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Terms and conditions

D J Miles & Co Ltd

Terms and Condition of Sale

 

1.               Definitions

1.1             In these conditions of sale:

  “the Buyer” means the person, firm or company with whom the Contract is made;

“the Contract” means the contract between the seller and the buyer for the sale of the Goods into which these conditions of sale are incorporated;

“the Goods” means the goods (including any instalment of the goods or any parts for them), which the Seller is to supply in accordance with these conditions of sale;

 “the Seller” means D J Miles & Co Ltd;

  “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) include any special terms and conditions agreed in writing between the Buyer and  the Seller;

  “writing” includes telex, facsimile transmission, e-mail, text and comparable means of communication;

1.2                Any reference in these conditions of sale to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3               The headings in these Conditions are for convenience only and shall not affect their interpretation.

 

2.               Basis of the Sale

2.1             These conditions of sale apply to all contracts for the sale of goods entered into by the Seller. They apply in preference to and supersede any previous terms and conditions of the Seller and any terms referred to, offered or relied on by either party whether in negotiation or at any stage in the dealings between the Seller and

2.2      No variation to these conditions of sale shall be effective unless agreed in writing between the authorised representatives of the Buyer and the Seller.

2.3             The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into  the Contract the Buyer acknowledges that it does not rely on any such representations, which are not so confirmed, and that it shall not have any right of action Buyer with reference to the Goods. Nor will the Seller be bound by any standard or printed terms furnished by the Buyer in any of its documents.against the Seller arising out of or in connection with any such representation except in the case of fraud.

2.4             Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application, installation or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

2.5             Any typographical, clerical or other error or omission in any sales literature, written quotation or confirmation or acknowledgement of the Seller, price list, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

2.6             The Seller reserves the right at any time to change the design, construction and/or specification of the Goods if such change is required to conform with any applicable statutory, regulatory or EU requirements. In addition, the Seller operates a policy of continuous product improvement and the Seller reserves the right to change the design, construction and/or specification of the Goods at any time if such change will in the opinion of the Seller at the time that such change is made improve or enhance the design, quality or performance of such Goods.

2.7             No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of the cancellation.

 

 

3.               Prices

3.1             The price of the Goods shall be the price listed in the Seller’s published price list in force at the time that the Buyer places an order with the Seller, which shall prevail over any previously estimated prices, but shall not prevail over specifically quoted or agreed prices in writing by the Seller for the purpose of the contract. Once the contract is deemed complete as within these given Terms and Conditions of Sale, any specifically quoted or agreed prices will become void.

3.2             The price is exclusive of any applicable value added tax or other taxes or duties, which the Buyer shall pay to the Seller.

3.3             The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as without limitation any foreign exchange fluctuations, currency regulation, alteration of duties, significant increase in the cost of labour materials or other costs of manufacturing) any change in delivery dates quantities or specification for the goods which is requested by the Buyer or any delay caused by any instructions of the buyer or failure of the Buyer to give the Seller adequate information or instruction.

 

4                Terms of payment

4.1             Where no credit account has been opened in advance by the Seller in respect of the Buyer, the Seller will not be obliged to deliver the Goods until the Buyer has paid the amount shown on the pro-forma invoice relating to the Goods.

4.2             Where a credit account has been opened for the Buyer, the Seller may in its absolute discretion set and on written notice to the Buyer alter the Buyer’s credit limit or terminate the Buyer’s account facilities and the Seller reserves the right not to deliver the Goods if the price thereof increases the amount owed by the Buyer to the Seller beyond the Buyer’s credit limit from time to time.

4.3             Where a credit account has been opened for the Buyer and the price of the Goods together with all other indebtedness of the Buyer to the Seller does not exceed the Buyer’s credit limit from time to time, the price of the Goods will be paid by the Buyer within 30 days from the date of the invoice. The time of payment shall be of the essence of the Contract.

4.4             If the Buyer fails to make any payment by the due date then, without prejudice to any other right or remedy available to the Seller, the Seller may without liability:

4.4.1          suspend any further deliveries to the Buyer or cancel the Contract or any other contract between the Seller and the Buyer;

4.4.2          charge the Buyer interest on a daily basis (both before and after any judgment) on the amount unpaid at the rate of 8% per annum above the Bank of England base rate until payment in full is made.

4.4.3          charge the Buyer all and any costs directly and indirectly associated with legal and administrative recovery of overdue debts.

4.4.4          appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may in its absolute discretion think fit (notwithstanding any purported appropriation by the Buyer).

4.5             The Seller shall be entitled to payment for all instalments of Goods delivered to the Buyer notwithstanding that the remainder of the Goods shall not have been delivered.

