Terms & Conditions of Sale for Gibson Garden Machinery Ltd
1 Definitions
1.1 'Buyer' means the person, corporation, firm, association or trust who buys or agrees to buy the Goods from the Seller
1.2 'Conditions' means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller
1.3 'Delivery Date' means the date specified by the Seller when the goods are to be delivered
1.4 'Goods' means the articles which the Buyer agrees to
buy from the Seller.
1.5 'Price' means the price for the Goods excluding
carriage, packing, insurance and V A T .
1.6 'Sellers' means Gibson Garden Machinery Limited
2 Conditions applicable
2.1 These 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 including any terms or conditions which the Buyer may purport to apply under any purchase order confirmation of order or similar document, save the Sellers Internet Sales clause which shall be read in conjunction with and form part of these Conditions
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by a director of the Seller.
3 The Price and payment
3.1 The Price(s) quoted is exclusive of VAT and is that current at the date of quotation. It shall be subject to variation without notice to allow for any increase in cost coming into effect between the date of quotation , estimate or tender and the date of delivery unless specifically stated otherwise in writing by the Seller.
3.2 Payment of the Price and V A T shall be due within 5 days of the date of the date of invoice in respect of machinery and 21 days of the date of the invoice in respect of parts and service. Time for payment shall be of the essence.
3.3 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 3% per month and shall accrue at such a rate after as well as before any judgment.
4 The Goods
The quantity and description of the Goods shall be as set out in the Seller's quotation/sales literature.
5 Warranties and liability
The Seller warrants that the Goods will at the time of delivery correspond to the description given by the Seller. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977) all other warranties, conditions or terms relating to fitness for purpose, satisfactory quality or condition of the Goods and whether implied by statute or common law or otherwise are excluded.
6 Delivery of the Goods
6.1 Delivery of the Goods shall be made to the Buyer's address on the Delivery Date. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.2 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6.3 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 1 month of the Delivery Date.
6.4 If for any reason the Buyer fails to accept delivery of the Goods within one month from the Delivery Date the Seller at its sole discretion and without prejudice to its other rights may
a)store the Goods at the Buyers risk and cost, take all reasonable steps to store safeguard and insure (at the Buyers expense) the Goods or
b)sell the Goods at the best price readily available and charge the Buyer for any shortfall below the Price together with the Sellers costs of storage and insurance which may in the Sellers opinion have been necessary.
7 Acceptance of the Goods which comply with the contract
7.1 No Goods delivered to the Buyer which are in accordance with the contract will be accepted for return without the prior written approval of a director of the Seller on terms to be determined at the absolute discretion of the Seller.
7.2 If the Seller agrees to accept any such Goods for return the Buyer shall be liable to pay a handling charge of 20% of the Price. Such Goods must be returned by the Buyer carriage-paid to the Seller in their original carton.
7.3 Goods returned without the prior written approval of the Seller may at the Seller's absolute discretion be returned to the Buyer or stored at the Buyer's cost without prejudice to any rights or remedies the Seller may have.
8 Claims
8.1 The Buyer shall have no claim for shortages or defects apparent on visual inspection of the Goods unless the Seller receives written notification from the buyer within 3 days from delivery
8.2 The Buyer shall have no claim in respect of defects not apparent on visual inspection at the time of delivery unless notification is received by the Seller within 3 days of the defect in the Goods becoming apparent and in any event no later than 1 month after delivery of the Goods.
8.3 Subject to sub clauses 8.1and 8.2 if any Goods supplied to the Buyer prove on inspection to be defective in material or manufacture the Seller undertakes at its option to replace the same or to refund to the Buyer the price of the Goods and in no circumstances will the Seller's liability exceed the cost of such replacement or the price paid by the Buyer for the Goods. The Buyer's rights and remedies in respect of Goods rejected or which it is entitled to reject shall be limited to the rights and remedies in this sub paragraph.
9 Title and risk
9.1 The Goods shall be at the Buyer's risk as from delivery.
9.2 In spite of delivery having been made property in the Goods shall not pass from the Seller until the Buyer shall have paid the Price plus V A T in full; and no other sums whatever shall be due from the Buyer to the Seller
9.3 Until property in the Goods passes to the Buyer in accordance with clause 9.2 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller's property.
