|Preliminary||1.||All Tenders are subject to the Purchaser’s credit being approved by us and to the following terms which form part of the Tender and of any resulting contract. These General Terms of Tender and Sale are given by and the property of Beta Marine Ltd.|
|Definitions||2.||All Tenders are subject to the Purchaser’s credit being approved by us and to the following terms which form part of the Tender and of any resulting contract. These General Terms of Tender and Sale are given by and the property of Beta Marine Ltd.|
|Formation of Contract||3.||(a) In cases where we make a specific Tender such Tender shall be regarded as an invitation to the Purchaser to make an offer to purchase on the terms of such Tender, and any resulting offer by the Purchase shall not by itself, constitute a Contract until such offer has been accepted by us by an unqualified written acceptance sent to the Purchaser following such offer by the Purchaser.
(b) In cases where we do not make a specific Tender any order placed with us shall be regarded as an offer to purchase and our written acknowledgement of such order shall be regarded as a counter-offer to sell them on the terms and conditions set out in or referred to in such acknowledgement. In the event of the purchaser not accepting our counter-offer and making a further counter-offer such further counter-offer shall not constitute a Contract until it has been accepted by an unqualified written acceptance sent by us to the Purchaser following such counter-offer by the Purchaser.
|Illustrations||4.||Drawings, specifications, photographs and other illustrations, advertising matter and details in instruction books, booklets, catalogues and other publications supplied by us represent generally the Machinery specified, but not necessarily the Machinery the subject of our Tender and shall not form part of any Contract based thereon nor shall we be responsible for any representations not specifically confirmed by us in writing to the individual purchaser.|
|Delay in Delivery||5.||Where in any contract any particular time is specified within which the Machinery is to be delivered we will endeavour to deliver within that time, but we are not to be liable in respect of any loss, direct or indirect, which may arise from delay in delivery, save and except to the extent (if any) of such fixed amount or amounts which we may have expressly agreed to pay in any special term in the Contract in respect thereof.|
|Payment||6.||(a) Unless specific credit arrangements have been made in a particular case, provisions of Paragraph 6. b) shall apply to the Contract. 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 6. b) hereof shall thereupon apply to the Contract.
(b) Payment shall be made in full when goods are ready for despatch and before delivery. Where more than one piece of Machinery is comprised in an 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.
(c) We shall be entitled to charge interest at the rate at 3% above Bank of England base rate on all overdue accounts. We expressly reserve the right to refuse to deliver to a Purchaser at any time when the account of that Purchaser with us is in debit whether in connection with that particular transaction or any other transaction.
|Price and Specifications||7.||All Contacts are subject, unless otherwise specifically agreed, to the express condition that the prices for Machinery are subject to change at our instance before delivery to accord with our prices ruling at the date of delivery. We also reserve the right at any time before delivery to amend specifications and designs or to offer Machinery at equivalent performance. In any of these events we shall notify the Purchaser who subject to the provisions of clause 8(a) may cancel the contract if he so desires, but in no circumstances shall we be liable to the Purchaser for any loss which he may sustain, nor shall the Purchaser render us liable nor incur any liability on our behalf to any other party by reason of such increase in price or amendment in specification or design.|
|Cancellation||8.||(a) Where, under the provisions of Clause 7 or on account of restrictions, quotas or directions imposed by any Government, the Purchaser shall cancel a contract, he shall be liable to indemnify us against any losses which we may incur in relation to such contract in respect of bought out parts or Machinery and for any expenses incurred by us in connection with special equipment.
(b) Except as provided by Clause 7 and Clause 8(a), cancellation by the Purchaser of a contract shall only take place with our written agreement, and if agreed to shall be subject to a minimum cancellation charge at 10 per cent of the contract price.
|Extra Cost||9.||Should we incur cost owing to suspension or alteration of the work by the Purchaser’s instruction or lack of instructions or by reason of interruptions, delays, overtime, unusual hours, mistakes or work occasioned by the act or default of the Purchaser, such extra cost shall be added to the contract price and paid for by the Purchaser.|
|Patents||10.||In the event of any claim being made or action being brought against the Purchaser in respect of infringement of Patents consequent on the manufacture or sale by us of the Machinery, he shall notify us immediately and we shall be at liberty, with his assistance if required but at our expense, to conduct all negotiations for the settlement of such claim or to conduct any litigation that may arise therefrom. Subject to such notification and provided that no such Machinery or part thereof shall be used for any purpose other than that for which we supply it we will indemnify the Purchaser in respect of any such claim.|
|Retention of Title||11.||(a) Title. No property in the Machinery supplied by us to the Purchaser shall pass to the Purchaser unless and until we have received payment in full for the Machinery and for any other debts owed by the Purchaser to us on any other account whatsoever.
