GREENWOOD MAGNETICS LIMITED TERMS OF SALE
The following standard terms and conditions apply to every agreement entered into by Us for the sale of Equipment and the provision of Services.
1. DEFINITIONS
In these Conditions:-
1.1 the following words have the following meanings:-
“Bespoke Products” as defined in Condition 17.1;
“Commencement Date” the date stipulated in the Quotation or the Order Acknowledgement;
“Conditions” the terms and conditions for the sale of Equipment and the provision of the Services, as set out in this document, together with any special terms and conditions agreed in writing by You as set out in the Quotation or the Order Acknowledgement;
“Contract” the contract for the sale of the Equipment and/or the provision of the Services entered into between You and Us, as set out in the Quotation or the Order Acknowledgement, subject in either case to the Conditions;
“Equipment” the permanent magnetic separators specified in the Quotation or the Order Acknowledgement to be sold by Us to You (including any instalment of the Equipment or any part of it);
“Ex Works” Where We will make Equipment ready for collection from Our premises, and You agree to collect and transport that Equipment;
“Intellectual Property” as defined in Condition 16.3;
“Order” the order placed by You with Us for the supply of the Equipment and/or Services;
“Order Acknowledgement” the acknowledgement of the Order submitted by Us to You;
“Parties” You and Us together;
“Person” any individual, partnership, firm, body corporate, government department, local authority, unincorporated associated or entity having a separate legal personality;
“Price” the monies payable by You to Us in return for the provision of the Equipment and/or Services pursuant to the Contract, as set out in the Quotation or the Order Acknowledgement;
“Quotation” the quotation submitted by Us to You for the supply of the Equipment and/or the Services;
“Services” the design and other services to be provided by Us to You as specified in the Quotation or Order Acknowledgement;
“Us”, “We”, “Our” Greenwood Magnetics Limited (Company Number 449828);
“You”, “Your” the Person who purchases (or agrees to purchase) the Equipment and accepts (or agrees to accept) performance of the Services from Us as specified in the Quotation or the Order Acknowledgement;
1.2 the singular includes the plural and vice versa, and words importing one gender include all genders;
1.3 headings are for ease of reference only.
2. GENERAL
2.1 All Quotations are made, and all Orders are accepted, subject to these Conditions.
2.2 Only these Conditions shall apply to the Contract, and shall override any other terms, conditions or warranties which You may seek to impose. Acceptance of the Equipment and/or the provision of the Services by or on behalf of You shall be conclusive evidence that these Conditions are accepted by You and that they apply to the Contract. If You do not accept these Conditions (or any part of them), You
must return the Equipment immediately following delivery. These Conditions supersede any previous terms and conditions which may have regulated dealings between Us and You.
2.3 No amendment or variation to the Contract shall be valid unless agreed in writing by Us.
2.4 The Contract comprises the Quotation (if any), the Order Acknowledgement (if applicable) and these Conditions. Each Order, or acceptance of a Quotation by You shall be deemed to be an offer by You to purchase the Equipment and/or Services subject to these Conditions.
3. BASIS OF SALE
3.1 No Contract shall have been formed until the Quotation has been signed by You, or We have accepted Your Order (which can be confirmed orally, but which will not be deemed to have been accepted until We have submitted the Order Acknowledgement to You, or else We deliver the Equipment and/or provide the Services to You (whichever occurs earlier)).
3.2 The Quotation is available for acceptance for a maximum period of 30 days from the date when given and may be withdrawn by Us within such time at any time by oral or written notice.
3.3 Once a Quotation has been accepted by You, or an Order has been accepted by Us, it may not be cancelled by You except with Our written agreement and on terms that You shall indemnify Us in full against all loss including, but not limited to loss of profit, costs (including the cost of labour and materials used), damages or other expenses incurred by Us as a result of such cancellation.
3.4 Once rejected by You, a Quotation will not be capable of being subsequently accepted by You unless agreed in writing with Us or unless reissued by Us.
3.5 Any advice or recommendation given by Us or Our employees or agents to You as to the Equipment and/or the Services which is not confirmed in writing by Us is followed or acted upon entirely at Your own risk, and accordingly We shall not be liable for any such advice or recommendation which is not so confirmed. You confirm to Us that You have not relied on, nor been induced to enter into the Contract by, any representation not recorded in the Conditions. Nothing in this Condition excludes any liability for fraudulent misrepresentation.
3.6 You shall be responsible for ensuring the accuracy of the terms of the Order, and shall give Us all information necessary to enable Us to proceed with the Contract. Any failure so to do will allow Us to charge You an additional price for any delay or additional work necessary, or to terminate the Contract immediately.
