Selmach Machinery Ltd
Registered company number 08513664
SELMACH STANDARD TERMS AND CONDITIONS
1. Formation of Contract
1.1. A quotation for the goods provided by the Seller (Selmach Machinery Ltd) shall not constitute an offer. 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 when confirmed in writing by the Seller’s authorised representative.
1.2. Each order which is so accepted by the Seller 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.
2. Specification and Services
2.1. Subject to 2.2, all goods supplied by the Seller shall be in accordance with specifications or descriptions (if any) expressly listed or set out in 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 is’. 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.
2.4. 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.
2.5. Spare parts shall be charged as additional cost items. All spare parts shall be either new or reconditioned or reassembled.
2.6. 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.
2.7. It is a condition of supply of any new or used machinery that the Purchaser has if needed enquired of and made sure that they the Purchaser has a suitable electrical supply including the incoming electrical supply proving enough wattage, amperage, and any other such requirement to provide a suitable electrical supply.
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. The price for delivery will be the price set out 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 and time of delivery is not of the essence.
4.3. Risk in the goods shall pass to the Purchaser upon delivery. Delivery is completed on the completion of unloading of the goods at the delivery location if the Seller has agreed to unload. If the Purchaser has agreed to unload then:
4.3.1. delivery is completed at the time of arrival at the delivery location and the Purchaser accepts the risk immediately from the time of delivery onwards; and
4.3.2. the Purchaser accepts full risk in unloading the goods to include but not limited to damage to the goods themselves and/or damage to the Seller’s property and/or personnel and/or any third-party damage; and
4.3.3. the Purchaser shall ensure that it has in place all risk assessments, method statements and health and safety requirements in order to safely unload the goods.
4.4. Title to the goods shall not pass to the Purchaser until the Seller receives payment in full (cash or cleared funds) for the goods delivered. Until title to the goods has passed to the Purchaser, the Purchaser shall:
4.4.1. store the goods separately from all other goods held by the Purchaser so that they remain readily identifiable as the Seller’s property;
4.4.2. not resell or otherwise encumber title to the goods;
4.4.3. not remove, deface or obscure any identifying mark or packaging on or relating to the goods;
4.4.4. maintain the goods in satisfactory condition and keep them insured against all risks for the full price on the Seller’s behalf from the date of delivery; and
4.4.5. notify the Seller immediately if it becomes subject to any events that warrant termination as set out in condition 15 ‘Termination’.
4.5. If before title of the goods passes to the Purchaser, the Purchaser becomes subject to any event of Termination as set out in Condition 15, then, without limiting any other right or remedy:
4.5.1. the Purchaser’s right to resell the goods or use them in the ordinary course of its business ceases immediately; and
4.5.2. the Seller may at any time (i) require the Purchaser to deliver up all goods in its possession that have not been resold, or irrevocably incorporated into another product; and (ii) if the Purchaser fails to do so promptly, enter any premises of the Purchaser where the goods are stored in order to recover them.
4.6. Maintenance services 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. Price and Payment
5.1. The Price of the goods and payment terms shall be the price set out in the Order. Any deposit is non-refundable unless the Seller, at its sole discretion, deems otherwise.
5.2. The price of the goods excludes amounts in respect of V.A.T, which the Purchaser shall additionally be liable to pay to the seller at the prevailing rate, subject to the receipt of a valid V.A.T Invoice.
5.3. If the Purchaser fails to make any payment due to the Seller under the Order by the due date for payment, then the Purchaser shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Purchaser shall pay the interest together with the overdue amount.
5.4. If the Purchaser fails to make any payment due to the Seller under the Order by the due date for payment then the Seller shall have the immediate right to:
5.4.1. cancel the balance, if any, of the Order and to recover from the Purchaser damages for any loss suffered by the Seller as a result of such cancellation; and/or
5.4.2. retain any deposit monies paid by the Purchaser; and/or
5.4.3. to cancel any other Order(s) which the Seller may have with the Purchaser and to recover from the Purchaser damages for any loss suffered by the Seller as a result of such cancellation; and/or
5.4.4. to enter the Purchaser’s premises to repossess any goods in which the Seller retains title.
5.5. The Purchaser shall pay all amounts due under the Order in full without any set-off, counter claim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Purchaser against any amount payable by the Seller to the Purchaser
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. Purchaser’s Obligations
9.1. It is acknowledged by the Purchaser that it has knowledge of its industry and the environment in which the goods will be placed and accordingly at the point of delivery, it is the responsibility of the Purchaser to:
9.1.1. ensure that all risk assessments, method statements and any other compliance with health and safety or other regulatory requirement in relation to the installation and use of the goods have been complied with;
9.1.2. ensure that all goods are positioned, levelled, installed, commissioned and operated by competent and appropriately trained technicians; and
9.1.3. ensure that all staff, workers and contractors who are to use the goods are appropriately trained; and
9.1.4. ensure that any operating manuals and/or manufacturer’s instructions and/or training guidelines are implemented.
9.2. It is acknowledged by the Purchaser that a breach of any of the above could render any warranty/guarantee under condition 10 null and void.
9.3. It is the full responsibility of the Purchaser to provide a suitable stable and uninterrupted electrical supply from the National Grid or similar. We cannot be held responsible for substandard electrical supplies such as generators, phase converters or other modes of supply. See also clause 2.7.
