ANCHOR CHAIN [AND POWER TRANSMISSION] COMPANY LIMITED ("ANCHOR")
CONDITIONS OF SALE OF GOODS AND SERVICES
1.1 Unless otherwise expressly agreed in writing by Anchor every sale of goods ("the Goods") and/or refurbishment of Goods (whether manufactured or supplied by Anchor or not), servicing of Goods, giving advice as to which type of Goods are required for a particular function, installation of Goods, site surveys, commissioning and training of the buyer's employees agents and subcontractors ("the Services") by Anchor shall be subject to these Conditions to the exclusion of any other terms.
1.2 No officer employee or agent of Anchor has authority to contract on any conditions other than these Conditions nor to amend vary or waive these Conditions or to make any binding representation or warranty in respect of the Goods and/or Services otherwise than in writing with the express authority of Anchor.
1.3 Anchor's quotations do not constitute an offer. Orders placed with Anchor shall not be binding on Anchor or deemed accepted by it unless and until Anchor accepts the order either orally or in writing or there is implied acceptance on the part of Anchor by its fulfilment of the order.
1.4 Unless earlier withdrawn or unless the quotations otherwise state quotations are open for acceptance for the period of thirty days from the date of the quotation.
2. Description of Goods and/or Services
Except as otherwise agreed in these conditions all drawings designs descriptive matters samples specifications catalogues brochures photographs technical literature and advertising matter are published or issued for the sole purpose of giving an approximate idea of the Goods or services described in them and no information contained in any of them or in any other document whatever shall form part of the contractual description of the Goods and/or Services nor shall they form part of any contract and Anchor shall not be liable for any inaccuracies or omissions in them. Anchor reserves the right to make without notice such reasonable modifications in specifications descriptions designs materials or finishes as it deems necessary or desirable. The buyer shall not be entitled to object to or reject the Goods and/or Services or any of them by reason of such reasonable modifications.
3. Use of the Goods
3.1 To the best belief of Anchor all Goods comply in all respects with the requirements of the Health and Safety at Work etc. Act 1974 ("the Act"). Subject as provided in these Conditions if a competent authority under the Act declares that the Goods are unsafe or a risk to health in any respect the buyer shall notify Anchor immediately and Anchor shall at the buyer's expense make such modification to the Goods or supply such additional or replacement parts for the Goods as such authority shall consider necessary to ensure that the Goods comply with any necessary requirements.
3.2 The buyer shall ensure that the Goods will be safe and without risk to health when properly used and in particular (without prejudice to the foregoing) the buyer shall ensure that the Goods are used in accordance with any instructions which Anchor may supply. If the buyer fails to comply with the foregoing provisions of this clause then:
3.2.1 Anchor shall be relieved of its liability (if any) to the buyer under the Act or under clause 3.1 or otherwise howsoever to the extent that such liability would not have arisen but for such failure; and
3.2.2 the buyer shall indemnify Anchor against all claims by third parties and all penalties for which Anchor may be liable pursuant to the Act or otherwise howsoever to the extent that such liability would not have arisen but for such failure.
4. Price
4.1 The price for each consignment of the Goods will be Anchor's list price published on the date on which the consignment is despatched to the buyer except that Anchor will be entitled to charge a premium for Goods which Anchor deems are delivered within a short space of time. The price for the Services will be Anchor's price stated on the date on which the Services are carried out.
4.2 Unless otherwise agreed in writing by Anchor all prices quoted are exclusive of Value Added Tax, insurance, carriage and delivery charges.
4.3 Anchor will be entitled to charge Anchor's prescribed minimum value (current at the date of sale of the Goods) if the buyer orders Goods (other than spares for Goods) on credit to a value below Anchor's prescribed minimum value.
5. Payment
5.1 Unless otherwise agreed by Anchor in writing the price for the Goods and/or Services and any charges payable shall be due in the case of Goods when the buyer orders them and in the case of Services when the services are supplied.
Where Goods are supplied to the buyer on credit, Anchor shall invoice the buyer for the Goods on delivery and, unless otherwise agreed by Anchor in writing, the buyer shall pay for the Goods no later than the 20th day of the month following the month of invoice.
5.3 Unless otherwise agreed by Anchor in writing, the buyer shall not be entitled to any deductions, discounts or rebates for prompt or early payment.
