Terms And Conditions
The Buyer's attention is in particular drawn to the provisions of condition 11.4. 1. INTERPRETATION 1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions ("Conditions").
Buyer: the Person, firm or company who purchases Goods and/or Services from the Company.
Company: Loynds Machinery International Limited (Company number 01722928) whose registered office is at JD Mercer & Co, 9 Chapel Street, Poulton Le Fylde, Lancashire, FY6 7BQ.
Contract: any contract between the Company and the Buyer for the sale and purchase of Goods and/or supply of Services by the Company, incorporating these Conditions, and the Quotation (if any).
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Goods: the goods described in the Quotation, or confirmation of order, agreed to be supplied to the Buyer by the Company (including any part or parts of them).
Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Price: means the price of Goods and/or Services being either the price stated in the Company's Quotation, or if no such price is quoted, the price listed in the Company's published price list current at the date of the Company's Quotation.
Quotation: the Company's written offer to the Buyer setting out the description and quantity of the Goods and/or in the case of Services the date of commencement, period of supply, and scope (as applicable) together with (if applicable) the Price, any other terms as specified by the Company.
Services: the services (if any) detailed in the Quotation or confirmation of order, agreed to be supplied to the Buyer by the Company.
VAT: means value added tax chargeable under English law for the time being and any similar additional tax.
1.2 A reference to a "Person" includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 1.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it. 1.4 Words in the singular include the plural and in the plural include the singular, and a reference to one gender includes a reference to the other gender. 1.5 Condition headings do not affect the interpretation of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 and/or condition 9, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company's sales and the provisions of Services by the Company, and any variation to these Conditions and any representations about Goods and/or Services shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 The Buyer's acceptance of a Quotation for the purchase and supply of Goods and/or Services from the Company, constitutes an offer by the Buyer to purchase Goods and/or Services on these Conditions. No offer placed by the Buyer shall be accepted by the Company other than: (a) by a written acknowledgement issued by the Company; or (b) (if earlier) by the Company starting to provide the Goods and/or Services at which point a contract for the purchase and/or supply of Goods and/or Services on these Conditions will be established
2.5 The Buyer shall ensure that the terms of its order are complete and accurate, and for providing the Company with any necessary information (within a reasonable time) to enable the Company to perform its obligations under the Contract. It is agreed that the Company shall, subject to the provisions of condition 11, not be liable for the consequences of any inaccurate or incomplete information provided by the Buyer. If the Buyer provides insufficient and/or incorrect information which inhibits or delays the Company in performing the Contract, then the Company reserves the right to increase the Price to cover any increase in costs which takes place due to the Buyer not providing sufficient and/or correct information to the Company.
2.6 Any Quotation is valid, (unless specified in the Quotation otherwise) for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.7 In the event that there is any inconsistency between the provisions of a Quotation and these Conditions, then the provisions of the Quotation shall apply and shall prevail.
3.1 The quantity and description of the Goods and/or (if applicable) the Services to be provided by the Company shall be as set out in the Company's Quotation.
3.2 The Goods are purchased in the condition in which they are at the date of Quotation and the Buyer has been extended the right to inspect and examine the Goods prior to accepting the Quotation.
3.3 The Buyer is deemed to have full knowledge of the state and condition of the Goods whether or not such right for the inspection and examination as afforded to the Buyer in condition 3.2 has been exercised.
3.4 Unless otherwise expressly stated by the Company, the Goods are not purchased brand new or supplied with manufacturer provided documentation regarding the instruction or maintenance of the Goods.
3.5 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3.6 The Company reserves the right, from time to time and without notice to make any changes to the specification of Goods or any change to the Services, in order to comply with any applicable statutory requirements (including EU requirements) and/or recommended practice and to make changes to the specifications of Goods and/or change the Services, provided that such changes do not materially affect the quality or performance of the Goods or affect the nature, scope of, or the Price of the Services.
4.1 Unless otherwise agreed delivery of Goods shall take place at the Buyer's premises referred to in the Company's Quotation.
4.2 Unless specifically stated to the contrary in the Company's Quotation, any dates specified by the Company for delivery of the Goods are intended to be an estimate only, and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.3 If for any reason the Buyer fails to accept delivery of any Goods when they are ready for delivery, or the Company is unable to deliver Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations, then: (a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company's negligence); and (b) the Goods shall be deemed to have been delivered; and (c) notwithstanding any other provisions of these Conditions, the Company shall be entitled to invoice the Buyer for the Goods which shall have been deemed to be delivered; and (d) the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.4 The Company may deliver the Goods by separate installments. Each separate installment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.5 Each installment shall be a separate Contract and no cancellation or termination of any one Contract relating to an installment shall entitle the Buyer to repudiate or cancel any other Contract or installment.