10.1. If any guarantee or warranty from the Seller is provided it shall be stated in the Order and provided subject to the following:
10.1.1. The Seller shall free of charge either repair or, at its option, replace defective goods where the defects appear under the proper use within 6 months from the date of delivery or other date as specified on the Order, PROVIDED THAT:
a) Notice in writing of the defects complained of shall be given to the Seller upon their appearance, and
b) 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
c) The defective goods shall be returned to the Seller’s factory at the Purchaser’s expense if so requested by the Seller.
10.1.2. 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 6 months referred to in Condition 10.1.1 or other date specified in the Order shall be replaced by the then unexpired portion of that period only.
10.1.3. Alternative to Condition 10.1.1, 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.
10.2. Unless sold ‘as is’, the Seller will pass on to the Purchaser (in so far as possible) the benefit of any manufacturer’s guarantee/warranty and will (on request) supply to the Purchaser details of the terms and conditions of such guarantee/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.
10.3. 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 no 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 arising.
10.4. 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.
10.5. Until full payment of the goods is received by the Seller, the Purchaser is not entitled to the benefit of any guarantee/warranty.
10.6. For the avoidance of doubt, any warranty or guarantee whether provided by the Seller and/or manufacture shall expressly exclude: normal wear and tear; deliberate damage and/or misuse of the goods, accidental damage, failure to use the goods in accordance with their instructions and alternation or repair by the Purchaser or any other third party not authorised by the Seller. The Seller further reserves its right to limit any warranty/and or guarantee in respect of used goods which it deems appropriate in relation to the wear and tear of the goods provided.
10.7. As in clause 9.3 and 2.7 and referring to this, Our guarantee is null and void where these clauses is not met. We are not able to provide a guarantee in this instance especially where machinery includes but is not limited only to, CNC controls, inverters, PLC boards and any such electrical equipment. We hold the right to charge the purchaser the full cost of any repair charges that may be needed.
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. Consequential Losses
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. Non-Exclusions of Liability
14.1. Nothing in these Conditions shall limit or exclude the Seller’s liability for:
14.1.1. Death or Personal Injury caused by its negligence, or the negligence of its employees, agents or sub-contractors (as applicable);
14.1.2. Fraud or fraudulent misrepresentations;
14.1.3. Breach of the terms implied by Section 12 of the Sale of Goods Act 1979 or defective products under the Consumer Protection Act 1987 as amended; or
14.1.4. Any matter in respect of which it would be unlawful for the Seller to exclude or restrict its liability.
15.1. Without limiting its other rights or remedies, the Seller may terminate the Order with immediate effect by giving written notice (writing to include e-mail) to the Purchaser if:
15.1.1. the Purchaser commits a material breach of any term of these Conditions;
15.1.2. the Purchaser and anyone appointed to act on the Purchaser’s behalf displays unprofessional conduct such as abusive language towards the Seller and any of the Seller’s employees or sub-contractors;
15.1.3. the Purchaser takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business, entering into bankruptcy or individual voluntary arrangement if an individual or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
15.1.4. the Purchaser suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
15.1.5. the Purchaser’s financial position deteriorates to such an extent that in the Seller’s opinion the Purchaser’s capability to adequately fulfil its obligations under the Order has been placed in jeopardy.
15.2. Without limiting its other rights or remedies, the Seller may suspend provision of the goods under the Order or any other Order between the Purchaser and the Seller if the Purchaser becomes subject to any of the events listed in Conditions 15.1.1 to 15.1.5 above or the Seller reasonably believes that the Purchaser is about to become subject to any of them, or if the Purchaser fails to pay any amount due under the Order and these Conditions on the due date for payment.
15.3. Without limiting its other rights or remedies, the Seller may terminate the Order with immediate effect by giving written notice to the Purchaser if the Purchaser fails to pay any amount due under the Order on the due date for payment.
15.4. On termination of the Order for any reason the Purchaser shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest.
15.5. Termination of the Order shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this contract that existed at or before the date of termination.
15.6. Any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
16. How We Use Your Personal Information (Data Protection)
16.1. The following definitions shall apply in this section 16:
Applicable Laws: means the law of the European Union and/or Domestic UK Law.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation (EU 2016/679) and any other directly applicable European Union regulation relating to privacy.
Domestic UK Law: means the UK Data Protection Legislation and any other law that applies in the UK.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.
Personal Data: as defined in the Data Protection Legislation.
16.2. Both Parties shall comply with all applicable requirements of the Data Protection Legislation.
16.3. All personal information that the Seller may use will be collected, processed, and held in accordance with the Data Protection Legislation.
16.4. For complete details of the Seller’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of your rights and how to exercise them, and personal data sharing (where applicable), please refer to the Seller’s current Customer Privacy Notice available on request. In relation to exercising your rights regarding personal data, the Purchaser can also request the Seller’s ‘Response Procedure for data subject requests under GDPR’.
16.5. In relation to any Personal Data processed in connection with the performance of the Seller of its obligations under these Conditions, the Seller shall:
16.5.1. process the Personal Data in compliance with this clause;
16.5.2. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
16.5.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
16.5.4. not transfer any Personal Data outside of the European Economic Area.
16.6. The Purchaser consents to the Seller appointing the following third-party processors under these Conditions: IT provider, sub-contractors, accountants and manufacturers of the goods.
17. Applicable Law
17.1. 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.