This agreement is a legally binding contract between you, the client, and us Industrial Refrigeration Ltd. Before you sign and return it to us, please read it carefully. This agreement should be read in conjunction with the Schedule attached which sets out matters specific to our agreement with you. The Terms of Business with its Schedule is an important document; keep it in a safe place.
1. Definition and Interpretation
1.1 In these Conditions:
‘ACCEPTANCE OF ORDER’ means the Seller’s acceptance of an Order
‘AN ORDER’ means an order from the Buyer to the Seller for Goods and/or Services
‘BUYER’ means the person whose order for the Goods and/or Services is accepted by the Seller
‘CONDITIONS’ means the standard T&Cs' (T&C's) of sale set out in this document and (unless the context otherwise requires) includes any special T&C's agreed in writing between the Buyer and the Seller
‘CONTRACT’ means the contract for the purchase and sale of the Goods and/or Services
‘EQUIPMENT’ means any hardware owned or otherwise, at the premises where the Goods and/or Services are delivered
‘GOODS’ means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply or manufactures pursuant to an Order and in accordance with these Conditions
‘NORMAL HOURS’ means the hours between 8.00 am and 4.30 pm Monday to Thursday, and 8.00 am and 3.30 pm Friday inclusive, excluded all bank and public holidays, unless otherwise specified
‘SELLER’ means IRS LTD
‘SERVICES’ means the services which the seller is to supply pursuant to an Order and in accordance with these Conditions
‘WRITING’ includes telex, cable, facsimile transmission, electronic mail and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods and/or Services in accordance with the Acceptance of Order and subject to these Conditions, which shall govern the Contract to the exclusion of any other T&C’s subject to which any order is made or purported to be made.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods and/or Services unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, Acceptance of Order, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3 Orders and Specifications
3.1 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by an Acceptance of Order from the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods and/or Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods and/or Services shall be those set out in the Acceptance of Order.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods or Services provided by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller 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 the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods and/or Services which are required to conform to any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller 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 Seller as a result of cancellation.
3.7 The Buyer shall at its own expense supply the Seller with all necessary information to enable the Seller to perform the Contract. The Buyer shall ensure the accuracy of all information.
4 Price of the Goods and/or Services
4.1 The price of the Goods and/or Services shall be the Seller’s quoted price and confirmed on the Acceptance of Order (“the price”). All prices quoted are valid for 30 days only or until earlier if an Acceptance of Order has been issued after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 Where the seller has agreed a fixed price and provision date for Services then such price will remain fixed until that provision date. However the Seller reserves the right, by giving notice to the Buyer at any time before delivery, to pass on any reasonable cost increase for the Goods and/or Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and/or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Unless otherwise agreed in Writing between the Buyer and the Seller, the Buyer shall be liable to pay the Seller’s charges for transport, packaging, postage and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4.5 The Seller reserves the right to charge fees in addition to the price if:
4.5.1 The Buyer requires the Services to be provided outside Normal Hours; or
4.5.2 where in the Seller’s opinion, more than a reasonable level of Services is being provided as a result of the Buyer’s untrained personnel operating the equipment; or
4.5.3 in the Seller’s sole discretion additional time or expense is incurred as a result of the Buyer’s lack of instructions, the inaccuracy of the information supplied or any other cause attributable to the Buyer.
5 Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods and/or Services on or at any time after delivery of the Goods or the provision of the Services, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice and Services within 30 days of the date of the Seller’s invoice (without any deduction or right of set off whatsoever). The Seller 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 Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 Cancel the Contract or suspend any further deliveries or Goods and/or Services to the Buyer;
5.3.2 Appropriate any payment made by the Buyer to such of the Goods and for Services (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 Charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 2 per cent per month until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods and/or Services are approximate only and the Seller shall not be liable for any delay in delivery of the Goods and/or Services however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods and/or Services are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or Services on the agreed dates, or fails to give the Seller adequate delivery instructions or fails to make necessary arrangements for accepting delivery at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and other expenses incurred and time expended; or
6.5.2 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.
6.5.3 Charge the buyer reasonable cost incurred for rescheduling the services to include the cost of the Seller’s Contractor if he/she can not be found alternative chargeable work.
6.6 Failure by the Buyer to pay for part delivery of Goods and/or Services when payment is due shall entitle the Seller to withhold further delivery of Goods and/or Services.
6.7 The Seller shall be entitled to levy a 20% handling charge on goods returned if ordered in error or are no longer required by the Buyer for whatever reason.
7 Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 In the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2 In the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 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 Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods or services agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer 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 the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8 Warranties and liability
8.1 The Seller warrants that the Services will be provided with reasonable skill and care appropriate for performance of such services.
8.2 The Seller shall be under no liability in respect of any defect in the Goods and/or Services arising from any drawing, design or specification supplied by the Buyer;
8.3 The Seller shall be under no liability in respect of any defect arising from none fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval. This will also lead to the invalidation of any support contract with the seller;
8.4 The Seller shall be under no liability under any warranty, condition or guarantee if the price for the Goods and/or Services has not been paid by the due date for payment;
8.5 The Buyer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to the Seller.
8.6 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods and/or Services or their failure to correspond with specification shall be notified to the Seller within 48 hours, otherwise the Buyer shall not be entitled to reject the Goods and/or Services and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods and/or Services had been delivered in accordance with the Contract.
8.7 The Seller does not warrant that the Services will cause the equipment to operate without interruption or error.
8.8 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any 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 (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods and/or Services (or their use or resale by the Buyer)and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods and/or Services except as expressly provided in these Conditions.
8.9 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods and/or Services if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.9.1 Act of God, explosion, flood, tempest, fire or accident;
8.9.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.9.3 Acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.9.4 Import or export regulations or embargoes;
8.9.5 Strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.9.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.9.7 Power failure or breakdown in machinery.
9 Insolvency of Buyer
9.1 This clause applies if:
9.1.1 the Buyer 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
9.1.2 An encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3 The Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods and/or Services have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.1 The parties hereby acknowledge:
10.2 These T&C’s have been open to negotiation and represent the outcome of such negotiation, (whether or not any change has been made to the terms during the course of the negotiation)
10.3 The specification of the duties of the supplier as contained in the T&C’s accord with their expectations and are fair and reasonable
10.4 Some limitation of liability is to be expected
10.5 The limitation of liability for breach of the duties is fair and reasonable in light of the price paid or to be paid and the nature of the services
11.1 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.
11.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 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.
11.4 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non exclusive jurisdiction of the English courts.