1.``the Seller'' shall mean Direct Press Marketing Limited; ``the Buyer'' shall mean the party ordering the goods from the Seller; ``the Contract'' shall mean the contract for the supply of the goods; ``the Goods'' shall mean the goods specified in the Contract which the Seller is to supply at the price(s) stated.
2.(a)All contracts whether written or oral made by the Seller for the supply of the Goods are subject to and governed by these terms and conditions, which may only be varied by a director of the Seller in writing, to the exclusion of terms and conditions contained in or attached to the Buyer's order or any other written or oral information which conflicts with or purports to modify these terms and conditions and these terms and conditions constitute the terms and conditions of the contract and any other terms and conditions shall not form part of the contract. (b)No binding contract for the sale of the Goods shall come into existence unless a written contract for the sale of the Goods has been signed by both the Seller and the Buyer. (c)No employee or agent or officer of the Seller has authority to make any representations or enter into any agreement or collateral agreement except as provided for in these terms and conditions.
3.Unless otherwise stated the Seller's quotation is for goods loaded onto transport. Where installation is stated to be included the Goods are to be delivered in bulk to a ground floor site. Should the Buyer's proposed site necessitate further dismantling craneage or building work then these additional costs will be met by the Buyer.
4.(a)delivery of the Goods shall be at the address specified in the Contract or if not so specified at the Buyers premises. (b)The Seller will use reasonable endeavours to deliver the Goods by the agreed date but time of delivery shall not be the essence of the contract, nor shall the Seller be liable for damages for late delivery either direct or consequential for loss of profit or howsoever otherwise. It shall be a condition precedent in future deliveries that payments already due to the Seller shall have been made in accordance with the terms of all contracts and if such payments have not been made and future deliveries are withheld accordingly the Seller shall not be liable for non-delivery or otherwise. (c)In the event that the Buyer does not accept delivery of the goods within 7 days of the delivery date notified to the Buyer then the Seller shall be entitled to charge the Buyer interest on the amount unpaid for the Goods at the rate of 16% per annum for the period from the notified delivery date until the date of delivery. For the purposes of this clause the Buyer will be deemed not to have accepted delivery of the Goods if the Buyer has not supplied all the facilities necessary for the commissioning of the Goods, for example an inadequate foundation for the Goods.
5.(a)Title to the Goods delivered by the Seller shall remain vested in the Seller as the absolute property of the Seller until such time as the Buyer shall have paid to the Seller in full in cleared funds all monies due to the Seller under the Contract. (b)Until payment has been made in full (i) the Buyer shall keep the Goods insured from the time the Goods are delivered against all risks to their full replacement value including injury to persons or damage to property. (ii) the Goods shall be clearly marked as the property of the Seller. (iii) without prejudice to any other remedies the Seller (or its agents) may repossess the Goods and for this purpose the Buyer hereby grants to the Seller an irrevocable licence to enter upon any premises of the Buyer or any other premises where the Goods are being kept with such transport and equipment as may be necessary to repossess the Goods; (iv) nothing in this clause shall confer any right on the Buyer to return the Goods or to refuse to or delay payment thereof unless otherwise agreed in writing by the Seller.
6.Notwithstanding that the ownership in the Goods shall remain vested in the Seller the Goods shall be at the risk of the Buyer from the time of delivery and the buyer shall insure the Goods against all usual risks in the full value thereof.
7.(a)The terms of any guarantee issued by the Seller in respect of the Goods are as specified in the Contract. Any claim under this guarantee must be made within 8 working days of breakage or damage. (b)This guarantee is confined to the replacement or repair at the Seller's option of the defective part and the repair of any damage to the Goods arising from the failure of said part within the limitations of the terms of the guarantee. Any payment by way of damages whether for immediate or consequential loss is expressly excluded. (c)The guarantee given will not be binding on the Seller (i) where defects have arisen through improper or abnormal usage and accidents; (ii) if use of the Goods is not stopped immediately the defect becomes apparent or any attempt is made to re-start or re-use the Goods before the repair has been successfully carried out; (iii) if the Buyer does not inform the Seller in writing of the damage or breakage promptly (and in any event within 8 working days); or (iv) if the Buyer allows any person to work upon or move the Goods without the Seller's express permission in writing. (d)This guarantee is personal to the Buyer and shall not be transferred to any other person. Under no circumstances shall the liability of the Seller under this clause exceed the invoice value of the Goods.