Time for payment shall be of the essence.
5.5 Interest shall be charged by Anchor at 4% over Barclays Bank PLC's base lending rate for the time being in force on all sums overdue for payment as well before as after judgment.
5.6 The buyer shall pay the price of the Goods and/or Services (including any increased price payable under these Conditions) and all charges due hereunder without any deduction whether by way of set-off counterclaim or otherwise.
5.7 If the buyer fails to make any payment when it is due Anchor may without prejudice to any other remedy it may have:
5.7.1 suspend work on, and withhold delivery of Goods under any contract it has with the buyer at that time until payment is made; and
5.7.2 if payment remains outstanding for more than 7 days, cancel any such contract by written notice to the buyer, in which case it may either deliver any Goods purchased or manufactured pursuant to the contract in the state in which they then are, whether finished or not, and the buyer shall pay for them at a fair proportion of the purchase price, having regard to the work done on them and the materials they contain, or sell them for its own account and pass a good title to them to the buyer.
6. Delivery of Goods and/or carrying out of Services
6.1 Unless otherwise agreed by Anchor in writing delivery of the Goods shall take place at Anchor's premises.
6.2 Where by agreement delivery of the Goods is to take place at the buyer's premises and is to be effected by a carrier or by Anchor the buyer shall be responsible for the delivery charges and Anchor shall not be liable in respect of any damage in transit howsoever caused (including negligence) unless notice in writing is given to the carrier and to Anchor within seven working days (or in the case of non-delivery within seven working days of the date when the Goods would in the ordinary course of events have been received) whichever is the earlier.
6.3 For any damage in transit or non-deliveries Anchor's liability will only be to replace the Goods within a reasonable time subject to the Goods being returned to Anchor immediately.
6.4 Unless otherwise expressly agreed times or dates quoted by Anchor for despatch of Goods and/or completion of the Services are intended as an approximate estimate only and time of delivery shall not be of the essence of the contract. Every endeavour will be made to adhere to such times or dates but Anchor does not give any other undertaking in that regard and Anchor shall not be liable to the buyer for any loss or damage (whether direct indirect or consequential) sustained by the buyer as a result of Anchor's failure to comply with such delivery dates.
6.5 If for any reason the buyer fails to accept delivery of the Goods the buyer shall remain liable to pay the price for the Goods with interest at the times and at the rate specified in these Conditions and (without prejudice to any other right conferred upon it in that event by these terms or by law) at Anchor's option Anchor shall be entitled to store the Goods and the buyer shall be liable to Anchor for the reasonable cost of such storage and shall be responsible for all loss or damage to the Goods howsoever arising (including loss or damage caused by the negligence of Anchor) or Anchor shall be entitled to cancel the contract.
6.6 Where the buyer requests extra or special packing Anchor shall be entitled to charge the full cost of the same. Any such packing shall be at the buyer's own risk and no warranty is given as to the suitability or fitness or otherwise of such packing for its purpose.
6.7 The buyer will at its own cost, unless otherwise agreed in writing, supply all machinery equipment and labour, lay on all services and make all other preparations as shall be necessary for the off-loading commissioning and/or testing installation and proper working delivery of the Goods and/or supply of Services at the buyer's premises.
7. Title and Risk
7.1 Property in the Goods shall not pass to the buyer until the price of the Goods and every other sum whatsoever which is due from the buyer to Anchor whether under this contract or otherwise howsoever have been received by Anchor in cash or cleared funds.
7.2 The provisions of clause 7.1 shall apply notwithstanding that the Goods have been affixed to or incorporated in real or other property.
7.3 Until the property in Goods delivered shall have passed to the buyer in accordance with clause 7.1 the buyer shall keep the Goods in a fiduciary capacity as bailee and shall store them in such a way that they are identifiable as the property of Anchor and are separate from all other Goods in the possession of the buyer.
7.4 Notwithstanding clause 7.1 the buyer shall be entitled to use or sell the Goods in the normal course of the buyer's business but only on the following conditions:
if the Goods at the time of sale by the buyer remain identifiable and unincorporated and unmixed with other goods then the buyer shall sell the Goods on behalf of Anchor as owner and the proceeds of sale shall be held in trust for Anchor in a separate identified account;
if the Goods are prior to sale by the buyer made up or incorporated in or mixed with other Goods then if they remain separately identifiable Anchor shall retain title thereto and if they do not remain separately identifiable Anchor shall become the owner of the Goods in or with which the Goods are incorporated or mixed who shall be entitled to sell the new Goods and shall retain from the proceeds of sale a sum equal to the amount outstanding to it in respect of the price of the Goods and shall pay the balance of the sale proceeds to the buyer.
