JOHN TODD REFRIGERATION LTD TERMS AND CONDITIONS
In these Conditions:
1.1 “BUYER” means the person who accepts a quotation of the Seller for the sale of the Goods and/or provision of the Service or whose order for the Goods and/or provision of the Service is accepted by the Seller.
1.2 “CONDITIONS” means the standard terms and conditions 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.
1.3 “CONTRACT” means the contract for the purchase and sale of the Goods and/or the provision of the Service.
1.4 “DELIVERY” means delivery of the Goods and/or Service (whether or not delivery has been completed).
1.5 “DOCUMENT” means, in addition to a document in writing, any software, program, map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any CD ROM, disc, tape or other device embodying any other data.
1.6 “GOODS” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions.
1.7 “INPUT MATERIAL” means any Documents or other materials, and any data or other information provided by the Buyer relating to the Service.
1.8 “ORDER CONFIRMATION” means any document which specifies the Goods and Services to be provided by the Seller to the Buyer.
1.9 “OUTPUT MATERIAL” means any Documents or other materials, and any data or other information provided by the Seller relating to the Service.
1.10 “PRICE” means the Seller’s quoted price for the Goods and/or Standard Charges for the provision of the Service or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. For capital installations the Seller will require payment of 30% of the Price on an order being accepted, 30% on the materials being delivered to the Buyer, and 30% on the completion of the order. The balance due will be payable within 30 days of completion.
1.11 “STANDARD CHARGES” means the charges or hourly rates quoted by the Seller to the Buyer relating to the Service as amended and updated from time to time.
1.12 “SELLER” means John Todd Refrigeration Limited, 4, Harrier Court, Clyst Honiton, Exeter EX5 2DR Company No. 04668997.
1.13 “SERVICE” means the service(s) to be provided by the Seller for the Buyer and referred to in the Order Confirmation.
1.14 “WRITING” means facsimile transmission and comparable means of communication but not email.
1.15 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.16 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Supply of the Service
2.1 The Seller shall provide the Service to the Buyer subject to these Conditions. Any changes or additions to the Service or these Conditions must be agreed in writing by the Seller and the Buyer.
2.2 The Buyer shall at its own expense supply the Seller with all necessary Documents or other materials, and all necessary data or other information relating to the Service, within sufficient time to enable the Seller to provide the Service in accordance with the Order Confirmation. The Buyer shall ensure the accuracy of all Input Material.
2.3 The Buyer shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Seller shall have no liability for any such loss or damage, however caused. All Output Material shall be at the sole risk of the Buyer from the time of delivery to or to the order of the Buyer.
2.4 The Service shall be provided in accordance with the Order Confirmation and otherwise in accordance with the Seller’s current brochure or other published literature relating to the Service from time to time, subject to these Conditions. The Service shall not be amended in any way without the written consent of the Seller.
2.5 Further details about the Service, and advice or recommendations about its provision or utilisation, which are not given in the Seller’s literature, may be made available on written request.
2.6 The Seller may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Service without any liability to the Buyer.
2.7 The Seller may at any time without notifying the Buyer make any changes to the Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Service.
3.1 The Buyer shall be entitled to terminate the Contract at any time by giving not less than three months’ written notice to the Seller.
3.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
4 Basis of the sale
4.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions 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. No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
4.2 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.
4.3 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyers own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
4.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
5 Orders and specifications
Any order placed by the Buyer shall be deemed to be an invitation to treat. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative.
5.1 The Buyer shall 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.
5.2 The quantity, quality 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 Buyers order (if accepted by the Seller).
5.3 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
5.4 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 shall 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.
6 The Price
6.1 The Price is valid for 30 days only or until earlier acceptance by the Buyer, after which time the Seller may alter it without giving notice to the Buyer.
6.2 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 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.
6.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, 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 shall be liable to pay the Seller’s charges for transport, packaging and insurance if required.
6.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
7 Terms of payment
7.1.1 Subject to any special terms agreed, the Buyer shall pay the Price and any additional sums which are agreed between the Seller and the Buyer or which, in the Seller’s sole discretion, are required as a result of the Buyer’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Buyer.
7.2 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods and/or the Service on or at any time after Delivery, 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 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.
7.3 The Buyer shall pay the Price (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days of the date of the Seller’s invoice, and the Seller shall 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 or the Service completed. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
7.4 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:
7.4.1 cancel the contract or suspend any further Deliveries to the Buyer;;
7.4.2 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) or Service as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
7.4.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 8% per cent per annum above Bank of England 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 purpose of calculating interest) together with a compensatory charge of £70.
