|TERMS AND CONDITIONS OF SALE
1.1 The “Company” means DSL FOOD MACHINERY LIMITED (CRN: 03562407); “Customer” means the other party to this contract; “Contract” means any contract between the Company and the Customer incorporating these conditions for the sale of Goods; the “Goods” means any products and/or goods ordered from the Company by the Customer and to be supplied by the Company to the Customer; “Liability”means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities.
2. Basis of Contact
2.1 All sales of Goods by the Company are made subject to the following terms and conditions and no modifications or variations of them shall have any force or effect unless confirmed in writing by a Director of the Company. Any conditions printed on the Customers’ order forms are not binding in any way. The Customer acknowledges that it does not rely on any representation and/or warranty which has not been made in accordance with these conditions. Catalogues, brochures and other advertising material of the Company are intended merely to present a general idea of the goods described and none of these shall form part of the Contract
2.2 The Contract between the Company and the Customer shall come into effect on the Company’s acceptance of the Customer’s order. The Company shall have the right to refuse to accept any orders placed for Goods. No order for Goods shall be deemed accepted by the Company until confirmed in writing by an authorised representative of the Company. If the Customer purports to cancel this Contract for any reason it shall have no further recourse against the Company under this Contract.
3. Prices and Payment
3.1 Unless otherwise agreed in writing with a Director of the Company, prices quoted are exclusive of V.A.T. and all other taxes and duties at the then prevailing rate for which the Customer shall be additionally liable.
3.2 The Company may increase its prices in relation to the Goods which the Company has agreed to supply where the increase is to take account of any increase in taxation or other government action or the cost of labour, services or materials which may occur before delivery and which is suffered by the Company. The Customer will be informed in writing by the Company of any increases in prices for the Products and/or the Services as soon as reasonably possible before such increase takes effect. The Customer may cancel without Liability any Contract in relation to which the price is to be increased provided that the notice of cancellation is received by the Company in writing before the price increase becomes effective. If the Customer does not cancel the Contract for the provision of the Goods within the specified time period then the price increase shall take effect for the Goods ordered by the Customer.
3.3 Except as otherwise stated, prices are ex-works, and the Customer shall be liable to pay the Company’s charges (if any) for transport, packaging and insurance. The Company reserves the right to choose the method of transport to effect delivery.
3.4 Unless otherwise agreed in writing payment for any order from a Customer resident in the United Kingdom shall be made in full with order.
3.5 The time for payment is of the essence of the Contract and, should the Customer fail to pay punctually and in full any order, then without prejudice to any other remedy available to the Company, the Customer shall be liable to pay interest on the full amount outstanding (from the date of invoice until actual payment both before and after judgement) at the rate of 2% per month above the base rate from time to time in force of the Company’s Bank. Such interest to be compounded with monthly rests. In addition to payment of interest the Customer will indemnify and keep indemnified the Company against any reasonable increased administration costs and/or expenses incurred by it in collecting payment from the Customer.
3.6 If payment in full is not made to the Company when due then the Company may withhold or suspend future or current deliveries of the Goods and delivery and/or performance under any other agreement with the Customer until such time as the outstanding amounts are paid in full together with such amounts as the Company in its discretion may request on account of Goods awaiting delivery.
3.7 Payment shall not be deemed to be made until the Company has received either cash or cleared funds in respect of the full amount outstanding. The Customer shall pay all sums due to the Company under this Contract without any set-off, deduction, counterclaim and/or any other withholding of monies.
3.8 The Company shall be entitled to invoice each delivery of Goods separately. Any monies received by the Company from the Customer may be applied by the Company at its option against any additional administrative costs and/or interest charged prior to application against any principal sums due from the Customer against which it may be applied in any order.
4.1 Whilst every endeavour is made to adhere to times quoted for delivery, all delivery dates are estimates only and time is not of the essence in relation to such dates. Delivery dates are also subject to availability of materials and to revision in cases of acts of God, war, flood, fire, labour disputes, subcontractor delays, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions, breakdowns, accidents, hostilities or delays to or stoppages of work from any other cause and any other similar events outside the Company’s reasonable control and save to the extent (if any) required by law the Company will not accept any liability for any loss or damage occasioned by delay so caused.
4.2 If the Customer fails to give a delivery destination and/or instructions on or before the expiry of 14 days after receipt of a notice that the Goods ordered by it are ready for despatch then the Company shall be entitled (but not bound) to store the goods at any available place at the Customers’ expense and risk until dispatch or collection.