(b) Storage of the Machinery. Until payment in full the Purchaser shall store the Machinery in such a way as to enable it to be identified as our property and shall hold the Machinery as bailee for us. The Purchaser shall not sell, dispose or part with possession of the Machinery until title has passed to the Purchaser.
(c) Risk. The risk in the Machinery shall pass to the Purchaser when it is available for delivery to or collected by the Purchaser (whichever first occurs) at the point of delivery or collection as stated in the contract or otherwise agreed and the Purchaser shall keep the Machinery fully insured until title has passed to the Purchaser.
(d) Recovery of the Machinery. We reserve the right to repossess and uplift the Machinery supplied to the Purchaser and thereafter to resell the same and for this purpose the Purchaser hereby grants an irrevocable right and licence to our employees and agents to enter upon all or any of its vehicles or premises in which the Machinery or other products are stored with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the contract for any reason and is without prejudice to any accrued rights we may have thereunder or otherwise.
(e) Recovery of Proceeds of Sale of the Machinery in the Event of Non-Payment. If the Purchaser re-sells the Machinery, notwithstanding that payment to us has not been made, that title to the Machinery has not passed to the Purchaser and notwithstanding subsection (b) above, the proceeds of any such re-sale equivalent to all sums owing (“the Proceeds”) shall belong to us until payment has been received in full. The Purchaser will hold the Proceeds in a fiduciary capacity and keep them in a separate account.
(f) Termination of Purchaser’s Rights. The Purchaser’s right to possession shall cease forthwith in the following events:
(i) the Purchaser has not paid all amounts due to us on any account whatsoever;
(ii) Purchaser is declared bankrupt or makes any proposal to his creditors for composition or other voluntary arrangement with its creditors or does or fails to do anything which would entitle a petition for winding up or a bankruptcy order to be presented;
(iii) the Purchaser does or fails to do anything which would entitle any person to appoint a receiver to the whole or part of the Purchaser’s assets or would entitle any person to present a petition for the administration of the Purchaser or a resolution is passed for the winding up of the Purchaser;
(iv) a judgment against the Purchaser remains unsatisfied;
(v) the Purchaser is unable to pay a debt to a third party as it falls due and/or is or is deemed to be insolvent.
(g) Mitigation. All mitigation/recovery activities by us under the contract between the parties are agreed to be entirely without prejudice to any additional claims we may have against the Purchaser for any failure by the Purchaser to complete its obligations under the contract.
