Terms & Conditions
RUSSELL’S (KIRBYMOORSIDE) LTD – STANDARD TERMS AND CONDITIONS OF SALE
The following standard conditions apply to every order accepted by the Company for goods and services.
1. INTERPRETATION
1.1. Definitions:
1.2. In these Conditions, the following definitions apply:
“the Company” means Russell’s (Kirbymoorside) Ltd (a company registered in England and Wales with company number 00178738) whose registered office is Eden Works, Edenhouse Road, Old Malton, Malton, North Yorkshire, YO17 6RD other company within the same group of companies as Russell’s (Kirbymoorside) Ltd and which has accepted the Order;
“the Conditions” means these Conditions of Sale;
“Contract” means the contract made by the Company for the sale of the Company’s Goods to the Purchaser or the provision of Services;
“Goods” means any machine, vehicle, equipment, service, spare part, or miscellaneous item in which the company trades which are the subject of the Order;
“Purchaser” means the firm, company or person whose Order is accepted by the Company or receiving, Goods or Services supplied by the Company;
“Quotation” means any written quotation or tender submitted by the Company;
“Order” means the written order placed by the Purchaser with the Company for the provision of Goods and/or Services;
“Services” means work on equipment not owned by the Company carried out at the Purchaser’s request.
1.3. Interpretation:
1.3.1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3.2. A reference to a party includes its personal representatives, successors and permitted assigns.
1.3.3. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
1.3.4. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.3.5. Condition headings do not affect the interpretation of these Conditions.
1.3.6. Words in the singular include the plural and words in the plural include the singular.
2. BASIS OF CONTRACT
2.1. These Conditions, supplied by the Company to the Purchaser shall be incorporated into each Contract made by the Company for the sale of the Company’s Goods and the provision of the Services to the exclusion of any terms of purchase applied or proposed by the Purchaser or endorsed on, delivered with or contained in the Order or which are implied by trade, custom, practice or course of dealing which are not expressly accepted by the Company. Each order or acceptance of a quotation for Goods by the Purchaser from the Company shall be deemed to be an offer by the Purchaser to purchase Goods subject to these conditions.
2.2. Any advice or recommendation given by the Company or its employees or agents to the Purchaser or its employees or agents as to the application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Purchaser’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not confirmed by the Company.
2.3. 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 Company shall be subject to correction by the Company without any liability on the part of the Company.
2.4. All samples, drawings, descriptive matter, specifications and advertising provided by the Company are approximate only and the descriptions and illustrations contained in catalogues, price lists, websites social media or brochures and other advertising materials are intended merely to present a general idea of the Goods or Services described and none of these shall form part of the Contract. They do not create a sale by sample.
2.5. No variation of any of the Conditions shall be effective unless in writing and signed by a duly authorised representative of the Company.
2.6. All services shall be carried out by the Company using a reasonable degree of skill.
3. QUOTATIONS, ACCEPTANCE OF ORDERS AND CANCELLATION
3.1. The Order constitutes an offer by the Purchaser to purchase the Goods and/or Services in accordance with these Conditions. The Purchaser is responsible for ensuring that the terms of the Order are complete and accurate. The Contract shall become binding only upon the confirmation of acceptance of any Order by the Company in writing.
3.2. No Order, which has been accepted by the Company, may be cancelled by the Purchaser except with the agreement in writing of the Company If the Purchaser’s request to cancel the order is accepted by the Company, the Purchaser’s deposit shall be forfeited. If the Purchaser shall fail to take and pay for the Goods within 14 days of notification that what has been ordered is ready for delivery, the Company shall be at liberty to treat the contract as repudiated by the Purchaser and thereupon the deposit shall be forfeited without prejudice to the Company’s right to recover from the Purchaser by way of damages any loss or expense which the Company may suffer or incur by reason of the Purchaser’s default.
3.3. If Goods are supplied and/or Services carried out in accordance with the Purchaser’s specifications (“the Specifications”) the Purchaser shall be solely responsible for the Specifications and ensuring that they are accurate. The Company reserves the right to amend the Specifications if required by any applicable statutory or regulatory requirement, and the Company shall notify the Purchaser in writing in any such event.
4. PRICE
4.1. Except for any Goods that are available from the Company’s stock at the time of order, the Company reserves the right to charge the price ruling at the time of delivery. Unless otherwise agreed in writing between the Purchaser and the Company, all prices are given by the Company are on an ex works basis, and where the agrees to deliver the Goods otherwise than at the Company’s premises, the Purchaser shall be liable to pay the Company’s charges, including, without limitation, in respect of charges for transport, packaging and insurance.
