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1 General
a “The Company” shall mean Used b4 Food
Machinery Limited or its proprietor subsidiary or any
associated Company.
b “The goods” shall mean the equipment
plant or services which are the subject of this Contract.
c “The Customer” shall mean the person
firm or Company who contracts to purchase in full or
in part the goods from the Company.
d Any contract entered into by the Company for the
supply of goods is subject to these conditions. Any
writing on or attached to any purchase order form document
or correspondence shall not be included or implied
unless previously agreed upon in writing and signed
by an authorised officer of the Company.
e No order for supply arising from a quotation or otherwise
shall be deemed to be accepted or constitute a legally
enforceable contract with the Company until accepted
in writing by the Company or until delivery of the
goods which ever shall be the earlier.
f No responsibility is accepted by the Company for
any inaccuracy or error in orders given by telephone.
2 Descriptions and Specifications
The descriptions, specifications and illustrations
contained in catalogues price lists and other leaflets
or descriptive matter produced by the Company shall
not form part of the contract and no report representation
or statement made by any servant or agent of the
Company shall be binding on the Company. Names, addresses
and trademarks on illustrations indicate ownership
of the artwork and must not be taken as necessarily
indicating the manufacturers. Any description or
sample given of the goods is by way of identification
only and does not constitute a sale by description
or sample.
3 Time
Any date or period quoted by the Company for dispatch
is given in good faith by way of estimate only. While
the Company will endeavour to deliver within the
period stated, such date or period is not to be of
the essence of the contract and the Customer shall
be bound to accept the goods when they become available.
The Company shall not be liable for any loss or damage
or delays in transit or consequential losses or losses
including loss of profit resulting in any way in
respect of late delivery howsoever caused even in
such cases as the Company have expressly agreed in
writing a delivery date, nor shall such failure to
deliver on the date or within the period named be
the Company be deemed to be a breach of contract.
4 Price
a All prices and terms quoted by the Company or shown
in any of the Companys price lists catalogues etc
may be altered without notice.
b Prices of goods, both quoted and printed, are ex-
warehouse and exclusive of VAT, packing, freight, postage,
insurance, port rates, off loading and installation
and other costs unless expressly specified to the contrary.
c The Company reserves the right at any time prior
to delivery of the goods to adjust the price to take
account of any increase in the cost of raw materials,
labour or services or any currency fluctuations, increases
of taxes or duties or any other matters affecting the
cost to the Company in complying with the contract.
d The company reserves the right to impose a handling
charge of not less than 15% on returned goods save
in circumstances where the goods are returned by reason
of defects or shortages which it is the Companys duty
under the terms of this Agreement to rectify.
e The Company reserves the right to impose a minimum
order charge.
f Installation and commissioning will be quoted only
against the specific request of the Customer. In all
cases containers, bottles, packages and packing materials
are chargeable and not returnable.
g The Company reserves the right to amend any accidental
errors and omissions in quotations and invoices.
5 Payment
a Time for payment shall be of the essence
b The Customer shall have no right of set off, Statutory
or otherwise.
c The Company reserves the right at any time at its
discretion to demand security for payment before continuing
with or delivering any order.
d All accounts are payable in full on receipt of the
goods unless expressly agreed in writing by the Company.
i For all credit accounts approved by the Company in
writing for customers in the UK invoices are to be
paid in full by the last day of the month following
date of invoice.
ii For all customers outside the UK payment must be
made by confirmed irrevocable letter of credit, payable
at site, unless other terms have been agreed in writing
by the Company.
e Where the goods are delivered in instalments or in
the course of two or more separate deliveries any failure
to make such payments due on or before the due date
will entitle the Company at its option to treat the
contract of sale as voided by the Customer and in such
event the Company reserves all rights therein which
may have accrued to the Customer prior to such termination.
f In the event of non-payment, late payment or other
default by the Customer the Company shall be entitled
to recover all legal costs thereby incurred together
also with interest on the monies outstanding, calculated
at 1 1/2 % per calendar month or part month compounded
monthly.
6 Risk and the passing of property
a Risk in the goods shall pass to the Customer when
the goods are delivered to or collected by the Customer
or its agents
b Title in the goods remains vested in the Company
and shall only pass from the Company to the Customer
upon full payment being made by the customer of all
sums (due on whatsoever account or grounds) to the
Company.
c Notwithstanding the above, the customer shall, until
such time as title shall have passed to him, insure
the goods to their replacement value noting the Company’s
interest on the relevant insurance policy and the Customer
shall forthwith, upon request, provide the Company
with a certificate or other evidence of such insurance.
d The Customer agrees that whilst any such sums are
due as aforesaid the Company may at any time enter
upon the Customer’s premises and remove the Goods
therefrom and that prior to such payment the Customer
shall keep such Goods separate and identifiable for
this purpose.
