In these conditions of sale (“the Conditions”), unless the context requires otherwise:
“Supplier” means Engines Plus Limited (Company number 7100586) whose registered office is at Unit F, The Aquarius Centre, Edison Close, Waterwells Business Park, Quedgeley, Glos, GL2 2FN
“Buyer” means the company, firm, body or person purchasing the Goods and/or Services
“Goods” means the goods which the Supplier is to supply in accordance with these Conditions
“Order” means purchase order in respect of the Goods and/or Services issued by the Buyer to the Supplier
1.1 These conditions shall be incorporated into each contract (“the Contract”) for the supply of Goods and/or Services by the Supplier. The Contract will be subject to these Conditions alone. All items and conditions appearing or referred to in and Order or otherwise stipulated by the Buyer shall have no effect.
1.2 Any variation of the Contract must be expressly agreed in writing and signed by the Supplier’s duly authorised representative.
1.3 Any description contained in the suppliers samples, price lists or other advertising material (including websites) is intended merely to present a general picture of the supplier’s Goods and shall not form a representation or be part of the Contract.
1.4 Where Goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery.
2.1 The Supplier shall, prior to delivery, be entitled at its discretion to substitute for the Goods forming the subject of the Order similar goods from the same or alternative source provided that the alternative goods shall be of equivalent or better quality.
3.1Packaging of the Goods shall be at the discretion of the Supplier which shall have the right to pack the Goods in such manner and with such materials and in such quantities as it in its absolute discretion thinks fit.
4.1 All prices shall be as stated by the Supplier.
4.2 All prices shall be subject to variation at the sole discretion of the Supplier at any time without prior notice. The Supplier shall use all reasonable endeavours to notify the Buyer of any variation before delivery of the goods.
4.3 Where the price of the goods is varied in accordance with clause 4.2 the price as varied shall be binding on both parties.
4.4 There shall be added to the price for the Goods or Services any value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods (whether initially charged on or payable by the Supplier or the Buyer)
4.5 All prices are given by the Seller on an ex-works price, unless otherwise agreed in writing between the Supplier and the Buyer
5 Terms of Payment
5.1 Subject to any special credit arrangements agreed in writing between the Supplier and the Buyer, provisions of Paragraph 5. 2 shall apply to the order. Where specific credit arrangements have been made failure to pay by the date or dates specified in such credit arrangements will entitle the Company to cancel immediately such specific credit arrangements and Paragraph 5.2 hereof shall thereupon apply to the order.
5.2 Payment shall be made in full when goods are ready for despatch and before delivery. Where more than one item on the order, payment for each shall be made when each is ready for despatch. We expressly reserve the right to call for deposits on account of the contract price at any time before delivery.
5.3 If the Buyer fails to make payment on the due date, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
5.3.1 cancel the Contract or suspend any further deliveries under the Contract or any other contract so long as the default continues and/or;
5.3.2 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of five percent above the base rate of the HSBC UK Bank PLC from time to time in force calculated on a daily basis until payment in full is made and/or
5.3.3 withdraw or cancel immediately any discount or prompt payment discount which has been agreed with or has been granted to the Buyer or to which the Buyer is entitled and debit the Buyers account accordingly.
6 Delivery and Completion Dates
6.1 Delivery shall take place when the Goods are despatched from the Suppliers premises;
6.1.1 if the Buyer collects or arranges collection of the goods from the Supplier’s premises or nominates a carrier for the Goods, delivery shall take place when the Goods are loaded on to the collection or carrier’s vehicle.
6.1.2 if the goods are ready to be despatched from the premises of the Supplier to the Buyer and the Buyer has failed or refused to provide the Supplier with detailed delivery instructions and/or the place for delivery has not been agreed in writing by the Supplier the delivery shall take place when the Supplier has notified the Buyer that it is awaiting specific delivery instructions and/or that the place for delivery has not yet been agreed.
6.2 The Supplier will use its reasonable endeavours to complete delivery or performance on or before dates requested by the Buyer but will not be liable in any circumstances for the consequences of any delay in delivery or failure to deliver.
6.3 The seller may deliver by instalments in such quantities as it may reasonably decide; such instalments shall be separate obligations and no breach in respect of one or more of them shall entitle the Buyer to cancel any subsequent instalments or repudiate this contract as a whole.
6.4 The Buyer shall accept immediate delivery or arrange to collect the goods or arrange suitable storage, failing which the Supplier may either:-
6.3.1 effect delivery by whatever means it thinks fit or appropriate; or
6.3.2 arrange storage at the Buyers risk and expense pending delivery; or
6.4.3 resell or otherwise dispose of the Goods without prejudice to any other rights the Supplier may have against the Buyer to breach of contract or otherwise.
