In this document the following words shall have the following meanings:
Agreement means the Conditions, an Order Acknowledgement and the relative Purchase Order for Goods and if there shall be any inconsistency between the documents comprising an Agreement, they shall have precedence in the order herein listed;
Buyer means the organisation or person with whom an Agreement is made by the Seller, whether directly or indirectly through an agent or factor who is acting for or instructed by or whose actions are ratified by such organisation or person;
Conditions means these terms and conditions;
Goods means the articles or things or any of them described in an Agreement including, without limitation, any materials, equipment, products or services;
Intellectual Property Rights means patents, registered designs, trade marks and service marks (whether registered or not), domain names, copyright, database rights, moral rights, design rights and all similar property rights including those subsisting (in any part of the world) in inventions, designs, drawings, computer programs, confidential information, business names, goodwill and in applications for protection of the above rights;
Order Acknowledgement is the Sellers acknowledgement of a Purchase Order for Goods confirming acceptance of that Purchase Order;
Parties means the Buyer and the Seller
Purchase Order shall mean an order for the purchase of Goods submitted to the Seller by the Buyer
Seller means Kangaroo Junk Removal
2.1.The Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer, whether in the negotiation or at any stage in the dealings between the Parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been agreed by the Seller in writing.
2.2.Any variation to the Conditions (including any special terms and conditions agreed between the Parties) shall be inapplicable unless agreed in writing by and signed by a director on behalf of the Seller.
3.1.Unless verbal or telephone Purchase Orders and any variations to Purchase Orders are confirmed in writing by the Buyer the Seller shall not be responsible for errors or subsequent misunderstandings.
3.2.Notwithstanding that the Seller may have given a detailed quotation no Purchase Order shall be binding on the Seller unless and until it has been accepted in writing by the Seller by means of an Order Acknowledgement.
4.PRICE AND PAYMENT
4.1.All prices estimated, quoted or invoiced are in Sterling (UK Pounds)
4.2.The price of the Goods will be the price stated in the Order Acknowledgement, being, unless otherwise stated by the Seller, the list price of the Company current at the date of the Order Acknowledgement. The Sellers prices are subject to adjustment to take account of any variation in the Sellers costs including (but not limited to) variations in wages, the cost of materials, exchange rate fluctuations, alterations of duties and other costs since the date of the Sellers quotation or (if no quotation is issued) the Purchase Order. The Seller accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted or the Purchase Order is submitted (as applicable). The invoice so adjusted shall be payable as if the price set out therein were the original Agreement price.
4.3.The price is exclusive of VAT, which will be charged at the appropriate rate. The price is also exclusive of transport, packaging, insurance and any other applicable duties or taxes, unless otherwise explicitly agreed.
4.4.All invoices of the Seller shall unless otherwise agreed in writing by the Seller be paid by the Buyer within 30 days of the date of the Sellers invoice without deduction or withholding and free of set off or counterclaim. Time for payment shall be of the essence of an Agreement. The Seller shall be entitled to render an invoice for the Goods sold under an Agreement as soon as the Seller has provided an Order Acknowledgement.
4.5.The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due until the date of payment at the rate of 4.00% per annum above the base rate of Barclays Bank.
4.6.If the payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:
4.6.1.require payment in advance of delivery in relation to any Goods not previously delivered;
4.6.2.refuse to make delivery of any undelivered Goods whether ordered under the Agreement or not and without incurring any liability whatever to the Buyer for non-delivery or any delays;
4.6.3.terminate the Agreement.
5.SPECIFICATION OF GOODS
5.1.No description, specification or illustration contained in any product pamphlet or other sales or marketing literature of the Seller and no representation written or oral, correspondence or statement shall form part of any Agreement.
5.2.Goods described in the Sellers literature or elsewhere are subject to a continuing process of technical change and development and the Seller therefore reserves the right to alter specifications without notice at any time before delivery. All descriptions, illustrations, specifications and dimensions are approximate and are only intended to present a general guideline as to the type of Goods represented thereby. It is therefore agreed by the Buyer that Goods supplied may not comply in all respects with the description in the Sellers literature or elsewhere.
6.1.Upon delivering the Goods to the Buyer, the Seller becomes the owner of any items, without limitation, given away by the Buyer in accordance with the Agreement and Purchase Order.
7.1.The Buyer shall provide the Seller with any information reasonably required by the Seller as well as obtain all necessary permissions and consents including (without prejudice to the generality of the foregoing) promptly obtaining all necessary import licences, clearances and other consents necessary for the purchase of the Goods.
7.2.Without prejudice to any other rights to which the Seller may be entitled, in the event that the Buyer unlawfully terminates or cancels the Agreement, the Buyer shall be required to pay to the Seller, as agreed damages and not as a penalty, the full amount of any third party costs to which the Seller has committed and in respect of cancellations on less than 4 hours’ written notice the full price of the minimum charge applicable for the corresponding area of operation as described in detail on the company’s price list. If this penalty is not paid by the buyer in full within 14 days of the invoice date, an administrative fee of £40 would be added to the initial charge. In case the new amount, with combined total of value of a minimum charge and administrative fee, is not paid within 30 days of the invoice date, Kangaroo Junk Removal would have no other option, but to require the services of a debt collection agency and if needed take the Buyer to court in regard with the total amount payable, which by that time would include any additional agency and legal fees.
