- The following expressions in these conditions shall mean respectively:-
“the Company” Percy Martin Ltd
“the Purchaser” the person, company or body buying or offering to purchase goods.
“Goods” materials, products and/or services contracted for and/or supplied by the Company from time to time
- The following terms are the Company’s standard terms & conditions of sale. The Company contracts for the supply of goods only on these terms. The Purchaser accepts that these terms shall govern relations between itself and the Company to any exclusion of any other terms including conditions, warranties and representations written or oral, express or implied even if contained in the purchasers documents which purport to provide that the Purchaser’s own terms shall prevail.
Quotations and Orders
- Quotations remain valid 30 days and are subject to confirmation upon receipt of order.
- Contracts, once accepted, cannot be varied or cancelled with written consent of the Company.
- Representations or recommendations concerning the Goods, their storage, application or use made by the Company’s employees and agents are not valid unless confirmed by the company in writing. The Purchaser acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
- Any typographical, clerical or other omission in any sales literature, quotation, price list, acceptance or Offer, invoice or other documentation or information issued by the Company shall be subject to correction without liability on any part of the Company.
- Goods offered “ex stock” are subject to prior sales.
- All prices are ex works unless agreed and (unless expressly stated) exclude VAT or other sales tax which the Purchaser shall be additionally liable to pay to the Company.
- The Company reserves the right to amend the prices of a contract as a result of any change in delivery dates, quantities, qualities or specification of the Goods which is requested by the Purchaser as a result of any failure of the Purchaser to give the Company adequate information or instructions.
- Delivery of the Goods shall be made by the Purchaser collecting the Goods at the Company’s premises at any time after the Company has notified the Purchaser that the Goods are ready for collection or, if some other place for delivery is set out in the quotation/order confirmation note by the Company delivering the goods to that place.
- Any times stated for delivery are estimates only and shall not be of the essence of the contract save where the Company specifically so agrees in writing. If the Company is for any reason whatsoever not ready to make delivery within the time specified the Company shall not be liable for any loss or damage whatsoever sustained by the Purchaser.
- The Goods may be delivered by the company before the due delivery date upon giving reasonable notice to the Purchaser.
- When it is necessary for the Purchaser to supply any containers, packaging, labels, identifications or particulars in respect of the Goods or do any other act to enable the Company to effect delivery of the Goods the same must be furnished or performed within such a time is reasonably necessary to enhance the Company to deliver the Goods in acceptance with the contract.
- If the Purchaser fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery the Company may (without prejudice to any other right or remedy available to the Company):-
a) Store the Goods until actual delivery and charge the Purchaser for the reasonable costs (including insurance) of storage or
b) Sell the Goods at the best price obtainable and (after deducting all reasonable storage and selling expenses) account to the Purchaser for the excess over the price under the contract or charge the Purchaser for any shortfall below the prices under the contract.
- The Company may request a deposit from the Purchaser in advance of order. If such a sum is not received in due time the Company shall cease to be liable to supply Goods in accordance with the contract.
- Subject to any special terms agreed in writing between the Company and the Purchaser, the Company may invoice the Purchaser for the price of the Goods on or any time after the Goods have been made available for collection or delivered to the Purchaser or to any third party on its behalf.
- The Company may invoice for partial deliveries of Goods if such partial delivery is deemed by the Company to be necessary or expedient.
- Credit terms are only granted subject to satisfactory trade references. Unless otherwise stated by the Company either in its quotation or correspondence where credit terms have been agreed terms of payment are in the case of “used machines” or goods financed through a finance company strictly net cash payable on or at time of delivery and in the case of other goods strictly payable within 30 days of the date of invoice. Payment on the due date of all sums due by the Purchaser to the Company under any contract shall be of the essence of the contract.