8.The Seller shall be liable for death or personal injury caused by negligence and for any liability under Part II of the Consumer Protection Act 1987 but subject thereto in no circumstances will the Seller incur any liability of any kind or nature whether in contract or in tort or otherwise or for any loss of profits or for any other consequential loss arising out of any breach by the Seller and the Buyer acknowledges that its remedies are limited to those contained in these terms and conditions.
9.(a)If any payment due from the Buyer is in arrears the Seller shall have the absolute right to suspend deliveries and services. If such payment remains in arrears for seven days after a written demand to the Buyer then the Seller has the right to cancel the contract without prejudice to all the Seller's rights to recover any monies due from the Buyer. (b)Payments shall be considered in arrears if not made within the terms stated in the Contract. Any claims of whatsoever nature by the Buyer against the Seller in respect of the Goods shall not entitle the Buyer to withhold payment for any part of the Goods or other Goods purchased by the Buyer from the Seller nor shall the Buyer be entitled to set off any such claim against any claim by the Seller for the price nor shall the Buyer be entitled to claim a stay of execution on any judgement for the price in reliance on such claim.
10.Statements or representations of whatever kind and however made including but not confined to those as to weights measurements power consumption performance descriptions details of designs prices and changes and whether contained in drawings floor plans catalogues advertisements brochures photographs descriptive materials verbal representations or otherwise are approximate only and shall not be binding upon the Seller or in any way form part of the Contract unless expressly stated to do so by the Seller in writing.
11.Once the Goods have been delivered by the Seller the Goods are to be considered as under the control of the Buyer who shall supply all necessary materials (such as paper ink film or the like) and power at its cost for the purpose of commissioning.
12.The Buyer will pay for the cost of taking electrical and pipework supply to the site of the machine(s) by providing any necessary structure for the housing of compressors and for the cost of such work as may be necessary to provide a foundation which complies with the manufacturer's specification for the machine(s) to be installed.
13.The Seller shall not be liable in any way for loss or damage caused by delay in the performance or non-performance of any of its obligations under the contract by happenings or occurrences outside the reasonable control of the Seller including (but not limited to) acts of God state of war civil strife or sabotage requisitioning governmental or parliamentary restrictions prohibitions or enactments of any kind import or export regulations or prohibitions strikes lock outs or trade disputes fire explosion accidents theft non-availability or delay of vessel or transport reduction or stoppage of output at any place where the Goods are being stored or are undergoing any work or process or late or non-provision to the Seller of any pertinent plant equipment or materials, or any breach of contract, or default by insolvency of a supplier of the Seller. Should any such event occur the Seller at its option may cancel or suspend or extend the time for performing its obligations or initially suspend and then cancel the Contract without incurring any liability whatsoever for any loss or damage thereby occasioned.
14.(a)If the Seller fails to deliver the Goods for any reason other than any cause outside the reasonable control of the Seller and is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods. (b)No failure (or delay) by the Seller to exercise any right or remedy herein shall operate as a waiver thereof. (c)No waiver alteration or modification of these conditions shall be binding upon the Seller unless made in writing and signed by a director of the Seller. Any such waiver alteration or modification shall apply for the purpose of that particular transaction only and the Buyer's obligations in respect of future performance shall remain in full force and effect.
15.Neither party shall assign its rights or obligations under the Contract without the prior written consent of the other party.
16.If information comes to the Seller's attention that indicates in the opinion of the Seller that the Buyer is unlikely to be able to discharge its financial obligations under the Contract then the Seller reserves the right to terminate the Contract immediately by written notice without incurring any liability whatsoever for any loss or damage thereby occasioned.
17.The Seller may terminate the Contract immediately by written notice to the Buyer in the event of the Buyer being the subject of voluntary or involuntary winding up proceedings goes into liquidation enters into composition with its creditors or has an administrator, receiver or an administrative receiver appointed over all or part of its undertaking or assets.
18.In the event of the Buyer terminating the Contract or being in breach of any of its terms and conditions the Buyer shall forthwith pay to the Seller all sums due under the Contract without rebate or allowance.
19.Notices shall be served in writing by first class pre-paid post to the respective party's address as it appears in the Contract and notices shall be deemed to have been received 48 hours after despatch.
20.The Contract shall be governed by and shall be enforced in accordance with the laws of England and the parties hereby submit to the non-exclusive jurisdiction of the English courts.