6.5 Where the Contract provides for delivery by instalments each instalment shall constitute a separate contract and any delay, failure or defect in any one or more instalments delivered shall not entitle the Buyer to reject or cancel delivery of any further instalment of the Contract or any other order from the Buyer or to repudiate the Contract.
6.6 The quantity of the Goods delivered under the Contract shall be stated on the invoice and checked by the Supplier prior to despatch from the Supplier’s premises and the stated quantity on the invoice shall be accepted by the Buyer as conclusive evidence of the quantity delivered.
7 Examination; Return of Goods
7.1 The Buyer shall examine the goods upon delivery and the Buyer shall;
7.1.1 notify the Supplier and the carrier where relevant within 24 hours of the delivery time notified by the Supplier of non-delivery or short delivery
7.1.2 notify in writing the Supplier and the carrier where relevant within 3 working days of such delivery or receipt of any apparent damage or defect.
7.2 Notification under 7.1.1 shall be first made by telephone then by notice in writing delivered by e-mail, with a e-mail receipt or by first class recorded delivery mail and addressed to Engines Plus Limited:
Attention Customer Services
Address Unit F, The Aquarius Centre, Edison Close, Waterwells Business Park, Quedgeley, Glos, GL2 2FN
Telephone 01452 729707
7.3 The Buyer shall comply with the carrier’s rules, regulations and requirements so as, when appropriate, to enable the Supplier to make a claim against the carrier in respect of any damage or loss in transit.
7.4 In default of notification pursuant to the provisions of this Condition 7, subject to any claim which the Buyer may have under Condition 8, the Supplier shall be deemed conclusively to have properly performed its obligations under the Contract.
7.5 The Supplier shall be under no obligation to accept the return of Goods except in accordance with Conditions 7.1.2, 8 and 10.
7.6 The return of Goods for any other reasons shall require the Supplier’s prior written consent which consent shall be in its absolute discretion. The Supplier will, however, give consideration to requests for return which are;
7.6.1 in its opinion are of a bona fide nature; and
7.6.2 made within three working days of delivery; and
7.6.3 relate to unused and undamaged Goods; and
7.6.4 relate to Goods which do not require specialised storage; and
7.6.5 in respect of Goods specifically identified by a shipment number.
7.7 Goods which are accepted for return by the Supplier pursuant to Condition 7.6 shall be accompanied by a return note quoting:
7.7.1 The Buyer’s name and address
7.7.2 The quantity and complete description of the Goods returned;
7.7.3 The Buyers shipment note number; and
7.7.4 The reason for return.
The Supplier reserves the right to levy a handling charge if goods are accepted for return under this clause
8 Warranty; Limit of Responsibility
8.1 The Supplier warrants (the “Warranty”) that the Goods (excluding spare parts) will correspond with their specification at the time of delivery and will be reasonable free from defects in design, material or workmanship for a period ending 12 months from the date of delivery of the Goods (the “Warranty Period”) provided that the Buyer has given the Supplier written notice and satisfactory proof of such defect within the Warranty Period. Warranty periods may be extended, please refer to the individual products warranty information.
8.2 The Suppliers obligations to the Buyer under 8.1 shall not apply:
8.2.1 to damage caused by the Buyer’s or any third party’s act, default or misuse of the Goods or by failure to follow any instructions supplied with the Goods;
8.2.2 if the Goods have been stored, handled or applied in a way that damage is likely to occur;
8.2.3 if the Goods are altered, modified or repaired by any person other than the Supplier or any person who has been expressly nominated or approved in writing by the Supplier;
8.2.4if the Buyer shall not have paid by the due date for payment for all Goods supplied under the Contract or under any other contract between the Supplier and the Buyer;
8.2.5 in respect of any defect in the Goods arising from any free issue materials
8.3 Subject as expressly provided in 8.1 and 8.2 and except 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 any other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Subject to 8.2 above, where any valid claim in respect of the Goods which is based on any defect in the quality or condition of the Goods is notified to and accepted by the Supplier in accordance with these Conditions the Supplier shall be entitled to replace the Goods free of charge, or, at the Supplier’s sole discretion, refund to the Buyer, the price of the Goods (or a proportionate part of the price) but the Supplier shall have no further liability to the Buyer.
