Legal

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Terms and Conditions of Sale

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this condition apply in these conditions.

1.2 Bespoke Goods: means any goods manufactured by the Company for the Buyer at the Buyer’s request to the Buyer’s specification, which includes but is not limited to, the manufacture of non-standard goods and non-standard size goods.

1.3 Buyer: the person, firm or company who purchases the Goods or Services from the Company.

1.4 Buyer’s Goods: any goods owned by the Buyer which are supplied by the Buyer to the Company in order that the Company can perform the Services.

1.5 Company: Clark Drain Limited of Station Road, Yaxley, Peterborough, PE7 3EQ.

1.6 Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods or Services, incorporating these conditions.

1.7 Delivery Point: the place where delivery of the Goods is to take place under condition 4.

1.8 Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company including (where applicable) the Buyer’s Goods and the Bespoke Goods.

1.9 Services: any galvanising services agreed in the Contract to be provided by the Company to the Buyer’s Goods or to the Bespoke Goods.

1.10 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.11 Words in the singular include the plural and in the plural include the singular.

1.12 A reference to one gender includes a reference to the other gender.

1.13 Condition headings do not affect the interpretation of these conditions.

2. APPLICATION OF TERMS

2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).

2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract

2.3 Any variation to these conditions and any representations about the Goods or Services shall have no effect unless expressly agreed in writing and signed by an authorised employee of the Company. Entirely without prejudice to clause 4.4, any variation in relation to Bespoke Goods which involves re-drawing or otherwise has an impact on the cost of manufacture, the Company will endeavour to inform the  Buyer of the change of cost and the change in any timescales prior to continuing with the contract, but the Company will be entitled in any event to payment from the Buyer of a reasonable sum as a result of the variation. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company relating to the Goods or Services which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.

2.4 Each order or acceptance of the Company’s quotation for Goods or Services which is issued by the Buyer shall be deemed to be an offer by the Buyer to buy those Goods or Services subject to these conditions.

2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company.

2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate. In relation to Bespoke Goods, the Buyer will supply to the Company the full technical specification for the Bespoke Goods and the Company will supply a drawing with the Company’s interpretation of the Buyer’s requirements (“the acceptance drawing”). The Buyer must check the acceptance drawing and any drawings and technical specifications supplied by the Company with the acceptance drawing and confirm acceptance of the same in writing, otherwise the Company reserves the right not proceed to manufacture the
Bespoke Goods.

2.7 Any quotation issued by the Company is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer. Any such quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.

2.8 No order placed by the Buyer which has been accepted by the Company may subsequently be cancelled by the Buyer without the consent of the Company. The Company may withhold its consent or grant consent subject to such conditions as the Company may in its discretion decide.

3. DESCRIPTION

3.1 The quantity and description of the Goods or Services shall be as set out in the Company’s quotation or acknowledgement of order.

3.2 The Company reserves the right to alter or modify the specification of the Goods or Services without prior notice to the Buyer.

3.3 All samples, drawings, descriptive matter, specifications, dimensions and weights issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them. They shall not form part of the Contract and this is not a sale by sample.

4. DELIVERY

4.1 Delivery of the Goods shall take place at the Company’s place of business or at such other address as may be agreed by the Company and the Buyer.

4.2 The Buyer shall take delivery of the Goods within 5 days of the Company giving it notice that the Goods are ready for delivery.

4.3 If the Company agrees to deliver the Goods at the Buyer’s premises or at another address specified by the Buyer then the Buyer will notify the Company prior to delivery of all applicable weight and load restrictions.

4.4 Any dates specified by the Company for delivery of the Goods or completion of the Services are intended to be an estimate and time for delivery or completion shall not be made of the essence by notice. If no dates are so specified, delivery of the Goods or completion of the Service shall be within a reasonable time taking into account the Buyer’s actions in terms of the time taken for the acceptance of  drawings and any technical information in relation to Bespoke Goods.

4.5 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods or completion of the Services (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract.

