Lemac Engineering (UK) Limited

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Lemac Engineering - Terms & Conditions of Sale

1. DEFINITIONS

In these Conditions of Sale, the following terms are Defined as:-

“ The Company” Lemac Engineering.

“ The Customer” Recipient, Person(s) or Company named on Sales Order / Invoice.

“ Goods” As specified on Sales Order / Invoice.

“ Basic Price” The basic price as quoted on Sales Order / Invoice, including any extras on an “Ex-works” basis.

2. GENERAL

( I ) These Conditions:-

(a) Shall apply to any sale of Goods (including future sales) by The Company to the customer;

(b) Embody the entire agreement between the parties and shall apply to the exclusion of any other terms and conditions.

( II ) No variation of these conditions shall be binding on the company, unless confirmed in writing and signed by a Director or Company Secretary. Any variation of any specific condition shall not affect the validity of the other conditions.

( III ) All express or implied warranties, conditions, representations, undertakings or liabilities (including any technical information submitted by the company) whether written or oral, whether imposed by statute, common law, customer or otherwise, are hereby expressly excluded to the extent permitted by law, and The Customer acknowledges that it does not rely on, and waives any claim for breach of any such warranties or representations.

( IV ) Contracts shall in all respects be construed and operated in English and be governed by English law and any actions in connections therewith shall come within the jurisdiction of the Courts of England.

( V ) In these conditions:-

(a) References to any statutory provision shall be construed as a reference to that provision as amended or re-enacted from time to time,

(b) References to the singular, include the plural and vice versa;

3. QUOTATIONS

( I ) The basic price shall constitute an offer price for acceptance up to 30 days from the date of quotation, or in the event of the same not being dated, from the date the same shall have been posted to the customer.

( II ) Whether or not expressly stated, all orders are subject to payment by The Customer of any taxes or levies imposed by any government or authority applicable at the place and time of delivery including V.A.T.

( III ) If the quotation at the basic price is not accepted within the period specified above, then The Company reserves the right:-

(a) To alter any price quoted, and in the event of alteration, the basic price shall be that ruling at the time of delivery;

(b) In the event of a manufacture making any alteration, in the design or specification, of the Goods, or any of them (provided that such alteration does not render the goods incompatible with the equipment for which they have been ordered), to deliver the goods, conforming to the altered design or specification, which shall be accepted in fulfilment of any order.

(c) Notwithstanding delivery of, and/or payment for, the Goods, The Company shall be entitled to vary the price of The Goods in the event of any manifest error and substitute therefore the correct price list.

4. FULFILMENT OF ORDERS

( I ) Although every endeavour will be made to effect delivery by the date agreed, time is not of the essence, and The Company makes no representation that delivery of goods ordered, will be made by any particular date. The Company shall not be liable to the customer for any non-delivery or delay (from whatever cause) nor any damage or consequential loss arising thereof.

( II ) The goods shall be collected by The Customer, from the premises of the company within 7-days, of The Customer being notified, that the goods are available for collection. In the event of The Company agreeing to deliver The Goods to The Customer, such deliveries shall be made at the expense and risk of The Customer.

( III ) If The Customer does not collect the Goods within the period of 7-days, or agree alternative arrangements within the that allotted time, The Company reserves the right to:-

(a) Reallocate the same to another purchaser (having giving less than 72-hours notice in writing to The Customer of such intention) and to charge The Customer for any loss or expense involved, including the cost of any necessary modification; and/or:-

(b) Charge The Customer storage charges until either the goods are collected by The customer or reallocated (and if the customer has paid a deposit on account of the basic price, then such a deposit, may be used by The Company, to defray the costs and charges of reallocation and/or storage, and any balance shall be held to the account of The Customer.

( IV ) Any data concerning weights shall not be binding on The Company.

( V ) All goods shall be delivered unpacked and not protected against corrosion. The Company reserves the right to package the goods at the cost of The Customer if deemed necessary to The Company, to ensure safe transit.

( VI ) In the event of The Company being delayed in the completion of its obligations under this agreement, as a result of Industrial Action, Shortage of Materials, Force Majeur or any cause beyond its control, the time for delivery shall be extended by such reasonable time as The Company has been delayed.

5. PAYMENT & PRICE

( I ) The contract price is based on the costs of Material, Labour and Transport and on conforming to statutory obligations ruling at the date of quotation.

( II ) The contract price shall be as follows;-

(a) Where payments are stipulated to be paid by instalments, upon a certain stage being reached and upon the dates so stipulated; or,

(b) Where credit terms have been agreed in writing prior to delivery, payment shall be for The Goods in accordance with such terms; or,

(c) In any other case, either (as The Company shall elect) before the goods leave The Company premises or within 30 days of the date of invoice for the Goods.

