ANDOVER FORKTRUCK SERVICES LTD CONDITIONS OF SALE
1 Definitions
1.1 In these Conditions “ANDOVER” shall mean ANDOVER FORKTRUCK SERVICES Limited
“Customer” shall mean the person who accepts a quotation of ANDOVER for the sale of the Goods or whose order for Goods is accepted by ANDOVER
“Goods” means the goods (including any instalment of the goods or any part of them) which ANDOVER is to supply in accordance with these conditions
“Contract” means the contract for the purchase and sale of the Goods
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation
2 Prices and Payment
2.1 The price payable by the Customer shall be the price ruling at the date of despatch of the Goods by ANDOVER to the Customer notwithstanding any other price or prices indicated, estimated or quoted to the Customer and ANDOVER reserves the right to increase the price of the Goods at any time before delivery on giving notice to the Customer
2.2 All prices are given by ANDOVER on an ex works basis and the Customer shall be liable to pay ANDOVER’s charges for transport packaging and insurance. The price is exclusive of any applicable Value Added Tax which the Customer shall in addition pay to ANDOVER
2.3 The Customer shall pay the price of the Goods within 30 days after the date of ANDOVER’s invoice or the date for payment specified therein and ANDOVER shall be entitled to recover the price notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract; Truck sales are always full payment on or before delivery
2.4 If the Customer fails to make payment on the due date then ANDOVER shall be entitled to:
2.4.1 cancel the Contract or suspend any further deliveries to the Customer
2.4.2 appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the customer and ANDOVER) as ANDOVER may think fit notwithstanding any purported appropriation by the Customer and
2.4.3 charge the Customer interest both before and after any judgement on the amount unpaid at the rate of 11/2% per annum above Lloyds Bank plc base rate from time to time until payment in full is made prior to the month being treated as a full month for the purpose of calculating interest
3 Orders & Specification
3.1 The Customer shall be responsible to ANDOVER for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving ANDOVER any necessary information relating to the Goods within a sufficient time to enable ANDOVER to perform the Contract in accordance with its terms
3.2 The quantity quality and description of and any specification for the Goods shall be those set out in ANDOVER’s quotation if accepted by the Customer or the Customer’s order accepted by ANDOVER
3.3 If the Goods are to be manufactured or any process is to be applied to the Goods by ANDOVER in accordance with a specification submitted by the Customer, the Customer shall indemnify ANDOVER against all loss damages costs and expenses awarded against or incurred by ANDOVER in connection with or paid or agreed to be paid by ANDOVER in settlement of any claim for infringement of any patent copyright design trade mark or other industrial or intellectual property rights of any other person which results from ANDOVER’s use of the Customer’s specification
3.4 ANDOVER reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EEC requirements or where the Goods are to be supplied to the Customer’s specification which do not materially affect their quality or performance
3.5 No order which has been accepted by ANDOVER may be cancelled by the Customer except with the agreement in writing of ANDOVER and on terms that the Customer shall indemnify ANDOVER in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses incurred by ANDOVER as a result of cancellation
3.6 ANDOVER may cancel the Contract at any time before the Goods are delivered by giving written notice. On giving such notice ANDOVER shall promptly repay to the Customer any sums paid in respect of the price. ANDOVER shall not be liable for any loss or damage whatever arising from such cancellation
4 Risk and Title
4.1 Risk of damage to or loss of the Goods shall pass to the Customer
4 .1.1 in the case of Goods to be delivered at ANDOVER’s premises at the time when ANDOVER notifies the Customer that the Goods are available for collection or
4.1.2 in the case of Goods to be delivered otherwise than at ANDOVER’s premises at the time of the delivery or if the Customer wrongfully fails to take delivery of the Goods at the time when ANDOVER has tendered delivery of the Goods
4.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until ANDOVER has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by ANDOVER to the Customer for which payment is then due
4.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as ANDOVER’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as ANDOVER’s property. Until that time the Customer shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to ANDOVER for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured
4.4 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) ANDOVER shall be entitled at any time to require the Customer to deliver up the Goods to ANDOVER and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods
4.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of ANDOVER, but if the Customer does so all moneys owing by the Customer to ANDOVER shall (without prejudice to any other right or remedy of ANDOVER) forthwith become due and payable
5 Delivery
5.1 Delivery of the Goods shall be made by ANDOVER delivering the Goods to the Customer’s premises (unless some other place for delivery or collection by the Customer from ANDOVER’s premises is agreed)
5.2 Any dates quoted for delivery of the Goods are approximate only and ANDOVER shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence
5.3 If ANDOVER fails to deliver the Goods for any reason other than any cause beyond ANDOVER’s reasonable control or the Customer’s fault, and ANDOVER is accordingly liable to the Customer, ANDOVER’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods
5.4 Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by ANDOVER to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated
6 Information/Health and Safety
