ENCORE MACHINERY LIMITED (The Seller)
Standard Terms and Conditions of Sale
1.The conditions that follow shall form the basis of all contract(s) for the supply of printing machinery, equipment and other goods (“the Goods”) between the Seller and the person, firm or company buying the Goods (“the Purchaser”). All orders, in whatever terms, are accepted by the Seller subject to the following conditions. No modifications of these conditions by the Seller its servants or agents or otherwise howsoever shall be effective unless confirmed in writing by a director of the Seller. Previous dealings between the Seller and the customer shall not modify, vary or replace these terms in any way whatsoever. The signing by the Seller of any of the customer’s documentation shall not imply any modification of or have the effect of modifying these conditions. Acceptance of Goods from the Seller shall be conclusive evidence before any Court or Arbitrator that these conditions apply.
2. No contract between the Seller and the Buyer shall come into existence until an order by the customer is accepted by the earliest of a) the seller’s written acceptance b) delivery of the goods c) the Sellers invoice.
3. Unless otherwise stated by the Seller in writing, prices quoted for complete machines are inclusive of charges for delivery to premises in Great Britain, starting up and basic tuition of one operator, but are exclusive of all other delivery, installation and other ancillary expenses and of VAT and other sales taxes when these are properly chargeable. Replacement parts, attachments and supplies are quoted on an ex works basis. Packing, delivery and services are chargeable extra as also are VAT and other sales taxes when these are properly chargeable.
4. Goods will be invoiced at the prices ruling at the date of the contract (see condition 2) However, in the event of any increase in the ruling prices between the date of the contract and the date of delivery, whether by reasons of any change in costs of materials, labour or transport or the effects of strikes, lock-outs, difficulties with workmen or delays or changes in insurance rates, custom duties, import or export licences or acts of government or for any reason whatsoever, the Seller reserves the right to invoice the goods at the increased prices ruling at the date of delivery.
5. Prices of imported goods quoted with an exchange rate clause will also be subject to adjustment for any changes in the exchange rate before the date of invoice.
6. In the event of any modification to the quantity, capacity, style or description of the Goods or any services specified in the Seller’s quotation / order acknowledgement, being undertaken at the verbal or written request of the Purchaser (whether before or after a contract has been made) the Seller reserves the right to adjust the price for such modifications.
7. Unless otherwise agreed by the Seller in writing, the price payable by the Purchaser shall be paid net in cash or cleared funds as to 20% on the date of placing of the order and the balance on the date of delivery. In the event of cancellation or termination of the Contract between the date of placing the order and the date of delivery for whatever reason, the Seller shall not be obliged to refund the deposit paid on placing the order. If the Purchaser fails to make any payment on the date due, then the Seller reserves the right to charge interest at 4% per annum above the base rate of NatWest Bank for the time being in force on all amounts which remain unpaid from the due date (both before and after the judgement) until the date of full payment thereof, and to withhold delivery of any goods or performance of any services due under this or any other contract with the Purchaser while any amounts whatsoever due from the Purchaser to the Seller remain outstanding.
8. Every effort will be made to ensure delivery in the time stated. However, any period or date for delivery stated is an estimate only and the Seller shall not be liable for failure to deliver within the period or by that date. Where a delivery period is stated this period will date from the date of the Seller’s written acceptance of the Purchaser’s order. The Goods shall be accepted by the Purchaser when delivered. In the event of wrongful non-acceptance the Seller may charge the Purchaser all transport, storage and other costs and expenses whatsoever incurred by the Seller as a result of such wrongful non-acceptance. The Seller shall be entitled to arrange storage for the Goods if the Purchaser in any way delays or hinders delivery. The Purchaser will re-imburse the Seller to the extent of all charges of, and all costs and expenses incurred by the Seller in connection with such storage.
9. Risk in the Goods shall pass to the Purchaser upon delivery or if the Purchaser wrongfully refuses to accept the Goods, on the date when it should have accepted delivery.
