COTSWOLD DAIRY EQUIPMENT LTD TERMS AND CONDITIONS OF SUPPLY AND SALE
1.1. “the Company” is Cotswold Dairy Equipment Company Ltd.
1.2. “the Conditions” means these terms and conditions of sale, and “Condition” shall be construed accordingly.
1.3. “the Purchaser” is the individual, company, or firm with whom the Company contracts or does business.
1.4. “Goods” means those goods sold by the Company to the Purchaser.
1.5. “the Price” is the price for the Goods determined in accordance with clause 8. .
1.6. “Delivery Address” means the address to which the Company is instructed to deliver the Goods by the Purchaser, or, failing such an instruction, the principal place of business or registered office of the Purchaser.
1.7. “writing” will include other written or non-verbal means of communication such as facsimile, e-mail, text or comparable means of communication.
Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended or extended or re-enacted at any later time.
2.1. In the event of the Purchaser’s quotation or order containing conditions at variance with these Conditions, they will have no effect and only these Conditions shall apply.
2.2. No variation to these Conditions shall be binding unless agreed in writing between authorised representatives of the Purchaser and the Company.
3.1. The Company will try to deliver the Goods as soon as possible, but will incur no liability of any description arising from any delay in delivery and time of delivery shall not be of the essence of the contract.
3.2. Should the Company attempt to deliver the Goods to the Purchaser and the Purchaser fails to accept delivery then without prejudice to any other rights or remedies the Company may have, the Purchaser shall be liable to pay all and any costs incurred by the Company arising from non-delivery, including by way of example: additional transport costs and storage charges.
3.3. The Company is not liable for any loss or damage caused by:
3.3.1 Loading of the Goods by the Purchaser, its agents or servants, if the Goods are collected by the Purchaser; or
3.3.2 Unloading of the Goods if the Goods are delivered by the Company or its carrier;
and any loss or damage occurring after collection or delivery – as the case may be.
3.4 Orders may be subject to a minimum delivery charge or minimum order charge.
3.5 The Company may make deliveries by instalments.
- FORCE MAJEURE
If the Company is delayed or prevented from discharging any of its obligations hereunder by any circumstances whatsoever outside its complete control, further performance of the contract shall either be suspended for so long as the Company is prevented, or, at its option – cancelled, in which case the Company shall not be deemed to be in breach of the contract and shall not be liable for any loss or damage of any kind whether direct, indirect or consequential arising out of or connected with the suspension or cancellation of the contract. Upon cancellation of the contract, any monies paid in advance for the Goods will be refunded in full to the Purchaser.
5.1 Title to the Goods shall not pass to the Purchaser until all monies owed to the Company by the Purchaser on any account have been received by the Company in cleared funds.
5.2 In the case of non-payment on the due date or termination under the provisions of condition 13 (whichever is the earlier), the Company shall be entitled to, and may at any time for the purpose of recovery, enter any premises where they are stored or where they might reasonably be thought to be stored and repossess the Goods.
5.3 The Purchaser shall not be entitled to pledge, charge by way of security, or otherwise encumber any of the Goods.
- RISK AND INSURANCE
6.1 The risk for the Goods shall pass to the Purchaser on delivery.
6.2 The Purchaser shall fully insure the Goods for the Price from the date of delivery or collection – as the case may be – in the joint names of the Company and the Purchaser and shall store the Goods separately and clearly labelled as the property of the Company until all sums due to the Company have been settled in full.
7.1 Quotations from the Company are valid for 1 day from the date of such quotation For the purposes of this condition the receipt by the Company of an order in writing for the Goods shall be deemed to be an acceptance of the quotation.
7.2 Unless otherwise agreed in writing payment for Goods shall be made in accordance with the invoice within 30 days of the invoice date. For this purpose, time for the payment shall be the essence of the contract. Receipts for payment will only be issued on request. Any discrepancy associated with but not limited to pricing, charges, invoice address, purchase order numbers etc must be reported to the Company within 7 days of the invoice date. Discrepancies notified after the seven day period will not be considered by the Company for credit.
7.3 The Company shall be at liberty to invoice the Purchaser for those Goods delivered notwithstanding that all of the Goods ordered have not been delivered.
7.4 If payment is not made as provided for in provision 7.2 the sum shall carry interest at 2% above the Royal Bank of Scotland base rate at the invoice date, calculated on a daily basis from the invoice date until payment is made in full, together with all costs, charges or expenses incurred in recovering any amount due.
