Penguin Refrigeration Standard Terms and Conditions of Sale
1. DEFINITIONS
1.1 In this document the following expressions shall have the following meanings:
Buyer means the organisation or individual who enters into the Contract with the Seller;
Conditions means the terms and conditions set out in this document;
Consumer has the same meaning as it does in the Consumer Rights Act 2015;
Contract means the Order Confirmation, the Conditions and the Purchase Order relating to the supply of particular Goods and/or Services by the Seller to the Buyer;
Contract Price means the price payable by the Buyer for the Goods and/or Services as set out in the Order Confirmation;
Goods means the articles or things or any of them described in the Contract including, without limitation, raw materials, processed materials or fabricated products;
Intellectual Property Rights means patents, registered designs, trademarks 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 Confirmation means the Seller’s confirmation of its acceptance of a Purchase Order;
Parties means the Buyer and the Seller;
Purchase Order means an offer to buy Goods and/or Services made to the Seller by the Buyer;
Seller means Penguin Refrigeration Limited; and
Services means the installation and/or commissioning of the Goods and/or such other services as are described in the Contract.
2. GENERAL
2.1 If there is any inconsistency between the documents comprising the Contract, the Order Confirmation shall prevail over the Conditions and both the Order Confirmation and the Conditions shall prevail over the Purchase Order. For the avoidance of doubt, unless the contrary is agreed in writing by the Seller the Order Confirmation and the Conditions shall prevail over all other terms and conditions referred to, offered or proposed by the Buyer, whether in the negotiation or at any stage in the dealings between the Parties, including any standard or printed terms habitually relied on by the Buyer.
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 the Seller.
3. ORDERS
3.1 The Seller shall not be responsible for any errors or omissions in an Order Confirmation where the corresponding Purchase Order or variation to a Purchase Order is not submitted or subsequently confirmed in writing by the Buyer.
3.2 Any quotation given by the Seller shall be regarded as being an invitation to treat and not an offer made by the Seller. As a consequence, notwithstanding that the Seller may have given a detailed quotation, the Purchase Order shall not be binding on the Seller unless and until it has been accepted in writing by the Seller by means of the Order Confirmation.
4. PRICE AND PAYMENT
4.1 All prices estimated, quoted or invoiced shall be in Sterling (UK Pounds) or Euro.
4.2 Unless otherwise agreed in writing by the Seller, the Contract Price shall be calculated by reference to the Seller’s standard price list current at the date of the Order Confirmation.
4.3 Except where the Buyer is a Consumer, the Seller shall be entitled to adjust its standard price list and/or a particular quoted price (where a quotation has been provided by the Seller) to take account of any variation in the Seller’s costs including (but not limited to) variations in wages, the cost of materials, exchange rate fluctuations, alterations of duties and other costs arising after the date of the Seller’s quotation or (if no quotation is issued) the Purchase Order but before the Order Confirmation is issued.
4.4 The Contract Price shall be exclusive of VAT, which shall be charged at the appropriate rate. The Contract Price shall also be exclusive of transport, packaging, insurance and any other applicable duties or taxes, unless explicitly agreed otherwise.
4.5 Unless otherwise agreed in writing by the Seller, the Seller’s invoice(s) shall be paid by the Buyer within 30 days of the date of the Seller’s invoice(s) without deduction or withholding and free of set off or counterclaim. Time for payment shall be of the essence of the Contract. The Seller shall be entitled to render an invoice for the Goods and/or Services to be supplied under the Contract as soon as the Seller has issued the Order Confirmation.
4.6 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 3.00% per annum above the base rate of Barclays Bank PLC.
4.7 If the payment of the Contract Price or any part thereof is not made by the due date, the Seller shall be entitled to:
4.7.1 require payment in advance of delivery and/or supply in relation to any Goods and/or Services not already delivered or supplied;
4.7.2 refuse to make delivery of any undelivered Goods and/or to refuse to supply any unsupplied Services, whether ordered under the Contract or not and without incurring any liability whatever to the Buyer for non-delivery or non-supply or any delay in delivery or supply;
4.7.3 terminate the Contract.
