Conditions of Sales (SABE Old)
SHOP AND BAKERY (EQUIPMENT) LIMITED T/a Bruton CONDITIONS OF SALE
1. Interpretation
1.1 Definitions "BUYER" means the person, firm or Company whose order for the Goods is accepted by the Seller. "SELLER" means Shop and Bakery (Equipment) Limited whose registered office is at Adelaide Street, Halifax, West Yorkshire Registration No 1126255 "GOODS" means all goods, materials, equipment and services which are to be supplied in accordance with these Conditions. "CONTRACT" means the Contract for the sale of the Goods.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 Each provision of these Conditions is to be construed as a separate Condition applying and surviving even if for any reason one or other of the said Conditions is held inapplicable or unreasonable in any circumstances.
2. Basis of Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer or any written order of the Buyer on the Seller's official order form which is accepted by the Seller, subject in either case to the exclusion of any other Terms and Conditions subject to which any such quotation is accepted or any such Order is made by the Buyer. All verbal or telephone orders must be confirmed in writing within 5 days.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representative of the Buyer and 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, and by entering into the Contract the Buyer acknowledges that it does not rely on and waives any claims for breach for any such representations which are not so confirmed.
2.4 The Goods are offered subject to the Seller being able to obtain the required materials or parts.
2.5 All specifications illustrations,images, catalogues, samples, advertising and similar matter are of a general descriptive nature only and do not form part of a specification of the description of the Goods and are intended to present a general impression of the Goods to which they refer and no price or other particulars contained therein shall form any part of the Contract.
3. Price
3.1 Subject as mentioned following the price quoted is valid for 30 days only or until earlier acceptance by the Buyer.
3.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increases in the cost to the Seller which is due to any fact beyond the control of the Seller (such as without limitation any foreign exchange fluctuation currency regulation operation of duties, significant increase in cost of labour, materials or other costs of manufacturer any change in delivery date, 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).
3.3 Except otherwise stated under the terms of any quotation and 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 may be liable to pay the Seller's charges for the transport, packaging and insurance.
3.4 The prices are exclusive of any applicable Value Added Tax which the Buyer shall be additionally liable to pay to the Seller.
3.5 Any discount given is offered on the understanding that the terms of payment are adhered to. The Seller reserves the right to cancel the discount on overdue accounts.
4. Terms of Payment
4.1 Payment is due without retention or set-off due as follows:- (a) 25% with order (b) 50% seven days prior to despatch and (c) 10% on delivery 15% not later than twenty working days from the date of the invoice whichever shall be the earlier and in the event that the Buyer wrongfully fails to take delivery of the Goods the Seller shall 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.
4.2 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 shall be entitled to:- (a) Cancel the Contract or suspend any further deliveries to the Buyer or (b) Appropriate any payment made by the Buyer to such of the goods as the Seller may think fit or (c) Charge to the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 10% per annum above Yorkshire Bank plc. base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purposes of calculating interest).
4.3 All deposits are non returnable
5. Delivery
5.1 Whilst the Seller shall make every effort to comply with any delivery date any dates quoted for delivery of the Goods are approximate only and the Seller shall be not liable for any delay in delivery of the Goods howsoever caused where dates have been given in good faith. The Goods may be delivered by the Seller in advance of the quoted delivery date by giving reasonable notice to the Buyer. Time for delivery shall not be of the essence.
5.2 Delivery of the Goods shall be made by the Seller delivering the Goods to the Buyer's address.
5.3 Carriage of the Goods and unloading and storage of the Goods after delivery will be at the Buyers costs and risk unless otherwise agreed in writing.
5.4 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 the reason caused beyond the Buyer's reasonable control or by reason of the Seller's fault) and without prejudice to any other right or remedy available to the Seller, the Seller may; (a) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance and storage) and including in addition the interest charges at the rate of 2% above Yorkshire Bank plc. base rate from time to time in force for any period exceeding fourteen days or, (b) charge the Buyer with a restocking fee based on 15% of the price of the Goods and sell the Goods at the best price readily obtainable and after deduction of all reasonable storage selling expenses, time, charges and interest as above account to the Buyer to the excess over the price under the Contract or charge the Buyer for shortfall below the price of the Contract.
5.5 It is the Buyer's duty to inspect the Goods on delivery to ensure that the Goods as delivered comply with the terms of the Contract and
5.6 The Buyer must notify the Seller and the Carrier in writing of any shortages or faults within 3 days of delivery and carrier notes endorsed accordingly. Non delivery within 10 days of invoice must be notified in writing.
