Sime Catering Equipment Limited Terms and Conditions regarding the sale of goods. 1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Company: Sime Catering Equipment Ltd (Company No 7059028).
Contract: any contract between the Company and the Customer for the sale and purchase of Goods, or the repair and maintenance of goods incorporating these conditions.
Delivery Point: the place where delivery of the Goods or Service is to take place under condition 4.
Customer: the person, firm or company who purchases Goods from the Company.
Force Majeure Event: has the meaning given in clause 12.
Goods: any goods agreed in the Contract to be supplied to the customer by the Company (including any part or parts of them).
Services: any services agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them).
Order: the customer's order for the Goods, as set out in the Customers' purchase order form or the customer's acceptance of the quotation.
Services: installation of any Goods by the Company for the Buyer pursuant to the Contract (including any part performance thereof).
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural, include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition
2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the customer purports to apply under any purchase order, confirmation of order, specification or other document), or which are implied by trade, custom, practice or course of dealing.
2.2 No terms or conditions endorsed on, delivered with or contained in the customer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply because of such document being referred to in the Contract.
2.3 These conditions apply to all the Company's sales and any variation to these conditions and any representations about the Goods and or the Services shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Distributor acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.4 Each Order constitutes an offer by the Customer to purchase the Goods and/or the Services in accordance with these conditions.
2.5 No order placed by the customer shall be deemed to be accepted by the Company until a written acknowledgement of Order is issued by the Company.
2.6 The Customer shall ensure that the terms of its Order and any applicable specification are complete and accurate. It is the customer's responsibility to check that any Goods and/or the Services purchased fulfil its requirements and comply with any local bye-laws or regulations.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of Order to the customer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.8 Clerical errors and omissions in any brochures, catalogues, quotations or other literature of the Company may be corrected by the Company without notice.
2.9 All right, title and interest in any plans, drawings, specifications and quotations prepared by the Company for a Customer or in connection with a Contract remains with the Company and the customer shall keep same confidential and shall not use same for any purpose other than as envisaged in the Contract and shall not disclose same to any third party without the prior written consent of the Company.
2.10 Orders may only be cancelled at the Company's sole discretion and subject to the customer paying any charges and expenses incurred by the Company in relation there to. No cancellation will be accepted by the Company for Goods specially ordered or fabricated for the customer.
2.11 The Company may at its sole discretion agree to the return of Goods by the customer provided the Goods are returned at the customer's expense, in the same condition and in the original packaging as at the date of despatch by the Company or the manufacturer and subject to the customer bearing any costs incurred by the Company plus a restocking charge of 30% of the nett invoice value of the Goods.
3.1 The quantity and description of the Goods and/or the Services shall be as set out in the Company's quotation or acknowledgement of Order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's or any manufacturer's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or the Services described in them. They shall not form part of the Contract and this is not a sale by sample. Where any such details are important to the customer, the customer should verify such details with the Company prior to placing its order.
4.1 Unless otherwise agreed by the Company, the Company shall deliver the Goods FCA Incoterms 2010 to the agreed delivery location.
4.2 Any dates specified by the Company for delivery of the Goods and/or the Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. The Company shall not be liable for any delay in delivery of the Goods and/or the Services that is caused by a Force Majeure Event or the customer's failure to provide the Company with any instructions that are relevant to the supply of the Goods and/or the provision of the Services.
4.3 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods and/or the Services (even if caused by the Company's negligence), nor shall any delay entitle the customer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.4 If for any reason the customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the customer has not provided appropriate instructions, documents, licences or authorisations (if applicable): (a) risk in the Goods shall pass to the customer (including for loss or damage caused by the Company's negligence); 4 (b) the Goods shall be deemed to have been delivered; and (c) the Company may store the Goods until delivery, whereupon the customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.5 The customer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading and unloading (if applicable) the Goods. Should the Company agree to deliver the Goods to a location other than its premises, the Company shall not be liable to the customer for any damage to the Goods as a consequence of inadequate site access or inadequate unloading facilities.
4.6 If the Company delivers to the customer a quantity of Goods of up to 5% more or less than the quantity accepted by the Company, the customer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.7 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.8 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the customer to repudiate or cancel any other Contract or instalment.
4.9 Each order is treated as a separate transaction and will be subject to delivery and small order surcharges (as appropriate).
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company's place of business or the manufacturer on despatch from the manufacturer's place of business shall be conclusive evidence of the quantity received by the customer on delivery unless the customer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company's negligence) unless the customer gives written notice to the Company of the non-delivery within 48 hours of the time when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 Notwithstanding any alternative delivery arrangements agreed between the Company and the Buyer, the Goods shall be at the risk of the customer from completion of delivery as described in condition 4.1.
6.2 Ownership of the Goods shall not pass to the customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of: (a) the Goods; and (b) all other sums which are or which become due to the Company from the customer on any account.
6.3 Until ownership of the Goods has passed to the customer, the customer shall: (a) hold the Goods on a fiduciary basis as the Company's bailee; (b) store the Goods (at no cost to the Company) separately from all other goods of the customer or any third party in such a way that they remain readily identifiable as the Company's property; (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and (d) maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the customer shall produce the policy of insurance to the Company.
6.4 The customer may resell the Goods before ownership has passed to it solely on the following conditions: (a) any sale shall be effected in the ordinary course of the customer's business at full market value; and (b) any such sale shall be a sale of the Company's property on the customer's own behalf and the customer shall deal as principal when making such a sale.
