1.1 In this agreement: “THE COMPANY” means COBA Precision Engineering Ltd, (registered in England under number 1651998) C/o COBA International Limited, Marlborough Drive, Fleckney, Leicester, LE8 8UR. “THE CUSTOMER” means the person, firm, or company with whom the Company contracts “CONDITIONS” means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and Conditions agreed in writing between the Customer and the Company “CONTRACT” means the Contract for the purchase and sale of the Products “ORDER” means the order placed by the Customer for the supply of Products and/or the Work and “Orders” shall be construed accordingly “WORK” means the installation, test, maintenance, repair or refurbishment work carried out by the Company where such has been agreed between the Company and the Customer in writing “PRODUCTS” means any item which the Company agrees to supply to the Customer upon these terms and conditions.
1.2 The headings in this Agreement are inserted only for convenience and shall not affect its construction.
1.3 Where appropriate words denoting a singular number only shall include the plural and vice versa.
1.4 Reference to any statute or statutory provision includes a reference to the statute or statutory provision as from time to time amended, extended or re-enacted.
1.5 In case of any discrepancy between the standard terms and Conditions and the specific terms negotiated for any particular contract, the specific terms shall prevail.
1.6 No variation to these Conditions shall be effective unless made in writing and signed by a director of the Company.
1.7 Unless otherwise agreed in writing by the Company, these terms and conditions expressly exclude any terms or conditions stipulated or referred to by the Customer in negotiations or orders, and the acceptance of an order by the Company shall constitute the acceptance of these terms and conditions by the Customer.
1.8 These Conditions supersede any prior representations whether made by or on behalf of the Company and whether orally or in writing.
2.1 No Order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company. Orders are only accepted by the Company subject to the credit worthiness of the Customer being satisfactory. Any alteration to such instructions or to the Order must be confirmed by the Company in writing.
2.2 The Company reserves the right to make an additional charge to cover the cost of making any variation or modification to a specification.
2.3 The Specification for the Products should be those set out in the Company’s quotation.
2.4 If the Products are to be manufactured or any processes are to be applied to the Products by the Company in accordance with a specification submitted by the Customer, the Customer shall indemnify the Company against all loss, damages, costs, and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Customers specification.
2.5 The Company reserves the right to make any changes in the specification of the Products which are required to conform with any applicable statutory requirements.
3.1 All estimates and quotations remain valid for thirty (30) days unless otherwise stated and thereafter at the option of the Company may be withdrawn or varied without notice.
3.2 All prices are:-
3.3 The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Products to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, foreign exchange fluctuation, currency regulation, alteration of duties, increase in the cost of labour or materials by more than 5%).
4.1 The buyer must inspect the Products immediately upon receipt and, subject to Clause 4.2 acceptance of the Products will be deemed to have occurred upon receipt of goods by the Customer.
4.2 If the products or any part thereof are damaged or otherwise do not meet the specification of the Products the Customer must notify the Company forthwith and in no case longer than five (5) days after delivery of the Products
4.3 Subject to any special terms agreed between the Company and the Customer, the Company shall be entitled to invoice the Customer for the price of the Products on or at any time after delivery of the Products or in the event that the Customer is to collect the Products at any time after the Company has notified the Customer the Products are ready for collection.
4.4 Unless otherwise agreed in writing by the Company, payments will be due net 30 days from the date of invoice on terms satisfactory to the Company and in default of such payment or if the Customer fails to pay any other outstanding amounts due to the Company the Company may withhold further deliveries and, where applicable, cease any work in respect of the contract or series of contracts to which the default relates and in respect of any other contract with the Customer. Furthermore in any case the Company shall hold the Customer liable for costs incurred in respect of goods in the course of manufacture already for despatch. The Company shall be entitled to bring an action for the price of part thereof whether or not the property to the goods has passed.
4.5 If the Customer fails to make any payment on the due date then without prejudice to any of the right or remedy available to the Company the Company shall be entitled to:-
4.6 An Order accepted by the Company may be cancelled or varied only with the written agreement of the Company and where such written agreement is obtained the Customer shall pay the amount of the cancellation charge (if any) which the Company may specify and shall reimburse and indemnify the Company in respect of all costs and charges which the Company may incur in part performance of the Order or where applicable the Work. Products must not be returned to the Company without the previous written consent of the Company, and where such consent has been obtained the cost of returning the Products must be borne by the Customer. Where the Company agrees to accept back Products it will specify the handling charge (if any) that will be made for so doing. No refund shall be given for Products returned to the Company without the express consent of the Company.
