Revised February 2017
TERMS AND CONDITIONS of MPRD Ltd. trading as Molins Tobacco Machinery ("the Seller") whose normal place of business is Unit A1, Regent Park, Summerleys Road, Princes Risborough, HP27 9LE, UK for the sale of equipment and services to any customer ("the Buyer").
1. Definitions and Interpretation
1.1 In these Conditions the following definitions shall apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Buyer: the person, firm or company who purchases a Deliverable from the Seller.
Buyers Equipment: any equipment belonging to the Buyer or in the Buyer’s control (including Seller’s Equipment under Buyer’s control) in relation to which the Seller contracts to provide Services.
Conditions: the terms and conditions set out in this document unless amended in accordance with clause 19.
Contract: the contract between the Seller and the Buyer for the sale and purchase of the Deliverable(s) in accordance with these Conditions, the Order and the Seller’s Quotation.
Deliverable(s): any Equipment, accessories and/or related spare parts and/or Services or any part thereof specified in the Seller’s Quotation.
Equipment: means either Seller’s Equipment or Buyer’s Equipment or both.
Intellectual Property Rights: all analytical methods, rights to inventions, patents, copyright and related rights, industrial property rights, rights in software, trademarks, business names and domain names, rights in get-up, goodwill, rights to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how), trade secrets and all other intellectual property rights in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Buyer’s order for the Deliverable(s), as set out in the Buyer’s purchase order, in acceptance of the Seller’s Quotation.
Seller’s Equipment: means any products which the Seller contracts to sell to the Buyer (including but not limited to equipment, accessories and/or spare parts).
Seller’s Quotation: the Seller’s written scope and specification of the Deliverables.
Services: any service(s) to be provided by the Seller to the Buyer as set out in the Seller’s Quotation including but not limited to, repairs, maintenance, continuous improvement programmes, Equipment upgrades and remote services.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provisions includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2. Basis of Contract
2.1 The Order constitutes an offer by the Buyer to purchase the Deliverables in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate. The Order shall only be deemed to be accepted when the Seller has issued a written acceptance of the Order at which point the Contract shall come into existence.
2.2 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer may seek to impose or incorporate or which are implied by trade, custom, practice or course of dealing. The terms implied by statute are, to the fullest extent permitted by law, excluded from the Contract.
2.3 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Deliverables described therein. They shall not form part of the Contract or have any contractual force.
2.5 In the event of and only to the extent of any conflict or inconsistency between these Conditions and the other documents included in the Contract, such conflict or inconsistency shall be resolved in the following order of priority:
2.5.1 the Conditions;
2.5.2 the Seller’s Quotation;
2.5.3 the Order; and
2.5.4 any other document referred to herein.
3.1 The Seller shall use reasonable skill and diligence in providing the Deliverables but no warranty is given or implied that thereafter the Buyer's Equipment shall at all times operate satisfactorily or without malfunction.
3.2 Performance figures provided by the Seller are given in good faith and are based upon operating experience and, where appropriate, tests conducted in its own premises. The Buyer accepts sole responsibility for its selection of Seller's Equipment and that it is suitable for its proposed application.
3.3 Equipment supplied by the Seller is carefully inspected and, where practicable, submitted to the Seller's standard tests prior to leaving the Seller’s premises. Any further tests required by the Buyer, other than those specified in a separate supply contract, must be agreed in writing at the time of order and the costs incurred will be charged to the Buyer.
3.4 Materials required for test purposes will be provided by the Buyer in the quantities and at the times specified by the Seller, free of charge and will be fully representative of the Buyers’ normal operating materials.
3.5 Where the Seller provides a certificate of test it shall be accepted as conclusive evidence of the capacity and performance of the Equipment.
4. Buyer's responsibilities
4.1 The Buyer shall be responsible for all costs and other consequences of:
4.1.1 any alterations made to the Buyer's Equipment prior to the commencement of the Services; and
4.1.2 the fitting of any additional or alternative parts not made or authorised by the manufacturer of the Buyer's Equipment.
4.2 The Buyer shall:
4.2.1 take good care of the Equipment and operate it in a proper manner;
4.2.2 carry out all maintenance (other than that which the Seller contracts to undertake) which the operating instructions for the Buyer's Equipment advise should be carried out as a matter of routine on a regular basis;
4.2.3 pay for the consumable items specified by the Seller or required to operate the Equipment (if ordered from the Seller);
4.2.4 permit the Seller and any person authorised by the Seller to have access to the Buyer's Equipment at all reasonable times;
4.2.5 not make any alterations or additions to the Equipment or any part of it without the Seller’s prior written consent; and
4.2.6 provide such ancillary services such as uninterrupted power supplies or unskilled labour to assist with installation as may be reasonably necessary to enable the Seller to fulfil the Contract.
