Terms and Conditions of Sale

 

COMFG Ltd / Charles Owen (Europe) Ltd / EQx Ltd / Charles
Owen Inc

 

TERMS AND CONDITIONS OF SALE DATED 2023

 

DEFINITIONS
“Buyer” means the person, company or firm or other body who buys or agrees to
buy Goods from the Company.
“Certificate of Conformity” means a certificate provided by the Company setting
out the nature of the goods to be supplied.
“Company” means either COMFG Ltd, Royal Works, Croesfoel Industrial Estate,
Wrexham LL14 4BJ or Charles Owen (Europe) Ltd, Penrose 1 – 1st Floor, T23
KW81 Cork City, Ireland or EQx Ltd, Royal Works, Croesfoel Industrial Estate,
Wrexham LL14 4BJ or Charles Owen Inc, 116 Lincoln Place Drive, Lincolnton,
GA 30817.
“Conditions” means the terms and conditions of sale set out in this document and
any special terms and conditions agreed in writing by the Company and signed by
the director of the Company.
“Delivery Date” means the date specified by the Company when the Goods are to
be delivered to the Buyer.
“Due Date” means the date of payment specified in the invoice accompanying the
delivery of the goods.
“Goods” means the Goods (including any instalment of the Goods or any parts for
them) specified on the Order Acceptance to which these conditions are attached.
“Price” means the price for the Goods excluding shipping, packing, insurance and
duties unless otherwise agreed to in writing by the Company and signed by an
officer of the Company.

 


CONDITIONS APPLICABLE

 

  1. These conditions shall apply to all contracts for the sale of Goods by the
    Company to the Buyer to the exclusion of all other terms and conditions
    including any terms or conditions which the Buyer may purport to apply
    under any purchase order, confirmation of order or similar document.
  3. All orders for Goods shall be deemed to be an offer by the Buyer to
    purchase Goods pursuant to these conditions.
  5. Any variation to these Conditions (including any special terms and conditions
    agreed between the parties) shall be inapplicable unless agreed in writing by
    the Company and signed by one of the directors of the Company.
  7. All estimates and quotations made by the Company whether by facsimile,
    telex, by hand, by post, given orally or by any other means are invitations to
    treat and shall not constitute an offer capable of being accepted by the Buyer
  9. The Company’s employees or agents are not authorized to make any
    representations concerning the Goods unless confirmed by the Company in
    writing and signed by an officer of the Company. In entering into the
    contract, the Buyer acknowledges that it does not rely on, and waives any
    claim for breach of, any such representations which are not satisfied.
  11. Any advice or recommendation given by the Company or its employees or
    agents to the Buyer or its employees or agents as to the storage, application
    or use of the Goods which is not confirmed in writing by the Company is
    followed or acted upon entirely at the Buyer’s own risk, and accordingly the
    Company shall not be liable for any such advice or recommendation which is
    not so confirmed.
  13. Any typographical, clerical or other error omission in any sales literature,
    quotation, price list, sales order acceptance, invoice or other document or
    information issued by the Company shall be subject to correction without any
    liability on the part of the Company.
    PURCHASE ORDER AND CONFIRMATION
  15. All purchase orders for Goods shall be deemed to be an offer by the Buyer
    to purchase Goods pursuant to these conditions.
  17. Once a purchase order has been received, the Company shall respond by
    issuing a sales order confirmation setting out the customer information
    including delivery address as well as the description of items subject to the
    order and pricing.
  19. Accompanying the sales order confirmation, an email will set out that
    the purchase order and sales order confirmation form the basis of the
    contract of sale and will invite the Buyer to review the sales order
    confirmation to ensure the details are correct.

 

THE PRICE AND PAYMENT

 

