Terms & Conditions of Sale
These conditions shall form part of every contract of sale entered into by The Company and any purported variation or exclusion (whether contained in any document of the Buyer or otherwise) shall be of no effect unless accepted in writing by The Company. The Buyer should note that the Company’s Agents, Salesmen or Representatives have no authority to agree or accept any amendments to these Conditions of Sale.
Where the context so admits, these conditions are intended to apply as well to contracts for the supply of services or mixed goods and services, as well as to the supply of goods alone.
(a) “The Company” means Mid-Tech Services Limited, incorporated in 2008 at Companies House, Cardiff and registered under number 06739946 whose Registered Office is situated at Centrum House, 36 Station Road, Egham, Surrey. TW20 9LF. “The Goods” means the goods including any parts or excess materials and/or services including labour and installations to be supplied by the Company in accordance with these conditions.
(b) “The Buyer” means the person, firm, company, organisation or public authority specified in the order.
(c) “The Contract” means the contract for the sale and purchase of the Goods formed in accordance with Clause 2.
(d) “The Conditions” means the standard terms and conditions of sale set out in this document.
2. FORMATION OF CONTRACT
(a) The Company shall sell and the Buyer shall buy the Goods in accordance with any order of the Buyer which is accepted by the Company either by despatching its standard order acknowledgement or, where no such acknowledgement is sent, by supplying the Goods. These Conditions shall govern the Contract to the exclusion of any other terms and conditions to which any such order is made by the Buyer. Each order, which is accepted by the Company entirely at its discretion, shall constitute an individual Contract between the Company and the Buyer.
(b) An order, whether or not based upon a quotation shall not be binding on The Company unless accepted in writing by the Buyer.
(c) Any representations or warranties made or given by anyone on the Company’s behalf prior to its acceptance of an order and not contained in the Company’s written quotation or order acknowledgement are expressly excluded.
(d) Only such Goods as are specified in the Company’s order acknowledgement are included in the scope of the Contract.
(e) The Buyer shall be responsible, by consultation with the Company where appropriate, for ascertaining whether the capacity and performance of the Goods are sufficient and suitable for its purpose.
(f) The Company shall not be obliged to alter the performance or features of the Goods following its acceptance of the Buyer’s order unless, at its absolute discretion, it agrees in writing to do so and subject to the payment by the Buyer of an extra charge.
(g) No variation to these Conditions shall be binding upon the Company unless signed by a Director. The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing and signed by a duly authorised representative of the Company. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
(a) Where the Goods are sold by reference to the Company’s published price list, the price payable for the Goods shall be the ruling price as published in the price list current at the date of delivery of the Goods.
(b) The Company reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Company, any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions. The giving of such notice shall bind both parties to the new price and shall not entitle either party to cancel the Contract.
(c) There shall be added to the price for the Goods any value added tax and any other tax or duty relating to the manufacture, transportation, sale or delivery of the Goods (whether initially charged on or payable by the Company or the Buyer).
(d) Prices are quoted exclusive of trade or quantity discounts which will only be granted with prior written agreement of the Company.
(e) Except as otherwise agreed in writing by a duly authorised representative of the Company, all prices are given by the Company on an ex-works basis, and where the Company agrees to supply the Goods otherwise than at the Company’s premises, the Buyer shall be liable to pay the Company’s charges for packaging, transportation and insurance.
4. TERMS OF PAYMENT
(a) Terms of credit can only be authorised once an appropriate credit rating and suitable trade references are established by the Company and in certain circumstances may differ from the norm.
(b) Except where Goods are supplied on credit, the Company will not despatch the goods to the Buyer until payment in full has been received by the Company in respect of the Goods and any delivery or carriage charges payable by the Buyer.
(c) Where Goods are supplied on credit all invoices for Goods together with all delivery packaging, ex-works delivery or other charges for which the Buyer is liable shall become due on the earlier of:
i. 30 days from date of invoice except where otherwise negotiated.
ii. the day when invoices previously rendered by the Company to the Buyer become overdue for payment.
(d) Where services are provided or installations or Contract work is carried out in accordance with the provisions of Clause 13 all invoices in respect of the carrying out of the services or installation work shall be payable:
i. 30 days from date of the invoice, or
ii. the day when previous invoices rendered by the Company to the Buyer become overdue for payment whichever is the earlier.
