Whiteley Brooks Engineering General Conditions Of Contract For Supply Of Goods
1. Introduction
These General Conditions of Contract (“Conditions”) shall apply save as varied by express agreement between the parties.
2. Definitions
“WBE” means Whiteley Brooks Engineering Ltd. of Herald Way, Coventry, England.
“Contract” means the agreement between the Purchaser and WBE (howsoever made) for the supply of the Goods, including these Conditions.
“Contract Price” means the sum stated in the Contract as the price payable to WBE for the supply of the Goods.
“Goods” means all materials, documentation and articles and things of all kinds to be provided by WBE under the Contract.
“Purchaser” means the person, firm or company so named in the Contract to whom the Goods are to be supplied and shall include the Purchaser’s legal personal representatives, successors and permitted assigns.
3. Information
The Purchaser shall provide WBE with all necessary information that may be reasonably required from time to time to permit WBE to proceed to manufacture the Goods.
Unless otherwise specified all drawings and particulars of weights and dimensions submitted therewith shall be construed as being approximate only.
All intellectual property, patents, trademarks, know-how, copyrights, models, formulae, software, source codes, designs, trade secrets and trade names furnished or supplied by WBE (collectively, “Intellectual Property”) in connection with the Contract shall remain the exclusive property of WBE.
4. Delivery
Where no indication is given in the Contract of the delivery terms, the Goods shall be deemed to be sold “ex-works” from the place of manufacture.
Legal title in the Goods shall not pass to the Purchaser until the Goods have been paid for in full.
Any times quoted or agreed for delivery shall be treated as an estimate, and WBE shall have no liability should such time be exceeded.
5. Loss Or Damage In Transit
When the price quoted includes delivery WBE shall at its option repair or replace free of charge goods damaged in transit or not delivered in accordance with the Advice Note provided that WBE is given written notification of such damage or non-delivery within such time as will enable WBE to comply with the carrier”s conditions of carriage as affecting loss or damage in transit or (where delivery is made by WBE’s own transport) within 3 days after receipt of the Advice Note.
6. Packing
Unless otherwise specified in WBE’s quotation packing is in accordance with WBE’s standard practice is included.
7. Warranty
WBE shall make good by replacement or repair any defect in the Goods which under proper use, care, maintenance and storage appear in the Goods within twelve (12) months after the original Goods have been first delivered and which arise solely from faulty materials or workmanship excluding any defects caused by design, materials or workmanship furnished by the Purchaser. In all such cases the defective part or parts shall be promptly returned by the Purchaser at the Purchaser’s expense to WBE’s premises unless otherwise agreed in writing. The repaired or replacement part or parts will be delivered by WBE free of charge as provided in Clause 4 (Delivery). WBE shall have no liability for the fitting or installation of the repaired or replacement part or for service charges incurred.
WBE’s liability under this Clause shall be in lieu of any warranty or condition implied by law as to the quality or fitness for any particular purpose of the Goods.
8. Terms Of Payment
Unless otherwise agreed in writing, payment shall be made by the Purchaser within 30 days after the date of WBE’s invoice.
If payment is not made within the time specified, WBE shall be entitled to receive interest on the amount unpaid for the period that the payment remains outstanding. The interest shall be at the compound rate of one per cent per month. WBE shall be entitled to interest without formal notice and without prejudice to any other right or remedy.
9. Variations
The Purchaser shall have the power until the Goods has been delivered to instruct WBE by notice to make any variations to the Goods.
As soon as reasonably possible after having received any such instruction WBE shall notify the Purchaser if in WBE’s opinion the variation will involve an addition to or deduction from the Contract Price and/or an extension to the Delivery. No variation shall become effective until any changes to the Contract Price and/or the Delivery have been agreed by the parties and confirmed in writing by the Purchaser and accepted by WBE.
10. Limitation Of Wbe’s Liability
10.1 In no circumstances whatsoever (except claims resulting from death or injury to any person caused by the negligence of WBE for which no limit applies) shall WBE’s aggregate liability whether by way of indemnity, breach of contract, tort (including but not limited to negligence) or breach of statutory duty exceed 10% of the Contract Price.
10.2 WBE shall not be liable to the Purchaser by way of indemnity or by reason of any breach of contract or of statutory duty or by reason of tort (including but not limited to negligence) for any loss of profit, loss of use, loss of production, loss of contracts or for any indirect or consequential damage whatsoever that may be suffered by the Purchaser or claimed against it.
11. Legal Construction
The Contract shall be governed by and construed in accordance with the Laws of England and shall be subject to the jurisdiction of the English Courts.
The parties do not intend that any third party shall have rights to enforce any part of the Contract and the provisions of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded from the Contract.
12. Force Majeure
The term “force majeure” means all causes or events beyond the reasonable control of either party which arise after the formation of the Contract and which prevents, delays or hinders the execution of the Contract, including but not limited to war and other hostilities (whether declared or not) invasion, act of foreign enemies, mobilisation, requisition or embargo, rebellion or riot or civil commotion, earthquake, flood, fire or other natural disaster, including exceptional adverse weather, industrial disputes (including disputes affecting subcontractors and suppliers) bankruptcy or liquidation of subcontractors.
If either party is prevented, delayed or hindered in performing any obligation under the Contract as a result of force majeure, such obligation shall be suspended for so long and to such extent as may be justified by the circumstances.
13. Purchaser’s Default
WBE may suspend and/or cancel the Contract on giving the Purchaser 10 days written notice in the event that the Purchaser is in breach of any of its obligations under the Contract. The Purchaser shall reimburse WBE all reasonable costs and expenses incurred as a result of such suspension and in the event of cancellation of the Contract WBE shall be paid all costs incurred or committed up to the date of cancellation (including without limitation loss of profit).
14. Cancellation
In the event of cancellation of the Contract by the Purchaser WBE shall be paid all costs incurred or committed up to the date of cancellation (including without limitation loss of profit).
15. Exclusive Remedies
Where the Contract sets out the specific rights or obligations of either party and provides an express remedy then such remedy shall be in full satisfaction of the rights or obligations that gave rise to the remedy.
16. Value Added Tax
The Contract Price is exclusive of VAT. The Purchaser shall pay to WBE in addition to the Contract Price (or any other sum due to WBE) a sum equal to the VAT chargeable on the Goods.
17. Free Issue Materials
If for the purpose of the Contract the Purchaser issues materials “free of charge” to WBE such materials shall be and remain the property of the Purchaser. WBE shall use such materials solely in connection with the Contract. Any surplus materials shall be disposed of at the discretion of the Purchaser.
In any event all lost or damaged materials shall be replaced by the Purchaser at the Purchaser”s expense, no matter how such loss or damage is caused. In the event such loss or damage is caused directly by WBE, WBE shall re-perform any associated work without an additional charge to the Purchaser, however WBE shall have no further liability in respect of any loss or damage to such free issue materials.
