Terms and Conditions of Sales

The conditions below (the "Conditions") set out the only terms on which FA Parkes (the "Company") is prepared to sell certain goods, and/or services (the "Goods" and/or "Services" respectively) as described in the quote or acknowledgement of order issued by the Company or as may be agreed by the Company to the person, firm or company that has requested them (the "Buyer"). In these Conditions: "Work" means Goods and/or Services; "Contract" means any contract for the Work and "Order" means an order placed by the Buyer for the Work.

  1. Formation

    a)All quotes and orders shall be deemed to be an offer and shall incorporate these Conditions. Any quote is open for acceptance within the period stated on the quote and if no period is stated, within 30 days after its date. Any Order shall only be deemed accepted by the Company and a Contract formed upon the earlier of the issue of a written acknowledgement of order by the Company or provision of Work. Unless otherwise agreed in writing, these Conditions shall apply to all Contracts and all other terms, conditions, understandings, agreements, warranties, conditions or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law. These Conditions and the terms of any Contract can only be varied by written agreement between the Company and the Buyer. b)Unless otherwise agreed, the Company may modify the specification of the Work without notice provided that such modification does not materially affect the Work. All descriptive matter, specifications and advertising is solely aimed at giving an approximate idea of the Work described in them, they will not form part of the Contract. c)Any Order accepted by the Company may only be cancelled or varied by the Buyer with the prior written consent of the Company and on terms that the Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Company as a result of such cancellation or variation. d)Any typographical, clerical or other error or omission in any sales literature, quote, price list, acknowledgement of order, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.

  2. Delivery and Non-Delivery

    a)The Work will be provided on the date stated in the Company's quote or acknowledgement of order or if one is not issued as agreed by the Company. Delivery/performance times are given in good faith but are an estimate only and not of the essence. b)Services will be provided and Goods delivered as stated in the Company's quote or acknowledgement of order or if one is not issued as agreed by the Company. Delivery shall be deemed to take place when the Goods arrive at the place stated in the acknowledgement of order or if one is not issued at such place as is agreed by the Company except that delivery to a carrier for the purpose of transmission to the Buyer shall be deemed to be delivery to the Buyer. Section 32(2) of the Sale of Goods Act 1979 shall not apply. The Buyer shall be deemed to have accepted the Goods on delivery. c)The Company shall make such arrangements carriage of the Goods and their insurance during carriage as it thinks appropriate and the Buyer shall indemnify the Company against all costs and/or expenses that the Company incurs in arranging for carriage and insurance of the Goods (including without limit, export and/or import duties and costs of packaging, loading and/or unloading), such costs and/or expenses to be paid by the Buyer when it is due to pay for the Goods. d)The Company may deliver Goods in instalments and perform Services in sections in any sequence. Deliveries of further instalments and performance of further sections may be withheld until the Goods and/or Services comprised in earlier instalments and/or sections have been paid for in full. Default by the Company, howsoever caused, in respect of one or more instalments and/or sections shall not entitle the Buyer to terminate the relevant Contract as a whole. e)If: the Buyer fails or refuses to accept delivery of any Goods when they are ready for delivery in accordance with the relevant Order; or the Company agrees (at it's sole discretion) to postpone delivery of the Goods at the request of the Buyer; or the Buyer fails to provide any instructions consents or authorisations required to enable the Goods to be delivered on the due date; then: risk in the Goods shall pass to the Buyer, delivery of the Goods shall be deemed to have taken place and the Company may store or arrange for storage of such Goods and charge the Buyer for all related costs and expenses (including storage and insurance). If the Goods have not been delivered within 14 days of such failure or refusal due to the Buyer's continuing failure and/or refusal then the Company may sell such Goods and charge the Buyer for any shortfall if the sale proceeds are below the Contract price. f)If the Company agrees to permit the Buyer to collect the Goods from the Company's place of business then delivery shall be deemed to take place when the Company notifies the Buyer that the Goods are ready for collection and unless otherwise agreed in writing by the Company it is a condition of the Contract that the Buyer will collect the Goods within seven days of such notice. g)The Company will at its sole discretion replace free of charge or credit the price (if paid) of any Goods proved to the Company's satisfaction to have not been delivered provided that within [10] days of the expected date of delivery the Company has received from the Buyer notification in writing of non delivery.

