© MPM Scales & Fabrication - 15 Hassall Road, Sandbach, Cheshire, CW11 4HQ
CONDITIONS OF SALE APPLYING TO ALL SALES MADE BY MPM SCALES AND FABRICATIONS
1. (a) 'the Seller' means MPM Scales and Fabrications.
'the Buyer' means the person, company or firm by whom the goods are purchased
'the Goods' means the goods specified
(b) Unless expressly agreed in writing by the Seller every sale by the Seller shall in every case be subject to these Conditions to the exclusion of any other terms whether contained in any earlier set of conditions issued by the Seller or the Seller's agents or in a form of order or any other document issued by the Buyer or the Buyer's agents or otherwise arising whether expressly or by implication
(c) No representative or agent of the Seller has authority to amend, vary or waive these Conditions or to make any binding representation or warranty in respect of the Goods.
(d) In the event that the Seller has not given a written acknowledgement of the buyers order these conditions provided the buyer shall have had prior knowledge of them. shall none the less apply to the contract
(e) The Buyer and the Seller shall be liable and entitled under this contract as principals save that the Seller shall have the option of enforcing this contract against any principal of the Buyer
(f) Any documents emanating from the Buyer which contain printed or standard conditions have been and will be sent by the Buyer and received by the Seller on the understanding that they appear on the Buyer’s documents because they are printed on them but have no legal effect at all and the Buyer waives any right which the Buyer otherwise might have to rely on such conditions.
(g) The Seller reserves the right to correct any clerical or typographical errors made by its employees at any time
2. Except as otherwise agreed in these Conditions, all drawings, descriptive matter, samples, weights, dimensions, specifications, capacities, brochures, catalogues, price lists and advertising matter are published or issued for the sole purpose of giving an approximate idea of the goods described therein and no information contained in any of them or in any other document whatever shall form part of the contractual description of the Goods, nor shall they form part of any contract The Seller reserves the right to make without notice such reasonable modifications in specifications, descriptions, designs, materials or finishes as it deems necessary or desirable. The Buyer shall not be entitled to object to or reject the Goods or any of them by reason of such reasonable modifications.
3. (a) Unless otherwise agreed by the Seller in writing, delivery of the Goods shall take place at the Seller s premises.
(b) Where it is agreed that delivery shall take place otherwise than at the Seller’s premises -
(i) unless otherwise agreed in writing the Buyer shall be responsible for the delivery costs from the Seller's premises and the off-loading and the taking of delivery of the Goods at the agreed place including any costs incidental thereto
(ii) the Seller shall not be liable in respect of any damage in transit or non-delivery of Goods howsoever caused (including negligence) unless notice in writing is given to the carrier and to the Seller within the period specified in the contract of carriage or within three working days of the date when the Goods were received or would in the ordinary course of events have been received, whichever the earlier
(c) Times or dates quoted by the Seller for delivery are intended as an approximate estimate only. Every endeavour will be made to adhere to such times or date but the Seller does not give any other undertaking in that regard
(d) If for any reason the Buyer fails to accept delivery of the Goods within 8 days of the date of service on the Buyer by the Seller of a written notice stating that the Goods are ready for delivery the Buyer shall remain liable to pay the price for the Goods at the time specified in these Conditions and without prejudice to any other right conferred upon it in that event by these terms or by law. The Seller shall be entitled to store the Goods at the Buyer's risk and the Buyer shall be liable to the Seller for the reasonable cost of doing so
(c) After the expiration of 8 days from the date of service of a notice pursuant to sub-paragraph (d) of this Condition, the buyer shall be responsible for all loss or damage to the Goods howsoever arising (including loss or damage caused by the negligence of the Seller)
4. (a) The Seller shall be released from his obligations hereunder to the extent that the performance of those obligations is delayed, hindered or prevented by any circumstances beyond the Seller’s control including, without prejudices to the generality of the foregoing, strikes, lockouts or other industrial action, or the reasonable apprehension thereof, civil disturbances, war, Queen's enemies, Act of God, fire, explosion, storm, flood, tempest, seizure, arrest or requisition of the Goods or any materials- failure of any of the Seller's usual sources of supply of goods or materials, government regulations, requirements, quotes or licence restrictions, shortage of or delay in obtaining fuel or power.
(b) If there be any shortage of goods from any of the Seller's regular sources of supply and the Seller shall be unable to meet from those sources the demands of all its customers (including parent, subsidiary and associated companies) the Seller may allocate the available supplies among such customers in such manner as it shall in its absolute discretion consider to be fair
(c) If the Seller shall pursuant to sub-clause (a) and/or (b) above tender to the Buyer less than the contractual quantity of Goods or shall tender any Goods late, the Buyer shall accept and pay for the Goods so tendered
(d) If performance of the contract shall be wholly or partially suspended pursuant to sub-paragraph (a) and/or (b) of this Condition for any continuous period exceeding 2 months, the Seller and the buyer may cancel the contract by agreement between them and any deposit paid by the Buyer shall be returned without interest
5. (a) Unless otherwise agreed in writing by the Seller all prices quoted are net ex works and are exclusive of Value Added Tax (V.A.T.) or any similar duties or levies and any charges for carriage.
