Terms and Conditions

TERMS AND CONDITIONS OF SALE

1. DEFINITIONS AND INTERPRETATION
(a) In these Conditions, the following words and expressions shall have the following meanings unless the context otherwise requires:-
“Buyer” the purchaser of Goods from the Seller as detailed in the Quotation;
“Conditions” the conditions set out herein;
“Contract” the contract(s) for the provision of Goods between the Buyer and the Seller constituted by the submission of the Quotation and acceptance thereof in terms of Clause 2;
“Goods” the goods which the Seller has proposed to provide to the Buyer as set out in the Quotation, as such goods may be varied by agreement between the Seller and the Buyer from time to time;
“Price(s)” the price as detailed in the Quotation or the price to be calculated as detailed in the Quotation (subject to Clause 3);
“Quotation” the Quotation by the Seller to the Buyer for cost and terms of the supply of the Goods;
“Seller” KSM Superclean Limited;
(b) References to Clauses shall mean the clauses of these Conditions and headings and punctuation are for ease of reference only and shall not affect interpretation.

2. GENERAL
(i) The Quotation (“the Quotation”) submitted by the Seller to the Buyer constitutes an offer by the Seller to provide the Goods specified therein and is subject to these Conditions.

(ii) The Buyer shall have 30 days from date of the Quotation to confirm its acceptance of these Conditions and the Quotation by executing and returning the Quotation to the Seller, after which time the offer will lapse.

(ii) All contracts between the Buyer and the Seller, whether verbally or in writing, are, unless otherwise agreed in writing between the parties, subject to these conditions which shall be deemed to be incorporated in any and all contracts regardless of whether the conditions are attached to the Quotation(s).

(iii) All terms and conditions referred to by the Buyer or contained in any order or acceptance of quotation or otherwise brought to the notice of the Seller are hereby excluded unless otherwise specifically agreed in writing by a director of the Seller before delivery of the Goods.

(iv) These Conditions supersede any prior promises, representations or undertakings whatsoever and no servant or agent of the Seller has any authority to make any representation or give any warranty or agree to any variation of or addition to these Conditions unless such representation, warranty, variation or addition is in writing and signed on behalf of the Seller by a director or other person duly authorised by the Seller.

3. PRICES
(i) All prices quoted although normally valid for 30 days may be altered without notice by the Seller at any time before a contract is entered into.

(ii) Unless expressly stated otherwise prices do not include the cost of packaging, carriage, (commissioning machines, training), VAT (and any other taxes or charges including but not limited to import duties or charges) which will be charged at the applicable rate at the date of despatch.

4. PAYMENT
(i) Unless otherwise agreed in writing, payment of the full invoice price (including packaging, carriage and VAT and any other taxes or charges where appropriate) shall be made within 30 days of the date of the invoice.

(ii) The Payment terms for those Goods that are machines made to order are as follows: (a) 30% of the order value as set out in the Quotation shall be payable on submission of the order from the Buyer to the Seller, (b) a further 30% shall be payable upon the Seller notifying the Buyer in writing that the machine is complete and ready for despatch and (iii) the balance shall be payable within 30 days of the date of invoice.

(iii) Time of payment shall be of the essence of the contract and failure to make any payment on the due date shall entitle the Seller to treat the contract as repudiated and act accordingly (including cancelling any further deliveries or instalments to be made hereunder or under any other contract between the Buyer and the Seller) or, before making delivery or further deliveries under this contract, to require payment in full of all sums due under this contract.

(iv) Without prejudice to 4(i) – (iii), if payment is not made in full by the due date the Seller shall have the right to charge interest on any sums outstanding at a rate of 2% above the base rate charged by HSBC Bank plc from time to time from the due date until the payment is made in full.

5. DELIVERY
(i) Whilst the Seller shall endeavour to secure delivery of the Goods on or before any date which may be stipulated for delivery, it does not guarantee time of delivery. The Seller shall be entitled to deliver the Goods within a reasonable period after any such date and the Buyer shall accept such delivery. The Seller shall not be liable to the Buyer for any loss or damage suffered by the Buyer as a result of the Seller’s failure to deliver by a particular date or dates.