7.5 At any time before the property in the Goods shall have passed to the buyer in accordance herewith Anchor may by notice in writing to the buyer determine the buyer's right to use or sell the Goods without prejudice to any of its other rights and the buyer shall thereupon at its own cost return the Goods to Anchor and shall cease to be in possession of the Goods with the consent of Anchor. At any time after the giving of such a notice Anchor may enter upon any premises where the Goods are or are reasonably believed to be and may remove the Goods.
7.6 Notwithstanding the foregoing:
7.6.1 the Goods are at the risk of the buyer from the time of delivery of the Goods to the buyer or any carrier acting on the buyer's behalf;
7.6.2 the buyer shall not be entitled to return the Goods or any of them unless Anchor shall have given a notice pursuant to clause 7.5 above relating whether exclusively or not to the Goods.
7.7 Nothing in this clause shall in any way limit or modify the buyer's obligation to pay for the Goods in accordance with these Conditions.
8. Damages or Defects
8.1 Anchor warrants that the Goods shall at the time of despatch and for twelve months after that date correspond with the description to which they are sold. If any Goods do not conform to that warranty Anchor will at its option repair or replace the Goods but the buyer (and not Anchor) shall be responsible for the cost and expense of re-delivering the same and the cost of removing defective goods (including all travelling and other expenses) and supplying any materials or substances previously supplied by or on behalf of the buyer and the Goods shall remain at the risk of the buyer at all times. In the case of parts sent to the buyer with which the buyer repairs the Goods, once the buyer has tampered with the Goods the warranty is invalidated.
8.2 In the case of the Services Anchor warrants that the Services will be carried out with reasonable skill and care.
8.3 The foregoing warranties under clauses 8.1 and 8.2 of this Condition are conditional upon:
the buyer giving written notice to Anchor of the alleged defect in the Goods and/or Services such notice to be received by Anchor within seven days of the time when the buyer discovers or ought to have discovered the defect and in any event within twelve months from the date of despatch of the Goods and/or provision of the Services;
8.3.2 the buyer affording Anchor a reasonable opportunity to inspect the Goods or if so requested by Anchor returning the Goods to Anchor's works carriage paid for inspection to take place there;
8.3.3 the buyer making no further use of the Goods after the time at which the buyer discovers or ought to have discovered the defect;
8.3.4 the Goods having been installed used stored and maintained in accordance with any instructions issued by Anchor or in accordance with general trade practice and there being no negligence or misuse on the part of the buyer its servants or agents nor the Goods having been altered or repaired by any person other than Anchor or those authorised by Anchor;
8.3.5 Anchor being satisfied that the defect in the Goods and/or Services was due to its defective workmanship or use of defective materials and without prejudice to the foregoing Anchor shall be under no liability for defects due to wear and tear or neglect or use of the Goods for any purposes other than those for which they are designed;
the defective Goods not having been sold let hired or otherwise disposed of by the buyer to a second or subsequent user or purchaser.
8.4 The total liability of Anchor for any loss of the buyer in respect of any one event or series of connected events (including indirect or consequential loss or damage howsoever caused) shall in the case of orders for Goods and/or Services for less than £20,000 (excluding VAT) not exceed the value of the order, and in the case of orders exceeding that amount not exceed the lower of [85% of the order value or £250,000]
8.5 Save as otherwise provided in this clause and to the extent permitted by law:
8.5.1 all other conditions and warranties express or implied are hereby expressly excluded;
8.5.2 Anchor shall be under no liability for any loss or damage howsoever caused which arises in respect of the buyer's liabilities to any third party;
8.5.3 Anchor shall be under no liability for any direct or indirect or consequential loss or damage howsoever caused and without prejudice to the foregoing Anchor shall not be liable for any costs claims or damages or expenses arising out of any tortious acts or omissions or any breach of contract or statutory duty calculated by reference to profits, income production or accruals or loss of such profits, income production or accruals or by reference to accrual of such costs claims damages or expenses on a time basis.