(e) Where payment is not made on the due date – whether credit facilities have been allowed or not – and without prejudice to any other rights which the Company may have arising from non-payment – the following rules shall apply:
i. the Company may charge interest on the amount outstanding at the rate of 4% above the Bank base rate for the time being in force, calculated from day to day from delivery to the date of the actual payment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
ii. the Company may treat any or all other agreements between the Company and the Buyer as repudiated without prejudice to any other remedies the Company may have in respect of the non payment by the Buyer.
iii. the Company may refuse to carry out any other work or supply any other goods to the customer until all payments due or deemed due pursuant to this clause, including any interest accrued under paragraph (i) above, have been satisfied in full.
(f) The Buyer shall not be entitled:
i. to withhold payment of any amount payable pursuant to the Contract because of any disputed claim of the Buyer in respect of defective goods or workmanship or any other alleged breach of Contract.
ii. to set off against any amounts payable pursuant to the Contract any monies which are not then presently payable by the Company or for which the Company disputes liability.
(g) Where Goods are supplied by instalment deliveries, the Company shall be entitled to render interim invoices for each instalment. Each interim invoice rendered pursuant to this sub-clause shall be treated as if it were a final invoice and the provisions for payment set out in this clause shall apply as if it were a final invoice.
(h) Payment of all invoices should be made by crossed cheque to the Company’s Head Office or Factoring Company (stated on our invoice) and it should be noted that if necessary the Company’s agent, salesman or representative may collect monies owed, directly, from the Buyer but has no authority to give a receipt for the payment of invoices.
(i) The Company reserves the right to withdraw credit facilities at any time without giving a reason and thereafter all transactions between the Buyer and Company shall go on the basis laid down in sub-clause (a) of this clause 4.
(j) The Company reserves the right to suspend or to refuse to carry out any further work or deliveries or to rescind any existing contracts between the Company and the Buyer for the delivery of goods or provision of services, if the Buyer enters into liquidation, bankruptcy or has a receiver appointed, or if the Company in its absolute discretion considers there to be doubt as to the customer’s financial position or ability to pay for Goods.
(a) The property title to any Goods shall only pass to the Buyer when the Company shall have been paid in full all sums due in the respect of the Goods and all other sums which are or which become due to the Company from the Buyer on any amount. The Buyer shall until the Goods have been paid for, hold the Goods on a fiduciary basis as the bailee of the Company and shall not sell, charge or pledge or otherwise dispose of or use the Goods except in the ordinary course of business until they have been paid for in full.
(b) The Buyer on receipt of the Goods shall until they have been paid for in full retain them in such a way as they are clearly and separately identifiable as the Company’s, and shall if requested deliver the Goods to the Company.
(c) The Customer shall insure the Goods to their full value against all insurable risks with a reputable insurance company, and shall produce to the Company, if demanded, evidence to the satisfaction of the Company that such insurance has been affected, until the title has been passed.
(d) The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where Goods are or may be stored in order to inspect them, or where the Buyer’s right to possession has terminated, to recover them.
(a) The Company will use its reasonable endeavours to supply the Goods on the date or dates specified in the Contract, but such dates are approximate dates only and not to be guaranteed and timing for supply is not of the essence of the Contract. The Company shall not be liable in respect of any claim arising out of or consequent upon a failure to meet such dates and such failure shall not entitle the Buyer to repudiate or cancel the Contract. The Goods may be supplied by the Company in advance of any specified supply date upon giving reasonable notice to the Buyer.
(b) In the event of supply being delayed for a period of six months or more from the said date or dates referred to in sub-clause (c) ii below, by reason of war, invasion, hostilities (whether or not war is declared) civil war or unrest rebellion, insurrection or military or usurped power, or by and acts of foreign governments, or by reason of stature, rules or requests issued by any government department or other duly constituted authority, or strikes, lockouts, breakdown of plant, or any other cause (whether or not of like nature) beyond the Company’s control either party may terminate the Contract by notice in writing to the other.
(c) Supply shall be deemed to take place:
i. upon the physical handling over by the Company of the Goods to the Buyer or his designated carrier or agent.
ii. upon consignment of the Goods by the Company to the Post Office at the request of the Buyer for delivery in the normal course of post.
iii. where no goods, products or equipment form part of the Contract, upon the commencement of repair, maintenance and / or installation work by the Company, or
iv. upon despatch of the Goods to storage facilities either at the request of the Buyer or due to his failure or refusal to accept delivery.
(d) Notwithstanding the provisions of Clause 5, the risk of the Goods shall pass to the Buyer on supply and the Company shall incur no liability whatsoever for loss of or damage to the Goods in transit or storage or for any loss or damage whether consequential or otherwise suffered by the Buyer as a result of loss of or damage to the Goods in transit or storage, unless the same shall be caused by the negligence of the Company. In any event the Company’s liability shall be limited to the value of the Goods.
