Conditions of Sale Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions. 1. Definitions In these conditions “the Company” means COTSWOLD FARM MACHINERY LIMITED. “the Buyer” means any company, firm or individual or agent thereof to whom the Company’s quotation or acknowledgement of order is addressed. “the Goods” means the products (including any parts or accessories), materials and/or services to be supplied by the Company. 2. Applicability of Conditions The Company concludes contracts for the supply of Goods subject only to these Conditions. The Buyer accepts that these Conditions shall govern relations between himself and the Company to the exclusion of any other terms including, without limitations, conditions and warranties written or orally expressed or implied even if contained in any of the Buyer’s documents which purport to provide that the Buyer’s own Terms shall prevail. No variation or qualification of these Conditions or of any quotation arising here from shall be valid unless agreed in writing by the Secretary or a Director of the Company. 3. Quotations Any order placed on the Company’s quotation must be made in writing. The Company’s quotations are given without commitment and no contract between the Company and the Buyer shall arise unless and until the Company has accepted the Buyer’s order placed on the Company’s quotation. 4. Representations The terms of the Contract consist only of those contained in the Company’s written acceptance of the Buyer’s order and these Conditions of Sale. The Contract shall be made only upon the basis of such representations as are contained in the Company’s written acceptance of order and the Buyer shall not be entitled to rely on any other representations, statements or warranties whatsoever unless specifically confirmed by the Company in writing for the individual Buyer or unless contained in these Conditions of Sale. 5. Prices (i) Prices contained in the Company’s price lists, catalogues, booklets, advertising matter or similar matter are for general guidance only. (ii) The price quoted by the Company in the quotation is based on the cost of materials, labour services, packing, carriage and delivery and the levels of applicable taxes, customs or other duties ruling at the date of the quotation (other than VAT). Subject to (iii) herein, if between the date of delivery of the Goods and/or performance of services there is an increase in such costs or levels (including a rise caused by the devaluation or revaluation of any currency), the prices shall be adjusted by adding thereto the amount of any increase in such costs or levels whether or not such increase was or should have been foreseeable by the Company. (iii) If, however, it is expressly agreed in writing between the Company and the Buyer that the price of the Contract should be a fixed price and not subject to any variation either by rise or fall in the costs or levels referred to in (ii) above such fixed price will be the price of the Contract provided that full information permitting or enabling delivery to proceed is contained in the Buyer’s order or is received by the Company promptly after receipt of the order. If full information permitting or enabling delivery to proceed is not contained in the Buyer’s order or is not received by the Company promptly after receipt of the order, or if delivery of the order or any part thereof is delayed at the Buyer’s request, the fixed contract price or such proportion thereof as relates to the part delayed as aforesaid will be subject to the variations (if any) set out in (ii) herein and will be adjusted accordingly. (iv) Unless otherwise stated, prices do not include VAT which will be chargeable at the date of despatch and/or performance of services as the case may be. (v) The Buyer shall not be entitled to withhold payment of an amount payable by the Contract to the Company because of any claim of the Buyer in respect of any alleged breach of Contract. (vi) If, in the reasonable opinion of the Company, the credit rating of the Buyer becomes unsatisfactory prior to delivery or if the Buyer fails to perform or observe any obligations on its part to be performed or observed under this or any other contract made with the Company, the Company shall be entitled, at its discretion, to delay delivery of the Goods until payment thereof is rendered by the Buyer or until such obligations are duly performed or observed or by notice in writing to the Buyer unilaterally to cancel the Contract for the supply of Goods. 6. Delivery (i) Delivery will be effected by the Company at the Company’s premises or to such other place as is mutually agreed. The Goods shall be at the Buyer’s risk on either entry on to the Buyer’s premises or on being placed into custody on the Buyer’s behalf and should be insured accordingly. (ii) Export quotations shall specify the trade terms applicable which terms shall be interpreted according to the rules laid down in “Incoterms” as published in publication No 274 of April 1977 by the International Chamber of Commerce and any amendment to that publication made by them. (iii) In the event that the Company and the Buyer agree to transfer the Goods by a method other than delivery effected by the Company, then the risk of loss or damage of any kind in the Goods shall pass to the Buyer on whichever the following events occur earlier: (a) collection by or on behalf of the Buyer by an independent carrier for despatch to the Buyer; (b) 7 days from the date of notice given by the Company that the