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AGS GAS Limited
November
2009
l. In these Conditions:
`GOODS and SERVICES' means the goods and/or services which AGS
Gas Ltd ("the Contractor") is to supply in accordance
with these conditions
2.1 The Contractor shall sell and the Buyer shall purchase the
Goods and/or Services in accordance with any written quotation
of the Contractor which is accepted by the Buyer, or any written
order of the Buyer which is accepted by the Contractor, subject
in either case to these Conditions, which shall govern the Contract
to the exclusion of any other terms and conditions subject to
which any such quotation is accepted or purported to be accepted,
or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless
agreed in uniting between the Buyer and the Contractor,
2.3 Any advice or recommendation given by the Contractor or its
employees or agents to the Buyer as to the storage, application
or use of the Goods which is not confirmed in writing by the
Contractor is followed or acted upon entirely at the Buyers own
risk, and accordingly the Contractor shall not be liable for
any such advice or recommendation which is not so confirmed.
3.1 The Buyer shall be responsible to the Contractor for ensuring
the accuracy of the terms of any order submitted by the Buyer,
and for giving the Contractor any necessary information relating
to the Goods and/or Services within a sufficient time to enable
the Contractor to perform the Contract.
3.3 The Contractor reserves the right to make any changes in
the specification of the Goods or Services which are required
to conform with any applicable statutory or EC requirements or,
where the Goods or Services are to be supplied to the Contractor's
specification, which do not materially affect their quality or
performance,
3.4 No order which has been accepted by the Contractor may be
cancelled by the Buyer except with the agreement in writing of
the Contractor and on terms that the Buyer shall indemnify the
Contractor 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 the Contractor as a
result of cancellation.
4.1 The price of the Goods and/or Services shall be the Contractor's
quoted price or as otherwise agreed in writing. All prices quoted
are valid for 30 days only or unto earlier acceptance by the
Buyer, after which time they may be altered by the Contractor
without giving notice to the Buyer.
4.2 The Contractor reserves the right, by giving notice to the
Buyer at any turn before delivery, to increase the price of the
Goods or Services to reflect any increase in the cost to the
Contractor which is due to any factor beyond the control of the
Contractor (such as, without limitation, any foreign exchange,
fluctuation, alteration of duties, significant increase in the
costs of labour, materials or other costs of manufacture), any
change in delivery dates, quantities or specifications for the
Goods which is requested by the Buyer, or any delay caused by
any instructions of the Buyer, or failure of the Buyer to give
the Contractor adequate instructions.
4.3 Except as otherwise stated under the terms of any quotation
of the Contractor, and unless otherwise agreed m writing between
the Buyer and the Contractor, all prices are given by the Contractor
on an ex work basis. and save where the Contractor has specified
to the contrary, include any amount payable for transport and
packaging.
4.4 The price is exclusive of any applicable value added tar,
which the Buyer shall be additionally liable to pay to the Contractor.
5.1 The Contractor shall be entitled to invoice the Buyer for
the price of the Goods and/or Services on or at any time after
delivery or installation of the Goods and/or Services,
5.2 The Buyer shall pay the price of the Goods and/or Services
(without any other deduction) within 30 days of the date of the
Contractors invoice, and the Contractor shall be entitled to
recover the price notwithstanding that delivery may not have
taken place and the property in the Goods has not passed to the
Buyer. The time of payment of the price shall be of the essence
of the Contract.
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 the
Contractor, the Contractor shall be entitled to:
5.3.1 cancel the contract or suspend any further deliveries or
provision of any services to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the
Goods and/or Service (or the goods supplied under any other contract
between the Buyer and the Contractor) as the Contractor may think
fit (notwithstanding any purported appropriation by the Buyer);
and
5.3.3 charge the Buyer interest (both before and after any judgment)
on the amount unpaid at the rate of 5 per cent per annum above
HSBC Bank Plc base rate from time to time, until payment in full
is made (a part of a month being treated as a full month for
the purpose of calculating interest).
5.4 In the event of any suspension of deliveries pursuant to
Clause 5.3 above, the Contractor shall be entitled to require
as a condition of resuming performance, prepayment or such other
security for payment as it may be required
6.1 Notwithstanding delivery and the passing of risk in the Goods,
legal title to the Goods shall not pass to the Buyer until the
Contractor has received in cash or cleared funds payment in full
of the price of the Goods/Service.
6.2 Until such time as legal title in the Goods passes to the
Buyer the Contractor shall be entitled at any time to require
the Buyer to deliver up the Goods to the Contractor 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.
