1.1 The definitions and rules of interpretation in this condition 1 shall apply in these Conditions.
1.2 “The Seller” shall means MILLITEC FOOD SYSTEMS LTD, company number 05390759, the registered office of which is 20 Victoria Road, Draycott, Derby, DE72 3PS.
1.3 “The Buyer”, means the person, firm or company who agrees to buy the goods from The Seller.
1.4 “The Quotation” means a written quotation for goods supplied to the Buyer from the Seller.
1.5 “The Purchase Order” means the Buyer’s confirmation of acceptance of the quotation
1.6 “The Contract” means any contract between the Buyer and the Seller for the purchase and sale of the Goods, of which these conditions form a part of
1.7 “The Conditions” means the terms and conditions of sale set out here under and endorsed on the quotation and the Seller’s order confirmation and invoices and any special terms and conditions written agreed in writing by the Seller with the Buyer.
1.8 “The Order Confirmation” means the form of acceptance delivered by the Seller to the Buyer on receipt of the Purchase Order containing details of the Seller, Buyer, goods to be supplied, price, delivery and payment.
1.9 “The delivery date” means an estimate of the date of delivery.
1.10 “The Goods” means articles which the Buyer agrees to buy from the Seller specified in the order confirmation.
1.11 “The Price” means the price for the goods including or excluding carriage, packaging, insurance and V.A.T. specified in the order confirmation.
1.12 “The Invoice” means the invoice rendered by the Seller to the Buyer for the goods setting out details of the goods and the price.
1.13 “Writing” includes email, fax and any other comparable means of communication.
1.14 “Subsidiaries” shall have the meaning given in section 736 companies Act 1985 (and “Subsidiary” shall be constructed accordingly.)
2.1 These conditions shall apply to all contracts for the sale of goods by the Seller to the Buyer and are deemed to have been accepted upon placement by the Buyer of a purchase order or payment of deposit to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may purport to imply under any purchase order, confirmation of order or any other similar document
For the avoidance of doubt, nothing in this agreement shall confer on any third party any benefit or the right to enforce any term of this agreement.
2.2 On request the Seller will submit to the Buyer a quotation and the Seller will hold the price quoted for a period of 7 days from the date thereof. The quotation is merely an invitation for an order subject to these conditions and no agreement will result until the Buyer has confirmed such order.
2.3 If the Buyer wishes to proceed with the purchase of the goods the Buyer shall confirm its purchase order together with the required delivery date within the said period of 7 days
2.4 The Contract between the two parties is concluded on the issue by the Seller of an order confirmation.
2.5 Any variations to these two conditions including any special terms and conditions agreed between the parties shall be inapplicable unless agreed in writing by the director of the Seller.
2.6 The Seller will execute the orders to the Buyer’s requirements and does not substitute one product for another unless requested by the Buyer or unless the product has been superseded by the latest version. To the extent where the Buyer’s order cannot be fulfilled completely from stock, the unfulfilled balance will, either be put on back order to be fulfilled when the Seller next has available stock or cancelled. The Supplier reserves the right to make any changes in the specification of the Goods which are required to confirm with any applicable safety or other statutory requirements or, where the Goods a\re to be supplied to the Supplier’s specification, which do not materially affect their quality or performance.
2.7 The Seller reserves the right to decline trade with any Buyer. In addition, the Seller may decline to accept any order, whether or not payment has been received, by giving notice of non-acceptance to the customer within a reasonable period of receipt by the Seller of the order.
2.8 The Buyer acknowledges that it is responsible for ensuring that the goods and services they order are fit for the purposes for which they intend to use them. Any advice or recommendation given by the Supplier 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 Supplier is followed or acted upon entirely at the Buyer’s own risk and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
2.9 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 Supplier shall be subject to the correction without any liability on the part of the Supplier.
3. The price and payment
3.1 Payment may be made by variable direct debit or BACS/CHAPS transfer.
3.2 The price shall be the price plus Value Added Tax which shall be due at the rate ruling on the date of the seller’s invoice.
3.3 When purchasing machines, The Buyer will pay to the seller a non-refundable up-front payment of 80% of the total amount plus Value Added Tax before delivery of an order and payment of the balance of the price and Value Added Tax shall be due 30 days from the date of delivery. Delivery will not take place until the necessary cleared funds have been received unless otherwise agreed in writing by the Director of the Seller. If the Buyer does not conclude full payment within 30 days of the agreed payment date, the Seller at its option may consider the contract repudiated and will be entitled to enter onto the premises where goods are held and recover any goods for which full payment has not been made.
