In these Conditions "the Seller" means H. Guntner (UK) Limited; "the Buyer" means the person firm or company purchasing the Goods; "the Goods" means the Goods or materials the subject of the contract between the Buyer and Seller.
1. Unless otherwise agreed in writing every order for Goods placed with the Seller shall be subject to these conditions which shall override any standard or other ordinary terms or conditions stipulated incorporated or referred to in the Buyer's order. No conduct by the Seller shall be deemed to constitute acceptance of any terms put forward by the Buyer. The acceptance by the Seller of any order from the Buyer shall be deemed to incorporate all the terms of these conditions.
OFFER AND ACCEPTANCE
2.1. Unless previously withdrawn the Seller's quotation is open to acceptance within the period stated therein and where no period is stated within 30 days after its date. The acceptance of the quotation must be accompanied by sufficient information to enable the Seller to proceed forthwith otherwise the Seller may amend the quotation prices at its discretion.
2.2. The quality quantity and description of and any specification for the Goods shall be those set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller).
2.3. A Buyer's orders for Goods are only accepted by the Seller on the basis that the price of the Goods will be that at the date of the receipt of the order except where formal written quotations have been given.
2.4. Any specification (including diagrams drawings weights and dimensions) or other data shall be regarded by the Seller as an approximation only.
3.1. At no time after any order (whether written or otherwise) has been placed and accepted will the Seller accept the Buyer's cancellation or variation thereto.
3.2. Where delivery of the Goods is to be made by instalment each delivery shall be treated as a separate contract and failure, suspension or delay in any delivery for any reason whatsoever or defects in the Goods delivered shall not vitiate the contract as to those or other deliveries.
3.3. Such failure, suspension delay in delivery or non delivery when payment is due shall entitle the Seller to withhold further deliveries.
3.4. Failure by the Buyer to pay for any instalment or delivery when payment is due shall entitle the Seller to withhold further deliveries.
3.5. No contract between the Seller and the Buyer shall be deemed a sale by sample if a sample has been provided for the Buyer's general guidance only.
4.1. Unless otherwise expressly agreed no times quoted, specified or agreed for delivery of Goods by the Seller shall be the essence of the contract. All delivery dates are estimated only and the Seller shall not be liable in damages for any delay in delivery nor shall the buyer be entitled to refuse to accept delivery except where delay of an unreasonable length has occurred due to circumstances within the Seller's control. The following circumstances shall without limitation be deemed not to be within the Seller's control:
4.2. Inability to secure labour, materials or supplies as a result of Acts of God, war, riots, civil commotions, strikes, lock-outs, trade disputes, fires, flood, drought, force majeure, break-downs, interruptions of transport, Government action and delay in the delivery by the Seller's suppliers or any other cause beyond the Seller's control The Seller may by notice in writing if prevented hindered or delayed by force majeure in making delivery of any Goods either:-
4.2.1. Cancel the Seller's obligations to deliver the Goods in which case the Seller shall not be deemed to be in breach of contract and shall not be liable for loss or damages whatsoever arising out of such cancellations; or
4.2.2. Extend the time for delivery of the Goods outstanding by such period as is reasonable and as may be agreed in writing between the Seller and the Buyer provided that the Seller shall not be in breach of contract and the Seller may cancel the outstanding obligations as aforesaid.
4.2.3. The foregoing provisions shall be without prejudice to the right of the Seller to recover the price of the Goods the risk in which has passed to the Buyer.
4.3. In the event that the Seller agrees to rearrange for delivery of the Goods then such agreements shall be subject to an additional charge and any such carriage will be made at the Buyers own risk and notwithstanding the Seller's agreement to arrange such carriage property and risk in the Goods shall pass to the buyer according to clauses 10 and 12 below.
PRICE AND PAYMENT
5.1. All prices referred to in quotations and correspondence are gross cost prices excluding shipment and shall at all times be subject to VAT at the prevailing rate on the date of invoice.
5.1.1.If prices are quoted at the date of order then the price stipulated shall be subject to variation four months thereafter if delivery has then not occurred and the price as at the date of delivery shall apply.
