Omnia Machinery – STANDARD TERMS AND CONDITIONS
Please note that the Supplier may, in its absolute discretion, opt to be appointed as the Customer’s agent for the purchase of the Goods. In this event, the provisions of condition 13 shall apply.
The Customer’s attention is in particular drawn to the provisions of condition 10, condition 11, condition 12 and condition 13.
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Commission: means the commission payable by the Customer to the Supplier as set out in the Contract.
(a) any contract between the Supplier and the Customer for the sale and purchase of the Goods; or
(b) any contract between the Supplier and the Customer for the appointment of the Supplier as the Customer’s purchasing agent,
in each case incorporating these conditions.
Customer: the person, firm or company who purchases the Goods from the Supplier or who appoints the Supplier as its purchasing agent in relation to the Goods.
Delivery Point: the location specified in the Contract or if no such location is specified the Supplier’s place of business.
(a) any goods agreed in the Contract to be supplied to the Customer by the Supplier (including any part or parts of them); or
(b) in the event of the Supplier being appointed as the Customer’s agent, any goods in respect of which the Customer appoints the Supplier as its purchasing agent.
Supplier: Omnia Machinery, whose place of business is at…
1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re- enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
- APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3, the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Supplier’s sales and the Supplier’s appointment as purchasing agent and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed on behalf of the Supplier. The Customer 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. Nothing in this condition shall exclude or limit the Supplier’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Customer from the Supplier shall be deemed to be an offer by the Customer to buy Goods subject to these conditions.
2.5 No order placed by the Customer shall be deemed to be accepted by the Supplier until a written acknowledgement of order is issued by the Supplier.
2.6 The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Supplier despatches an acknowledgement of order to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that the Supplier has not previously withdrawn it.
3.1 The quantity and description of the Goods shall be as set out in the Contract.
- DELIVERY OF THE PRODUCTS
4.1 Delivery shall not take place until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
4.1.1 the Goods; and
4.1.2 all other sums which are or which become due to the Supplier from the Customer on any account.
4.2 Delivery of the Products shall take place at the Delivery Point. The Supplier shall arrange for suitable transport to the Delivery Point at the Customer’s expense. On delivery, the Supplier (or its appointed carrier) shall where applicable provide the Customer with such export documents as are necessary and which the Customer is unable to prepare.
4.3 Subject to condition 4.1, delivery shall take place at a time notified in writing to the Customer by the Supplier.
4.4 Delivery or performance dates in relation to the supply by the Supplier of Goods are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery of the Goods.
4.5 The Customer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading or unloading the Goods.
4.6 The Supplier may effect delivery in one or more instalments.
4.7 Subject to the other provisions of these conditions the Supplier shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Supplier’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.8 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Supplier is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
4.8.1 risk in the Goods shall pass to the Customer (including for loss or damage caused by the Supplier’s negligence);
4.8.2 the Goods shall be deemed to have been delivered; and
4.8.3 the Supplier may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5.1 The quantity of any consignment of Goods as recorded by the Supplier on despatch from the Supplier’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5.2 The Supplier shall not be liable for any non-delivery of Goods (even if caused by the Supplier’s negligence) unless the Customer gives written notice to the Supplier of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 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.
- IMPORT AND EXPORT LICENCES
6.1 The Customer is responsible for obtaining, at its own cost, such import licences, export licences and other consents in relation to the Goods as are required from time to time and, if required by the Supplier, the Customer shall make those licences and consents available to the Supplier prior to the relevant shipment.
7.1 The Goods are at the risk of the Customer from the time of delivery, deemed delivery or the time of full payment in accordance with condition 9 whichever is earlier.
7.2 Legal and beneficial title in the Goods shall not pass to the Customer until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
7.2.1 the Goods; and
7.2.2 all other sums which are or which become due to the Supplier from the Customer on any account.
7.3 The Supplier shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Supplier.
7.4 On termination of the Contract, howsoever caused, the Supplier’s (but not the Customer’s) rights contained in this condition 7 shall remain in effect.
8.1 The price for the Goods shall be the price set out in the Contract.
8.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to servicing, postage, packaging, loading, unloading, carriage, freight, currency conversion, bank charges, insurance and where applicable any customs, import or other duties charged in respect of the sale and importation of Goods into the country in which the Customer is resident or the Delivery Point is located, all of which amounts the Customer shall pay in addition when it is due to pay for the Goods.
9.1 Subject to condition 9.4, payment of the price for the Goods is due in pounds sterling and shall be paid as follows;
9.1.1 10% of the price is payable immediately by way of a non refundable deposit.
9.1.2 The balance of the price together with all other payments due to the Supplier from the Customer under the Contract is payable within 14 days from the date of the pro forma invoice issued to the Customer by the Supplier.
9.2 Time for payment shall be of the essence.
9.3 No payment shall be deemed to have been received until the Supplier has received cleared funds.
9.4 All payments payable to the Supplier under the Contract shall become due immediately on its termination despite any other provision.
