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.
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