Standard Terms and Conditions
1. Definition and interpretation
In these standard terms and conditions ("these Conditions"):
"Advice" means any advice or recommendation provided by the supplier;
"Byer" means the person, firm or company purchasing Goods and/or Services or receiving Advice;
"Contract" means the contract between the Supplier and the Buyer for the sale and purchase of Goods and/or the provision of Advice incorporating these Conditions and, if applicable, the HGCRA Terms;
"Goods" means the goods or equipment to be supplied by the Supplier;
"HGCRA Terms" means the Supplier's special terms and conditions that apply in addition to these Conditions to any Contract that is a "construction contract" (as such term is defined by section 104 of the Housing Grants, Construction and Regeneration Act 1966) and such HGCRA Terms can be viewed at the following URL: www.targetcatering.co.uk/hgcra-terms-and-conditions.
"Manufacturer's Recommendations for Use" means the recommendations for use for any Goods current at the time of use made by the manufacturer or producer (including the Supplier, where relevant) of the Goods whether contained on any label or otherwise;
"Supplier" means Pedrette Engineering Limited trading as Target Catering Equipment (company number 02284651) of registered address Unit 1, Ashville Trading Estate, Bristol Road, Gloucester, Gloucestershire, GL2 5EU, United Kingdom.
"Services" means the services to be provided by the supplier as detailed in the Specification.
"Specification" means the written specification agreed between the parties.
2. Formation of Contract
a) These Conditions (and, if applicable, the HGCRA Terms) shall apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Where the HGCRA Terms apply to the Contract, they shall prevail over these Conditions in the event of any conflict. No variation or addition to the Contract shall be binding unless in writing and signed by both the Supplier and the Byer.
b) The Buyer's order to the Supplier constitutes an offer by the Buyer, which shall only be accepted when the Supplier issues an order confirmation, at which point the Contract shall come into existence. The Buyer shall return to the Supplier a signed copy of the order confirmation by way of acknowledgement of this, otherwise the Supplier may terminate the Contract with immediate effect and in such circumstances shall have no further liability to the Buyer whatsoever.
c) The Contract constitutes the entire agreement between parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
d) A quotation given by the Supplier shall not constitute an offer. A quotation shall only be valid for 30 days.
VAT will be charged at the rate ruling at the date of dispatch.
a) Any specified delivery date shall be an estimate and time of delivery shall not be made of the essence by notice. Save as provided in clauses 4(e) and 4(f) the Supplier will be under no liability for any loss of profits), costs, damages, charges, expenses caused directly or indirectly by any delay in delivery nor will any delay entitle the Buyer to terminate or rescind the Contract.
b) Where delivery is to take place at the Buyer's premises the Supplier will deliver the Goods even if there is no person present to accept delivery of the Goods on behalf of the Buyer and the Goods shall be the risk of the Buyer from the time of delivery.
c) The Buyer shall inspect all Goods on delivery and shall have no claim in respect of any shortage or defect apparent on inspection unless the Buyer notifies the Supplier in writing giving details of such shortage or defect within 7 days of delivery.
d) The Supplier shall not be liable for any non-delivery of Goods (even if caused by the Supplier's negligence) unless written notice is given to the supplier within 30 days of the date when the Goods would in the ordinary course of events have been received.
e) Any liability of the Supplier for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
f) Unless otherwise agreed, delivery of the Goods shall take place at the Supplier's place of business.
g) If by reason of events beyond the Supplier's reasonable control the Supplier is prevented from delivering to the Buyer all or part of the Goods then the Supplier shall be entitled to difer delivery or cancel the Contract without any liability whatsoever.
5. Returns and cancellation
a) Save as where clause 5(b) applies, under no circumstances may Goods be returned and/or any Contract cancelled unless the Supplier's written approval has been obtained. In the case of bespoke Goods, the Supplier shall not accept returns in any circumstances (save as in respect of defective Goods, in which case clause 7 shall apply). In the case of other Goods, the Supplier may in its absolute discretion accept returns, but the return of Goods that are opened and/or used and/or not in resalable condition shall not be accepted in any circumstances (save as in respect of defective Goods, in which case clause 7 shall apply).
b) Where the Buyer is acting as a "consumer"and the contract is a "distance contract" (as such terms are defined by Section 3 of the Consumer Protection (Distance Selling) Regulations 2000)(the "Regulations")(e.g. the Buyer is an individual acting in a personal capacity and the Contract is formed online and/or by email), the Buyer may cancel the Contract at any time within 7 working days beginning on the day after the Buyer received the Goods (unless the Goods are made to the Buyer's specifications or by reason of their nature cannot be returned or are liable to deteriorate or expire rapidly) or, in the case of Services, at any time within 7 working days beginning with the day after the day on which the Contract is formed (unless performance has begun with the Buyer's agreement before the end of such seven day period).
c) If the Buyer has and exercises a right of cancellation pursuant to clause 6(b) above, the Supplier shall give a full refund of the price paid for the Goods or Services, provided that the Buyer has informed the Supplier in writing of the Buyer's intention to cancel the Contract and has returned the Goods unopened and in resalable condition as soon as reasonably practicable and at the Buyer's own cost.