  1. The price of the Goods shall be the Company’s quoted price or, where
    no price has been quoted (or a quoted price is no longer valid), the price
    listed in the Company’s published price list current at the date of acceptance
    of the order. Where the Goods are supplied for export, the Company’s
    published export price list shall apply.
  3. The Company shall not be bound to deliver the Goods until the Buyer
    has paid for them unless otherwise agreed.
  5. Payment of the Price, tax, duties, shipping, package and insurance
    shall be due 7 days prior to the Delivery Date unless otherwise agreed.
  7. Where the credit terms are agreed in writing signed by an officer of the
    Company, payment of the Price, tax, duties, shipping, package and
    insurance shall be due as set out in the invoice.
  9. Time for payments shall be of the essence.
  11. Interest is payable by the Buyer to the Company, such interest
    accruing from the date when payment becomes due from day to day until the
    date of payment at a rate of 2% per annum on a daily accruing basis above
    the prevailing base rate in the currency of the invoice from time to time in
    force and shall accrue at such rate after as well as before and judgment.
  13. The Company may, by giving notice to the Buyer at any time up to 7
    days before delivery increase the Price of Goods to reflect any increase in
    the cost to the Company which is due to factors occurring after the making
    of the contract of sale which are beyond the reasonable control of the
    Company including, without limitation, foreign exchange fluctuations, taxes
    and duties and the cost of labour, materials, other manufacturing costs) 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 Company adequate information or
    instructions.
  15. If the Buyer fails to make payment on the due date, then without
    prejudice to any of the Company’s other rights, the Company may:
     Suspend or cancel deliveries of any articles due to the Buyer; and/or
     Appropriate any payment made by the Buyer to such of the Goods (or
    Goods supplied under any other contract with the Buyer) as the
    Company may in its sole discretion think fit.

 

THE GOODS

 

  1. The quantity, quality and description of and any specification for the
    Goods shall be those sent out in the Company’s catalogues which show
    each of the products available from the Company.
  3. The specification and design of the Goods (including the copyright,
    design right or other intellectual property in them) shall as between the
    parties, be the property of the Company.

 

WARRANTIES AND LIABILITY

 

  1. Subject to the conditions set out below the Company warrants that the
    Goods will correspond with the specifications set out in the “Order
    Acceptance” referred to in clause 2.2 above at the time of delivery and will
    be free from defects in material and workmanship at the time of delivery.
  3. The above warranty is given by the Company subject to the following
    conditions:
    - the Company shall be under no liability in respect of any defect in the
    Goods arising from any drawing, design or specification supplied by
    the Buyer;
    - the Company shall be under no liability in respect of any defect arising
    from fair wear and tear, willful damage, negligence, abnormal use,
    failure to follow the Company’s instructions (whether oral or in writing),
    misuse or alterations or repair of the Goods without the Company’s
    approval;
    - the Company shall be under no liability under the above warranty (or
    any other warranty, condition or guarantee) if the total price for the
    Goods has not been paid by the due date for payment;
    - the above warranty does not extend to parts, materials or equipment not
    manufactured by the Company in respect of which the Buyer shall only
    be entitled to benefit from any such warranty or guarantee as is given by
    the manufacturer to the Company
  5. Subject as expressly provided in these Conditions, and except where
    Goods are sold to a person dealing as consumer, all warranties, conditions
    or other terms implied by statue or common law are excluded to the fullest
    extent permitted by law.
  7. Except in respect of death or personal injury caused by the
    Company’s negligence, the Company shall not be liable to the Buyer by
    reason of any representation, or any implied warranty, condition or other
    term, or any duty at common law, or under the express terms of this contract, for any consequential loss or damage (whether for loss or profit or otherwise, costs, expenses or other claims for consequential compensation whatsoever ( and whether caused by the negligence of the Company, its employees agents or otherwise ) which arise out or in connection with the supply of Goods or their use or resale by the Buyer, except expressly provided in these Conditions.

 

  1. The Company 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 Company’s obligations in relation to the Goods, if the delay
    or failure was due to any cause beyond the Company’s reasonable control.
    Without prejudice to the generality of the foregoing, the following shall be
    regarded as causes beyond the Company’s reasonable control:
    - Act of God, explosion, flood, tempest, fire or accident;
    - War or threat of war, sabotage, insurrection, civil disturbance or
    requisition;
    - Acts, restrictions, regulations, bye-laws, prohibitions or measures of
    any kind on the part of any governmental, parliamentary or local
    authority;
    - Import or export regulations or embargoes;
    - Strikes, lock-outs or other industrial actions or trade disputes (whether
    involving employees of the Company or of a third party);
    - Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
    - Power failure or breakdown in machinery.
  3. The Company may, from time to time, make changes in specification of
    the Goods as part of product development of which are required to comply
    with any applicable safety statutory or state requirement. Where such
    changes are made, the Company will notify the Buyer and invite the Buyer
    within 2 working days to confirm or otherwise decline to proceed with the
    order.
  5. The Company disclaims liability for Goods in transit to the Company
    under this clause and reserves the right to make a Handling Charge of 20%
    of the original Price paid for the item where the analysis shows that there
    were no defects remediable pursuant to clause 21 in the Goods returned.

