Terms and Conditions of Sale
The Dealer’s attention is drawn in particular to the provisions of clause 0.
INTERPRETATION
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 12.7
Contract: the contract between the Supplier and the Dealer for the sale and purchase of the Goods in accordance with these Conditions.
Dealer: the person or firm who purchases the Goods from the Supplier who cannot be a consumer or an end user.
Force Majeure Event: has the meaning given in clause 0.
Goods: the goods (or any part of them) set out in the Order.
Order: the Dealer’s order for the Goods, as set out in the Dealer’s purchase order form, the Dealer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
Parts: specified parts of the Goods, being any compressor, temperature controller, wheels, legs, condenser unit, shelf clips, pans supporters, power switch, fan, fan switch, heater protector or any other part confirmed in writing by the Supplier, but not any elements, heat lamps, light bulbs, fittings or glass, hoses, external fittings or consumable items.
Specification: any specification for the Goods or Parts, including any related plans and drawings, that is agreed in writing by the Dealer and the Supplier, or, if no such specification has been agreed, such specification as is normally regarded as being commercially acceptable.
Supplier: Atosa Catering Equipment UK Limited (registered in England and Wales with company number 08196425).
Construction. In these Conditions, the following rules apply:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors or permitted assigns.
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.
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.
A reference to writing or written includes faxes and e-mails.
BASIS OF CONTRACT
These Conditions apply to the Contract to the exclusion of any other terms that the Dealer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
The Order constitutes an offer by the Dealer to purchase the Goods in accordance with these Conditions. The Dealer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
The Contract constitutes the entire agreement between the parties. The Dealer 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.
Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force. 4
A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
The Contract does not represent an exclusive arrangement and cannot be construed as such under any circumstances and the Supplier reserves the right to supply the Goods to any dealer at its sole discretion.
GOODS
The Goods are described in the Supplier’s catalogue as modified by any applicable Specification.
To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Dealer, the Dealer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier including those for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification.
The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.4 It is the responsibility of you the Dealer to ensure you have advised your customer that their delivery will be “Kurb side” unless the customer has paid for an unpack and position delivery. Or we the supplier offer this as a part of the sale
3.5 We will advise the Dealer of the delivery date. It is the Dealer’s responsibility to then pass this information to the Dealer’s customer and at the same time advise the Dealer’s customer that our transport will give them a telephone call about one hour before delivery subject to the Dealer having supplied us with the correct telephone number. There may be time that these calls are made out of the normal 9 to 5 hours. Its is the responsibility of the dealer to make the end user aware that they may receive a call before 9am and after 5pm. The Dealer’s customer will be required to be available to accept this call. If the customer is unavailable to take this call the transport company will still go ahead to attempt delivery.
3.6 Should your customer not be at the delivery point and no one is available to accept the delivery our transport company will advise the Supplier of this and the Supplier will use reasonable endeavours to inform you of this and to see if there is another option of contacting your customer and making the delivery.
Transport have an allocated time for each delivery and will only wait for 15 minutes.
3.7 If the delivery cannot be made the Transport Company will bring the unit back to the Supplier and a redelivery option will be offered to the Dealer. There will be a redelivery cost attached to this. This cost will vary depending on the unit and location. POA
3.8 If the delivery does not take place due to a cancellation the Dealer will be charged a delivery charge and restocking fee. POA
3.9 It is the Dealer’s and/or the Dealer’s customer’s responsibility to ensure that they are satisfied with the goods at the time of delivery. It is the Dealer’s and/or Dealer’s customer’s reasonability to ensure they check the equipment. Should they sign the delivery note and find later that the unit is damaged the Supplier will be unable to offer a discount, exchange, or part replacement.
3.10 If the Dealer’s customer signs the delivery note as the unit being damaged and allows the delivery man to leave without contacting the Dealer who then must telephone the Supplier we will not be able to offer any discount, exchange or send any replacement parts. The Supplier’s rights would, in any event, be reserved depending upon what is agreed in accordance with Paragraph 13.11
3.11 If your customer unpacks the unit and finds it to be damaged then the customer should call the Dealer who must then telephone the Supplier to decide upon what course of action needs to be taken. 5
DELIVERY
The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Dealer that the Goods are ready.
Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
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 Dealer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Dealer 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 Dealer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Dealer fails to accept delivery of the Goods within 5 Business Days of the Supplier notifying the Dealer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day after the day on which the Supplier notified the Dealer that the Goods were ready; and
the Supplier shall store the Goods until delivery takes place, and charge the Dealer for all related costs and expenses (including insurance).
If 10 Business Days after the day on which the Supplier notified the Dealer that the Goods were ready for delivery the Dealer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Dealer for any shortfall below the price of the Goods.
The Supplier may deliver the Goods by installments, which shall be invoiced and paid for separately. Each installment shall constitute a separate Contract. Any delay in delivery or defect in an installment shall not entitle the Dealer to cancel any other installment.
QUALITY
The Supplier warrants that on delivery the Goods shall:
conform with their description and any applicable Specification; and
be free from material defects in design, material and workmanship.
Subject to clause 0, if:
the Dealer gives notice in writing to the Supplier within 7 days of delivery that some or all of the Goods do not comply with the warranty set out in clause 0;
the Supplier is given a reasonable opportunity of examining such Goods; and
the Dealer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Dealer’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 0 in any of the following events:
the Dealer makes any further use of such Goods after giving notice in accordance with clause 0;
the defect arises because the Dealer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Dealer; 6
the Dealer alters or repairs such Goods without the written consent of the Supplier;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
the Goods differ from their description or any applicable Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Except as provided in this clause 0, the Supplier shall have no liability to the Dealer in respect of the Goods’ failure to comply with the warranty set out in clause 0.
The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
These Conditions shall apply to any repaired or replacement Goods or Parts supplied by the Supplier.
WARRANTY OF PARTS
The Supplier warrants that for a period of 2 years from the date of delivery (warranty period), the Parts shall:
conform with their description and any applicable Specification;
Subject to clause 6.3, if:
the Dealer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Parts do not comply with the warranty set out in clause 6.1;
the Supplier is given a reasonable opportunity of examining such Parts; and
the Dealer (if asked to do so by the Supplier) returns such Parts, including any compressor, temperature controller and condenser unit, to the Supplier’s place of business at the Dealer’s cost,
the Supplier shall, at its option, repair or replace the defective Parts, or refund the price of the defective Parts in full.
The Supplier shall not be liable for the Parts’ failure to comply with the warranty set out in clause 6.1 in any of the following events:
the Dealer makes any further use of such Parts after giving notice in accordance with clause 6.2;
the defect arises because the Dealer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Parts or (if there are none) good practice regarding the same. These written instructions include the following:
in relation to refrigeration, fans, condensers and units must be properly maintained and kept clean and free of blockages at all times; and
bench fridges and freezers must be placed no nearer than 100mm to walls or other equipment;
Should a service call be placed and an engineer attend the site where the unit is deemed to be at fault due to miss use, general ware and tare, not being maintained or the ambient temperature is of an unreasonable height, this call will be chargeable. An invoice will be sent to you the dealer for full payment to be made.
the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Dealer;
the Dealer alters or repairs such Parts without the written consent of the Supplier;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
the Parts differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Except as provided in this clause 6, the Supplier shall have no liability to the Dealer in respect of the Parts’ failure to comply with the warranty set out in clause 6.1.
6.2. It is the responsibility of you the dealer to inform your customer that if they register their warranty on our website www.atosauk.com they will be eligible for an extended 3rd year parts only warranty on the compressor of any refrigeration unit. The compressor will be supplied free of charge in receipt of a fully qualified engineers report. Once that has been agreed the compressor will be send and a charge of Postage and packaging will apply. This will be payable before the part is sent. 7
6.3 Warranty start date for bulk orders. Should a bulk order be placed to be delivered in one delivery for the dealer to sell over a period of time it is the dealer’s responsibility to notify Atosa when a unit is sold. The dealer will send proof of sale and details in order to activate the warranty.
TITLE AND RISK
The risk in the Goods shall pass to the Dealer at the moment the Goods leave the Supplier’s premises.