|Disputes||12.||Should any dispute arise the same is to be referred to arbitration by a responsible person whose decision shall be final. No claim or dispute advanced by the Purchaser shall entitle him to withhold payment of any unpaid portion of the contract price, but we shall be entitled to recover the same by legal proceedings notwithstanding any such claim or dispute, nor shall any such claim or dispute be advanced in any such way or set-off or counterclaim but shall be submitted to arbitration as an entirely separate matter.|
|Liability||13.||Except as specifically provided under these General Terms of Tender and Sale we are to be under no liability in tort or in contract for any loss of damage consequential or otherwise in relation to the Machinery or arising out of the Machinery or attributable to our acts, defaults, negligence or out of our failure to carry out any contract.|
|Law Applicable||14.||Any Tender made by us and any contract resulting therefrom shall be constructed according to and shall be subject to English Law. The marginal headings shall not affect the construction of these General Terms of Tender and Sale.|
|Delivery||15.||Where Machinery is to be delivered by us in the United Kingdom, Delivery shall mean delivery unloaded to an agreed address; upon delivery the Machinery shall cease to be at our risk and shall be at the sole risk of the Purchaser. In the case of goods for export, delivery shall be deemed to be complete and the risk shall pass on our delivering the same free on board at any port in the United Kingdom selected by us.|
|Acceptance of Goods||16.||The Purchaser shall be deemed to have accepted the Machinery as conforming to our Tender if the Purchaser does not notify us to the contrary within 14 days of delivery thereof.|
|Warranty||17.||(a) We give the following guarantee upon the terms set out in sub-paragraph (b) of this Clause applicable to the user of Machinery sold by us: We hereby undertake for whichever be the shorter period of either 12 months from the date of commissioning of the Machinery by the first user (the date of such commissioning to be first proved to our satisfaction) or 18 months from despatch from our Works, or in the case of export 18 months from delivery FOB UK port, of the Machinery to supply free of charge in exchange for any parts manufactured by us such new parts as (under normal use and service) appear to us to have been defective in workmanship or material or at our discretion to repair such parts sending them free within the United Kingdom or elsewhere provided:
(i) before taking any remedial action the user must inform us immediately with confirmation in writing that he claims to have suspected defective parts repaired or replaced under this guarantee giving full particulars of the manner in which, or the circumstances under which, they became defective. He must also clearly state a description of the defective parts and the serial number of the Machinery involved.
(ii) when requested by us the alleged defective parts are to be returned to our works within one month of our request clearly marked both the inside and outside of the package with the name and address of the sender, the description of the parts and the serial number of the Machinery from which they were taken. Otherwise they are to be carefully stored until such time as we decide that we do not require their return.
(b) The aforesaid guarantee is given on conditions that:
(i) replaced parts become our property.
(ii) in no case are we to be liable for the cost of fitting replacement parts.
(iii) no condition or warranty is given by us in respect of and the aforesaid guarantee does not apply to components of the Machinery which are not of our manufacture but any benefits, actually received by us from the suppliers of such components under their Guarantee will be passed on to the first user of the Machinery by us.
(iv) no condition of warranty is given by us and the aforesaid guarantee does not apply in the circumstances mentioned in paragraphs (c) and (d) of this Clause.
(v) the aforesaid guarantee is applicable to the first user of the Machinery only.
(iv) alterations made in the Machinery without our written concurrence, the use at unsuitable fuel or lubricants the operation of the Machinery in excess of its rated capacity or under conditions or load factors detrimental to its successful running or likely to cause excessive wear and tear, improper installation, misuse or neglect or failure to follow instructions contained in the Instruction Book or Operators Handbook shall invalidate the aforesaid Guarantee.
(c) We are to be under no liability whether as regards suitability of the machine and accessories including propeller for any particular purpose or as regards design, or as regards direct or indirect consequence of any defects in the Machinery or for stoppages loss of time while Machinery is out of commission or loss of use or accidents or loss or damage of any description.
(d) Save and except the aforesaid guarantee and subject to the Supply of Goods (implied Terms) Act 1973 and all other legislation currently in force in the United Kingdom maintaining statutory rights of both parties, all other conditions and/or warranties whether expressed or implied are hereby negated, whether or not the aforesaid guarantee is invalidated by the act or default of the person to whom the aforesaid guarantee is given or the act or default of the person to whom the aforesaid guarantee is stated to be applicable.
|Force Majeure||18.||Save as otherwise here before provided in these General Terms of Tender and Sale in the event of any delay in performance by either party due to any cause arising from or attributable to acts, or events, non-happenings, omissions, accidents or Acts of God beyond the reasonable control of the party to perform (including but not limited to industrial action, strikes, lock-outs, shortage of labour, civil commotion, riots, war, threat of or preparation for war, breaking off diplomatic relations, fire, explosion, sabotage, storm, flood, earthquake, fog, subsidence, pestilence or epidemics, Machinery breakdown, failure of plant or collapse of structures, voluntary or mandatory compliance with any direction request or order of any person having or appearing to have authority, whether for defence or other Governmental or national purpose, or any requisition for materials or services apparently or stated to be for purposes of defence, inability to obtain suitable raw material, equipment, fuel power, components or transportation) the party so delayed or prevented shall be under no liability for loss or injury by the other party thereby.|