JCB Drivetrain Systems Limited
Conditions of business
means JCB Drivetrain Systems Limited
means the customer of the Company
means any contract entered into for the supply by sale or otherwise of Goods by the Company to the Customer
means any Goods forming the subject matter of any Contract including parts and components and shall include services.
Quotations, Contracts and Variations
2.1 Quotations by the Company may be withdrawn at any time and in any event shall be deemed to have been withdrawn after thirty (30) days from the date of the quotation or other period therein stated but no Contract shall come into existence before the Company has given its written acknowledgement of the Customer's order. No amendments or variation of the Contract shall be effective unless agreed by the Company in writing.
2.2 These conditions shall be incorporated in each Contract to the exclusion of any terms or conditions referred to by the Customer and supersede any previous conditions of business of the Company. Acceptance of any delivery or performance by or on behalf of the Customer shall in any event be conclusive evidence of the Customer's acceptance of these conditions.
2.3 Each Contract supersedes all previous oral or written communications between the Company and the Customer not expressly referred to in any order acknowledgement given by the Company and no amendment of any Contract shall bind the Company unless confirmed by it in writing.
2.4 The Customer shall be responsible to the Company for ensuring the accuracy of terms of any order (including any applicable specification) submitted by the Customer, and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
2.5 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Company's quotation or the Customer's order (if accepted by the Company).
2.6 No order that has been accepted by the Company may be cancelled or suspended by the Customer except with the written agreement of the Company and on terms that the Customer shall indemnify the Company against all loss (including loss of profit), costs (including of labour and materials) damages, charges and expenses incurred by the Company as a result of such cancellation or suspension.
3.1 The Company's prices exclude VAT where applicable and sales or use taxes, excise duties, import or export duties or the like and, unless otherwise agreed in writing by the Company are those ruling at the date of dispatch ex the Company's works exclusive of carriage, insurance and packing. Goods are however, normally supplied on stillages which remain the property of and are returnable to the Company. Stillages which are damaged or not returned will be invoiced.
3.2 The Company's prices may be varied or altered at any time and, where in any Contract the price is other than that ruling at the date of dispatch, it may be varied, at the Company's discretion, for any increases in costs incurred by the Company after the date on which it was quoted, from fluctuations (including currency variations) in the cost of materials, equipment, labour, transport or utilities arising from whatever cause or any alterations in specifications, quantities or production, delivery or performance schedules or suspension of work requested by the Customer, or delay in the supply by or on behalf of the Customer of any instructions, data or materials (including 'free issue' items) or any inaccuracy, insufficiency or defect therein or non conformity to their specifications (whether or not apparent on inspection).
4.1 All amounts due to the Company unless otherwise agreed in writing by the Company, shall be payable in pounds sterling not later than 30 days following the end of the month in which the Goods are despatched by the Company, without any discount, set-off or other deduction whatsoever.
4.2 In certain circumstances payment by letter of credit or prepayment may be required. If so the Company will notify you of this requirement.
4.3 In appropriate circumstances we may conduct credit searches which may involve us passing information you give us to a credit reference agency and which you hereby consent to.
4.4 The time or times of payment shall be of the essence of the Contract. Without prejudice to any other rights of the Company, if the invoice is not paid in full by the due date interest shall be payable on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgment) at the rate of three per cent (3%) over the base rate from time to time quoted by The Bank of England and compounded monthly. The Customer shall also pay all legal and other costs incurred by the Company in recovering any amounts owing from the Customer and any Goods in which title has been retained by the Company. Such costs shall be due for payment immediately on invoice.
4.5 Without prejudice to any other of its rights and notwithstanding any other agreement or arrangement with the Customer the Company shall be entitled by giving written notice to the Customer at any time to require the Customer to tender the price of the Goods in a manner satisfactory to the Company and to refrain from delivering the Goods until the price has been so tendered.
4.6 If the Customer fails to make any payment when and as due or other circumstances entitling the Company to suspend or terminate the Contract arise then the price of all such Goods as have been delivered or manufactured for any order of the Customer shall forthwith thereupon became immediately due and payable.
Delivery, Risk and Performance
5.1 Any dates quoted by the Company are subject to confirmation following receipt of the Customer's order and the Customer's supply free of charge at the times and places stipulated by the Company of all instructions or other items required from the Customer for the Contract.
5.2 Unless otherwise agreed in writing by the Company Goods shall be delivered and risk in them shall pass to the Customer on dispatch from or, if earlier, when they are made available to the Customer at the Company's works.