9.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Supplier to the Customer.
9.6 If the Customer fails to pay the Supplier any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Supplier on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
10.1 The Supplier warrants that (subject to the other provisions of these conditions) on delivery the Goods shall:
10.1.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
10.1.2 be reasonably fit for purpose.
10.2 The Supplier warrants that (subject to the other provisions of these conditions) where any servicing is carried out by the Supplier on any of the Goods, that servicing shall be carried out in accordance with recommended procedures and to a satisfactory standard.
10.3 Unless otherwise specified in the Contract or agreed between the Supplier and the Customer in writing, the Supplier (subject to the other provisions of these conditions) provides no warranty, in respect of any recorded milometer readings of any Goods.
10.4 The Supplier shall not be liable for a breach of any of the warranties in condition 10.1 or 10.2 unless:
10.4.1 the Customer gives written notice of the defect to the Supplier within 7 days of the time when the Customer discovers or ought to have discovered the defect; and
10.4.2 the Supplier is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost for the examination to take place there.
10.5 Without prejudice to the generality of any other provision in condition 10 or condition 12, where Goods are not sold as new, the Supplier shall not be liable for a breach of any of the warranties in condition 10.1 if;
10.5.1 the Customer or an agent of the Customer was given, prior to the Contract, a reasonable opportunity to inspect the Goods and having done so accepted the Goods in their existing condition at the time of inspection; or
10.5.2 the Customer fails to give written notice of the defect to the Supplier within 14 days from delivery or within 14 days from the earliest day the Customer or an agent of the Customer had a reasonable opportunity of inspecting the vehicle whichever is later.
10.6 The Supplier shall not be liable for a breach of any of the warranties in condition 10.1 or condition 10.2 if:
10.6.1 the Customer makes any further use of such Goods after giving notice under condition 10.4 or condition 10.5; or
10.6.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
10.6.3 the Customer alters or repairs such Goods without the written consent of the Supplier.
10.7 The Supplier shall not be liable for a breach of any of the warranties in condition 10.1 if the Customer’s usual place of business is not within the United Kingdom.
10.8 The Supplier shall not be liable for a breach of the warranty in condition 10.2 if the Customer’s usual place of business is not within the United Kingdom.
10.9 Subject to condition 10.4, condition 10.5, condition 10.6, condition 10.7 and condition 10.8, if any of the Goods do not conform with any of the warranties in condition 10.1 the Supplier 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 Supplier so requests, the Customer shall, at the Supplier’s expense, return the Goods or the part of such Goods which is defective to the Supplier.
10.10 Subject to condition 10.4, condition 10.5, condition 10.6, condition 10.7 and condition 10.8, if any servicing work carried out by the supplier in respect of the Goods, does not conform with the warranty in condition 10.2 the Supplier shall at its option re perform any servicing work provided that the total liability for such servicing work shall be limited to any invoice value of the original servicing.
10.11 If the Supplier complies with condition 10.9 it shall have no further liability for a breach of any of the warranties in condition 10.1.
10.12 If the Supplier complies with condition 10.10 it shall have no further liability for a breach of any of the warranties in condition 10.2.
11.1 Without prejudice to any other rights or remedies which the parties may have, the Supplier may terminate the Contract without liability to the Customer immediately on giving notice to the other if; (a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or (b) the Customer commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within seven days of that party being notified in writing of the breach; or (c) circumstances exist or arise which, in the reasonable opinion of the Supplier, materially and adversely affect the performance of, or the ability to perform, the Customer’s duties and obligations under the Contract; or (d) the Customer ceases or threatens to cease to carry out its business; or (e) the Customer becomes bankrupt or makes a composition or arrangement with his creditors or being a limited company has a Petition issued for the Insolvency of that company or goes into liquidation or carries out its business under an Administrator, Receiver, Manager or Liquidator or enters into a scheme or arrangement for the benefit of its creditors or any of them.
11.2 On termination of the Contract by either party and for any reason:
11.2.1 the Customer shall forfeit any deposit paid to the Supplier under these Conditions;
11.2.2 any deposit due to the Supplier under the Contract and not yet paid shall become payable immediately;
11.2.3 the Goods will remain the property of Supplier;
11.2.4 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11.3 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: (a) condition 7 (b) condition 11 (c) condition 12; and (d) condition 16.6.
- LIMITATION OF LIABILITY
12.1 Subject to condition 4, condition 5 and condition 10, the following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
12.1.1 any breach of these conditions;
12.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
12.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 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.
12.3 Nothing in these conditions excludes or limits the liability of the Supplier:
12.3.1 for death or personal injury caused by the Supplier’s negligence; or
12.3.2 under section 2(3), Consumer Protection Act 1987; or
12.3.3 for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
12.3.4 for fraud or fraudulent misrepresentation.