5. SPECIFICATION OF GOODS AND/OR SERVICES
5.1 The Contract shall not constitute a sale by description or sample.
5.2 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 the Contract.
5.3 All descriptions, illustrations, specifications and dimensions are approximate and are only intended to present a general guideline as to the type of goods and/or services represented thereby. It is therefore agreed by the Buyer that the Goods and/or Services supplied might not comply in all respects with the description of such of goods and/or services in the Seller’s literature or elsewhere.
5.4 Goods and/or services described in the Seller’s sales or marketing literature or elsewhere are subject to a continuing process of technical change and development and the Seller therefore reserves the right to alter the specification of the Goods and/or Services without notice at any time before delivery of the Goods and/or supply of the Services to the Buyer.
6. DELIVERY OF GOODS & SUPPLY OF SERVICES
6.1 Any estimated date of delivery specified by the Seller in respect of the Goods shall be given in good faith but shall be approximate only. The Seller undertakes to use reasonable endeavours to despatch the Goods on any agreed date, but does not guarantee to do so. Time of delivery shall not be the essence of the Contract, unless expressly agreed in writing by the Seller.
6.2 Where Goods are delivered by carriers over whom the Seller has no control, the Seller shall not be liable for any loss, damage or expense suffered by the Buyer or any other party by reason of the Goods being delivered after any estimated date of delivery.
6.3 Goods to be collected by the Buyer from the Seller’s premises shall be deemed to be delivered to the Buyer when they have been loaded on to the Buyer’s vehicle or are otherwise taken into the Buyer’s possession.
6.4 Goods to be sent by the Seller to the Buyer shall be deemed to be delivered to the Buyer when they are ready to be unloaded at the delivery location for the Goods specified by the Buyer.
6.5 If the delivery location for the Goods is not specified by the Buyer within 5 days, or 14 days for export orders, of the Seller’s notification to the Buyer that Goods are ready for despatch, the Seller shall be entitled to make an appropriate storage charge from the date of such notification.
6.6 The Buyer agrees that Section 32(3) of the Sale of Goods Act 1979 shall not apply to Goods sent by the Seller.
6.7 Any estimated date of supply specified by the Seller in respect of the Services shall be given in good faith but shall be approximate only. The Seller undertakes to use reasonable endeavours to supply the Services on any agreed date(s), but does not guarantee to do so. Time of supply shall not be the essence of the Contract, unless expressly agreed in writing by the Seller.
7. RISK AND TITLE
7.1 All risk in the Goods shall pass to the Buyer on delivery in accordance with clause 6, such that the Buyer shall be liable for any subsequent loss or damage to Goods however caused.
7.2 Should delivery be refused by the Buyer or be delayed, suspended or made by instalments at the request of the Buyer, risk in the Goods (or any of them not delivered in these circumstances) shall pass to the Buyer immediately upon such refusal or request by the Buyer and (without prejudice to the generality of the foregoing) the Seller shall place such Goods into storage and the cost of storage and insurance of such Goods and of any attempted delivery of such Goods shall be for the Buyer’s account.
7.3 Notwithstanding delivery of the Goods to the Buyer having taken place, property in the Goods shall pass from the Seller to the Buyer only when:
7.3.1 the Buyer pays the Contract Price for the Goods in accordance with the Contract; or
7.3.2 the Buyer sells the Goods to a third party; or
7.3.3 if the Buyer incorporates the Goods into a product manufactured by the Buyer, title in that manufactured product passes to a third party,
whichever is the sooner.
7.4 Until the property in the Goods passes to the Buyer, the Buyer shall hold the Goods and each of them on a fiduciary basis as a custodian/bailee for the Seller. The Buyer shall store the Goods separately from all other Goods in its possession and marked in such a way that they are clearly identified as being the property of the Seller. The Buyer shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods. The Buyer shall maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full value against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.
7.5 Where title in the Goods passes to the Buyer pursuant to clause 7.3.2 or 7.3.3, the proceeds of sale of the Goods (or the relevant proportion of the proceeds of sale of the manufactured product, as the case may be) shall be held by the Buyer on trust for the Seller.