(b) Unless otherwise agreed by the Seller in writing, the price for the Goods shall be payable by the Buyer within 30 days of the date of the invoice for the Goods but the Seller reserves the right to demand a deposit for the Goods
(c) Unless otherwise agreed by the Seller in writing, an extra charge will be made by the Seller in respect of the packing of the Goods to be supplied
6. (a) NOTHING in these conditions shall exclude or restrict the liability of the seller for death or personal injury resulting from the negligence of the Seller.
(b) Subject to sub-clause (c) hereof the Seller will at its own cost and expense repair and/or replace at its discretion the whole or any part of the Goods which are defective in quality or fail to comply with any specification set out in writing subject however to the following conditions:-
(i) in the event of any matter giving rise to complaint which would be apparent to the Buyer on reasonable inspection the Buyer must give notice thereof to the Company within three working days of the receipt of the Goods by the Buyer.
(ii) in the event of a complaint in respect of a matter not apparent on reasonable inspection the Buyer must give notice thereof to the Company within seven working days of the defect complained of coming to the attention of the Buyer and/or its employees or agents but in any event notice of complaint must be given to the Company by the Buyer within six months of receipt of the Goods by the Buyer
(iii) the Buyer makes no further use of the defective Goods after it discovers or ought reasonably to have discovered they were defective
(iv) in all cases the Seller must be given a reasonable opportunity following notice of complaint of examining the relevant Goods
(v) the Seller is satisfied that the defect in the Goods was due to its defective workmanship or use of defective materials and without prejudice to the foregoing the Seller shall be under no liability for defects due to wear and tear, neglect or use of the Goods for any purpose other than those for which they are designed
(vi) the defective Goods are upon the request of the Seller immediately returned carriage paid to the Seller's premises
(vii) the defective Goods have not been sold, let, hired or otherwise disposed of by the buyer to a second or subsequent user or purchaser.
(viii) the Goods shall remain at the risk of the Buyer at all times
(ix) the defective Goods have not been altered or repaired by any person other than the Seller its employees or agents
(c) Where Goods or any part thereof are not manufactured by the Seller, then the Seller shall in the event of the same being defective by reason of defective workmanship, design or materials, assign to the Buyer if the Buyer so requests, such rights (if any) in respect of such defects as the Seller has against the person, firm or company who supplied such Goods or part to the Seller. Such assignment shall be in full settlement of any claims the Buyer may have against the Seller in respect of or arising as a consequence of such defects
(d) The Seller’s liability is limited to repair or replacement of the Goods and liability for every form of consequential damage or indirect loss is hereby expressly excluded. Save as expressly provided to the contrary in these Conditions every term, condition warranty whatsoever relating to the quality, description or fitness of the Goods implied by law or otherwise howsoever is expressly excluded.
7. (a) In addition to any other right or lien to which the Seller may by law or other terms hereof be entitled the Seller shall be entitled to a general lien on all the goods and property of the Buyer in the Seller's possession whether paid for or not and a right of sale of such goods and property at the Seller s sole discretion for any unpaid money due under the terms of any contract between the Seller or any Associated Company of the Seller and the Buyer or any Associated Company of the Buyer
(b) For the purposes of this clause a company is to be treated as another's 'Associated Company' if one of the two has control of the other (whether directly or indirectly) or both are under the control of the same person or persons (whether directly or indirectly) and for the purposes of this definition the expression 'control' shall have the meaning attributed thereto by Section 302 of the Income and Corporation Taxes Act 1970
8. (a) Time for payment shall be of the essence.
(b) Interest shall be charged by the Seller at 3% above Lloyds T.S B. Bank Plc's base rate and shall accrue from day to day on all sums overdue for payment as well before as after judgment.
(c) The Buyer shall pay the price of the Goods without any deduction whether by way of set-off counterclaim or otherwise howsoever
9. (a) In the event of -
(i)any distress, execution or legal process being levied upon any of the Buyer's assets.
(ii)the Buyer entering into any arrangement or composition with its creditors, committing any act of bankruptcy or (being a corporation) an order being made or an effective resolution being passed for its winding up except for the purposes of amalgamation or reconstruction or a receiver being appointed in respect of the whole or any part of its undertaking or assets.