4.3 It is the Seller's policy not to supply Equipment or spare parts to any Buyer shown to have used the Seller's Equipment for making or handling counterfeit tobacco products. The Seller reserves the right to cease doing business with any such Buyer and to cancel any outstanding order without giving rise to any claim or penalty by the Buyer against the Seller.
5.1 Unless otherwise agreed, where the Contract provides that the Seller shall provide Services to the Buyer, the Contract shall continue in force for a period of three years from the date of Order or the date on which the Services are commenced, whichever is the earlier.
5.2 At the end of such period or of any subsequent period during which the Contract is in force, the Contract shall automatically be renewed for a further period of 12 months unless terminated by either party giving to the other not less than 60 days prior notice in writing to expire on the last day of the current Contract period.
6. Timescales and delivery
6.1 Times quoted for commencement of Services shall run from the latest of, the date of receipt of the Order, full access being given to the Buyer's site (if required) or full information being given to enable the Seller to proceed with the Contract.
6.2 The time for delivery of Seller's Equipment shall run from the latest of, the date of receipt of the Order or payment of the deposit in cleared funds; or full information being given to enable the Seller to proceed with the Contract and/or, where required, receipt of an irrevocable letter of credit with appropriate validity. Where the Buyer requests a change either to Seller's Equipment or to its specification, the delivery time shall be adjusted accordingly.
6.3 Whilst all reasonable endeavours will be made to meet the planned Service schedule or delivery date the Seller shall not be liable to the Buyer for a failure to meet those dates.
6.4 Delivery of Seller's Equipment is Ex Works unpacked (Incoterms 2010). Risk in Seller's Equipment shall pass to the Buyer on completion of 14 days from the date on which written notice is given that the Equipment is ready for collection. Title to the Seller's Equipment will pass on receipt of full payment (including any retention) of the purchase price in cleared funds by the Seller.
6.5 Notwithstanding that delivery is Ex Works, the Seller may at the Buyer's written request and expense and on its behalf arrange to pack and deliver the Equipment. The Seller shall not be liable for delay or damage in transit or non-arrival of the product.
7. Delays and storage
7.1 If the Buyer fails to take delivery of any Seller’s Equipment or to provide suitable forwarding instructions within 10 days of written notice of readiness for collection at the Seller's works, or requests a delay to the delivery, then the Seller's standard charges for demurrage, storage and insurance will be charged to and payable by the Buyer.
7.2 If 30 business days after the Seller notified the Buyer that the Equipment was ready for collection from the Seller’s works or for delivery to the Buyer, the Buyer has still not taken delivery of it, the Seller may resell or otherwise dispose of all or part of the Equipment. The Seller will be entitled to deduct the costs of storage, sale, any exchange rate loss, any loss of profit and any other losses that result from the Buyer’s breach from any monies paid by the Buyer to the Seller before accounting to the Buyer for the remaining monies (if any) paid by the Buyer to the Seller for the Equipment. To the extent the Seller’s costs and losses exceed the sums paid by the Buyer to the Seller, the Buyer shall remain indebted to the Seller until the same are paid in full.
8. Accessories and spare parts
8.1 In the case of accessories or spare parts for Seller's Equipment the technical specification and parts content of the Equipment are assumed to conform to the bill of materials recorded at the time of original manufacture by the Seller. Any alteration or modification to the Equipment may affect the compatibility of accessories or parts and must be communicated to the Seller prior to receipt of the Order.
8.2 Where an Order is placed without further qualification of the Equipment’s condition the Seller shall not be liable for any additional costs incurred or any losses arising from the non-compatibility of accessories or parts.
9. Additional costs
Additional costs (including a reasonable profit element) arising from (a) the Buyer's instructions or lack of instructions or (b) request for delays or (c) interruption or suspension of work or (d) issues which are not within the Seller's control shall be added to the contract price and be paid by the Buyer accordingly.
10. Price and payment
10.1 The price for the Equipment shall be the price set out in the Seller’s Quotation or if no price is quoted, the price set out in the Seller’s published price list at the date of delivery.