12.4 Subject to condition 12.2 and condition 12.3:
12.4.1 the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
12.4.2 the Supplier shall not be liable to the Customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
- APPOINTMENT AS AGENT
13.1 On written notice from the Supplier to the Customer stating that the Supplier is to be appointed as agent (Agency Notice), the Customer shall be deemed to appoint the Supplier as its exclusive agent to locate and purchase the Goods on the terms of these conditions and the Supplier shall be deemed to accept the appointment on those terms.
13.2 On appointment of the Supplier as the Customer’s agent, the Supplier undertakes and agrees with the Customer:
13.2.1 to act towards the Customer conscientiously and in good faith and not to allow its interests to conflict with the duties that it owes to the Customer under this agreement and the general law;
13.2.2 to describe itself in all dealings with the Goods as “purchasing agent” or “buying agent” of the Customer; and
13.2.3 to negotiate with the owner of the Goods (Owner) on behalf of the Customer for the purchase by the Customer of the Goods.
13.3 On appointment of the Supplier as the Customer’s agent, the Customer undertakes and agrees with the Supplier:
13.3.1 to act at all times in its relations with the Supplier dutifully and in good faith;
13.3.2 to indemnify the Supplier against any liabilities which the Supplier may incur as a result of acting with reasonable care and skill within the scope of its authority under this agreement as agent for the Customer.
13.4 All purchases of the Goods by the Supplier on behalf of the Customer shall be at the price specified in the Contract.
13.5 The Supplier shall not become the owner of any Goods nor of any other goods delivered to the Customer from the Supplier or otherwise.
13.6 The Customer acknowledges that the Supplier does not have title to the Goods and the Supplier does not give any warranties or representations as to title to or ownership of the Goods. The Customer further acknowledges that the Supplier shall not be a party to the contract between the Customer and the Owner for the sale and purchase of the Goods.
13.7 The Customer shall pay to the Supplier an amount equal to the price of the Goods together with the Commission due to the Supplier on receipt of a request for payment of the same from the Supplier. Such request for payment may be made by the Supplier at the same time as or prior to an Agency Notice.
13.8 In the event that the Supplier issues a request for payment prior to issuing an Agency Notice, the Supplier shall hold such funds as agent for the Customer provided always that if the Supplier does not issue an Agency Notice and the Supplier sells the Goods directly to the Customer (in accordance with these conditions, excluding condition 13), the Supplier shall cease to hold such funds as agent for the Customer on the issue of an invoice by the Supplier pursuant to clause 9.1 and such funds shall be released to the Supplier in settlement of such invoice.
13.9 The Supplier shall hold all sums received from the Customer pursuant to clause 13.7 as agent for the Customer.
13.10 On completion of the sale of the Goods by the Owner to the Customer, the Customer hereby:
13.10.1 authorises the Supplier to pay to the Owner, on receipt of an invoice (payable by the Customer) from the Owner, a sum equal to the price for the Goods; and
13.10.2 releases to the Supplier an amount equal to the Commission. On such release, the Supplier shall issue an invoice for the Commission.
13.11 In the event that completion of the sale of the Goods by the Owner to the Customer does not occur, the Supplier shall refund all sums paid by the Customer to the Supplier following a request for payment in respect of the Goods.
13.12 In the event of the appointment of the Supplier as the Customer’s agent pursuant to this clause 13, the following conditions shall cease to apply:
13.12.1 conditions 2.4 to 2.7 (inclusive);
13.12.2 condition 3 ;
13.12.3 conditions 4.1.1, 4.2 to 4.6 (inclusive) and 4.8;
13.12.4 conditions 5.1 and 5.3;
13.12.5 condition 7 ;
13.12.6 condition 8 ;
13.12.7 condition 9.1;
13.12.8 condition 10; and
13.12.9 conditions 11.2.3 and 11.3.
14.1 The Supplier may assign the Contract or any part of it to any person, firm or Supplier.
14.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
- FORCE MAJEURE
15.1 The Supplier reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Supplier including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Customer shall be entitled to give notice in writing to the Supplier to terminate the Contract.
16.1 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.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
17.1 All notices between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or email:
17.1.1 in case of notices to the Supplier to its place of business or such changed address as shall be notified to the Customer by the Supplier; or
17.1.2 (in the case of notices to the Customer) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Supplier by the Customer.
17.2 Notices shall be deemed to have been received:
17.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
17.2.2 if delivered by hand, on the day of delivery; or
17.2.3 if sent by fax or email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
- Omnia Machinery – PRO FORMA TERMS AND CONDITIONS
- Goods will remain on sale until 10% non-refundable deposit received.
- Title to goods does not pass until payment received in full, and is subject to goods remaining unsold and available.
- Payment in full required within 14 days of Pro Forma invoice date.
- If terms are not complied with, Omnia Machinery reserve the right to cancel the transaction. Goods will be treated as abandoned and deposits/payments will be forfeit.
- All shipping dates are advisory only. Omnia Machinery does not accept responsibility for delayed/part delivery by shipping lines.
- Under certain delivery circumstances, a refundable export bond is required.
- Terms for free Specifications and Dimensions
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Omnia Machinery is registered as a limited company