4.2. All prices shall be exclusive of Value Added Tax (“VAT”) and other taxes from to time in force which the Purchaser shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice.
4.3. If the cost to the Company of fulfilling any of its obligations under the Contract are increased by the Purchaser’s acts or omissions, any change in applicable law or changes in one or more of the Company’s production or associated delivery costs (including (but not limited to) increases in the cost of raw materials, freight, labour, power, energy or fuel; changes in the types or rates of tax contributions, duties, tariffs or levies; or foreign exchange fluctuations or currency regulations), then at any time before delivery of the Goods, the Company shall be entitled to adjust the price to cover such additional costs by giving the Purchaser not less than 14 days’ prior written notice. Such notice shall set out the revised price and provide reasonable details of the cost increase(s) giving rise to the adjustment. If the price adjustment exceeds 15% of the original Contract price, the Purchaser shall be entitled to terminate the Contract by giving written notice to the Company within 2 days of receipt of the Company’s notice of price adjustment, in which case neither party shall have any further liability to the other save in respect of obligations accrued prior to termination.
5. PAYMENT
5.1. Liability for payment for the Goods supplied shall arise on delivery and payment shall be due by the 25th of the month following the date of invoice for parts and Service invoices, provided that whole Goods (machines) require payment on or before collection/delivery or, in each case, as otherwise specifically agreed in writing by the Company. All payments shall be made in sterling in full and in cleared funds to a bank account nominated in writing by the Company, and time for payment shall be of the essence of the Contract. Where the Contract is to be or may be fulfilled in separate instalments or deliveries, part payment for each delivery shall be made as if each instalment or delivery constituted a separate contract. Payment shall be due, and the Company shall be entitled to sue for the price whether or not property in the Goods has passed by virtue of Condition10.
5.2. Sums unpaid after the due date shall bear interest until the day payment is received at the rate of 5% per annum above the Bank of England base rate for the time being accruing from day to day from the date of delivery until the date of payment in full. In addition where overdue accounts are required to be passed to the Company’s third party debt recovery firm, an administration charge of 15% of the unpaid amount plus VAT will also be payable.
5.3. Without prejudice to any other rights or remedies of the Company any default by the Purchaser in making payment on the due date shall entitle the Company to suspend deliveries or Services under the Contract or any other contract so long as the default continues and to treat the Contract as repudiated by the Purchaser and determined if the Purchaser has not within fourteen days of receiving written notice from the Company paid all sums due to the Company.
5.4. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Company shall be entitled to set-off ay amounts due to the Purchaser against any sums owed by the Purchaser to the Company.
5.5. Any dispute in relation to an invoice for Goods or Services provided must be notified to the Company in writing within 14 days of the Purchaser’s receipt of the relevant invoice, failing which the invoice shall be deemed accepted by the Purchaser and payable in full in accordance with these Conditions
6. DELIVERY
6.1. Delivery of the Goods shall take place on an ex works basis when the Goods are loaded on to the collection or carrier’s vehicle the Company’s premises, unless the Company agrees to deliver the Goods to the Purchaser’s premises or other delivery location agreed between the Company, when delivery shall be completed when unloaded.
6.2. The Company will endeavour to complete delivery of the Goods or the Services on or before any dates requested by the Purchaser or estimated by the Company but will not be liable for any loss or damage which may result from a delay in delivery of the Goods or completion of the Services.
6.3. If a place for delivery other than the Company’s premises is agreed by the Company the Purchase shall provide at such delivery point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods. Unloading of the Goods shall be at the Purchaser’s risk.
6.4. The Purchaser shall accept immediate delivery or arrange to collect the Goods or arrange suitable storage, failing which the Company may either:-
6.4.1. effect delivery by whatever means it thinks most appropriate; or
6.4.2. arrange storage at the Purchaser’s risk and expense pending delivery; or
6.4.3. re-sell or otherwise dispose of the Goods without prejudice to any other rights the Company may have against the Purchaser for breach of contract or otherwise.
6.5. Where the Contract provides for delivery by instalments each instalment shall constitute a separate contract and any failure or defect in any one or more instalments
delivered shall not entitle the Purchaser to repudiate the Contract nor to cancel any subsequent instalments.
6.6. It is the Purchaser’s responsibility to notify the Company if the Goods have not been received by the Purchaser within seven days of the date of receipt of the Company’s invoice for those Goods. If no notification is made the Purchaser shall be deemed to have received the Goods.
6.7. Packaging for the Goods shall be at the discretion of the Company which shall have the right to pack the Goods in such manner and with such materials and in such quantities as it in its absolute discretion thinks fit unless detailed packaging instructions are received from the Purchaser prior to agreeing a price for the Goods.