3.7 The quantity, quality and description of and any specifications for the Equipment and/or the Services shall be those set out in the Quotation (if accepted by You) or the Order (if accepted by Us) on the Order Acknowledgement).
3.8 We reserve the right to make any changes in the specifications for the Equipment, and/or the Services which do not materially affect the quality or performance of the Equipment and/or Services.
3.9 All samples, descriptive matter, specifications and advertising issued by Us and any descriptions or illustrations contained in Our catalogues or brochures are issued or published for the sole purpose of giving an approximately idea of the Equipment described in them. They shall not form part of the Contract unless specifically so incorporated in writing by Us.
4. THE PRICE
4.1 We reserve the right, at Our option, to require payment of the Price in full or in part, or the payment of a non-refundable deposit, prior to despatch of the Equipment and/ or provision of the Services and reserve the right to withhold delivery of the Equipment/and or provision of the Services or any part of them until such payment is received.
4.2 We reserve the right, by giving notice in writing to You at any time prior to completion of the Contract, to increase the Price to reflect any increase in the cost to Us in executing the Contract due to any factor beyond Our control (including, without limitation, any increase in the cost of labour, raw materials or overheads, currency fluctuations, any changes in delivery dates, quantities or specifications for the Equipment and/or Services arising as a result of any error or omission or changes deemed necessary by You, or any delay or interruption in the Contract not attributable to Us.
4.3 All Prices are exclusive of VAT and similar taxes, which You shall be additionally liable to pay to Us upon presentation of a suitable invoice from Us.
4.4 Unless otherwise agreed in writing, the Price is exclusive of packing and transport, for which We shall make additional charges at Our rates prevailing at the time of delivery.
5. PAYMENT
5.1 Payment of the Price (and VAT) shall be due within 30 days from the date of Our invoice (notwithstanding that delivery may not have taken place, and the title in the Equipment has not passed to You). Without prejudice to Condition 4.1 We shall be entitled to render an invoice upon dispatch of the Equipment. The time of payment of the Price shall be of the essence of the Contract. Payment may be made in Sterling (unless specified otherwise in the Quotation or the Order Acknowledgement).
5.2 Interest on overdue invoices shall accrue from the date when payment became due from day to day until the date of payment at a rate of 8% per annum and shall accrue at such a rate both before and after judgment. You agree to reimburse Us all costs and expenses (including legal costs on a full indemnity basis) incurred in the collection of any overdue account. If You fail to make any payment due to Us on the due date, then without prejudice to any other right or remedy available to Us, We shall be entitled to cancel the Contract so far as any Equipment remain to be delivered or Services performed under it, or suspend any further delivery of Equipment or performance of any Service.
5.3 No right of set off shall exist in respect of any claims by You against Us unless and until such claims are accepted in full by Us in writing and You shall not be entitled to withhold all or any part of any such which has become due for payment under the Contract.
5.4 If the Equipment is to be delivered in instalments, then notwithstanding the provisions of Condition 5.1 We reserve the right to invoice You on the dispatch of each instalment separately, and You shall pay such invoices in accordance with these Conditions. If You fail to pay any instalment of the Price when due, then (without prejudice to any other right or remedy of Ours), the whole of the Price for each remaining instalment of Equipment and/or performance of the Services shall become immediately due and payable (irrespective of the non-delivery).
6. DELIVERY
6.1 Delivery of the Equipment shall occur at the place specified in the Quotation, or Order Acknowledgement. If You purchase the Equipment Ex Works, then You shall be responsible for collection of the Equipment, and its transportation, from Our premises.
6.2 Non-delivery of the Equipment must be notified to Us within four working days of the invoice date. Failure to do so shall preclude You from any rights or remedies against Us for such non-delivery. If We fail to deliver the Equipment for any reason other than any cause beyond Our reasonable control or Your fault, and We are accordingly liable to You, Our liability shall be limited to the excess (if any) of the cost to You (in the cheapest available market) of similar goods to replace those not delivered over the Price of the Equipment.
6.3 You (or the Person to whom the Equipment has been delivered by Us on Your behalf, if applicable) is required to acknowledge receipt of all Equipment by signing the delivery note supplied by Us or Our agents, at the time of delivery. You are responsible for checking that the Equipment actually delivered corresponds with the Equipment specified on the delivery note. Signature of the delivery note by You (or Your agents, or the Person to whom the Equipment has been delivered by Us on Your behalf) shall be deemed to be conclusive proof that the Equipment was delivered in accordance with the delivery note, and You shall be bound to pay the Price as if the Equipment had been delivered in accordance with the Contract.