Title to the Goods shall not pass to the Dealer until the Supplier has received payment in full (in cash or cleared funds) for:
the Goods; and
any other goods or services that the Supplier has supplied to the Dealer in respect of which payment has become due.
Until title to the Goods has passed to the Dealer, the Dealer shall:
hold the Goods on a fiduciary basis as the Supplier’s bailee;
store the Goods separately from all other goods held by the Dealer so that they remain readily identifiable as the Supplier’s property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.2; and
give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Dealer may resell at their full market value or use the Goods in the ordinary course of its business.
If the Dealer resells the Goods in accordance with clause 7.3:
the Dealer shall effect the resale as trustee for the Supplier and shall hold on trust for the Supplier the proceeds of such resale and the rights of the Dealer against its customer arising from such resale;
the Dealer shall hold the proceeds referred to in clause 7.4(a) in a separate account or otherwise clearly identify the said proceeds in its books and records; and
unless the Goods are clearly identifiable by serial numbers or other distinguishing marks, the Dealer is deemed to have disposed of the Goods in the chronological order of supply by the Company to the Dealer (oldest to most recent).
If before title to the Goods passes to the Dealer the Dealer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Dealer 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 or though appointed in its behalf may at any time require the Dealer to deliver up the Goods and, if the Dealer fails to do so promptly, enter any premises of the Dealer or of any third party where the Goods are stored in order to recover them.
PRICE AND PAYMENT
The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
The Supplier may, by giving notice to the Dealer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
any request by the Dealer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
any delay caused by any instructions of the Dealer or failure of the Dealer to give the Supplier adequate or accurate information or instructions.
The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods and a handling fee for the invoice, which shall be invoiced to the Dealer. 8
The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Dealer 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.
The Supplier may invoice the Dealer for the Goods on or at any time after the formation of the Contract.
The Dealer shall pay the invoice in full and in cleared funds within 30 calendar days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
If the Dealer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Dealer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base 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 Dealer shall pay the interest together with the overdue amount.
The Dealer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Dealer 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 Dealer against any amount payable by the Supplier to the Dealer.
Where a credit limit is established with the Dealer, the Supplier will determine the amount of the credit limit and the Supplier reserves the right to make adjustments to the credit limit, including the removal of any credit limit, in its absolute discretion.
DEALER‘S INSOLVENCY OR INCAPACITY
If the Dealer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that the Dealer is about to become subject to any of them and notifies the Dealer 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 Dealer and the Supplier without incurring any liability to the Dealer, and all outstanding sums in respect of Goods delivered to the Dealer shall become immediately due.
For the purposes of clause 9.1, the relevant events are:
the Dealer 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;
the Dealer 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;
(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 Dealer, other than for the sole purpose of a scheme for a solvent amalgamation of the Dealer with one or more other companies or the solvent reconstruction of the Dealer;
(being an individual) the Dealer is the subject of a bankruptcy petition or order;
a creditor or encumbrancer of the Dealer 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;
(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 Dealer;
(being a company) a floating charge holder over the Dealer’s assets has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the Dealer’s assets or a receiver is appointed over the Dealer’s assets; 9
any event occurs, or proceeding is taken, with respect to the Dealer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 0to clause 0 (inclusive);
the Dealer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
the Dealer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Dealer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(being an individual) the Dealer 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.
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.
LIMITATION OF LIABILITY
Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979;
defective products under the Consumer Protection Act 1987; or
any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
Subject to clause 10.1:
the Supplier shall under no circumstances whatever be liable to the Dealer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
the Supplier’s total liability to the Dealer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
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, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
GENERAL
Samples
The Supplier may, at its absolute discretion, supply samples of Goods to the Dealer. The supply of any such samples shall be subject to the Supplier’s policy on samples (as well as these Conditions) as amended from time to time.
Assignment and subcontracting.
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.
The Dealer 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.
Notices.
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 10
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.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.3(a) 12.2(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 fax or e-mail, one Business Day after transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Severance.
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.
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.
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.
Third party rights.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
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.
Governing law and jurisdiction.
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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Signed by the Dealer………………………………………. Date…………………………………………………………….