1. Formation of Contract
1.1. Any order sent to the Seller by the Purchaser shall be accepted entirely at the discretion of the Seller, and, if so accepted, will only be accepted upon these conditions (hereafter referred to as the “Conditions”) and by means of the Seller’s standard order acknowledgement form.
1.2. Each order which is so accepted shall constitute an individual legally binding contract between the Seller and the Purchaser and such contract is hereafter referred to in these Conditions as an “Order”.
1.3. These Conditions shall override any contrary different or additional terms or conditions (if any) contained on or referred to in an order form or other documents or correspondence from the Purchaser, and no addition alteration or substitution of these terms will bind the Seller or form part of any Order unless they are expressly accepted in writing by a person authorised to sign on the Seller’s behalf.
2. Specification and Services
2.1. Subject to 2.2, All goods supplied by the Seller shall be in accordance with (i) the current edition of the relevant Product Description Leaflet as published from time to time by the Seller (copies of which are available from the Seller upon request) and (ii) those further specifications or descriptions (if any) expressly listed or set out on the face of the Order. No other specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of or be incorporated by reference into the Order.
2.2. All used goods (i.e. those that have already been sold and used and returned) are sold ‘as seen’. Notwithstanding anything to the contrary herein the Seller makes no representations and gives no warranties as to the quality, condition, state or description of the used goods, or their fitness or suitability for any purpose. All implied statutory or common law terms, conditions and warranties as to the used goods are excluded to the fullest extent permitted by law. The Purchaser, in relation to used goods, acknowledges that before the date of purchase the Seller has given the Purchaser a reasonable opportunity to inspect the goods and the Purchaser is satisfied with the quality and condition of the used goods.
2.3. All inspection and maintenance services of machinery and associated items purchased from Seller shall include:
2.3.1. All work (if any) carried out by the Seller on the machinery, and
2.3.2. Scheduled preventative maintenance (including, without limitation, adjustments, modifications, and supply and installation of spare parts) of such a nature and at such times and frequency as agreed between the parties to keep the machines in good working order, and
2.3.3. Unscheduled on-call remedial maintenance (including, without limitation, adjustments, modifications, and supply and installation of spare parts) due to malfunction.
2.3.4. For the avoidance of doubt maintenance services do not include user routine maintenance, work other than to the machinery, repair, damage to, or replacement of parts of the machinery caused by accident or misuse or by the neglect, act or default of the Purchaser or any other user of the machinery (including if there is a failure to undertake routine user maintenance) or by any factor external to the machine.
2.3.5. Spare parts shall be charged as additional cost items; All spare parts shall be either new, or reconditioned or reassembled. If any replacement or repair included within the maintenance service is normally effected by removal of the machinery or any part thereof from the premises, and the Purchaser refuses to permit this, then the Seller shall be entitled to recover any additional costs incurred thereby and the Seller shall incur no liability for any resultant delay or failure in providing the relevant maintenance services.
3.1. The Purchaser shall be deemed to have accepted all goods upon their delivery by the Seller to the address specified in the Order.
4. Delivery and Risk
4.1. Unless otherwise stated in the Order, the price quoted for the goods includes delivery to the address specified in the Order, provided that the Seller reserves the right to make an additional charge to cover any increase in transport costs occurring before the date of delivery.
4.2. Any time of date for delivery given by the Seller is given in good faith, but is an estimate only.
4.3. Rick in the goods shall pass to the Purchaser upon delivery.
4.4. Maintenance service under Condition 2.3.3. will be provided by the Seller during normal working hours and subject to reasonable prior notice by the Purchaser to the Seller. In the event the Seller agrees to provide maintenance services outside normal working hours Purchaser agrees to pay the Seller, in addition to the relevant charge, the Seller’s standard extra charge for the provision of maintenance services outside normal working hours.
5. Title and Payment
5.1. The Seller warrants that [(except in relation to intellectual property rights of third parties as referred to in Condition 5.3)] the Seller has good title to the goods [and that (pursuant to s.12(3) of the Sale of Goods Act 1979, or s.2(3) of the Supply of Goods and Services Act 1982, whichever Act applies to the Order) it will transfer such title as it may have in the goods to the Purchaser pursuant to Condition 5.5].
5.2. [The Seller warrants that it is not aware of any actual or alleged infringements of any intellectual property rights of third parties which relate to the goods than those (if any) which the Seller has disclosed to the Purchaser prior to acceptance of the Order.]
5.3. [The Seller shall have no liability to the Purchaser (other than as provided in Condition 10) in the event that the goods to be supplied under the Order infringe any intellectual property rights of a third party (including without limitation by reason of their possession, sale or use, whether alone or in association or combination with any other goods); the Seller gives no warranty that the goods to be supplied under the Order will not infringe as aforesaid, and all conditions, warranties, stipulations or express or implied, by statute, at common law or otherwise howsoever, are hereby excluded.]