5.1.2. Any special order alteration or accommodation made at the Buyer's request outside the scope of normal manufacture and sale in the ordinary course of business of the Seller or beyond the date of order shall be subject to a Seller's supplement for the costs of labour and materials.
5.2. Unless otherwise agreed and provided that the Seller does not require payment in advance of delivery, payment for the Goods shall be made not later than thirty days following the delivery of the Goods whichever is the sooner and time shall be of the essence. If no price has been agreed between the Seller and the Buyer the price payable shall be the current price on the date of despatch of the Goods and unless otherwise stated the package costs are included. Without prejudice to the Seller's rights in respect of late payment (other than to receive compensation therefore if the Buyer fails to make payment on the due date) the Seller shall be entitled in addition to the purchase price to interest thereupon at the rate of 5% per annum above Lloyds TSB base lending rate from time to time applying from the due date of payment until payment is received by the Seller.
5.2.1. The Seller reserves the right that in the event of any increases in the cost to the Seller of any materials labour overheads or any increase in tax or duties or any variation in the international currency exchange rates which the Seller determines are applicable to the contract the Seller may in his sole discretion increase the price payable under the contract.
5.2.2. Where prices are quoted in pounds sterling calculated at a specific exchange rate the Sellers reserves the right to make an adjustment between the quoted and the actual exchange rate prevailing at the date of delivery. The actual exchange rate will be the mid-point rate as quoted in the Financial Times
5.3. The Seller may appropriate any payment made by the Buyer and apply it in total or partial satisfaction of any debt then due from the Buyer to Seller.
5.4. Where the amount paid by the Buyer is less than the amount due to the Seller under the contract to which it is appropriated the Seller may appropriate the payment to any individual Goods or items supplied under that contract.
5.5. The Buyer may not "set off" any costs or counter claim unless previously approved in writing by the Seller.
6.1. If the Buyer shall fail to make or suspend any payment on the due date or becomes bankrupt or enters into liquidation (other than for the purposes of amalgamation or reconstruction) or makes any composition or arrangement with Creditors or has a receiver or administration appointed of its undertaking property or assets or any part thereof or becomes subject to an interim order under Section 252 of the Insolvency Act 1986 the Seller shall have the option to withhold or cancel further deliveries provided that failure on the part of the Seller to exercise such option in respect of one or more deliveries shall not affect the right to exercise it in respect of other deliveries. Notwithstanding any other terms stated herein cash shall be paid before delivery if required. In the event of bankruptcy, liquidation, compositional arrangement with Creditors or appointment of a Receiver, then the purchase price of all Goods invoiced or despatched by the Seller shall become forthwith due and payable by the Buyer and the Seller shall further be entitled to treat as cancelled every contract made between the Seller and the Buyer or, at the Seller's Option, suspend or continue delivery of Goods thereunder without prejudice to any other rights of the Seller.
6.2. The Seller reserves the right to vary unilaterally the terms and conditions upon which the Seller shall perform all or any part of the contract as he shall in his absolute discretion determine if the arrangements for payment or the credit of the Buyer shall appear to be or become unsatisfactory
LOSS AND DAMAGE
7. Goods will be delivered to the agreed place of delivery but the Buyer will be responsible for unloading
7.1. Damage, shortage and pilferage in transit must be reported to the carriers in writing within 3 days after delivery of the Goods and a copy sent to the Seller to enable (where applicable) the necessary claim to be made. In the case of breakages the Buyer must retain the damaged Goods and packing material for inspection. The Seller must be advised immediately of non-delivery within 14 days of the date of despatch or in the case of exports within 3 days of the anticipated delivery date. If the Buyer's non-compliance with this clause causes any subsequent claim to be refused by the carriers the entire loss shall be borne by the Buyer.
7.2. When delivery is made by a carrier on the Seller's behalf the Seller will only accept responsibility for loss or damage in transit if given written notification of non-delivery or damage within such time as to enable the Seller to comply with the carrier's conditions of carriage relating to loss or damage in transit.
