CALGAVIN Terms & Conditions of Sale
1. INTERPRETATION
1.1 In these Conditions: ‘BUYER’ means the person whose Order for the Goods is accepted by CALGAVIN.
‘GOODS’ means the goods (including any instalment of the goods or any parts for them) which CALGAVIN is to supply in accordance with the Contract
‘CALGAVIN’ means Cal Gavin Limited (registered in England under number 1505148)
‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and CALGAVIN.
‘CONTRACT’ means the contract for the purchase and sale of the Goods between CALGAVIN and the Buyer incorporating these Conditions, the Proposal, the Specification and any confirmation of Order issued to the Buyer by CALGAVIN, and including all its schedules, attachments, annexures and statements of work.
‘ORDER’ means an order for the Goods from CALGAVIN placed by the Buyer
‘PROPOSAL’ means the proposal and quotation for the supply of Goods and/or Services issued by CALGAVIN to the Buyer
‘SERVICES’ means the services which CALGAVIN is to supply in accordance with the Contract.
‘SPECIFICATION’ means the any specification for the Goods and/Services agreed by CALGAVIN including (but not being limited to) the design, product and performance specifications.
‘WRITING’ means any method of reproducing words in a legible and non-transitory form.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
2.1 Any quotation or tender issued by CALGAVIN is an invitation to treat only and is not capable of acceptance by the Buyer.. Each Order by the Buyer to CALGAVIN shall be an offer to purchase the Goods and/or Services subject to the Contract including these Conditions and CALGAVIN may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Goods and/or Services shall arise, until the earlier of CALGAVIN’s written acceptance of the Order or CALGAVIN dispatching the Goods or notifying the Customer that they are available for collection (as the case may be), or otherwise performing the Services. CALGAVIN shall sell and the Buyer shall purchase the Goods and/or Services subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and CALGAVIN.
2.3 CALGAVIN’s employees or agents are not authorised to make any representations concerning the Goods and/or Services unless confirmed by an authorised representative of CALGAVIN in Writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations, which are not so confirmed.
2.4 Marketing and other promotional material relating to the Goods and/or Services are illustrative only and do not form part of the Contract.
2.5 Any advice or recommendation given by CALGAVIN or its employees or agents to the Buyer or its employees or agents as to the storage, application, performance or use of the Goods and/or Services (as may be applicable) which is not confirmed in Writing by CALGAVIN is followed or acted upon entirely at the Buyer’s own risk, and accordingly Cal Gavin shall not be liable for any such advice or recommendation which is not so confirmed.
2.6 The Buyer shall be responsible for ensuring the suitability and fitness of the Goods and/or Services for its particular purpose and Cal Gavin gives no warranty in relation thereto. In particular CALGAVIN does not accept responsibility for the selection of appropriate materials for the Goods and/or Services the suitability of such materials for the Buyer’s purpose. The Buyer warrants to CALGAVIN that the Specification is correct and sufficient for the Buyer’s purpose and that it has provided all relevant full accurate and correct information as to its business needs and purposes to CALGAVIN
2.7 CALGAVIN shall at all times retain the right to and the Buyer shall keep secret and confidential all particulars and descriptions of the Goods and/or Services equipment processes performance operational or other data or information know-how formulae and the like of CALGAVIN and/or relating to the Goods and/or Services and shall not disclose the same to any third party. The Buyer shall not use or otherwise exploit in any manner any of the said confidential information or the Goods and/or Services whether in connection with its own manufacture or research and development operation or otherwise. All intellectual property and other rights in the said confidential information and the Goods and/or Services including letters patent know-how industrial registrable design copyright or design right are and remain the property of CALGAVIN and the Buyer shall not cause or permit anything which may damage or endanger the said intellectual property or CALGAVIN’s title to it.
The Buyer agrees to supply as soon as reasonably possible any information and data that is generated by the Buyer in connection with the performance of the Goods and/or Services after Delivery that is reasonably required by CALGAVIN.
3. ORDERS AND SPECIFICATIONS
3.1 The Buyer shall be responsible to CALGAVIN for ensuring the accuracy of the terms of any Order (including any applicable design specification data and technical information) submitted by the Buyer, and shall be responsible to check and verify any such design specification data and technical information submitted by Cal Gavin to the Buyer to ensure the technical accuracy of the same and that the Order including such specification data and technical information is in accordance with the Buyer’s requirements. The Buyer shall supply CALGAVIN with any necessary information relating to the Goods and/or Services within a sufficient time to enable Cal Gavin to perform the Contract in accordance with its terms.