4.6 Where Goods are supplied for export from the United Kingdom, the provisions of this condition shall (subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstanding any other provision of these Conditions. (a) The Buyer shall 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. (b) Unless otherwise agreed in writing between the Buyer and the Company the Goods shall be delivered 'ExWorks'. (c) The Buyer shall be solely responsible for the costs of any pre-shipment inspection mandated by the authorities of the country of export.
5.1 The quantity of any consignment of Goods as recorded by the Company on dispatch from the Company's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods unless the Buyer gives written notice to the Company of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Price against any invoice raised for such Goods.
6.1 Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of: (a) the Goods; and (b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall: (a) hold the Goods on a fiduciary basis as the Company's bailee; and (b) store such Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company's property; and (c) not remove, destroy, deface or obscure any identifying mark on or relating to the Goods; and (d) maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full Price against all risks to the reasonable satisfaction of the Company; and (e) obtain an endorsement of the Company's interest in the Goods on its insurance policy, subject to the insurer being willing to make the endorsement; and (f) on request, the Buyer shall allow the Company to inspect the Goods and produce to the Company the policy of insurance duly noted.
6.4 The Buyer's right to possession of Goods shall terminate immediately if: (a) the Buyer suffers any of the matters set out in condition 12.1 (c) to (h) (inclusive); or (b) the Buyer encumbers or in any way charges any Goods.
6.5 The Company shall be entitled to recover payment for Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.6 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
6.7 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.8 On termination of the Contract, howsoever caused, the Company's rights contained in this condition 6 shall remain in effect.
7.1 Unless otherwise agreed by the Company in writing, the price for Goods and/or Services shall be the Price.
7.2 The Price for Goods and (if applicable), the Services, shall be exclusive of any VAT, for the avoidance of doubt the Buyer shall pay the VAT in addition to the Price when it is due to pay for the Goods and (if applicable) the Services.
7.3 The Price shall not include the cost of carriage, or insurance (if any), which shall be sole responsibility of the Buyer
8.1 Subject to any specific terms regarding payment contained in the Quotation, payment of the Price for Goods and/or Services is due in full within 28 days of the earlier occurrence of either:- (a) delivery of Goods to the Buyer (save that in the event of deemed delivery the provisions of condition 4.3 (c) shall apply) and/or performance of the Service; or (b) the issue of an invoice by the Company.
8.2 Time for payment shall be of the essence of the Contract.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 Notwithstanding the provisions of condition 8.1 all payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract by the due date then the Company reserve the right (without prejudice to any other rights of the Company) to charge interest at either: (a) a rate of 4% above the National Westminster Bank plc base rate from time to time on any payment not received by the due date until such sum is received irrespective of any other action taken in order to obtain satisfactory settlement of sums due; or (b) at the rate determined under the Late Payment of Commercial Debts (Interest) Act 1998 on any payment not received by the due date until such sum is received irrespective of any other action taken in order to obtain satisfactory settlement of sums due
8.7 If the Buyer request a delay or deferment in the delivery of Goods and/or the performance of the Services, and the Company, in its sole discretion, consents to delay or differ delivery or performance, it is agreed that the Company shall be entitled to invoice the Buyer for Goods which have been produced and/or that are ready for delivery, together with the value of the Company's work in progress on the Contract (including any reasonable profit margin attributable thereto), and/or any Services provided at that time, on payment terms of 28 days from the date of invoice, notwithstanding that the Contract may not have been completed.
8.8 The Buyer agrees and acknowledges that where the Company requests a deposit and/or payment on account, that the Company shall not be required or obliged to under taken any work until the deposit and/or payments on account have been made in cleared funds to the Company.
8.9 If the Buyer fails to pay the Price by the due date, (including but not limited to any deposit or payments on account) then without prejudice to any of the Company's rights the Company shall have the right,(but is not obliged) without prejudice to any other rights of the Company, to:- (a) suspend production of the Goods; and/or (b) suspend and/or cancel deliveries of any Goods yet to be delivered under the Contract; and/or (c) suspend and/or cancel deliveries of any goods yet to be delivered under any other contract between the parties; and/or (d) suspend and/or cancel the provisions of any Services being supplied to the Buyer; and/or (e) terminate the Contract.
9.1 If the Buyer requests a change to the specification or scope of Goods and/or the Services, the Company shall, within a reasonable time, provide a written estimate to the Buyer of: (a) the likely time required to implement the change; (b) any variations to the Company's charges, included but not limited to the Price, arising from the change; and (c) any other impact of the change on the terms of the Contract.