7 Inspection
a The Customer is under a duty to inspect the goods
on delivery or on collection as the case may be.
b In circumstances where the Company undertakes delivery
of the goods, claims for damage in transit or shortage
in delivery of the goods will only be considered if
the carriers and the Company receive written notification
of such damage within three working days of delivery
or in the event of loss of goods in transit within
fourteen working days of the date of consignment. When
goods are accepted from carriers without being checked
the delivery book must be signed “Not Examined”.
If access is not available to the location stated in
the contract the Company or their carriers reserve
the right to deliver to the nearest convenient location
and to notify the Customer of their action.
c In all cases where defects or shortages are complained
of, the Company shall be under no liability in respect
thereof unless an opportunity to inspect the goods
is afforded to the Company before any use is made thereof
or any alteration or modification is made thereto by
the Customer.
d Subject to clauses 7b and 7c, the Company shall make
good any shortage in the goods and where appropriate
will replace any goods damaged in transit as soon as
it is reasonably able to do so, but otherwise shall
be under no liability whatsoever or howsoever arising
from such shortage or damage.
8 Warranty
a The Company warrants that it has title to and the
unencumbered right to sell the goods. Such warranty
specifically includes the Companys ownership of the
necessary patent rights and copyright sufficient to
enable the Customer to use the goods for any purpose
stated. However nothing in these terms or otherwise
shall be deemed to grant to the Customer the right to
manufacture or in any way reproduce the goods or reproduce
or use any intellectual property rights of the Company
or its agents.
b No representation or warranty is given as to the suitability
of the goods for any particular purpose and the Customer
shall satisfy himself in this respect and shall be totally
responsible therefor.
c Where the Company have produced or manufactured goods
to the Customers design the Company shall not accept
any liability for design errors.
d The Company shall remedy or at its sole discretion
replace free of cost all mechanical parts which are
to its reasonable satisfaction unusable or whose utility
is seriously reduced within 12 months of the passing
of risk (or if more than one shift of 8 hours per working
day worked, within four months) of a result of faulty
workmanship or material. Such Warranty is subject to
the provisions of clause 7 hereof. It shall be at the
sole discretion of the Company as to whether to undertake
such remedial operations at the premises of the Company
or at the Customer.
e Parts which are the subject of complaint by the Customer
must be sent to the Company when requested. No liability
is accepted for parts which are damaged or prematurely
worn out as a result of natural wear and tear or faulty
or negligent treatment, excessive loading or causes
arising from any other part of the installation. No
liability is accepted if parts other than those supplied
by the Company are fitted. Parts replaced or improved
are warranted to the same extent as the originals and
the period of the warranty is conterminous with the
warranty on the originals.
f In the case of any goods not manufactured by the Company
but supplied by them or incorporated within the Company’s
goods the Company is unable to provide any warranty
but will where possible assign to or pass on to the
Customer the benefit of any such warranty that the Company
shall itself have received from its own supplier.
g In the case of services carried out by the Company
it shall rectify any error or omission therein which
shall have been notified in writing to the Company within
the period specified and which shall have been proved
to have been due to the neglect or default of the Company
or its agents.
9 Insurance
Where goods are insured by the Company at its discretion
or the request of the Customer charges will be made
on the invoice. The Company’s liability under
the insurance shall be limited to the amount received
by them or the value of the goods, whichever is the
less, and the Company shall be under no liability to
take proceedings for the recovery of loss or damage.
10 Customers tests
If the Customer requires tests or inspections to be
made that are additional the Companys standard procedures,
the Customer shall be responsible for the costs incurred.
The results of such tests will be certified to the
Customer as required.
11 Storage
a In the event of the Company not receiving forwarding
instructions within seven days of notification to
the Customer that the goods are ready for dispatch
such goods will be stored by the Company at the Customers
risk and expense.
b The Company does not give warranty as to the fitness
of any packing for storage purposes or any other purpose
other than the transport of the goods to the named
contract destination.
12 Installation of equipment
a Where the Contract provides both for the supply and
installation of equipment the Company shall be responsible
only for the provision of those items and services
specified in the invoice (order acknowledgement).
All other ancillary equipment and services required
together with all reasonable labour costs shall be
the responsibility of the Customer.
b In the event that the Customer shall fail to provide
all necessary power sources and other facilities required
for the installation of the equipment the Customer
shall be solely responsible for any additional costs
or expenses incurred.
13 Liability
a Nothing herein shall be deemed to exclude or restrict
the Company’s liability for death or personal
injury resulting wholly from the negligence of the
Company.
b The Company shall not be liable for any consequential
or indirect loss suffered by the Customer whether this
loss arises from a breach of duty in contract or tort
or in any other way, including loss arising from the
Company’s negligence. Non-exhaustive illustrations
of consequential or indirect loss would be :
i loss of profits
ii loss of contracts
iii damage to property of the Customer or anybody else
iv personal injury to the Customer or anybody else
(except so far as such injury is wholly attributable
to the Company’s negligence)
c The Customer hereby agrees to indemnify the Company
against all claims made against the Company by any
of the Customers employees, Customers or any other
person for which liability would have been excluded
by this clause if the claim had been made against the
Company by the Customer.
d The Company shall not be liable in any way for any
damages direct or consequential as a result of use
of the goods for any purpose other than that agreed
nor for any use not stated and agreed in the Companys
specifications nor for any fault or defect arising
from the Customers failure to disclose relevant and
pertinent information to the Company. Where the purpose
of the goods is misrepresented or omitted the Company
shall be under no obligation in any manner and responsibility
and liability shall pass to the Customer.