4.6 If for any reason the Buyer refuses or is unable to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations or the Buyer is not present to accept delivery, or off-loading facilities are not available owing to time restrictions:
(a) risk in the Goods shall pass to the Buyer;
(b) the Goods shall be deemed to have been delivered;
(c) the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and 
(d) the Buyer will pay to the Company an administrative fee of 15% of the price of the Goods or Services (exclusive of value added tax) together with a redelivery charge, both of which will be payable by the Buyer within 14 days from the date of the Company’s invoice.

4.7 The Buyer (if necessary) shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods.

4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.

4.10 Subject to the Company’s obligations under clauses 5.1 and 9.4 the Buyer will not be entitled to return any Goods after delivery without the consent of the Company which the Company will be entitled to withhold at its discretion. The Company will not in any event grant consent if the Goods have been manufactured or supplied to the Buyer’s particular specifications or the Buyer’s request to return the Goods is received by the Company more than 30 days after delivery of the Goods to the Buyer.

4.11 Subject to clauses 5.1, 9.4 and 4.10, in the event that the Company do at its discretion accept the return of any Goods, the Buyer will pay a re-stocking charge to the Company in a sum to be agreed between the Parties. Agreement of the said sum will be a condition precedent to the return of any Goods. The restocking charge will be deducted from the invoice.

5. SHORTAGES OR NON-DELIVERY

5.1 The Buyer will inspect the Goods on delivery and confirm on the delivery note that the Goods have been inspected. Any shortages of or damage to the Goods must be endorsed on the delivery note and notified to the Company within 24 hours following the time of delivery. Upon such notification the Company shall investigate and if appropriate inspect the Goods and shall at its sole discretion either repair or replace them. The Buyer will not attempt to repair any damaged Goods without the prior approval of the Company.

5.2 The Company will not accept liability for shortage of or damage to the Goods if:
(a) the Buyer fails to inspect the Goods on delivery; or
(b) the Buyer inspects the Goods on delivery but there is no record of any shortage or damage to the Goods endorsed by the Buyer on the delivery note.

5.3 The Company shall not be liable for any non-delivery of Goods unless the Buyer gives written notice to the Company of the non-delivery within 48 hours following the date when the Goods would in the ordinary course of events have been received.

5.4 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

6. RISK/TITLE

6.1 The Goods are at the risk of the Buyer from the time of delivery. Subject to clause 4.6 the Company accepts liability for any loss or damage to the Buyer’s Goods whilst they are on the Company’s premises and before delivery to the Buyer.

6.2 Subject to clause 6.10 ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.

6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.

6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.

6.5 Until ownership of the Goods has passed to the Buyer (and provided that the Goods are still in existence and have not been resold) the Company may at any time require the Buyer to deliver up the Goods to the Company. 

6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.

6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or (if the Company has required the Buyer to delivery up the Goods under clause 6.5) to repossess them.

6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.

6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.

6.10 The terms of clauses 6.2 to 6.8 will not apply to the Buyer’s Goods.

7. PRICE

7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s price list published on the date of acceptance of the Buyer’s order and the price for the Services shall be the price specified in the Contract.

7.2 The price for the Goods or Services shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.

8. PAYMENT

8.1 Payment of the price for the Goods or Services is due in pounds sterling on the date of delivery of the Goods or completion of the Services unless the Company has agreed credit arrangements with the Buyer in which case payment is due within 30 days from the date of the Company’s invoice.

8.2 Time for payment shall be of the essence.

8.3 No payment shall be deemed to have been received until the Company has received cleared funds.

8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.

8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract:
(a) the Company may suspend any further delivery of the Goods or performance of the Services and/or (b) the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc accruing on a daily basis until payment is made whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

9. QUALITY

9.1 The Company warrants that (subject to the other provisions of these conditions):
(a) on delivery and for a period of 12 months thereafter the Goods (excluding the Buyer’s Goods and the Bespoke Goods) shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and (b) on delivery and for a period of 12 months thereafter the Goods (excluding the Buyer’s Goods and the Bespoke Goods) shall be reasonably fit for any particular purpose for which such Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely
on the skill and judgement of the Company; and (c) the Services shall be performed by the Company with reasonable skill and care and in accordance with normal industry standards

9.2 The Company shall not be liable for a breach of any of the warranties in condition 9.1 unless:
(a) the Buyer gives written notice of the defect to the Company within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods or Services and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.