5.3 Where Goods are consigned to a destination outside the United Kingdom mainland any trade terms referred to in the Contract shall to the extent consistent with these conditions be as defined in the edition of 'Incoterms' then current and the Goods shall be delivered and risk in them shall pass to the Customer as therein provided.
5.4 The Company will endeavor to comply with any date given by it and to advise of any adjustment but shall not be liable for any penalty, loss, injury, damage or expense arising from any delay or failure in delivery or performance from any cause whatsoever nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance or repudiate the Contract.
5.5 If the Customer fails to take delivery of any Goods on the due date or provide adequate delivery instructions the Company may without prejudice to any other remedy hold the Goods at the risk of the Customer who shall pay all storage, transportation, handling or other charges incurred by the Company as a result of such failure and the Company shall be entitled to payment as though delivery had taken place in accordance with the Contract.
5.6 The Company may determine the form of transport of any Goods the price of which has been agreed to include carriage and may charge extra for any special arrangements requested by the Customer. Off-loading shall be the entire responsibility of the Customer.
5.7 Unless otherwise agreed in writing the Company may deliver the Goods by installments in any order and each installment shall be deemed the subject of a separate Contract. No failure by the Company in any one or more installments shall entitle the Customer to repudiate any Contract for Goods previously delivered or to refuse to accept any undelivered Goods.
6. 1 Notwithstanding the earlier passing of risk, title in the Goods shall remain with the Company and not pass to the Customer (who shall, nevertheless, subject to the conditions stated below, be entitled to resell them as principal only, in the ordinary course of business) until the Company has received in cash or cleared funds payment in full of the price of the Goods and of all other debts for any other goods or services then or subsequently owed to it by the Customer on any account.
6.2 Until title passes:
6.2:1 the Customer shall hold the Goods as bailee for the Company, insure them with a reputable insurer against loss or damage for their full replacement value (and at the Company's request provide evidence as to the existence and sufficiency of such insurance), and ensure that they are at all times clearly identified as the property of the Company, and
6.2:2 the Company shall be entitled at any time on demand to
6.2:2:1 repossess, remove from other equipment (without being liable for any damage thereby occasioned) and sell all or any of the Goods and thereby terminate (without any liability to the Customer) the Customer's right to use or sell them, and
6.2:2:2 enter any premises where the Goods are located for the purpose of inspecting or repossessing them.
6.3 The Company shall, without prejudice to any other remedy, be entitled to maintain an action for the price of the Goods although title in them has not passed to the Customer.
6.4 The Company transfers to the Customer only such title and rights of use as the Company has in any Goods and in the case of material provided by any third party shall transfer only such title and rights as that party had and has transferred to the Company.
Loss or Damage In Transit and Incorrect Goods
7.1 The Company will subject to these Conditions at its option within a reasonable period replace at the original point of delivery or repair free of charge or give credit for the invoice value of any Goods which are not in accordance with their contract description, or have been damaged or are missing or lost in transit (provided that the price of the Goods has been agreed in writing to include carriage and the Goods have been transported in the Company's own vehicles or by a carrier appointed by the Company).
7.2 The Company shall have no liability in respect of any such discrepancy unless:
7.2:1 (in case of Goods not complying with their contract description) written notice is given to the Company within seven (7) days of receipt.
7.2:2 (in case of loss or damage in transit written notice is given to the Company and the carrier within three (3) days (or such other periods as will enable the Company to comply with any time limits or other requirements imposed by the Carrier of which written notice has been given by the Company to the Customer) of receipt.
7.2:3 (in case of loss of a whole consignment) written notice is given to the Company within ten (10) days (or twenty eight (28 days) or other period agreed in writing by the Company for Customers outside the United Kingdom) from the date of the invoice.
8.1 The Company will subject to these conditions at its option within a reasonable period make good free of charge by replacement at the original point of delivery or repair or give credit for the invoice value of any Goods in which there occurs any failure occasioned by a defect of materials or workmanship (normal wear and tear excepted) which appears during the warranty period (if any) agreed in writing between the Company and the Customer for the Goods provided the Customer has supplied the Company with a properly completed Company Claim Form (or the Customer's own written notice of claim provided it contains at least the information from time to time required by the Company Claim Form) immediately upon the occurrence of such failure and in any event within the said warranty period.
