TERMS AND CONDITIONS OF SALE
- "The Supplier" means Bendigo Mitchell Limited;
- "The Customer" means the person, firm or company with whom the Contract is made;
- "The Quotation" means the written quotation made by the Supplier to the Customer or to others on the Customer's behalf;
- "The Order" means the written or oral order made by the Customer;
- "The confirmation of order" means the written confirmation given by the Supplier to the Customer whether before or after the delivery of the equipment;
- "The Equipment" means the equipment agreed to be supplied to the Customer under the Contract;
- "Manufacturer" means the manufacturer of any parts of the equipment or any ancillary equipment which is not manufactured by the Supplier;
2. FORMATION OF CONTRACT
- All quotations and confirmations of order made by the Supplier shall be deemed to include these Conditions except insofar as they are inconsistent with any Special Terms or Conditions contained in the quotation or confirmation of order (as the case may be).
- The quotation does not form an offer capable of acceptance by the Customer but merely an invitation to the Customer to make an offer in accordance with its terms. The contract shall not come into effect until the Supplier has despatched its confirmation of order to the Customer.
- Any terms or conditions contained in the Customer's order which are inconsistent with these Conditions shall not form part of any contract between the Supplier and the Customer unless accepted by the Supplier in writing in the confirmation of order.
- Cancellation of the contract by the Customer will be a breach of contract entitling the Supplier to compensation. No variation of the Contract shall become binding unless confirmed in writing by the parties.
- Where the quotation contains documents and particulars produced by the Supplier including (without prejudice to the generality of the foregoing) illustrations, designs, drawings and weight and technical specifications and ratings such documents and particulars shall be deemed to be approximate only unless a statement to the effect that they are final and definitive is expressly made.
- If subsequent to any contract between the Supplier and the Customer into which these Conditions are incorporated any contract for the supply of goods either similar to the equipment s made between the same parties whether the same is by letter, telegram, telex, orally or otherwise without express reference to any conditions, such contract shall be deemed to be subject to these Conditions.
3. DESIGNS AND DRAWINGS
- Where the Supplier prepares designs or drawings to meet the Customer's requirements it shall be the Customer's responsibility to ensure the correct functioning of the equipment.
- Where the equipment is rebuilt, refurbished or equipped to designs or drawings submitted by the Customer the Customer shall indemnify the Supplier against any liability arising directly or indirectly from any inadequacy of design including (without prejudice to the generality of the foregoing) any liability costs and expenses arising from the negligence of the Supplier or the breach by the Supplier of any condition warranty or undertaking contained in this or any other contract or implied by law or the breach by the Supplier of any statutory duty.
- The Supplier shall be entitled to cease manufacture of any equipment which is or which appears to be an infringement of any patents, registered designs or copyright or other industrial property right of any person, firm or company other than the parties to the Contract. The Customer shall pay the Supplier the value of the work done on and such cessation of work together with a reasonable proportion of the Supplier's anticipated profit on the contract and shall indemnify the Supplier against all claims made by any person against the Supplier arising out of such infringement and all costs, expenses and other losses arising there from.
- Where the Customer requires any alterations to be made to a design, the Customer shall pay for any additional work necessary.
- All prices quoted are ex works and do not include packing, insurance or installation costs, VAT, freight charges or any additional charges of any description. The Customer shall be responsible for any additional costs arising from express despatch.
- The contract price is based upon costs of component parts (including batteries) current at the date of quotation. The Supplier shall be entitled to increase the contract price in the event of changes in such costs at any time prior to the date of delivery of the equipment and the Customer shall make such extra payment in addition to the contract price.
- Unless otherwise stated all prices are quoted payable in sterling.
- Unless otherwise provided, the price for each delivery shall be paid in full upon notification to the Customer that the equipment is ready for despatch.
- For the purpose of calculating rates of exchange, interest and delivery periods, payment shall be deemed to have been received by the Supplier when the same is irrevocably and unconditionally credited to the Supplier's bank account.
- The Supplier will not be liable to pay interest on any payment made by the Customer before the same becomes due but without prejudice to its rights to claim damages the Supplier shall be entitled (without prior notification) to charge interest at the rate of four per cent above Lloyds Bank Limited Base Lending Rate for the time being in force on any sums which remain unpaid after the same shall become due.
