1.1 In these Conditions:
‘Company’ means MGA Controls Ltd.
‘Goods’ means the Goods (including any instalment of the Goods or any parts for them) which the Company is to supply in accordance with these Conditions and (where the context requires shall include associated services);
‘Contract’ means the contract for the purchase and sale of the goods.
1.2The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.BASIS OF CONTRACT
2.1Quotations are offered and orders are accepted subject to the following Conditions. Conditions of purchase contained on the customer’s order forms and any other conditions which the customer may seek to impose which are at variance with or additional to the Conditions are not binding upon us unless specifically accepted in writing notwithstanding that these may be contained in a later document and/or purport to supersede our Conditions.
2.2 Unless otherwise stated quotations and tenders are open for acceptance for 30 days from their date and in any case are subject to confirmation by us at the time of acceptance of order.
2.3 The employees or agents of the Company are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Whilst the Company takes every precaution in the preparation of its catalogues, technical circulars, price lists and its other general literature, these documents are for the Customer’s general guidance only and the particulars contained therein shall not constitute representations by the Company and the Company shall not be bound thereby.
2.5 No variation to these Conditions shall be binding unless specifically agreed to in writing by the Company.
2.6 No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in Writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss as a result of cancellation.
3.1 All prices quoted exclude VAT which will be charged at the current rate.
3.2 In the event of any alteration required by the Customer in design specification or quantities, the Company shall be entitled to make an adjustment of the contract price corresponding to such alteration.
3.3The cost of carriage and packing will be charged extra on all orders to the Customer unless otherwise agreed in writing.
3.4The Company reserves the right to impose a minimum order charge.
4.1 Time is not of essence. Although given in good faith times quoted for the delivery of Goods are intended as estimates only and are not therefore to be treated as the essence of the contract. Accordingly the Company shall not be liable in any way for any direct or indirect loss damage or expense (including loss of profits and liability to third parties) which may be suffered by the Customer in consequence of late despatch or delivery from whatever cause.
4.2 Force majeure. We shall not be liable for failure to deliver Goods or to do so promptly if such failure is caused by strikes riots lock-outs or other labour trouble war fire accident mechanical failure non-availability or delay in delivery to us of supplies of goods or parts or materials government action legislation or regulation of any kind Act of God or any circumstances whatsoever outside our reasonable control and such delay or failure to deliver such Goods shall not affect the obligations of the Customer to pay for goods already delivered.
4.3 Instalments. The Company reserves the right to deliver the Goods in instalments and each delivery shall constitute a separate contract. Failure by the Company to deliver any one or more instalment in accordance with these Conditions or any claim by the Customer in respect of any one or more instalment shall not enable the Customer to treat the Contract as a whole as repudiated.
4.4 Storage. If the Customer does not supply adequate delivery instructions within 14 days after notification that the Goods are ready for dispatch we shall be entitled to arrange storage either at our own works or elsewhere and all reasonable charges for storage for storage, insurance or demurrage shall be payable by the Customer. PROVIDED THAT nothing in this condition shall operate to relieve the Customer form making payment for the Goods as provided in Clause 8.6.
4.5Where the Customer opts to arrange collection, the Shipping and Invoice Date shall be the date of notification of availability.
4.6The delivery quoted is given in good faith but is not guaranteed and the Company is not responsible for delays due to strikes, accidents, late delivery of materials or other unforeseen circumstances.
4.7Date of delivery shall in every case be dependent upon receipt of final instructions or approvals being obtained from the Customer.
4.8The Company will endeavour to comply with reasonable requests for postponement of delivery but shall be under no obligation to do so. Where postponement is agreed by the Company in writing, the Customer shall pay all costs and expenses including a reasonable charge for storage occasioned thereby.
4.9Any offer of Goods from stock is subject to the goods remaining unsold at the time of receipt of a written or a verbal order.
4.10The Customer shall be responsible for obtaining any import licenses and complying with all regulations governing the admission into, and use of the goods in the country of destination.
4.11Where goods are delivered from a supplier of the Company directly to the premises or site of the Customer or to any location designated by the Customer then the Company shall not be liable in any way for any direct or indirect loss damage or expense (including loss of profits and liability to third parties) which may be suffered by the Customer in consequence of defective or damaged goods.
5..Risk: Insurance Title
5.1 Risk shall pass to the Customer when the goods or the relevant part thereof leave the premises of the Company for delivery to the Customer notwithstanding that the Company may arrange for delivery.
5.2 Where the Customer collects the goods risk shall pass on collection.
5.3 Notwithstanding delivery and the passing of risk in the Goods, the property in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other goods sold by the Company to the Customer for which payment is then due.
5.4 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as fiduciary agent of the Company, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the property of the Company and shall arrange for Purchaser’s interest to be noted on all relevant insurance policies. Until that time the Customer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall hold the Company’s part of the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds on trust for the Company and shall keep all such proceeds separate from any moneys or property of the Customer and third parties in a separate bank account clearly denoted as an account containing monies deposited for the benefit of the Company by the Customer acting in a fiduciary capacity.
5.5 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
5.6 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Customer does so all moneys owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become
due and payable.
6. Export Terms
6.1 In these Conditions ‘Incoterms’ means the
International Rules for the interpretation of trade terms of the International Chambers of Commerce as in force at the date when the Contract is made.
6.2 Where the Goods are supplied for export from the United Kingdom or elsewhere:-
6.2.1 Incoterms shall apply except to the extent that
Incoterms are inconsistent with any other provision of these Conditions or the Contract Schedule which shall prevail.