9.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer's business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller's property by the Buyer on the Buyer's own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller's money.
9.5 The Seller shall be entitled to recover the Price plus
V A T notwithstanding that property in any of the Goods has not passed from the Seller.
9.6 Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clause 9.4 shall cease
9.7 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
9.8 The Buyer shall insure and keep insured the Goods to the full Price against 'all risks' to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
9.9 The Buyer shall promptly deliver the prescribed particulars of this contract to the Registrar in accordance with the Companies Act 1985 Part XII as amended. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
10 Buyer
10.1 Where the Buyer rejects any Goods then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such Goods or the failure by the Seller to supply Goods which conform to the contract of sale
10.2 Where the Buyer accepts or has been deemed to have accepted any Goods then the Seller shall have no liability whatever to the Buyer in respect of those Goods.
10.3 The Seller shall not be liable to the Buyer for late delivery or short delivery of the Goods.
11 Insolvency & other default
If the Buyer fails to make payment for the Goods in accordance with this contract of sale or commits any other breach of this contract of sale or if any distress or execution shall be levied upon any of the Buyer's goods or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver administrator administrative receiver or manager shall be appointed over the whole or any part of the Buyer's business or assets or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the Goods shall become payable immediately and the Seller may at its option suspend and or determine all pending contracts and or further deliveries.
12 Miscellaneous
12.1 Neither party shall be liable for any default due to any act of God, war, strike, lock- out, industrial action, fire, flood, drought, tempest or other event beyond the reasonable control of either party.
12.2 The Seller may cancel this contract at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
12.3 No waiver or forbearance by the Seller (whether express or implied) in enforcing any of its rights under this contract shall prejudice its right to do so in the future.
12.4 In these Terms words importing the singular shall include the plural and vice versa and words importing the masculine gender shall include the feminine gender and vice versa.
12.5 The complete or partial invalidity or unenforceability of any provision herein for any purpose shall in no way affect the validity or enforceability of such a provision for any other purpose or the remaining provisions. Any such provisions shall be deemed to be severed for that purpose subject to such consequential modification as may be necessary for the purpose of such severance.
13 Jurisdiction
This contract is subject to the laws of England and Wales and all communications shall in the English language only
Internet Sales Clause
The Conditions set out in this “Internet Sales Clause” shall apply to all orders placed over the internet and shall be read in conjunction with the Sellers general Conditions which shall be deemed varied only so far as they are inconsistent with this clause
1.1 The price / Contract
(1) The Prices payable for Goods that you order and delivery charges are set out in the Sellers web
site and subject to clause 1.5 (3) are the prevailing rates and shall remain effective until new prices are published on the web site by the Seller.
(2) Prices shown in the public area of the Sellers web site are inclusive of VAT, however, once logged on prices become VAT exclusive.
(3) The Seller must receive payment of the whole of the Price for the goods and associated delivery charges before your order can be processed unless you hold a credit account with the Seller.
1.2 Delivery charges
Delivery charges are payable in addition to the Price shown for individual Goods
1.3 Orders
Upon receipt of your order the Seller will send you an email acknowledgement. The Sellers acceptance of your order will bring into existence a legally binding contract between us.
1.4 Time
Time shall not be of the essence and delivery dates are approximate only.
1.5 Cancellation by us
The Seller reserves the right to cancel your order if:-
(1) We have insufficient stock to cover your order
(2) We do not deliver to your area
(3) The goods are no longer available from the Sellers own suppliers
(4) One or more of the products ordered by you were listed in the Sellers web site at an incorrect price due to a typographical error or an error in the pricing information received from the Sellers suppliers.
If the Seller does cancel your order you will be notified by e-mail and the Seller will re credit your account as soon as possible and in any event within 30 days of your order
1.6 Your right to cancel the contract
This clause applies to consumers only i.e. any natural person who orders Goods for purposes which are outside his business
(1) You may cancel your contract with the Seller for the Goods you order at any time up to the end of the seventh working day from the date that you receive the ordered Goods. You need not give any reason for cancelling your contract nor will you have to pay a penalty.
