1 – INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
Buyer: the person(s), firm or company who purchases the Goods from Eurocan;
Contract: any contract between Eurocan 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 Eurocan (including any part or parts of them);
Eurocan: Eurocan Sales & Service Ltd, Registered Company Number 02892394;
New Goods: any new machine or other new goods supplied by Eurocan;
Order: an order set out in an Order Form which has been accepted by Eurocan in accordance with this Agreement. Each Order shall constitute a separate Contract;
Order Form: an order placed by the Buyer in the agreed form;
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these Conditions headings will not affect the construction of these Conditions.
2 – APPLICATION OF TERMS
2.1 Subject to any variation under clause 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document. Any further Orders placed by the Buyer will be on these Conditions unless otherwise specified by Eurocan.
2.2 Save for payment terms contained within the invoice delivered by Eurocan, no terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will 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 Eurocan’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 an authorised signatory of Eurocan. Nothing in these Conditions will exclude or limit Eurocan’s liability for fraudulent misrepresentation.
2.4 Each Order Form for Goods issued by the Buyer to Eurocan shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.5 No Order Form placed by the Buyer shall be deemed to be accepted by Eurocan until a written acknowledgement of order is issued by Eurocan or (if earlier) Eurocan delivers the Goods to the Buyer, at which time a binding order is made (the “Order”).
2.6 The Buyer must ensure that the terms of its Order Form and any applicable specifications are complete and accurate.
2.7 Any quotation is given on the basis that no contract will come into existence until Eurocan despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that Eurocan has not previously withdrawn it.
3 – DESCRIPTION
3.1 The description of the Goods shall be as set out in Eurocan’s quotation.
3.2 All photographs, drawings, descriptive matter, specifications and advertising issued by Eurocan and any descriptions or illustrations contained in Eurocan catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract
4 – DELIVERY
4.1 Delivery will take place when the Buyer signs for the Goods at its place of business.
4.2 Any dates specified by Eurocan for delivery of the Goods are intended to be an estimate. If no dates are so specified, delivery will be within a reasonable time. While Eurocan will use reasonable endeavours to meet any requested delivery dates, time is not the essence of any Order.
4.3 Delivery is subject to the prompt receipt by Eurocan of the Buyer’s delivery address and any payment required by Eurocan prior to the Goods being despatched.
4.4 Subject to the other provisions of these Conditions Eurocan will not be liable for any direct, indirect or consequential loss (all three of which terms include, 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 (even if caused by Eurocan’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or Eurocan is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:-
4.5.1 risk in the Goods will pass to the Buyer (including for loss or damage caused by Eurocan’s negligence);
4.5.2 the Goods will be deemed to have been delivered; and
4.5.3 Eurocan may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 The Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for loading the Goods.
4.7 The Buyer shall be responsible for obtaining at its expense all export/import permits and any other consents or licences necessary for it to take delivery of the Goods.
5 – NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by Eurocan upon despatch from Eurocan’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 Eurocan shall not be liable for any non-delivery of Goods (even if caused by Eurocan’s negligence) unless written notice is given to Eurocan within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of Eurocan 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.
6 – RISK/TITLE
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 Eurocan 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 Eurocan from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:-
6.3.1 hold the Goods on a fiduciary basis as Eurocan’s bailee;
6.3.2 store the Goods (at no cost to Eurocan) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Eurocan’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured on Eurocan’s behalf for their full price against all risks to the reasonable satisfaction of the Eurocan. On request the Buyer shall produce the policy of insurance to Eurocan; and
6.3.5 hold any proceeds of the insurance referred to in condition 6.3.4 on trust for Eurocan and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 The Buyer may not resell the Goods until ownership has passed to it.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if, prior to title in the Goods passing to the Buyer:-
6.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or 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 any preparatory steps are taken for such appointment, 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/perform any of his/its obligations under the Contract or any other contract between Eurocan 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; or
6.5.4 any similar or analogous event to any of the events set out at clauses 6.5.1–6.5.3 occurs in relation to the Buyer in any jurisdiction.
6.6 Eurocan shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Eurocan.
6.7 The Buyer grants Eurocan, 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.
7 – PRICE
7.1 The price for the Goods shall be the price set out in the quotation sent to the Buyer unless otherwise specifically agreed in the Order.
7.2 The price for the Goods shall be exclusive of any value added tax and unless otherwise specifically agreed in the Order, all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
8 – PAYMENT
8.1 The Buyer must pay for the Goods in accordance with the payment terms to be found in the invoice delivered to the Buyer. All payments must be made in a method agreed with Eurocan. All invoices will be paid in the currency in which they are invoiced.
8.2 In the event of any late payment, Eurocan may suspend deliveries, and/or terminate the Agreement, and/or charge the Buyer interest at the rate of 4% over the base rate of the Bank of England on all overdue invoices, before and after judgment, and the costs incurred in recovering any amounts due to it.
