Terms and Conditions of Sale
1 GENERAL
1.1 Unless otherwise agreed in writing all contracts for the sale of OCL's products or the supply of its services will be governed by these conditions. Any other terms, qualification or addition to these conditions, which the customer may seek to impose, or which are implied by trade, custom, practice or course of dealings will not apply unless expressly accepted by OCL in writing.
1.2 OCL's quotations are not offers and are valid only for ninety days from their date.
1.3 The customer’s order for the products or services specified in OCL's quotation (“Order”) shall constitute an offer to purchase the products or services in accordance with these conditions.
1.4 The Order shall be deemed to be accepted when OCL issues its written Order Acknowledgement or OCL makes the products available for delivery, at which point the contract shall come into existence.
2 REPRESENTATIONS
2.1 The customer hereby agrees that in entering into a contract with OCL it has done so only on the basis of these terms and conditions, any terms included in OCL’s quotation or otherwise in writing agreed between the parties to be a term of the contract. Such contract shall constitute the entire agreement between the parties.
2.2 No term included in the Order shall be incorporated in the contract unless expressly accepted by OCL in the Order Acknowledgement.
2.2 The customer acknowledges that it has not relied on, nor has any remedy in respect of, and any statement, warranty, assurances or representations made by OCL, its employees or its agents unless specifically referred to in these terms and conditions, included or referred to in OCL's quotation or otherwise expressly agreed in writing between the parties to be a term of the contract.
3 INSPECTION AND TESTS
Inspection and tests additional to OCL's standard inspection and tests, where practicable and subject to OCL's agreement, will be quoted separately and charged as an extra. If the presence of the customer's representative is required at any inspection or tests, but the customer’s representative fails to attend them if it has been seven days of OCL giving notice that it is ready to proceed, the tests may be carried out in the customer's absence.
4 PACKAGING
Unless otherwise stated, the price quoted includes packaging. Where packaging is included, unless otherwise agreed, it will be to OCL's standard specification which should be adequate for normal competent handling, covered transport and short-term indoor storage in a temperate climate. If additional protection is required the customer must specifically order it and it will be charged.
5 DELIVERY AND PASSING OF RISK
Delivery is ex-OCL's-works unless otherwise stated. Delivery is deemed to have taken place and risk in the products passes to the customer on the expiry of fourteen days after the giving of notification to the customer that the products are ready for delivery ("a Delivery Notice") or on delivery, if earlier.
6 STORAGE
Unless otherwise expressly agreed in writing between the parties, if the Customer fails to take delivery of the products within fourteen days of the Delivery Notice, OCL reserve the right to charge for storage (whether on OCL's premises or elsewhere) and all related expenses, including insurance, in respect of all goods not delivered..
7 LOSS OR DAMAGE BEFORE DELIVERY OR IN TRANSIT
7.1. The customer must notify OCL as soon as possible after delivery and in any event within three days of any shortages in or damage to OCL's products.
7.2. In cases where OCL is responsible for carriage, the customer must give notice within three days of the shortage or damage both to OCL and to the carrier.
8 PRICE AND PAYMENT
8.1. The individual prices quoted do not include Value Added Sales Tax. If Value Added Sales Tax is applicable it is listed at the bottom of the quotation
8.2. Unless otherwise agreed the balance of the price shall be due and payable at OCL's office thirty days after the date on which the services are completed, the products are delivered or a Delivery Notice is given, whichever is earlier.
8.3. In the event of non-payment of the whole or any part of the price in accordance with these conditions OCL reserves the right to charge interest on a daily basis on the amount outstanding from the due date until the actual date of payment in full and in cleared funds. Such interest shall accrue on a daily basis at a rate two per cent per annum over the lending rate of Barclays Bank Plc from time to time in force and calculated at three-monthly stops. The customer shall pay the interest together with the overdue amount.
8.4. So long as any payment is due by the customer to OCL, OCL shall have a lien on any products in its possession and OCL shall also be entitled to suspend work on any subsisting contract.
