| Terms and conditions |
Modular Wiring Systems LimitedStandard Conditions of SaleAll previous issues are cancelled
In these terms and conditions of sale the following expressions shall have the meanings set out opposite them below:- “This Agreement” These conditions of sale including any alterations agreed to by the Seller in accordance with Clause 2 below “Delivery” shall be deemed to have taken place when the Goods are delivered to the Purchaser’s premises or other agreed location “The Goods” The Goods the subject of any contract to which these terms and conditions apply “The Price” The Price agreed for the sale or supply of the Goods by the Seller to the Purchaser “The Purchaser” Any party with whom the Seller contracts on these terms and conditions “The Seller” Modular Wiring Systems Limited “The Company” Modular Wiring Systems Limited
This Agreement between the Seller and the Purchaser for the sale or supply of the Goods by the Seller shall be on these conditions. No terms contained in any order form or other document (whether printed or otherwise) and no variation or departure from these conditions and no other term or condition whatsoever which is not contained herein shall have any force or effect whether as part of, or as collateral to, this Agreement, except in so far as the Seller has expressly agreed to them in writing signed by a Director or the Company Secretary on behalf of the Seller. The Purchaser acknowledges that there are no representations outside of this Agreement which have induced the Purchaser to enter into this Agreement.
Unless otherwise agreed in writing this Agreement shall be executed subject to prices and any relevant discounts ruling at the date of despatch. The Seller reserves the right to increase prices in the event of increases in the costs which affect the manufacture, distribution or delivery of the Goods. Any price list of the Seller whether published or not shall not affect the right of the seller to charge for the Goods in accordance with this clause. The prices are exclusive of VAT unless otherwise indicated in writing by the Seller.
The price shall be invoiced immediately following delivery. Payment in full (without retention or set-off) shall be due not later than the end of the month following that in which the Goods were delivered. The Company reserves the right to charge interest on any amount overdue at the rate of 3% over the current HSBC Bank plc base rate as published from time to time and without notice to suspend deliveries until all arrears (including interest) have been paid and at our option to rescind any subsisting contract with the Purchaser as to all or any parts of future deliveries but without prejudice to any other right. Unless otherwise stated in writing by the Managing Director, payment shall be made at or before the end of the month following the month in which the date of the invoice falls and shall be made without any set-off, counterclaim or deduction whether pursuant to any other contracts made between the parties or howsoever. Payment shall be made in sterling to the account stated on the invoice.
Any contract shall be subject to the Seller being satisfied as to the Purchaser’s credit worthiness. Without prejudice to the generality of the foregoing the Company may, in its absolute discretion, having informed the Purchaser that the Goods are ready for delivery, refrain from delivering the Goods until such time as the Purchaser tenders the purchase money to the Company in a form satisfactory to it.
Unless otherwise expressly agreed to in writing by the Seller no times quoted, specified or agreed for delivery of the Goods by the Seller shall be of the essence of this Agreement. If the seller shall fail to make due Delivery or late or short delivery for any cause other than set out below then the liability of the Seller for damages in respect of any loss or expense of whatsoever nature thereby occasioned shall be limited to and shall not exceed the Price of that part of the Goods in respect of which default had been made. If the Seller is prevented, hindered or delayed from making Delivery of the Goods for any reason whatsoever beyond the Seller’s control including (but without prejudice to the generality of any of the foregoing) any Act of God, hostilities, civil disturbance, Governmental restriction, or regulation of any kind, strikes or industrial disputes, force majeure or by reason of the Purchaser failing to furnish any necessary information or instructions; the Seller shall not be liable to the Purchaser for any loss suffered whatsoever. Unless this Agreement provides otherwise the Seller may deliver by instalments. Where delivery is to be made by instalments, each instalment shall be treated as a separate Agreement and delay, default or non-delivery in respect of any instalment on the part of the Seller shall not entitle the purchaser to cancel the remainder of this Agreement. If the Purchaser fails to accept delivery of any Goods when tendered, or in the event of any shipment or delivery of the Goods being delayed at the Purchaser’s request, or in the event of the purchaser failing to make any payment for the Goods when it is due, the Purchaser shall be liable to the Seller for all additional or excess handling, storage or other charges whatsoever thereby incurred by the Seller in relation to any such Goods delivery of which the seller is then entitled to withhold. 7 PACKING The seller reserves the right to charge for wooden cases, drums and other specified packaging, such charges to be refunded on the return of the packaging in good condition.
Unless otherwise specified, the Price includes delivery to the Purchaser within the mainland of Great Britain. The Seller reserves the right to choose the method of transport and to charge for deliveries outside the mainland of Great Britain.