7.1 Subject to the conditions set out below the Contractor warrants
the Goods and Services will correspond with their specification
at the time of delivery and will be free from defects in material
and workmanship for a period of 12 months from the date of their
installation.
7.2 The Contractor shall be under no liability in the following
conditions:
7.2.1 in respect of any defect arising from wilful damage, negligence,
abnormal working conditions, failure to follow the Contractor's
instructions (whether oral or in writing), misuse or alteration
of the Goods or Services provided without the Contractors approval;
7.2.2 if the total price for the Goods erection Services has
not been paid by the due date for payment;
7.3 Any claim by the Buyer which is based on any defect in the
quality or condition of the Goods or Services provided shall
be notified to the Contractor within 7 days from the date of
delivery or (where the defect or failure was not apparent on
reasonable inspection) within a reasonable time after discovery
of the defect or failure. If delivery is not refused, and the
Buyer does not notify the Contractor accordingly, the Buyer shall
not be entitled to reject the Goods and the Contractor shall
have no liability for such defect or failure, and the Buyer shall
be bound to pay the price as if the goods had been delivered
in accordance with the Contract.
8.1 Where any valid claim in respect of any of the Goods and/or
Services which is based on any defect in the quality or condition
of the Goods and/or Services is notified to the Contractor in
accordance with these Conditions the Contractor shall be entitled
to replace the Goods for the part in question or carry out further
services, free of charge or, at the Contractor's sole discretion
to refund to the buyer the price of the Goods (or a proportion
part of the price), but the Contractor shall have no further
liability to the Buyer.
8.2 Except in respect of death or personal injury caused by
the Contractor's negligence, the Contractor shall not be liable
to the Buyer by reason of any representation (unless fraudulent),
or any implied warranty, condition or other term, or any duty
at common in law, or under the express terms of the Contract,
for any indirect, special or consequential loss or damage (whether
for loss of profit or otherwise), costs, expenses or other claims
for compensation whatsoever (whether caused by the negligence
of the Contractor, its employees or agents or otherwise) which
arise out of or in connection with the supply of the Goods or
provision of Services or their use or resale by the Buyer, and
the entire liability of the Contractor under or in connection
with the Contract shall not exceed the price of the Goods and/or
Services, except as expressly provided in these Conditions.
8.3 The Contractor shall not be liable to the Buyer or be deemed
to be in breach of the Contract by reason of any delay in performing,
or any failure to perform, any of the Contractors obligations
in relation to the Goods and/or Services, if the delay or failure
was due to any cause beyond the Contractor's reasonable control
which shall include, but not be limited to Act of God, explosion,
flood, tempest, fire or accident or war or threat of war, sabotage,
insurrection, civil disturbance or requisition or acts, restrictions,
regulations, bye-laws, prohibitions or measures of any kind on
the part of any governmental parliamentary or local authority
or import or export regulations or embargoes or stakes, lock-outs
or other industrial actions or trade disputes (whether invoking
employees of the Contractor or of a third party) or difficulties
in obtaining raw materials, labour, fuel parts or machinery.
9 If the Buyer makes any voluntary arrangement with its creditors
or (being an individual or firm) becomes bankrupt or (being a
company) becomes subject to an administration order or goes into
liquidation (otherwise than for the purposes of amalgamation
or reconstruction); or an encumbrance takes possession, or a
receiver is appointed, of any of the property or assets of the
Buyer; or the Buyer ceases, or threatens to cease, to carry on
business; or the Contractor reasonably apprehends that any of
the events mentioned above is about to occur in relation to the
Buyer and notifies the Buyer accordingly then without prejudice
to any other right or remedy available to the Contractor, the
Contractor shall be entitled to cancel the Contract or suspend
any further deliveries under the Contract without any liability
to the Buyer, and if the goods have been delivered or Services
provided but not paid for the price shall become immediately
due and payable notwithstanding any previous agreement or arrangement
to the contrary
10.1 Any notice required or permitted to be given by either party
to the other under these Conditions shall be 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.
10.2 No waiver by the Contractor 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.
10.3 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,
10.4 The Contract shall be governed by the laws of England, and
the Buyer agrees to submit to the non-exclusive jurisdiction
of the English courts.
11 This Contract is personal to the Buyer who shall not assign
nor in any way part with the benefit thereof without the Contractors
prior written consent. The parties do not intend any third party
rights to be created under or pursuant to this Contract.
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