3.4 No payment shall be deemed to have been received until the Supplier has received cleared funds.
3.5 Interest (“interest”) on the price shall accrue from the date when payment becomes due from day to day until the payment at a rate of 4% above the base lending rate of Barclays Bank Plc from time to time in force and shall accrue at such rate after as well as before any judgement.
3.6 The Seller reserves the right to change prices without giving the Buyer prior notice at any time to reflect any increase in the cost to the Supplier which is due to any factor beyond the reasonable control of the Supplier.
4. The goods
4.1 The quantity and description of the goods shall be set out in the Order Confirmation.
4.2 The Seller reserves the right, without prior notice, to discontinue any product or to make design changes as part of its continuous programme of product improvement.
5. Warranties and Liabilities
5.1 The Seller warrants that the goods will at the time of delivery correspond as far as possible to the description given by the Seller in its order confirmation and will be of satisfactory quality and should the goods prove to be defective within a period of 6 months (or other such terms as stated in the Sellers quotations or confirmations) from the date of delivery then providing such defect have been notified to the seller in writing and have not been caused by the Buyer’s misuse or mistreatment of the goods or failure by the Buyer to maintain them in accordance with the Seller’s recommendations or resulting from wear and tear and subject to the defect falling within the terms of the Seller’s general statement of warranty, the Seller will put right at its expense the defect in the goods providing that all other conditions or terms relating to fitness for purpose satisfactory quality or condition of the goods whether implied by statute or common law or otherwise are hereby excluded and the responsibility to put right the defect in the goods within the said period of 6 months (or other such term as stated in the Seller’s quotations or confirmations) and the Seller shall be under no further obligation to extend this guarantee in respect of any replacement parts or goods supplied either during or following the expiration of the term of warranty.
5.2 Where any claim in respect of breach of warranty given is notified to the Supplier in accordance with these Conditions, the Buyer shall give the Supplier reasonable opportunity to examine the Goods and the Supplier shall be entitled (at its option) to repair or replace the Goods (or the defective part in question ) free of charge; or at the Supplier’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price); and if the Supplier complies with the foregoing it shall have no further liability to the Buyer in respect of the Goods. Any Goods replaced shall belong to the Supplier.
5.3 The Buyer must return or dispose of the products or make them available to the Seller for collection. The Buyer must contact the Seller to notify the Seller of the return of any goods prior to returning any goods. Returned goods must be accompanied by an advice note stating the original invoice number in respect of the goods and the nature of any claimed defect.
5.4 If the Seller supplies goods which are second-hand or reconditioned then all terms and conditions of warranty expressed or implied by statute trade custom or usage as to the quality description and condition of the goods are hereby expressly excluded and the Buyer must satisfy itself and is deemed to satisfy itself by placing an order that the goods are of satisfactory quality and fit for purpose.
5.5 Save for personal injury loss or death the Seller accepts no responsibility for any loss of any nature whatsoever including but not limited to any consequential loss economic loss including loss of profit arising from any defect in the goods or breach of condition, term, warranty or representation.
5.6 The Supplier 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 Supplier’s obligations in relation to the Goods if the delay or failure was due to causes beyond the Supplier’s reasonable control. Without prejudice to the generality of the foregoing and without limitation, the following shall be regarded as causes beyond the Supplier’s reasonable control: act of Gods, explosion, flood tempest, fire or accident; war or threat of war, terrorism, sabotage, insurrection, civil disturbance or requisition; acts restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Supplier or of a third party); and difficulties in obtaining raw materials, labour, fuel, parts or machinery and power failure or breakdown in machinery.
5.7 Any representations are a guide as to performance and are not binding on the Seller and the Seller will not be liable if the goods do not perform in accordance with the guidelines supplied in good faith by the Seller.
5.8 Where the Goods are sold under a consumer transaction (as defined by the Sale of Goods Act 1979) nothing in these conditions shall be construed as affecting the statutory rights of the Buyer.
6. Delivery of Goods
6.1 Delivery of the goods shall be made to the address of the Buyer stated on the order confirmation on the delivery date or as soon as practical thereafter.
6.2 Times and dates for deliveries as quoted by the Seller are approximate only and the Seller shall not be liable for the consequences of any delay in delivery. Time for delivery shall not be of the essence. The Seller shall not be liable for any losses, consequential or otherwise or for costs (including legal costs), expenses, liabilities, injuries, loss of profits, business or economic loss, depletion of goodwill, damage, claims, demands, proceedings, judgements or otherwise arising from a delay in deliver nor shall nay delay entitle the Buyer to terminate or rescind the Contract for such Goods unless such delay exceeds 60 days.