4.3 The Customer shall be responsible at its own cost for all arrangements to unload the Goods when delivered to the Customer. Delivery will be made between 9.00am and 5.30pm on working days. The Customer shall procure during normal working hours that the Company has free right of access to the address for delivery for the purpose of delivering the Goods.
4.4 If the Customer refuses to take delivery of any Goods then the Company shall be entitled to withhold delivery and/or performance of any other Goods and to treat this Contract as repudiated by the Customer and shall have the right to rescind this Contract.
4.5 If the parties agree that the Goods are to be collected from the Company’s premises then the Customer shall collect the Goods within 3 working days of being notified that the Goods are ready for collection. If the Goods are not collected by the Customer within the specified period the Company may dispatch the Goods to the Customer at the Customer’s expense and risk and/or store the Goods at the Customer’s expense and risk until dispatch and/or collection.
4.6 The Customer cannot and has no right to reject or return Goods. Any Goods which the Customer purports to return, must be returned within 5 working days from the date of delivery of those Goods to the Customer and in accordance with the terms and conditions of the Company’s Returns Policy (copy available on request). Where the Company maintains a stock of Goods, those Goods may be returned (subject to the terms and conditions of the Returns Policy) subject to the charge by the Company to the Customer of an administration charge of 20% of the purchase price of the Goods being returned.
5.1 In line with the Company’s policy of continuous improvement to its Goods and service it reserves the right to alter the specification of Goods whether before or after order without prior notice as is required from time to time by law, applicable safety requirements or manufacturing requirements provided that they do not have a material adverse effect on the quality and/or performance of the Goods. The Company will user their reasonable commercial endeavors not alter the specification of Goods where specific specifications are expressly agreed between the Customer and the Company at the time of acknowledgement of order by the Company to be of sufficient importance to be considered of the essence of the Contract.
5.2 The Company is not liable for errors in any specification or details supplied by the Customer and the Customer is solely responsible for their accuracy.
6.1 The Company does not itself provide any guarantee, warranty or assurance in relation to the Goods. The company will however, wherever possible, acquire for the Customer the benefit of any warranty, assurance or guarantee provided by the manufacturer of the relevant Goods subject to and in accordance with the terms of such warranty or guarantee.
6.2 The benefit of the manufacturers guarantee referred to in clause 6.1 above is subject to and conditional upon the following minimal conditions: 6.2.1 the guarantee shall not cover defects or faults in components not manufactured by the Company, for which the Company will endeavour to enforce the guarantee, if any, given by the manufacturers; or 6.2.2 the guarantee does not apply to damage sustained in transit as the Customer is expected to insure against this or claim against the independent carrier; and/or 6.2.3 the guarantee shall cease to have effect if the goods have been improperly installed or used for a purpose or purposes other than those for which they are intended, or not used or maintained in accordance with the Company’s instructions or otherwise improperly used or if the Goods have been altered or modified other than by the Company. Additional conditions and terms may be applicable as notified to the Customer by the manufacturer of the relevant Goods at the time of any application.
6.3 where any parts of Goods are found to be defective, those parts must be returned in accordance with the Company’s Returns Policy (copy available on request) and within the applicable manufacturers warranty period and so far as is possible all parts must be undamaged and in their original condition.
7.1 The Company shall have no Liability for any defect in the Goods caused or contributed to as a result of the Goods being used for display or demonstration purposes or being handled by customers of the Customer.
7.2 The Company shall have no Liability for defective Goods where the defect has been caused or contributed to by the Customer to the extent so contributed.
7.3 The Company shall have no Liability to the Customer if the price for the Goods has not been paid in full by the due date for payment.
7.4 The Company shall have no Liability to the Customer for defective Goods, Goods not despatched or Goods damaged or lost in transit unless the event is notified to the Company within the appropriate time limit set out in this Contract.
7.5 The Company shall have no Liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued use of defective Goods after a defect has become apparent or suspected or should reasonably have become apparent to the Customer.
7.6 The Customer shall where reasonable give the Company a reasonable opportunity to remedy any matter for which the Company is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so the Company shall have no Liability to the Customer.
7.7 The Customer shall where reasonable produce to the Company written evidence of any claims for which it is alleged that the Company is liable together with written details of how the loss was caused by the Company and the steps the Customer has taken to mitigate the loss before the Company shall have any Liability for the claim by the Customer.