(2) To cancel your contract you must notify the Seller in writing at our contact address
(3) If you have received the Goods before you cancel your contract then you must send the Goods back to the Seller at our contact address at your own cost and risk. If you cancel your contract but we have already processed the Goods for delivery you must not unpack the Goods when they are received by you and you must immediately send the Goods back to us at our contact address at your own cost and risk
(4) Once you have notified the Seller that you are cancelling your contract any sum debited to us from your credit / debit card will be re-credited to your account as soon as possible and an any event within 30 days of your order PROVIDED THAT the Goods in question are returned by you and received by the Seller in the condition they were in when delivered to you. If you do not return the Goods delivered to you or do not pay the costs of delivery the Seller shall be entitled to deduct the direct costs of recovering the Goods from the amount to be re-credited to you.
1.7 Delivery
(1) The Seller will deliver the Goods that you order to the address you give at the time you place your order. Delivery will be made as soon as possible after your order has been accepted and unless cancelled in accordance with clause 1.5 or 1.6 the Seller aims to deliver within 7 working days.
(2) The Seller reserves the right to delivery your order in instalments.
(3) Goods are insured for their replacement value only during transit with the exception of glass items, provided that damage is notified to the Seller in writing within 24 hours of delivery.
1.8 Liability
(1) If the Goods delivered are not what you ordered or are damaged or defective or delivery is of an incorrect quantity the Seller shall have no liability to you unless you notify them in writing at their contact address of the problem within 10 working days of delivery of the Goods in question.
(2) If you do not receive Goods ordered by you within 30 days of the date on which you ordered them the Seller shall have no liability to you unless you notify them in writing at their contact address of the problem within 40 days of the date on which you ordered the Goods. If you notify a problem to the Seller under this condition, their only obligation will be at your option
A to make good any shortage or non delivery
B to replace or repair any Goods that are damaged or defective or
C refund to you the amount paid by you for the Goods in question in whatever way we choose.
(3) Save as precluded by law the Seller will not be liable to you for any indirect or consequential loss, damage or expenses (including loss of profit, business or goodwill) howsoever arising out of any problem you notify to the Seller under this condition and the Seller shall have no liability to pay any money to you by way of compensation other than to refund to you the amount paid by you for the Goods in question and the Sellers prices are set accordingly.
(4) You must observe and comply with all applicable regulation and legislation including obtaining all necessary customs, import or other permits to purchase goods from our site. The importation of certain of our Goods may be prohibited by certain national laws. The Seller makes no representation and accept no liability in respect of the export or import of the goods you purchase.
(5) Notwithstanding the foregoing, nothing in these Conditions as intended to limit any rights you may have as a consumer under applicable local law or other statutory rights that may not be excluded nor in any way to exclude or limit our liability to you for death or personal injury resulting from the Sellers negligence.
1.9 Notices
Unless otherwise expressly stated in writing all notices from you to the Seller must be in writing and sent to our contact address at Regent Yard, Whitewalls Industrial Estate, Colne, BB8 8LJ and all notices from the Seller to you will be sent to your delivery or email address or posted on our web site, as appropriate.
2.0 Events beyond our control
The Seller shall have no liability to you for failure to deliver Goods that you have ordered or any delay in doing so or for any damage or defect to products delivered that is caused by any event or circumstance beyond the Sellers reasonable control including, without limitation industrial disputes, breakdown of systems or network access, flood, fire, accident or explosion
2.1 Privacy
The Seller will maintain all information provided to us strictly in accordance with the Sellers privacy statement and in particular the Data Protection Act
2.2 Invalidity
If any part(s) of these Conditions are unenforceable the enforceability of any other part(s) shall not be affected.
2.3 Account Holders only
You will be provided with a unique log in code which you shall keep strictly confidential. It shall not be passed to any unauthorised persons and its entry onto the Sellers web site shall be conclusive evidence that the user has authority to purchase Goods on your account. Subject to your account being within agreed credit limits and you adhering to the Sellers terms and conditions of trade the price of orders placed by you once logged on using your unique log in code will be added to your account facility.