Where the contract provides for payment of any sum on or before delivery, in any of the following circumstances the total balance due under the contract will forthwith become due and payable and the Supplier shall be entitled to withhold delivery (notwithstanding that the contract shall have provided for delivery before final payment) until all such payments have been made or security, which is in the opinion of the Supplier, adequate shall have been given to secure all outstanding payments. Without prejudice to the foregoing, the Supplier may also in any of the following circumstances rescind the contract and claim damages for any loss incurred. The circumstances referred to above are as follows:
- If any sum is due and payable by the Customer to the Supplier but is unpaid for a period of 14 days.
- If the Customer fails to provide any letter of credit, bill of exchange or other security required by the contract, provided that in such event the aforesaid rights of termination or suspension shall apply only in regard to the particular contract in respect of which the Customer shall have so failed.
- If the Customer shall fail to take delivery of any equipment under any contract between them and the Supplier otherwise than in accordance with the Customer's contractual rights.
- If the Customer becomes insolvent or being a body corporate shall have passed a resolution for voluntary winding up except where solely for the purpose of reconstruction or shall have suffered an Order of the Court for its winding up to be made or shall have had a receiver appointed or being an individual or partnership shall have suspended payment of his or their debts in whole or in part or shall have proposed or entered into any composition or arrangement with his or their creditors or have had a Receiving Order in Bankruptcy made against them.
Until full payment has been received by the Supplier for all equipment whatsoever supplied at any time by the Supplier to the Customer:-
- The property in the equipment shall remain in the Supplier
- Subject to (iii) and (iv) below, the Customer shall be at liberty to use the equipment in the ordinary hours of business;
- The Supplier may at any time revoke the Customer's authority to use by notice to the Customer if the Customer is in default for longer than seven days in the payment of any sum whatsoever due to the Supplier (whether in respect of the equipment or any other equipment supplied at any time by the Supplier to the Customer or for any other reason whatsoever) or if the Supplier has bone fide doubts as to the solvency of the Customer;
- The Customer's authority to use shall automatically cease if a Receiver is appointed over any of the assets or undertaking of the Customer or a winding up order is made against the Customer or the Customer goes into voluntary liquidation (otherwise than for the purposes of reconstruction or amalgamation) or calls a meeting of or makes any arrangement or composition with creditors or commits any act of bankruptcy;
- Upon determination of the Customer's power of use under (iii) or (iv) above the Customer shall place the equipment at the disposal of the Supplier who shall be entitled to enter upon any premises of the Customer for the purpose of removing the equipment and to remove such equipment form the premises (including severance from the realty where necessary).
- Upon such determination as is specified in paragraph (v) above the Customer shall further pay to the Supplier an amount to be determined by the Supplier in respect of the depreciation in value of the equipment.
- Until payment of all sums due under the contract the Customer will insure the equipment against all commercial risks (including damage by fire and water) to the full value thereof.
Delivery shall for all purposes of these Condition be whichever shall first occur of the following:-
- Actual delivery to the Customer, its carriers, agents or contractors or
- Notification to the Customer in writing that the equipment is ready for despatch:
- Although the Supplier will use its best endeavours to deliver according to the contract any date or period which may be agreed for delivery is intended for an estimate only and the Supplier cannot therefore be held liable for direct or indirect loss due to failure to deliver on any specific date or dates or within any specified period;
- Should completion and manufacture or delivery of the equipment be prevented or hindered directly or indirectly by fire, the elements, civil commotion, strike or lock outs, industrial dispute, shortage of raw materials or fuel notwithstanding that the Supplier has taken all reasonable steps to secure the same, break down or partial failure of plant or machinery, late receipt of the Customer's specification or other necessary information, any act or omission of the Customer acts orders or regulations of government or any department thereof. Acts of Parliament, EEC directives or regulations, delay on the part of any independent sub-contractor or supplier or any other cause whatsoever beyond the reasonable control of the Supplier, then the time for completion and delivery of the equipment shall be extended for a reasonable period having regard to the effect of the delaying cause on completion of the work. The Supplier shall furthermore have the right in such circumstances as aforesaid to withdraw from the contract or any part thereof without being liable for any direct or indirect loss caused thereby and notwithstanding that a previous extension of time shall have been agreed.