ACCEPTANCE OF THE GOODS
8. The Buyer shall inspect the Goods immediately upon delivery and shall within 48 hours of such delivery give notice in writing to the Seller of any matter or thing by reason whereof the Buyer alleges that the Goods are not in accordance with the contract whether as to quantity, quality or otherwise and time for performance of the Buyer's obligation to take delivery shall be of the essence. If no such notice is served by the Buyer upon the Seller the Goods shall be deemed to be in accordance with the contract in all respects and the Buyer shall be deemed to have accepted them:
8.1. The Seller may in his absolute discretion repair or replace or refund the purchase price of any Goods that the Seller shall be satisfied were defective in material provided that the Buyer has not in any way dealt with the Goods after delivery.
8.2. Where the Goods delivered do not comply with the contract the Buyer shall afford the Seller a reasonable time and opportunity to act in accordance with sub-clause 8.1 above and the Seller shall not be liable for any loss whether of a direct or indirect nature.
WARRANTIES AND LIABILITIES
9.1. Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defect in material and workmanship for a period of twelve months from delivery.
9.2. The above warranty is given subject to the following conditions:-
9.2.1. The Seller shall be under no liability to the Buyer in respect of any defect unless the Buyer immediately gives the Seller notice in writing of the defect complained of with full details of the operating condition under which the defect became apparent and return the Goods complained of carriage paid to the Seller's works.
9.2.2. Any items returned to the Seller shall be at the Buyer's risk at all times in transit to and from the Seller's works. Repaired or replacement items will be despatched carriage paid by the Seller to the address to which the contract Goods were despatched.
9.2.3. The Seller shall be under no liability in respect of any defect in the Goods:-
126.96.36.199 Arising from any drawing design or specification supplied by the Buyer, or
188.8.131.52.Arising from for any purpose other than for which they were designed or otherwise than in strict accordance with the Seller's instructions for use, or
184.108.40.206.Arising from fair wear and tear wilful damage negligence abnormal working conditions failure to follow the Seller's instruction (whether oral or in writing) or alteration or repair of the Goods without the Seller's approval, or
220.127.116.11. Have had any of their identification marks altered or removed or
18.104.22.168. As result of use or operation after any defect in them has become apparent.
9.2.4. The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
9.2.5. Subject as expressly provided in these conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Terms in Consumer Contracts Regulation 1994) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.2.6. Where the Goods are sold to a consumer (as defined above) the statutory rights of the Buyer are not affected by these conditions.
9.2.7. Where any valid claim is made in respect of the Goods that they are defective the Seller will make good by repair or at is option replace them free of charge or refund the price of those Goods but the Seller shall have no further liability to the buyer.
9.3. The express benefits of the warranty set out in sub-clause 9.2.7 above represent the entire responsibility and liability of the Seller in respect of all conditions and warranties express or implied whether statutory or otherwise and any obligations and liabilities whatsoever of the Seller relating to the Goods or advice or information supplied in relation thereto whether in contract, tort or otherwise except liability for death or personal injury arising out of negligence by the Seller is excluded.
9.4. Without prejudice to the foregoing conditions and terms of this contract any liability of the Seller to the Buyer for any loss or expense occasioned by the delivery of Goods which do not comply with the contract shall be limited to and not exceed a sum equal the contract price of that part of the Goods in respect of which the default has been made, whichever is the lower and the Seller shall not be liable to the Buyer for any indirect special consequential or economic loss or any loss of contracts good will revenue profits anticipated savings or other benefits or any loss arising out of claims against the Buyer by third parties.
FAILURE TO TAKE DELIVERY
10.1. Delivery shall commence and be notified upon despatch of the order subject to the Buyer's payment of monies due pursuant to the contract and the confirmation and supply of all necessary written consents and permits and approvals for the delivery of the said Goods.
10.1.1. Delivery time shall commence when the Seller's Goods have left the place of manufacture of readiness for shipment that has been notified to the Buyer in accordance with 10.1.