8.ALTERATIONS TO THE AGREEMENT
8.1.The Parties may, at any time, mutually agree upon variations to the Agreement. Any alterations in the scope of Goods to be provided under the Agreement shall be set out in a revised Order Acknowledgement, which shall reflect the changed Goods and price and all other terms agreed between the Parties.
8.2.The Buyer may at any time within 2 days of the Order Acknowledgement request in writing alterations to the Agreement. On receipt of the request for alterations, the Seller shall, within 2 days, or such other period as may be agreed between the Parties, advise the Buyer by notice in writing whether it is prepared to alter the Agreement in accordance with the Buyers request and, if it is, the basis upon which it is prepared to do so having regard to the changes which the Seller would require to the price and any other terms previously agreed between the Parties (an alteration notice).
8.3. The Buyer shall, within 2 days of receipt of an alteration notice, or such other period as may be agreed between the Parties, advise the Seller by notice in writing whether or not it wishes the Agreement to be altered on the basis set out in the alteration notice. If such a notice is given by the Buyer, the terms of the altered Agreement shall be set out in a revised Order Acknowledgement.
9.1.The Seller warrants that it has the right to sell the Goods, but otherwise the Goods are provided on an “as-is” basis without warranty of any kind, express or implied, oral or written including, without limitation, any implied term as to quality, fitness for purpose or description, all of which are specifically and unreservedly excluded. In particular, but without limitation, no warranty is given that the Goods are suitable for any specific purpose intended by the Buyer.
10.1.The Buyer shall indemnify the Seller against all claims, costs and expenses which the Seller may incur and which arise, directly or indirectly, from the Buyers breach of any of its obligations under the Agreement.
11. LIMITATION OF LIABILITY
11.1.The following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
11.1.1.any breach of the Agreement;
11.1.2.any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
11.1.3.any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement
11.2.No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of the Agreement, where such representations were made or given in relation to:
11.2.1.the correspondence of the Goods with any description;
11.2.2.the quality of the Goods; or
11.2.3.the fitness of the Goods for any purpose whatsoever.
11.3.No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of the Agreement where such term relates in any way to:
11.3.1.the correspondence of the Goods with any description;
11.3.2.the quality of the Goods; or
11.3.3.the fitness of the Goods for any purpose whatsoever.
11.4.Save as expressly provided in the Agreement, all conditions, warranties and other terms implied by statute or common law are to the fullest extent permitted by law excluded from the Agreement.
11.5.The Sellers 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 Agreement shall be limited to the Agreement price.
11.6.In no event shall the Seller be liable to the Buyer for any loss of business, loss of opportunity, loss of profits, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of contract, loss of use, loss or corruption of data or information or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses whatsoever (howsoever caused) which arise out of or in connection with the Agreement. This shall apply even where such a loss was reasonably foreseeable or the Seller had been made aware of the possibility of the Buyer incurring such a loss.
11.7.Nothing in the Agreement shall exclude or limit the Sellers liability for death or personal injury resulting from the Sellers negligence or that of its employees, agents or sub-contractors.
12.1.The Seller may, by written notice, terminate the Agreement immediately if the Buyer is in breach of any of the terms of the Agreement, which, if capable of remedy, is not remedied within 2 days of a notice served by the Seller requiring such breach to be remedied. Failure to pay any sums due is a breach of the terms of the Agreement which is not capable of remedy.
12.2.The Agreement shall be terminated if an order is made for bankruptcy of the Buyer or an effective resolution is passed for the winding-up of the Buyer or the Buyer makes a composition with creditors or if a supervisor, receiver, administrator, administrative receiver or other encumbrancer takes possession of or is appointed over the whole or any part of the assets of the Buyer.
12.3.The Agreement shall be terminated if either party ceases to carry on its business or substantially the whole of its business or where either party is declared insolvent.
12.4.Termination of the Agreement shall not affect any rights or obligations of the Parties arising prior to such termination.
13.INTELLECTUAL PROPERTY RIGHTS
13.1.The specification and design of the Goods and all Intellectual Property Rights therein shall as between the Parties be the property of the Seller. Where any designs or specifications have been supplied by the Buyer for manufacture by the Seller or to the order of the Buyer then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party and the Buyer shall indemnify the Seller against all claims, costs, damages and expenses which the Seller may incur and which arise, directly or indirectly, from the Buyers breach of such warranty.
14.1.The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled in these circumstances to delay or cancel delivery or to reduce the amount delivered.
15.1.The Buyer shall not be entitled to assign an Agreement or any part of it without the prior written consent of the Seller.
15.2.The Seller may assign an Agreement or any part of it to any person, firm or company.
16.1.The failure by either party to enforce, at any time or for any period, any one or more of the terms and conditions of the Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of the Agreement.
17.1.If any term or provision of the Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
18.RIGHTS OF THIRD PARTIES
18.1.The Parties do not intend any part of the Agreement to be enforceable by any person not a party to it, by virtue of the Contracts (Rights of Third Parties) Act 1999.
19.1.The Agreement shall be governed by and construed in accordance with the law of England and Wales and the Courts of England and Wales shall have non-exclusive jurisdiction to hear all disputes arising in connection with the Agreement.