8.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place. Delivery of the Service shall be made by the Seller providing the Service and shall be deemed to take place on the first day the Service is provided whether or not such delivery is completed.
8.2 Any dates quoted for Delivery are approximate only and the Seller shall not be liable for any delay in delivery however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. Delivery may take place in advance of the quoted Delivery date upon giving reasonable notice to the Buyer.
8.3 Where the Goods or Service are to be delivered in instalments, each Delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
8.4 If the Seller fails to Deliver (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyers fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods and/or Service to replace those not delivered over the Price.
8.5 If the Buyer fails to take Delivery or fails to give the Seller adequate instructions at the time stated for Delivery (otherwise than by reason of any cause beyond the Buyers 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:
8.5.1 store the Goods until actual Delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
8.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract;
8.5.3 require payment of the Price for delivery of the Service notwithstanding Delivery not having taken place (subject to any deduction by reason of the Seller mitigating its losses) and the parties agree that the Price represents a genuine pre-estimate of the losses the Seller is likely to suffer in the event that the Buyer fails to take Delivery of the Service.
9 Risk and property
9.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
9.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
9.1.2 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.
9.2 Notwithstanding Delivery and the passing of risk in the Goods, or any other provision of 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.
9.3 Until such time as the property in the Goods passes to the Buyer, 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, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business.
9.4 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 shall 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. By this contract the Seller grants the Seller licence to enter onto any premises to repossess the goods.
9.5 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, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
10 Warranties: Services
10.1 The Seller warrants to the Buyer that the Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Specification and at the intervals and the times referred to in the Order Confirmation.
10.2 The Seller shall have no liability to the Buyer for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Buyer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Buyer.
10.3 Except in respect of death or personal injury caused by the Seller’s negligence, or as expressly provided in these Conditions, the Seller shall 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 terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the provision of the Service by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the amount of the Seller’s charges for the provision of the Service, except as expressly provided in these Conditions.
11 Warranties: Goods
11.1 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 defects in material and workmanship for a period of 12 months from the date of their initial use or 12 months from Delivery, whichever is the first to expire.
11.2 Where the Seller supplies any goods supplied by a third party, the Seller does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Buyer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Seller.
11.3 The above warranty is given by the Seller subject to the following conditions:
11.3.1 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;
11.3.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
11.3.3 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;
11.3.4 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 to the Seller.
11.4 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 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.
11.5 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 Conditions.
11.6 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 specification shall (whether or not Delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of Delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If Delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
11.7 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 Conditions, the Seller shall 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), but the Seller shall have no further liability to the Buyer. In the event that the Goods or a part of them is replaced under this clause any warranty given under this Contract will extend to the Goods or part of them replaced only.
12 Exclusion of liability
12.1 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 (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), 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 or their use or resale by the Buyer or the supply of the Service, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods or Service, except as expressly provided in these Conditions.
12.2 The Seller shall 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 or the Service, 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 Seller’s reasonable control:
12.2.1 Act of God, explosion, flood, tempest, fire or accident;
12.2.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
12.2.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
12.2.4 import or export regulations or embargoes;
12.2.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
12.2.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
12.2.7 power failure or breakdown in machinery.
13 Insolvency of buyer
13.1 This clause applies if:
13.1.1 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
13.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
13.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
13.1.4 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.
13.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods or Service have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.3 Personal guarantee by the directors
13.4 It is agreed that this Contract is binding both on the Buyer and (if the Buyer is a limited company) upon the directors of the Buyer that are signatories to this Contract in their personal capacities.
13.5 In the event that any of the signatories to this Contract resign as Directors of the Buyer they shall nevertheless remain bound by the terms of this Contract unless and until they are released from their obligations by the Seller in Writing.
13.6 It is agreed that the Buyer will inform the Seller in writing forthwith of any changes in the Directors of the Buyer.
13.7 It is agreed that the Seller may as a condition of it being bound by the terms of this Contract require any officer of the Buyer to join in with this Contract and to assume personal liability for the obligations of the Buyer.
14.1 Any notice required or permitted to be given by either party to the other under these Conditions shall 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 the notice.
14.2 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.
14.3 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 provision in question shall not be affected.
14.4 The laws of England shall govern the Contract, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
14.5 The parties agree that they do not intend any term of the Contract shall be enforceable by any other party not privy to it by virtue of the Contracts (Rights of Third Parties) Act 1999.
JOHN TODD REFRIGERATION LTD TERMS AND CONDITIONS