(iii)the Buyer (whether under this or any other contract between the Buyer or Seller) being overdue with any payment or committing any breach of contract which is incapable of remedy or which if the same be capable of remedy it fails to remedy within 14 days of the Seller's notice to do so the Seller shall be entitled to suspend all or any future deliveries and instalments under this or any other contract, and on written notice to cancel the undelivered portion of this or any contract between the Buyer and Seller
(b) In the event of any such cancellation by the Seller in accordance with sub-paragraph (a) above or any cancellation and/or repudiation of the contract by the Buyer the Seller shall be entitled to retain any deposit paid by the Buyer and to recover as damages from the Buyer (less the value of any deposit paid by the Buyer) the following -(i) the value of any work completed or Goods manufactured at the date of termination (ii)the value of any work begun to be manufactured but not completed at the date of termination including the costs of materials, labour and overheads in connection therewith (iii) a sum representing any further profit which the Seller would have made on the contract but for its termination such profit to be determined by the Seller s Auditors whose decision shall be conclusive and binding on the Buyer
(c) The rights conferred by this Condition shall be without prejudice to any other right enjoyed by the Seller pursuant to these Conditions or by law, including in particular the right to recover the Goods or the proceeds thereof from the Buyer pursuant to Clause 10 hereof
(d) Cancellation by the Buyer will only be accepted at the discretion of the Seller. If the Seller agrees to such cancellation the Buyer shall be liable to the Seller for the payment of cancellation charges in the following schedule together with any charges imposed on the Seller by the Seller's suppliers due to cancellation -
Days notice from Buyer of cancellation prior to Seller’s acknowledgement of dispatch date
Charge as % of quoted price of cancelled goods
10. (a) Property in the Goods shall pass to the Buyer upon whichever is the last of the following events, namely payment in full of the price of the Goods and payment in full of every sum which is due from the Buyer to the Seller whether under this contractor otherwise howsoever
(b) Until the happening of the last such event the Buyer shall keep the Goods as bailee and shall in so far as may be possible store them in such a way that they are identifiable as the property of the Seller and separate from all other goods in the Buyer s possession
(c) At any time before the happening of the last event mentioned in (a) above the Seller may by notice in writing to the Buyer determine the Buyer s right to sell the Goods and the Buyer shall thereupon return the Goods to the Seller and shall cease to be in possession of the Goods with the consent of the Seller and at any time after the giving of such notice the Seller may enter upon any premises where the Goods are or are reasonably believed to be and may remove them
(d) Notwithstanding the foregoing, the Goods are at the entire risk of the Buyer from the time of delivery
(e) Nothing in this Condition shall in any way limit or modify the Buyer's obligation to pay for the Goods in accordance with these Conditions
11.Where more than one item of Goods is included in any order the Seller shall be entitled to make delivery by instalments. In such cases the delivery date shown on the Seller’s acceptance of order shall be deemed to be the estimated delivery date of the first instalment and each remaining instalment will be delivered within reasonable time of the preceding instalment. The contract shall be construed as a separate contract in respect of each instalment. Nevertheless failure to accept delivery of and/or pay for any instalments shall entitle the Seller to treat the whole contract as repudiated or alternatively to store the Goods at the Buyer’s risk and the Buyer shall be liable to the Seller for the reasonable cost of doing so
12. (a) The Buyer shall not use the Goods for the purpose of designing or manufacturing identical goods, without the Seller's prior written consent All patent, registered design, copyright and other industrial property rights in or in connection with the Goods which the Seller may have shall remain the property of the Seller
(b) The Buyer shall indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may become liable as a result of work done in accordance with the Buyer s instructions which involves the infringement of letters patents, trade marks copyright registered design
13. (a) The Buyer warrants that any design that it shall supply to the Seller or request the Seller to comply with or trademark or name that it shall request the Seller to apply to the Goods shall not infringe the rights of third parties
(b) All designs submitted by the Seller (unless otherwise agreed in writing) are and the copyright in them and the right to reproduce any such design remain the Seller s property
14. WHENEVER the Seller is entitled to dispose of or resell the Goods it may do so irrespective of any marks or labels attached to the Goods
15. The Buyer shall indemnify the Seller against all costs claims demands proceedings charges and expenses for which the Seller may become liable in respect of the Goods except to the extent that liability is specifically assumed by the Seller under these Conditions
16. Any failure by the Seller to exercise any rights under these Conditions shall not constitute a waiver or prevent the subsequent exercise of such rights
17. Any notice required to be given or served hereunder shall be addressed in the case of a notice to be given to or served on the Buyer at the address of the Buyer shown on the contract or invoice and in the case of the Seller at the address shown overleaf and may be given or served either:-
(a) by letter by leaving the same or sending the same by first class post in a pre-paid envelope and a notice so given or served shall be deemed to have been given or served (i) on the day it was so left or on the day following that on which it was posted in the case of the Seller or in the case of the Buyer if the address of the Buyer is within Great Britain or (ii) within 7 days of posting otherwise or
(b) by telex cable or facsimile transmission and a notice so given or sent shall be deemed to have been given, or served within 24 hours of transmission
18. This contract shall be governed by English law and the Buyer and the Seller shall submit to the jurisdiction of the English Courts.