Terms and Conditions

THIS PURCHASE AGREEMENT (THE “AGREEMENT”) IS FOR THE PURCHASE BY THE USER OF CLIFFGROUP COMPONENTS AND IS A LEGAL AGREEMENT BETWEEN CLIFFGROUP LIMITED (“CLIFFGROUP”) AND THE PURCHASER.

1 Interpretation
In these Conditions the following words have the following meanings:

“Agent” means any marketing or distribution agent from time to time appointed by CLIFFGROUP in connection with the sale of the Component;

“Agreement” means any contract between CLIFFGROUP and the Purchaser for the sale and purchase of the Component, incorporating these Conditions;

“Agreement Price” means the sum payable for the Component by the Purchaser in accordance Clause 7.1 of these Conditions;

“Component” means one or more of the CLIFFGROUP components which CLIFFGROUP is to supply to the Purchaser in accordance with these Conditions (including any part or parts of them);

“Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Purchaser;

“CLIFFGROUP” means CLIFFGROUP Limited of 16 Cliffe Industrial Estate, South Street, Lewes, East Sussex, BN8 6JL United Kingdom;

”Purchaser” means the person(s), firm or company whose written order for the Component is accepted by CLIFFGROUP;

1.2 In these Conditions references to any statute or statutory provision shall unless the context requires otherwise include a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.

1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.

1.4 Headings shall not affect the construction of these Conditions.

2 APPLICATION OF TERMS
2.1 Subject to any variation under Clause 2.3 this Agreement shall be between CLIFFGROUP and the Purchaser and shall be on the terms and conditions set out herein to the exclusion of all other terms and conditions (including any terms and conditions which the Purchaser purports to apply under any purchase order, confirmation of order, specification or other document).

2.2 No terms and conditions endorsed upon, delivered (to CLIFFGROUP or the Agent), with or contained in the Purchaser's purchase order, confirmation of order, specification or other document shall form part of this Agreement as a result of such document being referred to in this Agreement.

2.3 These Conditions apply to all CLIFFGROUP's sales and any variation to these Conditions and any representations about the Component made by the Agent or otherwise shall have no effect unless expressly agreed in writing and signed by a director of CLIFFGROUP.

2.4 Each order for the Component by the Purchaser from CLIFFGROUP shall be deemed to be an offer by the Purchaser to purchase the Component subject to these Conditions.

2.5 No order placed by the Purchaser shall be deemed to be accepted by CLIFFGROUP until a written acknowledgement of such order is issued by CLIFFGROUP to the Purchaser or the Purchaser’s nominated carrier collects the Component (if both, whichever is earlier). Collection of the Component by the Purchaser’s nominated carrier shall be deemed to be conclusive evidence of the Purchaser's acceptance of these Conditions.

2.6 The Purchaser shall ensure that the terms of its order and any applicable specification provided by it and any interpretation of such specification as provided by CLIFFGROUP are complete and accurate.

2.7 Any quotation has been calculated using the specification provided by the Purchaser and is given on the basis that no contract shall come into existence until CLIFFGROUP dispatches an acknowledgement of order to the Purchaser or delivers the Component to the Purchaser (if both, whichever is earlier). Any quotation is valid for a period of 60 days only from its date, provided that CLIFFGROUP has not previously withdrawn it and provided the Purchaser does not amend the specification agreed with CLIFFGROUP.

2.8 Subject to Clause 4.8 no order which has been accepted by CLIFFGROUP may be cancelled by the Purchaser except with the written consent of CLIFFGROUP and on terms that the Purchaser shall indemnify CLIFFGROUP in full against all losses (including loss of profit) costs (including the costs of all labour and material used), damages, charges and expenses suffered or incurred by CLIFFGROUP as a result of such cancellation.

3 DESCRIPTION AND SPECIFICATIONS
3.1 The description of the Component shall be as set out in CLIFFGROUP's quotation.

3.2 All drawings, descriptive matter, specifications and advertising issued by CLIFFGROUP or posted on CLIFFGROUP’s website and any descriptions or illustrations contained in CLIFFGROUP's catalogues or brochures are issued, posted or published for the sole purpose of giving an approximate idea of the Component described in them and shall not form part of this Agreement.