5.7 The Goods shall be deemed to have been delivered in accordance with the terms of the Contract if no notification referred to in clause
5.6 has been received within 3 days of delivery.
6. Installation
6.1 If charges for time and expense of the Seller's representative in supervising the installation and/or adjusting the Goods are included in the quoted price, the quotation will specifically so state. In all other cases the actual labour of setting up and installing the scale and any additional equipment shall be performed by workmen and foremen furnished by the Buyer at the Buyer's own expense and unless specifically agreed in writing the Seller is not responsible for erection or commission of the goods supplied under the Order or Contract nor for any ancilliary services such as external and internal connecting wiring, cabling or pipe work or civil construction necessary for the operation of the Goods.
6.2 Where the Seller is required to supervise the installation of the Goods the Buyer will pay the charges of the Seller for such supervision on a time and expenses basis.
6.3 The Buyer will pay the Seller's expenses on a time basis where the installation is delayed by reason of the site not being prepared by the Buyer or labour not being available for any similar reason and it shall be the duty of the Buyer to ensure that all arrangements have been made to enable the installation of the Goods at the appropriate time.
6.4 Any erection included in a quotation is, unless otherwise stated, exclusive of any builders, masons, joiners, works, pipe work, electrical wiring, etc. and is conditional upon the Buyer providing a suitable site including scaffolding, foundations, cranes,and other similar equipment being ready and free for use when required, together with satisfactory means of access to the site with a clear passage for all parts.
6.5 Where it is necessary for the Seller to work above or in the vicinity or with the Buyer's workmen, the Buyer shall accept full responsibility for any damage or injury done to person or property except liability for death or personal injury arising from the Seller's negligence. All Goods weights plant and tools and materials delivered on the job or site shall be and remain the Seller's property until the Seller has fixed the same, and the Buyer shall be responsible for their safe custody until they have been fixed, or in the case of surplus material weights plant and tools until the Seller has removed the same. 6.6 Unless provided otherwise, the Buyer will provide adequate unskilled labouring assistance whilst the work is in progress and any labour so supplied shall be in the Buyer's employment.
6.7 The Seller will accept its legal obligation and any proven liability which it may have under the Health and Safety at Work Act 1974 or any modification or re-enactment thereof only to the extent of the operation of the Act and not to any greater extent as may be expressed or implied in any Conditions of the third party with whom it. may enter into Contract but the Buyer must be responsible for the Seller and his employees under the Health and Safety at Work Act 1974 whilst they are on the Buyer's premises. 7. Risk and Property
7.1 Risk of damage to or loss of Goods shall pass to the Buyer at the time of delivery or if the Buyer wrongfully fails to take delivery of Goods at the time when the Seller has tendered the delivery of the Goods.
7.2 For the avoidance of doubt, where the Goods are to be delivered otherwise than at the Seller's premises the Goods shall be at the Buyer's risk as from the moment of dispatch ex-work, or if earlier from notification to the Buyer that the Goods are ready for dispatch.
7.3 Notwithstanding delivery in passing risk in the Goods or any other provision in these Conditions 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.
7.4 Until such time as the property in the Goods passes to the Buyer the Buyer shall hold the Goods as the Seller's agent and bailee and shall keep the Goods separate from those of the Buyer and third parties, and properly stored insured and identified as the Seller's property. Until that time the Buyer shall be entitled to re-sell or use the Goods in the ordinary course of its business but shall account to the Seller as trustees of the Seller for the proceeds of sale or otherwise for the Goods whether tangible or intangible including insurance proceeds, and should keep all proceeds separate from any monies or property of the Buyer and third parties and in the case of tangible proceeds properly stored protected and insured.
7.5 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 should 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 the Seller will be entitled to enter upon any premises of the Buyer which the Goods are stored (for which purpose the Buyer hereby irrevocably authorises the Seller) and repossess the Goods.
7.6 The Buyer shall 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.
8. Warranties
8.1.1 Nothing in this clauses 8 nor in Clauses 9, 10 or 12 following is intended to deprive the Buyer who is dealing as consumer as defined by Section 12 Unfair Contract Terms Act 1977 of his rights under Sections 13, 14 and 15 of the Sale of Goods Act 1979.
8.1.2 Subject to sub-clause 1 above and the Conditions set out below the Seller warrants in relation to Goods newly manufactured by the Seller that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of six months from the date
8.1.3 The above warranty is given by the Seller subject to the following Conditions:-
(a) The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer, in which case the Buyer shall indemnify the Seller against any liability of the Seller.