10. Once risk has passed to the Purchaser, the Purchaser shall insure the Goods and keep them insured to their full replacement value against all usual risk including fire, accident, malicious damage, theft and war risk. Unless payment in full for the Goods has been made by the Purchaser to the Seller, then, if the Goods shall be lost or be so damaged with the result that the Purchaser’s claim against the insurers is treated on a total loss basis, the Purchaser shall hold all such insurance monies on trust for the Seller and shall direct its insurers to pay all monies payable under the appropriate policy of insurances to the Seller, and the Seller will give credit for such monies against the Purchaser’s liability under the contract.
11.1 The Seller shall remain the sole and absolute owner of the Goods until it has received payment in full of all sums which are due from the Purchaser to the Seller in respect of any goods supplied under this or any other contract now or in the future subsisting between them.
11.2 The Purchaser agrees that until payment in full has been made for the Goods, the Purchaser shall act in a fiduciary capacity as bailee of the Goods and shall keep the Goods properly stored on its premises, protected and insured and readily identifiable as the Goods of the Seller.
11.3 Notwithstanding the provision of clause 11.2 above and subject to the provision of clause 11.4 below, the Purchaser shall be entitled to sell the Seller’s Goods in the ordinary course if its business. If the Purchaser sells any of the Goods as aforesaid it shall sell them in a fiduciary capacity as agent and bailee of the Seller and shall hold the proceeds of the sale thereof (“the Proceeds of Sale”) on trust for the Seller.
11.4 The Purchaser’s right to retain possession of the Goods and to sell the same shall automatically terminate and the Purchaser shall deliver up the Goods to the Seller upon the happening of any of the following events (whichever shall be the earlier): (a) If the Purchaser shall fail to make payment for the Goods by the due date or shall otherwise be in breach of the terms of this agreement and the Seller shall have served notice in writing terminating the Purchaser’s right of possession and sale; (b) If the Purchaser, being a company or sole trader or partnership as the case may be, shall do anything which would entitle any person as against the Purchaser and / or its assets to :-
(1) Commence proceedings for recovery of debt or damages.
(2) Issue execution (in all its forms) of distress.
(3) Cause a statutory demand or bankruptcy petition or winding up petition to be served.
(4) Present a petition for the appointment of an administrator.
(5) Allow the appointment of a receiver.
(6) Call a meeting for the purpose of the appointment of a liquidator.
11.5 The Purchaser grants to the Seller an irrevocable licence to enter upon any premises where the Goods are stored or where they may reasonably be thought to be stored to the purpose of:-
(a) Inspecting the same at any time and
(b) upon termination of the right to possess the Goods, repossessing the same.
11.6 The Seller shall be entitled to maintain an action for the price of any goods notwithstanding that title in them has not passed to the Purchaser.
12. Unless otherwise agreed in writing, the contract shall be a supply contract and the Purchaser alone shall be responsible for correct installation and operation of Goods supplied by the Seller. The Purchaser shall provide lifting gear and manual labour at the installation site and shall undertake electrical wiring from mains supply to the Goods. Provision by the Seller of the services of a specialist acting in an advisory capacity during installation and / or start-up of the Goods in no way implies that the Seller accepts responsibility for its correct installation and operation or for any oral advice given by the specialist or by any other employee of the Seller, and the Seller shall not be liable for any loss or damage arising directly or indirectly therefrom, or attributable thereto, unless expressly agreed in writing by the Seller. It is the Purchaser’s and not the Seller’s responsibility to ensure that the Goods are fit for the Purchaser’s purpose and in particular that they are compatible with other machines and equipment which it is intended that they be used.
13. The Purchaser must comply with any user instructions and safety recommendations issued by the Seller, and must install, commission and maintain the Goods, in accordance with good engineering practice, and the Seller shall not be liable to the Purchaser for any loss suffered as a result of the Purchaser’s breach of the terms of this clause.