3.3 In addition to the provisions of Clause 2.6 if the Component is to be manufactured or any process is to be applied to the Component by CLIFFGROUP in accordance with a specification submitted by the Purchaser, the Purchaser shall indemnify CLIFFGROUP against all loss, damages, costs and expenses awarded against or incurred by CLIFFGROUP in connection with, or paid or agreed to be paid by CLIFFGROUP 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 CLIFFGROUP's use of the Purchaser's specification.

4 COLLECTION
4.1 Unless otherwise agreed by CLIFFGROUP in writing delivery of the Component shall be made by a carrier nominated by the Purchaser for such purpose. CLIFFGROUP shall make all arrangements necessary to have the Purchaser’s nominated carrier to collect the Component on behalf of the Purchaser whenever they are tendered for collection.

4.2 The carrier nominated by the Purchaser pursuant to Clause 4.1 shall be deemed to be the Purchaser's agent except for the purposes of section 44, 45 and 46 of the Sale of Goods Act 1979 and risk in the Component shall pass to the Purchaser upon collection by the carrier.

4.3 Any date specified by CLIFFGROUP for collection of the Component by the Purchaser’s nominated carrier is intended to be an estimate and time for collection shall not be made of the essence by notice. If no dates are so specified, collection shall be within a reasonable time.

4.4 Subject to the other provisions of these Conditions CLIFFGROUP shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the availability of the Component for collection (even if caused by CLIFFGROUP's negligence), nor shall any delay entitle the Purchaser to terminate or rescind this Agreement unless such delay exceeds 60 days.

4.5 If the carrier nominated by the Purchaser has not collected the Component after a period of 1 month from the date upon which it was made available for collection CLIFFGROUP reserves the right to sell the Component at the best price readily obtainable and (after deducting all storage, insurance and selling costs) shall account to the Purchaser for the Agreement Price previously received from the Purchaser or charge the Purchaser for any short fall below the Agreement Price.

4.6 Where the Component is to be collected by the Purchaser’s nominated carrier in instalments, each collection shall constitute a separate contract and failure by CLIFFGROUP to make available any one or more of the instalments in accordance with these Clauses or any claim by the Purchaser in respect of any one or more instalments shall not entitle the Purchaser to treat the whole contract as repudiated.

4.7 The quantity of any consignment of the Component as recorded by CLIFFGROUP in CLIFFGROUP's delivery note upon collection from CLIFFGROUP's place of business shall be prima facie evidence of the quantity received by the Purchaser on delivery by the Purchaser’s nominated carrier.

4.8 CLIFFGROUP shall not be liable for any non-delivery of the Component by the Purchaser’s nominated carrier.

5 RISK/TITLE
5.1 Risk of damage to or loss of the Component shall pass to the Purchaser as set out in Clause 4.

5.2 Ownership of the Component shall not pass to the Purchaser until CLIFFGROUP has received in full (in cash or cleared funds) all sums due to it in respect of:
5.2.1 the Component; and
5.2.2 all other sums which are or which become due to CLIFFGROUP from the Purchaser on any account.

5.3 Until ownership of the Component has passed to the Purchaser, the
Purchaser shall:
5.3.1 hold the Component on a fiduciary basis as CLIFFGROUP's bailee;
5.3.2 store the Component (at no cost to CLIFFGROUP) separately from all other goods of the Purchaser or any third party in such a way that they remain readily identifiable as CLIFFGROUP's property;
5.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Component;
5.3.4 maintain the Component in satisfactory condition insured on CLIFFGROUP's behalf for their full price against all risks to the reasonable satisfaction of CLIFFGROUP. On request the Purchaser shall produce the policy of insurance to CLIFFGROUP; and
5.3.5 hold any proceeds of the insurance referred to in Clause 5.3.4 on trust for CLIFFGROUP and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

5.4 The Purchaser's right to possession of the Component shall terminate immediately if prior to CLIFFGROUP receiving payment in accordance with Clause 5.2;
5.4.1 the Purchaser has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or
enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Purchaser, or for the granting of an administration order in respect of the Purchaser, or any proceedings are commenced relating to the insolvency or possible insolvency of the Purchaser; or
5.4.2 the Purchaser suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform
any of his/its obligations under this Agreement or any other contract between CLIFFGROUP and the Purchaser, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Purchaser ceases to trade; or
5.4.3 the Purchaser encumbers or in any way changes any of the Component.

