Terms of Sale
TERMS & CONDITIONS
JRM HOLDINGS LIMITED T/A KBR MACHINERY CONVEYOR SECTIONS
STANDARD TERMS AND CONDITIONS OF SALE
1 – DEFINITIONS
1.1 “The Company” means JRM Holdings Limited
1.2 “The Customer” means the person, firm or company that contracts with the Company for the purchase of goods or services.
1.3 “The Goods” means the products of any kind manufactured or sold by the company.
1.4 “The Services” means work of any kind carried out by the Company.
2 – CONDITIONS APPLICABLE
2.1 These conditions shall apply to all contracts for the sale of goods or services by the Company to the Customer to the exclusion of all other terms and conditions, including any terms or conditions that the Customer may purport to apply under any purchase order, confirmation of order or similar documents.
2.2 All orders for goods or services shall be deemed to be an offer by the Customer to purchase goods or services pursuant to these conditions.
2.3 Acceptance of delivery of the goods or service shall be deemed conclusive evidence of the Customer’s acceptance to these conditions.
2.4 Any variation to these conditions (including any special terms or conditions agreed between the parties) shall be inapplicable unless agreed in writing by a director of the Company.
2.5 In the event that information given by the Customer to the Company differs from that on which the quotation was based and involves the alteration of the quotation, the Company may increase the price quoted therein to cover any increase in cost that the alteration may incur and amend the delivery date.
3.1 The description of the Goods shall be as set out in the Company’s quotation.
3.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s Materials are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
3.3 The Goods are sold as standard products without electrical plugs.
3.4 Goods descriptions and specifications within the catalogue, website and anywhere else that a description of the Goods and/or its specification may be found, is an approximation only of the Goods capacities and capabilities and are subject to change without notice
3.5 Unless expressly stated the Goods are sold crated and unassembled without tooling, transport, assembly, installation, placement, positioning, connection to power supplies and/ or training
3.6 If the Buyer requires the Goods to be assembled, tooled transported, placed, positioned or connected to a power supply or requires training this can be provided but only if expressly agreed and reduced to writing and subject to a Price being agreed.
4 – THE PRICE AND PAYMENT
4.1 The price of the goods or service shall be the Company’s quoted price which will be binding upon the Company provided that the Customer shall accept the Company’s quotation within 30 days.
4.2 The price is exclusive of VAT which shall be due at the rate ruling on the date of the Company’s invoice. Time for payment shall be the essence of the contract.
4.3 The Customer must pay a non-refundable deposit as required by the Company upon the placing of an order and the balance of the price must be paid prior to delivery of the Goods or completion of the Services. If the Customer does not pay the balance of the price on the relevant date interest shall be payable on the amount outstanding for the period beginning with the date payment is due and ending with the date of payment at the rate of 8.5% over the HSBC Bank.
4.4 The Price excludes tooling, transport, assembly, installation, placement, positioning, connection to power supplies and training unless
purchased in addition or ancillary to the supply of Goods
5 – WARRANTIES & REPRESENTATION
5.1 It is the Buyer’s responsibility to disclose the intended use of the Goods to the Company. The Company is entitled to infer in the absence of such disclosure that the Buyer is satisfied that the Goods are adequate for the Buyer’s purposes. If the Goods are required for a particular purpose this must be made known to the Company prior to purchase. In the event that the Company is unaware of the intended use of the Goods the warranty as set out in these Conditions will not be binding on the Company.
5.2 It is the Buyer’s responsibility to provide all Services, suitable working space and power supplies in order to bring the Goods into service within the Buyer’s own facility and in accordance with current Health and Safety legislation.
5.3 Provision and Use of Work and Equipment Regulations (PUWER) are the responsibility of the Buyer. The Buyer represents that the Goods are placed into their operation and/or business premises in a manner which is compliant with the regulations. This is not a matter for the Company.
5.4 The Company warrants that (subject to the other provisions of these Conditions) upon delivery, and for a period of 12 months from the date of invoice, the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994. Warranty provisions are strictly at the determination of the Company on a case by case basis. The Company’s determinations regarding a warranty claim are final.
5.5 It is the Buyer’s responsibility to operate and maintain the machine as outlined in the user’s manual from the time of delivery. Operation and maintenance in accordance with the user’s manual includes set up and installation of the Goods and the connecting of the Goods to any power source of whatever kind. If the User Manual is not followed the warranty in condition 9.4 will be null and void.
