1.      All sales contracts of FRANCIS KIRK AND SON LTD (hereinafter referred to as “The Company”) shall be deemed to incorporate these Conditions are varied by any special Conditions agreed in writing between the parties.  Any terms and conditions in the Buyer’s order, which are inconsistent with these Conditions shall have no effect.

2. The Company accepts no responsibility for the accuracy of drawings, patterns or specifications supplied by the Buyer.  No orders placed by the Buyer whether resulting from a quotation or otherwise shall constitute a legally enforceable contract until accepted by the Company.  The placing of an order based on a quotation supplied by the Company or in the absence of prior quotation the acceptance of an order imports therein the terms and conditions set out hereunder.

3. The Buyer is to indemnify the Company against any claims whatsoever for damages and costs and against all liability in respect of any infringement of patent rights resulting from compliance with the Buyer’s instructions express or implied.

4. A charge is made for carriage where appropriate.  No allowances can be made when materials are collected by the Buyer’s transport.  Prices are quoted for immediate delivery from stock are firm, subject to remaining unsold on receipt of order.  The purchase price shall be subject to increase if the Buyer makes any addition to or variation from the original order or if there is any suspension of work due to the Buyers instructions or lack of instructions.  Value Added Tax – The price excludes any Value Added Tax which will be an additional charge on all deliveries and services.  Cases not returned in good condition carriage and delivery charges paid will be charged.  A charge will be made for non-returnable packings of small value.

5. Dates or periods of delivery stated in the contract are approximate only and time shall not be of the essence of the contract.

6. The Company shall not be liable for delay in delivery or failure to make delivery of any goods due to circumstances beyond its control, including but without prejudice to the generality of the foregoing, war, rebellion, revolution, strikes, lock-outs, breakdown of plant or governmental or other laws, regulations, rules or decrees and the time for delivery of the goods shall be extended for a reasonable period having regard to the effect of the delaying cause on the manufacture or delivery of the goods.  The Buyer’s acceptance of each separate delivery at the time or within the period provided and his payment for such delivery on the due date are conditions precedent to our obligation to make further deliveries.

7. Property in and title to goods supplied by the Company and identified by an invoice/advice note shall not pass to the Buyer until the goods have been paid for in full.  Risk in respect of goods shall pass upon delivery.  When goods are delivered by the Company’s own transport delivery shall be deemed to take place at the moment the goods are lifted from the delivery vehicle.  When goods are delivered by other means of transport delivery shall be deemed to take place when the goods are handed to or surrendered to the carriers.

8. The rights of the Company or the Buyer shall not be prejudiced or restricted by any indulgence or forbearance extended by either party to the other and no waiver by either party in respect of any breach shall operate as a wavier in respect of any subsequent breach.  No claim for material damaged in transit or suffering from any defect apparent from a reasonable examination will be considered by the Company unless:-

a)        An appropriately qualified signature, e.g. “Material received damaged, (signed)”, is clearly made by the customer on the delivery note.

AND

b)        The Company is advised in writing, in addition to a) above, within three days or feceipt of material.

No allowance for claims for short weight will be made unless the Company is given an opportunity for verifying same within three days.

Failing such notice within the said period the goods shall be deemed to be in all respect, in accordance with the contracts and shall be so deemed notwithstanding that the Company may afterwards have entered into discussion and/or negotiations with the Buyer in reference to the goods.  Should it be found after notice as aforesaid that any goods were not in accordance with the Contract the liability of the Company shall be limited to the replacement of such goods (a reasonable time being allowed therefore) or at the option of the Company repayment of the price paid for them.  The Company shall not be liable for loss of profit, damage to plant, or for any expenditure incurred on goods supplied or any consequential or special loss or damage sustained by the Buyer by reason of any breach of the contract by the Company.  The liability of the Company under this Clause shall be in lieu of any condition or warranty implied by the law as to the quality or fitness for any particular purpose of the goods and save as in this Clause expressed neither the Company nor its sub-contractors servants or agents shall be liable whether in contract tort or otherwise in respect of defects or damage.  The Buyer shall not be entitled to withhold payment of any sums due to the Company by reason of any disputed claim of the Buyer, nor shall the Buyer be entitled to set off against any sums under the Contract any monies which are not then presently payable by the Company.

9. The Company shall be deemed to have fulfilled its contract if the goods delivered are within a tolerance of 5 per cent above or below the quantity ordered.

10. The Company shall not be required to supply test certificated unless these are requested a reasonable time before a delivery and the Company may charge a reasonable fee for any certificates supplied.

11. Subject to credit being approved payment shall be strictly net within the month following delivery.  The Company reserves the right to charge interest at the equal to Barclays Bank plc base rate plus 2.5% in the event of payment being overdue.

12. Without prejudice to any of its right the Company may terminate the contract or suspend further deliveries to the Buyer in the event of the Buyer failing to make due payment for any goods or if any distress execution or other legal process shall be levied upon the Buyer or if the Buyer becomes insolvent or being a body corporate has passed a Resolution for voluntary winding-up or is subject to a winding-up Order of the Court or has had a Receiver appointed.

13. The Contract shall in all respects be constructed as an English contract in conformity with English Law.