10.2. If the Buyer fails to take delivery in accordance with the provisions of this clause the following provisions shall apply:-
10.2.1. Delivery of any consignment shall be deemed to take place when the Goods comprised therein are despatched or collected from the Seller's works. In all cases where the Seller has not undertaken to arrange for carriage or transport of the Goods from its works the Buyer shall collect the Goods from the Seller's works within seven days of receipt of notice from the Seller that the Goods are ready for collection, and if the Buyer fails or neglects to take delivery at the Seller's works of the Goods within that time, the Seller may, as agent for the Buyer, but without surrendering its lien or right of resale as an unpaid Seller, arrange for the Goods to be stored at its works or elsewhere, and the Buyer will pay and indemnify the Seller against all storage charges, insurance and other costs, expenses and charges arising from the Buyer's failure or neglect.
10.3. The Buyer will bear the risk of any loss of or damage to the Goods after expiry of the time for their collection.
10.4. The Seller may immediately or any at time after expiry of the time for collection of the Goods treat the contract as repudiated by the Buyer's breach and make such arrangements as it thinks appropriate for the disposal of the Goods.
10.5. The Buyer will in any case be liable and compensate the Seller for any losses and costs incurred by the Seller as a result of the Buyer's breach or the termination of the contract.
10.6 Failure to accept delivery in whole or in part in accordance with the provisions of these Terms and Conditions shall entitle the Seller to rescind the contract and upon rescission any supplied Goods of the Seller shall be identified as the Sellers and shall at the Buyer's expense be stored separately from the Buyer's Goods and the Buyer shall refrain from selling or mixing or processing the Seller's Goods so identified.
10.5.1. Delay of delivery at the Buyer's request shall give rise to the Buyer's payment of storage charges at the Seller's discretion and failure to take delivery of the stored Goods after one month from such request shall give the Seller the right to dispose of the ordered Goods.
11.1. In this Clause "the Act" means the Sale of Goods Act 1979 as amended by the Sale and Supply of Goods Act 1994.
11.2. No liability for any claim for damage to the Goods or for non-conformity of any Goods with the Contract will be accepted unless the Seller is notified in writing by the Buyer within two working days of delivery.
11.3. No liability for any claim for non-delivery will be accepted unless the claim is notified in writing to the Seller within two working days of receipt of the corresponding invoice. Where such notification is not received or is received by the Seller too late to enable the Seller to claim against carriers or insurers within any applicable time limit the Seller will not be liable for any damage loss and expense whatsoever suffered by the Buyer.
11.4. The Buyer acknowledges that the period referred to in sub-clauses 11.2 and 11.3 above allows a reasonable opportunity to examine the Goods, and in the absence of any notice under those paragraphs (but without prejudice to any earlier acceptance or deemed acceptance) the Buyer shall be deemed to have accepted the Goods. This clause supersedes section 35(2) of the Act which shall not apply.
11.5. No liability for any claim will be accepted in case of Goods that differ in quantity or type from the particulars given on the delivery note unless the Seller is notified in writing by the Buyer within two working days of delivery and the onus is on the Buyer to prove shortage.
11.6. This Condition 11 is without prejudice to Section 15A of the Act.
11.7. The Buyer shall not have a right of partial rejection under section 35A of the Act but shall accept or reject all Goods.
RISK AND RETENTION OF TITLE
12.1. Risk of loss or damage to the Goods shall pass to the Buyer at the time of shipment or if delayed at delivery
12.1.1. The property in the Goods shall not pass until all sums due or owing to the Seller by the Buyer on account have been paid and until payment the following provisions of this Clause 12 shall apply.
12.2. The whole of the price shall not be treated as paid until any cheque draft bill of exchange or other instrument of payment given by the Buyer has been met on presentation or otherwise honoured in accordance with its terms. The Seller may sue for the whole of the price at any time after it has become payable.
12.3. The Buyer shall not
12.3.1. pledge the Goods or documents of title thereto or allow any lien to arise
12.3.2. process the Goods
12.3.3. deal with or dispose of the Goods or documents of title thereto or any interest therein
12.4. The Buyer shall hold the Goods as the Seller's fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller's property
12.4.1 If any of the Seller's Goods the interest of which is retained pursuant to this clause are processed combined comingled with any other goods or equipment then the Seller shall be entitled to joint ownership of its new goods or equipment in the proportion of what the invoiced value has to the new goods or equipment and if the Seller's ownership is adulterated through fitting combining or mixing then the goods or equipment so produced shall be deemed the Goods hereof subject to the Seller's retention of title and shall be marked and stored and insured as such
12.5. The Buyer may only dispose of the Goods under this retention of title provision in the course of ordinary business as long as he is not in default in the payment of any sum due to the Seller under the contractual terms hereof and provided only that any claim arising from its resale shall be assigned to the Seller. The Buyer herewith assigns to the Seller any claim he may have against third parties from resale of Goods under such retention of title.