9.2 The Company may charge the Buyer for its time spent in assessing a request for a change to the specification or scope of Goods and/or Services supplied to the Buyer.
10.1 The Company warrants that (subject to the other provisions of these Conditions) on delivery Goods shall: (a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; (b) be reasonably fit for purpose.
10.2 The Company warrants that (subject to the other provisions of these Conditions) it shall use reasonable endeavours to provide Services in accordance in all material respects with the details provided in the Company's Quotation.
10.3 The Company shall not be liable for a breach of any of the warranties in condition 10.1 unless: (a) the Buyer gives written notice of the defect to the Company, within a reasonable period of time of delivery and when the Buyer discovers, or ought to have reasonably discovered, the defect; and (b) (at the cost of the Company) the Goods are either returned to a location specified by the Company for examination by the Company's engineers or (at the option of the Company) a Company engineer is permitted to attend on the location of the Goods to carry out an examination.
10.4 The Company shall not be liable for a breach of any of the warranties in condition 10.1 if: (a) the Buyer makes any further use of such Goods after giving such notice; or (b) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (c) the Buyer alters or modifies the Goods without the written consent of the Company.
10.5 Subject to condition 10.2 and condition 10.4, if any Goods do not conform with any of the warranties in condition 10.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Price.
10.6 In the event an examination is carried out under clause 10.3 (b) and following examination it is the opinion of the Company that it is not liable for a breach of warranty, then all costs incurred by the Company in carrying out the examination including but not limited to carriage, travel, and labour, shall be recoverable from the Buyer.
11. LIMITATION OF LIABILITY
11.1 Subject to condition 5 and condition 10, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: (a) any breach of these Conditions (including the Contract); (b) any use made or resale by the Buyer of any Goods, or of any product incorporating any Goods; and (c) any use made by the Customer of Services or any part of them; and (d) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions excludes or limits the liability of the Company: (a) for death or personal injury caused by the Company's negligence; or (b) under section 2(3), Consumer Protection Act 1987; or (c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or (d) for fraud or fraudulent misrepresentation.
11.4 Subject to condition 11.2 and condition 11.3: (a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price; and (b) the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if: (a) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or has a bankruptcy order made against him or (being a partnership) has any partner to whom any of the foregoing apply; or (c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors or enters into liquidation; or (d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party; (e) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or (f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or (g) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 12.1(b) to condition 12.1(f) (inclusive);
12.2 Without prejudice to any other rights or remedies which the Company may have, the Company may terminate the Contract without liability to the Buyer immediately on giving notice to the Buyer if: (a) the Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
12.3 On termination of the Contract for any reason:- (a) the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and (if applicable) interest and, in respect of Goods and/or Services which have either been produced or provided (including any part thereof) but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt; (b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12.4 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect; condition 6, condition 11, condition 12, condition 13, and condition 17
13. INTELLECTUAL PROPERTY
The Buyer warrants and undertakes to the Company that the Buyer has the legal right to use the information, and/or Documents (including any Intellectual Property Rights) provided or supplied by the Buyer to the Company, and agrees to indemnify the Company and keep the Company indemnified against any claims, costs, awards, damages, interest, penalties, expenses, and losses (which includes but is not limited to both direct and indirect loss suffered by the Company including loss of profit) arising our of whether directly or indirectly the Buyer's breach of any Intellectual Property Rights in any information and/or Documents provided or supplied to the Company.
14.1 The Company shall have the right to sub-contract any or all of the Contract to such other Person as the Company, reasonably considers able to perform the Contract or any part thereof as may be the case.
14.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
15. FORCE MAJEURE
The Company reserves the right to defer the date of delivery of Goods or to suspend the provisions of the Services (or any part thereof) or to cancel the Contract or reduce the volume of Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 30 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
16.1 Each right or remedy of a party under the Contract is without prejudice to any other right or remedy of that party whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by a party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by any other Person and the Contracts (Rights of Third Parties) Act 1999 shall not apply.
16.6 The Contract (which includes for the avoidance of doubt the Company's Quotation) constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
16.7 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
16.8 The parties irrevocably agree to submit to the exclusive jurisdiction of the English courts.
16.9 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
17.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax: (a) (in case of communications to the Company) to its premises at Loynds Machinery International Limited, Units 6 & 7 Aldon Road, Poulton-le-Fylde, Lancashire, FY6 8JL or such changed address as shall be notified to the Buyer by the Company; or (b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
17.2 Communications shall be deemed to have been received: (a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or (b) if delivered by hand, on the day of delivery; or (c) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
17.3 Communications addressed to the Company shall be marked for the attention of John Loynds.