(ii) Each instalment or part delivery shall be considered a separate transaction which will not affect the rights or liabilities of either party under the contract as to the other instalments or part deliveries except that if the Buyer fails to accept delivery of an instalment or part delivery the Seller shall be entitled to invoice the Buyer for any balance of that order remaining undelivered and thereupon notwithstanding anything to the contrary in the Contract, payment of such balance shall become immediately due and payable and the Seller shall not be bound to despatch such balance until such payment has been received.

(iii) The Buyer shall give comprehensive instructions for delivery to the Seller within a reasonable time prior to the date quoted for delivery. In the event that the Buyer fails to give such instructions the Seller may treat such failure as a repudiation of the contract and may without prejudice to any of its other rights accept such repudiation without notice as termination thereof.

(iv) Unless otherwise stated the Seller shall deliver the Goods as near to the destination as a safe hard roadway permits. In the event that delivery is to be made on theBuyer’s site, the Buyer shall provide and clearly indicate to the delivery driver a route from the public highway to the site which is safe and reasonable and provides adequate turning space at the point of delivery. The driver may refuse delivery if, in his sole opinion, the route or the point of unloading is unsafe or is likely to cause damage to the delivery vehicle. The Buyer shall indemnify the Seller (for itself and as agents or any haulage contractor operating the vehicle) against any damage caused to any such vehicle and against all claims, costs, damages and expenses incurred by the Seller by reason of any default of the Buyer under this condition.

(v) If the Buyer collects the Goods from the Seller the Buyer is solely responsible for the size, weight and positioning of the load on the vehicle and shall indemnify the Seller in respect of all costs, claims, losses or expenses the Seller may incur as a result of the Buyer collecting the Goods including such costs, claims, losses or expenses resulting from the Seller’s negligence.

(vi) The Buyer shall be responsible for providing adequate labour and facilities at the delivery point for unloading Goods ordered by him without undue delay and shall keep the Seller indemnified against all claims howsoever arising from such unloading operation. The Seller reserves the right to charge for delays prior to and during unloading or for costs incurred in making abortive deliveries.

(vii) Unless the Seller receives written notice from the Buyer that delivery is to be made only to a specific person any person accepting delivery on site shall be deemed to have the Buyer’s authority to give instructions as to delivery and to accept such delivery.

6. PROPERTY
(i) The Goods shall remain the property of the Seller until payment is made in full (including interest and charges) by the Buyer and until such payment the Buyer shall hold the Goods (and all items incorporating the Goods) as trustee on behalf of and in a fiduciary capacity for the Seller and shall be entirely responsible for ensuring that the Goods are properly protected, operated, insured and clearly identified as the Seller’s property.

(ii) Notwithstanding the above, the Buyer may sell and deliver the Goods to a third party in the ordinary course of the Buyer’s business on condition that until the Seller has been paid in full the Buyer shall hold all proceeds of the sale in trust for the Seller.

(iii) The Buyer shall not be entitled to pledge or in any way charge by way of security for indebtedness (or permit any third party to do so) any of the Goods which remain he Seller’s property but if the Buyer does so, all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy the Seller may have) immediately become due and payable.

(iv) Where the Goods are combined by the Buyer with other items or materials, the resulting Goods shall be deemed to be the property of the Seller subject to and on the terms aforesaid.

(v) The Seller shall have the right to repossess all or any of the Goods to which it has title hereunder and for this purpose the Buyer grants an irrevocable right and licence to the Seller, its servants or agents to enter upon all or any of its premises where the Goods are stored with such transport as may be necessary during normal business hours, in order to retrieve the Goods

7. RISK
(i) The Goods shall (unless delivered by means of the Seller’s own transport or by a carrier on behalf of the Seller), be deemed to have been delivered and the risk therein passed to the Buyer upon their transfer to a carrier named by the Buyer or in the case of the Buyer’s collection of the Goods from the Seller’s premises upon the Seller notifying the Buyer that the Goods are available for collection.