6. Retention of Title
a) Goods shall be at the risk of the Buyer from the time of delivery.
b) Ownership of Goods shall not pass to the Buyer until the Supplier has received in full (in cash or cleared funds) all sums due to it from the Buyer under the Contract.
c) Until ownership of Goods has passed to the Buyer, the Buyermust: hold the Goods on a fiduciary basis as the Supplier's bailee; store the Goods (at no cost to the Supplier) seperately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Supplier's property; not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and maintain the Goods in satisfactory condition insured on the Supplier's behalf for their full price against all risks.
d) The Buyer may resell or use the Goods before ownership has passed to it solely on the following conditions: any sale shall be effected in the ordinary course of the Buyer's business at full market value; any such sale shall be a sale of the Supplier's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale; any use shall be in the Buyer's ordinary course of business.
e) The Buyer's right to possession of the Goods shall terminate immediatly if:
(i) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986) or a resolution for the Buyer is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(ii) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Supplier and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(iii) the Buyer encumbers or in any way charges any of the Goods.
f) The Buyer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
a) In the case of Goods manufactured by the Supplier, the Supplier warrants that on delivery and for 12 months from the date of delivery ("warranty period"), the Goods shall conform in all material respects with the Specification and be free from material defects in design, material and workmanship.
b) Subject to clause 7(c), if:
(i) the Buyer 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 above;
(ii) the Supplier is given a reasonable opportunity of examining such Goods; and
(iii) the Buyer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Buyer's cost and/or agrees to the removal and reinstallation of the Goods at the Buyer's cost, then the Supplier shall, at its option, repair or replace the defective Goods, or refund the price paid in full.
c) The Supplier shall not be liable for Goods' failure to comply with the warranty set out above if:
(i) the Goods have not been installed by an engineer approved or authorised by the Supplier;
(ii) the Buyer makes any further use of such Goods after giving notice in accordance with clause 7(b);
(iii) the defect arises because the Buyer failed to follow the Supplier's instructions as to the storage, commissioning, installation, use and maintenance of the Goods and/or good trade practice;
(iv) the defect arises as a result of any drawing, design or Specification supplied by the Buyer;
(v) the Buyer alters or repairs such Goods without the written consent of the Supplier;
(vi) the defect arises as a result of fair wear and tear, wilful damage, negligence, abnormal storage or working conditions, or any unforeseeable event (including buy not limited to civil commotion, fire, explosion, flood, corrosion, or damage in transit); or
(vii) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statuory or regulatory requirements.
d) Except as provided in these clauses 7(b) and 7(c), the Supplier shall have no liability in respect of the failure of Goods manufactured by the Supplier to comply with the warranty above.
e) In the case of Goods sold by the Supplier but manufactured by a third party, the only obligation accepted by the Supplier will be to pass on to the Buyer by way of assignment or transfer (if and to the extent possible) the benefit of any manufacturer's or supplier's warranty the Supplier has received.
f) In the case of Services and Advice provided by the Supplier, the Supplier warrants that it will provide such Services and Advice with reasonable care and skill.
g) 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 and save there the Customer is a person dealing as a consumer, within the meaning of the Unfair Contract Terms Act 1977) are, to the fullest extent permitted by law, excluded from the Contract.
h) The Buyer acknowledges that clause 7(e) is fair and reasonable given that the Supplier is not the manufacturer or producer of the Goods to which that clause relates and given that the Supplier itself only has the benefit of any manufacturer's or supplier's guarantee or warranty in respect of such Goods.
i) If and to the extent that the Supplier has any legal obligation to the Buyer arising out of the quality, use or fitness for purpose of any Goods, breach of warranty or otherwise, the Supplier shall have no liability to the Buyer if'
(i) the Buyer makes any further use of such Goods after it discovers or ought to have discovered any defect;
(ii) the Buyer fails to follow the Manufacturer's Recommendations for Use the Supplier's instructions or recommendations as to the storage, application or use of the Goods; or
(iii) the Buyer makes use of the Goods in abnormal conditions.
