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TERMS AND CONDITIONS OF SALE
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Definitions “Buyer” means the person or company who buys or agrees to buy the goods from the seller. “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the seller. “Delivery Date” means the date specified by the Seller when the goods are to be delivered. “Goods” means the articles that the Buyer agrees to buy from the Seller in accordance with the seller’s conditions of sale. “Price” means the price for the Goods excluding carriage, packing, insurance and VAT. “Seller” means Koller Engineering Ltd (registered number 1537552) whose registered office is at 5, Garrett Road, Lynx Trading Estate, Yeovil, Somerset BA20 2TJ. 2 Conditions 2.1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under purchase order confirmation of order or similar document. 2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions. 2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions. 2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller. 3 The Price and Payment 3.1 The Price shall be the price as shown in the Seller’s current price list at the date of order, subject to any discounts the Seller has agreed with the Buyer from time to time. 3.2 Payment of the Price shall be due within 30 days of the date of the invoice. 3.3 If payment is outstanding beyond the due date the Seller may; 3.3.1 cancel the contract or suspend further deliveries to the Buyer, and: 3.3.2 appropriate any payment made by the Buyer to such of the Goods as the seller may think fit (notwithstanding any purported apportionment by the Buyer), and 3.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 15% per annum from the date of the invoice until payment is made in full. 3.4 Any fees, charges etc. which may be incurred in the collection of overdue accounts will be chargeable to the Buyer. 4 The Goods The quantity and description of the Goods shall be as set out in the Seller’s quotation and the Buyer shall be deemed to have checked the number and quality on the delivery of the goods. 5 Warranties and Liability 5.1 Subject as expressly provided in these Terms, and except where the Goods are sold to a consumer (within the meaning of the Unfair Contact Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. 5.2 Where the Goods are sold to a consumer (as defined by the Consumer Transactions (Restriction on Statements Order 1976) the statutory rights of the Buyer are not affected by these terms. 6 Delivery of the Goods 6.1 Delivery of the Goods shall be made to the Buyer’s address or specified delivery address on the Delivery Date. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. 6.2 The Seller will use reasonable endeavours to meet the Delivery Date but shall not otherwise incur any liability whatsoever for any loss or damage resulting from delay however caused. Time for delivery shall not be of the essence of the contract unless previously agreed by the Seller in writing. The goods may be delivered in advance of the quoted delivery date on giving reasonable notice to the Buyer. 6.3 If the Buyer requests any special delivery arrangements then any additional costs incurred will be payable by the Buyer. 6.4 The Seller may deliver the goods by instalments, each instalment to be a separate contract and any failure by the Seller to deliver any one or more instalment in accordance with these Terms or any claim by the Buyer in respect of one or more instalment shall not entitle the Buyer to treat the contract as a whole as repudiated. 6.5 The Seller shall not be liable to the Buyer for short delivery. 7 Acceptance of the Goods 7.1 The Buyer shall be deemed to have checked and accepted Goods after delivery to the Buyer. 7.2 After acceptance the Buyer shall not be entitled to reject any Goods which are not in accordance with the contract. 8 Return of Goods Except as set out as in clause 9 below: 8.1 Return of Goods shall not be made without prior agreement with the Seller and will be at the Buyer’s risk and expense. 8.2 Goods that the Seller agrees to accept back will be subject to a handling charge of 10%. 8.3 All returned Goods must be in “as-new” condition and packed in original packing. The Seller will not credit any Goods not returned in “as-new” condition. 9 Distance Selling Regulations If the Buyer is a “consumer” as defined in The Consumer Protection (Distance Selling) Regulations 2000: 9.1 The Buyer may cancel the Goods in writing to the Seller within 7 working days from the day after the Goods were received. 9.2 If the Goods are cancelled the Buyer must ensure reasonable care is taken of the Goods and return or make them available for collection in their original packing. 9.3 The Goods must be returned to the Seller within 7 working days of delivery. 9.4 Goods returned or collected will be at the Buyer’s expense. 9.5 Following receipt of the Goods, providing that the Goods comply with clause 9.2, the Seller will refund to the Buyer the Price paid in respect of the Goods within 30 days of receiving written notification of cancellation of the Goods. 10 Title and Risk 10.1 The Goods shall be at the Buyer’s risk as from delivery to the Buyers premises, or if collected by the Buyer, when the goods leave the Sellers premises. 10.2 Notwithstanding delivery and the passing of risk in the Goods, 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 for which payment is then due) including VAT and any interest payable or charges in accordance with clauses 3.3.3 or 3.4 above. 10.3 Until property in the Goods passes to the Buyer the Buyer shall hold the Goods and each of them on a fiduciary basis as agent and bailee for the Seller. The Buyer shall keep the Goods properly stored, protected and insured (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property. 10.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money. 10.5 The Seller shall be entitled to recover the Price (plus VAT) notwithstanding that property in any of the Goods has not passed from the Seller. 10.6 Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer or any third party where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clause 10.4 shall cease. 10.7 The Buyer shall not pledge in any way charge by way of security for any indebtedness any of the Goods that are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable. 10.8 The Buyer shall insure and keep insured the Goods to the full Price against “all risks” to the reasonable satisfaction of the Seller until the date that the property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable. 11 Remedies of Buyer 11.1 Where a valid claim in respect of Goods which is based on a defect in the quality or condition, the Seller may replace the Goods (or the part in question), rework the Goods, or, at the sellers sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer. 11.2 Where the Buyer accepts or has been deemed to have accepted any Goods then the Seller shall have no liability whatever to the Buyer in respect of those Goods. 12 Intellectual Property 12.1 The specifications and designs of the Goods (including the copyright design or other intellectual property in them) shall as between the parties be the property of the Seller. Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacture processing assembly or supply of the Goods shall not infringe the rights of any third party. 12.2 If a claim is made against the Seller that the Goods manufactured to the Buyers specification infringe the patent, copyright, design, trade mark, or other industrial or intellectual property rights of any other person, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with that claim. 12.3 The Buyer shall not without the Seller’s written consent allow any trademark or service of the Seller or other word or mark applied to the Goods to be obliterated, obscured or omitted or any additional word or mark. The Buyer shall not use or apply any such word or mark without the Seller’s written consent. 13 Insolvency of Buyer 13.1 This clause applies if the Buyer makes a voluntary arrangement with its creditors or (being an individual) becomes bankrupt or (being a company) becomes the subject of an administration order or goes into liquidation, or a receiver is appointed or the Buyer ceases to trade or threatens to cease trading. 13.2 if this clause applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contact or suspend any further deliveries under the Contract without any 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 to the contrary. 14 Force Majeure The Seller shall not be liable to the Buyer, or be deemed liable , 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 including without limitation: a) Any act of default on the part of the Buyer b) any act of God, war, act of terrorism, riot, civil commotion, strike, lock out, sit in, industrial or trade dispute, fire, flood, adverse weather, disease, accident to plant or machinery or shortage of any material, labour, parts, electricity or other supply. 15 Proper Law of Contract This Contract is subject to the Law of England and Wales. |