(b) The Seller shall be under no liability in respect of any defects arising from fair wear and tear, wilful damage, failure to follow the Seller's instructions, mis-use or alteration, or repair of the Goods without the Seller's approval.
(c) The Seller shall be under no liability in relation to second-hand and ex-use goods where no warranties are given.
(d) The Seller shall be under no liability under the above warranty or any warranty, condition or guarantee if the total price of the Goods has not been paid by the due date for payment.
(e) The above warranty does not extend to parts, materials or equipment not manufactured by the Seller in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer or other supplier to the Seller.
(f) The above warranty does not include the costs of removing and fitting any parts.
(g) The Buyer has given full and complete information regarding the proposed use of the Goods and the environment in which the Goods are to be used including but without prejudice to the generality of the foregoing any special area of use, of food hygiene requirements or corrosive atmosphere requiring galvanisation or any other necessity for special protection having regard to the Buyer's use.
8.1.4 (i) The liability of the Seller shall in event not exceed the purchase price of the Goods and performance of any one of the options below shall constitute compliance with the Seller's obligations hereunder.
(ii) If the Goods do not conform to the above warranty the Seller will at its option:-
(a) Replace the Goods not conforming to the warranty,
(b) take such steps as the Seller deems necessary to bring the Good~ into a state where they are free from such defects, or
(c) take back the Goods found not to conform with the warranty and refund the appropriate part of the purchase price. PROVIDED:
(a) The Purchaser gives written notice to the Seller of the alleged defect in the Goods in writing such notice to be received by the Seller within 5 days of the time when the Purchaser is aware of the defect and in any event within six months of the delivery of the Goods. In absence of evidence of the date of delivery the date of the Seller's invoice should be held as the date of delivery.
(b) The Purchaser to arrange for the return of the alleged defected Goods to the Seller's works carriage prepaid for inspection to take place there.
(c) No further use of the Goods being made after the time which the Purchaser discovers or ought to have discovered that they are defective.
(d) These Conditions apply to parts as well as the whole of the Goods. Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation or implied warranty, condition or other term or any duty common law or under the expressed terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs and expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller its employees or agents or otherwise) which arise out of or in connection with the supply or installation of the Goods or their use or resale by the Buyer except as expressly provided in these Conditions. While we take all precautions which are usual and reasonable in connection with the repair of machines or parts and the supply of new parts for use in existing machine, order for repair work or new parts are accepted only on the express condition that we shall be under no liability whatsoever under any warranty or condition (express or implied) in respect thereof save that we will replace any such parts as may prove to be defective in material or workmanship within six months of being supplied by us on the same being promptly returned carriage paid to our works at Halifax. If on inspection it is found that repairs cannot be reasonably effected we shall advise you as soon as practicable, but no liability shall attach to us for any loss whatsoever incurred thereby. If a partial repair is effected and a hidden fault is revealed or a breakdown occurs in the parts or portion not repaired, we shall advise you therefore but no liability for such fault or breakdown shall attach to us. Care will be taken by us in dismantling and assembling but should any other part be damaged thereby the price of any further work necessitated by such damage shall be paid by you. Terms for repair work 7 days nett from the date of invoice. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by any reason of any delay in performing 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 prejudice to the generality of the foregoing the following shall be regarded as causes beyond the reasonable control of the Seller.
(a) Act of God, explosion, floor, tempest, fire or accident.
(b) War or threat of war sabotaging, civil
(c) Acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the parts of any governmental, parliamentary or local authority,
(d) Import and export regulations or embargoes,
(e) Strikes, lockouts or other industrial actions or trade disputes, whether involving employees of the Seller or the third party,
(f) Difficulty in obtaining raw material, labour, fuel, parts or machinery,
(g) Power failure or breakdown in machinery. In such circumstances the Seller shall be entitled at its option to give notice to declaring the Seller is unable to complete the work whereupon the work shall be deemed to be frustrated from the date of such notified.
8.5 The Seller's liability under or arising out of any Order or Contracts shall be limited solely to the making good of defects under the terms of this Condition, and except as provided for in these Conditions all warranties, conditions or other terms supplied by statute or common law are excluded to the fullest extent permitted by law.