  3. Tests and Inspections

    Where practicable the Goods are submitted to the Company, standard tests prior to dispatch. If the Company agrees (at its sole discretion) to undertake further tests and/or inspections requested by the Buyer on the Goods (the "Tests") such Tests do not form part of the Contract price and the Company shall charge the Buyer accordingly.

  4. Software Licence

    a)The Buyer acknowledges the Goods and/or Services may include computer software programs developed and/or owned by the Company ("Software"). The Buyer agrees that all IPRs in the Software are owned by and shall remain the property of the Company and that any other software in the Goods and/or Services shall be owned by the respective licensors. If the Buyer acquires any IPRs in the Software then the Buyer shall immediately notify the Company and shall forthwith take all such steps as the Company may require to assign such rights to, or vest them in, the Company. b)The Company grants to the Buyer a licence to use the Software so far as is necessary to enable the Buyer to make use of the Software in the manner contemplated by the Contract and the Buyer shall not otherwise copy or use the Software for any other purpose. c)The Buyer shall procure that the use of the Software is subject to the terms (including any licence) if any which appear on or in the Software and/or the Goods.

  5. Force Majeure

    In the event that the Company is prevented or delayed in or from carrying out any of its obligations under the Contract as a result of any cause beyond its control such as but not limited to: acts of God; governmental intervention or restriction, import or export regulations; war; riots; strikes or trade disputes (including by and with the Company's own employees); power failure; accidents; inadequate performance of, failure of computer systems; fire; flood; default of suppliers or sub-contractors, or breakdown of plant, machinery or vehicles then the Company shall be relieved of its obligations and liabilities under the Contract for as long as such fulfilment is prevented.

  6. Risk/Title

    a)Subject to Condition 2.e), risk of damage to or loss of the Goods shall pass to the Buyer upon delivery. b)Title to the Goods (both legal and equitable) shall remain with the Company until full payment with cleared funds of all monies due from the Buyer to the Company under all contracts between the Company and the Buyer has been made, or title is properly vested in some other person by the operation of any statute. c)Until title to the Goods passes, the Buyer shall hold them on a fiduciary basis as the Company's bailee and must store them (at no cost to the Company) such that they are easily identifiable as the property of the Company and must not destroy or deface any identifying marks on them or their packaging; and must keep them insured on the Company's behalf for their full price against "all risks" to the reasonable satisfaction of the Company and produce the policy of insurance to the Company upon request and must hold all proceeds of such insurance on trust for the Company and shall not mingle them with any other money nor pay the proceeds into an overdrawn bank account. d)Until title to the Goods passes, the Buyer shall be entitled to re-sell, use or otherwise dispose of them in the ordinary course of its business provided that the Buyer shall ensure that the entire proceeds arising by virtue of any such sale, use or disposal shall be held in trust for the Company and shall not be mixed with any other monies or paid into any other overdrawn bank account and shall at all times be identifiable as monies belonging to the Company. e)Once payment becomes due, the Company may while the owner of the Goods (without prejudice to its other rights) demand their immediate return at any time and the Buyer must comply with (and bear the cost of) such demand immediately. If the Buyer fails to return them, the Company or its successors in title, and their respective employees and agents, may enter the Buyer's premises (with or without vehicles) during normal business hours to remove them (the cost of which shall be borne by the Buyer) and/or may sell or otherwise deal with them.

  7. Price

    a)Unless otherwise agreed, the Contract currency shall be Sterling and unless fixed prices have been agreed in writing by the Company, the Contract price is based on information available, details of the Work requested at the time of the quote and on the assumption that the Buyer will comply with its obligations under the Contract. If such information, prices, costs, request or assumption changes prior to provision of the Work then the Company shall notify the Buyer and the Contract price shall be amended accordingly b)Unless otherwise agreed, the price is "ex-works" and does not include the cost of loading, carriage, unloading, packing, customs duties, installation and/or erection on site, taxes (including without limitation value added tax) insurance or any other similar item all of which shall be payable in addition by the Buyer without set-off. c)The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Company before the due payment date.