5.4. Unless otherwise stated in the Order, payment of the price of the goods comprised in each consignment delivered pursuant to an Order shall become due at the end of the month following the month in which that consignment is delivered.
5.5. Title to the goods comprised in each assignment shall not pass to the Purchaser until the Purchaser has paid their price to the Seller, but, even though title has not passed, the Seller shall be entitled to sue for the price once its payment has become due.
6.1. If the Seller shall be unable, through circumstances beyond its control (including without limitation lack of shipping instructions from the Purchaser), to deliver the goods within 14 days after notification to the Purchaser or its agent that the goods are ready for delivery, the Seller shall be entitled to arrange storage on behalf of the Purchaser, whereupon delivery shall be deemed to have taken place, all risk in the goods shall pass to the Purchaser, and delivery to the Purchaser of the relevant warehouse receipt shall be deemed to be delivery of the goods for the purposes of Condition 4. All charges incurred by the Seller for storage or insurance shall be paid by the Purchaser within 30 days of submission of an invoice.
7. Damage in transit
7.1. The Seller will replace free of charge any goods proved to the Seller’s satisfaction to have been damaged in transit provided that within 24 hours after delivery both the Seller and the carriers have received from the Purchaser notification in writing of the occurrence of the damage and also, if and so far as practicable, of its nature and extent.
8. Force Majeure
8.1. The Seller shall not be under any liability for any failure to perform any of its obligations under the Order due to Force Majeure. Following notification by the Seller to the Purchaser of such cause, the Seller shall be allowed a reasonable extension of time for the performance of its obligations.
8.2. For the purposes of this Condition, “Force Majeure” means fire, explosion, flood, lightning, Act of God, act of terrorism, war, rebellion, riot, sabotage, official strike or similar official labour dispute, or events or circumstances outside the reasonable control of the party affected thereby.
9.1. For goods which are manufactured by the Seller or which bear one of the Seller’s trade marks, the Seller grants the following guarantee:
9.1.1. The Seller shall free of charge either repair or, at its option, replace defective goods where the defects appear under the proper use within [12 months] from the date of delivery, PROVIDED THAT:
126.96.36.199. Notice in writing of the defects complained of shall be given to the Seller upon their appearance, and
188.8.131.52. Such defects shall be found [to the Seller’s reasonable satisfaction] to have arisen solely from the Seller’s faulty design, workmanship or materials, and
184.108.40.206. The defective goods shall be returned to the Seller’s factory at the Purchaser’s expense if so requested by the Seller.
9.1.2. Any repaired or replaced goods shall be delivered by the Seller free of charge to the original point of delivery but otherwise in accordance with and subject to these Conditions of Sale [save that the period of [12 months] referred to in Condition 9.1.1 shall be replaced by the then unexpired portion of that period only].
9.1.3. Alternative to Condition 9.1.1, the Seller shall be entitled at its absolute discretion to refund the price of the defective goods in the event that such price shall already have been paid by the Purchaser to the Seller, or, if such price has not been paid, to relieve the Purchaser of all obligation to pay the same by the issue of a credit note in favour of the Purchaser in the amount of such price.
9.2. In respect of all goods manufactured and supplied to the Seller by third parties the Seller will pass on to the Purchaser (in so far as possible) the benefit of any warranty given to the Seller by such third parties and will (on request) supply to the Purchaser details of the terms and conditions of such warranty and copies of any relevant product information sheets, technical data sheets or product leaflets issues by such third parties and the Purchaser shall be solely responsible to the entire exclusion of the Seller for complying with all of these.
9.3. The Seller’s liability under this Condition shall (subject to Condition 14) be to the exclusion of all other liability to the Purchaser whether contractual, tortious or otherwise for defects in the goods or for any loss or damage to or caused by the goods, and (subject to Condition 14) all other conditions, warranties, stipulations or other statements whatsoever concerning the goods, whether express or implied, by statute, at common law or otherwise howsoever, are hereby excluded; in particular (but without limitation of the foregoing) the Seller grants n warranties regarding the fitness for purpose, performance, use, nature or quality of the goods, whether express or implied, by statute, at common law or otherwise howsoever.
9.4. The Purchaser shall throughout the period of the agreement for maintenance services take good care of the machinery and operate the same in a proper manner, carry out all user routine maintenance; order and pay for such consumable items as Seller shall require to operate and use the machinery; permit the Seller and any person authorised by the Seller to have safe uninterrupted access to the machinery at all reasonable times when required to carry out its duties hereunder. The Seller shall not be liable for any failure to perform the maintenance services arising out of the Purchaser’s breach of any of its obligations.
10. Intellectual property rights
10.1. In the event that any claim is made against the Purchaser for infringement of Intellectual Property Rights arising directly from the use [or sale] by the Purchaser of the goods, the Seller at its own expense shall conduct any ensuing litigation and all negotiations for a settlement of the claim. The Seller will bear the costs of any payment (either by way of a lump sum or a continuing royalty payment) made in settlement, or as a result of an award in a judgment against the Seller in the event of litigation.