ANDOVER will provide to the Customer information as to the proper and safe use of the Goods and the Customer warrants it will at all times obey and comply with ANDOVER’s instructions or other information relating to the use of the Goods
7 Technical Drawing and Copyright
7.1 The specification and design of the Goods (including the copyright design right or other intellectual property in them) shall as between the parties be the property of ANDOVER. Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of ANDOVER the Customer warrants that the use of those designs or specifications for the manufacture processing assembly or supply of the Goods shall not infringe the rights of any third party
7.2 The Customer hereby agrees fully and effectively to indemnify ANDOVER on demand for and against all proceedings, costs, claims, damages and expenses suffered or incurred by ANDOVER arising out of any use of those designs and specifications in breach of copyright of any third party
7.3 All specifications drawings and designs supplied to the Customer by ANDOVER are returnable forthwith upon request and shall not without the previous consent in writing of ANDOVER disclosed or made available to any third party
8 Warranties and liability
8.1 Subject to the conditions set out below ANDOVER warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of three months from delivery
8.2 The above warranty is given by ANDOVER subject to the following conditions:
8.2.1 ANDOVER shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer
8.2.2 ANDOVER shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow ANDOVER’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without ANDOVER’s approval or any repair effected with ANDOVER’s approval but using parts not supplied by ANDOVER
8.2.3 ANDOVER shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment or if the Goods have not been used or maintained in accordance with recommendations from ANDOVER
8.3 Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law
8.4 Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to ANDOVER within 14 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify ANDOVER accordingly, the Customer shall not be entitled to reject the Goods and ANDOVER shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. Goods rejected by the Customer (for whatever reason) shall be returned to ANDOVER by the Customer carriage paid in their original packaging
8.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to ANDOVER in accordance with these Conditions, ANDOVER shall be entitled to replace the Goods (or the part in question) free of charge or, at ANDOVER’s sole discretion, refund to the Customer the price of the Goods (or a proportionate part of the price) but ANDOVER shall have no further liability to the Customer. ANDOVER may at its option and the Customer’s cost effect repairs to or replacement of the Goods if such repair or replacement is (in ANDOVER’s opinion) necessary to remedy any defect caused by the Customer
8.6 Except in respect of death or personal injury caused by ANDOVER’s negligence, ANDOVER shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any 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 ANDOVER, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Customer except as expressly provided in these Conditions
8.7 Without prejudice to any other limitation or exclusion of liability under these Conditions ANDOVER’s total liability for any one claim or the total of all claims arising from any one act or default of ANDOVER (whether arising from ANDOVER’s negligence or otherwise) shall not exceed the price of the Goods through which the loss or damage arises
8.8 ANDOVER shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of ANDOVER’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond ANDOVER’s reasonable control
9 Insolvency of Customer
9.1 This clause applies if:
9.1.1 the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
9.1.3 the Customer ceases, or threatens to cease, to carry on business; or
9.1.4 ANDOVER reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly
9.2 If this clause applies then, without prejudice to any other right or remedy available to ANDOVER, ANDOVER shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary
10 Export terms
10.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause shall (subject to any special terms agreed in writing between the Customer and ANDOVER) apply notwithstanding any other provision of these Conditions
10.2 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the Country of destination and for the payment of any duties thereon
10.3 Unless otherwise agreed in writing between the Customer and ANDOVER, the Goods shall be delivered fob the air or sea port of shipment and ANDOVER shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979
10.4 The Customer shall be responsible for arranging for testing and inspection of the Goods at ANDOVER premises before shipment. ANDOVER shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit
11 General
11.1 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby
11.2 No waiver by ANDOVER of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision
11.3 The provisions of these Conditions of sale shall be read and construed according to English law and the parties submit to the exclusive jurisdiction of the English Courts
11.4 Any 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 asmay at the relevant time have been notified pursuant to this provision to the party giving the notice
12 Cancellation
12.1 Cancellation of New Mitsubishi Product order within 4 weeks of the promised delivery date shall incur a penalty of 75% of the total order value. Cancellation prior to 4 weeks before the promised delivery date shall incur a penalty of 50% of the total order value.
12.2 Cancellation of Used Equipment order within 1 week of the promised delivery date shall incur a penalty of 75% of the total order value. Cancellation prior to 4 weeks before the promised delivery date shall incur a penalty of 50% of the total order value.
12.3 Cancellation of New Non-Mitsubishi equipment will incur a charge equivalent to the full value of the order.