9.3 The Company shall not be liable for a breach of any of the warranties in condition 9.1 in respect of the Goods if:
(a) the Buyer makes any further use of the Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or  
(c) the Buyer alters or repairs such Goods without the written consent of the Company; or
(d) the Buyer sells the Goods to any third party and written notice of the defect is given to the Company after the Goods have been delivered to the third party; or
(e) the Buyer fails to make the Goods available to the Company for collection by the Company within 30 days of the notification of the defect pursuant to clause 9.2(a) or within 30 days of the Company’s request pursuant to clause 9.2 (b) whichever is the later; or
(f) the Buyer destroys the Goods without the written consent of the Company.

9.4 Subject to condition 9.2 and condition 9.3
(a) if any of the Goods do not conform with any of the warranties in condition 9.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company;
(b) if any of the Services do not conform with any of the warranties in condition 9.2 the Company shall re-perform the Services as soon as reasonably practicable.

9.5 If the Company complies with condition 9.4 it shall have no further liability for a breach of any of the warranties in condition 9.1 in respect of such Goods or Services.

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

9.7 The coating used on all ductile iron products is a temporary coating only. According to the environment they are used in ductile iron products might start to oxidise. Such oxidation does not affect the integrity or strength of the product in any way, even if it is not aesthetically appealing, and should not be compared to the corrosion of mild steel. After the initial stage, the oxidation rate of ductile iron will decrease and a protective layer will build up. When trafficked the surface will gradually take on a dark polished finish. Should this not be desirable we recommend that the products be painted with a proprietary rust-inhibiting paint at periodic intervals as needed. Any coating that is applied to the product when
delivered is intended to protect the product between manufacture and installation only. Clark-Drain will not therefore accept claims for defect as a result of surface corrosion.

10. LIMITATION OF LIABILITY

10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and 
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

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

10.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.

10.4 Subject to condition 10.2 and condition 10.3:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance off the Contract shall be limited [to a total aggregate sum of £50,000]; and
(b) the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
(c) Further, in relation to Bespoke Goods, given that the Company is manufacturing to the specification and instruction of the Buyer, to the fullest extent permitted by law (i) the Company shall not be liable to the Buyer as to the suitability of the Bespoke Goods for their end use and (ii) the Buyer remains fully liable for the installation of the Bespoke Goods and the use of the Bespoke Goods by the end user.
(d) Further still, where Goods are either to be modified or are modified by the Buyer, the Company excludes liability to the fullest extent permitted by the law in relation to any claims howsoever arising in relation to the Goods, including but not limited to claims arising in connection with (a) the suitability of the Goods for their end use and (b) compliance with MOD requirements, British Standards or Eurocodes or equivalent (as amended from time to time).

10.5 Copyright in all documents prepared by or for the Company in connection with the Goods and/or the Bespoke Goods and in any designs depicted in and works executed from these documents shall, unless otherwise agreed, remain the property of the Company but the Buyer shall have a non-exclusive, royalty free, transferable licence to copy, use and publish such documents (including copies thereof) for any purpose connected with the Goods including without limitation its sale, letting, use, maintenance, redesign, repair, reinstatement, advertisement,
marketing, alteration, renewal, redevelopment or refurbishment and the Company agrees not to assert any moral rights in such documents (or the Goods) to such end granted pursuant to the Copyright Designs and Patents Act 1988 or any statutory re-enactment or modification thereof. The Company shall not be liable for the use of such documents for a purpose other than that for which they were prepared.

11. ASSIGNMENT

11.1 The Company may assign the Contract or any part of it to any person, firm or company.

11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

12. FORCE MAJEURE

12.1 The Company reserves the right to defer the date of delivery of the Goods or performance of the Services or to cancel the Contract (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a
continuous period in excess of 30 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.

13. GENERAL

13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

13.2 If any provision of the Contract 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 the Contract and the remainder of such provision shall continue in full force and effect.

13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

13.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

13.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

13.6 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.

14. COMMUNICATIONS

14.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
(a) in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) in the case of communications to the Buyer) to the registered office of the Buyer (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.

14.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.