Wilson Machinery Ltd – Terms and Conditions of Sale
1. INTERPRETATION
1.1. ‘Buyer’: the person, firm or company who accepts an Order Form and purchases Goods and/or Services from the Company.
1.2. ‘Company’: WILSON MACHINERY LIMITED (Company number SC258551).
1.3. ‘Contract’: the agreement between the Buyer and the Company for the supply of Goods and/or Services constituted by the Order Form, the Buyer’s acceptance and the Terms.
1.4. ‘Deposit’: any deposit specified in the Order Form.
1.5. ‘Goods’: the machinery, parts and items set out in the Order Form.
1.6. ‘Order Form’: the order placed by the Buyer with the Company for the supply of Goods and/or Services.
1.7. ‘Services’: any services set out in the Order Form.
1.8. ‘Terms’: these Terms and Conditions of Sale.
1.9. ‘Warranty’: any warranty referred to in clause 8 of these Terms or as stated in the Order Form.
2. CONTRACT
2.1. The Order Form constitutes an offer by the Company to sell Goods and/or Services (as applicable) in accordance with the Terms.
2.2. The Order Form shall be accepted when the Buyer accepts the order whereupon the Contract shall commence. Order Forms may be accepted by email or other electronic means of communication.
2.3. The Terms apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing. The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Terms.
2.4. In the event of any conflict or inconsistency between the Terms and the Order Form, the Order Form shall govern and prevail.
3. PRICE and PAYMENT
3.1. The price for the Goods and/or Services shall be as set out in the Order Form. Where a Deposit is specified in the Order Form, the Deposit must be paid by the date specified. All Deposits are non-refundable unless agreed in writing by the Company. The price of the Goods and/or Services:
3.1.1. excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and
3.1.2. unless otherwise specified in the Order Form excludes the costs and charges of packaging, loading, insurance and transport of the Goods, which shall be separately invoiced to the Buyer.
3.2. The Company shall be entitled to invoice and receive payment of the price of the Goods before delivery. Unless otherwise specified in the Order Form, all Services shall be paid for no later than 30 days from the date of the invoice.
3.3. Payment shall be made by cheque, credit card or in cleared funds to a bank account nominated in writing by the Company. The Company will only accept cash to a limit of £5,000.00.
3.4. In the event that payment is not received for the Goods and/or Services by the Company by the date set out on the Company’s invoice for the Goods and/or Services the Company may suspend delivery or performance. In addition, if Goods and/or Services have been delivered or provided the Company reserves the right to charge interest from the date when payment was due until payment at the rate of 5 per cent per annum above Bank of England base lending rate at the time and/or to terminate the Contract (without prejudice to its rights and remedies).
3.5. 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).
4. DELIVERY, TITLE and RISK
4.1. Unless otherwise specified in the Order Form:
4.1.1. where the Goods are to be delivered by the Company, risk in the Goods shall pass to the Buyer when the Goods have been delivered to the Buyer;
4.1.2. where the Goods are to be collected by the Buyer, risk in the Goods shall pass to the Buyer when the Goods are handed to the carrier for delivery to the Buyer.
4.2. 4.2.1. where, after initial delivery or collection, the Goods are to be returned by the Buyer, risk in the Goods shall pass back to the Company when the Goods have been delivered to the Company;
4.2.2. where, after initial delivery or collection, the Goods are to be returned by the Company, risk in the Goods shall pass back to the Company when the Goods are handed to the carrier for delivery to the Company
4.3. Title to the Goods shall not pass to the Buyer until the Company receives payment in full (in cash or cleared funds) for both the Goods and for any other goods or services that the Company has supplied to the Buyer, in which case title to the Goods shall pass at the time of payment of all such sums.
4.4. Until title to the Goods has passed to the Buyer, the Buyer shall:
4.4.1. store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company’s property;
4.4.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
4.4.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
4.4.4. notify the Company immediately if it becomes subject to any of the events listed in clauses 5.2.3 or 5.2.4; and
4.4.5. give the Company such information as the Company may reasonably require from time to time relating to:
4.4.5.1. the Goods; and
4.4.5.2. the ongoing financial position of the Buyer.
4.5. At any time before title to the Goods passes to the Buyer, the Company may require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
4.6. Any dates quoted for delivery or performance are approximate only, and the time of delivery or performance is not of the essence. The Company shall not be liable for any delay in delivery of the Goods or performance of Services.
4.7. If the Company fails to deliver the Goods, subject to the other provisions of these Terms, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a force majeure event as specified in clause 6 or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5. TERMINATION
5.1. Without limiting its other rights or remedies, the Company may suspend provision of the Goods or Services under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in clauses 5.2.3 or 5.2.4, or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
5.2. Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer:
5.2.1. fails to pay any amount due under the Contract on the due date for payment;
5.2.2. commits a material breach of its obligations under the Contract;
5.2.3. takes any step or action in connection with its entering administration, provisional liquidation, liquidation, receivership, or any composition or arrangement with its creditors or is the subject of any insolvency process;
5.2.4. suspends or threatens to suspend or ceases or threatens to cease to carry on all or a substantial part of its business.
