(a) These terms and conditions shall override all other terms and conditions inconsistent herewith wherever contained. The Company shall not be bound
by any variation, waiver or addition unless agreed in writing. Orders accepted by the Company may only be cancelled with the Company’s written consent,
and under no circumstances may Goods supplied by the Company be returned to the Company by the Customer.
(b) In these terms and conditions the terms:
"Company" means Control Water Group Limited trading as Control Water Solutions.
“Contract” means the agreement between the Company and the Customer for the sale and purchase of Goods incorporating these terms and conditions.
“Customer” means the person(s) or firm who purchases Goods from the Company.
“Good” means such goods, accessories, spare parts, documents and any other deliverables as set out in the Company’s quotation and to be supplied by the Company to the Customer.
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask work, utility models, domain names and all similar rights and, in each case:
(i) whether registered or not;
(ii) including any applications;
(iii) whether vested, contingent or future;
(iv) in which ever part of the world existing.
“Order” means the Customer’s order for the Goods from the Company either by written or verbal acceptance of the Company’s Quotation for the supply of Goods.
“Quotation” means the Company’s written quotation to the Customer.
Unless previously withdrawn, Quotations are open for acceptance within thirty days only from date thereof and are subject to confirmation at the time of such acceptance.
(a) The price of the Goods is as set out in the Company’s Quotation, unless varied in accordance with clause 3 (b) below.
(b) If Orders are accepted by the Company but it later transpires that the Company has insufficient information to enable it to complete the Orders without further reference to the Customer, the Company shall be at liberty to amend the contract price to cover any increase in cost which takes place after acceptance due to further information being given to the Company.
(c) Any samples submitted must be returned to the Company’s premises, carriage paid within one month from date of despatch, or paid for.
(d) Unless otherwise stated the price quoted is Ex-Works.
4. INSTALLATION AND COMMISSIONING
(a) If the price in a Quotation and/or Orders include installation and/or commissioning work to be undertaken by the Company and due to any condition on site (outside of the Company’s control), the time period for installation and/or commissioning has to be extended, the Company shall be entitled to charge the Customer at the same rate charged for the initial installation and/or commissioning period and recover any other costs that are suffered by the Company as a result of an extension being necessary.
(b) The Customer shall at its own expense, and no later than 4 weeks before the date fixed by the Company for the delivery of the Goods ensure that their site is ready to receive the Goods and that all installation facilities recommended by the Company have been provided.
(c) The Customer will reimburse the Company for any expenses and costs (including the cost of any storage of any Goods) to the Company arising from any non-compliance by the Customer with the recommendations of the Company as to the installation facilities.
5. DRAWINGS ETC.
All specifications, drawings, descriptions and illustrations contained in the Company’s catalogues, price lists, and other advertisement matter are intended merely to present a general idea of the Goods described therein, and none of these shall form part of the contract. Any drawings issued to the Customer before or after acceptance of the order must be treated as confidential and shall be copied or disclosed by the Customer to any person (other than the Customer’s employees) firm or corporation. The said drawings and specifications shall remain the property of the Company and shall be returned on demand. The said descriptions and illustrations shall not constitute a sale by description. The Company does not warrant or guarantee the Goods are fit for any particular purpose unless such purpose has been drawn to the attention of the Company and it has agreed to the same in writing. The Company reserves the right to amend or alter drawings without prior notification.
6. ALTERATION OR CANCELLATION OF ORDER
(a) The Company maybe prepared to accept an urgent Order and start production for the Goods prior to prices being agreed between the Company and the Customer. The Company and the Customer should use best endeavours to agree the price for the Goods as soon as possible, however, the Company reserves the right to hold production until agreement is reached.
(b) If agreement is not reached within 7 days of production halting as provided in sub-clause (a) above, the Customer may elect either that the work continue in accordance with the contract as though such alteration had not been agreed or that all further work cease in which event the Customer shall pay the Company for the work done and also make good any loss suffered by the Company.
7. IMMEDIATE ACTION
Where specific and immediate action is required by the Customer the Company may elect to carry out such work without furnishing its written consent in which event the Customer shall indemnify the Company against all additional costs thereby incurred and for such additional price as shall be agreed between the Company and the Customer or in default of agreement within 14 days after completion of the work as shall be stated in writing to be a fair price by an independent arbitrator whose decision shall be final and binding on
8. WORK SUSPENDED
If work is suspended on the Customers’ instructions or for lack of instructions for a period of 30 days any loss occasioned thereby shall be recovered from the Customer by the Company. If the work is suspended for 30 days the contract may at the sole discretion of the Company be deemed to have been repudiated by the Customer by the service of notice in writing to this effect on the Customer who shall make good any loss suffered by the Company.