12.5.1. The Buyer shall be entitled to collect debts arising from such resale until the Seller revokes that right which the Seller may do at any time and under no circumstances shall the Buyer be entitled to assign such debts to a third party. At the request of the Seller the Buyer shall inform their buyers about assignment of their debts to the Seller and provide the Seller with the information and documentation required for collection of the debts.
12.5.2. If the equipment under retention of title is pledged or if any other intervention occurs which jeopardises the Seller's rights or possibilities of disposition the Buyer shall inform the Seller immediately.
12.5.3. To the extent that claims accrue to the Buyer against insurers or any other third party as a result of damage to or reduction of value or loss or deterioration of the Goods under these retention of title provisions or for any other reason such claims and all ancillary rights are hereby assigned to the Seller in advance in addition to or in place of (as appropriate) the Seller's rights to receive the proceeds from their sale up to the same extent.
12.5.4. Should the Seller rescind the contract and demand restitution of the Goods under these retention of title provisions then the Buyer shall be obliged to return the supplied Goods and to compensate the Seller for its expenses and the reduction in value of the Goods. Should the Seller exercise its right to demand compensation the Buyer shall also be liable for the Seller's lost profit. The Buyer shall inform the Seller immediately if its rights are threatened by the actions of a third party.
12.6. If the Buyer defaults in the punctual payment of any sum owing to the Seller then the Seller shall be entitled to the immediate return of all Goods sold by the Seller to the Buyer (or the documents of title thereto) in which the property has not passed to the Buyer. Demand for or recovery of the Goods or documents by the Seller shall not in itself discharge the Buyers liability to pay the whole of the price and take delivery of the Goods or the Seller's right to sue for the whole price
12.7. The Buyer's right to possession of the Goods shall cease if the Buyer fails to make payment in accordance with these Terms and Conditions and the servants or agents of the Seller shall be entitled to enter upon the premises of the Buyer to repossess the Goods. The Buyer shall, if so required, store mark or designate all Goods referred to in sub-clauses 12.1 and 12.6 above so as to show clearly that they are and remain the property of the Seller and they shall be kept separately from other property.
12.8. If the Buyer shall default in the punctual payment of any sums due to the Seller whether under this contract or otherwise then the Seller shall be entitled forthwith to repossess any Goods which remain the property of the Seller and the Buyer shall, for that purpose at his own expense afford the Seller access to and the Seller shall be entitled to enter any premises of which the Buyer is in occupation or to which he has access and where any such Goods then may be and the Buyer hereby grants the Seller his agents and employees licence to enter such premises where the Goods are stored in order to repossess them or inspect them at any time.
DESCRIPTION OF GOODS
13.1. The descriptions and illustrations contained in the Seller's literature and price lists and other advertising material are intended merely to represent the Goods and services described and do not form part of the contract.
13.2. Performance figures provided by the Seller are not warranted nor guaranteed to be accurate and the Buyer assumes responsibility for the capacity performance and properties of the Goods supplied as being sufficient and suitable for the Buyer's purpose.
14.1. The Seller undertakes that all charges and encumbrances known to the Seller and not known to the Buyer have been disclosed to the Buyer before the contract is made and the Seller's liability in respect of any defects in the Goods supplied or for any loss injury unless caused by negligence (as defined in the Unfair Contract Terms Act 1977) or by faulty handling or by non compliance with operating and maintenance instructions or technical documentation or damage attributable thereto is limited to making good by replacement or repair such defects which, under proper use and storage installation and erection (and excluding fair wear and tear), appear therein and arise solely from faulty materials or workmanship and shall not apply if the Goods have been altered repaired or tampered with by the Buyer or a third party within the period of twelve months after the date such Goods have been delivered. This undertaking shall exclude and be accepted in place of any conditions or warranty as to the Goods or their fitness for any particular purpose whether implied by law or otherwise and any collateral warranty whenever given unless in writing signed by a duly authorised representative and to the exclusion of any other remedy whether arising by reason of breach of contract, negligence, breach of statutory duty, or otherwise.