Risk in the Goods shall pass to the Purchaser on Delivery. Notwithstanding the above the Seller shall only accept liability for damage to the Goods if notified of such damage within 3 working days of Delivery.
Claims for alleged shortages in Delivery shall be considered only if there is immediate verbal notification followed by a written claim received by the Seller within 3 working days of delivery accompanied by full particulars of the Advice Note or other essential information.
In no circumstances are the Goods supplied to the Purchaser to be returned without the Seller’s consent in writing in advance. Any article which has been supplied to special requirements cannot be accepted for credit under any circumstances, and in other instances a re-stocking charge may be imposed.
Variations in terms of colour, finish, materials and all other aspects of appearance, may occur on occasions either through non-availability of materials or due to the Seller’s policy of continuing technical improvement. The seller reserves the right from time to time to revise, vary or modify the colour or finish of materials and technical specification of the Goods provided that the quality of the Goods delivered shall be at least equal to that of the Goods contracted for.
So far as the Seller is aware no Goods offered by him infringe any existing patent, copyright, design, trademark or other industrial or intellectual property right (hereinafter referred to as “Intellectual Property Rights”) but no condition or warranty expressed or implied is given in respect of any such infringement. However in the event of a claim being made or any action being brought against the Purchaser in respect of infringing Intellectual Property Rights by the use or sale of Goods, the Purchaser shall notify the Seller immediately in writing and the Seller may at his own expense conduct through his own lawyers and experts any negotiation for settlement of the same or any litigation that may arise therefrom. All technical data, drawings, reports, diagrams, documents, and information whatsoever which the Seller submits to the Purchaser in connection with this Agreement (and the copyright therein) shall remain the Seller’s property and must not be copied or shown to any third party without the Seller’s consent in writing obtained in advance and upon the condition that a similar condition is imposed on any third party to whom disclosure is made. 14 DEFECTIVE GOODS The seller may within his absolute discretion, repair or replace or refund the price of the goods that are defective in material or workmanship at the time of delivery provided that written notice has been given of such defect within 14 working days of the date when by reason of an opportunity to inspect the Goods or otherwise, the Purchaser could first reasonably have ascertained that such defect existed provided always that the Purchaser has not in any way dealt with the Goods as to result in their being in any worse condition that when delivered and the Goods have been properly installed, maintained and operated. Where any Goods are delivered that do not comply with this Agreement the Purchaser shall permit the Seller a reasonable time and opportunity to repair or replace the same free of charge before proceeding with any claim or action. Without prejudice to the operation of any other terms of this Agreement, any liability of the Seller in respect of any defective Goods under the terms of this Agreement shall be limited to and shall not exceed a sum equal to the Price of that part of the Goods in respect of which the default has been made. Nothing in this Agreement shall affect the Seller’s liability to the Purchaser for death or personal injury arising from the Seller’s negligence or breach of statutory duty. 15 SAFETY The Purchaser warrants that the Goods shall not be sold or distributed or otherwise in any way dealt with unless there shall first have been applied or attached all such protective or other packaging and all such warning notices, statements or markings and all other such precautions of whatsoever nature as may be necessary or appropriate to preclude the making of any claim by any person who may use or consume or be effected by the Goods on the grounds of the absence thereof. The Purchaser shall indemnify the Seller against all claims, proceedings, costs or expenses which the Seller may sustain by reason of any breach of this warranty. 16 MODIFICATIONS REQUESTED BY PURCHASER Where the Purchaser requests the Seller to make any amendment or modification to the Seller’s standard product or to design any new product the following terms shall apply:- The Seller shall use reasonable care in carrying out the design and manufacture of any amended or new product. However the Seller shall not be liable to the Purchaser in respect of any defect in any such product save where the Seller has failed to take reasonable care as aforesaid in which case the provisions of Clause 14 above shall apply. The Purchaser shall indemnify the Seller from and against all or any costs, claims, losses or damage whatsoever arising by virtue of any defect in any such product or in relation to the breach of a third party’s Intellectual Property Rights. 17 CLAIMS Without prejudice to the effect or operation of any other clause herein contained the total aggregate liability of the Seller to the Purchaser for any loss or damage of whatsoever nature including but not limited to those arising out of any breach of this Agreement, tort or breach of statutory duty, shall be limited to and shall not exceed the sum equal to the Price of the Goods. 