“The Seller” means PETmachinery Limited or their principal where PETmachinery are acting as an Agent and it is stated that the Contract is subject to these terms and conditions.
“The Goods” means the articles, items or things or any of them to be supplied by the Seller.
“The Services” means the installation and fitting of the goods and all or any other services to be provided by the Seller under the contract.
“The Buyer” means the person, firm or company to be supplied with the goods and to whom the services are to be provided by the Seller.
“Conditions” means the Terms & Conditions set out herein and (unless the context otherwise requires) includes any special Terms and Conditions agreed in writing between the Buyer and the Seller.
“The Contract” means the contract constituted by any order placed on and accepted by the Seller for the supply of the goods and the services made between the Seller and the Buyer to which these terms and conditions apply.
2. Terms and Conditions
All orders accepted by the Seller will be subject to these terms and conditions including any special conditions agreed in writing which shall prevail over any inconsistent terms and conditions contained or referred to in the Buyer’s order or any correspondence or elsewhere unless specifically agreed to in writing by a duly authorised representative of the Seller and any terms and conditions or stipulations to the contrary are hereby excluded or extinguished.
The Seller’s acceptance shall be in writing or by delivery of the Goods and dispatch note or the provision of the Services.
Unless Buyer objects to Seller’s terms contained herein within 30 days of receipt then it is assumed there is no contention and the Seller’s terms will prevail.
A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or amend the same at any time prior to the Seller’s acceptance in writing of the Buyer’s order.
Quotations to supply from stock are subject to the Goods remaining unsold prior to receipt of order.
Every care has been taken to ensure the accuracy of descriptions, illustrations and material contained in any catalogue, price list, brochure, leaflet or other descriptive matter, but they are given as a guide only and do not form part of any order or contract or amount to any representation, guarantee or warranty. The Seller reserves the right to modify the design and specification of goods without notice.
The prices quoted and or confirmed are unless stated otherwise ex-works Huncoat and exclusive of VAT and any other tax or duty and are based on acceptance of these terms and conditions and on the prices and rates of materials, labour, transport, currency exchange rates and other costs ruling at the date of quotation and or confirmation and the Seller shall have the right (subject only to any quoted validity period) at any time to revise such prices. Should no price have been quoted the price shall be the Seller’s selling price ruling at the date of dispatch and the Buyer will be invoiced accordingly.
5. Terms of Payment
Unless agreed otherwise, or stated in the acknowledgement or confirmation of order, the invoice amount for goods supplied or services provided shall become due latest 30 days from date of invoice. The times for payment shall be of the essence of the Contract.
Without prejudice to the right of the Seller to payment in accordance with these terms of payment interest shall be payable on overdue invoices at the rate of 2% per month or part of a month to run from the due date for payment until receipt by the Seller of the full invoice amount whether or not after judgement.
In the event of failure by the Buyer to pay for the Goods or for any delivery or instalment or for the services provided the Seller shall be entitled without prejudice to any other right the Seller may have to suspend further deliveries on the same order and on any other order from the Buyer until payment has been made in full.
Payment of instalments thereof shall unless agreed in writing be made in full without any deduction or set-off except in respect of any payment already made by or credit issued to the Buyer relating to the Contract. Save as aforesaid no claim by the Buyer shall entitle the Buyer to withhold or delay payment of sums due to the Seller.
Any cheque stated to be in full and final settlement of an amount owed under the Contract can be accepted by the Seller as a part payment only on account of the full amount owed.
6. Approved Customers
Credit terms as above will be granted subject to satisfactory references from the Buyer’s bankers and two trade references. If such credit is required the Buyer will supply the Seller with the necessary authority to approach the Buyer’s Bankers for a reference and will be responsible for the Bankers changes in respect thereof.
Any dates for delivery mentioned in any oral or written quotation acceptance, acknowledgement or confirmation of order specification or elsewhere are given and intended as an estimate only and time is not of the essence and the Seller shall not be liable for any loss, damage or expense howsoever arising from any delay in delivery.
Delivery of the Goods shall be made to the Buyer at the place nominated by the Buyer.
The Seller reserves the right to make partial deliveries in the event that not all the Goods are immediately available and to invoice separately for any such partial deliveries and it is agreed that in the event of the breach by the Seller in relation to any partial delivery that breach shall be treated as subject to the terms of this contract and as having effect in relating to that partial delivery only.
In the event of the Buyer returning or failing to accept any delivery of the Goods in accordance with the Contract, the Seller shall be entitled at its option either to deliver and invoice the Buyer for the balance of the goods then remaining undelivered, or to suspend or cancel further deliveries under the contract. The Seller shall be entitled to store at the risk of the Buyer any Goods which the Buyer refuses or fails to accept and the Buyer shall in addition to the invoiced price pay all costs of such storage and any additional costs carriage and loss incurred as a result of such refusal or failure.
8. Risk and Title
When the contract is delivered Buyers works risk in the equipment shall pass to the Buyer upon delivery to the premises nominated by the Buyer. In all other cases, and unless otherwise stated, risk in the equipment shall pass to the Buyer when the Seller makes the equipment available to the Buyer on an EXW basis (according INCOTERMS 2000).
Title to the equipment shall not pass to the Buyer until payment of all sums due under the Contract has been made. Until such payment the Buyer has possession of the equipment as bailee for the Seller only and shall not be without the Seller’s consent in writing use, dispose of, charge or otherwise deal in the equipment in any way inconsistent with that relationship.