Goods are ready for collection or despatch. If the Goods shall not have been collected by or on behalf of the Buyer or by an independent carrier for despatch to the Buyer within 7 days of the Company’s written notice pursuant to paragraph 6(iii)(b) hereof then the Company may, at any time thereafter, send to the Buyer a further notice notifying the Buyer of the Company’s intention to sell the same after expiration of a period of not less than 7 days from the date of the notice. (iv) Notwithstanding the method of delivery the Buyer shall carefully examine the Goods on receipt of the same and shall give written notice of any short delivery or over delivery which must be received by the Company within 3 days of receipt of the Goods and, in the case of any defects reasonably discoverable on careful examination, written notice which must be received by the Company within 14 days of receipt of the Goods. (v) If the Buyer neglects to serve notice under sub-paragraph (iv) above of any over delivery then the Company may at its option either repossess the excess Goods or invoice them and be paid forthwith by the Buyer for the excess Goods at the price Ruling at the date of delivery. (vi) The Buyer shall pay to the Company, in addition to the purchase price, charges properly incurred by the Company in connection with the carriage of Goods ordered. 7. Time For and Form of Delivery (i) The Company will use reasonable commercial endeavours to deliver the Goods and to perform services in accordance with any time stated in the Contract but time of delivery or performance shall not be of the essence to the Contract. Any such times are stated by way of general information only and, in the event of failure to despatch or deliver or perform within such times for any cause whether within or outside the Company’s reasonable control, the same shall not be a breach or repudiation of the Contract and the Company shall not be liable for any loss or damage suffered by the Buyer as a result of such delay whether due to negligence by the Company, its servants or agents or otherwise howsoever. (ii) (a) If the Contract does not otherwise provide the Company shall be entitled to deliver Goods by single delivery or by instalments at its option. (b) If the Contract provides for delivery by instalments or the Company so elects each instalment shall be deemed to be the subject of a separate contract on these conditions and without prejudice to sub-paragraph (i) hereof non-delivery or delay in delivery shall not affect the balance of the Contract nor entitle the Buyer to terminate the same. 8. Payment (i) Unless expressly agreed in writing with the Buyer or stated on the face of the invoice(s) pertaining to this contract payment shall be made for the Goods in full in sterling not later than the 20th of the month following the date of the Company’s invoice in respect of the Goods. It should be understood that all contracts in respect of the supply of wholegoods are due for payment 7 days after the date of the invoice. Where full payment is not received by the due date interest shall accrue on the sum outstanding at the rate of 1.5% per month calculated on a daily basis but without prejudice to the Company’s rights to receive payments on the due dates. (ii) Time for payment shall be of the essence and in the event of delay or default in any payment for more than 7 days, the Company shall be entitled to suspend deliveries and/or treat the Contract as repudiated and/or re-sell any of the Goods in its possession and be indemnified by the Buyer for any loss thereby incurred. (iii) In the absence of satisfactory references or in cases of default in complying with the said terms of payment under sub-paragraph (i) above the Company shall be entitled to render pro-forma invoices based on its current price lists to be paid by the Buyer before delivery and the Buyer shall pay to the Company on demand any difference between such prices and prices current at the date of delivery. 9. Property in Goods (i) Notwithstanding any agreed terms of payment the Goods are not sold or delivered on credit but on condition that the ownership of the Goods shall remain with the Company and no property in the Goods, whether legal or equitable, shall pass from the Company such condition being a condition precedent and on condition that the Goods will be held by the Buyer as bailee and will be stored separately and in such manner that they can be readily identified as the property of the Company until payment of the full price has been received: (a) of all Goods the subject of this contract and; (b) of all other Goods the subject of any other contract between the Company and the Buyer. Nevertheless, at all times following delivery of the Goods and preceding payment as aforesaid the Buyer shall have the power to resell or otherwise deal with the Goods in the ordinary course of business in the name of the Buyer on the condition: (a) that such resale or other dealing shall give rise to no obligations whatsoever whether contractual or otherwise in the Company and: (b) that the proceeds of resale or other dealing shall, in any period preceding payment of the full payment as aforesaid, be held by the Buyer in a separate account as trustee thereof for the Company and; (c) that the Buyer shall keep accurate records of the Goods resold or otherwise dealt with by the Buyer and shall include, in those records, details of the price of any resale, the identity and address of the purchaser and the date when the resale price was paid, if