7.5 If payment is not received by the due date by the Company and without prejudice to the provisions of 7.4 and the Company’s other rights and remedies, the Company reserves the right to suspend further deliveries of Goods to the Purchaser and/or terminate all contracts between the Company and the Purchaser and the Company shall have no liability to the Purchaser for such suspension or termination.
8.1 The Price charged for the Goods will be the price ruling at the date of acceptance of the order or as provided for in the quotation (if any) subject to condition 7.1
9.1 Unless expressly stated otherwise, all prices quoted are exclusive of vat (value added tax). Goods will be sold and supplied subject to the rate of vat prevailing at the time of supply (tax point).
9.2 Where the Company is acting as an intermediate supplier in a triangulation arrangement in respect of the supply of Goods outside the UK but within the European Union the Purchaser shall account for the acquisition vat on behalf of the Company.
9.3 If the Purchaser is in a vat group it shall provide the Company with the name of the group representative member, its address and full vat number including the group’s suffix.
9.4 Where the Goods are supplied to the Purchaser outside of the UK but within the EU, the Purchaser shall provide the Company with its vat number, or, if it does not do so, pay the vat in accordance with 9.1.
- WARRANTIES AND REPRESENTATIONS
10.1 Goods supplied will comply in all material respects with the description given in the Company’s current product catalogue in respect of dimensions, capacity, materials and product features. Unless otherwise expressly stated in writing any statements as to the performance of the Goods but not the ability of the Purchaser to sell them are accurate to the best of the Company’s belief and the Company undertakes no absolute obligation to supply Goods which achieve or comply with any such statements.
10.2 In the case of liability under 10.1 the Company shall be liable to accept only the return of the Goods concerned and to refund the Purchaser with the Price or part of the Price paid by the Purchaser.
10.3 All terms conditions warranties, guarantees, undertakings or representations whether express or implied (save only those which cannot be negated or varied by express agreement or by course of dealing or usage) or agreed or offered orally or in correspondence or otherwise and all particulars or details (other than as referred to in clause 10.1) shown in specification catalogues or any illustrative or descriptive documents are hereby excluded from the contract.
10.3 These Conditions shall apply mutatis mutandis to any Goods supplied by the Company by way of rectification replacement or improvement under any of these Conditions.
10.4 Subject as expressly provided in these Conditions all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.5 Where the Goods are sold under a consumer sale (as defined by the consumer Transactions (restrictions or statements) order 1976 the statutory rights of the Purchaser are not affected by these Conditions.
- RETURN OF GOODS, NOTIFICATION OF LOSS, NON-DELIVERY, DAMAGE
11.1 If the Goods are delivered to the Purchaser then any notice of claim arising from the delivery shall be made within 5 working days of the date of the delivery. Such notice must be made in writing by the Purchaser to the Company, and the delivery advice note must be returned to the Company duly endorsed with reasonable details of such loss shortage or damage. The Company shall have no liability for any loss or damage where the delivery advice note is returned to the Company endorsed as unchecked or unexamined. If the Company has not been given notice of any claim within the specified period, the Goods will be deemed to have been accepted by the Purchaser.
11.2 If the Goods are delivered to the Purchaser then any request for return of Goods arising out of that delivery must be made to the Company within 5 working days of the specified period, the Goods shall be deemed accepted by the Purchaser. It is the Purchaser’s responsibility to acquire a returns number from The Company as proof of request, which should be quoted in any communication with the Company in any communication relating to the return.
11.3 If the Goods are collected by the Purchaser, the Company shall only be liable for any loss shortage or damage in the quantity of Goods subject to the Purchaser completing a written claim on collection, and under no circumstances shall the Company be liable for claim 1 respect of collected Goods where the Goods are removed from the premises without such written claim being completed.
11.4 It shall be the Purchaser’s sole responsibility to inspect the Goods in order to comply with the provisions of condition 11.1 and 11.3 inclusive.
12.1 The Company shall not be liable to the Purchaser for any loss of profit or other indirect special or consequential costs expenses goodwill loss or damage (whether caused by the negligence of the Company or its employees or agents or otherwise) which arises out of or in connection with the supply of Goods or their subsequent use or resale except as expressly provided for in these Conditions.
12.2 The Company’s maximum aggregate liability under, arising from, or in connection with the contract, (whether in contract, for negligence or otherwise), shall be limited to a sum equivalent to the Price of the Goods in respect of which such a liability arises.
12.3 Without prejudice to the provisions of 12.2 the liability of the Company to the Purchaser for any loss or damage to property (other than the Goods) shall not exceed £1,000,000.