9. COMPLETION AND LIABILITY FOR DELAY
Any times quoted for delivery or completion are to date from receipt by the Company of a written order to proceed and of all necessary information and drawings to enable the Company to put the work in hand. While every effort will be made to deliver by the date quoted, time of delivery shall not be the essence.
10. FORCE MAJEURE
If, as a consequence of hostilities (whether ware be declared or not), Act of god, fire, riots, civil commotions, strikes, lockouts, Government regulations or directions, breakdown of plant or shortage of materials or labour, stoppages or restraint of labour from whatever cause, partial or general, or for any other cause whatsoever arising otherwise than by the voluntary act of the Company, the Company shall be unable to fulfil its obligations under the Contract or if the Company be so engaged under Government or priority directions as to prevent or delay work on other orders the Company shall be entitled at its option at any time on notice to the Customer to make partial deliveries only to determine the Contract, without prejudice in any case to rights accrued in respect of deliveries already made.
11. CLAIMS FOR DAMAGE OR SHORTAGE
No claim for damage or shortage of delivery will be entertained by the Company unless the Company is notified thereof in writing within three days of receipt. The Goods in respect of which any such claim is made shall be preserved intact as received from a period of fourteen days within which the time the Company ‘s servants or agents shall have the right to attend and investigate the claim. Any breach of this condition shall disentitle the Customer to any allowance in respect of the claim to which he may otherwise be entitled.
If forwarding instructions sufficient to enable the Company to despatch the Goods are not received within fourteen days after the date of notification that they are ready for despatch, the Customer shall take delivery or arrange for storage, the Company shall be entitled to arrange for the Goods to be stored subject to the following conditions:
(a) That the storage is at the Customer’s risk and the Company shall not be held liable for any loss howsoever arising.
(b) If the Goods are stored on the Company’s premises, it shall be entitled to charge a fee per week equivalent to 5 percent of the purchase price, such fee to be paid monthly in arrears.
The Company’s products are carefully inspected and submitted to the Company’s standard tests. If special test or tests in the presence of the Customer’s representatives are required, these unless otherwise agreed, must be made at the Company’s works and will be charged extra. In the event of any delay on the part of the Customer in attending such test after seven days’ notice that the Company is ready, the tests will proceed in the Customer’s absence, and shall be deemed to have been made in the presence of the Customer.
Any performance figures given by the Company are such as the Company expect to obtain on test. The Company will however accept no liability if those figures are not obtained unless they are specifically guaranteed under an agreed sum, as liquidated damages, and a bonus subject to the recognised tolerances and rejection limits applicable to such figures. The Company is to be given reasonable time and opportunity to comply with the terms of the guarantee before the Customer calls for payment of any sum in respect of such liquidated damages. The Customer shall assume responsibility for the capacity and performance of the Goods being sufficient and suitable for the Customer’s purpose.
15. TERMS OF PAYMENT – TITLE – WARRANTIES
(a) Unless otherwise agreed payments shall be due at the end of the month following that in which the Customer is sent notification by the Company that Goods have been tested under Clause 13 or are ready for despatch. Any liability under these terms and conditions on the part of the Company is subject to payment of the price being made on the due date or before and the entire Customer’s other obligations to the Company under the Contract being served.
(b) The title to all the Goods shall remain vested in the Company until the full purchase price thereof shall have been paid to the Company.
(c) Interest shall be payable by the Customer to the Company on any balance of the purchase price unpaid after 30 days from the due date at the rate of 4% above the base lending rate.
(d) Until title to the Goods has passed to the Customer, the Buyer will:
(i) hold the Goods as bailee for the Company;
(ii) store the Goods separately from all other material in the Company’s possession;
(iii) take all reasonable care of the Goods and keep them in reasonable condition;
(iv) insure that Goods: (i) with a reputable insurer (ii) from the date of delivery (iii) against all risks (iv) for an amount at least equal to the price of the Goods (v) noting the Company’s interest on the policy;
(v) ensure that the Goods are clearly identifiable as belonging to the Company;
(vi) inform the Company as soon as possible if it becomes subject to any of the events set out in clause 17;
(vii) provide the Company such information concerning the Goods as the Company may request from time to time
(e) Notwithstanding clause 15(b), the Customer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clause 17 is or is likely to occur.