5.1 The Company shall be entitled to make part deliveries unless otherwise agreed in writing. Where the Products are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
5.2 Delivery to a carrier (whether independent or otherwise) shall be deemed to be delivery to the Customer and the risk of loss and damage to the Products shall pass to the Customer upon such delivery 5.3 All times quoted for delivery are estimated times only and time shall not be of the essence and the Company shall be under no liability and the Customer shall not have the right to terminate the Contract by reason of any delay in delivery.
6.1 Risk of loss of, damage to, or deterioration of the Products shall pass to the Customer’s relevant place of business where delivery is by the Company’s own transport, and in all other circumstances at the time of dispatch of the Products from the company’s premises.
6.2 The Company reserves title to the Products until such time as all sums due to the Company from the Customer whether in respect of the Products or otherwise are paid in full when they will pass to the Customer.
6.3 Until payment is received in full, the Customer shall maintain the Products in good condition and shall hold the Products as bailee of the Company and will store the Products so that they are readily identifiable as the property of the Company and will not permit the Products to become incorporated into any other equipment or system.
7.1 The Provisions of this Clause shall apply only where the agreement between the Company and the Customer provides for the testing of the products on the Customer’s site and any other activities carried out by the company in the carrying out of the work. The Company shall supply specifications for the carrying out of the Work and a representative of the Company may attend the Customer’s site during installation of the Products by the Customer, or by any agent or sub-contractor of the Customer, and may give such advice (if any) as it thinks appropriate.
7.2 Such attendance will be made any week day (except days which are statutory holidays in the country where the installation is made) and during the normal business hours of that country.
7.3 If, by reason of the suspension of the carrying out of the Work, or of any other delay thereto, caused by the Customer or its agent or sub-contractor (otherwise than in consequence of some default on the part of the Company), the Company shall incur additional expense, the Customer shall reimburse any such expense to the Company in addition to the payment of the price.
7.4 If the carrying out of the Work or any portion thereof is suspended as aforesaid for more than three months, the Company shall be entitled, without prejudice to any other remedy, to cancel the contract and to be paid for the supervision of the Work completed and materials purchased pursuant to the contract prior to the date of cancellation.
7.5 The Customer shall indemnify the Company for any losses liabilities or damages arising out of the Customer’s failure to provide a safe system of work for the Company’s employees and any injury or damage to any employee of the Company resulting from the negligence of the Customer or its employees invitees or agents.
The Contract shall be subject to the following:-
8.1 To the procurement by the Customer at his own expense of any import Licence necessarily required for the import of the Products into the country to which the Products are to be exported. The Import Licence number and date of expiry shall be advised at the time the order for the Products is placed with the Company: otherwise the order will remain in abeyance. In the event of the Import Licence expiring before the Products have been made available it shall be the responsibility of the Customer to obtain the renewal of such Licence. The Company shall not be liable for any expense or loss caused by delay in obtaining such Licence or the renewal thereof.
8.2 Where the Order is placed from an address in the United Kingdom, to the procurement by the Customer at his own expenses of any Export Licence, which may be required for the export of Products from the United Kingdom.
8.3 Where the Order is placed from an address outside the United Kingdom the Company will endeavour (without commitment) to obtain any Export Licence, which may be necessary.
If the Customer receives a claim that any item forming part of the Products manufactured by the Company infringes any copyright patent or other intellectual property rights of a third party, the Customer shall notify the Company in writing immediately. The Company will have the sole right to evaluate, settle or defend such claim and the Customer must give the Company all possible information and assistance for this purpose. The Company may at its own expense and option do all or any of the following:
If any court of competent jurisdiction holds such Product to constitute infringement the Company shall pay all costs and damages fully awarded on account of such infringement and if the use of such Product is prohibited the Company shall at its own option take action as specified in (b) and (c) above. If a claim to infringement relates to a Product or part sold but not manufactured by the Company, the indemnity given by the manufacturers of each Product or part shall apply. The rights and obligations of the Company and the Customer respecting patents are solely and exclusively as laid down in this condition.
10.1 In the event of the Customer becoming insolvent or going into liquidation (other than for the purposes of amalgamation or reconstruction) or making any arrangement or composition with its creditors or in the event of any proceedings in which the Customer’s solvency is involved including without limitation to the foregoing the appointment of a receiver over all or any part of the Customer’s undertaking or assets, payment in respect of all Products delivered by the Company to the Customer, and in respect of all work (including the Work carried out on behalf of the Customer) and in respect of any other sums owed by the Customer to the Company whether under the contract concerned or any other contract shall forthwith become due and payable and the Company shall be entitled to cancel the contract by notice in writing to the Customer. The Customer shall inform the Company immediately upon the happening of any one or more of the events stated in this condition and shall supply to the Company sufficient details thereof to enable the Company to exercise its rights hereunder.