8.5. OCL reserves the right to request alternative payment arrangements such as Telegraphic Transfer (T/T) before the goods are delivered. In addition OCL reserves the right to charge an administration fee for payment by Letter of Credit (L/C) and will advise the customer if this administration fee is applicable.
9 INSTALLATION
9.1. Where the contract provides for installation by OCL, it will supply the necessary supervisory personnel, labour and hand tools for the installation in accordance with OCL's quotation.
9.2. Unless otherwise expressly in writing agreed between the parties, the customer shall be responsible for:
9.2.1. all necessary site preparation;
9.2.2. the proper unloading and safe-keeping of OCL's products from the time of delivery;
9.2.3. the provision of lifting equipment and any other equipment excluding hand tools and all services required to install or operate the products;
9.2.4. the provision of a two stage rotary pump with vacuum gauge and NW16 vacuum hose termination;
9.2.5. any work not specifically included in OCL's quotation or agreed in writing to be carried out by OCL; and
9.2.6. the provision of access to and possession of the site at such time and in such condition as will enable OCL to complete the installation within any contractual time limit.
10 EXTRAS
The customer shall be responsible for any additional costs incurred by OCL as a result of variation, delay or suspension of work arising from any act or omission of the customer or any other contractor employed by the customer or from any other circumstance beyond OCL's reasonable control.
11 PASSING OF TITLE
Unless otherwise agreed:
11.1. Notwithstanding delivery or the passing of risk, title to OCL's products shall not pass until OCL has been paid in full and in cleared funds. In the event of any occurrence reasonably leading OCL to believe that its interest in its products is in jeopardy OCL reserves the right with its agents and appropriate transport to enter the customer's premises for the purpose of recovering and re-selling its products;
11.2. If the customer disposes of OCL's products before payment has been made in full, then notwithstanding delivery or the passage of risk in the products, OCL retains the right to trace the proceeds of such disposal to recover the price unpaid, together with interest and costs;
11.3 If the products have been delivered to the customer but title has not yet passed to the customer, the customer shall maintain the products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
12 LIABILITY
12.1. Nothing in these terms and conditions shall limit or exclude the liability of OCL for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation, breach of any of the obligations under section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982, or defective products under the Consumer Protection Act 1987.
12.2. For defects:
12.2.1. OCL shall replace or at its option repair any failure (fair wear and tear excluded) in its products supplied which, under conditions of proper use and maintenance, results from defects in designs, materials or workmanship and which appears not later than twelve months after the giving of a Delivery Notice or the date of delivery, whichever is the earlier, provided always that defective parts are promptly returned by the customer, carriage paid, to OCL’s works unless otherwise arranged.
12.2.2. OCL does not guarantee products not of its own manufacture but the customer shall be entitled to the benefit of any available manufacturer’s guarantee/warranty.
12.2.3. OCL warrants repair and service work for six months from the date of despatch of the serviced or repaired goods. This warranty extends only to the specific component having been repaired or serviced, and not to the overall product.
12.3. For delay in delivery: The delivery date of the products or completion of the contract quoted or otherwise agreed is subject as herein provided to OCL's current best estimate of the likely date for such shipment or completion. Time is not of the essence and OCL shall not be liable for any loss or damage of any kind whatsoever resulting from any delay in such delivery or completion.
12.4. For failure to meet specification or performance:
12.4.1. Subject to clauses 12.4.2 and 12.4.3, if on delivery OCL's products or services are shown to be materially defective, not in accordance with specification or to be incapable of attaining any guaranteed standard of performance due solely to OCL's default, OCL shall make good the products or services.
12.4.2. OCL shall not be obliged to make good products or services if any defect in the product or services is reasonably considered to be of minor or insignificant nature and that the Customer is able to use the products or services for the purpose intended.
12.4.2.2. If failure to make good the products or services under clause 12.4.1 constitutes performance of the contract substantially different from that which was reasonably expected, then the customer may return the products for repair.