12.4 The Purchaser shall keep and hold the Company, its servants and agents fully indemnified in respect of any claim, loss, damage or injury whether arising in contract tort or otherwise arising from any act or omission whether deliberate accidental or negligent of the Purchaser its servants or agents.
12.5 The Purchaser is recommended to insure against any loss or damage in respect of which the liability is excluded or limited under these Conditions.
12.6 The provision of this condition 12 shall apply the Company’s servants and agents and shall survive termination of the contract for the Goods (howsoever arising).
12.7 Nothing in these Conditions shall limit or exclude liability for death or personal injury.
13.1 The Company may at its own discretion terminate any contract for the Goods, or suspend any further delivery of the Goods without any liability to the Purchaser upon any of the following events occurring:-
13.1.1 The Purchaser entering into any voluntary arrangement with its creditors or becoming subject to an administration order; or
13.1.2 being an individual or a firm having a bankruptcy petition served against it; or
13.1.3 being a Company, having a winding-up order served on it; or
13.1.4 going into liquidation for any purpose other than amalgamation or reconstruction; or
13.1.5 any of its property or assets being possessed under the provisions of any encumbrance, mortgage, lien or charge upon them; or
13.1.6 ceasing, or threatening to cease to carry on business; or
13.1.7 the Company reasonably believes or suspects that any of the above mentioned events are about to occur in relation to the Purchaser; or
13.1.8 the Purchaser failing to make payment on the due date under any contract between the Company and the Purchaser.
13.2 Notwithstanding the right of the Company to terminate under the provisions of this condition on occurrence of any of the events referred to in 13.1, any sums due to the Company and not yet paid (irrespective of any payment terms contained in these Conditions or otherwise agreed in writing between the parties) shall become immediately due and payable, and the Company shall be entitled to charge interest at the rate of 2 percent above the base rate for the time being of the Royal Bank of Scotland plc on such outstanding amount from the date of notification of the same to the date of payment.
13.3 Without prejudice to any other rights and remedies of the Company, in the event that the Purchaser seeks to cancel an order for the Goods after despatch by the Company of any consignment of the Goods, the Company reserves the right at its absolute discretion to charge the Purchaser a cancellation fee of a sum equivalent to 15% of the value of the balance of the Goods.
14.1 The Purchaser shall under no circumstances obliterate, mutilate, alter or otherwise interfere with any existing trade mark of the Company affixed to the Goods or fix any other trade mark either in addition to or in place of the existing trade mark upon any of the Goods.
14.2 Any rights or remedies of the Company in respect of any trade marks shall be without prejudice to and in addition to any other rights or remedies provided for under these Conditions.
The Company shall be entitled to assign its rights under the contract to any member of a group of companies to which it may belong, and to perform its obligations through a sub contractor, but otherwise neither party shall or shall purport to assign its rights and obligations.
It is a condition of the agreement that no inducements to trade are offered to any of the Company’s staff at any time. The Purchaser should inform the Company immediately if they are approached in this respect by the Company’s staff. Seasonal gifts or entertainment offered to the Company’s staff should be of nominal value only.
- WHOLE AGREEMENT
17.1 The edition of the Company’s catalogue which is current at the time of the Purchaser’s order may contain exclusions or limitations of liability relating to individual products. All such exclusions and limitations of liability, so far as they relate to Goods ordered by the Purchaser, are hereby incorporated into the contract between the Company and the Purchaser.
17.2 Without prejudice to Condition 17.1:
17.2.1 these Conditions supersede all previous agreements between the parties and contain the whole agreement between the parties; and
17.2.2 there are no collateral or personal representations agreements warranties or conditions not specifically set forth herein.
Subject to the provisions of these Conditions no modification amendment or variation shall be effective or binding on either of the parties unless agreed by then in writing and signed by an authorised representative of each
- LAW AND JURISDICTION
These Conditions shall be subject to the provisions of English law and both parties irrevocably submit to the non-exclusive jurisdiction of the English courts.
19.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered offices or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
19.2 Termination of the contract shall be given without prejudice to any rights of either party arising prior to or as a result of such termination and no waiver of any right shall be a continuing waiver or prejudice the future enforcement of such right.
19.3 Equipment supplied by the Company “free on loan” or as “consignment stock” remains the property of the Company and it may be recovered in the event of misuse or malfunction. The Company shall not be liable for any breakdown of equipment or any part of it or for any consequential loss incurred by the customer.
19.5 If any Condition or other term of the contract between the Company and the Purchaser is found by any Court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.