7.6 Until such time as property in the Goods passes from the Seller to the Buyer, the Buyer shall, upon request, deliver up such Goods to the Seller. If the Buyer fails to deliver up the Goods on request, the Seller may enter upon any premises owned or occupied or controlled by the Buyer where the Goods are situated and repossess the Goods.
7.7 The Seller shall have the right to maintain an action against the Buyer for the Contract Price notwithstanding that title in the Goods may not have passed to the Buyer.
8. BUYER’S OBLIGATIONS
8.1 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 supply of the Goods and/or Services.
8.2 Without prejudice to any other rights to which the Seller may be entitled, in the event that the Buyer unlawfully terminates the Contract 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 in respect of the Goods and/or Services. Where the Contract is unlawfully terminated by the Buyer less than 2 days prior to the estimated date of delivery, the full Contract Price shall be payable by the Buyer. The Buyer agrees that this clause serves a legitimate interest of the Seller and that the remedy it provides is proportionate to its aims.
9. ALTERATIONS TO THE CONTRACT
9.1 The Parties may, at any time, mutually agree upon variations to the Contract. Any alterations in the scope of Goods and/or Services to be provided under the Contract shall be set out in a revised Order Confirmation, which shall reflect the amended Goods and/or Services, Contract Price and all other terms agreed between the Parties.
9.2 The Buyer may at any time within 7 days of the Order Confirmation request in writing alterations to the Contract. On receipt of the request for alterations, the Seller shall, within 7 days, or such other period as may be agreed between the Parties, advise the Buyer by notice in writing whether it is willing to amend the Contract in accordance with the Buyer’s request and, if it is, the basis upon which it is willing to do so having regard to the amendments which the Seller would require to the Contract Price and any other terms previously agreed between the Parties (an “alteration notice”).
9.3 The Buyer shall, within 7 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 Contract to be altered on the basis set out in the alteration notice. If the Buyer gives notice that it wishes the Contract to be so altered, the Seller shall set out the terms of the altered Contract in a revised Order Confirmation.
10. WARRANTY
10.1 Except where the Buyer is a Consumer, the Seller gives no warranty of any kind, express or implied, oral or written, in relation to the quality, fitness for purpose (either generally or for any specific purpose intended by the Buyer) or description of the Goods and/or the standard of skill and care to be exercised in the supply of the Services, other than that set out in clause 10.3.
10.2 Subject to the Contract Price having been paid by the Buyer in full, any warranty granted to the Seller by the manufacturer of the Goods shall be assigned to the Buyer to the extent that the Seller is able to do so.
10.3 The Seller shall rectify any defect in design, materials or workmanship arising in connection with the supply of the Services in respect of the Goods at any time during the period of time for which the Goods are covered by any warranty assigned to the Buyer under clause 10.2, subject to the following conditions:
10.3.1 the Contract Price shall have been paid in full;
10.3.2 the Buyer shall have notified the Seller in writing within 7 days of the defect becoming apparent; and
10.3.3 the Seller shall not be liable to rectify any defects that arise as a consequence of:
(a) fire, accident or the effect of perils of the sea;
(b) normal wear and tear;
(c) the negligent act or omission of any person other than the Seller or those for whom the Seller is responsible; and/or
(d) repairs or modifications made to the Goods after delivery, other than by the Seller.
10.4 Any rectification work to be undertaken by the Seller under clause 10.3 shall be carried out on its behalf by a service centre approved by the manufacturer of the Goods. Where reasonably practicable such work shall be carried out where the Goods are located, otherwise the Goods shall be taken to a mutually agreed location for the work to be carried out. If the work is carried out at a location further than 40 miles (by road) from a service centre then the Buyer shall pay the Seller’s reasonable additional costs incurred in carrying out the work in that location.
10.5 Where the Buyer is a Consumer, nothing in this clause 10 shall adversely affect the Buyer’s statutory rights.
11. INDEMNITY
11.1 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 Buyer’s breach of any of its obligations under the Contract.