  8. Payment

    a)The Company may invoice the Buyer for the Work at any time on/or after its provision (or deemed provision pursuant to Condition 2.e). b)Buyers who have been granted by the Company (in its sole discretion) a credit account facility shall pay the Contract price within 30 days of the date of invoice. The Company may (in its sole discretion) amend the terms of or withdraw such credit account facility at any time without notice with immediate effect and upon such withdrawal all amounts due or accruing to the Company (under the Contract or otherwise) shall become immediately payable notwithstanding any other Condition. c)Buyers who have not been granted a credit account facility shall pay the Contract price at the same time as placing an Order. d)Where Goods are sold for export or provided outside the United Kingdom then, unless otherwise agreed, payment shall be by confirmed irrevocable letter of credit to be opened at a bank nominated by the Company at the Buyer's expense. e)Payment shall only be deemed received by the Company from the Buyer upon receipt by the Company of cleared funds. Payment shall be made in full without any deduction, set off or abatement on any grounds. The Company may appropriate any payment made by the Buyer to any outstanding invoice. The Company may bring an action for the price of the Goods even though the property in them may not have passed to the Buyer. f)Time for payment of the Contract price shall be of the essence. If the Buyer fails to make payment on the due date then the Company may without prejudice to its other rights be entitled to: i) cancel the Contract, suspend production or any further deliveries of the Goods to the Buyer (or the goods supplied under any other contract between the Buyer and the Company) and/or performance of the Services; ii) (without prejudice to the rights of the Company under the Late Payment of Commercial Debts (Interest) Act 1998) charge the Buyer interest on overdue amounts (before as well as after judgement) at the annual rate of [5% per cent] above the prime rate of Barclays Bank plc from time to time until the overdue amounts are paid in full; and iii) an indemnity from the Buyer against all expenses and legal costs incurred by the Company in recovering overdue amounts and/or incurred as a result of cancellation or suspension of deliveries or performance.

  9. Quality

    a)Subject to Condition 9.b) the Company warrants that: i) all Goods shall upon delivery and for a period of 12 months (unless otherwise stated) thereafter be of satisfactory quality and be reasonably fit for any purpose for which they are commonly supplied; ii) that all Services shall be carried out with reasonable skill and care, and all conditions, warranties or other terms whether express or implied, statutory or otherwise, inconsistent with this Condition 9.a), are hereby expressly excluded to the fullest extent permitted by law. b)The warranty given in Condition 9.a) will not apply: i) where the defect complained of arises from any drawing, design or any specification supplied by the Buyer or arises from fair wear and tear, wilful damage, the Buyer's negligence, abnormal working conditions, or misuse or alteration or repair of the Goods without the Company's approval or arises from any failure to follow the Company's instructions (whether oral or in writing); ii) if the Company or its agents is not given a reasonable opportunity to safely inspect the Goods and/or evidence of the defect in the Services; iii) if the total price for the Work has not been paid; iv) to any Goods, parts, materials or equipment not manufactured by or on behalf of the Company, in respect of which the Buyer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to the Company. c)The entire liability of the Company and the Buyer's exclusive remedy in the event of a breach by the Company of the warranty in Condition 9.a) or any defect in any Work shall be (and the Company shall have no further liability in contract, negligence or otherwise for any defect in quality of the Work or fitness for purpose of the Work) at its option either to credit the price (if already paid) attributable to the faulty Work or repair, rectify, reperform or replace the faulty Work provided that any faulty Goods are, unless otherwise agreed in writing, returned to the Company in their delivered state at the Buyer's expense within a reasonable time and in any event within 28 days of the defect becoming apparent. Any replacement Goods will be guaranteed on the terms set out in this Condition 9 for the unexpired portion of the [3] month period.