12.5. Misrepresentation: Any representation other than one forming part of the contract in accordance with condition 2 of these conditions shall not form part of the contract nor give rise to any liability on OCL's part even if subsequently found to be incorrect.
12.6. General:
12.6.1. Notwithstanding anything contained in these terms and conditions, OCL shall under no circumstances be liable for any consequential or indirect damage or loss, however caused, including (but not restricted to) loss of profits, loss of goodwill, damage to trading relationships, and financial loss.
12.6.2 OCL’s liability in respect of all other losses shall be limited to the invoiced value of the Order.
12.6.3. Save as specifically mentioned in this condition, OCL shall not be liable in contract, tort or otherwise for any personal injury or other loss or damage of any kind whatsoever suffered by the customer or any other person arising out of or in connection with any contract between the parties for the provision of the OCL's products or services. Save as aforesaid the customer shall indemnify OCL and its servants against any claims in respect of such injury, loss or damage. For the purpose of this condition, OCL contracts on its own behalf and on behalf of and as trustee for its servants.
12.6.4. Except with regard to the liability referred to in condition 12.1.1. hereof, no action or arbitration proceedings whether in contract, tort or otherwise arising in connection with or as a direct or indirect result of the contract may be brought by either party more than three years after the party concerned becomes aware or reasonably should have become aware of the facts constituting the cause of action.
12.6.5. These conditions define the whole of OCL's liabilities and all conditions and warranties implied by statute, common law or trade usage are hereby excluded.
13 SAFETY
The price quoted includes only the provision of such safety equipment as is specifically mentioned in OCL's quotation. If any further safety equipment is required under any statutory enactment or regulation for the time being in force, then if OCL provides the same it shall be entitled to make a reasonable charge for so doing, and if such provision by OCL does not form part of the contract, the customer shall take such steps in connection with the safety of the product sufficient to ensure, as far as is reasonably practicable, that the products will be safe when used properly. In either case, the products shall not be used until all necessary safety equipment has been provided.
14 LOCATION
The products supplied by OCL shall not be used in any country other than that for which they were originally ordered without OCL's consent.
15 OWNERSHIP OF INTELLECTUAL PROPERTY
OCL’s intellectual property rights including but not limited to patents, design rights, copyright and know-how in and relating to the products, designs, drawings, concepts or other materials shall remain the exclusive property of OCL, and the customer shall not at any time make any unauthorised use of such intellectual property rights, nor authorise or permit any of its agents or contractors or any other person to do so.
16 INTELLECTUAL PROPERTY INDEMNITY
Subject to the limitations contained in the these terms and conditions, OCL will indemnify the customer against all claims and actions for infringement of letters patent, registered design, trade mark or copyright arising from the use of OCL's products, provided always that this indemnity shall not apply to any infringement which is due:
16.1. To OCL having followed a design or instruction furnished or provided by the customer, or
16.2. To the use of OCL's products in a manner or for a purpose or in a country not specified or disclosed to OCL in writing prior to the formation of the contract, or
16.3. To any infringement which is due to the use of OCL's products in association or combination with any other article not supplied by OCL.
This indemnity is conditional on the giving of notice by the customer at the earliest possible time in writing of any claim made or action threatened or brought against the customer, and on the customer permitting OCL at its expense to have the sole conduct of correspondence, negotiations and dispute resolution that may ensue. The customer represents and warrants to OCL that any design or instruction furnished or given by the customer shall not be such as will cause OCL to infringe any letters patent, registered design, trademark or copyright in the execution of the customer's order.
17 FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
18 SEVERANCE
If at any time any one or more of the provisions of these conditions become or are held to be invalid, illegal or unenforceable in any respect under any law, the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
19 LAW
These terms and conditions, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
20 ARBITRATION
All disputes arising in connection with the contract between OCL and the customer shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The arbitration shall take place in London. This clause shall only apply and take effect where the customer is resident outside the United Kingdom and Eire.