( III ) In the event of payment being made by Cheque or by a Third Party, payment shall not be deemed to have been received until cheques have been cleared or the cash being received from the Third Party.

( IV ) If The Customer fails to make payment when due, the amount unpaid shall carry interest at the rate of 3% per month from the date of delivery of the goods in accordance with these conditions, until the date actually received, and as well before, as after any judgement .

( V ) Where the Goods are to be supplied or paid by instalments, The Customer’s failure to pay punctually, any instalment in due time shall entitle The Company to treat such failures as a repudiation by The Customer of the whole contract and to recover damages for such breach of contract and to cease to perform any obligations on The Company’s part under this contract.

6. ACCEPTANCE & DELIVERY

( I ) The Goods shall be deemed to have been delivered to The Customer forthwith after they have left the premises of The Company and unless otherwise specified, The Company shall not be responsible thereafter for off-loading the Goods or any costs thereby incurred.

( II ) The Customer shall examine the Goods within 24-Hours after arrival, at the destination specified, in any Delivery Note in respect of the Goods addressed to The Customer and at the expiration of such period, The Customer will be deemed to have accepted the Goods.

( III ) Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by The Company to deliver any one or more of the instalments, in accordance with these conditions, or any claim in respect of any one or more instalments, shall not entitle The Customer to treat the contract as a whole as repudiated.

7. NON-DELIVERY OR DAMAGE IN COURSE OF TRANSIT

( I ) This condition only applies where the contract includes delivery of the Goods by The Company.

( II ) The Company will advise The Customer of the manner of carriage, the name of the carrier and any unusual conditions of carriage and such other information as The Customer shall reasonably require.

( III ) In the event of non-delivery, short delivery or damage in transit, The Customer shall give notice to The Company in such time and together with such information as may be necessary to preserve The Company right of recourse against the carrier.

( IV ) The Customer shall be deemed to be familiar with the time limits and information requirements and all common conditions of carriage.

( V ) If The Customer shall fail to give notice in accordance with this condition, it shall be deemed to have waived all rights of claim against The Company and/or its agents.

8. WARRANTY & LIABILITY

( I ) Where the Goods supplied by The Company have not been manufactured by The Company, The Company warrants only that it will (to the fullest extent permitted by law) assign the benefit of any guarantee from the manufacturer or the Goods to The Customer.

( II ) Notice of any claim under any guarantee referred to in Clause 8 ( I ), shall be given strictly in accordance with the time limits specified therein. If The Company agrees to consider any claim pursuant, to the terms of such guarantee, or to assist in negotiations with the Manufacturer of The Goods, then it shall do without any obligation on its part and shall enter into such negotiation, at its own free will and for so long as it considers (in its absolute discretion) it is reasonable to do so.

( III ) Where the Goods supplied by The Company have been newly Manufactured and Sold as such by The Company:-

(a) The Company warrants that the Goods will be reasonably fit, for the purpose for which they are manufactured, or for any particular purpose indicated to The Company by The Customer in writing. Newly manufactured Goods are covered for a period of 12-Months, Second-Hand or Refurbished Goods are excluded from warranty unless otherwise agreed by The Company.

(b) The above warranty is given by The Company subject to the following conditions:-

(aa) The Company shall be under no liability, in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow The Company’s instruction (whether oral or in writing), misuse or alteration including repair of the Goods without The Company’s approval.

(bb) The Company shall be under no liability, in respect of any defect in the Goods arising from any drawing design or specifications supplied by The Customer.

(cc) The Company shall be under no liability under the above warranty (includes any other warranty, condition or guarantee), if the Goods have not been paid in full, by the due-date required for payment.

(dd) The Customer shall within 48-Hours of the arrival of each delivery of the Goods at The Customer premises, notify The Company in writing, of any defect by reason of which The Customer alleges that the Goods delivered are not reasonably fit for their purpose and which should be apparent upon reasonable inspection.

( IV ) Save where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statue or common law are excluded to the fullest extent permitted by law.

( V ) Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions Restrictions on Statements Order 1976) the statutory rights of the consumer are not affected by these terms and conditions.

( VI ) Except in respect of death or personal injury caused by The Company’s negligence, the company shall not be liable to The Customer by reason of any representation or any implied warranty conditional of the term or any duty of common law or under the expressed terms of contract for any consequential loss or damage (whether for loss of property or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of The Company, ex-employees, agents or otherwise) which arise out of or in connection with the supply of Goods or their use of re-sale by the customer.