8.2 The Company shall have no liability for:
8.2:1 any Goods which are used without the Company's prior written approval for a purpose for which they are not designed
8.2:2 any Goods which in the Company's opinion have been installed, used, maintained, serviced, or stored otherwise than in accordance with the Company's recommendations (or the recommendations of any supplier of any item with which the Goods are used) or have suffered any misuse, neglect or accident.
8.2:3 any accessories or proprietary parts or fittings and if any item which is not of the Company's manufacture is alleged to be defective, the Company's liability shall be limited to assigning to the Customer (so far as it is able to do so) any warranty given by the manufacturer of that item.
8.2:4 any Goods in which any part not of the Company's manufacture or supply has been used without the Company's prior written approval or the Customer has failed to carry out any modification or improvement recommended by the Company.
8.2:5 any Goods whose serial number or other identification mark or plate has been removed, defaced or tampered with.
8.2:6 any costs (including labour) of removing any Goods forming the subject of any claim which has been accepted by the Company or the refitting of any repaired or replacement items or any taxes duties or similar charges payable in connection with the transportation to the Customer of any replacement parts.
8.2:7 any defect in any replacement part which appears after the warranty period applicable to the original Goods has expired, or
8.2:8 consumable items including but not limited to oils, greases, and filters.
8.3 Except as expressly provided in this condition the Company accepts no liability, express or implied, for any life or wear of any Goods or their merchantability or suitability for any particular purpose or use under specific conditions (whether or not known to the Company).
9.1 The Company shall have no liability in respect of any claim by the Customer under these conditions unless the Customer has afforded the Company reasonable opportunity and facilities for the investigation of any claim and the making good of any discrepancy or defect and complied with any request by the Company for a written report to any alleged defect and any photographic or other evidence or maintenance or operating records and if the Company so requests, the return, securely packed, of any Goods (including the packing) for examination or rectification by the Company, the cost of transportation to be borne by the Customer but credited by the Company if the claim is accepted.
9.2 Where a claim is accepted, any replaced items shall belong to the Company and may be disposed of only in accordance with the Company's instructions.
Extent of Liability
10.1 Except to the extent stated in these conditions or otherwise agreed in writing by it, the Company shall have no obligation, duty or liability in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever under or in connection with the Contract other than for death or personal injury resulting from its negligence or for fraud on the part of its directors, officers or employees whilst acting in the course of their employment.
10.2 The Company shall have no liability for any consequential loss or damage whether direct or indirect suffered by the Customer under or in connection with the Contract including but not limited to wasted time or expenditure, loss of profits, production, business revenue, expected savings or goodwill or any claim against the Customer by any person and the Customer shall be solely responsible for any such claim.
10.3 The Company shall be discharged of all liability to which these conditions apply unless proceedings are begun within twelve (12) months after the Customer became aware (or should reasonably have become aware) of the facts giving rise to such liability.
10.4 The Company's liability in connection with the Goods shall in no circumstances, exceed their invoice price or such lower figure as the Company has stipulated in writing.
10.5 Where the Company is liable under these conditions in respect of some only of the Goods included in a particular delivery the Contract shall remain in full force and effect in respect of the Goods previously delivered or any remaining Goods and the Customer shall not reject or refuse to pay for them.
Termination or Suspension
11.1 If the Customer fails to make any payment when and as due or otherwise defaults in any of its obligations under the Contract or any other agreement with the Company, is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, has a receiver, manager, administrator, administrative receiver or trustee in bankruptcy (as the case may be) appointed for all or any part of its undertaking, assets or income, is the subject of any bankruptcy order, has a resolution passed for its winding up, has a petition presented to any court for an administration order or for its winding up, enters into any composition or arrangement with its creditors (whether formal or informal), has any distrait or execution levied an any of its assets, ceases to trade or suffers in consequence of debt any action similar to any of the foregoing or the Company bona fide believes that any of the foregoing matters may occur, then, in any such event, the Company shall, without prejudice to any other remedy, be entitled, at its discretion, by giving the Customer written notice at any time, to forthwith suspend its performance of or terminate such Contract without liability to the Customer.
11.2 The rights of the Company shall not be prejudiced or restricted by any indulgence or forbearance extended to the Customer and no waiver by the Company in respect of any breach shall operate as a waiver in respect of the same or any subsequent breach.
