In these Conditions “the Company” shall mean KELVIN CAVE LIMITED and “the Customer” shall mean any person, firm or company placing an order with, or otherwise dealing with, the Company.
GENERAL
These Conditions are binding unless otherwise agreed in writing on behalf of the Company.
None of these Conditions may be varied, save upon the express authority of a Director of the Company, such authority to be in writing and signed by that Director.
If the Company omits to enforce any of these Conditions, such omission shall not be construed as a waiver of any of the Company’s rights under the Contract with the Customer.
ORDERS AND SPECIFICATIONS
All goods are offered for sale subject to their availability.
Any error or omission in any document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order and for giving the Company any necessary information relating to the goods within a sufficient time to enable the Company to perform the same.
No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company 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 the Company as a result of cancellation.
PRICES AND QUOTATIONS
Subject to sub-paragraphs 4.3 and 4.4 below, prices quoted are valid for 14 days only.
All prices quoted by the Company are exclusive of Value Added Tax unless otherwise stated.
Prices quoted for goods are subject to variation without notice at any time prior to the date of delivery by such amount as may be necessary to cover any increase after the date of quotation or order in direct or indirect costs of making, obtaining, handling or supplying the goods.
The Company reserves the right to increase the price of the goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company, to any change requested by the Customer, or any delay caused by any instructions of or failure by the Customer to give the Company adequate instructions.
Prices quoted for repair work are estimates only and may be subject to adjustment on completion of the work.
Prices quoted by the Company for a specified quantity of goods shall apply only to orders for those quantities.
TERMS OF PAYMENT
The Company shall be entitled to invoice the Customer for the price of the goods on delivery or after the Company has notified the Customer that the goods are ready for collection or has tendered delivery.
Payment for all machines and implements is due before or on delivery. Payment for all other goods is due within thirty days of the date of the Company’s invoice.
If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
(a) suspend any further deliveries to the Customer;
(b) charge the Customer interest on outstanding debts at the rate of two and a half percent per month (a part of the month will be treated as a full month for the purpose of calculating interest).
DELIVERY
The Company will use its best endeavours to deliver goods on the date specified as the delivery date, but shall not be under any contractual obligation to deliver on that date. The Company accepts no liability for direct or consequential loss arising from delay in delivery whether or not caused by the negligence of the Company, its employees, agents or sub-contractors.
If the Customer requests and the Company agrees to deliver within 24 hours of receiving the order from the Customer then the Company shall be entitled to make an additional charge.
RISK AND PROPERTY
Notwithstanding delivery and the passing of risk in the goods, the property in the goods shall not pass to the Customer until the Company 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 the Company to the Customer for which payment is then due.
Until such time as the property in the goods passes to the Customer, the Customer shall hold the goods as the Company’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 the Company’s property, but shall be entitled to resell or use the goods in the ordinary course of its business.
Until such time as the property in the goods passes to the Customer (and provided the goods are still in existence and not resold), the Company shall be entitled at any time to give notice to the Customer terminating the Customer’s right to possession of the goods (excepting those which have been sold to a third party by way of bona fide sale in the ordinary course of business) to the Company, in default of which the Company may (whether with or without previous notice) itself repossess such goods and the Company shall in such circumstances be irrevocably authorised by the Customer to enter the Customer’s premises on which such goods are situated and to remove them at the Customer’s expense.
Upon recovery of their goods the Company shall have the right to re-sell the goods and shall be entitled to recover from the Customer all costs directly and indirectly involved in the re-sale. If the re-sale price is lower than the original selling price, the Company shall have the right to recover from the Customer the difference between the two prices plus interest from the date of the original sale to the date of the completion of the re-sale.
WARRANTIES AND LIABILITY
Unless expressly provided in these Conditions and 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.
Where the goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Conditions.
Any claim by the Customer which is based on any defect in the goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Company within seven days from the date of delivery or reasonable time after discovery of the defect or failure.
Where any valid claim in respect of the goods which is based on a defect in the quality or condition of the goods or failure to meet specifications is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the goods (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Customer the price of the goods (or a proportionate part of the price), but the Company shall have no further liability to the Customer.
Except in respect of death or personal injury caused by negligence, the Company shall not be liable by reason of any representation (unless fraudulent), or implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (for loss of profit or otherwise), costs, expenses or other claims for compensation (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 the goods or their use or resale by the Customer, and the liability of the Company under or in connection with the Contract shall not exceed the price of the goods, except as expressly provided in these Conditions.
The Company shall not be liable to the Customer or be deemed to be in breach of the Contract for delay in performing, or failure to perform, any obligations in relation to the goods, if due to any cause beyond the Company’s reasonable control.
PART EXCHANGE
In the event of the Customer offering a used machine in part exchange the Customer agrees and declares that:
(a) the used machine is the absolute property of the Customer and is freed from all encumbrances; or
(b) such used machine is the subject of a hire purchase agreement or other encumbrance capable of cash settlement in which case the part-exchange allowance shall be reduced by the amount required to be paid by the Company in settlement thereof.
(c) any agreed part-exchange allowance is based on such used machine’s present condition and if it is not handed over by the Customer to the Company in the same condition (fair wear and tear excepted) as at present the Company may make a reasonable reduction from the allowance to cover the cost of any repairs which may be necessary.
LOSS OR DAMAGE IN TRANSIT
The Company shall not be liable for any loss or damage to goods while in transit unless written notice thereof is given by the Customer to the Company.
(a) In the case of shortage of or damage to goods the Customer should notify the delivery driver, mark the nature of the discrepancy/damage on the delivery ticket and notify the Company as soon as reasonably possible. Where the goods are damaged to the extent that the Customer would require a replacement, the Customer should refuse to accept the goods and notify the Company as soon as reasonably possible.
(b) In the case of non-delivery of goods within seven days of the date notified to the Customer as the delivery date.
(c) If the Customer proves that it was not reasonably possible for him to give such notice to the Company within the appropriate period and that notice was given within a reasonable period, the Company shall not be entitled to rely upon time limits stipulated by this Condition.
Any liability that the Customer may incur for loss of or damage to goods while in transit shall in any event be limited to the invoice value of the goods or at the option of the Company the replacement value thereof and in no circumstances shall the Company be liable for any indirect or consequential loss however caused.
The Company reserves the right at its discretion to repair or replace the whole or any part of any defective or damaged goods.
INSOLVENCY OF CUSTOMER
This clause applies if:
(a) the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
(c) the Customer ceases, or threatens to cease, to carry on business; or
(d) the Company reasonably apprehends that any of the above events is about to occur in relation to the Customer and notifies the Customer accordingly.
If this clause applies then, without prejudice to any other right or remedy available, the Company shall be entitled to cancel the contract or suspend any further deliveries 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 to the contrary.
GENERAL
Any notice required or permitted to be given by either party to the other shall be in writing (including post, email, facsimile transmission and comparable means of communication) 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 to the party giving the notice.
No waiver by the Company of any breach of the contract by the Customer shall amount to a waiver of any subsequent breach of the same or any other provision.
If any 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.
The Contract shall be governed by the laws of England, and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.