j) Subject to clause 7(a) if and to the extent that the Supplier has any legal obligation to the Buyer arising out of the use, quality or fitness for purpose of any Goods, Breach of warranty or otherwise the Supplier shall at its option replace such Goods or refund the price of such Goods at the pro rata Contract rate provided that, if the Supplier so requests and to the extent reasonably possible, the Buyer shall, at the Buyer's expense, return the Goods or the part of such Goods which are defective to the Supplier. Such refund or replacement shall be made by the Supplier in full and final satisfaction of its obligation to the Buyer.
k) The Buyer is under duty to use, handle and store the Goods in accordance with any Manufacturer's Recommendations for Use or any instructions given by the Supplier.
a) Nothing in these Conditions excludes or limits the liability of the Supplier or any of its employees, directors or agents for: (i) death or injury to any human being resulting from its own or that of any of its employees', directors' or agents' negligence; or (ii) fraudulent misrepresentation.
b) Subject to Clause 8(a) above, the Supplier shall not be liable to the Buyer for any indirect or consequential loss or damage which may be suffered by the Buyer, or for any financial losses or loss of profit. The Supplier's total liability in respect of any direct loss or damage suffered by the Buyer shall be limited to the price paid by the Buyer under the Contract.
c) The Supplier shall have no liability for any Advice unless it is final and in writing any the Buyer acknowledges that it shall not rely on any Advice that is given orally or is in draft form.
d) The Buyer shall be responsible for the end-of-life treatment of the Goods and all related costs, including but not limited to the costs of collection, treatment, and recycling on disposal by the Buyer of the Goods, and the Buyer accepts that the Supplier shall have no responsibility or liability in this regard. The Buyer shall dispose of the Goods in the correct and environmentally appropriate manner in accordance with Directive 2002/96/EC on Waste Electrical and Electronic Equipment (the WEEE Directive) and the Waste Electronic and Electrical Equipment Regulations 2006.
a) In the case of a Contract for the supply of Goods alone, the Supplier shall invoice the Buyer upon dispatch of the Goods and the Buyer shall settle the invoice within 30 days of receipt.
b) In the case of a Contract for the supply of Goods and Services, in circumstances where the HGCRA Terms do not apply the Supplier shall invoice the Buyer for 50% of the total amount payable upon formation of the Contract and for the remaining 50% upon completion of Services and the buyer shall settle the invoices within 30 days of receipt.
c) In the case of a Contract to which the HGCRA Terms apply, the payment terms therein shall apply.
10. Overdue Accounts
If the Buyer fails to pay the Supplier any sum when due, the Buyer will be liable to pay interest to the Supplier on such sum from the due date for payment at the annual rate of 8% above the base rate of the Bank of England, calculated on a daily basis until payment is made, whether before or after any judgement.
If the Buyer shall commit any breach of a Contract or any other contract between Buyer and the Supplier or if any distress or execution shall be levied upon any of the property or assets of the Buyer or if the Buyer shall in the sole opinion of the Supplier be unable to pay the Supplier for any Goods or Services or Advice or suspend payment of its debts or make any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in anyway being a company have a receiver appointed of its assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Buyer or if any other person takes possession of or sells the Buyer's assets or an order is made for the appointment of an administrator to manage the affairs, business and property of the Buyer or documents are filed with a court of competent jurisdiction for the appointment of an admnistrator of the Buyer or notice of intention to appoint an administrator is given by the buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedual B1 to the Insolvency Act 1986 pass any resolution to be wound up or being a person shall commit any act of bankruptcy or have any bankruptcy petition presented against it, then and in any such event the Supplier shall without prejudice to any other rights and remedies it might have and without any liability whatsoever be at liberty forthwith by notice in writing to the Buyer to cancel all or any orders and contracts (including the Contract) or any part therof remaining unfulfilled between the Supplier and the Buyer.
12. Intellectual Property
All intellectual property rights in and relating to the Goods, Services,Advice and Specification shall remain the property of the Supplier.
13. Data Protection
The Buyer shall not be entitled to assign the Contract or any part of it without the Supplier's written consent. The Supplier may assign the Contract or any part of it to any person, firm or company.
If any part of this Contract is held by a court to be invalidm void or unenforceable in the jurisdiction of the court in which that decision is made, the remainder of the provisions of this Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
a) Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier whether under the Contract or not. Failure or delay by the Supplier in enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
b) A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from the Act.
c) Any heading are for convenience only shall not affect the construction of this Contract.
17. Governing Law and Jurisdiction
The construction and validity of these Conditions shall be governed by the law of England and Wales and the courts of England shall have non-exclusive jurisdiction to resolve any disputes arising under or in connection with these Conditions.