12.1 The Company shall not be liable for any delay or other failure to perform the whole or any part of the Contract resulting from any cause whatsoever beyond the Company's control existing at the date of the Contract or arising thereafter including but not limited to fire, explosion, breakdown or failure of plant or machinery, lack or failure of transportation facilities, supply of labour, materials, power or supplies, strike, lockout or labour dispute (whether or not at the Company's works), illness, epidemic, flood, drought, war, civil commotion, or restriction of any authority or governmental agency and the time for performance shall be extended by the period of any such delay.
13.1 Any specifications, drawings, particulars of weights and dimensions and other technical information contained in the Company's quotations, catalogues, price lists, advertisements or elsewhere are approximate only and intended merely to present a general idea of the Goods and (unless otherwise agreed in writing by the Company) are not to form part of the Contract. The Company reserves the right to discontinue the sale of particular products or to alter their designs and specifications without notice and to deliver Goods conforming to the altered design or specification in fulfillment of any Contract. No contracts shall constitute a sale by sample notwithstanding that any products may have been exhibited to or inspected by the Customer.
13.2 Any performance figures given by the Company are based upon experience, trials or testing but unless expressly agreed in writing by the Company no liability is accepted if such performance figures are not achieved by the Goods.
13.3 The Company shall have no liability for any advice, opinion or information furnished by the Company, its servants or agents unless given in writing in response to a written request by the Customer referring to the Contract.
13.4 All drawings, designs or other data (whether or not patentable or patented) and all rights therein (including copyright and design rights) and all materials, tools, patterns or other items prepared or made available by the Company for the Contract shall, unless otherwise agreed by the Company, be and remain the Company's property and the Customer shall not copy or produce the same in whole or in part in any form or allow others to do so.
13.5 The Customer shall indemnify and hold harmless the Company against any and all claims, proceedings, costs, damages, liabilities and expenses incurred or suffered by the Company arising from any instructions, data, drawings, specifications, tooling, equipment, goods, services or other items supplied by or on behalf of the Customer to the Company or from any failure to supply the same or from any infringement or alleged infringement of the rights of any third party claimed under or in relation to any patent, registered design, trademark, copyright, design right, breach of confidence or otherwise howsoever resulting from the Company's use of any of the foregoing items. The Company shall have no liability for any inaccuracy or inadequacy of such items and shall be entitled to charge extra for any costs resulting therefrom.
13.6 The Company may at its discretion sub-contract all or any of its obligations under the Contract but the Contract shall not be assigned by the Customer without the Company's prior written consent.
13.7 The Company shall have a lien on any goods in the Company's possession for all sums due at any time from the Customer on any account and shall be entitled to keep possession of or at its option sell or dispose of the same as agent for and at the expense of the Customer and apply any proceeds in and towards the payment of such sums on twenty eight (28) days written notice to the Customer.
13.8 The Customer shall treat the Contract and all information which it acquires thereunder as confidential.
14. If any dispute arises in connection with the Contract, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing ("ADR notice") to the other party to the dispute requesting a mediation. A copy of the request should be sent to CEDR. The mediation will start not later than 60 days after the date of the ADR notice.
Law Jurisdiction and Constitution
15.1 The Contract shall be governed by English law and the parties consent to the exclusive jurisdiction of the English courts in all matters relating to the Contract except to the extent the Company invokes the jurisdiction of the courts of any other country.
15.2 The headings of conditions are for convenience of reference only and shall not affect their interpretation.
16. Any notice to be given under the Contract shall be in writing and if sent by email or facsimile or forwarded by first class prepaid letter post to the receiving party at its business address as last notified in writing to the other party shall be deemed to have been given on the date of transmission of the email or facsimile (if receipt is confirmed in writing) or 2 working days (or 7 working days in the case of Customers outside the United Kingdom) following the date of posting.
Contracts (Rights of Third parties) Act 1999
17. A person who is not a party to the Contract has no right under the Contract (Rights of Third Parties) Act 1999 to benefit from or enforce any term of the Contract. This clause does not affect any right or remedy of a third party which exists or is available apart from that Act.
18. The Customer authorises the Company to carry out checks (including enquiries relating to directors or other individuals) with credit reference agencies and to keep a record of that search and to make available to such agencies information relating to the conduct of the Customer's account and the Customer acknowledges that the agencies concerned may keep and share the information supplied to them with other businesses in assessing applications for credit and/or fraud prevention.
JCB Drivetrain Systems Limited
Ash Road, Wrexham Industrial Estate, Wrexham, North Wales, LL13 9UF.
Registered in England, Number 1852360