 

DELIVERY OF GOODS

 

  1. Delivery of Goods shall be made to the Buyer’s address on the
    Delivery Date.
  3. The Buyer shall make all arrangements necessary to take delivery of
    the Goods whenever they are tendered for delivery.
  5. Any dates quoted for delivery of the Goods are approximate only and
    the Company shall not be liable for any delay of delivery of the Goods
    howsoever caused.
  7. Time for delivery shall not be of the essence unless previously agreed
    by the Company in writing and signed by a director of the Company.
  9. The Goods may be delivered by the Company in advance of the
    quoted delivery date upon giving reasonable notice to the Buyer.
  11. Where the Goods are to be delivered in instalments, each delivery
    shall constitute a separate contract and failure by the Company to deliver
    any one or more of the instalments in accordance with these conditions or
    any claim by the Buyer in respect of one or more instalments shall not entitle
    the Buyer to treat this contract as a whole repudiated.
  13. If the Company fails to deliver the Goods for any reason other than the
    cause beyond the Company’s reasonable control or the Buyer’s Fault, and
    the Company is accordingly liable to the Buyer, the Company’s liability shall
    be limited to the excess (if any) of the cost to the Buyer (in the cheapest
    available market) of similar Goods to replace those not delivered over the
    price of the Goods.
  15. If the Buyer fails to take delivery of Goods or fails to give the Company
    adequate delivery instructions at the time stated for delivery (otherwise than
    by reason of any cause beyond the buyer's reasonable control or by reason
    of the Company’s fault.), then, without prejudice to any other right or remedy
    available to the Company, the Company may:
    - Store the Goods until actual delivery and charge the Buyer for the
    reasonable cost (including Insurance) of storage; or
    - Sell the Goods at the best readily obtainable and (after deducting all
    reasonable storage and selling expenses) account to the Buyer for the
    excess over the price under this contract or charge the Buyer for any
    shortfall below the price under this contract.

 

ACCEPTANCE OF THE GOODS

 

  1. The Delivery of the Goods will be accompanied by a Certificate of
    Conformity issued by the Company.
  3. The Buyer shall be deemed to have accepted the Goods unless the
    Buyer returns the Goods at his own cost to the Company within 5 days of
    delivery.
  5. After acceptance in accordance with 36 above the Buyer shall not be
    entitled to reject Goods which are not in accordance with the contract.

 

INSTRUCTIONS FOR USE

 

  1. Instructions for safe use of protective headgear are dispatched with all
    deliveries which includes a warning to cease using products after any
    impact. It is the Buyer’s duty to ensure that these instructions for safe use
    are communicated to persons purchasing the Company’s products and that
    their attention is drawn to them.

 

RETENTION OF TITLE

 

  1. The Goods shall be at the Buyer’s risk from the time of delivery
    under clause 28.
  3. In spite of delivery having been made property in the Goods shall not
    pass from Company until payment has been made on the Due Date
  5. Until property in the Goods passes to the Buyer in accordance with
    clause 28 the Buyer shall hold the Goods and each of them on a fiduciary
    basis as bailee for the Company and shall store the Goods (at no cost to the
    Company) separately from all other Goods in its possession and marked in
    such a way that they are clearly protected, insured and identified as the
    Company’s property.
  7. Notwithstanding that the Goods (or any of them) remain the property of
    the Company the buyer may sell or use the Goods in the ordinary course of
    the Buyer’s business at full market value.
  9. Any such sale or dealing shall be a safe or use of the Company’s
    property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as
    principal when making such sales or dealings.
  11. The Company shall be entitled to recover the Price (plus duties,
    shipping, package and insurance) notwithstanding that property in any of the
    Goods has not passed from the Company.
  13. If at any time the Buyer is in breach of the Conditions the Company
    may at any time before property in The Goods passed from the Company
    may require the Buyer to deliver up the Goods to the Company and if the Buyer fails to do so, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

 

  1. The Buyer shall not pledge or in any way charge by way of security for
    any indebtedness any of the Goods which are the property of the Company.
    Without prejudice to other rights of the Company, if the Buyer does so all
    sums owing by the Buyer to the Company shall forthwith become due and
    Payable.
  3. The Buyer shall insure and keep insured the Goods to the full Price
    against “all risks” to the reasonable satisfaction of the Company until the
    date that property in the Goods passes from the Company and shall
    whenever requested by the Company produce a copy of the policy
    insurance. Without prejudice to other rights of the Company, if the Buyer
    fails to do so all sums whatever owing by the Buyer to the Company shall
    forthwith become due and payable.