(e) Non delivery of the Goods shall be notified to the Company within seven days of the date of delivery indicated by the Company.
(f) The Company will pass on any parking fines incurred during delivery to the Buyer, if the Buyer failed to inform the Company of parking restrictions prior to delivery.
(g) The Buyer undertakes to examine the Goods immediately upon supply. The Company and (where relevant) the carriers must be notified within three days of delivery of any damage or shortage, and the Buyer must retain for inspection any damaged Goods and packaging.
(h) The Company shall incur no liability whatsoever in the event of failure by the Buyer to notify the Company of nonsupply, damage or shortage as above.
(i) If the order is for instalments, the cancellation or rejection of any instalment shall not affect the remainder of the Contract, each instalment being deemed to be a separate contract, except in the case of cancellation by the Company for the failure on the Buyer’s part to pay for the Goods supplied as provided in Clause 4.
(a) If for any reason the Buyer fails or refuses to accept supply of the Goods or any part of them at the time when the Goods are due and ready for supply, the Company may store the Goods and take reasonable steps to safeguard and preserve them until their actual supply.
(b) Such storage and insurance of the goods shall be at the Buyer’s risk and expense.
(c) If the Buyer shall fail to take supply of the Goods within fourteen days of notification that they are ready for supply, the Company shall have the right to sell, dispose of or otherwise deal with the Goods, and the Buyer shall be liable to the Company for all loss, including loss of profit or damage which the Company shall suffer in consequence of the Buyer’s failure to take supply of the Goods or of such sale. The Company shall account to the Buyer for any excess over any such liability.
(a) If the Buyer accepts any of the Goods supplied, the Buyer shall be deemed to have accepted them all, and shall not be entitled to reject any other Goods which constitute part of that same supply.
(b) The Buyer shall not be entitled to reject the Goods unless:
(i) within 14 days after delivery or such longer period as may be stated in the contract, the Buyer shall have given notice, in writing, to the Company that the Goods are defective.
(ii) the Buyer shall have provided the Company with such access to the Goods as it requires and the Company shall have failed to remedy the defect within 14 days after receipt of the Buyer’s notice or such period as may be stated in the Contract.
(iii) the defect materially affects the performance of the Goods, and
(iv) the defect is covered by the Company’s guarantee.
9. DESIGN & SPECIFICATION
(a) Where drawings are supplied by the Buyer to quote against, the subsequent quotes submitted by the Company to the Buyer are on the basis of “as supplied” drawings, and the Company shall not be liable for any loss, damage or expense arising out of a defect or inaccuracy in the drawing supplied. Furthermore the Buyer shall reimburse the Company for any additional work required to be done by the Company to rectify such defect or inaccuracy on the basis described in the foregoing.
(b) Drawings, weights, dimensions, specifications and other descriptive information supplied by the Buyer, whether written or verbal, are warranted by the Buyer to be in all respects accurate, complete and suitable for the Buyer’s requirements.
(c) Drawings, weights, dimensions, shipping specifications and other descriptive matters produced by the Company are approximate and are not intended to be binding upon the Company, unless specified otherwise in the Contract. The Company reserves the right to alter the specification of any goods without prior reference
10. TESTS AND PERFORMANCE
(a) If the Buyer requests that any Goods be tested, the Buyer shall be liable to pay the Company the costs of the tests.
(b) If the Buyer has requested that it be present and/or represented at such tests, the Company shall give the Buyer seven days notice of the time and place of the tests. Should the Buyer fail to attend, the tests will proceed in the absence of the Buyer and shall be deemed to have been performed in the Buyer’s presence.
(c) If the Goods fail to fulfil any agreed estimated performance figures, the Buyer shall permit the Company reasonable time to work upon the Goods in order to improve the performance figures to a satisfactory level.
11. SAMPLES AND RETURNS
(a) Any samples supplied by the Company to the Buyer must be returned carriage paid, in substantially the same condition as they had been when supplied, within one calendar month of supply, or the Buyer will be liable to pay the Company the full price for them.
(b) The Company reserves the right:
(i) to refuse to accept any Goods which are not in their original condition.
(ii) to make a 20% restocking charge for accepting Goods returned for credit to cover administration and other costs involved, unless alternative arrangements have been previously agreed by the Company in writing.
