Terms and Conditions

The Customer’s attention is drawn in particular to the provisions of clause 8.

1. Interpretation

1.1          Definitions. In these Conditions, the following definitions apply:

• Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
• Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 10.6.
• Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
• Customer: the person or firm who purchases the Goods from the Supplier.
• Force Majeure Event: has the meaning given in clause 9.
• Goods:  the articles (or any part of them) which the Customer agrees to buy from the Seller.
• Supplier: Mellor Plant UK LTD (registered in England and Wales with company number 07990271).

1.2          Construction. In these Conditions, the following rules apply:

1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2. A reference to a party includes its personal representatives, successors or permitted assigns.
3. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
4. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
5. A reference to writing or written includes faxes and e-mails.

2. Basis of contract

2.1          These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2          All orders for Goods shall be deemed to be an offer by the Customer to purchase Goods pursuant to these Conditions.

2.3          The order shall only be deemed to be accepted when the Supplier accepts payment in full in cleared funds for the Goods or when the Goods are delivered (whichever is the earliest), at which point the Contract shall come into existence.

2.4          Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Customer’s acceptance of these Conditions.

2.5          The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

3. Delivery

3.1          The Customer shall accept delivery of the Goods at the address that it provides to the Supplier for that purpose (Delivery Location) or the parties may agree that the Customer shall collect the Goods from the Supplier’s premises. Delivery shall take place at any time after the Supplier notifies the Customer that the Goods are ready and the Customer shall make all arrangements to take or accept delivery of the Goods.

3.2          Where the Goods are being delivered by the Supplier to the Delivery Location, delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location. Where the Goods are being collected from the Supplier’s premises, delivery shall be completed upon the loading of the Goods or upon the Customer taking custody of the Goods (whichever occurs first).

3.3          Where the Goods are being delivered to the Delivery Location, the Customer shall provide labour and facilities to enable the Goods to be unloaded.

3.4          Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.5          If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.6          If 14 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken (as the case may be) delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage, transportation, insurance and selling costs, account to the Customer for any sums paid by the Customer in excess of such costs or charge the Customer for any shortfall.

3.7          The Supplier may deliver the Goods by instalments (if appropriate), which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

3.8          The Supplier may employ agents, sub-contractors or any other third party to deliver the Goods.

4. Goods and quality

4.1          Due to the nature of the Goods, all Goods are sold on the basis that the Customer has satisfied itself as to the condition and suitability of the Goods for its use or resale.

4.2          The Seller warrants that the Goods supplied will, at the time of delivery, correspond to the description given by the Seller. All other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.

5. Title and risk

5.1          The risk in the Goods shall pass to the Customer on completion of delivery.

5.2          Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods.

5.3          Until title to the Goods has passed to the Customer, the Customer shall:

1. 1. hold the Goods on a fiduciary basis as the Supplier’s bailee;
   2. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
   3. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
   4. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
   5. notify the Supplier immediately if it becomes subject to any of the events listed in clause 7.2; and
   6. give the Supplier such information relating to the Goods as the Supplier may require from time to time,
      but the Customer may resell or use the Goods in the ordinary course of its business.

5.4          If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

5.5          Nothing in this clause 5 shall prevent the Supplier commencing proceedings for the payment of the price of the Goods notwithstanding that title to the Goods has not passed to the Customer.

6. Price and payment

6.1          The price of the Goods shall be the Seller’s quoted price.

6.2          The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

6.3          The Customer shall be responsible for paying any applicable taxes and export/import duties arising from the exportation of the Goods from the United Kingdom and/or their importation into the country of destination.

6.4          The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

6.5          Unless otherwise agreed by the Seller in writing, payment for the Goods must be made in advance of delivery in such a manner as the Supplier shall direct.

6.6          If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

6.7          The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

7. Customer’s insolvency or incapacity

7.1          If the Customer becomes subject to any of the events listed in clause 7.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

7.2          For the purposes of clause 7.1, the relevant events are:

1. the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
2. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
3. (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
4. (being an individual) the Customer is the subject of a bankruptcy petition or order;
5. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
6. (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
7. (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
8. a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
9. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2(a)to clause 7.2(h) (inclusive);
10. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;
11. the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
12. (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

7.3          Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

8. Limitation of liability – your attention is particularly drawn to this clause

8.1          Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
2. fraud or fraudulent misrepresentation;
3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
4. defective products under the Consumer Protection Act 1987; or
5. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

8.2          Subject to clause 8.1:

1. The Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, any loss of crop, any loss of livestock or any indirect or consequential loss arising under or in connection with the Contract; and
2. The Supplier’s total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed the price of the Goods.

8.3          Without prejudice to clause 8.2, the Customer shall provide the Supplier with a reasonable opportunity of (at the Supplier’s option and sole discretion) providing the Customer with suitable alternative goods, on loan on a temporary basis, for any period in which the Supplier considers that the Customer has reasonable grounds to believe that Goods are not in accordance with the Contract.

9. Force majeure

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s) failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions.

10. General

10.1       Assignment and subcontracting.

1. The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
2. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.

10.2       Notices

1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

10.3       Severance

1. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

10.4       Waiver

A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

10.5       Third party rights

A person who is not a party to the Contract shall not have any rights under or in connection with it.

10.6       Variation

Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.

10.7       Compliance with local laws

The Customer shall be responsible for obtaining any licences, registrations, permits or approvals necessary or advisable in relation to the importation of the Goods into the country of destination and shall likewise be responsible for complying with any legislation or regulations governing such importation.

11. Governing law and jurisdiction

11.1       The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.

11.2       The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

11.3       The Customer shall provide the Supplier with an address in England where it will accept service of legal proceedings.