6.5 The customers' right to possession of the Goods shall terminate immediately (and the customer shall notify the Company forthwith) if: (a) the customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the customer or notice of intention to appoint an administrator is given by the customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the customer or for the granting of an administration order in respect of the customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the customer; or (b) the customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the customer ceases to trade; (c) the customer encumbers or in any way charges any of the Goods; or (d) the customer becomes subject to any proceedings equivalent to those set out in this condition 6.5 (a) or (b) under any local jurisdiction applicable to it.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored to inspect them, or, where the customers right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the customer's right to possession has terminated, the customer shall be deemed to have sold all goods of the kind sold by the Company to the customer in the order in which they were invoiced to the customer.
6.9 On termination of the Contract, howsoever caused, the Company's (but not the customer's) rights contained in this condition 6 shall remain in effect.
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods and/or the Services shall be the price set out in the Company's price list published on the date of delivery or deemed delivery. The Company reserves the right to amend prices prior to the Contract being formed without notice. The Company may, by giving notice to the customer at any time up to 7 calendar days before delivery, increase the price of the Goods and/or the Services reflect any increase in the cost of the Goods and/or the Services that are due to: (a) any factor beyond the Company's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b) any request made by the customer to change the delivery date(s), quantities or types of Goods ordered, or any changes to any specification supplied by the customer; or (c) any delay caused by any instructions of the customer or failure of the customer to give the Company adequate or accurate information or instructions.
7.2 The price for the Goods and/or the Services shall be exclusive of any value-added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the customer shall pay in addition when it is due to pay for the Goods (if applicable).
8. TERMS PAYMENT
8.1 Subject to condition 8.4, payment of the price for the Goods and/or the Services is due in pounds' sterling 30 days from the invoice being submitted to the customer. However, the Company reserves the right to request payment upfront or by alternative methods as may be agreed between the customer and Company in writing.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Distributor shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the customer.
8.6 In the event that the Company agrees special payment terms with a customer and the customer fails to pay any amount due in accordance with such special payment terms on its due date all monies due or which may become due by the customer to the Company shall become immediately due and payable.
8.7 If the Customer fails to make a payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to
8.7.1 Cancel the contract and suspend any further deliveries to the Customer and/or
8.7.2 appropriate any payment made by the Customer to such of the goods (or the goods supplied to the Customer under any other contract between the Customer and the Company) as the Company may think fit and / or
8.7.3 Charge the Customer interest (both before and after any judgement) on the amount outstanding from the date when payment became due at a rate of 2% per month (part of a month being treated as a whole month for the purpose of calculating interest) and/or
8.7.4 recover from the Customer on a full indemnity basis together with interest there on all costs incurred be it in obtaining payment including solicitor's fees, agents fees and costs associated with so doing.
9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the customer the benefit of any warranty or guarantee given to the Company in respect of the Goods.
9.2 The Company warrants that (subject to the other provisions of these conditions): (a) the Goods and Services shall conform with any specification provided by the customer that is agreed between the Company and the; and (b) it shall use reasonable care in performing the Services.
9.3 The Company shall not be liable for a breach of any of the warranties in condition 9.2 unless: (a) the customer gives written notice of the defect to the Company, and, if the defect in the Goods is as a result of damage in transit by the carrier (if applicable), within 24 hours of the time when delivery is deemed to have taken place as described in condition 4.1; and (b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the customer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there.
9.4 The shall not without with the Company's prior written consent make any promises or guarantees about the Goods beyond those contained in the promotional material supplied by the Company.
9.5 The Company shall not be liable for a breach of the warranties provided in condition 9.2 if: (a) the customer makes any further use of such Goods after giving such notice in accordance with clause 9.3; (b) the defect arises because the customer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; (c) the defect arises as a result of the Company following any drawing, design or specification supplied by the customer ; 9 (d) the customer alters or repairs such Goods without the written consent of the Company; (e) the defect arises as a result of fair wear and tear; (f) the Goods differ from their description or the customer's specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.6 Subject to condition 9.3, if any of the Goods and/or the Services do not conform with the warranty provided in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part thereof), or re-perform the Services or refund the price of such Goods at the pro rata Contract rate provided that (in the case of Goods), if the Company so requests, the customer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company.
9.7 If the Company complies with condition 9.6 it shall have no further liability for a breach of any of the warranties in condition 9.2 in respect of such Goods and/or the Services.
9.8 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12-month period.
10. LIMITATION OF LIABILITY
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the customer in respect of: (a) any breach of these conditions; (b) any use made or resale by the customer of any of the Goods, or of any product incorporating any of the Goods; and (c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 The terms implied by sections 13-15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company: (a) for death or personal injury caused by the Company's negligence; or 10 (b) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or (d) defective products under the Consumer Protection Act 1987; or (e) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or (f) for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3: (a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and (b) the Company shall under no circumstances be liable to the customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
10.5 This condition 10 shall survive termination of the Contract.
11.1 The Company may assign the Contract or any part of it to any person, firm or company.
11.2 The customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12. FORCE MAJEURE The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the customer (without liability to the customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials (a "Force Majeure Event"), provided that, if the event in question continues for a continuous period in excess of 180 days, the customer shall be entitled to give notice in writing to the Company to terminate the Contract.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
13.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
14.1 All communications between the parties about the Contract shall be in writing and delivered by hand, sent by pre-paid first class post, or sent by email: (a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the customer by the Company; or (b) (in the case of the communications to the customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the customer .
14.2 Communications shall be deemed to have been received: (a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or (b) if delivered by hand, on the day of delivery; or (c) if sent by email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
14.3 Communications addressed to the Company shall be marked for the attention of a director of the Company.
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