6.4 If You shall fail to accept delivery of the Equipment as and when proffered by Us, then We shall be deemed to have tendered and You to have refused delivery at that date.
6.5 If You fail or refuse to take delivery of the Equipment on the due date or fail to give Us adequate instructions for delivery at the time stated, then You shall be liable to Us for any loss or costs arising from such failure or refusal and for a reasonable charge by Us for the care, custody, storage and insurance of the Equipment until actual delivery. We may also sell the Equipment at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to You for the excess over the Price or charge You for any shortfall below the Price. This provision shall be in addition to and not in substitution of any other payment or damages for which You may become liable in respect of Your failure to take delivery at the appropriate time.
6.6 Whilst We shall use all reasonable endeavours to deliver the Equipment and provide Services on the due date, those dates are approximate only and We shall not be liable for any delay in despatch or delivery, or any loss or damage thereby arising, unless You have stipulated in writing on the Order that the Equipment must be delivered by a certain date, and the reason for the deadline. If no dates are so specified, delivery shall be within a reasonable time. Time of delivery shall not be the essence, and You shall not be able to cancel the Contract, refuse delivery of the Equipment or withhold payment on account of any delay howsoever caused.
6.7 Subject to the other provisions of these Conditions We shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of anticipated profits, loss of business, depletion of goodwill, loss of revenue, business interruption, loss of data), costs, damages, charges, claims, fines, penalties, interest or expenses caused directly or indirectly by any delay in the delivery of the Equipment or provision of the Services (even if caused by Our negligence).
6.8 Responsibility for unloading of the Equipment from the transport shall be agreed between You and Us at the relevant time. Once the Equipment has been unloaded,You shall be responsible for moving the Equipment to the correct desired location within Your premises, and for installing the Equipment at that location, unless You have contracted Us to undertake the installation in the Quotation or Order Acknowledgement.
6.9 We reserve the right to deliver the Equipment in instalments and each such instalment shall constitute a separate Contract. Failure by Us to deliver any one or more of the instalments shall not entitle You to treat the Contract as a whole as repudiated.
7. RISK
7.1 The risk of damage to or loss of the Equipment shall pass to You, if the Equipment is purchased Ex works, at the time We specify to You for collection of the Equipment, or otherwise at the time of delivery to the address for delivery stated in the Quotation or in the Order Acknowledgement or, if You wrongfully fail to take delivery of the Equipment, the time when We have tendered delivery of the Equipment.
7.2 Any claim by You which is based on the quality or condition of the Equipment or its failure to correspond with the Quotation or the Order Acknowledgement shall (whether or not delivery is refused by You) be notified to Us within four days from the delivery date or (where the defect was not apparent on reasonable inspection) within a reasonable time after discovery of the failure to correspond with the Quotation or the Order Acknowledgement. Any claim by You that the incorrect quantity of Equipment was delivered is governed by Condition 6.2. If delivery is not refused, and We are not so notified within the time limit, You shall not be entitled to reject the Equipment and We shall have no liability for such defect or failure, and You shall be bound to pay the price as if the Equipment had been delivered in accordance with the Contract.
7.3 Unless Condition 7.2 is strictly observed, We shall be under no liability whatsoever in respect of any loss or damage in transit (or non-delivery) of the whole or any part of the Equipment.
8. TITLE
8.1 Title in the Equipment or any part of it, or in any goods of Ours (whether delivered under this Contract or otherwise), shall not pass to You until You have paid in full all monies owing under this Contract or any other Contract extant with Us. You shall keep all Equipment properly stored and protected and separate from the goods of third parties in such a way that the Equipment can be clearly recognised as the property of Ours.
8.2 If You are or become insolvent, or make or propose to make any arrangement or composition with Your creditors, or have any receiver, administrative receiver or manager appointed in respect of any of Your assets, or if any other steps are taken for Your winding up, or if You shall be in breach of any of the terms of this Contract, then all monies owed by You to Us, whether under this Contract or otherwise, shall become immediately due and payable and You grant to Us, or Our agents, an irrevocable licence to enter upon Your premises without notice to recover and/or resell such Equipment as We may deem necessary to recover all sums owing to Us by You, together with any reasonable costs so incurred. If the Equipment is not situated at Your premises, but at the premises of a third party with whom You have contracted, then You shall procure that We (or Our agents) are granted rights of access to that third party’s premises, and shall be permitted to remove the Equipment from those premises. To facilitate this right, You (by entering into the Contract) irrevocably authorise Us (or Our agents) to act as Your attorney when dealing with any such third party. This right shall continue to subsist notwithstanding the termination of the Contract through the happening of any of the events specified in these conditions or otherwise and without prejudice to any accrued rights of Ours under the Contract.