3.2 No Order which has been accepted by CALGAVIN may be cancelled by the Buyer except with the agreement in Writing of CALGAVIN and unless otherwise agreed in Writing the Buyer shall indemnify CALGAVIN in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by CALGAVIN as a result of cancellation.
4. PRICE OF THE GOODS
4.1 Subject to clause 4.2 the price of the Goods and/or Services shall be the price quoted in writing by CALGAVIN. Where no such price is quoted the price shall be calculated in £GBP in accordance with CALGAVIN’s scale of charges in force from time to time
4.2 CALGAVIN reserves the right at any time before delivery to increase the price of the Goods and/or Services to reflect any increase in the cost to CALGAVIN which is due to any factor beyond the control of CALGAVIN (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, increase in the costs of materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and/or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Cal Gavin adequate information or instructions.
4.3 Unless otherwise agreed in Writing between the Buyer and CALGAVIN, all prices are exclusive of delivery, insurance, shipping carriage, and all other related charges or taxes, and where CALGAVIN agrees to deliver the Goods otherwise than at CALGAVIN’s premises, the Buyer shall be liable to pay all delivery costs. Unless otherwise agreed in Writing all Goods shall be installed by and at the expense of the Buyer and quoted prices shall not include service calls by CALGAVIN.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to CALGAVIN.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and CALGAVIN, CALGAVIN shall be entitled to invoice the Buyer for the price of the Goods and/or Services (as the case may be) on or at any time after delivery of the Goods and/or performance of the Services (as the case may be), unless the Goods are to be collected by the Buyer or the Buyer fails to take delivery of the Goods, in which event CALGAVIN shall be entitled to invoice the Buyer for the price at any time after CALGAVIN has notified the Buyer that the Goods are ready for collection or (as the case may be) CALGAVIN has tendered delivery of the Goods. Where CALGAVIN is unable to supply the Services because of the Buyer’s noncompliance with any term of this Contract, CALGAVIN shall be entitled to invoice the Buyer for the price of the Services.
5.2 Unless otherwise agreed in Writing the Buyer shall pay the price of the Goods and/or Services without deduction or set off by the due date as stated on CALGAVIN’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. Where there is no due date stated on the invoice the Buyer shall pay the price of the Goods and/or Services to CALGAVIN within 30 days of the date of CALGAVIN’s invoice. The time of payment of the price shall be of the essence of the Contract. No dispute in relation to any part or parts of the Contract or any other contract between CALGAVIN and the Buyer nor any defect in relation to the Goods and/or Services or any part or parts thereof shall entitle the Buyer to withhold payment on any account.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to CALGAVIN, CALGAVIN shall be entitled to;
(a) terminate the Contract or suspend any further work for or deliveries to the Buyer.
(b) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and CALGAVIN) as CALGAVIN may think fit (notwithstanding any purported appropriation by the Buyer);
(c) charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of up to 8 per cent per month until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);
(d) charge the buyer any late payment fees and charges to which CALGAVIN is statutorily entitled.
6. DELIVERY
6.1 Unless CALGAVIN otherwise agrees in Writing delivery of the Goods shall be made ExWorks CALGAVIN, Minerva Mill, Innovation Centre, Station Road, Alcester B49 5ET Incoterms 2020 and the Goods shall be deemed delivered when CALGAVIN delivers the Goods to the Customer in accordance with this clause 6.1 or any other delivery arrangement CALGAVIN agrees in Writing (“Delivery”)
6.2 CALGAVIN shall perform the Services at the location agreed in Writing with the Buyer.
6.3 Any dates quoted for delivery of the Goods and/or performance of the Services are approximate only and whilst reasonable endeavours will be used to meet such dates CALGAVIN shall not be liable for any delay in delivery of the Goods and/or performance of the Services howsoever caused. Time for delivery and/or performance shall not be of the essence unless previously agreed by CALGAVIN in Writing.
6.4 Where the Goods are to be delivered and/or Services are to be performed in instalments, each delivery shall constitute a separate contract and failure by CALGAVIN to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5 If CALGAVIN is unable to deliver the Goods and/or perform the Services by reason of unavailability of materials, the Buyer’s failure to comply with its obligations under the Contract or for any other cause beyond CALGAVIN’s reasonable control it shall notify the Buyer in Writing as soon as reasonably practicable. Such notification shall constitute a full and complete discharge of CALGAVIN’s liabilities pursuant to the Contract.