5.5 CLIFFGROUP shall be entitled to recover payment for the Component notwithstanding that ownership of any of the Component has not passed from CLIFFGROUP.

5.6 The Purchaser grants CLIFFGROUP, its agents and employees an irrevocable licence at any time to enter any premises where the Component is or may be stored in order to inspect it, or, where the Purchaser's right to possession has terminated, to recover it.

6 PRICE
6.1 Unless otherwise agreed by CLIFFGROUP in writing the price for the Component shall be the price quoted to the Purchaser by CLIFFGROUP or by the Agent.

6.2 The price for the Component shall be exclusive of any value added tax or any other applicable tax which the Purchaser shall pay in addition when it is due to pay for the Component.

7 PAYMENT
7.1 Unless otherwise agreed by CLIFFGROUP in writing and subject to the provisions of Clause 6.2, CLIFFGROUP may invoice the Purchaser for the price of the Component on or at any time after collection of the Component by the Purchaser’s nominated carrier.

7.2 Without prejudice to the Purchaser's rights as provided in Clauses 4, and 8 CLIFFGROUP reserves the right, in its absolute discretion, to require payment in cash or cleared funds by the Purchaser for any instalment of the Component prior to the date of collection of the Component by the Purchaser’s nominated carrier and any failure to pay on the due date provided by CLIFFGROUP pursuant to this Clause 7,
may result in a delay in collection of the Component or termination of this Agreement by CLIFFGROUP. Such termination shall be without any liability on the part of CLIFFGROUP.

7.3 Unless otherwise agreed by CLIFFGROUP in writing payment of the price for the Component is due 7 days following the issue of the invoice. Time for payment shall be of the essence.

7.4 No payment shall be deemed to have been received until CLIFFGROUP has received cleared funds.

7.5 Any discounts shown on invoices shall only apply if CLIFFGROUP's payment terms are met.

7.6 Notwithstanding any other provision of this Agreement all payments payable to CLIFFGROUP shall become due immediately upon termination of this Agreement for any reason.

7.7 The Purchaser shall make all payments due under this Agreement without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by CLIFFGROUP to the Purchaser.

7.8 CLIFFGROUP may appropriate any payment made by the Purchaser to CLIFFGROUP to such of the Component as CLIFFGROUP thinks fit despite any purported appropriation by the Purchaser.

7.9 If the Purchaser fails to pay CLIFFGROUP any sum due pursuant to this Agreement CLIFFGROUP reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

8 QUALITY
8.1 Where CLIFFGROUP is not the manufacturer of the Component, CLIFFGROUP shall endeavour to transfer to the Purchaser the benefit of any warranty or guarantee given to CLIFFGROUP.

8.2 CLIFFGROUP warrants that (subject to the other provisions of these
Clauses) upon delivery to the Purchaser by the Purchaser’s nominated carrier, and for a period of 12 months from the date of collection by the Purchaser’s nominated carrier, the Component shall be of satisfactory quality within the meaning of the Sale of Goods Act 1994.

8.3 CLIFFGROUP shall not be liable for a breach of the warranty in Clause 8.2 unless:
8.3.1 the Purchaser gives written notice of the defect to CLIFFGROUP within 3 days of: (a) the date of delivery to the Purchaser by the Purchaser’s nominated carrier (where the defect would be apparent to the Purchaser upon a reasonable inspection); or (b) the date when the Purchaser discovers or ought reasonably to have discovered the defect (where the defect would not be apparent to the
Purchaser upon reasonable inspection); and
8.3.2 CLIFFGROUP is given a reasonable opportunity after receiving the notice of examining such Component and the Purchaser (if requested to do so by CLIFFGROUP) returns such Component to CLIFFGROUP's place of business at the Purchaser's cost for the examination to take place there.

8.4 CLIFFGROUP shall not be liable for a breach of the warranty in Clause 8.2:
8.4.1 if the Purchaser makes any further use of such Component after giving notice under Clause 9.3.1; or
8.4.2 if the defect arises because the Purchaser failed to follow CLIFFGROUP's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Component or (if there are none) good trade practice; or
8.4.3 if the Purchaser alters or repairs such Component without the written consent of CLIFFGROUP; or
8.4.4 if the defect in such Component arises from any design defect in any drawing design or specification supplied or approved by the Purchaser; or
8.4.5 the Component is damaged during transit; or
8.4.6 the Component is examined by the Purchaser upon delivery by the Purchaser’s nominated carrier and the Purchaser subsequently signs the delivery note of
CLIFFGROUP confirming the Component is of the correct quantity and complies with the provisions of Clause 8.2.

