Terms and Conditions
1.Definitions
1.1Except where the context
otherwise requires the following expressions shall have the following meanings:
“Seller” means Icon Global Services Ltd; “Buyer” means the addressee specified overleaf;
“Goods” includes any and all goods supplied by the Seller under this contract;
“Contract” means the contract for the sale and purchase of the goods set out
overleaf and incorporating these conditions of sale.
1.2The headings in these
conditions are intended for reference only and shall not affect their
construction.
2.Acceptance
and Amendment
2.1Any quotation by the
Seller is not an offer for sale but an invitation to treat and no order for the
goods is binding on the Seller until accepted in writing by the Seller. The
Seller’s standard order acknowledgement form shall, for the avoidance of doubt,
constitute such acceptance.
2.2Each tender, offer,
quotation, acceptance, order, option and contract is subject to these
conditions of sale to which the Buyer shall be deemed to assent and no other
conditions or modifications hereof shall be binding on the Seller unless agreed
to in writing by a director of the Seller and the Seller shall not be deemed to
accept such other conditions nor to waive any of these conditions of sale by
failing to object to provisions contained in any purchase order or other
communication from the Buyer.
2.3No representative,
sub-contractor, agent or salesman who is not a director of the Seller has any
authority to amend or waive any of these conditions of sale or other provisions
of the Contract.
2.4No order which has been
accepted by the Seller may be cancelled by the Buyer except with the written
agreement of the Seller and on terms that the Buyer shall indemnify the Seller
in full against all loss (including loss of profits), costs (including labour
costs), damages, charges and expenses incurred by the Seller as a result of
such cancellation.
3.Sellers
Specifications
3.1All descriptions and
specifications and other data quoted or submitted by the Seller shall be based
upon the manufacturer’s specifications and are to be deemed approximate only
and shall not form part of the Contract.
4Prices
4.1Orders are accepted by the
Seller subject to the availability of Goods for delivery and until an order has
become binding on the Seller all prices are subject to change upon notice from
the Seller provided always that the Buyer may, within 36 hours of receipt of
any price increase, cancel any order which it has placed and which had not been
accepted by the Seller prior to the date of notification of price increase. All
prices are exclusive of VAT and Custom’s and other export or import duties
which will be added by the Seller at the appropriate rate (if applicable) and
shall be payable in full by the Buyer.
4.2Packaging, delivery and
transport charges, insurance, costs of installation on site, and of all
materials used therefor are not included in the price and will be charged extra
at the Seller’s then current rate for the same unless specified otherwise
overleaf.
5.Payment
5.1Unless otherwise agreed in
writing the Buyer shall pay a non-returnable (save where the relevant order is
not accepted by the Seller) deposit of ten per cent of the total price for the
Goods with its order, and cleared funds for the balance of the invoice amount
shall be payable by the Buyer without any right of deduction or set-off on
delivery of the Goods. If the Seller installs the Goods the Buyer shall pay a
non-returnable deposit of ten per cent of the total price of the Goods with the
order, eighty per cent of the total price of the Goods on delivery and final
ten per cent after installation. Time of payment of the price shall be of the
essence of the Contract and payment shall be made in pounds sterling by bankers
draft or by such other method as shall be agreed in writing by the
Seller.
5.2Without prejudice to any
other rights it may have the Seller is entitled (both before and after any
judgment) to charge interest in two per cent per annum above the base lending
fate from time to time of HSBC Bank plc. Such interest shall accrue from the
date upon which payment was due until payment in full.
5.3If the Buyer defaults in
any payment the Seller may cancel the Contract or any other contract with the
Buyer, and retain any deposit or other payments on account already received
under the Contract or any other contract with the Buyer.
6.Delivery
6.1Time of delivery is not of
the essence and any time or date specified by the Seller as a time at which or
date on which the Goods will be dispatched or delivered or as the case may be,
made available for collection is given and intended as an estimate only and the
Seller shall not be liable for any loss, damage or expense howsoever arising
from any delay in delivery of Goods.