5.6 in addition The Company shall not be liable for a breach of the warranty in Condition 9.4 unless:
5.6.1 the Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within a reasonable amount of time when the Buyer discovers or ought to have discovered the defect;
5.6.2 the Company is given a reasonable opportunity after receiving the notice to examine such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s expense for the examination to take place there.
5.7 The Company shall not be liable for a breach of the warranty in Condition 5.4 if:
5.7.1 the Buyer makes any further use of such Goods after giving such notice; or
5.7.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or
5.7.3 the defect arises as a result of ordinary wear and tear; or
5.7.4 the Buyer alters or repairs such Goods without the written consent of the Company.
5.8 The following are expressly excluded from the warranty in Condition 5.4
5.8.1 Conveyor Belting; Consumable Parts;
5.8.2 machine maintenance, adjustment and set ups.
5.8.3 the Company will not be liable under the warranty for any damages and/or consequential losses including but not limited to additional production costs, loss of production, loss of time, earnings and or profits, cost of capital and or costs connected with the interruption of the operation of the Buyer and/or suffered by the Buyer whilst the Company investigates through its service and warranty process any reported defects by the Buyer.
5.8.4 The Company is not limited by time whilst carrying out any investigation under its service and warranty process but will endeavour to carry out the investigation within a reasonable period of time depending on the nature of the investigation.
5.9 The Company does not warrant that any trials or demonstrations carried out either on site or anywhere else is an exact production time or production accuracy of the component.
5.10 Subject to Conditions 5.2 and 5.3, if any of the Goods do not conform with the warranty in Condition 5.4 the Company shall at its option repair or replace such Goods (or the defective part) or refund the Price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goods which is defective to the Company.
5.11 If the Company complies with Condition 5.4 it shall have no further liability for a breach of the warranty in Condition 5.4 in respect of such Goods.
5.12 Any Goods which have been replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 12 month period.
5.13 All work carried out under the warranty contained in Condition 5.4 must be approved by the Company.
5.14 All electrical components and gearboxes carry a one-year replacement warranty from the manufacturer. This warranty does not include labour or shipping costs.
5.15 At all times problem resolution will be addressed on a case by case basis and will be carried out as seen fit by the Company’s service and sales technicians. The following procedure will be adopted by the Company but this subject to change depending on the case:
5.15.1 Notify the Company by telephone that there is a problem
5.15.2 Provision of necessary facts by Buyer as required by Company
5.15.3 Return of machinery may be required.
5.15.4 A Service Technician may be sent out as a last resort.
6.1 The Company will not accept the return of any Products without the prior written authorisation of the Company.
6.2 Special orders are not refundable or returnable. In the event that the Company agrees to the cancellation of a special order a 15% cancellation fee will be incurred by the Buyer.
6.3 All returned Products must be received, at the Buyer’s expense, by the Company within 30 days of shipment by the Company.
6.4 The Company will charge a 35% ‘restocking charge’ on all returns of Goods in addition to clause 6.2
6.5 Any repayment by the Company will be made within a reasonable period of time and not before the return and inspection of the Goods by the Company at the Company’s premises. In the event of damage to the Goods due to the Buyer’s negligence the Company reserves the right to deduct the amount of the damage from the repayment amount. The Company’s decision on quantification of the damage will be final.
7 LIMITATION OF LIABILITY
7.1 Subject to Condition 5, the following provisions of this Condition 6 set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
7.1.1 any breach of these Conditions; and
7.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
7.2 All warranties, Conditions and other terms implied by statute or common law (save for the Conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
7.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury cause by the Company’s negligence or for fraudulent misrepresentation.
(THE BUYER’S ATTENTION IS DRAWN TO THE PROVISIONS OF CONDITION 7.4 BELOW)
7.4 Subject to Conditions 7.2
7.4.1 the Company’s total liability in Contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the invoiced amount per each and every individual transaction; and
7.4.2 the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
8 – DELIVERY OF THE GOODS
8.1 The Company will make every endeavour to meet the delivery times for the provision of the goods or services that are specified in the quotation but no guarantee is given as to delivery times which are forecasts only. Time shall not be of the essence of the contract save in the case of payment due to the Company.
8.2 Delivery times shall run from the date of receipt of payments required by the Company of the Customer’s order either in writing or facsimile or email.
8.3 Delay in delivery shall not give the Customer the right to cancel the order.
8.4 The Company may deliver the goods or service by separate instalments in accordance with an agreed schedule. Each schedule shall be invoiced and paid in accordance with these terms and conditions.