9. PART EXCHANGE

( I ) This clause applies where The Customers items are offered as part payment for The Company’s Goods on a Part-Exchange basis.

( II ) The price offered by The Company for the purpose of the part exchanged Goods may be revised if in the unfettered opinion of The Company there is any material change between the date of inspection by The Company and the date of delivery to The Company, and if such amended price is not accepted by The Customer within 36-Hours (time being of the essence), The Company (but not The Customer) may forthwith rescind the contract for the sale and purchase of the part exchanged goods without being liable for damages to The Customer.

( III ) Save as otherwise expressly notified in writing to The Company by The Customer prior to the date hereof The Customer warrants:-

(a) That part exchanged Goods were purchased as new by The Customer, are its own unencumbered property and are in good repair, order and condition of merchantable quality;

(b) That all information, whether oral or in writing to The Company by, or on behalf of the Customer, is true and accurate in all respects.

( IV ) Without prejudice to the provision of Clause 9 ( III ), if The Company shall purchase the part exchanged Goods and they are subject to any charge or encumbrance, or deemed not to be the property of The Customer, such purchase shall be made subject to the consent of the owner, chargee or encumbrancer and The Company shall be entitled to deduct from the purchase price thereof such sum as will discharge the rights of the owner chargee or encumbrancer therein provided always that if such sum exceeds the purchase of the part exchanged Goods, The Company (but not The Customer) shall be entitled forthwith, to terminate the contract hereby made for the purchase of the part exchanged Goods without thereby being liable for damages to The Customer.

( V ) Risk in the part exchanged Goods shall pass on delivery to The Company and delivery shall be deemed to have taken place after The Company has had time to make a reasonable inspection of the part exchanged Goods after the same time have been handed over by The Customer to The Company at the premises of The Company.

( VI ) Property of the part exchanged goods shall pass to The Company after the same have been handed over by The Customer to The Company and not withstanding that delivery, as set out in Clause 9 ( V ) , shall not have taken place.

10. REPAIR OF GOODS

( I ) The provision of this clause applies where The Company carries out repairs to any Goods:-

(a) Owned by or ostensibly in the possession of The Customer and so that unless otherwise expressly stated in this clause, the remaining conditions hereof shall not apply to such contract.

(b) In this clause, the expression of The Customer shall include an insurer who is liable to indemnify The Customer wholly or in part for the cost of the repairs to be effected hereunder and The Customer shall be deemed to have irrevocably authorised such insurer to act as his agent for all purposes in connection with this contract.

( II ) Any estimate given by The Company,

(a) Is provisional, and not binding upon The Company.

(b) Where possible The company shall seek the authority of The Customer before carrying out any work (including washing and cleaning) involving a substantial divergence from any estimate given but subject thereto has the right to carry out such extra work being incidental to the work described in the estimate as The Company may deem necessary.

(c) The Company reserves the right to increase the price estimated in the event of increases in the cost of labour, or spare parts, between the date of any estimate and the date of carrying out the repairs or the acquisition of the spare parts.

(d) Prices quoted for repair work are on the assumption that any scrap parts removed during repair work shall become the property of The Company. If the Customer requires the old parts returned, it must request returns in writing prior to commencement of repairs and consequently, The Company reserves the right to increase the price accordingly.

(e) Time shall not be of the essence in any contracts for repair and The Company will not be liable to The Customer for any loss or damage whatsoever caused by any delay in carrying out the repairs.

( III ) Unless The Company otherwise expressly agrees, payment shall be due forthwith upon The Customer being notified by The Company that repairs have been completed.

(a) However, The Company may request from The Customer payment on account of any spare parts to be purchased or work done by The Company to the date of such request, and in the event of non-payment, The Company shall be entitled to cease further repair work and to suspend the ordering of any spare parts to complete such repair work.

(b) If any payment to be made hereunder is overdue, The Customer shall pay interest thereon (both before and after judgement) on the amount unpaid at the rate of 3% per month,, from the date payment was due to the date of payment, and/or the cost of storing the Goods on a day-to-day basis at an appropriate daily storage rate, for so long as the Goods remain on The Company premises.

(c) The Company until payment of its charges retain the Goods under repair pursuant to a lien for charges and if payment having become due remains unpaid for 30 days or more, The Company may sell-on the Goods under repair without further notice to The Customer (in whatever manner and for the best price reasonably obtainable in The Company’s absolute discretion, in order to recoup any loss) shall account to The Customer for any surplus of the proceeds of sale thereof after deducting the costs of repairs, interest and storage charges as aforesaid, including the costs of and incidental to the sale reasonably incurred by The Company.