- Where the Purchaser:-
a) is overdue with any payment owed to the Company or
b) shall have failed to take delivery of the Goods or
c) makes default in or commits any breach of its obligations to the Company hereunder or
d) becomes bankrupt, insolvent or has a petition presented in respect of an administration order or winding-up order in respect of it or has a receiver appointed or takes any step with a view to entering into a voluntary arrangement with this creditors (within the meaning of the Insolvency Act 1986) or
e) ceases or threatens to cease to trade, or if the Company shall reasonably doubt the solvency of the Purchaser then (without prejudice to any right or remedy available to it) the Company reserves the right to stop manufacture, delivery or performance by the Company will only recommence upon payment in full by the Purchaser of all outstanding amounts due on due completion of the Purchaser’s obligations hereunder. If the Company exercises its said rights any Goods to be delivered to the Purchaser following default shall be paid for on pro-forma invoice before or at the time of despatch of the Goods and the payment will become due on receipt of such pro-forma invoice suffered by a Purchaser as a result of the application of this condition nor shall it be reason for the cancellation by the Purchaser of this or any contract which shall at the Company’s opinion remain in full force and effect.
- The Company may charge interest at a rate of 5% per annum above the base rate from time to time of the Company’s bankers on any overdue payments or in respect of any delivery not taken by the Purchaser.
- Nothwithstanding that credit may have been given to the Purchaser under the contract, the Company shall in its discretion be entitled to retain possession of the Goods or at of them until payment has been received from the Purchaser in full. Without prejudice to any other right which the Company may have, the Company shall be entitled to exercise a general lien or right of retention on all Goods in the Company’s possession which are or are intended to become the Purchaser’s property in regard to all monies due to the Company from the Purchaser to sell all or any of such Goods in any manner and to keep the proceeds in diminution of such monies and of all costs and expenses incurred of effecting such sale.
Property and Risk in Goods
- a) Risk in the Goods shall pass to the Purchaser immediately on delivery to the Purchaser or into custody on the Purchaser’s behalf whichever is sooner.
b) Notwithstanding delivery, the Goods shall remain the absolute property of the Company (which reserves the right to dispose of them) until the Company has received the full price for the goods and the full price for any other goods for which payment is due from the Purchaser on or before the payment of the price of the Goods.
c) Until property in the Goods passes to the Purchaser the relationship between the Company and the Purchaser shall be that of Bailee and Bailee and the Purchaser shall store the Goods in such a way that they are readily identifiable as the property of the Company.
d) If the property in the Goods passes to the Purchaser:-
i) The Goods are altered or the Goods become attached to the Goods or if any part of the Goods is replaced such other goods or replacement parts shall accede to and form part of the Goods and such attachment and placement shall not affect the Company’s title as absolute owner of the Goods.
ii) The Goods are sold by the Purchaser, such sale or sales shall be deemed to be on behalf of the Company but without imposing and liability on the Company to the sub-purchaser, and the Purchaser shall hold such part of the proceeds of sale arising there from against the sub-purchaser as represents the sum due to the Company for such Goods as trustee for the Company and the Purchaser shall keep such part of the proceeds of such sale separate from its other monies and account to the Company accordingly.
e) If the payment of the price of the Goods or any part of it is overdue or if it appears to the Company that the Purchaser is or may be insolvent, the Company may require the Purchaser to deliver up the Goods to the Company and, if the Purchaser fails to do so forthwith, the Purchaser shall permit the Company to recover or resell the Goods and by its servants or agents enter upon the Purchaser’s premises (or such premises where the Goods are stored or situated) for that purpose.
Damage in Transit
- The Company will only accept liability for:-
a) Damage to the Goods caused in transit if the same is notified to the Company and the carrier (if not delivered by the Company) within three days of receipt of Goods by the Purchaser.
b) Non arrival, if the same is notified to the Company within a reasonable period from the day that the company informed the Purchaser that the Goods or the relevant consignment thereof were due to arrive. Where the Company accepts responsibility under this clause, it may, at its sole option credit the Purchaser’s account or repair or place (as the case may be) those of the Goods which are proved to the Company’s satisfaction to have been lost or damaged prior to the delivery of the purchase.
- The Company shall be relived of its obligations under any contract wherever to the extent to which the fulfilment of such obligations is prevented, frustrated or impeded as a result of force majeure.