8.5 The failure of the Customer to pay for any one or more of the said instalments on the due dates shall entitle the Company (at its sole option)
8.5.1 without further notice to suspend further deliveries of the goods or service pending payment by the Customer and/or
8.5.2 to treat the contract as repudiated by the Customer
8.6 The Customer shall promptly obtain all necessary import licenses, clearances, and other consents necessary for the purchase of goods.
8.7 The Company shall not be liable for any loss or damage whatsoever due to failure by the Company to deliver the goods or service (or any of them or it) promptly or at all.
8.8 The goods or service may be delivered to the Customers at the Company’s address. The risk in the goods shall pass to the Customer upon such delivery taking place. If the goods are delivered to the Customer at the Company’s address and the Customer does not collect the goods at the agreed time the Company can charge the Customer for storage of the goods until they are collected and the Customer must pay the storage costs on collection of the goods.
8.9 The Company may arrange for carriage of the goods to the Customer’s address or the address of a third party. The costs of carriage and any insurance that the Customer reasonably directs the Company to incur shall be reimbursed by the Customer without any set off or other withholding whatsoever and shall be due on the date of payment of the price. The carrier shall be deemed to be the Customer’s agent.
9 – DAMAGE, SHORTAGE AND LOSS
9.1 In the event that the Company delivers the goods to the Customer, or uses a carrier to do so, the Customer must notify the Company within three days of delivery of any damage, shortage or loss.
9.2 In the event that the Company delivers the damaged goods to the Customer, or uses a carrier to do so, whereby damage is inflicted to the equipment, the Customer must state visible equipment damage on the delivery documentation in order to prove the liability falls with the Company or Carrier used by the Company.
9.2 The Company shall not be liable for any loss or consequential loss arising from such damage or shortage.
10 – DEFECTS
10.1 The Customer must notify the Company within 7 days of receipt of the goods or service of any defects in them. The Customer shall return the goods to the Company carriage paid.
10.2 If the Company accepts the Customer’s claim, the Company shall have the choice of rectifying the defect or crediting the Customer with the amount given on the quotation less carriage paid.
10.3 The Customer may not charge the Company for any work the Customer carries out to rectify a defect without written agreement from the Company.
10.4 The Company shall dispatch any rectified goods to the Customer carriage paid.
11 – ACCEPTANCE OF THE GOODS OR SERVICE
11.1 The Customer shall be deemed to have accepted the goods or service 7 days after delivery to the Customer.
11.2 After acceptance the Customer shall not be entitled to reject the goods or service that are not in accordance with the contract.
12 – TITLE AND RISK
12.1 Title and risk shall pass as hereinafter provided.
12.2 The goods shall be at the Customers risk from delivery or collection as the case may be.
12.3 In spite of delivery being made, property in the goods shall not pass from the Company until
12.3.1 the Customer shall have paid the price plus VAT in full and
12.3.2 no other sums whatever shall be due from the Customer to the Company.
12.4 Until property in the goods passes to the Customer in accordance with clause 9.3, the Customer shall hold the goods and each of them on a fiduciary basis as baillee for the Company. The Customer shall store the goods (at no cost to the Company) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Company’s property.
12.5 Notwithstanding, that the goods (or any of them) remain the property of the Company, the Customer may sell or use the goods in the ordinary course of the Customers business at full market value for the account of the Company. Any such sale or dealing shall be a sale or sue of the Company’s property by the Customer on the Customer’s own behalf and the Customer shall deal as principal when making such sales or dealings. Until property in the goods passes from the Company, the entire proceeds of sale or otherwise of the goods shall be held in trust for the Company and shall not be mixed with any other money or paid into any overdrawn bank account and shall be identified at all times at the Company’s money.
12.6 The Company shall be entitled to recover the price (plus VAT) notwithstanding that property in any of the goods has not passed from the Company.
12.7 Until such time as property in the goods passes from the Company, the Customer shall upon request deliver up such of the goods as have not ceased to be in existence or resold to the Company. If the Customer fails to do so, the Company may enter upon any premises owned, occupied or controlled by the Customer where the goods are situated and repossess the goods. On the making of such request the rights of the Customer under clause 9.5 shall cease
12.8 The Customer shall not pledge or in any way charge by way of security for any indebtedness any of the goods that are the property of the Company. Without prejudice to the other rights of the Company, if the Customer does so, all sums whatsoever owing to the Company shall forthwith become due and payable.