(ii) Where the Goods are to be delivered by the Seller or by means of a carrier on behalf of the Seller the risk therein shall pass to the Buyer upon delivery.

(iii) The Buyer shall indemnify the Seller in respect of any loss or damage to any Goods which are the property of the Seller in the possession of the Buyer or a carrier on behalf of the Buyer but the amount of such indemnity shall not exceed the total indebtedness of the Buyer to the Seller.

(iv) The Buyer shall at its own expense if the Seller so requires insure all Goods which are the property of the Seller in the possession, custody or control of the buyer against loss or damage by fire, flood or theft to their full value and shall procure that the Seller shall be the beneficiary of the policy effecting such insurance. The Seller shall pay to the Buyer all insurance monies in excess of the Buyer’s total indebtedness received on such policy of insurance.

8. CLAIMS
(i) The Buyer shall inspect all Goods immediately upon delivery and shall within 48 hours from such inspection give notice in writing to the Seller of any matter by reason whereof the Buyer may allege the Goods are not in accordance with the Contract.

(ii) Notice of any claim relating to shortage of or damage to the Goods shall be made to the Seller in writing within 48 hours of receipt of the Goods. In the event of non delivery of the Goods the Buyer shall notify the Seller in writing within 48 hours of the expected delivery time.

(iii) The Seller will consider claims under clauses 8(i) and (ii) only if the above conditions are met and the claim is signed by the Buyer and accompanied by full particulars giving the invoice and Buyer’s order number and, as the case may be, the case number, the condition of the case or packing and the copy of the delivery note in respect of the Goods.

(iv) If no such notification in accordance with claims 8(i) and (ii) is received within seven days of such delivery, the Goods shall be deemed to be accepted by the Buyer.

(v) The Seller’s liability hereunder in respect of any shortage or damage to the Goods shall be limited to the proportion of the price attributable to the Goods undelivered or damaged and in no event shall the Seller, its servants or agents be liable for any injury, loss or damage (including consequential damage), loss of profits or expenses of any kind whatsoever caused in connection with Goods supplied by the Company (other than death or personal injury due to the negligence of the Seller).

(vi) Where manufacturers of products supplied by the Seller have limited their liability in respect thereof or in respect of any consequential liability there from the same limitation shall apply to the Seller’s liability and the sale of such Goods.

9. WARRANTIES AND CONDITIONS
(i) No warranty, condition or representation is given or made as to the quality of the Goods supplied hereunder their condition or their fitness for any particular purpose and any such warranty, condition or representation whether expressed or implied whether by statute, by collateral agreement or otherwise is hereby excluded.

(ii) The Seller shall not be liable for any loss (including, without limitation, economic, indirect and consequential loss) damage or injury arising out of any use or dealing with any Goods or services, howsoever such expenditure, loss, damage or injury shall arise and whether from any defect in Goods or the negligence of the Seller or otherwise.

(iii) The Buyer shall indemnify the Seller against all and any claim, costs, actions or demands of whatsoever nature and howsoever arising made by any third party (including the Seller’s employees) whether direct or indirect, including (but without prejudice to the generality of the foregoing) those relating to the use (including loading, unloading and stacking) functioning or state of the Goods.

(iv) The Seller does not exclude or restrict its liability:

(a) for the death or personal injury resulting from negligence of the Seller or its servants or agents (although not independent contractors) while acting in the course of their employment by the Seller;

(b) for breach of the Seller’s undertaking as to title implied by section 12 of the Sales of Goods Act 1979; or

(c) if the Buyer does not make the contract in the course of business, for breach of any undertakings implied by sections 13-15 of the Sales of Goods Act 1979.

(v) Subject to the other provisions hereof and except insofar as the Seller’s liability may not be excluded or limited by law, the Buyer acknowledges and agree that the Seller’s entire liability hereunder shall be limited to the total consideration actually received by the Seller pursuant to this Contract, which the Buyer acknowledges and agrees is reasonable in all the circumstances. If the Buyer requires additional protection, the Buyer acknowledges and agree that it shall be responsible for obtaining appropriate insurance cover.
(vi) The Seller shall be entitled to set off any and all sums due by the Seller to the Buyer under this Contract against any and all sums due by the Buyer to the Seller whether under this Contract or otherwise.
(vii) The Seller shall have no liability for any representation, statement, claim or assurance made or given in relation to the Goods prior to this Contract being entered into.