6.2When it is agreed overleaf
that the Seller will deliver the Goods the Buyer shall, at the request of the
Seller, supply the Seller with details necessary to allow the Seller to make
the delivery. Notwithstanding any express agreement as to the date of delivery
of the Goods the Seller shall be entitled to postpone or cancel delivery in
whole or in part when it is delayed in or prevented from obtaining any Goods or
materials or parts or components therefor or making delivery thereof by any
circumstance or event beyond the Sellers control including, but without
limitation, act of God, embargo or other governmental act, fire, accident, war,
riot, delay in transportation, cancellation by the Seller’s suppliers of
machinery, goods, services or other supplies. In any such event the
Sellers obligations shall be
suspended until such event ceases or until the Seller cancels delivery (as the
case may be) and the Seller shall not be required to obtain elsewhere in the
market goods with which to replace the Goods, delivery of which has been
postponed or cancelled as a result of any of the said events. In the event of
cancellation, the Seller shall be paid pro rata for Goods delivered or work
done to the date of cancellation.
6.3The Buyer shall be solely
responsible for the proper unloading of the Goods. If, to assist the Buyer to
remove the Goods from the point of delivery, the Seller or any sub-contractor
does any loading or unloading of Goods, no liability whatsoever shall thereby
be incurred by the Seller or sub-contractor and the Buyer shall indemnify the
Seller in respect thereof.
7.Export
and delivery terms
7.1In this Contract
“Incoterms” means the international rules for the interpretation of trade terms
of the International Chamber of Commerce as in force at the date when the
Contract is made. Delivery of Goods and passing of risk in the Goods to the
Buyer shall be in accordance with the Incoterms specified in the Seller’s order
acknowledgement form (or in the event of no such specification, shall be
ex-works) but if there is any conflict between the provisions of Incoterms and
these conditions, the latter shall prevail.
7.2The buyer shall be
responsible for complying with any legislation or regulations governing the
importation of the Goods into the country or destination and for payment of any
duties thereon.
8Erection
and installation
8.1Where the Seller agrees in
writing that the Seller is to install or to commission the Goods the Buyer
shall supply the Seller with full details to enable the Seller to do the same
and shall ensure that the site for the Goods is situated on a ground floor with
suitable access for the size of the machine being delivered, and that all
necessary security and safety precautions therefor have been taken. The Buyer
will be responsible for all labour costs and the costs of such works as are
necessary to provide a suitable foundation for the Goods and the cost of
providing a suitable three phase power supply to the site of the Goods and the
Seller shall be entitled to charge for extra installation costs caused by circumstances
outside the Seller’s control. In the event that the Goods or their installation
cause any damage to the Buyer’s foundations, floor, other surfaces or any
property of the Buyer the Seller will not be responsible for any such damage or
loss arising in connection with the same.
8.2Where the Seller agrees in
writing to demonstrate the Goods, on completion of installation a skilled
engineer or operator will assist and advise the Buyer’s skilled operator in the
operation of the Goods. The Buyer shall supply all necessary materials and a
suitable three phase power supply at his cost for the purpose of the
demonstration.
9Buyer’s
obligations on delivery
9.1The Buyer will examine the
Goods carefully immediately upon delivery and notify the Seller (and any
carrier for the Seller) in writing within 7 days of the date of delivery if the
expected Goods have not been received or if the goods delivered are defective
or otherwise not in accordance with the Contract.
9.2Failure to make any
notification in accordance with clause 9.1 shall constitute a waiver by the
buyer of all claims in respect of any matter which such examination ought to
have revealed, including loss or damage to the Goods occurring prior to
delivery or for any claim that any of the Goods are defective whether the claim
is based in contract, tort (including without limitation or negligence) or otherwise.
