1.1 In these Terms:
“BUYER” means the person who accepts the seller’s verbal or written quotation for the sale of the Goods or whose Written order for the Goods is accepted by the Seller;
“GOODS” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms;
“SELLER” means MACHINERY WORLD LIMITED
“CONTRACT” means the contract for the sale and purchase of the Goods;
“INCOTERMS” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
“TERMS” means the standard terms of sale set out in (this document) and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and the Seller.
“WRITING” and any similar expression, includes facsimile transmission and comparable means of communication, including electronic mail or via the world wide web.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with the Seller’s Written or verbal quotation (if accepted by the Buyer), or the Buyer’s Written order (if accepted by the Seller), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer and no variation to these Terms shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.2 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless subsequently confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.3 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted on entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative.
3.2 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the goods
4.1 The price of the Goods (“Price”) shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom , the Seller’s published export price list shall apply (if any). All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated in the Seller’s Written quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on the basis, that, the Buyer shall be liable to arrange to collect the Goods from any location specified by the Seller whether in the United Kingdom or elsewhere.
4.4 The price shall be quoted and payable in pounds sterling and is exclusive of any applicable value added tax or any other taxes export taxes duties or other statutory levies or payments, which the Buyer shall be additionally liable to pay to the Seller.
5. Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Buyer shall pay 30% of the Price within 2 working days of acceptance of the order by the Buyer. The balance of the Price shall be paid by the Buyer to the Seller in cleared funds prior to collection of the Goods by the Buyer in any event payment of the Price in full shall be due within 30 days of acceptance of the order by the Seller.
5.2 Time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only on request.
5.3 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:
5.4.1 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.4.2 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above HSBC Bank Plc base rate in the United Kingdom from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises or elsewhere as the Seller may specify at any time after the Seller has notified the Buyer that the Goods are ready for collection.
6.2 The Goods shall not be released for delivery until payment of the Price has been made in full by the Buyer.
7. Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer as soon as the order for the Goods is accepted by the Seller and the Buyer shall insure the Goods at its own expense in the joint names of the Buyer and the Seller until payment of the Price received in full by the Seller
8.1 Subject as expressly provided in these Terms, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.2 All Goods are sold “as seen” unless otherwise agreed with the Company in writing prior to the order being accepted by the Company.
8.3 The Company shall not be liable for any faults and imperfections and errors of description.
8.4 Visual images and descriptions provided by the Company are for identification only and shall not constitute representations by the Company and the Customer should inspect the Goods and carry out whatever tests it considers necessary before the order is accepted by the Company.
8.5 The Company gives no warranty as to the suitability of the Goods for the purpose of the Customer and the Customer confirms that it has satisfied itself in this regard. The Customer must ensure that it complies with all requirements of the original manufacturer relating to the Goods, their transportation, storage, installation and use.
8.6 The Customer should be aware that the Goods may have been adapted or modified from its original specification by a previous owner of the goods if they are not new and it will be for the Customer to inspect the Goods to satisfy themselves as to the condition of the Goods. The Customer hereby confirms that it has had such opportunity to satisfy itself.
8.7 If a warranty has been provided with a new machine purchase, the warranty provided in respect of materials is for a period of 12 months commencing on the date of delivery of the same and is on a Return to Base format and the customer must first purchase the relevant replacement part before returning the defective part to the Company. Upon receipt the Company will determine whether the defect is in the scope of the warranty, criteria, such assessment to be performed within a reasonable period of time in any event, within 28 days at the expiry of which the Company will provide its decision to the customer and issue a credit note if applicable. If a new replacement part is required, the cost of return of the worn part and delivery of the new replacement part will be borne by the customer. 8.8 All warranties will be deemed void if the equipment is not connected to a stable power supply or if an interruption in supply has taken place. Where equipment is run from a non-stable power source such as a 3-phase generator or 3-phase converter, any warranty will become void.