10.2 Any annual charge shall commence on the date specified in the Seller’s Quotation or the date the Services commence whichever is the earlier and shall be invoiced in accordance with the Seller's Quotation. Any price quoted for Seller's Equipment is the prevailing current Ex Works unpacked price unless otherwise previously agreed in writing.
10.3 Unless otherwise agreed, a deposit equal to 30% of the price of the Equipment is due with the Order and the balance fourteen days after the date on which written notice is given to the Buyer that the Equipment is ready for collection. The Seller shall be entitled to charge interest at a rate of 4% per annum above Lloyds Bank Plc’s London quoted sterling base rate from the date 30 days after the due date until the date of actual payment. In the event that a retention is agreed and is dependent upon acceptance tests, and the Buyer delays such testing, for any reason, beyond three months from delivery, the Buyer shall be obliged to pay the balance of that retention immediately.
10.4 Payment shall be made to the Seller's bank in Sterling or to such other place or in such other currency as the Seller may direct.
10.5 VAT and any direct or indirect taxes on purchases (including any customs duty) are not included in the quoted price and are payable by the Buyer at the prevailing rates.
10.6 Packing cases and materials will be charged as an additional cost to the Buyer.
10.7 The price is based upon the designs, technical specifications and labour, materials, transport costs and the costs of conforming to statutory obligations applying at the date of the Seller’s Quotation. In the event of changes being requested by the Buyer or required by law or otherwise arising due to matters beyond the Seller's control, the Seller reserves the right to modify the technical specifications, delivery or service schedules and the price payable at any time on giving notice in writing.
11.1 The Seller warrants that Equipment will conform in all material respects with its description and any applicable specification and be free from material defects in design, materials and workmanship.
11.2 The Seller shall make good at its sole discretion by replacement, repair or refund, any material defect in Equipment which, materially affects the operation of Equipment, arises solely from faults in the Seller's materials or workmanship and which:
11.2.1 in the case of new Seller's Equipment, appears within 12 calendar months of delivery operated on a single shift or 2,600 operating hours (whichever is the sooner); or
11.2.2 in the case of factory rebuilt Seller's Equipment, appears within 6 months of delivery operated on a single shift or 1,300 operating hours (whichever is the sooner); or
11.2.3 in the case of Buyer’s Equipment, appears within 12 calendar months of delivery operated on a single shift or 1,300 operating hours (whichever is the sooner).
11.3 This warranty applies to Equipment that has been properly used and maintained by the Buyer in accordance with the training and/or instructions provided by the Seller.
11.4 Subject to clause 11.5, if:
11.4.1 the Buyer gives notice in accordance with clause 11.7 below to the Seller during the warranty period that some or all of the Equipment does not comply with the warranty set out in clause 11.1; and
11.4.2 the Seller is given a reasonable opportunity to examine such Equipment; and
11.4.3 the Buyer (if asked to do so by the Seller) returns the Equipment to the Seller’s place of business at the Buyer’s cost, the Seller shall, at its option, repair the defective Equipment or replace the defective parts on FCA Incoterms 2010 basis. Consumable items such as bulbs, fuses, belts etc. are not covered by the Seller’s warranty. The cost of disassembling and/or installing a repair or replacement part is excluded from the Seller’s warranty.
11.5 The Seller shall not be liable for the Equipment’s failure if:
11.5.1 the damage arises through no fault of the Seller;
11.5.2 the Buyer makes further use of the Equipment after giving notice in accordance with clause 11.4;
11.5.3 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use, service and maintenance of the Equipment or (if there are none) good trade practice regarding the same;
11.5.4 the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;
11.5.5 the Buyer or any third party adjusts, alters, modifies or repairs such Equipment without the prior written consent of the Seller;
11.5.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, abnormal storage, improper installation (other than where the Seller carries out the installation) and/or abnormal operating conditions including extremes of temperature, moisture, dirt or corrosive matter.
11.6 In the case of goods that are not of the Seller's manufacture the Buyer shall only be entitled to such benefits as may be recoverable from the original supplier.
11.7 Except as provided in this clause 11, the Seller shall have no liability to the Buyer in respect of the Equipment's failure to comply with the warranty set out in clause 11.2.
11.8 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
11.9 To make a warranty claim the Buyer must notify the Seller in writing and without delay and in any event no later than seven days after the Buyer first becomes aware of the circumstances giving rise to that claim. Upon receipt of a warranty claim the Seller shall at its discretion and without undue delay, repair or replace the Equipment or re-perform the defective Services. The Buyer shall not be entitled to seek any other remedy.