6.6 If the Buyer fails to take delivery of the Goods at the time stated for delivery or fails to give CALGAVIN adequate delivery instructions within 14 days after CALGAVIN notifies the Buyer that the Goods are available for despatch (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of CALGAVIN’s fault) then, without prejudice to any other right or remedy available to CALGAVIN, who may store the Goods at the Buyer’s risk and as it thinks fit until actual delivery and charge the Buyer for all costs ( including insurance) of storage. If the Buyer has not taken delivery of the Goods or collected them within reasonable time, CALGAVIN may resell or otherwise dispose of the Goods without any obligation or liability to the Customer.
6.7 If completion of the Contract is delayed by reason of the Buyer’s failure to take delivery of the Goods or to allow any installation or work forming part of the Contract to be carried out in accordance with the terms of the Contract then without prejudice to any other right or remedy CALGAVIN shall be entitled to demand payment in full of all amounts payable to CALGAVIN under the Contract at any time after giving notice in Writing to the Buyer of CALGAVIN’s readiness to tender delivery of the Goods or perform the Contract and the Buyer shall in addition indemnify CALGAVIN against all loss, costs, damages, charges and expenses incurred by CALGAVIN as a result of such delay or failure.
7. RISK AND PROPERTY
7.1 Unless otherwise agreed in writing, risk of damage to or loss of the Goods shall pass to the Buyer at the time when the Goods are loaded on to transport at CALGAVIN’s premises for transmission to the Buyer. The Buyer shall forthwith on delivery and at its cost provide proper and appropriate storage for the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title to the Goods shall not pass to the Buyer until CALGAVIN has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by CALGAVIN to the Buyer and all other debts for which payment is then due by the Buyer to CALGAVIN.
7.3 Until such time as title to the Goods passes to the Buyer, the Buyer shall hold the Goods as CALGAVIN’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as CALGAVIN’s property.
7.4 Until such time as title to the Goods passes to the Buyer CALGAVIN shall be entitled at any time to require the Buyer to deliver up the Goods to CALGAVIN and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods and the Buyer grants an irrevocable license to CALGAVIN for the purposes set out in this clause 7.4
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of CALGAVIN, but if the Buyer does so all moneys owing by the Buyer to CALGAVIN shall (without prejudice to any other right or remedy of CALGAVIN) forthwith become due and payable.
8. WARRANTIES AND LIABILITY
8.1 Subject to the conditions set out below CALGAVIN warrants that:
(a) the Goods will correspond with the Specification at the time of Delivery and will be free from defects in material and workmanship which may develop under proper and normal use for a period of twelve months from Delivery.
(b) the Services will correspond with the Specification and will be free from defects in material and workmanship which may develop under proper and normal use for a period of twelve months from completion of the relevant Services.
8.2 The above warranty is given by CALGAVIN subject to the following conditions:
(a) The Buyer shall notify CALGAVIN in Writing of any defect apparent from a reasonable inspection of the Goods and/or Services and of the nature and details thereof within three months from the date of Delivery and/or performance of the relevant Service (as may be applicable)
(b) The Buyer shall notify CALGAVIN of any latent defects on discovery setting out the nature and details of such defects.
(c) CALGAVIN’s liability in respect of any Goods and/or Service that do not comply with the warranty set out at 8.1 shall be limited to repair or replacement or accordance with clause 8.6
(d) CALGAVIN shall be under no liability in respect of any defect in the Goods arising from any instruction, drawing, design data information or specification supplied by the Buyer.
(d) CALGAVIN shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, ab-normal working conditions, failure to follow CALGAVIN’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods and/or Services without CALGAVIN’s approval.
(f) CALGAVIN shall be under have liability to the Buyer if the total price for the Goods and/or Services has not been paid by the due date for payment or if the Buyer has not otherwise complied with the terms of the Contract.
(g) The above warranty does not extend to component parts materials or equipment not manufactured by CALGAVIN but incorporated in the Goods and/or Services, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as it given by the manufacturer to CALGAVIN.
8.3 Any additional performance warranty given by CALGAVIN to the Buyer in Writing relates only to the performance of the Goods and/or Services and will be subject at all times to clause 8.2 above.
8.4 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods shall (whether or not delivery is refused by the Buyer) be notified to CALGAVIN within 14 days from the date of delivery or (where the defect was not apparent on reasonable inspection) within a reasonable time after discovery of the defect. If delivery is not refused, and the Buyer does not notify CALGAVIN accordingly, the Buyer shall not be entitled to reject the Goods and CALGAVIN shall have no liability for such defect, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6 CALGAVIN shall be entitled to repair the Goods and/or reperform Services (or the part in question) free of charge or, at CALGAVIN’s sole discretion, replace the Goods (or the part in question) but CALGAVIN shall have no further liability to the Buyer.