8.5 Save for death or personal injury arising from the Suppliers negligence and liability arising under the Consumer Protection Act 1987 (which if proved is not excluded) the Supplier’s option to repair, replace or refund as aforesaid shall constitute the full extent of the Supplier’s liability in respect of any loss or damage sustained by the Buyer (whether caused by any breach of the Contract or by misrepresentation (unless fraudulent) or by the negligence of the Supplier, its employees or agents or arising from any other cause whatsoever) and the Supplier shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct or consequential (including loss of profits) suffered by the Buyer arising therefrom.
8.6 The cost to the Supplier of and incidental to the return by the Buyer to the Supplier of any Goods delivered hereunder shall, except to the extent that the Supplier has accepted responsibility hereunder, be the responsibility of the Buyer who shall indemnify the Supplier against any such costs, but without limitation to the generality of foregoing costs of transport and testing or any other costs or loss to the Supplier arising therefrom.
8.7 Notwithstanding sub-clause 8.5 above the Buyer shall, except where he is a person who suffers personal injury or death or loss or damage to property such as to give rise to a claim under the Consumer Protection Act 1987, indemnify the Supplier against all loss, damage, liability, legal fees and costs arising from any such claim made against the Supplier under the Consumer Protection Act 1987.
838 Save for the liability for death or personal injury arising from the Supplier’s negligence and for liability arising under the Consumer Protection Act 1987 (which is proved but not excluded), the maximum liability of the Supplier under or in connection with the Contract shall not exceed the price of the Goods.
9 Title to Goods
9.1 Unless the contact otherwise stipulates, risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery of the Goods in accordance with Condition 6 above, or if the Buyer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods and the Goods should be insured by the Buyer accordingly.
9.2 Notwithstanding that risk in the Goods shall pass to the Buyer in accordance with Condition 9.1, legal and beneficial ownership of the Goods shall remain with the Supplier until payment in full has been received by the Supplier;
9.2.1 for those Goods
9.2.2 for any other Goods supplied by the Supplier
9.2.3 of any other monies due from the Buyer to the Supplier on any account.
9.3 Until property in the Goods passes to the Buyer under condition 9.2 the Buyer shall:
9.3.1 be bailee of the Goods;
9.3.2 keep the Goods separately and readily identifiable as the property of the Supplier
9.4 Notwithstanding Condition 9.2 the Buyer may as principal in the ordinary course of its business sell the Goods by bona fide sale at full market value.
9.5 Goods shall be deemed sold or used in the order delivered by the Buyer.
9.6 Any resale by the Buyer of the Goods in which property has not passed to the Buyer (as between the Supplier and the Buyer only) be treated as if made by the Buyer as agent for the Supplier.
9.7 If Goods in which property has not passed to the Buyer are mixed with or incorporated into other goods the property in those goods shall be held on trust by the Buyer for the Supplier to the full extent of the sums recoverable under Condition 9.2.
9.8 The proceeds of sale of any Goods and any other goods referred to in 9.7 shall be held by the Buyer in trust for the Supplier to the extent of all sums recoverable by the Supplier under Condition 9.2.
9.9 The Buyer shall keep any proceeds of sale as referred to in Condition 9.8 in a separate account but in any event the Supplier shall have the right to trace such proceeds (according to the principles in re Hallets estate (1880) 13 ChD 696).
9.10 The Buyer assigns to the Supplier all rights and claims the Buyer may have against its own customers and others in respect of the Goods specified in Condition 9.7 and proceeds of sale specified in Condition 9.8.
9.11 At any time before property in Goods passes to the Buyer *whether or not any payment to the Supplier is then overdue or the Buyer is otherwise in breach of any obligation to the Supplier), the Supplier may (without prejudice to any other of its rights):
9.11.1 retake possession of all or any part of the Goods and enter any premises for that purpose (or authorise others to do so) which the Buyer hereby authorises;
9.11.2 require delivery up to it or all or any part of the Goods;
9.11.3 terminate the Buyer’s authority to re-sell of use the Goods forthwith by written notice to the Buyer which authority shall automatically terminate (without notice) upon any insolvency of the Buyer or it going into liquidation (as defined in the Insolvency Act 1986) or it having a receiver appointed or calling a meeting of creditors or any execution or distress being levied on goods in its possession.
9.12 The Supplier may at any time appropriate to such indebtedness as it thinks fit sums received from the Buyer notwithstanding any purported appropriation by the Buyer.
9.13 Each clause and sub-clause of this Condition 9 is separate, severable and distinct and, accordingly, in the event of any of them being for any reason whatever unenforceable according to its terms, the others shall remain in full force and effect.
