in supplying, delivering and/or installing the Goods.
12.2.3 Any act or omission of the Company, its employees, permitted agents or sub-contractors in connection with the provision of the Goods;
12.2.4 Any infringement or alleged infringement of any intellectual property rights by the use, manufacture or supply of the Goods or performance of the Services;
12.2.5 Any claim made against Buyer in respect of any liability, loss, damage, injury, cost or expense sustained by Buyer’s employees or agents or by any Buyer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods or the Services.
12.2.6 Any breach of these terms and conditions by the Company.
12.3 Nothing in this Agreement shall limit or exclude the statutory rights of a Buyer who is dealing as a consumer.
12.4 The terms of this Clause 12 shall survive the termination of this Agreement.
13 Force Majuere
13.1 The Company shall not be liable to the Customer for any delay in performing or failure to perform any of its obligations under this contract which occurs as a result of circumstances beyond a party’s reasonable control (a Force Majeure Event) including (but not limited to) terrorist attacks, riots, fire, explosion, accidental damage, adverse weather conditions, power failures, or non-availability of any third party supplies and equipment.
14.1 Any notice given under this Agreement shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally, or sending it by pre-paid recorded delivery or registered post to the relevant party at its registered office for the time being. Any such notice shall be deemed to have been received:
14.1.1 if delivered personally, at the time of delivery;
14.1.2 in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting.
14.2 In proving such service it shall be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant party and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post.
15 Entire Agreement
15.1 The Buyer accepts that this Agreement shall apply to all legal relations between himself and the Company to the exclusion of any other terms including any conditions warranties or representations, written or oral, express or implied even if contained within any of the Buyers documents which purport to provide that the Buyers own terms shall prevail.
15.2 Each of the parties acknowledges that it is not relying on any statements, warranties or representations given or made by either of them in relation to the subject matter hereof, save those expressly set out in this Agreement and any documents referred to in this Agreement, and that it shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement (and the documents executed at the same time as it or referred to in it) save to the extent that they arise out of the fraud or fraudulent misrepresentation of any party.
16.1 No variation of this Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
16.2 In the event that an order, which has been placed and accepted, (but prior to delivery) requires any changes or amendments, then the parties shall agree the change in writing, and any corresponding change in price, if applicable, before the change is effective and binding.
17 Third Party Rights
17.1 The Agreements (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no person other than the Company and the Buyer shall have any rights under it.
18 Applicable Law and Jurisdiction
18.1 English law governs this Agreement. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England & Wales over any claim or matter arising out of or in connection with this Agreement.