TERMS AND CONDITIONS - MACHINES
1 Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Buyer: the Consignee or, if specified in the Order, a third party (as named in the Order) who is responsible for payment of the Goods.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
Contract: the contract between the Supplier and the Consignee for the sale and purchase of the Goods in accordance with these Conditions.
Consignee: the person or firm specified in the Order.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order.
Order: the Consignee's order for the Goods, as set out in the Consignee's purchase order form, the Consignee's written acceptance of the Supplier's quotation, or overleaf, as the case may be.
Specification: the written specification for the Goods, including any related plans and drawings, that is referred to or included in the Order.
Supplier: Monarch Knitting Machinery (UK) Limited (registered in England and Wales with company number 00930058) (including its authorised representatives).
1.2. Construction. In these Conditions, the following rules apply:
1.2.1. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted.
1.2.2. A reference to writing or written includes fax and email.
2 Basis of contract
2.1 In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the terms set out in these Conditions.
2.2 These Conditions apply to the Contract to the exclusion of any other terms that the Consignee seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 The Order constitutes an offer by the Consignee to purchase the Goods in accordance with these Conditions. The Consignee is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Consignee are complete and accurate.
2.4 The Order shall only be deemed to be accepted when: (i) the Supplier issues a written acceptance of the Order; or (ii) the Supplier dispatches the Goods to the Consignee, whichever is earlier at which point the Contract shall come into existence.
2.5 The Contract constitutes the entire agreement between the parties. The Consignee acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.7. A quotation or pro-forma invoice for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for the period set out on the quotation, or if no such period is specified then 30 days from the date of the quotation.
3 Goods
3.1 The Goods are as described in the Specification.
3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4 Delivery and Acceptance
4.1. The Supplier shall ensure that:
4.1.1. each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Consignee and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2. if the Supplier requires the Consignee to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Consignee shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2. The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Consignee that the Goods are ready.
4.3. Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location. The Consignee shall be responsible for the unloading of the Goods at the Delivery Location.
4.4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Consignee's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5. If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Consignee in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.6. If the Consignee fails to take delivery of the Goods within three Business Days of the Supplier notifying the Consignee that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
4.6.1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Consignee that the Goods were ready; and
4.6.2. the Supplier shall store the Goods until delivery takes place, and charge the Consignee for all related costs and expenses (including insurance).
4.7. If 10 Business Days after the day on which the Supplier notified the Consignee that the Goods were ready for delivery the Consignee has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and charge the Consignee for any shortfall below the price of the Goods.
4.8. The Supplier may deliver the Goods by instalments, which may be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Consignee to cancel any other instalment.
4.9 The Consignee must give the Supplier notice of rejection if it wishes to reject any Goods that do not comply with clause 5.1:
4.9.1. in the case of a defect that is apparent on normal visual inspection, within five Business Days of delivery; and
4.9.2. in the case of a latent defect, within a reasonable time of the latent defect having become apparent; provided that none of the events listed in clause 5.3 apply.
4.10. If the Consignee fails to give notice of rejection in accordance with clause 4.9, it shall be deemed to have accepted the Goods.
4.11. If the Consignee rejects any Goods under clause 4.9, then the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full which shall be the extent of the Supplier's liability for any rejected Goods.
5 Quality
5.1. The Supplier warrants that on delivery, and for a period of 12 months (unless otherwise agreed by the parties in writing) from the date of delivery (warranty period), the Goods shall:
5.1.1. conform in all material respects with the Specification; and
5.1.2. be free from material defects in design, material and workmanship.