10.2. The benefit of Condition 10.1 is granted to the Purchaser by the Seller only in the event that the Purchaser shall give the Seller [the earliest possible reasonable] notice in writing of any such claim being made or action threatened or brought against it, shall make no admission of liability or take any other action in connection therewith, shall permit the Seller to have the conduct of the claim pursuant to Condition 10.1, and shall (at the Seller’s expense) give all reasonable information, cooperation and assistance to the Seller (including without limitation lending its name to proceedings) in relation to the conduct of the claim. In addition, if it is made a condition of any settlement made by the Seller, or judgment awarded against the Purchaser, pursuant to Condition 10.1, the Purchaser shall return or destroy, as applicable, all infringing goods still under its control subject to a refund by the Seller of any payment for such goods already made [less reasonable allowance for depreciation of the goods by reason of their use (if any) by the Purchaser prior to their return or destruction as aforesaid.]
10.3. The provisions of Condition 10.1 shall not apply to any infringement caused by the Seller having followed a design or instruction furnished or given by the Purchaser nor to any use of the goods in a manner or for a purpose which shall have been specifically prohibited in writing by the Seller, nor to any infringement which is due to the use of such goods in association or combination with any other product.
10.4. Any design or instruction furnished or given by the Purchaser shall not be such as will cause the Seller to infringe any intellectual property rights.
10.5. For the purposes of this Condition, the capitalised term “Intellectual Property Rights” means Patents, Registered Designs, Unregistered Designs, Registered Trademarks and Copyright only, having effect in the United Kingdom.
10.6. The foregoing states the Seller’s entire liability to the Purchaser and the Purchaser’s sole and exclusive remedies against the Supplier in connection with claims based on or resulting from the infringement of intellectual property rights, of any kind whatsoever, of third parties.
11.1. Both the Seller and the Purchaser shall each keep confidential and shall not without the prior consent in writing of the other disclose to any third party any technical or commercial information which it has acquired from the other as a result of discussions, negotiations and other communications between them relating to the goods and the Order.
12. Economic Loss
12.1. Subject to Condition 14, and notwithstanding anything contained in these Conditions (other than Condition 14) or the Order, in no circumstances shall the Seller be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof (i) for any loss of profit, business, contracts, revenues, or anticipated savings, or depletion of goodwill, or (ii) for any special, indirect or consequential damage of any nature whatsoever.
13. Limitation of Liability
13.1. Subject to Condition 14, and notwithstanding anything contained in these Conditions (other than Condition 14) or the Order, the Seller’s liability to the Purchaser in respect of the Order, in contract, tort (including negligence or breach of statutory duty) or howsoever arising, shall be limited to the price of the goods or services specified in the Order.
13.2. The Conditions shall not imply that the maintenance services will result in putting the machinery into satisfactory working order or condition without malfunction and the Seller gives no such warranty.
14. Unfair Contract Terms Act 1977
14.1. If and to the extent that s.6 and/or s.7(3A) of the Unfair Contract Terms Act 1977 applies to the Order, no provision of these terms and conditions shall operate or be construed to operate so as to exclude or restrict liability of the Seller for breach of the express warrantes contained in Condition 5, or for breach of the applicable warranties as to title and quiet possession implied into the terms and conditions of the Order by s.12 of the Sale of Goods Act 1979, or s.2 of the Supply of Goods and Services Act 1982, whichever Act applies to the Order.
14.2. Where the Purchaser is a natural person nothing in these terms and conditions shall operate, or be construed to operate so as to exclude or restrict liability of the Seller for death or personal injury caused by reason of the negligence of the Seller or of its servants, employees or agents.
15. Applicable Law
15.1. The Order and any dispute arising out of or in connection with it (including non-contractual disputes) shall be governed by the law of England and the parties agree to submit to the exclusive jurisdiction of the English courts.
16. Business or Consumer
16.1. Are you a business or a consumer? In some areas you will have different rights under these terms if you are a consumer. You are a consumer if you are an individual and you are buying products or services wholly or mainly for your personal use and not for use in connection with your trade, business, craft or profession. If you are a consumer and wish to make a change to the product or service you have ordered please contact us. We will let you know if the change is possible. If it is possible we will let you know about any changes to the price of the product, the timing of supply or anything else which would be necessary as a result of your requested change and ask you to confirm whether you wish to go ahead with the change. If you are a consumer then for most products bought online you have a legal right to change your mind within 14 days and receive a refund provided you pay for the return of the goods. Your right as a consumer to change your mind does not apply in respect of (i) services, once these have been completed, even if the cancellation period is still running, (ii) products sealed for health protection or hygiene purposes, once these have been unsealed after you receive them or (iii) any products which become mixed inseparably with other items after their delivery. This is a summary of your key legal rights. These are subject to certain exceptions. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06.