6.3 The cost of carriage packaging and insurance of the goods in transit shall be as specified in the order confirmation
6.4 The Buyer shall provide at the place of delivery, and at its expense, adequate and appropriate equipment and manual labour for loading (or as appropriate unloading) the Goods.
6.5 The quantity of the any consignment of Goods as recorded by the Supplier upon despatch from the Supplier’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.
6.6 The Supplier shall not be liable for any non-delivery of Goods (even if caused by the Supplier’s negligence) unless the Buyer gives written notice to the Supplier of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
7. Storage and deferred delivery
7.1 In the event that the Buyer does not for any reason whatsoever accept delivery of the goods within 7 days after the goods have become available for delivery and the Buyer has been notified, the Seller shall be entitled to store the goods for the Buyer and to make a charge for storage of 1.5% per month of the price (plus interest if applicable) of the goods until delivery takes place provided that if the Buyer will not accept delivery within 30 days of the Seller being in a position to deliver the goods, the Seller may at its discretion rescind the Contract to sell the goods and the Buyer shall pay to the Seller all and any losses suffered by the Seller together with interest, the said storage charge and expenses incurred by the seller in connection with the resale.
8. Acceptance of Goods
8.1 The Buyer has a period of 5 days following the date of delivery to give notice to the Seller of any defects, shortfalls, any delivery of goods not in accordance with the order or any non-delivery.
8.2 If the Buyer fails to give any such notice, the goods shall be conclusively presumed to be in all respects in accordance with the order and free from apparent defects and the Buyer shall be deemed to have accepted the goods accordingly.
8.3 If the Supplier delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by the Buyer, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods as per the Contract rate.
8.4 After acceptance, the Buyer shall not be entitled to reject the goods if they are not in accordance with the Contract.
9. Title and Risk
9.1 Title in the goods shall pass to the Buyer not on delivery but on payment of the price together with the Value Added Tax and all and any other monies due to the seller under the terms of these conditions.
9.2 The risk shall pass on delivery of the goods to the buyer or on passage of title whichever is sooner.
9.3 Until property in the goods passes to the Buyer in accordance with clause 9.1 the Buyer shall hold the goods and each of them on a fiduciary basis for the Seller. The Buyer shall store the goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property. The Buyer will not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods, nor be entitled to resell (at full market value only and any such sale shall be a sale of the Supplier’s property on the Buyer’s own behalf and the Buyer hall deal as principle when making such a sale) or use the Goods in the ordinary course of its business and not attach the goods to any land or premises so as to cause them to become a permanent or immoveable fixture on such a land or premises
9.4 The Seller shall be entitled to recover the price (plus Value Added Tax) notwithstanding that property in any of the goods has not passed from the Seller.
9.5 Until such time as property of the goods passes from the Seller, the Buyer shall upon request delivery up such goods to the Seller. If the buyer fails to do so the Seller may enter upon the premises owned occupied or controlled by the Buyer where the goods are situated and repossess the goods.
9.6 The Buyer shall not pledge or in any way charge by the way of security for any indebtedness of the goods which are the property of the Seller. Without prejudice to the other rights of the Seller until the date that property in the goods passes from the Seller and shall forthwith become due and payable.
9.7 The Buyer shall insure and keep insured the goods to the full price against all risks to the reasonable satisfaction of the Seller until the date that property in the goods passes from the Seller and whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the seller if he Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
10. Remedies of the Buyer
10.1 The Buyer is entitled to reject the goods on the grounds they do not correspond with the description given by the Seller in the order confirmation or are not of satisfactory quality but only if the Buyer does so in writing and addressed to a Director of the Seller at its registered office address at 20 Victoria Road, Derbyshire, DE72 3PS within 5 days of delivery and thereafter all rights to reject the goods are lost.
10.2 Where the Buyer rejects the goods the Buyer shall have no further rights whatsoever in respect of the supply to the Buyer of such goods or the failure of the Seller to supply goods with conform to the contract of sale.
10.3 Where the Buyer accepts or has been deemed to have accepted the goods then the Seller shall have no liability whatsoever to the Buyer in respect of those goods other than under clause 5.1
10.4 The Seller shall not be liable to the Buyer for late delivery or short delivery of goods.
11. Cancellations and Returns
11.1 The Buyer has the right to cancel the goods ordered up until the date of dispatch.
11.2 Goods that have already been dispatched to the Buyer cannot be cancelled.
11.3 The Buyer must contact the Seller prior to returning any goods and obtain the consent of the Seller.
11.4 Returns must be made within 30 days of the delivery date. Goods must be returned to the Seller in their original condition and packaging and in a condition which will enable them to be immediately fit for resale. Goods must be returned to the Seller adequately packaged and any despatch freight prepaid.
