1.1. In these conditions “We” “Our” or “Us” means Kenray Forming Limited and “You” or “Your” means any person(s), firm or company that purchases goods from Us; Contract means any agreement between Us and You for the sale and purchase of goods, (incorporating these conditions).
1.2. All Contracts will be on these conditions to the exclusion of all other terms (including any terms. You purport to apply under any purchase order, confirmation of order, specification or other document).
1.3. No variation of these conditions or representations about the goods shall have any effect unless agreed in writing by one of Our Directors.
1.4. Your order shall not be deemed accepted until We issue [a confirmation of order] [an order acknowledgment]. Our catalogues, instruction leaflets, manuals, drawings, illustrations, specifications and price lists do not constitute offers made by us.
2.1. Quotations are valid for 30 days from the date of issue or the date withdrawn by us, if earlier.
2.2. The price of the goods shall be as listed in Our price list as at the date of delivery. We may revise price lists from time to time without notice. Prices are exclusive of any value added tax, duties, levies, packaging, carriage costs and insurance costs which You shall pay.
2.3. We shall be entitled to refuse to accept any order for goods in excess of £10,000 unless payment is made by a letter of credit or other method of payment.
3.1. Payments shall be made within 30 days from the date of Our invoice and shall be in full in sterling without any deduction, set-off or withholding whatsoever. Time for payment shall be of the essence. Payment will only be deemed to have been received when We have received cleared funds.
3.2. In addition to any other remedy, We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
3.3. If any payment by You is overdue on the Contract, We may cancel the Contract and suspend further deliveries of goods to You until payment of all outstanding amounts is made in full.
3.4. All costs and expenses incurred by Us in the recovery of overdue debts from You (whether as a result of the employment of solicitors, debt collection agencies or otherwise) shall be paid by You to Us on demand.
4.1. All delivery times and dates are estimates only. Time for delivery is not of the essence. If no dates are specified, delivery will be within a reasonable time.
4.2. If You (1) request that delivery be postponed or (2) refuse to accept delivery or (3) fail to give Us adequate delivery instructions, then (a) risk of damage to or loss of the goods will pass to You (including for loss or damage caused by Our negligence) and; (b) the goods will be deemed to have been delivered and; (c) We may store the goods until actual delivery and charge You for all related costs including insurance for storage and; (d) We may increase the price according to price lists applying at time of actual delivery and (e) We may sell the goods at the best price readily obtainable and charge You for any shortfall below the price under the Contract.
4.3. We shall have no liability for non-delivery or shortfall in the quantity of goods delivered unless notified by You in writing within 48 hours from the time of delivery. Our liability for non- delivery shall be limited to replacing the goods within a reasonable time or issuing a credit note against any invoice raised for the relevant goods, and for a shortfall in quantity to supplying additional goods to make up the shortfall. If You do not notify Us within this time limit, You shall be deemed to have received the goods and shall be bound to pay the price as if the goods had been received by You.
4.4. We warrant that on delivery the goods will be of satisfactory quality and free from any defects in workmanship or materials. We give no other warranty to You in relation to the goods unless the forming tubes are chromed. In this case We warrant that the goods comply with BS EN ISO 14159 and We will give a one year warranty for a replacement forming tube UNLESS the chromed formers are used either: (i) To package salads and other non dry goods or (ii) With abrasive film in which case the warranty given for parts and labour is limited to 3 months from delivery. All warranties, conditions or other terms implied by statute or common law (save for the conditions implied by Section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law. [Terms in this contract excluding or limiting liability in relation to breach of the terms implied by the Supply of Goods (Implied Terms) Act 1973 and the Sale of Goods Act 1979 do not apply when this contract is made with a consumer].
4.5. Any claim by You based on a defect in the quality or condition of the goods must be notified to Us by You in writing within 48 hours from the time of delivery.
4.6. You shall not be entitled to reject the goods and shall be bound to pay the price if You fail to comply with Condition 4.5. It is your responsibility to return defective goods to Our premises for inspection if requested to do so by Us at Our cost. For the purposes of Condition 4.5 and this Condition 4.6, time shall be of the essence.
4.7. Where You comply with Condition 4.5, at Our discretion, We shall replace or repair the defective goods or refund the price to You. We shall have no further liability to You for any defect in the goods in any event.