- a) The Company warrant that in manufacture of any goods, only the best workmanship and materials have been employed. If within 12 months from the date of despatch (subject to being on a normal single shift basis only) there shall be found any defect caused by faulty materials or workmanship and not caused by fair wear and tear, damage In transit, accident misuse or neglect, the Company shall make good the defect free of charge either by repair or at our option by the replacement of a part or parts.
b) No warranty or guarantee is given in respect of proprietary articles and products supplied by the Company and not of our manufacture which are subject only to the maker’s guarantee or warranty (if any) and the Purchaser is entitled to the benefit of that guarantee only so far as the Company has the power to transfer it.
c) No warranty or guarantee is given on used machinery unless specifically agreed in writing by the Company.
d) Any warranty or guarantee available may be invalidated If the goods are installed or used improperly, or in an unsuitable environment. Save as aforesaid no condition is made or to be implied nor is any warranty given or to be implied as to the life or wear of the goods supplied or that they will obtain any performance figures (unless such figures are guaranteed by the Company in writing) or that they will be suitable for any particular purpose or for use under any specific conditions, notwithstanding that any such purpose or conditions may be known or made known to the Company.
e) Save as expressly provided in these conditions we shall be under no liability whatsoever in respect of any loss injury or expense whatsoever arising from any defect in the goods and in particular (but without prejudice to the generality of the foregoing) the Company shall not be liable for any consequential damage or expense or any loss of profit or any liability to third parties incurred by the Purchaser in consequence of such defects.
f) The Purchaser will indemnify us in respect of any liability, loss, claim or proceedings whatsoever arising whether under any Statute or at common law in respect of any damage to property or the death or injury to any person caused by or by the use of any goods sold by the Company to the Purchaser unless in the case of death or personal injury only, such death or injury shall be proved to have been caused by the Company or that of its employees.
g) Nothing in these Conditions shall apply to exclude or restrict any liability which cannot be excluded or restricted by virtue of the Unfair Contract Terms Act 1977.
- The Company shall be entitled to sub-contract all or any of its obligations hereunder
- All descriptive and forward specifications, drawings and other particulars submitted with the Company’s tender are approximate only. The descriptions are illustrations contained in the Company’s catalogues, price list and other documentation are intended merely to present a general idea of the Goods described therein and one of these shall form part of a contract.
- Any condition hereof that is hereafter found invalid or unenforceable in whole or in part for any reason shall whenever allowed by the context be deemed replaced by such valid or enforceable clause covenant or provision (if any) whose contents are as close as permissible to those of the invalid or unenforceable clause covenant or provision. If such replacement is not possible, the offending condition or part thereof shall be severed here from and severance shall not otherwise affect or be deemed to affect the remainder (if any) of such condition or otherwise of any remaining clauses of these terms and conditions of sale.
- Any waiver, forbearance or failure by the Company in insisting in any one or more incidences upon the performance of these conditions shall not be construed as a waiver or relinquishment of the Company’s right to future performance of such condition and the Purchaser’s obligations in respect of such future performance shall continue in full force and effect.
No Set Off
- Any payment to be made by the Purchaser to the Company shall be made in full without any set off or deduction there from any counterclaim, or claim to a lien thereover howsoever the same arise.
Law of Contract
- These conditions and any contract hereunder shall be governed by and construed under English law and the Company and the Purchaser submit to the exclusive jurisdiction of the English courts.
- Any notice or document required or permitted to be given to or severed on one part hereto by another party shall be in writing and shall be given or served by delivering or despatching the same by one of the methods set out below at its registered office of a company and (if not) to the party’s last known address. Provided that where necessary the despatch of such notice or document has been properly pre-paid a notice or document so given or served shall conclusively be deemed to have been received at the time set our alongside the respective manner of service today namely:-
a) by hand on the recipient or an authorised officer thereof-at the time of such service;
b) by first class post-at the commencement of the first business day next commencing more than 24 hours after despatch
c) by telex, telecopier, facsimile transmission, email or other electronic mean of written communication – at the commencement of the first business day next commencing more than 48 hours after despatch
d) abroad by first class airmail post- at the commencement of the first business day next commencing more than 72 hours after despatch