6.2.2 Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer in favour of the Company and confirmed by a bank in the United Kingdom acceptable to the Company or, if the Company has agreed in writing to do so by acceptance by the Customer and delivery to the Company of a bill of exchange drawn on the Customer payable at
sight to the order of the Company at such branch of a nominated U.K. Bank in England as may be specified in the bill of exchange.
7.1 Orders cannot be returned except with the written consent of the Company. Under such circumstances, the following conditions need to be met
7.2 All Goods must be unused and in its original packaging.
7.3 A time period of 30 days from the date of despatch has not expired.
7.4 The Company reserves the right to impose a restocking charge.
8.Terms of payment
8.1 Credit terms are subject to acceptance by the company’s credit protection agents.
8.2 All accounts shall be net monthly and payable by the customer not later than the 30th day of the month following the date of invoice.
8.3 No disputes arising under the contract nor delays beyond the control of the Company shall interfere with the prompt payment by the Customer.
8.4 In the event of default, the Customer will allow the Company or his agent to enter the premises where the goods are kept and remove the same. The Customer will be responsible to the Company for all costs incurred in reclaiming the goods.
8.5 The Company may refuse to carry out any work or supply any other goods until all overdue monies have been paid.
8.6 In the event that the Customer fails to make payment for the Goods on the due date or otherwise commits a breach of these Conditions the Company may have in its absolute discretion and without prejudice to any other rights which the Company may have:
8.6.1 To suspend all future deliveries to the Customer under the Contract without liability upon our part.
8.6.2 To require payment in advance for any future deliveries and
8.6.3 To require payment of interest on the amount due at compound annual rate of 4% per annum above the Bank of England’s base rate for the time being prevailing, from the date when payment for the Goods became due to the date of actual payment.
8.7 The Company shall have the same rights to those referred to above in condition 8.6 if the Customer becomes insolvent or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986.
8.8 The Customer shall not be entitled to withhold payment of any sums after they become due by reason of any right of set-off counterclaim which the Customer may have or allege to have or for any other reason whatsoever.
9.Shortages and Defects Apparent on Inspection
9.1 Any claim for shortages or defects apparent on inspection will only be considered if: -
9.1.1 The Customer inspects the goods within 3 days of delivery
9.1.2 Any complaint must be made to the Company in writing prior to the expiry of seven days from the delivery.
9.1.3 The Company is given the opportunity to inspect the goods.
9.2 If a complaint is not made to the Company herein provided then the goods shall be deemed to be in all respects in accordance with the contract and the Customer shall be bound to pay for the same accordingly.
9.3 The Company shall be under no liability in respect of any defect arising from any drawing, design or specification supplied by the Customer;
9.4 The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions failure to follow our instructions (whether oral or in writing), misuse or alteration or repair of the Goods without our approval;
9.5 The Company shall be under no liability under any warranty, condition or guarantee if the total price for the Goods has not been paid by the due date for payment;
10.1 Save as provided by Condition 7 hereof the Company agrees to replace or repair at it’s option goods or parts of goods supplied by the Company and proved to the Company’s satisfaction to be faulty (Excepting fair wear and tear or damage due to misuse or faulty operation) provided that such fault be notified within the guarantee period from the Company.
11.1 The Customer agrees that apart from the express terms and conditions contained herein or in the quotation or in any document expressly stipulated therein to form part of the contract and to be outside the provisions of this clause no statement or representation has been made by the Company relating to the goods supplied, or if any such statement or representation has been made, the Customer warrants that he understood it to be a statement of opinion only, and did not rely on it.
11.2 No liability is accepted for any direct or indirect costs, damages or expenses relating to damage to property or injury or loss to any person, firm or company or for any loss of profits or production arising out of or occasioned by any defect in or failure of goods or materials or parts thereof supplied by the Company.
11.3 The Company’s liability, whether in respect of one claim or in the aggregate, arising out of any contract shall not exceed the purchase price payable under the contract.
12. Confidential Information
12.1 All drawings, documents, Invoices and other information supplied by the Company is supplied on the express understanding that the Customer will not without the written consent of the Company :-
12.1.1 Give away, loan, exhibit or sell any such drawings or extracts therefrom or copies thereof.
12.1.2 Use them in any way except in connection with the components for which they are issued.
13.1 The Company accepts no responsibility for the accuracy of information or drawings supplied by the Customer.
13.2 The Customer shall indemnify the Company from and against all actions, claims, costs and proceedings which arise due to the manufacture of components to the drawings and specifications of the Customer where such drawings and specifications shall be at fault or where it is alleged that they may involve an infringement of a Patent Registered design Copyright or Design Copyright or other exclusive right.
14.1 Illustrations, weights, measures specifications and performance schedules set out in the sales literature of the Company are statements of opinion and are provided for information only and form no part of the contract.
15.1 Any certification required by the Customer must be specified on the official order and may be subject to additional charges. The Company reserves the right to charge for the supply of any retrospective certificates.
16.1 The Company shall be under no liability for any delay, loss or damage caused wholly or in part by Act Of God, government restriction condition or control or by reason of any act done or not done pursuant to a trade dispute whether such dispute involves the Company’s servants or not or by reason of any other act, matter or thing beyond the reasonable control of the Company.
17.1 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
17.2 The Contract shall be governed by the laws of England and any dispute arising under or in connection with these Conditions or the sale of the Goods shall be subject to the jurisdiction of the English courts.
17.3 Where Goods are supplied by the Company on a ‘Consignment’ or ‘Call off’ basis the Customer undertakes to take receipt of all the goods specified within the ‘consignment or ‘call off’ order no later than the ‘latest date of shipment’ as defined at time of purchase.