8.6 Nothing contained in these Conditions shall be construed as an attempt to exclude or limit the liability of Anchor in negligence for the death of or injury to any person.
8.7 Where Goods are not manufactured or processed by Anchor, Anchor gives no warranty as to patent registered design copyright and other industrial property rights in or in connection with the Goods and/or Services.
8.8 Anchor accepts no responsibility for any drawing design or specification not prepared by Anchor and Anchor gives no warranty guarantee representation or opinion on the practicability of construction or of the efficacy safety or otherwise of materials to be supplied or work to be executed by Anchor in accordance therewith and the buyer shall be responsible for the cost of any additional work caused by defects in any such drawings designs or specifications.
9. Anchor's Lien
9.1 In addition to any other right or lien to which Anchor may by law or the other terms hereof be entitled Anchor shall be entitled to a general lien on all the goods and property of the buyer in Anchor's possession whether paid for or not and the right of sale of such Goods and property at Anchor's sole discretion for any unpaid money due under the terms of any contract between Anchor or any Associated Company of Anchor and the buyer or any Associated Company of the buyer.
9.2 For the purposes of this clause a company is to be treated as another's "Associated Company" if one of the two has control of the other (whether directly or indirectly) or both are under the control of the same person or persons (whether directly or indirectly) and for the purposes of this definition the expression "control" shall have the meaning attributed thereto by Section 416 of the Income and Corporation Taxes Act 1988.
9.3 Anchor shall have the right to put any Goods or property over which it has a lien into a saleable state by any means whatsoever and (without prior notice to the buyer) to sell such Goods whether by private treaty or otherwise on such terms as Anchor may agree at Anchor's sole discretion. Out of the proceeds of sale Anchor shall be entitled to retain a sum equivalent to all unpaid monies due to it from the buyer as aforesaid together with the cost of putting the Goods into a saleable state as aforesaid and the expenses of sale and any balance shall be paid to the buyer.
10. Termination or Cancellation
10.1 In the event of:
10.1.1 any distress execution or other legal process being levied upon any of the buyer's assets;
10.1.2 the buyer entering into any arrangement or composition with its creditors committing any act of bankruptcy or (being a corporation) an order being made or an effective resolution being passed for its winding up except for the purposes of amalgamation or reconstruction as a solvent company or a Receiver and Manager Receiver Administrative Receiver or Administrator being appointed in respect of the whole or any part of its undertaking or assets;
10.1.3 an encumbrancer taking possession of any of the property or assets of the buyer;
10.1.4 the buyer ceasing or threatening to cease to carry on business;
10.1.5 non-payment by the buyer of any monies due from it to Anchor;
10.1.6 any breach of these conditions by the buyer;
10.1.7 Anchor reasonably apprehending that any of the events mentioned above is about to occur in relation to the buyer;
Anchor shall be entitled to suspend all or any work on or future deliveries and instalments of the Goods and/or the provision of Services under this or any other contract and on written notice to cancel the undelivered portion of this or any contract between the buyer and Anchor and sell the Goods elsewhere and/or deem that the whole of the price under this or any other contract shall be payable immediately.
10.2 In the event of any such cancellation by Anchor in accordance with clause 10.1 or any cancellation and/or repudiation of the contract by the buyer Anchor shall be entitled to recover as damages from the buyer all loss and damage of whatever kind consequential or otherwise which Anchor shall sustain in connection with such cancellation.
10.3 The exercise of the rights conferred by this Condition shall be without prejudice to any other right enjoyed by Anchor pursuant to these Conditions or by law including in particular the right to recover the Goods or the proceeds thereof from the buyer pursuant to the next clause.
11. Delivery by Instalments
Where more than one item of Goods is included in any order Anchor shall be entitled to make delivery by instalments. In such cases the despatch date shown on Anchor's acceptance of order shall be deemed to be the estimated delivery date of the first instalment and the remaining instalments will be delivered within a reasonable time of the first instalment. The contract shall be construed as a separate contract in respect of each instalment. Nevertheless failure to accept delivery of and/or pay for any instalment shall entitle Anchor at its option to treat the contract as repudiated or alternatively to store the Goods at the buyer's risk and the buyer shall be liable to Anchor for the reasonable cost of doing so.