12. Limitation of Liability
12.1 The Seller shall not be liable for:
12.1.1 any indirect or consequential losses;
12.1.2 any loss or damage caused to any goods or materials in the course of being processed by the Equipment whether they belong to the Buyer or a third party;
12.1.3 any direct losses that exceed, in aggregate, the price paid by the Buyer for the Equipment or the Services;
12.1.4 any loss of profit, saving or opportunity;
12.1.5 any delay in performance or non performance due to circumstances beyond the Seller's reasonable control;
12.1.6 save to the extent provided in the Seller's Quotation, any delay in anticipated delivery time.
12.2 Nothing in these Conditions shall exclude either party’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(b) fraud or fraudulent misrepresentation.
12.3 All descriptions and illustrations contained in catalogues, price lists and any other advertising material are intended merely to present a general idea of the services and products and do not form part of the Contract between the parties unless specifically incorporated therein.
12.4 The parties acknowledge and agree that the charges for the Services and/or the Seller's Equipment supplied reflect the scope of the liabilities of the parties set out in this clause 12. The Seller’s aggregate liability to the Buyer shall be limited to the amount actually paid by the Buyer in respect of the Contract.
12.5 No warranty is given or implied as to the suitability of Seller's Equipment for use in a country other than that for which it was originally ordered or for use with material not conforming to samples provided by the Buyer to the Seller and approved for use.
13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.1.1 The other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days of receipt of notice in writing of the breach;
13.1.2 The other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or is deemed either unable to pay its debts or as having no reasonable prospect of doing so;
13.1.3 A petition is filed, notice is given, a resolution is passed or and order is made for or in connection with the winding up of the other party;
13.1.4 The other party, being an individual, is the subject of a bankruptcy petition or order; or
13.1.5 Any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events referred to in 13.1.1 to 13.1.4 above.
13.2 Without limiting its other rights and remedies, the Seller may terminate the Contract:
13.2.1 By giving the Buyer 1 months’ written notice;
13.2.2 With immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
13.3 Subject to the remainder of clause 13.3 the Buyer may cancel the Contract with the Seller by giving sixty (60) days’ written notice to the Seller. Upon receipt of the Buyer’s notice of cancellation, the Seller shall, unless the Buyer’s notice states otherwise, discontinue the Contract and the Seller will not enter into any new sub contracts or place any new orders for materials, facilities, supplies or services in connection with the performance of such cancelled Contract. The Seller shall make reasonable efforts to cancel existing orders or contracts with its suppliers. In the event of cancellation under this clause 13, the Buyer shall be liable to the Seller for the value of the Equipment made and or delivered prior to cancellation, the Seller’s costs incurred in providing such Equipment together with the Seller’s reasonable termination expenses including the costs incurred or irrevocably committed including any exchange rate losses, the Seller’s reasonable wind down costs and a contribution to the Seller’s lost profit margin of 10% of the price for the cancelled Equipment. The Seller will be entitled to deduct and retain such sums from the monies already paid by the Buyer to the Seller under the terms of the Contract. To the extent that the Seller’s costs and losses exceed the sums paid by the Buyer to the Seller, the Buyer shall remain indebted to the Seller until the same are paid in full.
13.4 The parties accrued rights and remedies as at termination shall not be affected.
13.5 Clauses that expressly or by implication have effect after termination shall continue in full force and effect.
13.6 Where the Contract is for the provision of Services and is terminated by the Buyer in accordance with clause 13.1 the Buyer shall be entitled to a refund of any annual charge apportioned on a daily basis to the date of termination.
13.7 Where the Contract is for the provision of Services and is terminated by the Seller in accordance with clause 13.1 the Seller shall be entitled to retain the whole of any annual charge paid by the Buyer irrespective of the period to which it relates.
14. Export Control
14.1 Where items are subject to export control, the Seller shall, if asked, and at the Buyer’s cost, obtain the relevant licenses and/or authorisations as required by law. The Seller will clearly indicate on all invoices the applicable export license number.
14.2 The Buyer undertakes to provide the Seller with end user information for the export of items. In the event that the Buyer subsequently re-exports, sells for export or otherwise transfers any such items, the Buyer undertakes to be solely responsible for compliance with applicable export controls relating to the re-export, sale for export or transfer obligations applicable for time to time of such items.