11.5 Where the Buyer returns goods to the Seller not in accordance with the above conditions, the Seller reserves the right to refuse delivery and return the goods to the Buyer at the Buyer’s expense or apply a handling charge which relates to the actual cost of reprocessing.
11.6 This returns policy excludes software and specially manufactured products.
12. Force Majeure
The seller shall be entitled to rescind the Contract (without liability) and to return any deposit paid by the Buyer in the event that the Sellers performance of the contract is hindered or prevented by strikes or other trade disputes, riots, war (declared or undeclared), acts of civil insurrection, fire, flood, accident or other cause beyond the control of the Seller preventing it from performing the Contract or the Seller’s inability to procure services, materials or articles required for the performance of the contract (except enhanced prices).
13.1 The Buyer shall fully indemnify and keep fully indemnified the Supplier from and against any and all claims, actions, costs (including legal costs) damages, expenses, charges, losses (including losses of profit) and demands arising in respect of any claim that the Supplier has infringed any patent, copyright, rights in design, trade mark or other intellectual property rights of any other person, as a result of the Supplier carrying out any instructions given by the Buyer (including, but not limited to, manufacturing the Goods to the Buyer’s specification, drawing or plan).
13.2 The Buyer shall full indemnify and keep fully indemnified, the Supplier in respect of any liability claims, actions, costs (including legal costs), damages, expenses, losses and charges arising or incurred by the supplier as a result of any damage or injury whatsoever to any person or to any property caused by the negligence of the Buyer or its employees, agents or subcontractors.
13.3 The Buyer shall fully indemnify and keep fully indemnified the Supplier against any and all losses ( including losses of profit), costs (including legal costs), claims, expenses, damages or other injury or the like which the Supplier incurs as a result of the Buyer’s breach of any of these Conditions or any Contract.
14. Insolvency of the Customer
14.1 This Condition applies if the Buyer: (a) makes any voluntary arrangement with its creditors or becomes subject to an administration order; (b) (being an individual or firm) becomes, or takes steps towards becoming, bankrupt; (c) (being a company) goes into, or takes steps towards going into, liquidation (otherwise than for the purposes of amalgamation or reconstruction); or (d) otherwise takes the benefit of any statutory provision (in any jurisdiction) for the time being in force for the relief of insolvent debts; or an encumbrance takes possession of any of the property or assets of the Buyer or a receiver, administrator or administrative receiver is appointed over them; or the Buyer ceases, or threatens to cease, to carry on business; or the Buyer encumbers or in any way charges any of the Goods; or the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer (in any jurisdiction ) and notifies the Customer accordingly.
14.2 If any of the events in Condition 14.1 occur then, without prejudice to any other rights or remedy available to the Supplier, the Supplier shall: (a) be entitled to cancel the Contract or suspended any further deliveries under the Contract without any liability to the Buyer; and (b) if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement to the contrary; and (c) the Buyer’s right to possess the Goods under Condition 7.3 shall cease.
15. Proper law of contract
The contract is subject to the Law of England and Wales.
16.1 Each of the terms and conditions herein are entirely separate and independent terms and conditions despite the fact that they may be contained in the same phrase, and if any term or condition or part of a condition or term is found to be unenforceable the remaining terms and conditions will remain valid and enforceable.
16.2 The Supplier may assign any Contract or any part of it to any person, firm or company
16.3 Failure of delay by the Supplier in enforcing or partially enforcing any provisions or any Contract shall not be constructed as a waiver of any of its rights under the Contract
16.4 No waiver by the Supplier of any breach of, any default under the Contract by the Buyer shall be considered a waiver of any subsequent breach of the same or any other provision.
16.5 Each right or remedy of the supplier under any Contract is without prejudice to any other right or remedy of the Supplier
16.6 If any provisions of these Conditions are 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.
16.7 The Contract shall be governed by the laws of England and the parties hereby agree to submit any dispute to the non-exclusive jurisdiction of the English courts.
16.8 Nothing in these conditions shall limit the right of any party to it to take proceedings or actions against the other in any other court or competent jurisdiction in the domicile that the other, nor shall the taking of them in one or more jurisdiction preclude the taking of them in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.