9.3The Buyer hereby warrants
that the Goods will not be used unless and until the Buyer has applied or taken
all such protective or precautionary measure and has produced all such warning notices,
or taken all such other precautions of whatever nature as may be required by
law or as may be necessary to preclude the making of any claims by any person
who may use the Goods or be affected by them, and the Buyer hereby full and
effectually indemnifies the Seller against all claims, proceedings, costs or
expenses which the Seller may suffer by reason of any branch of this warranty.
10Risk
10.1Notwithstanding that
property in the Goods has not passed to the Buyer, unless otherwise agreed in
writing with the Seller, risk in the Goods shall, subject to clause 10.2, pass
to the Buyer in accordance with the relevant Incoterms as applicable under
clause 7.1;
10.2The Buyer agrees that
Section 32(3) of the Sale of Goods Act, 1979 shall not apply to the Contract.
11Title
to goods
11.1 The Goods shall continue
to be in the ownership of the Seller until the Seller has received payment in
full of all sums due to the Seller under this Contract and any other contract
between the Seller and Buyer. The Seller may, while owner of the Goods (and
without prejudice to any other rights it may have under or by virtue of this
Contract), demand the immediate return of the Goods at any time and the Buyer
shall forthwith comply with such demand and bear the expense of such return. If
the Buyer fails forthwith to return the Goods so demanded the Seller or its
agent may enter on the premises for the purpose of removing the Goods (the cost
of doing which shall be borne by the Buyer) or may sell or otherwise deal with
the Goods.
11.2The Buyer hereby grants a
license to the Seller and its agent to enter onto the Buyer’s premises for the
purpose of removing the Goods. 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 properly protected, insured and
identified as the Seller’s property (by labelling and keeping separately from
other goods in the Buyer’s possession).
11.3The Buyer shall not be
entitled to sell, 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 proceeds of sale shall (without prejudice to any other
right or remedy of the Seller) be held on trust in a separate identified
account for the Seller by the Buyer and such proceeds shall not be mingled with
other moneys and shall at all times be identifiable as the Seller’s money.
12Warranty
of Seller
12.1The Contract shall
constitute the whole of the agreement between the parties. Each of the Seller
and the Buyer agree that any representation made by or on behalf of the other
of them before the Contract was entered into did not induce it to enter into the
Contract and does not form part of the Contract.
12.2The Buyer shall be free
at its own expense to test, inspect and approve the Goods before delivery.
Because the Goods are second hand, the Seller givens no warranties, save as set
out in 12.3 below, as to the condition, satisfactory quality or fitness for
purpose of the Goods (even if that purpose is made known expressly or by
implication to the Seller) which are supplied in the condition and state in
which they are delivered to or collected by the Buyer and the Buyer agrees that
it is not appropriate for any such warranties to be given.
12.3If the Seller installs
the Goods (but not otherwise) and provided it does not state overleaf that the
Goods are sold “as is” or “as seen”, the Seller warrants that the Goods will be
free from material defects in material and workmanship for a period of three
months from the date of delivery and the Seller will at its option refund the
purchase price paid or repair or replace any Goods which its examination
confirms are defective within such period provided:
(a) the Buyer complies with
clause 9.1;
(b) operation of the Goods is
stopped immediately the defect becomes apparent and no attempt is made to
restart the Goods until the appropriate repair has been carried out;
(c) the Buyer has used the
Goods in accordance with any instructions or recommendations of the Seller;
(d) the Goods have not been
adjusted, altered, adapted or repaired by any party other than the Seller;
(e) the Goods are either made
available to the Seller for inspection or returned to the Seller at the Buyer’s
own expense as the Seller may request.
12.4The Buyer acknowledges
that the Seller is not the manufacturer of the Goods and that in selecting the
Goods the Buyer has not relied upon the Seller but has formed its own opinion
as to the suitability of the Goods for its purposes.