8.3 You shall keep the Equipment in good condition and shall maintain full insurance in respect thereof on Our behalf in an amount which is not less than the price payable to Us for the Equipment, and all proceeds of such insurance shall be held on trust for Us.
8.4 If Condition 8.1 is held to be invalid to reserve Our title to Equipment delivered under this Contract by reason of the reservation of title until all Equipment delivered to You by Us have been paid for, then nevertheless ownership of the Equipment delivered under this Contract shall remain with Us until that Equipment itself has been paid for.
8.5 You shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Equipment which remain the property of Us, but if You do so, all monies owing by You to US shall (without prejudice to any other right or remedy of Ours) become immediately due and payable.
8.6 We shall have a full lien over all products or goods of Yours which may be on Our premises until such time as You shall make payment in full under the Contract and We shall be at full right and liberty to sell or otherwise dispose of products or goods of Yours if You shall default in payment or otherwise be in breach of Contract.
8.7 Until title to the Equipment has passed to You, You shall only be entitled to possession of the Equipment on these Conditions and shall hold the Equipment in a fiduciary capacity as bailee, and any Equipment may be detached and removed from Your premises by Us in the event of exercise of rights under Condition 8.2.
8.8 Notwithstanding the provisions of Conditions 8.1 to 8.6, We may bring an action for the Price at any time after the Price has become payable under these Conditions.
9. GUARANTEES
Any components, parts or products not of Our own manufacture sold by Us, are not guaranteed by Us, but carry the maker’s guarantee only.
10. QUALITY
10.1 Where We are not the manufacturer of the Equipment, We shall use commercial endeavours to transfer to You the benefit of any warranty or guarantee given to Us. Any such Equipment only carries the manufacturer’s guarantee or warranty.
10.2 We are not responsible for the installation of the Equipment or for compliance with any electrical standards relevant to the installation but warrant that (subject to the other provisions of these Conditions) on delivery, and [12] months from the date of delivery, the Equipment shall:-
10.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
10.2.2 be reasonable fit for purpose; and
10.2.3 be reasonably fit for any particular purpose for which the Equipment is being bought if You made known that purpose to Us in writing and We have confirmed in writing that it is reasonable for You to rely on Our skill and judgement.
10.3 We warrant to You that the Services will be performed with reasonable skill and care.
10.4 We shall not be liable for a breach of any of the warranties in Condition 10.2
unless:-
10.4.1 You give written notice of the defect to Us, and, if the defect is as a result of damage in transit by the carrier, within four days of the time when You discover or ought to have discovered the defect; and
10.4.2 We are given a reasonable opportunity after receiving notice of examining such Equipment and You (if asked to do so by Us) return such Equipment to Us at Your cost for the examination to take place there.
10.5 We shall not be liable for a breach of any of the Warranties in Condition 10.2 if:-
10.5.1 You make any further use of such Equipment after giving such notice; or
10.5.2 You fail to provide Us with the correct specifications for the Equipment; or
10.5.3 the defect arises because You have failed to follow Our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice; or
10.5.4 You alter or repair the Equipment without Our written consent; or
10.5.5 the Equipment has not been installed in its recommended environmental conditions.
10.6 Subject to Conditions 10.4 and 10.5, if any of the Equipment does not conform with any of the warranties in Condition 10.2 We shall, at Our option, repair or replace such Equipment (or the defective part) within four weeks of such defect being proven, or refund the price of such Equipment at the pro rata Contract rate.
10.7 If You ask Us to design Equipment for You, We will prepare drawings of that Equipment for Your approval. We will only manufacture that Equipment once You have approved those drawings. Should the design of the Equipment subsequently prove to be incorrect then We shall have no liability in respect thereof and may charge for any additional work performed by Us, to remedy or rectify the Equipment.
10.8 If We comply with Conditions 10.6 and 10.7 We shall have no further liability for a breach of any of the warranties in Condition 10.2 in respect of such Equipment.
11. LIMITATION OF LIABILITY
11.1 Subject to Condition 6.2, Condition 7.2 and Condition 10, the following provisions set out Our entire financial liability (including any liability for the acts or omissions of Our employees, agents and sub-contractors) to You in respect of:-
11.1.1 any breach of these Conditions:
11.1.2 any use made or resale by You of any of the Equipment, or of any product incorporating any of the Equipment; and
11.1.3 any representation, statement, mis 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 Ours:-
11.3.1 for death or personal injury caused by Our negligence; or
11.3.2 under section 2(3), Consumer Protection Act 1987; or
11.3.3 for any matter which it would be illegal for Us to exclude or attempt to exclude Our liability; or
11.3.4 for fraud or fraudulent misrepresentation.