4.8. Despite any of the other provisions of these Conditions, if You alter, modify or vary the goods in any way (other than alteration, modification or variation carried out by Us) then the warranties given in Condition 4.5 above shall be immediately null and void to the fullest extent permitted by law.
5.1. Risk of loss, damage or deterioration in the goods shall pass to You when despatched from Our premises.
5.2. Ownership of the Goods shall not pass to the Buyer until the Seller has received full payment in cleared funds of (a) the price of the Goods; and (b) all other sums due to Us by You on any account.
5.3. Until ownership of the goods has passed to You, You as bailee shall keep them safe, insured and separate and identifiable from all other goods in Your possession. If monies on any account become overdue, We may (in addition to any other rights We may have) enter any land or buildings where the goods are located and repossess the goods and You grant Us an irreovacable licence so to do. We shall also be entitled to seek an injunction to prevent You from selling, transferring or otherwise disposing of the Goods, subject always in Condition 5.4.
5.4. You may resell the goods before ownership has passed to You only where; (a) that sale is effected in the ordinary course of your business at full market value and ; (b) it is a sale of Our property on Your own behalf and You shall deal as principal when making such a sale.
5.5. Your right to possession of the goods shall terminate immediately and We may terminate the Contract immediately if You are the subject of insolvency (or similar) proceedings or You in any way change the goods.
6.1. Our maximum liability for breach of contract, misrepresentation, misstatement or other tortious act or omission including negligence arising under or in connection with the Contract shall so far as permitted by law be limited to the price paid to Us under the Contract. Nothing in these conditions shall exclude Our liability for death or personal injury resulting from Our negligence or fraudulent misrepresentation.
6.2. We shall not be liable for any loss of profit and/or loss of Business and/or depletion of goodwill and/or consequential loss suffered by any person and/or costs or expenses which arise out of or in connection with the Contract.
6.3. We reserve the right to defer the date of delivery or to cancel the Contract or reduce the volume of the goods ordered by You (without liability to You) if We are prevented from or delayed in the carrying on of Our business due to circumstances beyond Our reasonable control including, without limitation, strikes, lockouts or other industrial disputes (whether or not relating to Our workforce), act of God, government actions, war, riot, hostilities (whether war be declared or not) armed conflict, terrorist attack, terrorist activity, nuclear, chemical or biological contamination, sonic boom, civil commotion, invasion, revolution, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, power failure, breakdown of plant or machinery, fire, flood, storm, disease, epidemic, default of suppliers or subcontractors, difficulties or increased expense in obtaining raw materials, labour, fuel, parts of machinery, or import or export regulations or embargoes. If the event in question continues for a continuous period in excess of 20 days You shall be entitled to give notice in writing to Us to terminate the contract.
7.1. 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 as may at the relevant time have been notified pursuant to this provision to the party giving the notice and may be delivered personally or by fax, first class recorded delivery post or first class air mail letter. A notice shall be deemed to have been served (if personally delivered) at the time of delivery or (if sent by first class recorded delivery post) forty-eight hours after posting or (if sent by first class air mail letter) ninety-six hours after posting or (if sent by fax) at the time of transmission.
7.2. A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
7.3. No waiver by Us or any breach of the Contract by You shall be considered as a waiver of any subsequent breach of the same or any other provision.
7.4. No failure to exercise or delay in exercising any right or remedy under the Contract shall constitute a waiver of that right or remedy.
7.5. Except in respect of any undisputed credit or payment due and owed by Us to You, you shall pay all amounts due under the Contract in full without any deduction or withholding other than as required by law and the Buyer shall not be entitled to assert any credit set off or counterclaim against Us in order to justify withholding payment of any such amount in whole or in part.
7.6. Each of the provisions of these Conditions is severable. If any provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, the legality, validity or unenforceability in that jurisdiction of the remaining provisions of the Conditions shall not in any way be affected or impaired by it.
7.7. These Conditions and the Contract shall be governed by and construed in accordance with English Law. The Seller and the Buyer irrevocably agree that the courts of England shall have jurisdiction over any claim or matter to settle any dispute which may arise out of or in connection with the Contract and that accordingly any proceedings may be brought in such courts.