10.1 The Supplier may at any time and in its absolute discretion request, either orally or in writing, the recall of any Goods supplied to you (“Recall”). Where such a request is made orally, it shall be confirmed by the Supplier in writing.
10.2 The reasonable cost of collection of any Goods subject to recall shall be borne by the Supplier and the Buyer shall render all reasonable assistance in the arrangements for the collection and return of Goods.
10.3 If the Goods cannot be replaced within a reasonable period, the Supplier shall issue to the Buyer a credit note for the price then current of the Goods subject to Recall.
If the Buyer enters into a deed of arrangement or commits an act of bankruptcy or compounds with its creditors or if a receiving order is made against him or (being a company) it shall pass a resolution or the Court shall make an order that the Buyer shall be wound up (otherwise than for the proposes of amalgamation or reconstruction) or if a receiver (including an administrative receiver) shall be appointed of any of the assets or undertaking of the Buyer or if the Buyer suffers the appointment or the presentation of a petition for the appointment of an administrator or if circumstances shall arise which entitle the Court or a creditor to appoint a receiver (including an administrative receiver) or a manager or which entitle the Court to make a winding-up order or if the Buyer takes or suffers any similar action in consequence of debt or of the financial responsibility of the Buyer shall, in the opinion of the Supplier, become impaired or if the Buyer shall commit any breach of any part of the contract the Supplier may without prejudice to its rights and remedies under these conditions stop all Goods in transit and suspend further deliveries and by notice to the Buyer may terminate the contract immediately.
12 Force Majeure
12.1 In so far as the performance of the Contract by the Supplier may be affected by a strike, any lack of available shipping or transport or materials, any restriction regulation or decree by any local or municipal authority or government department or by any cause beyond the Supplier’s reasonable control (which shall be construed without reference to the proceeding clauses) the Supplier may elect, at its absolute discretion, either:-
12.1 to terminate the Contract; or
12.2 to proceed to perform or continue performance under the Contract within a reasonable time after the termination of such events or circumstances.
12.2 In the event that the Supplier makes an election under 12.1 the Buyer shall accept the Goods or such part of them as are delivered to it notwithstanding any delay
13.1 The Buyer shall indemnify the Supplier against all action, costs (including the cost of defending and legal proceedings), claims, proceedings, accounts and damages in respect of any infringement of any patent, registered design, unregistered design, design right, copyright, trademark or any other industrial or intellectual property rights resulting from compliance by the Supplier with the Buyer’s instructions whether express or implied.
14.1 The Buyer agrees upon demand to indemnify the Supplier against all losses, damages, injury, costs and expenses of whatever nature suffered by the Supplier to the extent that the same are caused by or related to the improper incorporation, assembly, use, processing or handling of the Goods by the Buyer.
15 Assignment and Subcontracting
15.1 None of the rights or obligations of the Buyer under the contract may be assigned or transferred in whole or in part without the written consent of the Supplier. The Supplier shall be entitled to subcontract any work relating to the Contract without obtaining the consent and/or giving notice to the Buyer.
16 Health and Safety
16.1 The Buyer agrees to pay due regard to any information or any revised information whenever supplied by the Supplier (and is deemed to have been given adequate information and to have read and understood it) relating to the use for which the Goods are designed or have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being used at work and the Buyer undertakes to take such steps as specified by the above information to ensure that as far as reasonable practicable the Goods will be safe and without risk to health at all times as mentioned above. For these purposes the Buyer is deemed to have been given a reasonable opportunity to examine the Goods before delivery.
17.1 Any notice or other communication to be given under these conditions must be in writing and may be delivered or sent by pre-paid first class letter post or facsimile transmission. Any notices shall be deemed to be served, if delivered, at the time of delivery, if posted 48 hours after posting, and if sent by facsimile transmission, at the time of transmission.
18 Data Protection Act
18.1 Notice under the Data Protection Act 1988 the information by the Buyer may be kept, disclosed, recorded or used by the Supplier and associated group of companies for the following purposes:
18.1.1 Making or obtaining any enquiries, searches and references including but not limited to credit references.
18.1.2 Administering your account
18.1.3 Advising you (by letter, telephone or otherwise) of services or products in which the Supplier or associated group of companies believe you may be interested.
18.1.4 Conducting legitimate and responsible business interests
19.1 The invalidity or unenforceability of any provision of these Conditions in whole or in part shall not prejudice the effectiveness of the rest of these Conditions or the remainder of any part of the Condition affected.
20.1 No waiver by the Supplier of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
21 Law and Jurisdiction
21.1 The Contract (and any proceedings whereby one party might be entitled to join the other as a third party) shall be governed by and construed in all respects in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.