14. All new machines supplied are covered by a 12 months mechanical and 6 months electrical guarantee from date of delivery where operated on a one shift a day basis and by a 6 months mechanical and 3 months electrical guarantee from date of delivery where operated on a two shift a day basis. For such guarantee to be valid the Purchaser must notify the Seller in writing immediately any defect (whether mechanical or electrical) becomes apparent. The Seller undertakes that it will, at its own option and at its own expense, and by way of full discharge of its guarantee obligations hereunder, either repair, or supply a replacement for, the defective equipment, or portion thereof. If title to the defective machines are at the time of such replacement, vested in the Purchaser, then title shall thereupon vest in the Seller. The guarantee given in this Clause 14 shall be operative and enforceable only if the machines are operated strictly in accordance with the Seller’s instructions and does not cover ordinary wear and tear, or any defect arising from accident, deliberate act, misuse, neglect or from a breach in the terms of Clause 13, or in respect of any defect arising through damage incurred while being transported after delivery or if the machines have been altered or modified or otherwise tampered with in any way other than by the Seller, or respect of any other clause whatsoever which lies beyond the Sellers control. Subject to this guarantee all conditions, warranties and representations as to description, quality, merchantability or fitness for any particular purpose (whether or not made known to the seller), whether express or implied (by statute or otherwise) are hereby expressly excluded. This condition shall not exclude any liability in respect of any statement made fraudulently by either party prior to the date of the contract.
15. Notwithstanding anything stated in the quotation, order or acceptance, the Seller’s maximum liability under the contract shall be limited to a sum equivalent to the original price of the Goods supplied and for installation or commissioning work (if any) undertaken by the Seller. All liabilities in respect of claims (whether arising in contract or negligence or otherwise) for losses of a consequential or contingent nature, howsoever caused (including (but without limitation) losses resulting from delays to, or loss of, production) are hereby excluded. Provided that nothing in this Clause shall preclude the Seller from being liable for death or personal injury attributable to the negligence or default of the Seller or its agents.
16. If the Seller is unable to perform any obligation under this contract by reason of an event outside its direct control then the Seller shall (a) be excluded from liability to perform the contract and (b) may by notice in writing to the Purchaser rescind the contract. The Seller shall not be liable to the Purchaser for any breach of this contract or for any consequential loss whatsoever suffered as a result of such failure to perform.
17.1 If the Purchaser defaults in, or commits a breach of, any of its obligations to the Seller (whether under the contract or otherwise) or if distress or execution is levied upon the Purchaser’s property or assets, or if the Purchaser makes, or offers to make, any arrangement or composition with creditors, or commits any act of bankruptcy, or if any petition or receiving order in bankruptcy is presented or made against the Purchaser, or if (where the Purchaser is a limited company) any resolution or petition to wind up such company’s business (other than for the purpose of amalgamation and reconstruction approve in writing by the Seller) is passed or presented, or receiver of such company’s undertaking, property or assets or any part thereof is appointed then and in such event the Seller shall have the right forthwith to terminate the Contract upon written notice of such termination being posted to the Purchaser’s last known address, but this shall be without prejudice to any claim or right the Seller may otherwise make or exercise. Upon termination no compensation shall be payable by the Seller to the Purchaser and the Seller shall cease to be under any obligation to deliver any Goods to the Purchaser.
17.2 Immediately upon the termination of this contract (however occasioned) or upon the occurrence of any event listed in Clause 17.1 above, the Purchaser shall forthwith (unless otherwise agreed in writing by the Seller) cease to sell or agree to sell any Goods to which title is still vested in the Seller and payment in full for all Goods supplied to the Purchaser under any contract between the Purchaser and the Seller shall forthwith be due and payable to the Seller.
18.1 The Purchaser acknowledges that copyright and all intellectual property rights whatsoever in the goods and all documentation, drawings, reproducibles and manuals whatsoever supplied by the Seller to the Purchaser are and will remain vested in the Seller.
18.2 No relaxation, forbearance, delay or indulgence by the Seller in enforcing any of these Terms and Conditions shall prejudice the Seller’s right to insist upon the strict compliance therewith, nor shall the same constitute a waiver or estoppel.
18.3 Any provision hereof which is void or unenforceable in any applicable jurisdiction shall, to the extent of such invalidity or unenforceability, be deemed severable, and shall not affect any other provision hereof.
18.4 Statements or representations of whatever kind and however made, including but not confined to weights, measurements, performance, descriptions, details of designs, prices, charges, and whether contained in catalogues, advertisements, brochures, photographs, descriptive materials, verbal representations, or otherwise are approximate only and shall not be binding upon the Seller
18.5 All contracts subject to these Terms and Conditions are governed by English Law, to the non-exclusive jurisdiction of whose courts the Purchaser agrees to submit.
18.6 These Terms and Conditions do not create any right enforceable by a person not a party to them.