12. LIMITATION OF LIABILITY
12.1 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:
12.1.1 any breach of the Contract;
12.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
12.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
12.2 Except where the Buyer is a Consumer, 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 Contract, where such representations were made or given in relation to:
12.2.1 the correspondence of the Goods with any description;
12.2.2 the quality of the Goods;
12.2.3 the fitness of the Goods for any purpose whatsoever; or
12.2.4 the standard of skill and care to be exercised in the supply of the Services.
12.3 Except where the Buyer is a Consumer, no liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of the Contract where such term relates in any way to:
12.3.1 the correspondence of the Goods with any description;
12.3.2 the quality of the Goods;
12.3.3 the fitness of the Goods for any purpose whatsoever; or
12.3.4 the standard of skill and care to be exercised in the supply of the Services.
12.4 Except where the Buyer is a Consumer and save as expressly provided in the Contract, all conditions, warranties and other terms implied by statute or common law are excluded to the maximum extent permitted by law.
12.5 The Seller’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.
12.6 Except where the Buyer is a Consumer, the Seller shall have no liability for non-delivery, loss of or damage to the Goods occurring prior to delivery or for any claim that the Goods are not in accordance with the Contract unless claims to that effect are notified in writing by the Buyer to the Seller: (a) within 7 days of delivery for loss, damage or non-compliance with the Contract or (b) for non-delivery within 10 days of the delivery date specified by the Seller. If the Buyer fails to give such notice the Goods shall be deemed to be in all respects in accordance with the Contract and, without prejudice to earlier acceptance by the Buyer, the Buyer shall be bound to accept and pay for the same accordingly.
12.7 Except where the Buyer is a Consumer, in the event of a valid claim for non-delivery, loss, damage or non-compliance with the Contract being made under clause 12.6 the Seller undertakes at its option either to repair or to replace the Goods at its expense but the Seller shall not be under any further or other liability to any person in connection with such non-delivery, loss, damage or non-compliance.
12.8 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 Contract. 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.
12.9 Nothing in the Contract shall exclude or limit the Seller’s liability for death or personal injury resulting from the Seller’s negligence or that of its employees, agents or sub-contractors.
13. TERMINATION
13.1 The Seller may, by written notice, terminate the Contract immediately if the Buyer is in breach of any of the terms of the Contract which, if capable of remedy, is not remedied within 7 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 Contract which is not capable of remedy.
13.2 The Contract shall be terminated by either Party if an order is made for the insolvency or bankruptcy of the other Party or an effective resolution is passed for the winding-up of the other Party or the other Party 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 other Party.
13.3 Termination of the Contract shall not affect any rights or obligations of the Parties arising prior to such termination.
13.4 If the Buyer is a consumer and the Contract is a distance or off-premises contract for the purposes of the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 then the Buyer may be entitled to cancel the Contract within fourteen (14) days from the day on which the Buyer acquires physical possession of the Goods. If this right to cancel the Contract is exercised by the Buyer, the Buyer shall bear the cost (if any) of transporting and redelivering the Goods to the Seller, as well as any other relevant charges as may be notified to the Buyer by the Seller. If, as a result of the Buyer’s handling of the Goods beyond what is necessary to establish the nature, characteristics and functioning of the Goods, the Goods’ value is diminished by any amount then the Seller may recover that amount (up to the Contract Price) from the Buyer.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 The specification and design of the Goods and/or Services 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 and/or Services 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 Buyer’s breach of such warranty.
15. FORCE MAJEURE
15.1 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, responses of governments to public health emergencies, 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.
16. ASSIGNMENT
16.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
16.2 The Seller may assign the Contract or any part of it to any person, firm or company.
17. WAIVER
17.1 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 Contract shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of the Contract.
18. SEVERABILITY
18.1 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.
19. RIGHTS OF THIRD PARTIES
19.1 The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract, which shall not be enforceable by any person not a party to it.
20. GOVERNING LAW
20.1 The Contract shall be governed by and construed in accordance with the law of England and Wales. The Courts of England and Wales shall have non-exclusive jurisdiction to hear all disputes arising in connection with the Contract.