11.4 Subject to Condition 11.2 and Condition 11.3 Our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, mis statement or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price.
11.5 Subject to Conditions 11.2, 11.3 and 11.4 We shall not be liable to You for any direct, indirect or consequential loss (all three of such terms include, without limitation, pure economic loss, loss of anticipated profits, loss of business, loss of revenue, business interruption, loss of data, depletion of goodwill, and any costs, damages, charges, fines, penalties, interest, claims or expenses caused directly or indirectly by Our actions, inactions, breach of contract, negligence, misrepresentation, mis statement or breach of statutory duty.
12. ASSIGNMENT
You cannot assign or transfer the Contract (or any of Your rights or obligations made under it) without Our prior written consent.
13. EXCUSABLE EVENTS
We will make reasonable commercial efforts to honour Our obligations to You. However, if We are unable to do so because of events or circumstances beyond Our reasonable control (including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, power failure, fuel shortages, inclement weather, protests, riot, civil commotion, fire, explosion, floor, 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), then We will give You verbal or written notice of those circumstances within a reasonable time of their occurrence.
14. GENERAL
14.1 Each right or remedy of Ours under the Contract is without prejudice to any other rights or remedy of Ours whether under the Contract or not.
14.2 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 provisions shall continue in full force and effect.
14.3 Failure or delay by Us in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of Our rights under the Contract.
14.4 Any waiver by Us of any breach of, or any default under, any provision of the Contract by You shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.5 It is not intended that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.6 This Contract shall be governed by and construed in accordance with English law, and You and Us submit to the exclusive jurisdiction of the English courts in the interpretation of the Contract or the resolution of any dispute arising under it.
15. COMMUNICATIONS
15.1 Routine transmissions between Us and You may be undertaken by e-mail to the relevant e-mail address supplied by each Party to the other.
15.2 All communications between the Parties relating to Conditions 6.2, 7.2, 10.4, 13 and 17.2 about the Contract shall be in writing and delivered by hand or sent by pre-paid first class posts.
16. INTELLECTUAL PROPERTY
16.1 All Intellectual Property relating to the Equipment remains Our property (unless We specifically assign such Intellectual Property to You in writing).
16.2 If You instruct Us to manufacture any Equipment or place any logos or other similar devices on any Equipment, which infringe the Intellectual Property of any third party, then You shall be liable for such infringement and shall fully and effectively indemnify (and keep indemnified) Us against any cost, claim, demand, fine, penalty, interest, monies, fees and expenses which We may suffer or incur as a result of or flowing from such infringement.
16.3 “Intellectual Property” means any patent, copyright, trademark, service mark, utility model, trade name, right in design, right in databases, image right, moral right, right in an invention, right relating to passing off, right in confidential information (including trade secrets) or right of privacy, and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply), or renewal or extension of, such rights which exist now or which exist in the future in the United Kingdom or elsewhere in the world.
17. BESPOKE PRODUCTS/LOGOS
17.1 If You require as part of an Order that:-
17.1.1 Equipment be manufactured specifically for You; or
17.1.2 We purchase products specifically for the fulfilment of that Order; or
17.1.3 Equipment be manufactured and/or supplied which, if not purchased by You, cannot be sold to any third party without causing Us significant financial losses; or
17.1.4 Equipment be manufactured and/or supplied incorporating or bearing Your logo, design, name or other distinctive mark (together being “Bespoke Products”), then the provisions of Conditions 17.2 and 17.3 shall apply.
17.2 Once We have commenced work on an Order for Bespoke Products, You cannot cancel that Order, except with Our written agreement and on terms that You will pay Us in full for the Price, or alternatively that Our option You pay Us on demand a sum equivalent to all loss We suffer in respect of such cancellation (including, without limitation, loss of profit, costs (including the costs of labour and materials used), damages and other expenses incurred by Us).
17.3 Our liability for design errors for Bespoke Products is limited in accordance with Condition 10.7.
18. CORRESPONDENCE BY E-MAIL
Whilst We have taken all reasonable precautions in the scanning of e-mails and attachments prior to leaving Our network, We cannot accept liability for any direct, special, indirect or consequential loss (all three of such terms include, without limitation, loss of profit, loss of expected future business, loss of revenue, business interruption, loss of data, damages, costs, fines, penalties, interest, or expenses payable to a third party) arising from the alteration of the contents of any e-mail or attachment, or as a result of any virus being passed on. It is Your responsibility to take all prudent safeguards in relation to the prevention of corruption of Your systems by viruses.