Terms and Conditions of Sale
1.1 In these conditions:
‘BUYER’ means the person who accepts a quotation of the Seller for the sale of the goods or whose order for the goods is accepted by the Seller
‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller
‘CONTRACT’ means the contract made between the Seller and the Buyer for the purchase and sale of the Goods on the basis of the Conditions
‘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 Conditions
‘INSTRUCTIONS’ means the operating manual and other literature provided by the Seller to the Buyer relating to the Goods
‘SELLER’ means Technijet Ltd, Old Station Yard, Kirkby Lonsdale Via Carnforth Lancs LA6 2HP Tel 015242 73000 Fax 015242 72161
‘WARRANTY’ means the warranty contained in condition 8.1 hereof
‘WRITING’ includes telex, cables, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
The headings in these Conditions are for convenience only and shall not affect their interpretation.
Acceptance of delivery of the goods shall be deemed to be conclusive evidence of the buyers acceptance of these conditions.
2 Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with these Conditions (as varied by any written quotation of the Seller), which shall govern the Contract to the exclusion of any other terms and conditions subject to which any quotation of the Seller is accepted or purported to be accepted by the Buyer, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in writing between authorised representatives of the Buyer and the Seller (in the case of the Seller the authorised representative must be a Director of the Seller).
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 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 upon entirely at the Buyers own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 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.
2.6 Photographs and other illustrations, drawings, catalogues, advertising matter and other documents supplied by the Seller represent generally the Goods ordered but are not binding in detail. All measurements, powers, dimensions and information in respect of performance etc. given in quotations and estimates or correspondence between the Seller and the Buyer are stated as accurately as possible but deviations will not vitiate the Contract or form grounds for any claim against the Seller.
3 Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed and accepted by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 Whilst every effort is made to supply goods in accordance with the quality of samples submitted or quoted for, this cannot be guaranteed and no condition or warranty to this effect shall be implied.
3.4 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 labour and materials), 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 shall be the price listed as quoted by the Seller at the date of Contract but subject to revision at the discretion of the Seller, prior to delivery.
4.2 The cost of delivery will not be included in the price unless otherwise agreed between the Seller and the Buyer.
4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
The Seller reserves the right (for instance where an order is substantial, as exclusively determined by the Seller) and totally at the Seller’s discretion to require an interest-free deposit of up to 50% (fifty per cent) of the Contract price at the time a Contract is made pursuant to these Conditions.
Where the Goods are sold for export from the United Kingdom the Buyer shall be responsible for the payment of any duties or taxes (arising from the export of the Goods from the United Kingdom into the country of destination) and shall indemnify and hold harmless the Seller from and against any liability to pay such duties or taxes and specifically shall be liable to pay the Seller such duties and taxes if so required by the Seller pursuant to and under these conditions.
5 Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after the delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 Unless otherwise agreed by the Seller and the Buyer in Writing the Buyer shall pay the price of the Goods within 30 days from the date of the Seller’s invoice (payment funds to be with the Seller at its Kirkby Lonsdale office within this period), notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller:- the Seller shall be entitled to cancel the Contract or suspend any further deliveries to the Buyer or suspend performance of any of the Seller’s part of the Contract (without
prejudice to the Seller’s right to recover damages for any loss sustained by it); and/or the Seller shall be entitled to charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 2 1/2% (two and one half per cent) per month, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) (the Seller reserves the right to alter this rate of interest at any time); and/or
5.3.3 the Seller shall be entitled to charge the Buyer storage fees in relation to the Goods at its rates current from time to time; and/or
5.3.4 the whole of the balance of the price then outstanding shall become due and payable forthwith; and/or
5.3.5 the Seller may repossess any Goods in respect of which payment is overdue and thereafter resell the same pursuant to Condition 7; and/or
5.3.6 the Seller may without prejudice to any of its other rights stop any Goods in transit.
6.1 The Seller will (where reasonably practicable) deliver the Goods but reserves the right to use third party carriers.
6.2 The Seller will (where reasonably practicable) follow the Buyer’s request as to the choice of any third party carrier.
6.3 The Buyer must:-
6.3.1 notify the Seller in Writing (and any third party carrier) if any breakage or shortfall of and in (respectively) the Goods has occurred during the delivery process (such
6.3.2 notify the Seller in Writing if the Goods have not been received within seven days from receipt of the Seller’s delivery note;
6.3.3 comply with all terms and conditions of any third party carrier notified to the Buyer by the Seller.
6.4 Subject to the Buyer complying with the provisions of this Condition 6 the Seller will repair or replace (at the Seller’s sole discretion) Goods damaged in transit.
6.5 ANY DATES QUOTED FOR DELIVERY of the Goods are APPROXIMATE ONLY and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.6 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.7 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may,
6.7.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7 Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection: or
7.1.2 in the case of Goods to be delivered otherwise that at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, THE PROPERTY in the Goods SHALL NOT PASS to the Buyer UNTIL the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall KEEP the Goods SEPARATE from those of the Buyer and third parties and properly stored, protected and insured and IDENTIFIED as the Seller’s property. Until that time the Buyer shall be entitled to re-sell or use the Goods in the ordinary course of its business, but shall be under a fiduciary duty to account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all proceeds separate from any monies or property of the Buyer and third parties.
Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. The Buyer hereby grants an irrevocable right and licence to the Seller and its servants and its agents to enter upon all or any of its premises with or without vehicles during normal business hours; this right shall continue to subsist notwithstanding the termination of the Contract for any reason and is without prejudice to any other right of the Seller.
The Buyer shall not be entitled to pledge or in any way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8 Warranty and Liability
8.1 Subject to the conditions set out below the Seller warrants that the Goods will be free from faulty or defective components and materials from a period of one year from the date of their purchase.
8.2 The Warranty is given by the Seller subject to the following conditions:
8.2.1 ALL HOSES ARE ONLY COVERED within the Warranty FOR SEVEN DAYS after the date of purchase of the Goods by a Consumer/End-User;
8.2.2 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer:
the Seller shall be under no liability in respect of any defect or damage arising from frost, chemicals (other than chemicals recommended by the Seller), fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval (misuse includes repairs, servicing or alterations to the Goods which are effected (at any time) by persons who are not either employees or representatives of the Seller or registered and approved engineers of the Seller (if in doubt as to the status of any engineer the Buyer must check with the Seller) and also includes the fitting of parts not manufactured by the Seller or one of its authorised suppliers (if in doubt as to the status of any supplier the Buyer must check with the Seller));
8.2.4 the Seller shall be under no liability under the Warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.5 the Warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller;
8.3 Any claim whether relating to the Warranty or otherwise by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) to be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller has no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.4 In the event of the Buyer making unjustified complaints then the Seller reserves the right (at its absolute discretion) to invoice the Buyer in respect of investigation costs.
8.5 The Seller shall not be liable to the Buyer or to be deemed in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the forgoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.5.1 Act of God, explosion, flood, tempest, fire or accident;
8.5.2 war or threat of war, sabotage, insurrection or civil disturbance;
8.5.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.5.4 import or export regulations or embargoes;
8.5.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.5.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.5.7 power failure or breakdown in machinery.
Save in the case of personal injury or death caused by the negligence of the Seller IN NO CIRCUMSTANCES will the Seller’s liability to the Buyer exceed THE INVOICE VALUE OF THE GOODS.
8.7 The Buyer will indemnify the Seller in respect of any loss or expense which the Seller may incur in any actual or threatened claim or action whether civil or criminal howsoever arising in connection with the Buyer’s failure to comply with the Buyer’s obligations under the Contract with the Seller or generally under statute or other legislation or code of practice etc. whether or not incorporated into this Contract or any other contract between the Seller and the Buyer including, but without limitation the Consumer Protection Act 1987 (as amended or modified from time to time) and any codes made under or by reference to it.
9.1 If any claim is made by the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trademark or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with a claim or paid or agreed to be paid by the Buyer in settlement of the claim provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
The Buyer shall do nothing which would or might vitiate any policy of insurance cover which the Buyer may have in relation to such infringement and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do); the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this Condition.
10 Insolvency of Buyer
10.1 This Condition applies if:
10.1.1 the Buyer enters into a Deed of Arrangement;
10.1.2 the Buyer fails to comply with any statutory demand served under the Insolvency Act 1986;
10.1.3 the Buyer making a voluntary arrangement between the Buyer and the Buyer’s creditors under the Insolvency Act 1986;
10.1.4 the obtaining of any judgement against the Buyer or the levying of distress or execution on any premises owned or occupied by the Buyer;
10.1.5 the appointment of a Receiver (whether by the Court or out of Court) of the Buyer’s property;
10.1.6 the presentation of a petition for the winding-up of the Buyer or for the appointment of an Administrator or Administrative Receiver;
10.1.7 the commission by the Buyer of any breach of any Contract with the Seller for the supply of goods or services and/or installation of any goods.
10.2 If this Condition applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any further liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11 Buyer’s Obligations
11.1 The Goods are sold for use in accordance with the Instructions provided by the Seller and in the case of any doubt as to the method or manner of use the Buyer must consult the Seller. It is the Buyer’s duty to ensure that the employees, agents and other persons who will operate the Goods are fully instructed as to their manner and method of use in accordance with the Instructions.
11.2 Without prejudice to the provisions contained in Condition 8 the Buyer’s non-compliance with the provisions of condition 8.2.3 in any was is absolutely at the risk of the Buyer and no liability whatsoever will be accepted by the Seller for ANY LOSS arising from such non-compliance.
12 Export Terms
12.1 In these Conditions “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. If there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
12.2 Where the Goods supplied for export from the United Kingdom the provisions of this Condition 12 shall apply.
12.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination.
13.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or address set out upon the quotation form.
13.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
13.4 The Seller retains all intellectual property rights of ownership and copyright in price lists, drawings and other documents which are made available to the Buyer and such documents may not be made available to third parties without the prior written consent of the Seller.
13.5 The Contract shall be governed by the laws of England and the Seller and the Buyer hereby submit to the exclusive jurisdiction of the English Courts or such other jurisdiction as the Seller may determine from time to time.