- Unless otherwise agreed the equipment shall be despatched to the Customer's place of business:
The delivery period will start to run when both the following have been completed:-
- Acceptance of a written order by the Supplier and
- Clarification of all details with regard to the contract to the satisfaction of the Supplier.
- The delivery period and dates for delivery shall be extended by the amount of any delay in payment by the Customer of any instalment of the purchase price;
- The Supplier shall be permitted to deliver the equipment before the delivery date or the expiry of the delivery period whichever the case may be.
- The risk passes to the Customer as soon as he is notified that the equipment is ready for despatch from the Supplier's premises. Equipment is stored and despatched at the risk of the Customer notwithstanding the transport may be carried out under the control of the Supplier. The Supplier shall be entitled to charge the cost of warehousing and of maintenance after notification that the equipment is ready for despatch.
Where the Customer requests physical delivery of the equipment elsewhere than at the Supplier's producing works any claim by the Customer in respect of loss or damage in transit shall be entertained only if the Supplier complies in all respects with the carrier's conditions of carriage and for notifying claims for loss or damage in transit;
- Packaging and despatch shall be at the discretion of the Supplier. The Supplier will arrange for the equipment to be insured up to its full value during transit at the expense of the Customer if specifically requested by the Customer to do so but shall be under no liability therefore.
The Supplier reserves the right to sub-contract the fulfilment of the contract or any part thereof.
10. GUARANTEE AND EXCLUSIONS
- The Customer expressly holds himself out as making this contract in the course of a business;
- The Supplier undertakes with the Customer that it will (at the Supplier's option) repair or replace or allow credit for any defective parts developing in any of the equipment under normal and proper use and maintenance which are returned to the Supplier carriage paid within the period from the date of delivery specified in the quotation (or such other period as may be agreed in writing) and which upon examination by the Supplier prove to be of defective material or manufacture but shall not form the subject of a claim for labour or other expenditure made upon them nor for any direct or consequential damages arising therefrom. This undertaking is personal to the Customer and may not be assigned to any third party.
Notwithstanding the above the Supplier shall not be under any liability whatsoever including (without prejudice to the generality of the foregoing) liability for the negligence or breach of any condition warranty or term contained in this Contract or implied by law or breach of statutory duty for
- Any defects in the quality of the state of the equipment which would be apparent on reasonable examination or for their being otherwise not in accordance with the contract unless the Customer shall have given to the Supplier within seven days after receipt of the equipment a written notice specifying the matters complained of and shall thereafter afford the Supplier a reasonable opportunity of inspecting the equipment before it has been used.
- Any defects caused by overloading, misuse, unfair wear and tear, neglect, accident or failure to properly maintain.
- Any defects occurring in batteries, tyres, distributor points, spark plugs or other trade accessories which are covered by manufacturer's warranty.
- Any defects which are not notified to the Supplier within 24 hours of discovery by the Customer.
- Any dispute as to whether any equipment is defective in quality or the equipment is otherwise not in accordance with the contract shall be referred in accordance with the provisions of the Arbitration Act 1950 or any statutory modification or re-enactment thereof for the time being in force to a single arbitrator to be agreed between the Supplier and the Customer or in default of agreement to be nominated by the President for the time being of the Law Society.
- This condition applies only where the contract stipulates for test or inspection of the equipment by or on behalf of the Customer before delivery and at the Supplier's works. If upon reasonable notice the Customer does not inspect or test the equipment or if having inspected or tested the equipment at the producing works the Customer does not within seven days thereafter notify the Supplier in writing of any claim that the equipment is not in conformity with the contract specifying the matter complained of then the Customer shall be conclusively deemed to have accepted the equipment as being in conformity with the contract and shall not thereafter be entitled to reject the equipment on the grounds of anything within the scope or the test or inspection.
- The equipment is sold subject to and with the benefit of any guarantee given by the manufacturer of part of the equipment to which the Supplier is entitled insofar as the same is not inconsistent with or varied by these Conditions.
- If the equipment is altered, adapted or repaired by any person other than one authorised by the Supplier in writing and otherwise than as authorised by the Supplier in writing all liability of the Supplier to the Customer under these conditions for such replacement or otherwise shall cease.
