Terms for the Sale of Goods
1 INTERPRETATION
1.1 In these Terms:
“Buyer” means the person who accepts the Seller’s offer for the sale of the Goods or whose order for the Goods is accepted by the Seller either verbally or in Writing;
“Contract” means the contract for the purchase and sale of the Goods;
“Goods” means the goods (including any installment of the goods or any part of them) which the Seller is to supply in accordance with these Terms;
“INCOTERMS” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
“Price List” means the Seller’s trade only price list from time to time which is available from the Seller’s registered office and is sent by the Seller to all vending dealers certified as such by the Seller.
“Seller” means DarenthMJS Limited (CRN No: 4005843) whose registered office is at Rotherside Road, Eckington, Sheffield, S21 4HL;
“Terms” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;
“Writing” and any similar expression, includes facsimile transmission and comparable means of communication including electronic mail.
1.2 Any reference in these Terms to any provision of a statute will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and will not affect their interpretation.
2 BASIS OF SALE
2.1 The Seller will sell and the Buyer will purchase the Goods in accordance with the Seller's quotation or offer for sale of the Goods (if accepted by the Buyer), or the Buyer's order either in writing or verbally (if accepted by the Seller), subject in either case to these Terms, which will govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Terms will be binding unless agreed in Writing between the authorised representatives of the Buyer and a director of the Seller.
2.3 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller will not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, acceptance of offer, invoice or other document or information issued by the Seller will be subject to correction without any liability on the part of the Seller.
3 ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer will be deemed to be accepted by the Seller unless and until confirmed verbally or in Writing by the Seller’s authorised representative.
3.2 The Buyer will be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The specification for the Goods will, unless specifically agreed to the contrary in writing by the Seller, be as set out in the Price List current at the date of acceptance of the order.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer will indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods whether or not such changes are required to conform with any applicable statutory or EU requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer will indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4 PRICE OF THE GOODS
4.1 The price of the Goods will be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Price List current at the date of delivery of the Goods. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated in the Seller's Written quotation or unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the goods otherwise than at the Seller's premises, the Buyer will be liable to pay the Seller's charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer will be additionally liable to pay to the Seller.
5 TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller may invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller will be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 Unless otherwise agreed in writing by the Seller, the Buyer will pay the price of the Goods without any other deduction within 30 days of the date of the Seller's invoice, and the Seller will be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price will be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller may:
5.3.1 cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate prescribed from time to time pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, until payment in full is made, and all other invoices rendered by the Seller to the Buyer will become immediately due and payable whether or not any credit terms agreed between the Seller and the Buyer in respect of those invoices has expired.
6 DELIVERY
6.1 Unless otherwise agreed, delivery of the Goods will be made by the Seller delivering the Goods to the Buyer’s premises or, if some other place for delivery is requested by the Buyer and is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller will not be liable for any delay in delivery of the Goods however caused. Time for delivery will not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 The Seller will be entitled to delay or suspend delivery of any Goods or any installment if the Buyer’s credit limit with the Seller has been exceeded or would be exceeded if such delivery took place, such delay or suspension to continue until the delivery of the Goods would not result in such credit limit being exceeded.
6.4 The Seller reserves the right to deliver the Goods in installments.
6.5 Where the Goods are to be delivered in installments, each delivery will constitute a separate Contract and failure by the Seller to deliver any one or more of the installments in accordance with these Terms or any claim by the Buyer in respect of any one or more installments will not entitle the Buyer to treat the Contract as a whole as repudiated.
6.6 If the Seller fails to deliver the goods (or any installment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, any liability of the Seller will be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.7 If the Buyer fails to take delivery of the goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.7.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.7.2 sell the Goods at the best price readily obtainable and charge the Buyer for any shortfall below the price under the Contract together with reasonable storage and selling expenses.
7 RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods will pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Seller’s premises at the time when the Goods leave the Seller’s premises; or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods will 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 whether or not payment is due for those goods.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer will hold the Goods as the Seller’s fiduciary agent and bailee, and will 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, but the Buyer may resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes to the Buyer, (and provided the Goods are still in existence and have not been resold), the Seller will be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the Goods.
7.5 The Buyer will not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller will (without limiting any other right or remedy of the Seller) forthwith become due and payable.
8 WARRANTIES AND LIABILITY
8.1 Subject to the following provisions and in particular clause 8.2.5, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in materials and workmanship for a period of 12 months from delivery.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller will be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2 the Seller will be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in Writing), misuse or alteration of the Goods (without the Seller’s approval) or failure to repair the Goods properly;
8.2.3 the Seller will 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;
8.2.4 The warranty in clause 8.1 does not apply to those parts of the Goods which are deemed by the Seller to be disposable or semi disposable (eg. drip trays) which parts are designed to be replaced regularly at low cost.