8.7 No Goods shall be returned to CALGAVIN unless agreed in Writing by CALGAVIN. CALGAVIN will issue a Goods Returns Note for all authorised returns a copy of which must accompany the returned Goods. All charges for transport packaging and insurance of returned Goods shall be prepaid by the Buyer.
8.8 Except in respect of death or personal injury caused by CALGAVIN’s negligence;
(a) CALGAVIN shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law;
(b) CALGAVIN shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit or otherwise),costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of CALGAVIN, its employees or agents or otherwise) which arise out of or in connection with the supply or installation of the Goods and/or Services or any part or parts thereof or their use or resale by the Buyer, except as expressly provided in these Conditions or the Contract;
(c) CALGAVIN’s total liability to the Buyer howsoever arising shall not exceed the price for the corresponding Goods and/or Services to which the Buyer’s loss relates.
9. BUYER OBLIGATIONS
9.1 The Buyer shall at all times and in all respects:
(a) Cooperate with CALGAVIN in all matters arising in connection with the Contract, the supply of Goods and/or the performance of the Services;
(b) Make any location, information and personnel necessary for the performance of the Service and/or supply of the Goods available to CALGAVIN;
(c) Inform CALGAVIN in a timely manner of any matters which might affect the supply of Good and/or Services (including but not being limited to health and safety and security matters)
(d) Obtain and maintain all necessary licences authorities and/or consents required for CALGAVIN to supply the Goods and/or Services.
10. INSOLVENCY OF BUYER
10.1 This clause applies if:
(a) the Buyer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being a company) becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
(b) an encumbrancer takes possession, or a receiver is appointed, or any of the property or assets of the Buyer; or
(d) anything analogous to any of the above under the law of any jurisdiction occurs in relation to the Buyer; or
(e) the Buyer ceases, or threatens to cease, to carry on business; or
(f) CALGAVIN reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies then, without prejudice to any other right or remedy available to CALGAVIN, CALGAVIN shall be entitled to terminate the Contract or suspend any further work or deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.3 For the avoidance of any doubt should the Buyer be subject to or is reasonably expected to be subject to any of the events set out at clause 10.1 the Buyer shall provide immediate written notice to CALGAVIN.
11 EXPORT TERMS
11.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to any special terms agreed in Writing between the Buyer and CALGAVIN) apply not withstanding any other provision of these Conditions.
11.2 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination including (without limitation) the payment of any export and import taxes or any duties thereon and obtaining the required export and import permits.
11.3 The Buyer shall be responsible for arranging for testing and inspection of the Goods at CALGAVIN’s premises before shipment. CALGAVIN shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
12 FORCE MAJEURE
21.1 Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from an event that is beyond the reasobale control of the parties (Force Majeure Event). The party subject to the Force Majeure Event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure Event continues for a continuous period of more than 30 days, either party may terminate the Contract by written notice to the other party.
13. TERMINATION
13.1 In addition to the termination rights expressly provided for under these Condtions CALGAVIN may terminate the Contract or any other contract which it has with the Buyer at any time by giving notice in writing to the Buyer if:
a) the Buyer commits a material breach of the Contract and such breach is not remediable;
b) the Buyer commits a material breach of the Contract which is not remedied within 7 Business Days of receiving written notice of such breach;
c) the Buyer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid [30] days after the date that the Supplier has given notification to the Customer that the payment is overdue; or
d) any consent, licence or authorisation held by the Buyer is revoked or modified such that the Buyer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
13.2 If the Buyer becomes aware that any event has occurred, or circumstances exist, which may entitle CALGAVIN to terminate the Contract under this clause 13, it shall immediately notify CALGAVIN in writing.
13.3 CALGAVIN reserves the right to terminate the Contract at any time on giving 14 days notice in Writing to the Buyer
13.4 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of CALGAVIN at any time up to the date of termination.
14. GENERAL
14.1 The Buyer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without CALGAVIN’s prior written consent.
14.2 Save for any affiliate of CALGAVIN a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
14.3 If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail to the extent of the conflict.
14.4 The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
14.5 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
14.6 No waiver by CALGAVIN 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.
14.7 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 and the remainder of the provision in question shall not be affected thereby.
14.8 The Contract shall be governed by the laws of England and subject to the exclusive jurisdiction of the Courts of England.