5.2. On termination of the Contract the Buyer shall:
5.2.1. immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest;
5.2.2. pay to the Company the value of any Goods or Services supplied in respect of which no invoice has been delivered;
5.2.3. return all Goods which have not been fully paid for. If the Buyer fails to do so then the Company, its servant or agents may enter the Buyer’s premises and take possession of them.
5.3. 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.
5.4. Termination shall not affect any rights remedies obligations and liabilities of the parties that have accrued up to the date of termination.
6. FORCE MAJEURE
The Company shall not be liable to the Buyer for any loss or damage (including consequential loss) as a result of manufacture or delivery of all or some of the Goods or performance of Services being delayed or prevented by circumstances outside the reasonable control of the Company including but not limited to pandemic, epidemic, delays by the Company’s suppliers, labour shortages, strikes, lockouts or labour disputes of any kind , fires, floods, accidents or breakdowns of machinery or equipment, shipping, dock strikes, railway or transport, accident, war, riot, civil commotion, Government intervention, declaration of national emergency, act of God, inability to obtain raw materials, cancellation or shortage of supplies, breach of contract by their own manufacturers or suppliers, difficulty or impossibility of complying with import regulations or obtaining import licences. In any such circumstances the Company shall be entitled at any time without prejudice to its other rights to cancel the Contract or at its option to effect partial delivery or performance without incurring any liability whatsoever to the Buyer. In circumstances where the Goods have been specially obtained for the Buyer and there is no readily available market for them, the Company shall be entitled to charge the Buyer reasonable costs and expenses incurred in respect of the Goods.
7. SPECIFICATIONS
The specifications of the Goods or Services (as appropriate) shall be those stated in the Order Form.
8. WARRANTIES
8.1. For Goods which are new, the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company and is detailed in the Order Form.
8.2. For Goods which are used or reconditioned, unless otherwise specified in the Order Form, the Company warrants that on delivery, and for the period set out in the Order Form, the Goods shall:
8.2.1. conform in all material respects with their description; and
8.2.2. be free from material defects in materials and workmanship, in both cases to the extent provided or performed by the Company.
Where specified in the Order Form, some used or reconditioned Goods may be supplied “as is” and without any warranty in which event the Company shall have no liability to the Buyer in respect of such Goods which are deemed to be sold at the Buyer’s sole risk.
8.3. Subject to clause 8.4, if:
8.3.1. the Buyer gives notice in writing to the Company during the applicable warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the applicable warranty referred to in clauses 8.1 or 8.2;
8.3.2. the Company is given a reasonable opportunity of examining such Goods; and
8.3.3. the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost,
the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
8.4. The Company shall not be liable for the Goods’ failure to comply with the warranty set out in clauses 8.1 or 8.2 if:
8.4.1. the Buyer makes any further use of such Goods after giving notice in accordance with clauses 8.1 or 8.2;
8.4.2. the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
8.4.3. the defect arises as a result of the Company following any drawing, design or specification supplied by the Buyer;
8.4.4. the Buyer alters or repairs such Goods without the written consent of the Company;
8.4.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
8.5. Except as provided in this clause 8.3, the Company shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clauses 8.1 or 8.2.
8.6. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and/or sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.7. These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
8.8 The Company warrants that any Services will be provided in all material respects in accordance with any agreed specifications and using reasonable care and skill.
9. LIABILITY
9.1. References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, delict, tort (including negligence), misrepresentation, restitution or otherwise.
9.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
9.2.1. death or personal injury caused by negligence;
9.2.2. fraud or fraudulent misrepresentation;
9.2.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; and
9.2.4. defective products under the Consumer Protection Act 1987.
9.3. Subject to clause 9.2, the Company’s total liability to the Buyer shall not exceed the price of the relevant Goods and/or Services.
9.4. Subject to clause 9.2, the following types of loss are wholly excluded:
9.4.1. loss of profits;
9.4.2. loss of sales or business;
9.4.3. loss of agreements or contracts;
9.4.4. loss of anticipated savings;
9.4.5. loss of use or corruption of software, data or information;
9.4.6. loss of or damage to goodwill; and
9.4.7. indirect or consequential loss.
9.5. This clause 9 shall survive termination of the Contract.
10. DATA PROTECTION
The Company is aware of its obligations under the UK data protection legislation and is committed to processing any personal data securely and transparently.
11. GENERAL
11.1. Assignment and other dealings
11.1.1. The Company may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2. The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
11.2. Confidentiality
11.2.1. Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by 11.2.2.
11.2.2. Each party may disclose the other party’s confidential information:
11.2.2.1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.2; and
11.2.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.2.3. Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11.3. Entire agreement
11.3.1. The Contract constitutes the entire agreement between the parties.
11.3.2. 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.
11.4. Variation
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5. Waiver
11.5.1. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
11.5.2. 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.
11.6. Severance
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.7. Notices
11.7.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
11.7.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
11.7.1.2. sent by email to an address nominated in writing by the party to be served.
11.7.1.3. Any notice shall be deemed to have been received:
11.7.1.3.1. if delivered by hand, at the time the notice is left at the proper address;
11.7.1.3.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting; or
11.7.1.3.3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
11.7.1.4. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.8. Third party rights
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce any term of the Contract.
12. Governing Law and Jurisdiction
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 be governed by and construed in accordance with the law of Scotland. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction 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.