4.6             The Buyer shall not be entitled to withhold payment of any amount payable under the Contract because of any disputed claim of the Buyer in respect of faulty goods or any other alleged breach of contract whether in respect of the Contract or any other contract between the Buyer and the Seller nor shall the Buyer be entitled to set off against any amount payable under the Contract to the Seller any monies owed by the Seller to the Buyer on any account whatsoever, unless pre-agreed in writing by the Seller.

 

5                Orders and Specification

5.1             No order submitted by the buyer shall be deemed to be accepted by the Seller unless, and until confirmed by the Sellers authorised representative.

5.2             The buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order submitted by the Buyer and for giving the Seller any necessary information relating to the goods within sufficient time to enable the Seller to perform the contract in accordance with it’s terms.

5.3             No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages, charges and expenses incurred by the Seller as a result of cancellation.

 

6                Delivery

6.1             Where the Seller agrees to deliver palletised goods other than at the Seller’s premises the Buyer shall be responsible for off-loading such goods from the Seller’s delivery vehicle at the agreed place of delivery.

6.2             Any dates and/or times quoted for the delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing.

6.3             The Seller may make delivery by instalments. Where Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.4             If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery, then without prejudice to any other right or remedy available to the Seller, the Seller may:

6.4.1          store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

6.4.2          sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.

 

7.               Loss or Damage in Transit and Non-Delivery

7.1             No claim for damage to any Goods or for any shortages in the Goods delivered will be considered by the Seller unless it is advised of such claim in writing within 7 days of the date of delivery of the Goods or such part thereof as are actually delivered. In the absence of such advice, the Buyer will be deemed to have accepted the Goods.

7.2             No claim for non-delivery will be considered by the Seller unless it is advised in writing within 7 days of the date of the Seller’s invoice.

 

8                Risk and Property

8.1             Risk of damage, deterioration or loss of the Goods shall pass to the Buyer:

8.1.1          in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

8.1.2          in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery to the premises or place agreed between the Buyer and the Seller or if the Buyer wrongfully fails to take delivery of the Goods at such premises or place at the time when the Seller has tendered delivery of the Goods.

8.2             Notwithstanding delivery and/or the passing of risk in the Goods the property in the Goods shall not pass to the Buyer until the price of the Goods has been paid in full and payment has been made to the Seller of all sums due or owing from the Buyer to the Seller on any account whatsoever.

8.3             Until such time as property in the Goods passes to the Buyer in accordance with condition 8.2:

8.3.1          the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, shall not obliterate any identifying mark on the Goods or their packaging and shall keep the Goods separate from any other goods of the Buyer or third parties, properly stored, protected and insured and identified as the Seller’s property and the Seller shall be entitled to enter the Buyer’s premises during the Buyer’s normal business hours upon reasonable notice to verify the Buyer’s compliance with this condition.

8.4             The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8.5             The Seller may at any time after payment of any amount payable under the Contract has become due take possession of the Goods (which for the avoidance of doubt shall include the right to stop the Goods in transit) and remove them and the Buyer shall be deemed to have granted irrevocable authority to the Seller, it’s officers, employees and agents to enter upon the Buyer’s premises or other premises where the Goods may be and, by the Seller’s officers, employees or agents, take possession of the Goods and (if necessary) dismantle the Goods from anything to which they are attached.

8.6             The Seller shall have the right to maintain an action against the Buyer for the price of the Goods notwithstanding that property in the Goods has not passed.

8.7             Nothing in the Contract shall constitute the Buyer the agent of the Seller in respect of any re-sale of the Goods by the Buyer so as to confer upon a third party any rights against the Seller.

 

9.0             Force Majeure

9.1             The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure is due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control: act of God, explosion, lightning, flood, snow, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, by-laws, prohibitions, or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Seller or any third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.

 

10.0           Insolvency of Buyer

10.1           The Buyer makes any voluntary arrangement with it’s creditors or becomes subject to an administration order under the provisions of section 123 of the Insolvency Act 1986, becomes bankrupt or goes into liquidation otherwise than for the purposes of amalgamation or reconstruction, the Buyer ceases or threatens to cease to carry on business or the Seller reasonably apprehends that any of the events already mentioned are about to occur in relation to the Buyer and notifies the Buyer accordingly, then without prejudice to any right or remedy available to the Seller the Seller shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the Buyer and if the Goods have been delivered but not paid for they will be deemed becoming immediately due for payment disregard any previous agreement or arrangement previously engaged.

 

11.0           General

11.1           The Seller shall be entitled to sub-contract the fulfilment of the Contract or any part thereof in which event the Seller contracts on behalf of itself and its sub-contractors.

11.2           The termination of the Contract howsoever arising shall be without prejudice to any rights and duties of either party, which may have accrued prior to termination.

 

12.0           Legal

12.1           The Contract shall be governed and interpreted exclusively according to the Law of England and shall be subject to the Jurisdiction of the English Courts only.

 

 

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