If the Buyer is a company it must give fourteen days notice to the Seller before applying to the court for the appointment of an Administrator. The Buyer will not be entitled to remain in possession of the Seller’s equipment from the date of notice and the appointment of an Administrator without giving notice shall be deemed to be a fundamental breach of contract.
The Seller shall not be liable to the Buyer
A. For shortages in quantity delivered or damage to or loss of the equipment or any part thereof in transit. It is the duty of the Buyer to ensure that all equipment purchased is adequately insured from point of sale on EXW basis in order to protect their inherent risk in the equipment.
B. For defects in the equipment caused by the act, neglect or default of the Buyer or any third party.
C. For the quality, fitness or suitability of the equipment for any particular purpose or use under specific conditions unless specifically agreed and confirmed in writing.
E. For items which do not form part of the contract and technical information recommendations, statements or advice furnished by the Seller, its employees or agents or given in writing to the Buyer before an order is placed unless specifically agreed and confirmed in writing after the placing of the order.
Subject to paragraph (A) of this condition, if the equipment or any of them are lost or damaged in transit the Seller may at its option make good any shortage or non-delivery and/or as appropriate replace, repair or procure the repair of free of charge any equipment found to be damaged and in such event the time for delivery shall be extended for such period as the Seller shall reasonably require for such replacement or repair. Save as provided in this condition the Seller shall have no liability whatsoever to the Buyer for or in connection with any loss or damage to equipment in transit, howsoever arising.
Subject to paragraph (A) and (B) of this condition the Seller’s total liability to the Buyer (including liability in respect of its employees or agents or otherwise) shall be limited to the contract price of the equipment sold and services provided by the Seller and except for death or personal injury caused solely by the Seller’s negligence and except also for warranty of title and quiet possession subject to the Seller’s right to repossess as provided in this section hereof) the Seller’s liability shall not extend to any other expenditure whatsoever and the Seller shall not be liable for consequential loss or damage (including but not limited to loss of profit), howsoever arising.
The Seller’s prices are based on the limits of liability set out in these conditions. The Seller will if requested accept a higher limit of liability subject to the availability of insurance cover and/or increased sales price. The costs of such insurance cover shall be for the Buyer’s account.
The Seller agrees to provide a warranty relating to parts that have been replaced by the Seller during the course of refurbishment or rebuild of equipment by the Seller. Warranty relates to failure due to poor workmanship or faulty parts or assembly faults if assembly is carried out by the Seller, but expressly excludes warranty to machine parts modified from original manufacturer’s design, unless otherwise separately stated. If such a warranty claim made by the Buyer is accepted by the Seller, the Seller will at their utmost discretion alter, repair or replace defective parts at no cost to the Buyer, provided always that no liability is accepted by the Seller as aforementioned in Section 9 (liability) and in respect of
Equipment and services that have been altered, repaired or replaced by parties other than the Seller or without the Sellers approval
Any fault or defect that arises from any use of the equipment that is not recommended by the Seller or by negligent use of the equipment by the Buyer, or failure to supervise or maintain the equipment, or through normal wear and tear of the equipment.
Any equipment which has been supplied by the Seller as not refurbished
11. Variation and Cancellation of Orders
Orders and requests for the Goods and/or Services may not be varied, cancelled or suspended without the Seller’s prior written consent. Cancellation or suspension of an order will be accepted only on the express condition that the Seller shall be indemnified against all loss whatsoever incurred wholly or in part as a result of the cancellation or suspension.
12. Force Majeure
The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the Seller being prevented, hindered or delayed in the performance of its obligations under Contract by reason of any act of God, war (whether declared or not), riot, strike, lock-out, trade dispute or labour disturbance, accident, breakdown or plant or machinery, fire, flood, drought, exercise of governmental authority or legislation, difficulty in obtaining workmen, materials or transport or other circumstances whatsoever outside the reasonable control of the Seller.
If any sum owing by the Buyer to the Seller is overdue under this or any other Contract or if the Buyer commits any breach of the terms and conditions of the Contract or becomes insolvent or commits and act of bankruptcy or enters into any arrangement or composition with its creditors or goes or is put into liquidation or if a receiver or administrator is appointed over any part of the Buyer’s business the Seller may without prejudice to any rights which may have accrued or which may accrue to it terminate the Contract order summarily by notice in writing without compensation to the Buyer.
Failure on the part of either party to the Contract to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
In the event that any of the Terms Conditions or Provisions hereof or of the Contract shall be determined invalid unlawful or unenforceable to any extent such Term Condition or Provision shall be severed from the remaining Terms Conditions and Provisions which shall continue to be valid to the fullest extent permitted by law.
Any notice or other document to be given herein shall be deemed to have been duly given if sent by registered airmail, prepaid first class registered or recorded delivery post of facsimile transmission delivered to the party concerned at its principal place of business or last known address. Notices sent by registered airmail and prepaid first class registered or recorded delivery post shall be deemed to have been given five days after dispatch and notices sent by facsimile transmission shall be deemed to have been given on the day of dispatch.
The headings of the terms and conditions contained herein or in the Contract are for convenience of reference only and shall not affect their meaning or interpretation.
18. Governing Law
The contract shall be governed by and construed and interpreted in accordance with Laws of England. For the purposes of settlement of any disputes arising out of or in connection with the Contract, the parties hereby submit to the jurisdiction of the English – or at the agreement of both parties – the Arbitration court of the International Chamber of Commerce of Paris.