12. Force Majeure
12.1 If events beyond Anchor's reasonable control including, without limitation, strikes, lock-outs and other industrial disputes (in each case whether or not relating to Anchor's workforce) prevent or hinder Anchor from delivering the Goods and/or performing the Services in accordance with the contract the date or dates for delivery and/or performance shall be extended by the period of delay caused by such events and the price shall be increased to cover any increased costs caused by such delay.
12.2 If the period of delay extends beyond a reasonable period then Anchor shall in its absolute discretion be entitled to withhold suspend or cancel in whole or in part the contract and/or the delivery of any of the Goods and/or the performance of any of the Services and the buyer shall be liable to pay in respect of the Goods already delivered and not paid for and/or for the Services provided and not paid for such amount as may be determined by Anchor to be a rateable proportion of the total contract price and the cost of manufacturing or adapting to the buyer's design or specification any Goods already manufactured or adapted for which there is no other market readily available to Anchor at the contract price. A written certificate from Anchor showing that rateable proportion being conclusive evidence as to the amount of such proportion.
12.3 If Anchor shall tender to the buyer less than the contractual quantity of Goods or shall tender any Goods late the buyer shall accept and pay for the Goods so tendered.
13. Intellectual Property
13.1 The buyer shall not use the Goods or any specifications designs or drawings or any other information supplied by Anchor for the purpose of designing or manufacturing identical Goods without Anchor's prior written consent. All patent registered design copyright and other industrial property rights in or in connection with the Goods which Anchor may have shall remain the property of Anchor.
13.2 The buyer shall indemnify Anchor against all charges damages penalties costs and expenses to which Anchor may become liable as a result of work done or Goods supplied in accordance with the buyer's instructions which involves the infringement of any letters patent trade marks copyright or registered design or other rights of any third party.
14. Delay Occasioned by the buyer
The buyer shall promptly furnish all designs, equipment, personnel information and instructions necessary for Anchor to be able to undertake the work in performance of the contract and the buyer shall compensate Anchor for all loss and expense incurred by Anchor by reason of any error, defect or omission therein or by reason of any other act or in them on the part of the buyer.
15. Indemnity
The buyer shall indemnify Anchor against all costs claims demands proceedings charges and expenses for which Anchor may become liable in respect of the Goods and/or Services except to the extent that liability is specifically assumed by Anchor under these Conditions.
16. Waiver
Any failure by Anchor to exercise any rights under these Conditions shall not constitute
a waiver or prevent the subsequent exercise of such rights.
17. Severability
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions shall not be affected by them.
18. Notice
18.1 Any notice required to be given or served under these Conditions shall be addressed in the case of a notice to be given to or served on the buyer at the address of the buyer shown on the contract or invoice (or if none its registered office for the time being in the case of a Company or in any other case its last known address) and in the case of Anchor at its registered office for the time being.
18.2 Any notice required to be given or sent under these Conditions may be given or served either:-
18.2.1 by letter leaving the same or sending the same by first class post in a pre-paid envelope and a notice so given or served shall be deemed to have been given or served:
18.2.1.1 on the day it was so left or on the day following that on which it was posted in the case of Anchor or in the case of the buyer if the address of the buyer is within the United Kingdom; or
18.2.1.2 within 7 days of the date of posting otherwise; or
18.2.2 by telex cable or facsimile transmission and a notice so given or served shall be deemed to have been given or served within 24 hours of transmission.
19. Testing and Installation
19.1 Where the buyer requires Anchor to carry out tests on the Goods, Anchor may charge the buyer at a reasonable rate for work done and materials used in testing.
19.2 Where Anchor carries out work at the buyer's request at any place other than its own premises, without prejudice to any other remedy Anchor may have, the buyer shall indemnify Anchor against any losses it may suffer (including any damages, costs and expenses it may have to pay) as a result of damage to Anchor's property or claims against Anchor by its employees or by any third party where the losses arise from the nature condition or state of repair of the place or any materials or equipment in that place or from any negligence of the buyer, its servants or agents or any third party.
20. Buyer's Materials
Where any Materials prove to be unsuitable for the treatment of Anchor is required to give them, the buyer shall pay Anchor for all work done and indemnify Anchor against any loss or damage it may have suffered through their unsuitability.
21. English Law
These Conditions and their construction shall be governed by English law and the buyer and Anchor shall submit to the jurisdiction of the English Courts.