7.8 The Company shall have no Liability to the Customer to the extent that the Customer is covered by any policy of insurance and the Customer shall ensure that the Customer’s insurers waive any and all rights of subrogation they may have against the Company.
7.9 The Company shall have no Liability for any matters which are outside its reasonable control.
7.10 The Company shall have no Liability to the Customer for any:- 7.10.1 consequential losses; 7.10.2 loss of profits and/or damage to goodwill; 7.10.3 economic and/or other similar losses; 7.10.4 special damages and indirect losses; and/or 7.10.5 business interruption, loss of business, contracts, opportunity and/or production.
7.11 The Customer shall be under a duty to mitigate any loss, damage, costs or expenses that it may suffer (including by maintaining an adequate stock of Goods or parts of Goods).
7.12 The Company’s total Liability to the Customer shall not exceed £140,000.
7.13. Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of Liability: 7.13.1 for breach of contract; 7.13.2 in tort (including negligence); 7.13.3 for breach of statutory duty; and 7.13.4 for breach of Common Law. except clause 7.12 above which shall apply once only in respect of all the said types of Liability.
7.14 Nothing in this Contract shall exclude or limit the Liability of the Company for death or personal injury due to its negligence or any Liability which is due to the Company’s fraud or any other liability which it is not permitted to exclude or limit as a matter of law. All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
8. Risk and Title
8.1 The risk in the Goods shall pass to the Customer at the time of delivery. Delivery shall be deemed to have occurred either: 14 days after the giving of notice by the Company to the Customer that the Goods are ready for despatch; or if earlier upon despatch of the Goods from the Company’s works; or after the expiration of 3 working days after the Customer has been notified of it, if the Good are available for collection from the Company in accordance with clause 4.5. In the case of sales for delivery overseas, the Company shall be under no obligation to give the Customer the notice required by Section 32(3) of the Sale of Goods Act, 1979.
8.2 Until such time as full payment has been received by the Company for the Goods under this Contract and for any other goods or services under any other agreement between the Company and the Customer, the Goods shall remain the property of the Company and the Customer shall store the Goods separately from any products or goods belonging to the Customer or any third party and they must be clearly marked and identified as being the Company’s property. The Customer agrees that the Company’s employees and/or agents shall be entitled to enter the Customer’s premises to check compliance with this clause.
8.3 Until ownership in the Goods has passed to the Customer the Customer shall keep the Goods insured for the price at which the Goods were sold to the Customer against all normal risks and shall procure that the Company’s interest is noted on such policy of insurance. The Customer shall hold any proceeds of such policy of insurance in relation to the Goods on trust for the Company upon receipt of the same. Any monies received from the Customer by the Company in accordance with this clause shall not discharge the Customers liability to pay the price for the Goods plus interest accrued in accordance with clause 3.5 but shall be set off against any such liability.
8.4 After failure by the Customer to pay for the goods in full as required by clause 5 above the Customer must if so requested by the Company place the goods at the disposal of the Company and the Customer hereby grants an irrevocable license in favour of the Company for the Company, without prior notice, to enter upon any premises (or the premises of any third party with their consent) where Goods owned by the Company may be and repossess and dispose of or sell any Goods found which are owned by the Company so as to discharge any sums due to the Company under this Contract or any other agreement with the Customer
9. Insolvency or Default
9.1 If the Customer shall fail to make payment when due under any other current Contract with the Company, or if it shall become apparent that the Customer is unable to fulfil its obligations hereunder, the Company may without notice suspend or determine the Contract or the unfulfilled part thereof and stop any goods in transit without prejudice to any other right or remedy which the Company may lawfully enforce or exercise
10.1 No failure to exercise and no delay in exercising on the part of the Company any right under this Contract shall operate as a waiver of that right, nor shall any single or partial exercise of it. The written rights and remedies provided are cumulative and not exclusive to any rights or remedies provided by law.
10.2 If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
10.3 The Customer shall not assign its interest in the Contract (or any part) without the written consent of the Company. All third party rights are excluded and no third party shall have any right to enforce this Contract. Any rights of a third party to enforce this Contract may be varied and/or extinguished by agreement between the parties to this Contract without the consent of any such third party.
10.4 The Company shall have no Liability to the Customer for any delay in performance of this Contract (other than in relation to payment) to the extent that such delay is due to any events outside the Company’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, subcontractor delays, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events. If the Company is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
10.5 The Contract shall be governed and construed by the Laws of England and the Customer hereby is irrevocably submits to the non-exclusive jurisdiction of the English courts.