The following terms shall be treated as separate and severable and enforceable accordingly: -
- Subject as provided in these conditions any condition warranty or statement as to the quality of the equipment whether express or implied by statue custom of the trade or otherwise is hereby excluded unless expressed in writing by the Supplier or in the quotation and acceptance of order.
- It is the Customer's responsibility to ensure that the equipment is reasonably fit for the purpose for which it was bought. No condition or warranty whether express or implied by statue custom of the trade or otherwise in relation to the fitness of the equipment for any particular purpose is given by the Supplier unless expressed in writing by the Supplier in the quotation and acceptance of order.
- The Supplier shall not be under any tortuous liability to the Customer whether arising from the negligence of the Supplier its servants employees or otherwise in respect of the equipment supplied.
- The supplier shall not be under any tortuous liability to the Customer in respect of any services rendered or advice or representations given or made or other acts whatsoever of the Supplier antecedent to forming part of or subsequent to this contract whether arising from negligence of the Supplier its servants or employees or otherwise.
- Subject as provided in these Conditions the Supplier shall not be under any contractual liability in respect of any services rendered or advise or representations given or made or any other acts whatsoever of the Supplier antecedent to forming part of or subsequent to this contract.
- The Supplier shall not be under any liability for consequential loss suffered by the Customer arising from the negligence of the Supplier its servants employees or otherwise.
- The Supplier shall not be under any liability for consequential loss suffered by the Customer arising from any contractual obligation (whether express or implied) of the Supplier.
- The Supplier shall not be under any liability for consequential loss suffered by or arising out of any breach by the Supplier of any statutory duty.
- The Supplier shall not be under any liability for consequential loss suffered by the Customer whatsoever.
- Nothing in these Conditions shall purport to exclude or restrict any liability which the Supplier is precluded from excluding or restricting (as the case maybe) by the Unfair Contract Terms Act 1977.
If any term of these Conditions is held by a Court of competent jurisdiction not to satisfy the requirement of reasonableness as defined in the Unfair Contract Terms Act 1977 and thereby becomes unenforceable against the Customer there shall be substituted for such a term of provision that the maximum liability of the Supplier in the circumstances provided in that term shall be limited to the sum for which the Supplier is at the date of the contract covered by insurance in such circumstances. The Supplier undertakes to maintain at the date of contract such insurance as may be reasonable and normal in the business carried out by the Supplier.
- It is hereby expressly stated and agreed (without prejudice to the foregoing) that it is the Customer's responsibility to ensure that the equipment conforms in its method of use and installation to all current statutory and common law requirements relating to safety and health or otherwise relating to the method of use of machinery. The Supplier shall be under no liability whatsoever arising therefrom:
- The Customer undertakes to take any steps specified by the Supplier at or about the time of delivery of the equipment to ensure so far as reasonably practical that the equipment will be safe and without risk to health when properly used:
14. SPARE PARTS
These Conditions shall apply (so far as is applicable) to all spare parts supplied by the Supplier at any time.
The Customer shall indemnify the Supplier against all claims, costs and expensed in respect of any actual or alleged loss or damage arising out of the use of the equipment at any time after delivery of the equipment to the Supplier.
16. RIGHT OF THE SUPPLIER TO RESCIND THE CONTRACT
The Supplier shall have the right to rescind the Contract (without any claim for compensation by the Customer) by giving written notice to the Customer in the following circumstances: -
If the Customer fails to supply the Supplier with instructions for despatch of the equipment within one month of notice being given to him that the same are ready for collection.
If unforeseen events including (without prejudice to the generality thereof) those referred to in clause 7 (c) thereof materially effect the commercial effect of the contract.
17. PROPER LAW AND JURISTICTION
The proper law of the contract shall be the law of England and the English Court shall have the exclusive jurisdiction of any disputes arising hereunder.
The rights of the Supplier or the Customer shall not be prejudiced or restricted by any indulgence or forbearance extended by either party to the other and no waiver by either party in respect of any breach shall operate as a waiver in respect of any subsequent breach.
In the event of any of the terms and conditions herein contained being made void by any statute or other legislation the terms of such shall be deemed to be severable from the remainder of the terms and conditions herein contained which will remain in full force and effect.