  10. Liability

    a)Nothing in these Conditions shall exclude or limit the liability of the Company for death or personal injury caused by the Company's negligence or fraudulent misrepresentation. b)The Company shall not be liable to the Buyer in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof, (i) for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings, or (ii) for damage to the Buyer's reputation or goodwill, or (iii) for any loss resulting from any claim made by any third party, or (iv) for any special, indirect or consequential loss or damage of any nature whatsoever. c)Without prejudice to Condition 8.c), 10.a) and 10.b) the Company's liability in contract tort, (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the greater of the Contract price or the amount receivable by the Company for the claim under its insurance policy covering such risks provided that nothing in this Condition shall oblige the Company to obtain any insurance or claim upon any insurance which it holds. The Buyer acknowledges that delay in notifying any claim may prevent the Company recovering any money under such policy. d)The Buyer acknowledges that the allocation of risk in this Contract reflects the price paid for the Work and that it is not within the Company's control how or for what purposes the Work is used. e)The Buyer is responsible for selecting the Goods in accordance with the knowledge of its requirements and for the use and results obtained from the Goods.

  11. Intellectual Property Rights and Confidentiality

    a)The Buyer shall not, under any circumstances acquire any right in or to any of the IPRs (which in these Conditions shall mean any intellectual property rights of any nature including without limit any and all inventions, patents, utility models, design rights, database rights, topography rights, copyright, know how, trade secrets, confidential information, trade marks, service marks, trade names and goodwill) subsisting in, resulting from or relating to Work or any plans, descriptions, blue-prints, designs, technical information documents, drawings and/or specifications relating thereto either (a) supplied by the Company to the Buyer in connection with Work or (b) resulting from the Work unless otherwise expressly agreed by the Company in writing. If the Buyer shall in any way acquire any such rights then the Buyer shall immediately inform the Company and shall forthwith take such steps as may be required by the Company to assign such rights or vest such title in the Company. c)The Buyer shall keep confidential and not use, without the prior written consent of the Company, all or any information supplied by the Company to the Buyer or disclosed to or obtained by the Buyer pursuant to or as a result of the Contract, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Buyer, or disclosure of the same is required by law or by any other governmental or other regulatory body.

  12. Installation and Work on Site

    a)Where the Company undertakes the installation of equipment or work on site as part of the provision of the Goods and/or the Services, then unless otherwise agreed the Buyer shall at its own expense: (i) provide access to, clear and prepare the site (including proper foundations), unload the Goods and move the Goods to the place where they are to be installed and provide adequate electricity and such other utilities, services and facilities as are necessary to enable the Company to carry out such installation and/or work expeditiously and without interruption; (ii) obtain any and all necessary licences, permits and approvals as are necessary for the installation or work as required. b)The Buyer will fully indemnify and keep the Company indemnified against all claims and costs (including without limit the costs of Sub-contractors) arising from or in connection with the Customer's obligations in this Clause 12.

  1. Termination

    Without prejudice to any of its other rights the Company may immediately terminate the Contract in whole or in part and demand payment of amounts due or accruing to the Company whether under the Contract or otherwise, re-sell the Goods and/or withhold or cancel any deliveries or suspend performance if any of the following occurs or is likely to occur: a)the Buyer is in breach of any of its obligations under the Contract which, if capable of remedy, the Buyer has not remedied within 30 days of receiving written notice from the Company; or b)the Buyer enters into any form of insolvency including without limit liquidation, bankruptcy, receivership, voluntary arrangement, administration or is unable to pay its debts as they fall due or the Buyer ceases or threatens cease to carry on business.

  2. General

    a)The failure to exercise or delay in exercising by the Company of a right or remedy provided by the Contract or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. b)The Buyer shall not be entitled to assign or sub-contract any of its rights or the obligations under the Contract, without the prior written consent of the Company. The Company may assign, license or sub-contract all or any part of its rights or obligation under the Contract without the Buyer's consent. References to the Company shall include its successors and assigns. c)The Contract shall be construed in accordance with and governed in all aspects by the Laws of England and Wales and the Buyer submits to the exclusive jurisdiction of the Courts of England and Wales. The Company shall be entitled to seek injunctive or any other relief in the courts of any jurisdiction whatsoever. d)A person who is not a party to this Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. This Condition does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.

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