Trading Terms and Conditions

1. Definitions and Interpretations.

1.1 Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

1.2 Conditions: the terms and conditions set out in this document (as amended from time to time in accordance with clause 15).

1.3 Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

1.4 Customer: the person or firm who purchases the Goods from the Supplier.

1.5 Force Majeure Event: has the meaning given in clause 5.

1.6 Goods: the goods (or any part of them) set out in the Order.

1.7 Order: the Customer's order for the Goods, as set out [in the Customer's purchase order form OR in the Customer's written acceptance of the Supplier's quotation OR in the Supplier’s [pro-forma] invoice, as the case may be].

1.8 Specification: any specification for the Goods, including any related plans and drawings, that is agreed [in writing] by the Customer and the Supplier.

1.9 Supplier: RJW Machinery Sales Ltd. registered in England and Wales with company number 5474383.

2. Basis of Contract.

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification [submitted by the Customer] are complete and accurate.

2.3 The Order shall only be deemed to be accepted in accordance with clause 1.7, at which point the Contract shall come into existence.

2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any [descriptions or] illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

3. Customer's Insolvency or Incapacity.

3.1 If the Customer becomes subject to any of the events listed in clause 3.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

3.2 For the purposes of clause 3.1, the relevant events are:

(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer];

(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;

(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen [14] days;

(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

(g) (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;

(h) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;

(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 3.2(a) to clause 3.2(h) (inclusive);

(j) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;

(k) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

4. Delivery/Collection.

4.1 Any time or date for delivery/collection given by the Company is an estimate only and the Company will not be liable for the consequences of any delay.

4.2 The Buyer shall make all necessary arrangements to take delivery and /or arrange collection of the Goods on the day notified by the Company.

4.3 The Buyer will ensure the prompt turnaround of all transport vehicles used in the delivery/collection of any Goods and will indemnify the Company against any loss arising from the delay in turn around.

4.4 Where the Company is to deliver the Goods to the Buyer such delivery will be at the Buyers nominated address [provided on the Buyer’s order form OR Supplier’s invoice OR given to the Company’s representative].

4.5 Each delivery of Goods under the contract will constitute a separate Contract to which these terms will apply mutatis mutandis and failure to make any delivery will not terminate other Contracts.

5. Force Majeure.

5.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

6. Governing Law and Jurisdiction.

6.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

7. Instructions for Safe Use.

7.1 Customers are advised to read the manufacturer’s instructions and follow those instructions accordingly. If the Customer has any difficulty in interpreting the manufacturer’s instructions then they should seek advice from the Company prior to using any machinery.

8. Part Exchange.

8.1 The Buyer warrants to the Company that any Vehicle or Goods taken by the Company in part exchange is the Buyers sole property and that it is not subject to any change or encumbrance.

8.2 The Buyer agrees that any such item taken in part exchange will be in the same condition when delivered to the Company’s premises as it was when the Company agreed to accept it part exchange.

8.3 If the Buyer is in breach of any part of this clause payment to the Company for the Goods will be regarded as not having been made for the purpose of clause 14. If this clause is held unreasonable every other part of this clause will remain in force.


9. Price and Payment.

9.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.

9.2 The Supplier may, by giving notice to the Customer at any time [up to seven (7) Business Days] before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

9.3 Unless expressly stated otherwise, the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

9.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

9.5 The Supplier may [pro-forma] invoice the Customer for the Goods prior, on or at any time after the completion of delivery/collection.

9.6 The Customer shall pay the invoice in full and in cleared funds as per the due date outlined on the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

9.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the base rate of interest as set by the Bank of England. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

9.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

10. Quotations.

10.1 A quotation for the Goods given by the Supplier shall not constitute an offer.

10.2 All quotations are made subject to the Company’s approval of credit references should they be required.

10.3 All prices quoted are valid for fourteen (14) days or until acceptance by the Customer.

10.4 No Contract shall come into effect until the Customer’s Order is received by the Company and Contracts are then subject to stock availability.

11. Returns.

11.1 The Company will not accept Goods returned without its written consent. Any goods approved for return must be advised in writing quoting the Company’s invoice number. Risk in Goods so returned shall remain with the Customer whilst in transit to the Company and the Company reserves the right to charge a reasonable handling charge.

12. Severance.

12.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

13. Third Party Rights.

13.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.

14. Title and Risk.

14.1 The risk in the Goods shall pass to the Customer on completion of delivery.

14.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:

(a) the Goods and;

(b) any other goods or services that the Supplier has supplied to the Customer [in respect of which payment has become due].

14.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) hold the Goods on a fiduciary basis as the Supplier's bailee;

(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;

(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 3.2; and

(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time,

but the Customer may resell or use the Goods in the ordinary course of its business.

14.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 3.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

15. Variation.

15.1 Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.

16. Waiver.

16.1 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 breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

17. Warranty and Liability.

17.1 Goods sold by the Company are categorised as being either Trade or Retail, and the Company’s general Servicing and Warranty Policy, available on the Company’s website, clearly defines the servicing, warranty and liability for each category.

17.2 All warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

17.3 All goods are sold only to the specification and design of their manufacturer and the Customer shall only be entitled to the benefit of any such warranty or guarantee as it is given by the manufacturer to the Company.

17.4 Services are rendered by the Company on the basis that the Company will at its own expense make good any defect in the product or the services attributable to bad workmanship which occurs and becomes apparent within seven (7) days of the completion of the services, if, and only if the Customer notifies the Company in writing of the defect within that period and within one (1) day of the defect becoming apparent. Where the Company uses goods in connection with the services the Company will use its reasonable endeavours to pass onto the Customer any guarantee or warranty given to the Company in relation to such goods by the manufacturer or supplier of them.

17.5 The Customer is responsible for arranging, at its own expense, the return of the Goods to the Company’s premises and, upon agreement that the services were subject to warranty or attributable to bad workmanship, the Company may at its own discretion, reimburse the cost of the return.

17.6 Except

(a) in respect of death or personal injury caused by the Company’s negligence: or

(b) as expressly provided in these terms and conditions the Company shall not be liable to the Customer by reason of any implied warranty, condition or other term or any duty at common law or under the express terms of the Contract for any loss or damage including consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for consequential compensation whatsoever and whether caused by the negligence of the Company, its employees or agents or otherwise which arise out of or in connection with the supply of goods or their use or resale by or the provision of services to the Customer: or

(c) if any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

18. Statutory Rights.

18.1 The Statutory Rights of the Customer are not affected by these terms and conditions.

Copyright © RJW Machinery Sales Ltd. 2010