at all. (ii) Notwithstanding the provisions of (i) above, all Goods after delivery are at the Buyer’s risk and must be paid for notwithstanding the destruction thereof or any damage thereto however caused. (iii) If the Buyer fails to pay for the Goods on the due date (or fails to pay any instalment in which case the whole outstanding balance shall immediately become due) or if the Buyer goes into receivership or is declared bankrupt (or any equivalent thereof) or enters into a composition with its creditors or if the Buyer, being a company, goes into liquidation or into receivership or is otherwise declared insolvent or prohibited from trading, then the Buyer shall immediately notify the Company thereof and shall, upon demand made orally or in writing by or on behalf of the Company, deliver the Goods or cause the Goods to be delivered up to the Company or to the Company’s order. (iv) In the event of the determination or repudiation of the Contract (howsoever occurring) the Company is hereby irrevocably authorised to enter on to the premises of the Buyer and repossess the Goods and any other Goods in the Buyer’s possession the property in which is vested in the Company. (v) The Buyer will keep the Goods free from and will indemnify the Company against any charge, lien or other incombrance thereon. (vi) If the Buyer should make a new object of whatever nature from the Goods the subject of this Contract, or mix the Goods with any other object or objects or material, or cause or permit to be attached to the Goods any new object or objects or material, or if the Goods in any way whatsoever become a constituent of any other object, the Buyer will store such object or objects separately and the Company will be given legal and equitable ownership of such new objects and further, the Buyer shall hold such object or objects as bailees for the Company and the relationship between the Company and the Buyer with respect to such object or objects shall be one of the bailor and bailee. This transfer of ownership will be deemed to have taken place at the moment that there is attached to the Goods the subject of this contract any new object or objects or that such Goods are converted into a new object or are mixed with or become a constituent of any other object. Until such time as payment has been made as stipulated in (i) above the Buyer shall hold the object or objects as bailees for the Company but shall have the power to sell or otherwise deal with the object or objects on the same conditions as set out in (i) (a) and (b) above and on condition that the Buyer shall keep accurate records of the object or objects resold or otherwise dealt with by the Buyer and shall include in those records details of the price of any resale, the identity and address of the purchaser and the date when the resale price was paid, if at all. 10. Defective Goods (i) The Company shall not be liable for injury, loss of profit, damage to plant or offer any expenditure incurred on Goods supplied or any consequential or special loss or damage sustained by the Buyer by the reason of any breach of the Contract by the Company. (ii) Goods of own manufacture admitted by the Company to be defective shall, at the option of the Company, be credited or replaced free of charge and shall not form the subject of any claim for work done by the Buyer or for any loss, damage or expense whatsoever arising directly or indirectly from such defects. Defects in quality in any delivery shall not entitle the Buyer to cancel the remainder of the delivery order or contract. (iii) The undertaking given in paragraph (ii) of this clause is subject to the provision of clause 12 and to the following conditions: (a) That the Buyer shall return the defective part or parts of the Goods to the Company’s works or to such other place as the Company may specify as soon after discovery of the defect as is reasonably practical and, in any event, not later than 14 days after the discovery of the defect but providing notification is given in accordance with clause 6(ii) above. (b) That the cost of transporting the defective part or parts of the Goods to and from the Company’s works shall be paid for by the Buyer. (c) That the Buyer shall give written notice to the Company specifying the nature of the defects and the part or parts of the Goods returned. (d) That the Goods have been used and maintained properly and carefully in accordance with any instructions issued by the Company. (iv) The undertaking contained in paragraph (ii) of this clause does not apply to Goods or any part of Goods not manufactured by the Company in the case of such Goods the Company will use its best endeavours to pass onto the Buyer the benefit of any guarantee conditions or warranty received by the Company from the manufacturer of such Goods but the Company shall be under no liability whatsoever for any defects in such Goods. (v) In the case of any part or parts being replaced under the provisions of this clause the original of such part or parts shall become the property of the Company without payment. (vi) Save as provided above, the Company shall be under no liability by reason of manufacture, sale or delivery of any Goods which do not comply with or have not been made to comply with specifications or description and the Buyer accepts the Company’s alternative above in lieu or any remedy or right it might otherwise have in respect of such delivery notwithstanding that failure to provide the Goods which comply with the Contract and which have been made so to comply be due to negligence on the part of the Company, its servants, agents, sub-contractors or otherwise. 11. Product Liability and Consequential Loss (i) In no circumstances whatsoever shall the Company be liable in contract or tort or otherwise for any consequential or indirect damage or loss howsoever caused. (ii) In any event the Company’s liability to the Buyer shall be in respect of the consequences of any breach or non-performance of this Contract howsoever caused or arising shall be limited to the price of the Goods. 12. Exclusions (i) Subject to clause 10 above all conditions and warranties in respect of the Goods relating to quality fitness for purpose, merchantability or otherwise whether implied by statute or common law or otherwise are hereby excluded. (ii) Without prejudice to the generality of the foregoing, any warranty or condition as to the performance or suitability for any particular purpose of the Goods and, in particular, any warranty or condition that the specification, design or other details of the Goods will meet any particular requirements of any national or local authority or regulations or bye-laws affecting the same, except as agreed in writing with the Buyer in respect of any such requirements, regulations or bye-laws notified to the Company by the Buyer on or before the making of this Contract is hereby excluded. 13. Force Majeure The Company shall not be liable for any delay or failure in carrying out its obligations which is caused wholly or partly by reason of act of God, delay in transportation, labour disputes, fire, flood or accident, government action, inability to obtain labour, materials, manufacturing facilities or energy or any other cause beyond the Company’s control or that of its servants or agents. The Company shall be under no liability for loss or injury suffered by the Buyer thereby and the Contract shall be suspended during such delay. Upon the cessation of the cause of the delay the Contract shall again become operative, provided that, if as a result of such delay, the modification of the terms of the Contract or a cancellation thereof is requested by one party and it is reasonable that such modification or cancellation should be made, the Contract shall be so modified or cancelled and, in the case of cancellation, a proper proportion of the price shall be paid for any expenditure incurred by the Company or any benefit conferred upon the Buyer. 14. Waiver The rights of the Company shall not be prejudiced or restricted by any indulgence or forbearance extended by the Company to the Buyer and no waiver by the Company in respect of any breach shall operate as a waiver in respect of any subsequent breach. 15. Sub-Contracting The Company shall be entitled to sub-contract all or any of its obligations hereunder. 16. Determination If the Buyer shall make default in or commit a breach of the contract or of any of his obligations to the Company or if any distress or execution shall be levied upon the Buyer’s property or assets, or if the Buyer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against him, or if the Buyer is a limited company and any resolution of petition to wind-up such company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a receiver of such company’s undertaking, property or assets or any part shall be appointed, the Company shall have the right forthwith to determine any contract then subsisting and upon written notice of such determination being given to the Buyer any subsisting contracts shall be deemed to have been determined and the Company shall be entitled to recover from the Buyer all losses thereby arising including but not limited to those under paragraph 9 of these conditions or otherwise. 17. Partial Completion In the case of partial completion of an order by reason of any of the events referred to in paragraphs 9 or 16 of these conditions the Company shall be entitled to a quantum meruit in respect of all work done by it without prejudice to its rights should non-completion be occasioned by the Buyer. 18. Notices Unless otherwise provided in writing any written communication or notice under the contract shall be made or given by sending the same by ordinary prepaid first class letter post in the case of the Company to its current address and, in the case of the Buyer, to his last known address and, if so sent, shall be deemed to be made or given 2 days after the date when posted. 19. Law and Interpretation The contract shall be governed by English Law and the Buyer shall submit to the non exclusive jurisdiction of the English Courts. If any of these conditions or any part thereof is rendered void or unenforceable by any legislation to which it is subject or by any rule of law it shall be void or unenforceable to that extent and no further. 20. Arbitration If at any time any question, dispute or difference whatsoever shall arise between the Buyer and the Company in connection with or arising out of the contract either party may give to the other notice in writing of its existence with short particulars of the point in issue and of its intention (if necessary) to submit the dispute to arbitration. Such question, dispute or difference shall then be referred to the decision of an arbitrator in England to be agreed on by the Buyer and the Company or, failing agreement within 14 days, of either party having given to the other the name of a suggested arbitrator to be appointed on the request of either party by the President, for the time being, of the Law Society.