(c) Return of Goods sent in accordance with the Buyer’s orders cannot be accepted unless the Company has agreed in writing to accept their return. It is a requirement that any Goods to be returned are insured and carefully packed by the Buyer.
12. BUYER’S MATERIALS AND PROPERTY
(a) The Company undertakes work involving the use of the Buyer’s own materials or property on the express understanding that, unless otherwise agreed in writing by a duly authorised representative of the Company, and while the Company will endeavour to avoid such, it shall not be liable for any damage to such materials, property, or plaster work, brickwork, buildings etc caused by the work howsoever arising, even if resulting from any fault of the Company.
(b) The Buyer is responsible for insuring its materials or property against all risks while in the possession, power or control of the Company and the Company shall not be liable for loss or damage to such during such times.
(c) Any licences, permission or approvals that may need to be granted to carry out any installation works shall be the sole responsibility of the Buyer.
13. WARRANTY & LIABILITY
Any warranties are subject to the following conditions:
1. Any installed equipment must be maintained for the duration of the warranty period by the Company.
2. A maintenance contract must be in place within three months from the date of completion of the installation.
3. Any warranties are subject to all Company invoices/payment applications being paid in full on the due dates.
4. The Company will warrant all equipment and installations for a period of twelve months.
5. Where the manufacturers offer three/five year warranties for parts and labour allowances, the first year of the manufacturer’s warranty, will run in conjunction with the Company’s warranty.
6. In the subsequent years all parts (subject to the manufacturer’s terms and conditions and confirmation of defect) will be F.O.C.
7. Any labour allowances provided by the manufacturer for fitment of said parts will be deducted from the labour element of invoices from the Company.
14. INTELLECTUAL PROPERTY
The Buyer shall indemnify the Company against all costs (including the cost of defending any legal proceedings), accounts and damages in respect of any infringement of any copyright, design right, trade mark, patent or any other industrial or intellectual property rights resulting from compliance by the Company with the Buyer’s instructions, whether express or implied.
15. DEFAULT OR INSOLVENCY OF BUYER
(a) If the Buyer defaults in any way in its obligations to the Company under the Contract, or suffers any distress or execution upon its property or assets or makes or offers to make any arrangements or composition with its creditors or commits an act of bankruptcy or insolvency or has a receiver appointed over all or parts of its assets or a resolution is passed or petition filed for winding up, then the Company shall have the right (without prejudice to other remedies) to cancel any uncompleted orders or to withhold or suspend delivery.
(b) In the event of an order being cancelled by the Company in the above circumstances or being cancelled by the Buyer, the Buyer shall indemnify the Company against all its costs (including loss of profits, labour, materials and overheads) and all expenses and damages incurred by the Company in connection with the Contract and its cancellation (the Company giving credit for the value of the materials sold or utilised for other purposes).
Any notice given under or pursuant to the Contract may be sent by hand or post or by registered post or by the recorded delivery service or transmitted by facsimile or other means of telecommunication resulting in the receipt of a written communication in permanent form, and, if so sent or transmitted to the address of the party shown on the face hereof, or to such other address as the party may by notice to the other have substituted thereof, shall be deemed effectively given on the day where in ordinary course of the means of transmission it would be first received by the addressee in normal business hours.
(a) The invalidity, illegality or unenforceability for any reason of any part of these terms and conditions shall not prejudice or affect the validity, legality or enforceability of the remainder.
(b) No failure on the part of the Company to exercise any rights under the Contract at any time shall constitute a waiver of them, nor shall any single or partial exercise of any right under the Contract preclude any other or further exercise of any other right. The election of a particular remedy in the event of default shall not be exclusive of any other remedy and all rights and remedies shall be cumulative and not exhaustive of any other rights or remedies provided by the law.
(c) The Buyer shall not without the prior written consent of the Company assign transfer or sub-let any benefit or the burden of the Contract.
(d) The Company may assign transfer or sub-contract the Contract or any part of it to any other person or company. Subject to the above, the parties to the Contract do not intend that any terms of the Contract will be enforceable by way of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
(e) The headings used in these terms and conditions are for the purpose of convenience and identification only and are not to be taken as limiting in any way the scope or possible construction of any clause.
(f) Any dispute between the parties hereto shall be determined in accordance with the provisions of the Arbitration Act 1996 or any statutory modification or re-enactment thereof by a single arbitrator to be agreed upon between the parties or failing agreement to be appointed by the President for the time being of the Institution of Mechanical Engineers.
(g) The Contract shall be governed by the laws of England and the parties agree to submit to the exclusive jurisdiction of the English courts.