(f) If, at any time before title to the Goods has passed to the Customer, the Customer informs the Company, or the Company reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clause 17, the Company may:
(i) require the Customer at the Buyer’s expense to redeliver the Goods to the Company; and
(ii) if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
16. GENERAL LIABILITY
(a) The Company’s liability for any defect in or failure of the Goods or parts thereof (whether subjected to special tests or not) shall be limited to making good by replacement or repair at the Company’s option defects which under proper use and/or storage appear therein and which the Company accept to have arisen solely from the Company’s faulty design, materials or workmanship within a period of 3 years after the original Goods shall have been agreed defective parts must be promptly returned at the Customer’s expense to the Company’s works unless otherwise arrangement. Repaired or replacements parts will be delivered free to the Customer.
(b) In respect of components not manufactured by the Company, the Customer shall receive only such guarantee from the Company (if any) as shall be given by the manufacturer or supplier thereof to the Company.
(c) All visitors by the Company’s Service Engineer are chargeable if failure to the equipment is due to any of the following causes:
(iii) Undue wear and tear
(v) Failure of expendable components.
(d) Where Goods supplied are in accordance with a design provided by the Customer the Company accepts no responsibility that such Goods will operate or are suitable for any purpose.
(e) The Customer will indemnify the Company against all claims, damages, penalties, costs and expenses to which the Company may become liable as a result of work done in accordance with the Customer’s specification and without limiting the generality of the foregoing including all claims, damages, penalties, costs and expenses arising from the alleged infringement of any third party’s Intellectual Property Rights.
(f) The Company does not exclude its liability:
(i) for death or personal injury caused by its negligence; or
(ii) for fraud or fraudulent misrepresentation.
(g) The Company will be liable to the Customer for direct damage to tangible property in an amount which will not exceed £4,000,000 sterling percent of the price for the instalment of Goods concerned per incident or series of related incidents caused by the failure of any Goods in that instalment, as supplied by the Company to the Customer, or applicable liability laws or regulations in force at the date of delivery.
(h) Neither party will be liable for:
(i) loss of data or use;
(ii) any form of indirect, consequential or special loss; or
(iii) any loss or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect, and, in each case, howsoever arising.
(i) Other than the set out above, the Company limits its liability (however arising) in respect of or in connection with the Goods in any instalment, and otherwise connection with this Contract to [200%] of the total price of Goods.
17. DETERMINATION OF CONTRACT
If the Customer shall default in payment or commit a breach of this Contract or of any other of its obligations to the Company, or if any distress or execution shall be levied upon the Customer’s property or assets, or if the Customer shall make or offer to make any arrangement or composition with a creditor or commit any act of Bankruptcy or if any petition or Receiving Order in Bankruptcy shall be present or made against him, or if the Customer shall be a Limited Company and any Resolution or Petition to wind up such Company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a Receiver of such Company’s undertaking property or assets or any part thereof shall be appointed the Company shall have the right forthwith to determine any contract then subsisting, and upon written notice of such determination being posted by him to the Customer’s last know address any subsisting contracts shall be deemed to have been determined without prejudice to any claim or right the Company might otherwise make or exercise
18. NOT SET-OFF
All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge or withholding of any kind now or in the future, impose in any jurisdiction unless a party is compelled by the law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
The parties are independent businesses and not principal and agent, partners, or employer and employee.
If any part of these Conditions is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Conditions and the remaining provisions of the Conditions will otherwise remain in full force.
Notices under this Agreement will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
(i) by first class post; two Business Days after posting;
(ii) by airmail: seven Business Days after posting;
(iii) by hand: on delivery;
(iv) by facsimile: on receipt of a successful transmission report from the correct number; and
(v) by email: on receipt of a delivery or read receipt mail from the correct address.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or
23. RIGHTS OF THIRD PARTIES
This Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
24. ENTIRE AGREEMENT
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
This Contract will bind and benefit each party’s successors and personal representatives.
26. LEGAL CONSTRUCT
This Contract shall be construed in accordance with English Law and disputes will be submitted to the exclusive jurisdiction of the Courts of England and Wales.