11.1 The Company provides a warranty against defective manufacture of parts for a period of 1 year from the date of delivery of the Products.
11.2 Where the Company manufactures components to the Customers design or specifications, the warranty only covers defective manufacture. The Customer is responsible to ensure the design is fit for purpose.
11.3 Except where the Company may from time to time give any express guarantee in writing in connection with any particular product, it is expressly understood that no warranty is given, either express or implied, as to the suitability of its products for any specific purpose, even if that purpose is known to the Company.
11.4 If without prior consent of the Company repairs, modifications or alterations are made to the Products the Company shall be under no liability in respect of the Products and the Customer shall indemnify the Company against all and any claims for loss damages or injury resulting from the use of such Products repaired, modified or altered by the Customer.
12.1 The Company’s entire liability or any claim for loss, cost, damage, expenses or other liability arising out of or connected with this contract, or any obligation resulting therefrom shall in no case exceed the unit price of the Product, or proportionate part thereof involved in such claim.
12.2 Any act or omission on the part of the Company, its employees or subcontractors which results in a breach of its contractual obligations for the purpose of this Clause 8 will be known as an “Event of Default”.
12.3 The Company shall not be liable to the Customer in respect of an Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of any action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.
12.4 The Customer hereby agrees to afford the Company not less than 60 days (following notification thereof by the Customer) in which to remedy an Event of Default hereunder.
13.1 All confidential information including trade secrets provided to the Customer at any time whether in writing orally or in samples, drawings, documents or other materials is the property of the Company and shall not be disclosed by the Customer to any third party, or used for any purpose without the express written consent of the company, unless and until any such information falls into the public domain (other than as a result of a breach thereof).
13.2 No technical information of a confidential or proprietary nature relating to an order will be accepted by the Company other than pursuant to a formal written agreement.
14.1 Neither party shall be in breach of the Agreement if there is any total or partial failure of performance by it of its duties and obligations under this Agreement occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining any raw materials energy or other supplies labour disputes of whatever nature and any other reason beyond the control of either party. If either party is unable to perform its duties and obligations under this Agreement as a direct result of one of those reasons that party shall give written notice to the other of the inability, which sets out full details of the reason in question. The operation of this Agreement shall be suspended during the period (and only during the period) in which the reason continues. Forthwith upon the reason ceasing to exist, the party relying on it shall give written notice to the other of this fact. If the reason continues for a period of more than 90 days and substantially affect the commercial intention of this Agreement, the party not claiming relief under this Clause 10 shall have the right to terminate this Agreement upon giving 30 days’ written notice of such termination to the other party.
15.1 Any statements, representations or purported conditions and warranties made to the Customer before acceptance of an Order by the Company other than those in writing are hereby excluded or extinguished and do not form part of and are not collateral to the contract.
15.2 Save as provided in these conditions the Company shall be under no liability (other than in respect of death or personal injury resulting from the negligence of the Company) in contract tort or otherwise howsoever caused for anything done or omitted in connection with the Products, the Work, services supplied or any work in connection therewith.
15.3 The Company shall not be liable for any advice or expression of opinion given by it or its employees or agents in relation to the Products or their fitness for any particular purpose except to the extent that the same is contained in the terms of the contract or in the Company’s literature current on the date of acceptance of the Order.
16.1 The validity construction and performance of the Agreement shall be governed by English Law.
16.2 All disputes claims or proceedings between the parties relating to the validity construction or performance of the Agreement shall be subject to the non-exclusive jurisdiction of the High Court of Justice in England to which the parties hereto irrevocably submit. Each of the parties irrevocably consents to the award or grant of any relief in any such proceedings before the High Court of Justice in England. Either party shall have the right to take proceedings in any other jurisdiction for the purposes of enforcing a judgement or order obtained from the High Court of Justice in England.
16.3 If any dispute or difference shall at any time hereafter arise as to commission or royalty the matter shall be referred to an arbitrator to be appointed by the parties or in default of agreement by the President of the Law Society for the time being and his or their decision shall be binding on both parties and this shall be a submission to arbitration within the Arbitration Acts 1950-197.
17.1 Invalidity or unenforceability of any clause or sub clause hereof shall not affect the validity or enforceability of any other clause or sub clause and invalidity or unenforceability of any part of a clause shall not affect the validity of enforceability of the remaining parts of that clause.