12.5Except for liability for
death or personal injury resulting from negligence no warranty, condition,
representation, undertaking or obligation (whether expressed or implied by
statute, common law,
12.6Without prejudice to the
foregoing the Seller shall not be liable for any failure of the Goods to be
Year 2000 Compliant (as per BSI document reference DISC PD2000-1: 1998 A
Definition of Year 2000 Conformity Requirements) or for any fault or disruption
in operation of the Goods caused by the approach or advent of the Year 2000.
13Limitation
of Seller’s liability
13.1Subject to clause 13.4,
where the Goods or any part thereof are supplied, designed, delivered,
installed or manufactured other than by the Seller, the Seller’s sole
obligations and liability to the Buyer (if any) shall be to use its reasonable
endeavours to enforce the Seller’s rights (if any) against the relevant
supplier, designer, delivery contractor, installer or manufacturer.
13.2Subject to clause 13.4
the Seller shall not be liable in contract, tort (including without limitation
negligence and statutory duty) or otherwise including misrepresentation (other
than fraudulent misrepresentation) (whether or not the Seller has been advised
of the loss) for:
(a) any increased costs or
expenses;
(b) loss of anticipated
savings;
(c) loss of profit, business
contract or revenues;
(d) special, indirect or
consequential loss; or
(e) loss of business or
goodwill;
Arising out of or in
connection with the Goods or otherwise under or in relation to the Contract.
13.3 Subject to clauses 13.1,
13.2 and 13.4 the Seller’s aggregate liability to the Buyer for any loss or
damage in connection with the Goods and this Contract whether based in
contract, tort (including without limitation negligence and breach of statutory
duty) or otherwise including misrepresentation (other than fraudulent
misrepresentation) shall not exceed an amount equal to the price of the Goods
paid by the Buyer under the Contract.
13.4 The Seller does no
exclude or limit it liability for death or personal injury caused by
negligence.
14Indemnity
by Buyer
14.1The Buyer undertakes to
indemnify the Seller against all claims relating to or arising from Goods sold
to the Buyer by the Seller in respect of any loss, damage or expenses sustained
by any third party howsoever caused save
for death or personal injury caused by the Seller’s negligence.
15Trade
marks, patents and other industrial rights
15.1The Seller gives no
warranty that the Goods or their use will not infringe any intellectual
property rights of any third parties and the Seller shall have no liability in
this respect.
16Default
by Buyer
16.1If the Buyer defaults in
or commits any breach of any of its obligations to the Seller or in the
reasonable opinion of a director of the Seller the Buyer is unlikely to
discharge its financial obligations under the Contract then the Seller shall be
entitled forthwith to terminate any contract then subsisting and upon written
notice of such termination being posted by the Seller any subsisting contracts shall
be deemed to be terminated without prejudice to any claim or right the Seller
might otherwise make or exercise and the Seller shall not be liable in any way
to make any payments to the Buyer in respect of such termination.
17Assignment
17.1The Contract of which
these conditions of sale form part shall be personal to the Buyer and shall not
nor shall any rights under it be assigned by the Buyer without the prior
written consent of the Seller.
18Waiver
18.1No waiver by the Seller
of any breach of the Contract by the Buyer shall be effective unless in writing
nor shall it be considered as a waiver of any subsequent breach of the same or
any other provision.
19Severability
19.1If 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 thereby.
20Governing
law
20.1These conditions and the
Contract of which they form part shall be governed by and construed in
accordance with English law and it is irrevocably agreed for the exclusive
benefit of the Seller that the Courts of England are to have jurisdiction to
settle any disputes which may arise out of or in connection with these
Conditions and the said Contract, and that accordingly any suit, action or proceeding
arising out of or in connection with these Conditions and the said Contract (in
this clause referred to as “Proceedings”) may be brought in such Courts.
Nothing in this clause shall limit the right of the Seller to take Proceedings
against the Buyer in any other court of competent jurisdiction, nor shall the
taking or Proceedings in one or more jurisdictions preclude the taking of Proceedings
in any other jurisdiction, whether concurrently or not.