( IV ) All Goods for repair shall be at the risk of The Customer whilst in The Company’s possession, in the course of, or in connection with the repairs. The Company shall not be liable for any loss or damage to the Goods whilst on its premises from whatever cause including negligence.

( V ) The Company warrants:

(a) That repairs carried out by it shall be free from defects in workmanship at the time of delivery.

(b) The Customer shall have the benefit of any warranty or guarantee given the manufacturer of any component parts or materials used by The Company in any repair, but subject to such manufacturers conditions of sale.

(c) Save as foresaid all conditions and warranties expressed or implied are excluded to the fullest extent permitted by law and The Company shall not be liable to The Customer:-

(aa) For any consequential loss or damage suffered by The Customer and whether arising from any neglect or failure by The Company to carry out the repairs or any of them or howsoever other arising; and/or:

(bb) Any loss or damage suffered by The Customer (other than indirect or consequential damage) arising out of any wilful neglect or default on the part of The Company in carrying out the repairs; and/or:

(cc) For any loss in excess of the price payable by The Customer for the repairs carried out by The Company in respect of any loss or damage suffered by The Customer (other than consequential loss or damage) as a result of the loss or default of by The Company to carry out repairs in a good and workmanlike manner having regard to the terms hereof.

11. INSOLVENCY OF CUSTOMER

( I ) This clause applies if :-

(a) The Customer makes any involuntary arrangements with its creditors or become subject to any administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise for the purposes of amalgamation or reconstruction) or,

(b) An encumbrancer takes possession, or an administrative receiver is appointed, of any property, assets or undertaking The Customer; or,

The Company reasonably apprehends that any of the events mentioned above, is about to occur in relation to The customer and notifies The Customer accordingly.

( II ) If this clause applies, then without prejudice to any 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 liability to the company and if the Goods have been delivered but not paid for, the prices shall become immediately due and payable notwithstanding any previous agreement or agreements to the contrary.

12. RISK AND TITLE

( I ) Risk of loss of or damage to the Goods shall pass to The Customer from the time of delivery.

( II ) Notwithstanding delivery and the passing of risk in the Goods or another provision of these conditions the Title of the Goods, shall not pass to The Customer until The Company has received (in cash or cleared funds) payment in full of the price for the Goods and all other outstanding debts owed to The Company by The Customer under any other contracts between them.

( III ) Until such time as the Title and the Goods pass to The Customer,

(a) The Customer shall hold the Goods as a fiduciary agent of The Company and bailee and shall keep the Goods separate, apart from its own property and those of any third parties, and shall keep them properly stored, protected, insured and clearly identified as The Company’s property.

(b) Until that time The Customer shall be entitled to re-sell or use the Goods in the ordinary course of its business but shall be accountable to The Company for the proceeds and The Customer shall keep all such proceeds separate from any monies or property of its own and any third party.

(c) Any contract or arrangement entered into by The Customer for the sale or use of the Goods pursuant to these conditions, should be entered into by The Customer as principal and The customer has no authority to enter into any contract or arrangement on behalf of The Company.

(d) The power of sale and use hereby granted may be revoked by The Company at any time upon notice to The Customer.

(e) The power of sale and use hereby granted shall forthwith cease and determine if a receiver or administrative receiver is appointed over any of the assets or undertakings of The Company, or if an administrator is appointed; The Company resolves to go into voluntary liquidation (otherwise for the purposes of reconstruction or amalgamation); a winding up order is made against The Customer; if it enters into any voluntary arrangements to pay or compound its creditors, or in the case of an individual partnership a bankrupt order is made against it.

(f) Upon the determination of the power of sale or use hereby granted, The Company shall be entitled at any time to require The Customer to deliver up the Goods to The Company and if it fails to do so forthwith, The Company shall be entitled to enter upon any premises of The Customers for the sole purpose of removing the Goods.

( IV ) The Customer shall not be entitled to pledge or any way charge by way of security for any indebtness of any of the Goods which remain the property of The Company.

( V ) Paragraphs ( I ) and ( II ) and each of sub-paragraphs ( III ) and paragraph ( IV ) of this clause, shall constitute a separate agreement between The Company and The Customer.

13. NOTICES

Notices required to be given hereunder shall be in writing and may be sent by Letter, Telex, E-mail or facsimile transmission. Any notice served by letter shall have deemed to be received by the addressee 24-Hours after posting in the case of a letter being sent by First-Class Mail and 48-Hours after posting in the case of Second-Class Mail. A facsimile transmission shall be deemed served the day after sending.

14. EFFECTIVENESS

These conditions shall be effective from 1^st September 1991.

Terms & Conditions

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