12.9 The Customer shall insure and keep insured the goods to the full price against all risks to the reasonable satisfaction of the Company until the date that property in the goods passes from the Company, and shall whenever requested by the Company produce a copy of the policy of insurance. Without prejudice to the other rights of the Company, if the Customer fails to do so, all sums whatsoever owing by the Customer to the Company shall forthwith become due and payable.
13 – LIABILITY
13.1 No liability is accepted for any direct or indirect cost, damage or expense relating to property or injury or loss to any person firm or company or for any loss of profits or production arising out of or occasioned by any defect in or failure of materials or for parts thereof supplied by the Company or other consequential loss howsoever arising (except to the extent that any such liability may not be excluded by statute).
13.2 The Company’s liability whether in respect of one claim or an aggregate arising out of any contract shall not exceed the purchase price payable under the contract.
13.3 Where the Customer accepts or has been deemed to have accepted any goods, then the Company shall have no liability whatsoever to the Customer in respect of those goods.
13.4 Illustrations, weights, measures, specifications and performance schedules set out in the sales literature of the Company form no part of this contract.
14 – DELIVERED QUANTITY
14.1 The Company reserves the right to over or under deliver to the extent of 5% of the quantity given on the quotation, except for batches of 20 or less when the quantity that may be over or under delivered will be on item only. The Company will then invoice pro rata for the appropriate quantity.
15 – INTELLECTUAL PROPERTY
15.1 The specifications and designs of the goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Company. Where any designs or specifications have been supplied by the Customer for the manufacture by or to the order of the Company then, the Customer warrants that the use of those designs or specifications for the manufacturing process, assembly or supply of the goods shall not infringe the rights of any third party.
15.2 The Customer shall indemnify the Company in full against all liability and cost of any infringement (alleged and proven) by the Customer of any patent, copyright, or other intellectual or industrial property.
15.3 The Customer shall not alter, deface, reproduce or use any of the Company’s trademarks.
15.4 All drawings, documents and other information supplied by the Company are supplied on the express understanding that the Customer will not without written consent from the Company.
15.4.1 give away, loan, exhibit or sell any such drawings or extracts thereof or copies thereof
15.4.2 use them in any way except in connection with the components for which they are used.
16 – CUSTOMER DRAWINGS
16.1 The Company accepts no responsibility for the accuracy of information or drawings supplied by the Customer.
16.2 The Customer shall indemnify the Company from and against all actions, claims, costs and proceedings that arise due to the manufacture of components according to the drawings and specifications of the Customer, where such drawings and specifications of the Customer shall be erroneous.
16 – INSOLVENCY OR OTHER DEFAULT OF THE CUSTOMER
16.1 If the Customer fails to make payment for the goods in accordance with the contract of sale, or commits any other breach thereof or if any distress or execution shall be levied upon any of the Customer’s goods or if the Customer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Customer or the Customer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Customer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver, administrator, administrative receiver or manager shall be appointed over the whole or any part of the Customers business assets or if the Customer shall suffer any analogous proceedings under foreign law, all sums outstanding in respect of the goods shall become payable immediately. The Company may in its absolute discretion and without prejudice to any other rights that it may have
16.1.1. suspend all future deliveries of goods to the Customer and/or terminate the contract without liability upon its part and/or
16.1.2 exercise any of its rights pursuant to clause 9.
17 – SET OFF AND COUNTERCLAIM
17.1 The Customer may not withhold payment of any invoice or other amount due to the Company by reason of any right or set-off or counterclaim that the Customer may have or allege to have or for any reason whatsoever.
18 – BACK ORDERS
18.1 The Company shall be entitled to a general lien on all goods of the Customer in the Company’s possession (including goods of the Customer that have been paid for) for the unpaid price of all goods sold to the Customer by the Company under this or any other contract.
19 – SUB CONTRACTING
19.1 The Company may licence or sub-contract all or any part if its rights and obligations under this contract without the Customer’s consent.
20 – FORCE MAJEURE
20.1 The Company shall not be liable for any default due to any act of God,war, strike, lock-out, industrial action, fire, flood, drought, tempest or any other event beyond the reasonable control of the Company.
21 – NOTICES
21 Any notice required to be serviced pursuant to this contract of sale shall be in writing and serviced by first class post, hand or facsimile on the Company at the Company’s registered office or principle place of business, and on the Customer at the Customers registered office or principle place of business.
22 – PROPER LAW OF THE CONTRACT
22.1 This contract is subject to the law of England and Wales.