18 TERMINATION Where the Purchaser cancels the order in respect of all or part of the Goods by giving notice to the Seller at any time prior to Delivery, the Purchaser’s liability shall be to pay to the Seller the Price for the Goods in respect of which the Purchaser has exercised its right of cancellation, less the Seller’s net saving of cost arising from cancellation. 19 INSOLVENCY In the event that the Purchaser commits a breach of any of the terms of this Agreement or the Purchaser commits any of the follow acts:- The Purchaser fails to pay any amount when it is due or fails to accept Delivery of the Goods or give delivery instructions in relation to them when they are ready for collection or despatch; or where the Purchaser as an individual or a firm, enters into an arrangement with the Purchaser’s creditors or a petition is presented for bankruptcy or where the Purchaser is an individual he becomes of unsound mind or dies, or where the Purchaser is a company a petition is presented or a resolution is passed for the winding up of the Purchaser (save for the purpose of reconstruction or amalgamation without insolvency) or the Purchaser has an administrator, administrative receiver or receiver appointed over any of his undertakings or assets; or the Purchaser enters into any arrangement or composition for the benefit of his creditors: or the Purchaser suffers any distress or execution to be levied on his property, or if the Purchaser shall be deemed to be unable to pay his debts the Price of all the Goods invoiced or despatched by the seller shall become immediately due and payable by the Purchaser and the Seller may either treat any agreement made between the Purchaser and the Seller as cancelled or suspend or continue the delivery of the Goods under this Agreement without prejudice to any other right or remedy of the Seller. 20 PROPERTY Title shall remain vested in the Seller until all sums owing from the Purchaser whether in respect of this Agreement or any other agreement or transaction shall have been discharged. Until such time the Purchaser’s possession shall be as bailee for the Seller. Such indebtedness shall not be treated as discharged until all cheques, bills or other instruments have been honoured in accordance with their terms. If the Purchaser defaults in payment for the Goods any duly authorised officer of the Seller shall be entitled to enter upon the Purchaser’s premises (accompanied by any duly authorised officer of the Purchaser if the Purchaser so requires) and to retake possession and permanently retain any Goods owned by the Seller. It is a condition of this Agreement that the Good supplied under this Agreement, the property in which is vested in the Seller, shall be stored by the Purchaser separately from any other goods held at the Purchaser’s premises and in such a way as manifests the title of the Seller of the Goods. The Purchaser shall clearly label all Goods which remain the property of the Seller as the Seller’s property. The Goods supplied under this Agreement, the title to which is vested in the Seller, shall be insured by the Purchaser against all the usual risks from the sate that risk passes to the Purchaser in accordance with Clause 9 above. The Purchaser shall upon request produce the Seller receipts for the last premiums paid in respect of such policy of insurance. Until such time as all outstanding indebtedness on the part of the Purchaser to the Seller has been discharged the Purchaser shall not pledge or mortgage or allow any lien or charge to arise over any Goods by the Seller. Subject to the terms hereof the Purchaser is licensed by the Seller to process any Goods owned by the Seller in such fashion as he may wish and to incorporate them in or with any other product or products subject to the condition that the new product or products so formed, or any other chattel whatsoever containing any part of such Goods shall be separately stored and marked to as to be identifiable as being made from or with such Goods. Nothing in this condition shall confer any right on the Purchaser to return any goods to the Seller or to refuse or delay payment for them. 21 GENERAL The Purchaser shall not assign the benefit of this Agreement or any other agreement with the Seller. Any waiver or forbearance to enforce any term of this Agreement at anytime by the Seller shall not prevent the subsequent enforcement of that or any other terms of this Agreement and shall not be deemed to be a waiver of any subsequent breach. 22 LEGAL CONSTRUCTION Insofar as it may appear to any court or arbitrator or tribunal that any terms of this Agreement which seeks to impose any restriction or limitation of liability on the part of the Seller to any specified sum or multiple of the Price of the Goods and to which the Unfair Contract Terms Act 1977 or any statutory modification or re-enactment thereof applies, does not satisfy the requirement of reasonableness, such restriction or limitation shall not be disregarded or treated as null and void or as having no application but shall be construed as if there were substituted therein such greater minimum specified sum, or multiple of the Price of the Goods, as would in the opinion of the court, arbitrator or tribunal be reasonable and shall be given effect accordingly. If it appears to any court or arbitrator that any term of these conditions is invalid or unenforceable as a result of the application of any rule of law or construction, such term shall be deemed to have been deleted from this Agreement which shall be construed accordingly. This Agreement shall be governed in all respects by the laws of England. In the event that any dispute whatsoever may arise between the Purchaser and the Seller in connection with this Agreement the Seller and Purchaser hereby agree to submit to the non-exclusive jurisdiction of the Courts of England.
January 2006 |