14 On-site facilities
a Where work or services on the Customers site is to
be performed the Customer is to make all necessary
provision for the safety comfort and convenience
of Company personnel. This provision is to include:
i Toilet and washroom facilities
ii Protective clothing that may be necessary by virtue
of the Customers or his agents activities on site
iii Electrical power for hand tools
iv Telephone facilities
v A competent representative to liaise with the Company
personnel
vi Information on site conditions and special regulations.
b The Customer must take all due care that is required
by the Health and Safety at Work Act or any subsequent
legislation.
c Where the Customer or his agent has undertaken part
or all of the necessary installation work and such
work is not in the opinion of the Companys personnel
to the required standard the Company shall not be liable
to complete the contract and all expenses incurred
by the Company will be payable by the Customer.
d All additional costs and expenses incurred as a result
of the failure of the Customer to comply with the terms
of this clause shall be payable by the Customer.
15. Repairs
The Company are not responsible for damage to goods
sent to them for repair or examination nor for incidental
damage to glass, apparatus and delicate instruments
in the course of repair. Time involved in the preliminary
examination of an article may be charged in the event
of no repair being ordered. Goods returned for repair
should be sent, carriage paid and be clearly labelled
with the senders name and address. When or before
the goods are sent advice shall be sent by fax or
telex to the Company clearly indicating method of
dispatch, description of goods and value for customs.
At the same time a letter should be sent detailing
the work required.
16 Drawings and sketches
The Company reserves the right to charge for the preparation
of drawings or sketches prepared either for the submission
or any execution of orders. All such drawings remain
the property of the Company.
17 Force majeure
a The Company shall not be liable for any failure to
deliver the goods arising from circumstances outside
the Company’s control.
b Non-exhaustive illustrations of such circumstances
would be Acts of God, war, riot, explosion, abnormal
weather conditions, fire, flood, strikes, lockouts,
Government action or regulations, delay by suppliers,
accidents, shortage of materials, labour or manufacturing
facilities.
c Should the Company be prevented from delivering in
the above circumstances it shall give the Customer
written notice of this fact as soon as reasonably practicable
after discovering it.
d If the circumstances preventing delivery are still
continuing six months after the Customer receives the
Company’s notice then either party may give written
notice to the other cancelling the contract.
e If the contract is cancelled in this way, the Company
will refund any payment which the Customer has already
made on account of the price (subject to deduction
of any amount the Company is entitled to claim from
the Customer) but the Company will not be liable to
compensate the Customer for any further loss or damage
caused by the failure to deliver.
18 Employment
The Company has an Equal Opportunities policy but nevertheless
reserves the right to employ persons of their choice
on all contracts including on-site work. Subject
to this, the Company will use its best endeavours
to co-operate with site agreements provided this
does not conflict with their normal course of work.
19 Cancellation
a If the Customer shall fail to pay the contract price
to the Company on the due date or, if an actual person,
die or be the subject of an order under the Mental
Health Act 1959, or if any distress or execution
is levied upon the Customers property or assets or
if the Customer shall offer to make any scheme or
arrangement with creditors or commit any act of bankruptcy
or, being a Company, has a receiver appointed for
any part of its undertaking or assets or if a resolution
for winding up shall be passed, then the Company
may treat all sums due or to become due on any delivery
as immediately payable or suspend or cancel further
deliveries or require payment in advance therefor
or recover any goods which are unsold wheresoever
they are stored or treat the contract as repudiated
by the Customer but without prejudice to any other
rights of the Company.
b Cancellation of the order by the Customer for whatever
reason shall entitle the Company to payment of all
costs expenses and losses of the Company arising therefrom.
Such notification of cancellation by the Purchaser
shall not be deemed to have been accepted by the Company
in the absence of specific agreement by the Company
in writing to that effect. In all cases the Company
reserves to itself any rights that it may have in law.
20 Notices
Any notice to be given hereunder shall be in writing
and shall be deemed to have been duly given if sent
or delivered to the Customer at its address specified
in the order or such other address as that it may
from time to time notify in writing and shall be
deemed to have been served, if sent by first class
post, forty-eight hours after posting.
21 Assignment
Neither the Company nor the Customer shall assign or
transfer or purport to assign or transfer the contract
or the benefits thereof to any other person without
the prior consent of each other.
22 Proper law and jurisdiction
The contract shall be governed by and construed in
accordance with English Law and all disputes arising
in connection with the contract shall be submitted
to the jurisdiction of the English Courts.
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