Terms and Conditions of Sale
Kinyo UK Ltd.
Scala Court, Leathley Road
Leeds LS10 1JD
United Kingdom
1. Interpretation
1.1 The Company: Kinyo UK Limited, Kinyo House, Scala Court, Leathley Road, Leeds, LS10 1JD
1.2 The Buyer: The person (s) firm or company who purchase the Goods from the Company.
1.3 Goods: Any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.4 Contract: Any Contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions. Every supply or instalment of Goods will form a separate Contract.
2. Application of Terms
2.1 Subject to any variation under Condition 2.2 the Contract will 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 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no affect unless expressly agreed in writing and signed by the Managing Director, the Administration Manager or the Sales Manager of the
Company.
2.3 Any order placed by the Buyer shall be deemed to be accepted by the Company when the Company accepts an order from the Buyer. The Company will supply a written acknowledgement of the order to the Buyer if requested.
2.4 The Company reserves the right to request written confirmation of any Buyer’s order and the Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.5 Any quotation is given on the basis that no Contract will come in to existence until the Company accepts and acknowledges the order to the Buyer as specified in condition 2.3. Any quotation is valid for a period of thirty days from its date, unless stated otherwise by the Company and provided that the Company has not previously withdrawn it.
2.6 The Buyer is not entitled to cancel the Contract for any reason without the prior verbal or written consent of the Company such consent not to be unreasonably withheld provided that the Buyer shall indemnify the Company against all losses, costs and expenses incurred by the Company as a result of such cancellation.
3. Description
3.1 The description of the Goods shall be as set out in the Company’s quotation or in any acknowledgement given by the Company under Condition
2.3. Any requested change to the description of the Goods or the Buyer’s order will be at the sole discretion of the Company.
3.2 Any descriptions or illustrations or specifications given by the Company in any catalogues or promotional material are for the sole purpose of giving an approximate idea of the Goods and will not form part of this Contact.
4. Delivery
4.1 Unless otherwise agreed by the Company, delivery of the Goods shall take place at the Company’s place of business.
4.2 Subject to Condition 4.3 the Buyer will take delivery of the Goods within seven days of the Company giving it notice that the Goods are ready for delivery.
4.3 The Company may at its sole discretion agree to arrange for carriage of the Goods to the Buyer’s place of business but delivery shall still be deemed to have taken place when the Goods leave the Company’s place of business.
4.4 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 by the Company, delivery will be within a reasonable time.
4.5. Subject to the other provisions of these Conditions the Company will not be liable for any direct, indirect or consequential loss (including without limitation, loss of profits, loss of business, depletion of Goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods nor will any delay entitle the Buyer to terminate or rescind the Contract.
4.6 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within seven days of the date when the Goods would in the ordinary cause of events have been received. 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.
5. Risk/Title
5.1 The Goods are at the risk of the Buyer from the time of delivery. 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 the Goods and all other sums which are or which become due to the Company from the Buyer on any account.
5.2 Until ownership of the Goods has passed to the Buyer, the Buyer must maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf and if the Buyer resells the Goods before ownership has passed any such sale shall be at full market value and will be a sale of the Company’s property with the Buyer acting as principal. The Buyer’s right to possession of the Goods shall terminate immediately if the Buyer is subject to any bankruptcy order, arrangement or composition with creditors, any statutory provision relating to insolvent debtors, liquidation, the appointment of an administrator or administrative receiver or administration order or any proceedings relating to the insolvency or possible insolvency of the Buyer.
5.3 The Company shall be entitled to recover payment for the Goods not withstanding that ownership of any of the Goods has not passed from the Company.
6. Price
6.1 Unless otherwise agreed by the Company the price for the Goods shall be the price existing at the date of delivery or deemed delivery. The Company has the right to amend the price prior to delivery and shall endeavour to notify the Buyer in advance of any such amendment 6.2 The price for the Goods shall be exclusive of any value added tax.
6.3 The price for the Goods shall only include the cost of carriage of the Goods to the Buyer’s business premises if such carriage is agreed by the Company in accordance with condition 4.3 and if the order is above a minimum value as set by the Company from time to time. The Company reserves the right to select the method of carriage and the carrier and to charge the Buyer for the cost of any carriage not covered by the Company.
6.4 The price of the Goods shall not include insurance or any services agreed to and provided by the Company such as installation or technical advice. If the Company provides any such services the Company reserves the right to charge the Buyer for those services and unless otherwise agreed by the Company the supply of such services will form a separate Contract under these conditions.
7. Payment
7.1 Unless otherwise agreed by the Company payment in cleared funds of the price for the Goods is due within thirty days from the date of the invoice sent by the Company to the Buyer. Time for payment shall be of the essence.
7.2 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision and the Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counter-claim, discount, abatement or otherwise unless agreed by the Company.
7.3 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Sumitomo Mitsui Banking Corporation (SMBC), London, accruing on a daily basis until payment is made, whether before or after any judgement.
8. Quality
8.1 The Company warrants that (subject to the other provisions of these conditions) upon delivery and for a period of three months from the date of delivery, the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994 and be reasonably fit for any particular purpose for which the Goods are being bought being such purpose as is understood by the Company.
8.2 The Company shall not be liable for a breach of the warranty in condition 8.1 unless the Buyer gives written notice of the defect to the Company within fourteen days of the time when the Buyer discovers or ought to have discovered the defect and the Company is given a reasonable opportunity after receiving the notice of examining such Goods.
8.3 The Company shall not be liable for a breach of the warranty in condition 8.1 if the defect arises during carriage of the Goods to the Buyer’s business premises or if the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to storage, installation, commissioning, use or maintenance of the Goods or good trade practice or the Buyer alters or repairs such Goods without the written consent of the Company.
8.4 Subject to conditions 8.2 and 8.3, if any of the Goods do not conform with the warranty in condition 8.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall return the Goods or the part of such Goods which is defective to the Company.
8.5 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the three month period.
9. Limitation of Liability
9.1 Subject to condition 8, 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.
9.2 Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
9.3 Subject to conditions 9.1 and 9.2 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 this Contract shall be limited to the Contract price and the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims of consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
10. Assignment
10.1 The Company may assign the Contract or any part of it to any person, firm or Company but the Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
11. Force Majeure
11.1 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 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, government actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-out, strikes or other labour disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies or of adequate or suitable materials.
12. General
12.1 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.
12.2. Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
12.3 The parties to this Contract do not intend that any of terms of this Contract will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.4 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.
13. Communications
13.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission to the other party’s registered office or such changed address as shall be notified to the other party.
13.2 Communications shall be deemed to have been received if sent by pre-paid first class post, two working days after posting (exclusive of the day of posting) or if delivered by hand, on the day of delivery or, if sent by facsimile transmission on a working day prior to 4.00 p.m., at the time of transmission and otherwise on the next working day.
