The Buyer’s attention is in particular drawn to the provisions of condition 6.9 , 9 and 10
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from the Company.
Company: Middleby UK Limited and any other associated or connected company or person either trading under the names Middleby or Frialator or otherwise.
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 A reference to a particular 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.
2. 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 Buyer 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 Buyer’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 Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer 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 Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
4. DELIVERY & INSPECTION
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business.
4.2 The Buyer shall take delivery of the Goods within 5 days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these conditions the Company 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 Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5 All items delivered must be inspected prior to the transport/carrier departing, all goods have to be signed by an authorised signatory of the Buyer; the Company will not accept responsibility of unauthorised signatures.
4.6 Damaged goods should have an explanation of the damage and must be signed and returned to the Company.
4.7 Uninspected Goods will be taken as a clean and accepted delivery.
4.8 The terms of this agreement shall apply to any repaired or replacement Goods supplied by the Company.
4.9 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.9.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.9.2 the Goods shall be deemed to have been delivered; and
4.9.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.10 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.11 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.12 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.13 Shipments of equipment to one delivery address on a single purchase are free of charge in mainland England, Scotland, Wales, Northern Ireland and Southern Ireland. Deliveries to the Scottish Isles, Channel Islands, and Isle of Man, are carriage which is chargeable.
4.13.1 For all shipments of accessories the delivery cost is £15.00.
4.13.2 Standard delivery is classed as un-timed delivery on a next day shipment or later agreed delivery date to a ground floor location with a clear access with no parking, vehicle or time restrictions. Deliveries will be made between 8.30am and 5pm. .
4.13.3 The Buyer must inform the Company of any delivery restrictions at time of order and additional costs will be incurred.
4.13.4 Delivery is normally by transport which operates on postcodes for most parts of the UK Mainland. When the Buyer requests special delivery arrangements it is our policy to make an additional charge to the additional costs incurred. Additional costs for special deliveries are as follows:-
Additional requirements costs
Specified as AM or PM delivery
or a specified time range i.e. 11am to 3pm £30.00
Specific timed deliveries £60.00
Dedicated Carrier, Out of Hours or weekends deliveries POA
PRICE ARE SUBJECT TO ALTERATION AND THE COMPANY RESERVES THE RIGHT TO INVOICE ANY ORDER AT PRICES RULING AT DATE OF DESPATCH
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 3 working days of the date when the Goods would in the ordinary course of events have been received.
5.3 The Company shall not be liable for any non delivery of the Goods which is made by a third party carrier. The Buyer acknowledges that the Company is not the carrier of the Goods and no warranties (express or implied) shall (subject to the provisions of clause 10) be given by the Company to the Buyer as to delivery of the Goods. The Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company by the carrier or shall on reasonable request from the Buyer assign the benefit of any claims or rights which it may have against other parties whom the Company has instructed to deliver the Goods on behalf of the Buyer.
5.4 Any liability of the Company 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 in the amount that the carrier refunds the Company.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
6.4.2 any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the
meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.5.3 the Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
6.10 If the Buyer purports to cancel the Contract after acceptance of the order it (in addition to any other claim the Company may have for breach of Contract) shall pay the following cancellation and restocking charges to the Company within 7 days of the date of termination calculated as follows:
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
8.1 Subject to condition 8.4 and unless otherwise agreed in writing by the Company, payment of the price for the Goods is due in pounds within 30 days of the date of the Company’s invoice.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Buyer 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 Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the monthly rate of 1.5% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment.
8.7 The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.1 The Buyer acknowledges that the Company is not the manufacturer of the Goods and no warranties (express or implied) shall (subject to the provisions of clause 10) be given by the Company to the Buyer as to the state condition or fitness of the Goods. The Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company by the manufacturer or shall on reasonable request from the Buyer assign the benefit of any claims or rights which it may have against other parties from whom it has obtained the Goods which it resells to the Buyer.
9.2 Neither the Company nor the manufacturer of the Goods shall be liable for any breach of warranties given if:
9.2.1 the defect arises because the Buyer failed to follow the Company’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
9.2.2 the Buyer or any other third party who is not authorised by the Company, alters or repairs such Goods without the written consent of the Company.
9.3 The Company shall not be liable for any claims under any warranty for any of the following :-
9.3.1 All external associated electrical equipment such as power supply points, starters, fuses, PCB’s and any other similar electrical components not part of the scheduled equipment.
9.3.2 All external associated plumbing, gas/steam equipment and flexible hoses not supplied by the Company;
9.3.3 All external liquid soap injection equipment;
9.3.4 Part made wholly or partly of glass or plastic rubberised materials;
9.3.5 Consumable items and circumstances as follows (and as specified in the Company’s price list)
188.8.131.52. Dynamic preparation – blades, grinding wheels, perspex guards, peeling chambers, door gaskets, plates and knife blocks,
184.108.40.206. Ovens – door seals , door glass, glass shelves, water quality related issues, bulbs, fuses, food probes damages by misuse.
220.127.116.11. Coldrooms – Defects between units and remote compressors
18.104.22.168. All Products – blockages internal or external
9.3.6. Faults arising from the incorrect installation of the equipment including inappropriate gas, electricity and water supplies to the equipment or inappropriate temperature of the location of the equipment
9.3.7. Rectification of defects caused by fire, water, frost, variation of the electrical supply or gas pressure
9.3.8. Damage caused by malicious or wilful action, negligence, misuse or the fitting of accessories not supplied by the Company, including attempted rectification of faults by persons other than the Company’s appointed representatives.
9.3.9. Cleaning or de-scaling the equipment
9.3.10. Failure to fit or maintain recommended water treatment systems
9.4 Any warranty is conditional on the equipment being installed, operated and maintained in accordance with the installation and operating instructions provided with the machine and consumable parts are excluded. Proof of installation and or purchase may be requested to confirm warranty start date. All waiting time will be chargeable, any parking or toll fees incurred during a service or breakdown visit will be charged to the customer as indicated on engineers job sheet
9.5 Proof of installation and or purchase may be requested to confirm warranty start date, without which the warranty may be invalidated.
9.6 If the Company receives a call out pursuant to a breach of warranty that a representative of the Company reasonably determines the faulty materials or workmanship so not included in the warranty for any reason, such call out will be chargeable at the Company’s standard rates in force from time to time.
9.7 If the equipment warranty repairs are to take place outside of normal business hours of the Company then this will be chargeable to the Buyer. For any work under a parts only warranty labour is chargeable separately.
10. LIMITATION OF LIABILITY
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of these conditions;
10.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
10.2 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.
10.3 Nothing in these conditions excludes or limits the liability of the Company:
10.3.1 for death or personal injury caused by the Company’s negligence; or
10.3.2 under section 2(3), Consumer Protection Act 1987; or
10.3.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3:
10.4.1 the Company’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
10.4.2 the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, 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.
11.1 The Company may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company 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 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 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.
13.3 Failure or delay by the Company 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.
13.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.5 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.
13.6 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.
14.1 All communications 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:
14.1.1. (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
14.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
14.2 Communications shall be deemed to have been received:
14.2.1 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
14.2.2 if delivered by hand, on the day of delivery; or
14.2.3 if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
14.3 Communications addressed to the Company shall be marked for the attention of Melonie Jones.