8.3 No payment shall be deemed to have been received until Eurocan has received cleared funds.
8.4 All payments payable to Eurocan under the Contract shall become due immediately upon termination of the Contract despite any other provision.
8.5 The Buyer shall make all payments due under the Contract 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 Eurocan to the Buyer.
8.6 If any withholding is required by law or government authority in respect of any payment due to Eurocan under the Contract, the Buyer shall increase the payment it makes by such amount as is necessary to ensure that, following the deduction of such withholding Eurocan receives the full amount that it is entitled to receive under the Contract.
9 – Quality
9.1 All express and implied terms, conditions and warranties relating to the quality, fitness for purpose or otherwise in relation to the Goods or any of the Goods are excluded to the fullest extent permitted by law unless expressed in the Contract. Without limitation to this general principle:-
9.1.1 Eurocan warrants that the Goods will be free from defects for a period of twelve months from the date of delivery. The warranty covers only the Goods or defective parts thereof and does not cover any labour or travel costs of Eurocan.
9.2 Eurocan shall not be liable for a breach of any of the warranties under these Conditions unless:-
9.2.1 the Buyer gives written notice of the defect to Eurocan, and (if the defect is as a result of damage in transit) to the carrier, within 10 days of the time when the Buyer discovers or ought to have discovered the defect; and
9.2.2 Eurocan or its nominee is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by Eurocan) returns such Goods to Eurocan’s place of business at Eurocan’s cost for the examination to take place there. If there is found to be no defect, the Buyer shall reimburse all of Eurocan’s costs in arranging and performing the inspection.
9.3 Eurocan shall not be liable for a breach of any of the warranties under this Agreement if:-
9.3.1 the Buyer makes any further use of such Goods after giving such notice; or
9.3.2 the defect arises because the Buyer has failed to follow Eurocan’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 has used the Goods outside their normal use; or
9.3.3 the defect is in relation to or due to a part which has become defective due to normal wear and tear;
9.3.4 the Buyer alters or repairs such Goods without the written consent of Eurocan.
9.4 Subject to clauses 9.3 if any of the Goods do not conform with the relevant warranties in clause 9.1 Eurocan 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 Eurocan so requests, the Buyer shall, at Eurocan’s expense, return the Goods or the part of such Goods which is defective to Eurocan. This represents the Buyer’s exclusive remedy for breach of warranty.
9.5 If Eurocan complies with clause 9.4 it shall have no further liability for a breach of any of the warranties in clause 9.1 in respect of such Goods.
9.6 Any Goods or parts thereof replaced will belong to Eurocan and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the warranty period.
10 – LIMITATION OF LIABILITY
10.1 Subject to clause 9, the following provisions set out the entire liability of Eurocan (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 contract ; and
10.1.2 any representation, statement or tortious 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 17 of the Consumer Rights Act) 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 for death or personal injury caused by Eurocan’s negligence or fraudulent misrepresentation.
10.4 Subject to clauses 10.2 and 10.3:-
10.4.1 Eurocan’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 price of the Goods in relation to which the liability arose; and
10.4.2 Eurocan shall be under no liability whatsoever to the Buyer for any indirect or consequential loss, damage and/or expense, loss of profit, pure economic loss, loss of business, loss of equipment, facilities or service, depletion of goodwill, claims for damages brought by third parties or other such loss howsoever caused, suffered by the Buyer arising in relation to this Contract;
10.4.3 The Buyer shall indemnify Eurocan, its employees, agents and subcontractors from and against all claims for damages or injury, caused by, in connection with or arising out of the use of the Products and all costs and charges in connection herewith;
10.4.4 No third party will have any rights against Eurocan in relation to this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise.
11 – ASSIGNMENT
11.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Eurocan.
11.2 Eurocan may assign the Contract or any part of it to any person, firm or company.
12 – FORCE MAJEURE
Eurocan 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 Eurocan 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 90 days, the Buyer shall be entitled to give notice in writing to Eurocan to terminate the Contract.
13 – GENERAL
13.1 Each right or remedy of Eurocan under the Contract is without prejudice to any other right or remedy of Eurocan 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 Eurocan 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.
13.4 Any waiver by Eurocan of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.5 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 – COMMUNICATIONS
14.1 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 airmail if overseas) or sent by e-mail:-
14.1.1 (in case of communications to Eurocan) to its registered office or such changed address as shall be notified to the Buyer by Eurocan; 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 this Contract or such other address as shall be notified to Eurocan by the Buyer.
14.2 Communications shall be deemed to have been received:
14.2.1 if sent by pre-paid first class post, 2 days, or 5 days in the case of airmail, excluding Saturdays, Sundays and bank and public holidays, after posting (exclusive of the day of posting);
14.2.2 if delivered by hand, on the day of delivery;
14.2.3 if sent by e-mail on a working day prior to 4.00 pm UK time, on the date of transmission, otherwise on the next working day.
of transmission, otherwise on the next working day. king day.