    LIQUIDATION OR OTHER DEFAULT
  5. If the Buyer fails to make payment for the Goods in accordance with
    this contract of sales or commits any other breach of this contract of the sale
    or if any distress or execution shall be levied upon any of the Buyer’s Goods
    or if the Buyer offers to make arrangements with its creditors or commits an
    act of bankruptcy or if any petition in bankruptcy is presented against the
    Buyer or the Buyer is unable to pay its debts as they fall due or if being a
    corporation a resolution or Petition to wind up the Buyer (other than for the
    purpose of amalgamation or reconstruction without insolvency) shall be
    passed or presented or if a Receiver Administer Administrative Receiver or
    Manager shall be appointed over the whole or any part of the Buyer’s
    business or assets is the Buyer shall suffer analogues proceedings under
    foreign law, all sums outstanding in respect of the Goods shall become
    payable immediately.
  7. The Company may in its absolute discretion and without prejudice to
    any other rights which it may have:
    - suspend all future deliveries of Goods to the Buyer and/or terminate
    the contract without liability on its part; and/or
    - exercise any of its rights pursuant to clause 46

 

REMEDIES

 

  1. Where the Buyer rejects any Goods then the Buyer shall have no
    further rights whatever in respect of the supply to the Buyer of such Goods
    or the failure by the Company to supply Goods which conform to the contract
    of sale.
  3. Subject to the terms of this contract of sale where the Buyer accepts or
    has been deemed to have accepted any Goods then the Company shall
    have no liability whatever to the buyer in respect of those goods.
  5. The Company shall not be liable to the Buyer for late delivery or short
    delivery of the goods.

 

PROPER LAW

 

  1. These terms and conditions are subject to the law of England & Wales
    in relation to COMFG Ltd and EQx Ltd, the law of the Republic of Ireland in
    relation to Charles Owen (Europe) Ltd and the State of Delaware (Charles
    Owen Inc).
  3. All disputes arising out of this contract shall be subject to the exclusive
    jurisdiction of the courts of England & Wales in relation to COMFG Ltd and
    EQx Ltd, the law of the Republic of Ireland in relation to Charles Owen
    (Europe) Ltd and the State of Delaware (Charles Owen Inc).

 

NOTICE

 

  1. Any notice required or permitted to be given by either party to the other
    under these Conditions shall be in writing addressed to that other party at its
    registered office or principal place of business or such other address as may
    be the relevant time have been notified pursuant to this provision to the party
    giving notice.
  3. No waiver by the Company of any breach of these terms and
    conditions by the Buyer shall be considered as a waiver of any subsequent
    breach of the same or any other provision.

 

SEVERANCE

 

  1. Any provision of this contract of sale which is or may be void or
    unenforceable shall to the extent of such invalidity or unenforceability be
    deemed severable and shall not affect any other provision of this contract.

 

FORCE MAJEURE

 

  1. Neither the Company nor the Buyer shall be liable for any default due to
    any act of God, war, strike, lock-out, industrial action, fire, flood, drought,
    tempest or other event beyond the reasonable control of either party.

 

CANCELLATION

 

  1. The Company may cancel this contract at any time before Goods are
    delivered by giving notice.
  3. On giving such notice the Company shall promptly repay to the Buyer
    any sums paid in respect of the Price.
  5. The company shall not be liable for any loss or damage whatever
    arising from such cancellation.
  7. No order which has been accepted by the Company may be cancelled
    by the Buyer except with the agreement in writing and signed by an officer of
    the company and on the terms that the Buyer shall indemnify the Company
    in full against all loss (including lieu of profit), costs (including the cost of all
    labour and material used), damages, charges and expenses incurred by the
    Company as a result of cancellation.