5.2. Subject to clause 5.3, if:
5.2.1. the Consignee gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2. the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3. the Consignee (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Consignee's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3. The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1. the Consignee makes any further use of such Goods after giving notice in accordance with clause 5.2 or 4.9;
5.3.2. the defect arises because the Consignee failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3. the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Consignee;
5.3.4. the Consignee alters or repairs such Goods without the written consent of the Supplier;
5.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6. the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4. Except as provided in this clause 5, the Supplier shall have no liability to the Consignee in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6. These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6 Title and risk
6.1. The risk in the Goods shall pass to the Consignee on completion of delivery in accordance with clause 4.3.
6.2. Title to the Goods shall not pass to the Consignee until the earlier of:
6.2.1. the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Consignee in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Consignee resells the Goods, in which case title to the Goods shall pass to the Consignee at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Consignee, the Consignee shall:
6.3.1. store the Goods separately from all other goods held by the Consignee so that they remain readily identifiable as the Supplier's property;
6.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 .notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
6.3.5. give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4. Subject to clause 6.5, the Consignee may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Consignee resells the Goods before that time:
6.4.1. it does so as principal and not as the Supplier's agent; and
6.4.2. title to the Goods shall pass from the Supplier to the Consignee immediately before the time at which resale by the Consignee occurs.
6.5. If before title to the Goods passes to the Consignee the Consignee becomes subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy the Supplier may have:
6.5.1. the Consignee's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2. the Supplier may at any time:
(a) require the Consignee to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(b) if the Consignee fails to do so promptly, enter any premises of the Consignee or of any third party where the Goods are stored in order to recover them.
7 Price and payment
7.1. The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
7.2. The Supplier may, by giving notice to the Consignee at any time up to 10 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1. any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2. any request by the Consignee to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3. any delay caused by any instructions of the Consignee or failure of the Consignee to give the Supplier adequate or accurate information or instructions.
7.3. The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
7.4. The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Buyer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5. The Supplier may invoice the Buyer for the Goods on or at any time after the completion of delivery.
7.6. The Buyer shall pay the invoice in full and in cleared funds within 30 Business Days of the date of the invoice or as per the payment schedule agreed in writing between the Buyer and Supplier. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.7. If the Buyer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount. The Consignee shall also indemnify the Supplier for all reasonable costs and expenses incurred in the recovery of all unpaid amounts under the Contract.
7.8. The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Supplier to the Consignee.
7.9. Without prejudice to any other rights or remedies available to the Supplier, where the Buyer is a third party other than the Consignee, if any sums due to the Supplier under the Contract have not been paid when due (as determined by the Supplier), for any reason whatsoever, the Consignee shall become immediately liable for all sums due under the Contract including any sums specified in this clause 7.
8 Termination and suspension
8.1. If the Consignee becomes subject to any of the events listed in clause
8.2. the Supplier may terminate the Contract with immediate effect by giving written notice to the Consignee. 8.2 For the purposes of clause 8.1, the relevant events are:
8.2.1. the Consignee enters into any form of insolvency process or arrangement;
8.2.2. the Consignee suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business; and
8.2.3. the Consignee's financial position deteriorates to such an extent that in the Supplier's opinion the Consignee's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.3. Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Consignee and the Supplier if the Consignee becomes subject to any of the events listed in clause 8.2.1 to clause 8.2.3, or the Supplier reasonably believes that the Consignee is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
8.4. On termination of the Contract for any reason the Consignee shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
8.5. Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
8.6. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9 Limitation of liability
9.1. Nothing in these Conditions shall limit or exclude the Supplier's liability for:
9.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2. fraud or fraudulent misrepresentation;
9.1.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.1.4. defective products under the Consumer Protection Act 1987; or
9.1.5. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2. Subject to clause 9.1:
9.2.1. the Supplier shall under no circumstances whatever be liable to the Consignee, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2. the Supplier's total liability to the Consignee in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
10 Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable. A Force Majeure Event shall include but not be limited to acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority; and any failure of a supplier or sub-contractor.
11 General
11.1. Assignment and other dealings.
11.1.1. The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2. The Consignee may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2. Notices.
11.2.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
11.2.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
11.2.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3. Severance.
11.3.1. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.3.2. If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.4. Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 11.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.6. Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
11.7. Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
11.8. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).