8.6 Where we are supplying you as a consumer (i.e. individuals buying for themselves rather than for a business) you have the right to cancel within seven days of this contract , or seven days after receipt of the goods (whichever is the longer). If you do cancel your order, you will have your payment returned once you have returned the goods to us and we have inspected the good for completenes and any for any damage to the returned goods
9. Health and Safety at Work Whilst all care has been taken to assure the Goods comply with all relevant legislation it is the Buyer~s responsibility to comply with the relevant act. As manufacturers and suppliers of goods in compliance with section 6 of the above act, certain precautions should be taken with our products. We take care to ensure that as far as is reasonably practicable our products are safe and without risk to health when properly used. Nevertheless appropriate health and safety precautions must be observed and in particular you should have special regard to the following points. Training, maintenance, guarding, installation, sitting, operating, setting, cleaning, testing and information (from literature such as brochures, pamphlets, operating manuals, data sheets, etc). Machines and Goods sold in ex-use or second hand condition, the Buyer shall bring the Goods up to the required standard as set out in the relevant health and safety technical guidance notes before use or re-sale. This condition is an essential part of the contract. Where machines are repaired, refurbished, transported, erected or installed all liability or responsibility for the machine or goods will remain with you. You will indemnify and keep us indemnified against any liability. You are advised to consult your factory inspector regarding future amendments. The Buyer undertakes to take all steps necessary to ensure that the Goods when properly used will be safe and without risk to health. The Buyer shall indemnify us against any liability whether civil or criminal which we may be under in respect of any illness or injury caused by the Goods or their use.
10. Indemnity
10.1 If any claim is made against the Buyer that the Goods infringe or their use or resale infringes a patent copyright design, trade mark or any other intellectual property rights of any other person, the Seller shall shall indemnify the Buyer against all loss, damage, costs, expenses awarded against or incurred by the Buyer provided that:- (a) The Seller is given full control of any proceedings or negotiations in connection with any such claim, (b) The Buyer shall give the Seller all reasonable assistance for the purposes of such proceedings, (c) Except pursuant to a final award the Buyer shall not pay or accept any such claim or compromise any such proceedings without the consent of the Seller. (d) The Seller shall be entitled to the benefit of and the Buyer shall accordingly account to the Seller for all damages and costs if any, awarded in favour of the Buyer to be paid by any other party in respect of any such claim, (e) Without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
11 Insolvency
11.1 This clause applies if:- (a) The Buyer makes any voluntary arrangement with its creditors or becomes subject to an application for an Administration Order or becomes bankrupt or goes into liquidation other than for the purposes of a solvent amalgamation or re-construction or, (b) An encumbrancer takes possession or an Administrator or a Receiver is appointed of all or any of the property or assets of the Buyer, or (c) If the Buyer ceases or threatens to cease to carry on business, or (d) The Seller reasonably apprehends any of the events mentioned above is about to occur.
11.2 If this clause applies without prejudice to any other remedy of the Seller the Seller may suspend any further deliveries under the Contract without liability to the Buyer and if ti^le Goods have been delivered but not paid for the price shall become immediately due and pay~ble notwithstanding the previous agreement or arrangements to the contrary.
12. General
12.1 Any notice required or permitted to be given by either party to the other shall be in writing addressed to that other party at its registered office or place of business or such other address as may at the relevant time have been notified pursuant ~o this provision to the party giving the notice.
12.2 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 other provision.
12.3 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 provisions in question shall not be affected thereby.
12.4 The Contract shall be governed by the Laws of England.
18 RETENTION OF TITLE
18.1.1 Notwithstanding delivery and the passing of risk legal and equitable ownership of the goods which reserves the right to dispose of the goods shall remain with us until you have paid in full all monies owed by you to us under this contract together with all monies owed by you to us under any other contract made on or before the date of this contract (such payment is referred to in the clause as "payment in full").
18.1.2 Until such time as payment in full has been made by you to us you shall hold the goods solely as bailee for us and you shall store such goods on your premises at no cost to us separately from your own goods or those of any other person and in a manner which makes them clearly identifiable as belonging to us.
18.1.3 Payment in full shall be become due immediately upon the commencement of any act or proceeding in which your solvency is involved.
18.1.4 If payment in full is overdue in whole or in part, we may without prejudice to our other rights and remedies, recover or resell the goods or any part thereof and may enter upon your premises by our servants or agents for that purpose.
18.1.5 If, before payment in full is made, the goods are mixed with other goods belonging to you or any other person, or are incorporated with such other goods, the product thereof shall become and/or shall be deemed to be our sole and exclusive property and all our rights hereunder in the goods shall extend to such product.