14.3 The Buyer shall indemnify and hold harmless the Seller from and against any claims, proceedings, actions, fines, loss, costs and expenses and/or damages arising from the Buyer’s non-compliance with clause 14.2 above.
15. 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 could have been foreseen was unavoidable; including failure of energy sources or transport network, acts of God, terrorism, war, 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, explosions, collapse of building structures, fire, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions. Should the Force Majeure Event exceed a continuous period of 180 days, then either party may at any time thereafter, and provided performance is still excused, give written notice to the other to terminate the Contract.
16. Intellectual Property
16.1 The Seller or any other subsidiary of MPRD Ltd. shall at all times retain full right and title to any Intellectual Property Rights in Seller's Equipment notwithstanding that the parties may cooperate in specifying the performance, design or construction of the Seller's Equipment.
16.2 Subject to clause 12.2 the Seller agrees to indemnify the Buyer against any liabilities the Buyer actually incurs, including the Buyer’s reasonable legal costs properly incurred and evidenced, arising out of the Seller’s infringement of any third party Intellectual Property Rights due to the Buyer’s possession or use of the Seller’s Equipment provided the Seller is given immediate and absolute control of the defence of any claim for infringement. If the Buyer seeks to settle any dispute involving an allegation of infringement without the Seller’s agreement the Seller shall not be liable to recompense the Buyer for any such settlement or the costs occasioned thereby. The Seller shall be entitled, at its sole discretion, to modify or replace the Seller’s Equipment to resolve the alleged infringement.
17. Confidential Information
17.1 Any plans, drawings, designs or documentation whether in paper or electronic format supplied by the Seller or its representative to the Buyer and any information communicated to the Buyer by the Seller relating to the Contract, the Seller or the Seller’s business shall be kept confidential by the Buyer. If requested to do so, the Buyer shall return the Seller’s confidential information to the Seller on conclusion of the Contract without retaining any copies of the same.
17.2 This clause 17 shall survive the termination or expiry of the Contract.
18. Compliance with Laws and Policies
18.1 The Buyer shall, in performing its obligations under the Contract, comply with all applicable, laws, statutes and regulations from time to time in force.
18.2 The Buyer shall comply with the Seller’s Group Ethics Policy, and its Anti-Bribery Policy, as amended from time to time which can be viewed at www.molins.com/about.us/molins-group-policies.
18.3 The Seller values its reputation for ethical behaviour, financial probity and reliability. The Seller prohibits the offering, giving, solicitation or the acceptance of any bribe, whether cash or other inducement to or from any person, firm or company wherever they are located and whether they are a public official or body or a private individual or company by any agent or sub-agent acting on the Seller’s behalf. The Seller will, at its sole discretion, be entitled to terminate the Contract with immediate effect if the Buyer acts, or is believed to have acted, in an unethical manner in breach of the Seller’s Group Ethics Policy.
18.4 The Buyer shall notify the Seller if it becomes aware of any breach of this clause and steps taken to remedy this breach.
18.5 The Buyer shall indemnify the Seller against any losses, liabilities, damages, fines, costs (including legal fees) and expenses incurred by, or awarded against the Seller as a result of a breach of this clause 18.
18.6 The Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer commits a breach of this clause 18.
No amendment or qualification to these Conditions will apply unless expressly accepted and confirmed in writing by the Seller.
Any notice or other communication shall be in writing and delivered personally or sent by, first class letter post, recorded delivery or courier to the other party’s registered office or normal place of business or by facsimile message to the number provided. Notices and communications delivered personally shall be deemed received when left with the addressor; if sent by first class post or recorded delivery on the second Business Day after posting; if delivered by courier on the date and at the time the courier’s receipt is signed; if sent by fax on the day of transmission provided it is sent during normal business hours and if after business hours on the next Business Day after transmission. Notices purported to be served by e-mail will not be accepted.
A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise.
22. Assignment and subcontracting
The Seller may assign, transfer, charge or subcontract its rights or obligations under the Contract. The Buyer may not assign, transfer, charge or subcontract all or any of its rights or obligations under the Contract without the prior written consent of the Seller.
If a court or any other 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 deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
24. No Partnership
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties. No party shall have authority to act as agent for, or to bind the other party in any way.
25. Third Parties
A person who is not a party to the Contract shall not have any rights under or in connection with it.
The Contract between the parties, and any dispute or claim arising out of or in connection with it, shall be governed by and construed in accordance with English law and the parties irrevocably submit to the jurisdiction of the courts of England and Wales. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any sale of goods by the Seller.