10. SAMPLES
(i) Where samples of Goods or colour charts are provided to the Buyer they are so provided for the purposes of indicating the class and general character or quality of Goods and the Seller does not undertake that the Goods sold will be identical or equal to such samples or colour charts.

(ii) All descriptions and illustrations of Goods in any catalogue, brochure, price list or in any other document provided by the Seller are intended for general guidance only and do not form part of any contact between the Seller and the Buyer and the Seller accepts no responsibility for any error or omission in any such document and shall not be liable in any circumstances for any loss or damage of whatsoever nature and howsoever caused resulting from reliance on such description or illustration.

11. INTELLECTUAL PROPERTY
(i) The Seller does not warrant that the supply or the use of the Goods in the United Kingdom or elsewhere is not an infringement of the intellectual property rights of third parties.

(ii) The Buyer acknowledges and agrees that any and all intellectual property rights in the Goods supplied hereunder and any and all intellectual property, including but not limited to intellectual property, created, developed, subsisting or used by the Seller in performance of the Contract (“the Intellectual Property”) shall vest in or (as the case may be) remain the exclusive property of the Seller or such third party as the Seller shall designate and nothing in these Conditions confers any right on the Buyer in this respect. The Buyer hereby warrants that it will not use, copy, alter or modify the Goods for any purpose other than as expressly permitted by the Seller. Where the Goods are manufactured to the Buyer’s design or specification, the Buyer warrants that such design or specification does not infringe the right of any third party.

(iii) The Buyer shall keep secret and confidential at all times all and any information relating to the Contract, the Conditions and the Seller’s processes, business methods, customer base and materials which may come into its possession or within its knowledge at any time before during or after the Contract term and which are deemed to be confidential by the Seller (“Confidential Information”). The Buyer shall not use, copy or disclose to any third party any such Confidential Information unless for the proper purposes of this Contract or having obtained the Seller’s prior written consent. Disclosure of any such Confidential Information by the Seller to the Buyer shall not affect the ownership of such Confidential Information or the Seller’s right to it. The obligations contained in this Clause 11(iii) shall survive termination or performance of the Contract.

(iv) The provisions of Clause 11(iii) shall not apply to any information which the Buyer can demonstrate by documentary evidence to the Seller’s reasonable satisfaction: (i) is in or enters the public domain except as a result of a breach of this Contract; or (ii) was properly in possession or properly within its knowledge and at the Buyer’s free disposal prior to it receiving or becoming aware of the relevant confidential information; or (iii) is or becomes available in good faith to the Buyer from a third party which is not subject to any obligation of confidence to the Supplier; or (iv) was developed independently of the Buyer receiving or becoming aware of the Confidential Information; or (iv) the Customer is required by law or the requirements of a recognised stock exchange to disclose to any court or other relevant authority.

(v) The Buyer shall keep the Seller fully and effectively indemnified in respect of all losses, liabilities, damages, costs and expenses arising from any failure by the Buyer to use the Intellectual Property strictly in terms of this Clause. The obligations contained in this Clause shall survive termination or performance of the Contract.

12. FORCE MAJEURE
The Seller shall not be liable for any loss or damage caused by non-performance or delay in the performance of any of its obligations under this contract where the delay or non-performance is due to any cause beyond the Seller’s control, such as an act of God, strike, lock out, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood, explosion, difficulty or increased expense in obtaining workmen, materials or transport or computer breakdown.