9. The Company’s liability shall be limited as follows
9.1 To the replacement of any part of the goods found to be defective and notified to the Company within the period set out in clause 9.3.
9.2 Any defect or deficiency in, or shortage or failure to correspond to specification of the
supplies shall be notified to the Company within 3 working days of the date the customer discovers, or ought to have reasonably have discovered, the defect or deficiency, or shortage or failure to correspond to specification, as applicable. In the event the customer fails to do so the goods supplied shall be deemed to be of satisfactory quality and the Company will be entitled to charge the customer for any additional rectification work required thereafter.
9.3 The Company shall not be liable for any breach of any warranty contained in paragraph 9 if:
a. The customer continues to make use of any goods which it has alleged to be defective after giving notice of any such defect to the Company as above.
b. The customer modifies, adjusts, alters or repairs the goods without prior written consent from the Company
c. The defect arises as a result of the customer failing to follow any oral or written instructions provided by the company with regard to the storage, installation, commission, use or maintenance of the goods or (if there are none) recognised and accepted good trade practice.
d. The defect arises from any specification supplied to the Company by the customer or from fair wear and tear, wilful damage, negligent use of the goods by the customer, abnormal working conditions, misuse of the goods or from any other cause which is not due to the neglect or default of the Company.
e. The defect relates to any work external to the goods or arises by virtue from any act or omission by the customer relating to the operation of the goods or transportation or relocation of the goods not performed by or on behalf of the Company or subjecting the goods to any unusual physical or adverse environmental conditions.
f. The full price of the goods has not been paid to the Company within the time stipulated for payment as per paragraph 5.1 or;
g. The defect is specifically excluded by the Company in writing.
9.4 If the Company reasonably determines that any failure, defect or malfunction in the goods is as a result of any of the matters referred to at section 9.3 the customer shall be liable for all costs reasonably incurred by the Company in investigating the same and such sum shall be payable upon demand.
9.5 Refrigerant gasses and all electronic components are specifically excluded from this warranty. 9.6 Delivery discrepancies (shortages/damages etc) must be reported to the company and confirmed in writing within 3 working days of goods being delivered. 9.7 The warranty provided in respect of materials is on a Return to Base format. The customer must first purchase the relevant replacement part before returning the defective part to the Company. Upon receipt the Company will determine whether the defect is within the scope of the warranty criteria, such assessment to be performed within a reasonable period of time and, in any event, within 28 days of receipt of the goods at the expiry of which the Company will provide its decision to the customer and issue a credit note if applicable. If a new replacement part is required, the cost of return of the worn part and delivery of the new replacement part will be borne by the customer.
9.8 Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Customer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.
10. Force Majeure.
10.1 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:
10.2.1 Act of God, explosion, flood, tempest, fire or accident;
10.2.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
10.2.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
10.2.4 import or export regulations or embargoes;
10.2.5 strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
10.2.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
10.2.7 power failure or breakdown in machinery.
11.1 The Buyer shall arrange delivery of the Goods pursuant to clause 5. If the Buyer fails to do so within 2 calendar months of the order for the Goods being accepted by the Seller then the Seller shall pay the weekly storage fee of £400.00 plus value added tax per week (or part thereof) per machine, which sum shall be required to be paid by the Seller with the balance of the Price pursuant to clause 5 and the Seller shall not be obliged to deliver the Goods until such sum has been paid in cleared funds. 11.2 If the Buyer fails to take delivery of the Goods pursuant to clause 6 within 3 calendar months of the order for the Goods being accepted by the Seller then the Seller shall (without limiting any other right or remedy of the Seller) be entitled to:
11.2.1 Forfeit the deposit paid
11.2.2 Rescind the agreement with the Buyer in respect of the Goods
11.2.3 Charge to the Buyer costs of storage, insurance and transportation of the Goods
11.2.4 Re-sell the Goods at the price obtainable in the market and charge the Buyer for any shortfall below the Price