7. EXAMINATION ON DELIVERY
7.1. The Purchaser shall upon delivery examine the Goods and the Services and shall promptly (but in any event within seven working days of delivery) notify in writing the Company and the carrier, where relevant, of any apparent damage or defect.
7.2. The Purchaser shall comply with the carriers rules regulations and requirements so as, when appropriate, to enable the Company to make a claim against the carrier in respect of any damage or loss in transit.
7.3. Claims in respect of damage, defects or shortage not apparent on examination under Condition 7(a) above must be notified in writing to the Company within 14 days of the date of delivery of the Goods or completion of the Services. The Company does not accept return of goods supplied correctly to order unless written permission has been obtained. Any return must be within 14 days. The Company will not accept the return of electrical or electronic components or any item where the packaging has been damaged. Any agreed return will be subject to the Company’s supplier of the Goods accepting the return and a handling charge based on the relevant supplier’s terms and conditions will be applied. This will be a minimum of 15%. 7.4. Notification under Conditions 7.1 and 7.3 above shall be first made by telephone, then by notice in writing delivered by fax or by first class recorded delivery mail to the Company at the address specified above. In default of such notification the Company shall, subject to any claim which the Purchaser may have under the Warranty referred to in Condition 17, be deemed conclusively to have properly performed its obligations under the Contract.
8. WARRANTY
8.1. The Purchaser acknowledges that the Company is not the manufacturer of the Goods and the Purchaser shall only be entitled to the benefit of any manufacturer’s warranty or guarantee that the Company is entitled to transfer to the Purchaser.
8.2. If any new Goods supplied by the Company are found to be of defective workmanship or materials so as to entitle the Company to have them repaired or replaced by or at the cost of the manufacturer the Company undertakes so to do, provided however that:
8.2.1. any costs or expenses incurred by the Company in such replacement or repair which are not recoverable from the manufacturer by the Company shall be paid to the Company by the Purchaser;
8.2.2. that if owing to the failure of the Purchaser to comply with any terms imposed by the manufacturer which the manufacturer is not bound to replace or repair the Company shall be under no liability to the Purchaser; and
8.2.3. provided that the Purchaser has given the Company written notice and satisfactory proof of any defect promptly upon discovery of such defect, but in no case later than seven days prior to the expiry of the relevant manufacturer’s warranty period.
8.3. The conditions implied by sections 13 to 15 of the Sale of Goods Act 1979 and all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. 8.4. The Company’s obligations to the Purchaser under this Condition 8 shall not apply:-
8.4.1. to damage caused by the Purchaser’s or any third party’s act, default or misuse of the Goods or by failure to follow any instructions supplied with the Goods, or if the Purchaser makes any further use of such Goods after giving notice in accordance with Condition 8.2.3;
8.4.2. the defect arises as a result of fair wear and tear, wilful damage, negligence, or if the Goods have been stored, handled or applied in such a way that damage is likely to occur;
8.4.3. if the Goods are altered, modified or repaired in any place other than the Company’s factory or by persons not expressly nominated or approved in writing by the Company;
8.4.4. if the Purchaser shall not have paid for all Goods supplied whether under the Contract or under any other contract between the Company and the Purchaser;
8.4.5. if the defect arises as a result of the Company following any drawing, design or specification supplied by the Purchaser, or
8.4.6. the Goods differ from their description or the Specifications as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.5. The cost to the Company of and incidental to the return by the Purchaser to the Company of any of the Goods delivered hereunder or investigating a claim made by the Purchaser under this Condition shall, except to the extent that the Company has accepted responsibility hereunder, be the responsibility of the Purchaser, who shall indemnify the Company against any such costs including, but without limitation to the generality of the foregoing, costs of transport and testing or any other cost or loss to the Company arising therefrom.
8.6. The Purchaser shall, except where it is a person who suffers personal injury or death or loss or damage to property such as to give rise to a claim under the Consumer Protection Act 1987, indemnify the Company against all loss, damage, liability, legal
fees and costs arising from any such claim made against the Company under the Consumer Protection Act 1987.
9. SUITABILITY OF GOODS
The Company will, if required to do so, provide the opportunity for a Purchaser to inspect Goods prior to ordering to ensure their suitability for its requirements. Thereafter save as set out in clause 8 hereof the Company gives no warranty that anything supplied by it is fit for any purpose other than the normal purpose for which it is customarily supplied or that its quality, if new, is other than as warranted by the manufacturer, or if not new and has been inspected by the aforesaid is any better than can be expected for the price paid.
10. TITLE AND RISK
10.1. The risk in the Goods shall pass to the Purchaser on completion of delivery.
10.2. Title to the Goods shall not pass to the Purchaser until the earlier of:
10.2.1. the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Purchaser in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.; and
10.2.2. the Purchaser resells the Goods, in which case title to the Goods shall pass to the Purchaser at the time specified in clause 10.4.