13. TERMINATION
(i) Without prejudice to the remainder of these conditions, the Contract may be terminated forthwith by the Seller by notice in writing to the Buyer if (i) the Buyer fails to make payment of any sums due to the Seller in terms of the Contract within 14 days of the due date (without prejudice to any other rights or remedies available to us); (ii) the Buyer commits a material breach of any of its obligations under the Contract which is not capable of remedy; (iii) the Buyer commits a material breach of any of its obligations under the Contract which is capable of remedy and such a breach is not remedied within 30 days of the Buyer being specifically required so to do by the Seller; (iv) there is a persistent breach by the Buyer of any term of the Contract, being the repeat of any breach which the Seller has previously notified in writing to the Buyer; (v) any encumbrancer takes possession of, or an administrator, an administrative receiver, a receiver, a trustee, a liquidator or other similar official is appointed over the whole or any material part of the Buyer’s undertaking, property or assets or any of the Buyer’s holding companies from time to time; (vi) there is a presentation of a petition for the passing of an effective resolution for the Buyer’s winding up, otherwise than for the purpose of reconstruction or amalgamation without insolvency which has previously been approved in writing by the Seller; or (vii) the Buyer is subject to a change of control as such term is defined in Section 840 of the Income and Corporation Taxes Act 1988 as amended from time to time.

(ii) If any of the events outlined in Clause 13(i) above occur, the Seller shall be entitled to terminate any and all other contracts with the Buyer then outstanding and withdraw any open for acceptance by the Buyer at that time.

(iii) Termination of the Contract shall not affect the rights and remedies accrued by the parties as at the date of such termination or any rights or obligations which due to the nature thereof are intended to survive termination.

(iv) In relation to those Goods that are machines made to order, if the Contract is terminated, the Seller will charge the Buyer the costs incurred by the Seller in respect of the Contract to the date of cancellation plus 15% of the Contract value as set out in the Quotation which the parties agree is fair and reasonable in order to compensate the Seller for the extra administration and disruption associated with the termination of the Contract.

14. WAIVER
Any failure by the Seller to enforce any of its rights under this Contract shall not be taken to be a waiver of any of the Seller’s rights hereunder.

15. APPLICABLE LAW
This Contract shall in all respects be governed by and construed in accordance with the Laws of Scotland.

16. NOTICES
Any notices given under this Contract shall be in writing and sent by post to the registered office or the last known address of the person to whom it is addressed and shall be deemed to have been received 24 hours after the date of posting thereof.

17. CONSUMER RETURNS  AND CANCELLATION POLICY
The KSM Superclean Consumer Returns and Cancellation Policy does not affect your statutory rights and complies with "The Consumer Protection (Distance Selling) Regulations 2000".

(i) Some notes about refunds:
When you send your item back to KSM Superclean (or, in the case of large items delivered via specialist courier when we collect the item from you), we'll process the returned item then notify you via e-mail of your refund. You can expect a refund in the same form of payment originally used for purchase within one week of our receiving your returned product as long as it is received in resaleable condition and in the original packaging.
(ii) How Refunds Are Calculated
Items returned due to damage, defective or incorrect
If you are returning an item because of an error on our part or, in accordance with our returns policy, because it is damaged or defective, we will refund in full and pay your costs of returning it to us unless we arrange collection by our own transport or courier. KSM Superclean will check all items returned as damaged or defective. In the event we find no fault, we reserve the right to re-charge you for the item/s and to recover our fees and expenses from you.
(iii) Items returned within the seven-day cooling off period
By law, customers located in the European Union including the UK have the right to withdraw from the purchase of an item within seven working days of the day after the date the item is delivered. Where you are withdrawing from your purchase within the seven working day cooling-off period, and there has been no error on our part and the goods are not defective, we will refund the cost of the item less the costs and services related to the collection as follows:
1) We will refund the cost of the product less the collection cost which will be advised to you prior to collection.
2) We will not refund any Service Charges related to the delivery such as Installation, Bolting down, Delivery to another floor other than the standard free ground floor delivery.
3) The cost of returning the goods is the responsibility of the customer. For large products we will arrange collection and deduct the cost from your account.
4) Unfortunately any specially manufactured products ordered cannot be replaced or refunded unless the goods are defective or not as ordered and are therefore exempt from the Distance Selling Regulations (2000).

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