8.5 Subject to Clauses 8.3 and 8.4, if the Component does not conform with the warranty in Clause 8.2 CLIFFGROUP shall at its option repair or replace such Component (or the defective part) or refund the price of such Component at the pro rata Agreement rate provided that, if CLIFFGROUP so requests, the Purchaser shall, (at CLIFFGROUP's expense), return the Component or the part of such Component which is defective to CLIFFGROUP.

8.6 If CLIFFGROUP complies with Clause 8.5 it shall have no further liability for a breach of the warranty in Clause 8.2 in respect of the quality of such Component.

8.7 Any Component replaced shall belong to CLIFFGROUP and any repaired or replacement Component shall be guaranteed on these terms for the unexpired portion of the 12 month period.

9 LIMITATION OF LIABILITY
9.1 The following provisions and the provisions of Clause 8, set out the entire liability of CLIFFGROUP (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Purchaser in respect of:
9.1.1 any breach of these Conditions; and
9.1.2 any representation, statement or tortuous act or omission including negligence arising under or in connection with this Agreement.

9.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Component Act 1979) are, to the fullest extent permitted by law, excluded from this Agreement.

9.3 Nothing in these Conditions shall exclude or limit the liability of CLIFFGROUP for death or personal injury caused by CLIFFGROUP's negligence or for fraudulent misrepresentation. The Purchaser's attention is in particular drawn to the provisions of Clause 9.4

9.4 Subject to Clauses 9.2 and 9.3:
9.4.1 CLIFFGROUP's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the Agreement Price; and
9.4.2 CLIFFGROUP shall not be liable to the Purchaser for any loss of goodwill or reputation, loss of profit of loss of sales (whether direct or indirect) or any consequential or indirect loss, damage or expense whatsoever (howsoever caused) which arises out of or in connection with this Agreement.

10 FORCE MAJEURE
10.1 CLIFFGROUP shall not be deemed to be in breach of this Agreement or otherwise liable to the Purchaser in any manner whatsoever for any failure or delay in performing its obligations under this Agreement due to Force Majeure.

10.2 For the purpose of this Clause 10 "Force Majeure" means, any cause preventing CLIFFGROUP from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of CLIFFGROUP including without limitation, strikes, lockouts or other industrial disputes (whether involving the workforce of CLIFFGROUP or any other party) act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of supplies or sub-contractors.

11 COMMUNICATIONS
11.1 All communications between the parties about this Agreement shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email or facsimile transmission:
11.1.1 (in case of communications to CLIFFGROUP) to its registered office or such changed address or email address or facsimile as shall be notified to the
Purchaser by CLIFFGROUP; and
11.1.2 (in case of communications to the Purchaser) to the registered office of the addressee (if it is a company) or (in any other case) to any address, email or facsimile of the Purchaser set out in any document which forms part of this Agreement or such other address, email or facsimile as shall be notified to CLIFFGROUP by the Purchaser.

11.2 Communications shall be deemed to have been received:
11.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and Bank and public holidays) after posting (exclusive of the day of posting);
11.2.2 if delivered by hand, on the day of delivery;
11.2.3 if sent by facsimile transmission or email on a working day prior to 5.00pm GMT, at the time of transmission and otherwise on the next working day.

12 GENERAL
12.1 The Purchaser shall not be entitled to assign this Agreement or any part of it without the prior written consent of CLIFFGROUP.

12.2 Time for performance of all obligations of the Purchaser under this Agreement is of the essence.

12.3 The termination of this Agreement howsoever arising shall be without prejudice to the rights and duties of either the Purchaser or CLIFFGROUP accrued prior to termination.

12.4 If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of this Agreement and the remainder of such
provision shall continue in full force and effect.

12.5 Failure or delay by CLIFFGROUP in enforcing or partially enforcing any provision of this Agreement shall not be construed as a waiver of any of its rights under this Agreement.

12.6 Any waiver by CLIFFGROUP of any breach of, or any default under, any provision of this Agreement by the Purchaser shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of this Agreement.

12.7 The parties to this Agreement do not intend that any of its terms shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.

13 Governing Law
The construction and performance of this Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.