14.2. Any claims for damages against the Seller shall be limited to losses attributable to damage suffered by the Goods and the Seller shall not be liable for any other claims whatsoever or for any financial loss of any description suffered by the Buyer. This exclusion of the Seller's liability shall extend to all contingent and consequential financial losses and the Seller shall not be liable for any breach of contractual duty regardless of the Seller's gross negligence or unlawful misconduct.
14.3. The Seller further undertakes that the Buyer's quiet possession will not be disturbed by the Seller or where the parties intend the Seller to transfer the title of a third party, that party or any person claiming through the Seller or that third party where they claim under a charge or encumbrance disclosed or known to the Buyer and disclosed to the Seller before the contract is made.
14.4. None of the foregoing warranties shall apply in the event that the Buyer is at any time in breach of contract nor shall the warranties apply if the Goods are exported (whether integrated into or with other Goods or not) at the time of any breach of any of the provisions hereof.
15.1. The Seller will not indemnify the Buyer against any claims for infringement of letters patent registered design trade mark or similar industrial property or proprietorial right arising out of the use or sale of any Goods by the Seller to the Buyer.
15.2. The Buyer hereby assigns or agrees to assign to the Seller any design right in the Goods or the designs for those Goods which arises as a result of the performance by the Seller of this contract.
15.3. The Buyer shall keep the same confidential and shall not use them for any other purpose than for which they were supplied.
16.1. If the Buyer intends to re-export the Goods then the Buyer shall obtain all necessary licences and . any re-exporting of Goods (whether individually or integrated within products or a system) in violation of these provisions or at a time when the Buyer is in breach of any of these Terms and Conditions is prohibited by the Seller.
16.2. The Buyer shall obtain independent information on the currently valid provisions and regulations of export irrespective of whether the Buyer states the final destination of the contractual products supplied and the Buyer shall where applicable be responsible for obtaining the necessary licence(s) from the competent foreign trade authorities before exporting such products and the Seller shall be under no obligation to provide any information.
16.3. Each delivery of Goods and or to third parties by the Buyer either with or without the Seller's knowledge shall be subject to a simultaneous transfer of the terms and conditions of the export licence. The Buyer shall be fully liable for any failure to comply with the lawful and proper regulations and provisions applying to such export and shall hold the Seller harmless from any losses costs claims or proceedings arising therefrom.
16.4. If the Seller does not carry out the delivery the Buyer hereby expressly waives any claim against the Seller.
17. Delivery terms used in international transactions shall be interpreted in accordance with Incoterms 2000.
UNFAIR CONTRACT TERMS ACT 1977
18. If the Unfair Contract Terms Act 1977 applies and the test of reasonableness is not satisfied in so far as any condition seeks to impose a restriction or limitation of liability to any specified sum or percentage then the restriction shall not be disregarded but a substituted clause allowing for a greater minimum specified sum or percentage of the price of the Goods as would be in the opinion of the court or arbitrator be fair and reasonable shall be given effect accordingly.
19. All disputes differences or questions at any time arising between the parties as to the construction of these Terms and Conditions or as to any matter or thing arising out of the contract or in any way connected therewith shall at the discretion of the Seller be referred to the arbitration of a single arbitrator acting as an expert who shall be agreed between the parties or who failing such agreement (within one month) be appointed by the President of the Law Society of England and Wales.
20.1. No waiver by the Seller of any breach of the contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any provision.
20.2. If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
21. The buyer and Seller do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Partners) Act 1999 by any person who is not a party to it.
22. This contract for the sale of Goods and all agreements made pursuant to it shall be governed by and interpreted in accordance with English law and the Buyer submits to the non exclusive jurisdiction of the High Court of Justice of England
Hans Guntner (UK) Ltd