8.2.5 The warranty in clause 8.1 extends only to the supply by the Seller to the Buyer of replacement parts in respect of any defective parts, the responsibility for installation and fitting of such replacement parts being that of the Buyer and will only apply if the defective parts are returned to the Seller within 14 days of supply by the Seller of the replacement parts together with details of the defect alleged and the basis of the claim.
8.3 Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Terms.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the specification will (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer will not be entitled to reject the Goods and the Seller will have no liability for such defect or failure, and the Buyer will be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller will be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price) and the Seller will have no further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by the Seller’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller will not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express term of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract will not exceed the price of the Goods, except as expressly provided in these Terms.
8.8 The Seller will not be liable to the Buyer or be deemed to be 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. Without limiting the foregoing, the following will be regarded as causes beyond the Seller’s reasonable control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.8.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority.
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel, parts of machinery;
8.8.7 power failure or breakdown in machinery.
8.9 The Seller will have the right to cancel the Contract without any liability to the Buyer if any of the circumstances stated in clauses 8.8.1 to 8.8.7 above continue for a period of more than 3 months.
9 INDEMNITY
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, the Seller will indemnify the Buyer against all loss, damage, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, PROVIDED THAT:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection with the claim;
9.1.2 the Buyer will give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer will not pay or accept the claim, or compromise any such proceedings without the consent of the Seller (which will not be unreasonably withheld);
9.1.4 the Buyer will do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity will not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer will use its best endeavours to do);
9.1.5 the Seller will be entitled to the benefit of, and the Buyer will accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent will not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Buyer at common law, the Seller will be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
10 INSOLVENCY OF BUYER
10.1 This clause 10 applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause 10 applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract 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 will become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11 EXPORT TERMS
11.1 Unless the context other requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms will have the same meaning in these Terms, but if there is any conflict between the provisions of Incoterms and these Terms, the latter will prevail.
11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 will (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provisions of these Terms.
11.3 The Buyer will be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
11.4 In the case of Goods supplied for export from the United Kingdom, then unless otherwise agreed in Writing between the Buyer and the Seller, the Goods will be delivered by the Buyer collecting the Goods from the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection, but if the Seller agrees to deliver the Goods, the Seller’s obligation with regard to delivery of the Goods will be limited to delivering the Goods fob the air or sea port of shipment and the Seller will be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
11.5 Unless otherwise agreed in Writing, payment of all amounts due to the Seller will be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a clearing bank in United Kingdom acceptable to the Seller or, if the Seller has agreed in Writing on or before acceptance of the Buyer’s order to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 30 days after sight to the order of the Seller at such branch of Royal Bank of Scotland plc in England as may be specified in the bill of exchange.
11.6 The Buyer undertakes not to offer the Goods for resale in the United Kingdom or any other country other than the Buyer’s home country, or to sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the goods in any such country.
12 DATA PROTECTION ACT 1998
12.1 The Seller reserves the right to consult whomsoever it considers appropriate for the purpose of trade references and will record information in respect of such opinions which will be made available to other businesses for the continuing assessment of credit risk.
13 WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT REGULATIONS 2006 (THE “REGULATIONS”)
13.1 The Buyer will be responsible for the costs of collection, treatment, recovery and environmentally sound disposal of the Goods and Replaced Goods in accordance with the Regulations. “Replaced Goods” means any equipment that is intended to be replaced by the Goods.
13.2 The Buyer will not dispose of the Goods or the Replaced Goods other than in accordance with the Regulations.
13.3 The Buyer agrees to indemnify and keep indemnified the Seller from and against any and all loss damage or liability (whether criminal or civil) suffered and legal fees and costs incurred by the Seller resulting from a breach of this clause.
14 GENERAL
14.1 Any notice required or permitted to be given by either party to the other under these Terms will be in Writing addressed to that other party at its registered office 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.
14.2 No waiver by the Seller of any breach of the Contract by the Buyer will be considered as a waiver of any subsequent breach of the same or any other provision.
14.3 If any provision of these Terms is held by a court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question will not be affected.
14.4 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
14.5 The Contract will be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
15 WEBSITE TERMS OF USE, COPYRIGHT, ETC.
15.1 All content included in or made available through any of DarenthMJS’s websites, such as text, graphics, logos, button icons, images, audio clips, digital downloads and data compilations is the property of DarenthMJS Ltd or its content suppliers and is protected by United Kingdom and international copyright, authors' rights and database right laws. The compilation of all content included in or made available through any of DarenthMJS’s websites is the exclusive property of DarenthMJS Ltd and is protected by United Kingdom and international copyright and database right laws.
15.2 You may not extract and/or re-utilise parts of the content of any of DarenthMJS’s websites without our express written consent. In particular, you may not utilise any data mining, robots, or similar data gathering and extraction tools to extract (whether once or many times) for re-utilisation any parts of the content of any of DarenthMJS’s websites, without our express written consent.