10.3. Until title to the Goods has passed to the Purchaser, the Purchaser shall:
10.3.1. store the Goods separately from all other goods held by the Purchaser so that they remain readily identifiable as the Company’s property;
10.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
10.3.3. maintain the Goods in satisfactory condition and keep them insured against all risks, including theft from any site on which they are located, for their full price from the date of delivery;
10.3.4. notify the Company immediately if it becomes subject to any of the events listed in clause 11.1.2 to clause 11.1.4; and
10.3.5. give the Company such information as the Company may reasonably require from time to time relating to:
10.3.5.1. the Goods; and
10.3.5.2. the Purchaser’s ongoing financial position. 10.4. Subject to clause 10.5, the Purchaser may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Purchaser resells the Goods before that time:
10.4.1. it does so as principal and not as the Company’s agent; and
10.4.2. title to the Goods shall pass from the Company to the Purchaser immediately before the time at which resale by the Purchaser occurs.
10.5. At any time before title to the Goods passes to the Purchaser, the Company may:
10.5.1. by notice in writing to the Purchaser, terminate the Purchaser’s right under clause 10.4 to resell the Goods or use them in the ordinary course of its business; and
10.5.2. require the Purchaser to deliver up all Goods in its possession and control that have not been resold or irrevocably incorporated into another product, and if the Purchaser fails to do so promptly, enter any premises of the Purchaser or of any third party where the Goods are stored, to recover them. The Purchaser shall procure entry to any such third party’s premises if requested to do so by the Company.
11. TERMINATION
11.1. Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Purchaser if:
11.1.1. the Purchaser commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of it being notified in writing to do so;
11.1.2. the Purchaser takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
11.1.3. the Purchaser suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
11.1.4. the Purchaser’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
11.2. Without limiting its other rights or remedies, the Company may suspend supply of the Goods under the Contract or any other contract between the Purchaser and the Company if the Purchaser becomes subject to any of the events listed in clause 11.1.2 to clause 11.1.4, or the Company reasonably believes that the Purchaser is about to become subject to any of them, or if the Purchaser fails to pay any amount due under the Contract on the due date for payment.
11.3. Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Purchaser if the Purchaser fails to pay any amount due under the Contract on the due date for payment.
11.4. On termination of the Contract for any reason the Purchaser shall immediately pay to the Company all of the Company’s unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which the Purchaser shall pay immediately on receipt.
11.5. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
12. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel a Contract or reduce the volume of the Goods or Services ordered by the Purchaser (without liability to the Purchaser) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company ( which shall include without limitation any strike, any lack of available shipping or transport or materials, any restriction, regulation or decree by any local or municipal authority or government department), provided that, if the event in question continues for a continuous period in excess of 90 days, the Purchaser shall be entitled to give notice in writing to the Company to terminate the Contract.
13. LIMITATION OF LIABILITY 13.1. The restrictions on liability in this Condition 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2. Nothing in the Contract limits the Purchaser’s payment obligations under the Contract or either party’s liability which cannot legally be limited, including liability for death or personal injury arising from its negligence, for liability arising under the Consumer Protection Act 1987 (which if proved is not excluded), fraud or fraudulent misrepresentation and the breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
13.3. The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of a Contract shall be limited to the contract price specified in that Contract. 13.4. Subject to Condition 13.2 the following types of loss are wholly excluded from any claim by the Purchaser:
13.4.1. loss of profits, loss of sales or business or business opportunity;
13.4.2. loss or damage incurred by the Purchaser as a result of third party claims;
13.4.3. loss of agreements or contracts;
13.4.4. loss of anticipated savings;
13.4.5. loss of use or corruption of software, data or information;
13.4.6. loss of or damage to goodwill or injury to reputation; and
13.4.7. indirect or consequential loss.
14. GENERAL
14.1. A notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
14.2. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
14.3. Should any one or more of these Conditions or the Contract be found to be or become invalid illegal or unenforceable in any respect under any law the enforceability and validity of the remaining Conditions or Contract shall not in any way be affected or impaired thereby.
14.4. The parties to the Contract do not intend that any term of the Contract shall be enforceable by the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
14.5. The Company shall be free to sub-contract in whole or in part any element of the Contract and to assign any benefit arising under it without restriction.
14.6. The Contract constitutes the entire agreement between the parties to it relating to the sale of the Goods and/or the provision of Services. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract
15. GOVERNING LAW
15.1. The Contract is and shall be deemed to have been made in England and the Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall in all respects be governed by and construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation