CONDITIONS OF SALE
(a) These Conditions apply to all contracts made between McKenzie-Martin Limited (“MM”) and the Customer. Any stipulation or condition inconsistent with these Conditions expressed in writing and signed on behalf of MM or in MM’s quotation, tender, acknowledgement of order or specification shall prevail and these Conditions shall be read and construed accordingly.
(b) If in any contract MM expressly agrees in writing to be bound by the General Conditions of any organisation or body these Conditions shall apply insofar as not inconsistent with such General Conditions.
(c) MM reserves the right to withdraw or to revise any quotation or tender at any time prior to acceptance reaching MM and in any event a quotation or tender shall be deemed to be withdrawn if not accepted within 30 days after its date of issue.
(d) MM has drawn up these Conditions in the light of the Unfair Contract Terms Act 1977 (“the Act”), and considers them to be fair and reasonable and MM’s prices are based on contracts made on these Conditions. If the Customer considers these terms to be unreasonable, he must inform MM in writing before any contract is made, otherwise he will be deemed to have accepted that MM’s Conditions are fair and reasonable.
(a) All pictorial representations contained in or accompanying any quotation or tender or acknowledgement of order or contained in MM’s catalogues, price lists or advertisements are approximate representations only and are not intended to and shall not form part of the contract.
(b) All pictorial representations (other than those contained in MM’s catalogues, price lists or advertisements) and specifications in any quotation or tender shall remain MM’s property and shall be returned to MM upon demand and shall not be copied (the copyright therein being vested in MM) or divulged to any third party or used against MM’s interests.
The price quoted herein:
(a) is based on costs of materials, labour, transport and other items including overheads in force at the date of quotation or tender and shall be subject to increase by the amount of any increase in any such costs that take place between the date of quotation or tender and the date when MM incurs such costs in pursuance of the contract. All such cost increases shall additionally be subject to a profit margin of 15%.
(b) shall be subject to increase
(i) for additional work which may be necessary to comply with any imposition or change of statutory obligation or any alteration in the material specification issued by any Government Department which may occur between the date of quotation or tender and completion;
(ii) by the amount of any increased expense which may be incurred by MM by reason of the suspension of work under the contract due either to the instructions or lack of instructions of the Customer or to any other cause whatsoever beyond MM’S reasonable control (whether of the some dosses as those hereinbefore specified or not).
4. RECEIPT AND STORAGE OF MATERIALS
Unless the contrary is expressly agreed, the price does not include and liability is not accepted for the cost of receiving and unloading and safe storage of materials.
5. TIME AND DELIVERY
(a) The time given for delivery or for completion of any work shall be reckoned from the date on which MM posts acknowledgement of the Customer’s order or from the date upon which it receives all the information drawings and/or written instructions or approvals necessary to enable work under the contract to proceed without interruption, whichever date shall be the later.
(b) MM shall use its best endeavours to deliver goods or complete any work within any stated time or date, but no undertaking so to deliver or complete is intended to or shall form port of the contract save in the circumstances set out below.
(c) An undertaking to deliver or complete the contract, or part thereof, or otherwise comply with any obligations by a specific date shall only become a term of any contract if in writing and signed by a director of MM.
Notwithstanding such undertaking and in any event MM shall not be liable for damages for, or for any direct or consequential loss suffered by the Customer as a result of, any breach of such term occasioned by war, riot, rebellion, revolution, strike, lock-out or other industrial action, accident, defective or delayed materials, damage to or loss of materials or goods in transit or inclement weather, or by any other cause whatsoever beyond MM’s reasonable control (whether of the same classes as those specified above or not) and MM shall in such case be permitted such extension of time for delivery or completion of work under the contract as shall be reasonable in all the circumstances of the case.
(d) If MM is to receive and does not receive, delivery instructions, the Customer having been notified that the goods are ready for dispatch, the Customer shall be liable to reimburse MM for alt reasonable charges incurred by it for handling and storage until such time as delivery instructions are received. Such storage shall be at the Customer’s risk and shall not affect any obligation for payment.
(e) If delivery is to be made by an independent carrier for carriage to the place of delivery, delivery to such carrier shall be deemed to be delivery of the goods and the performance of MM’s duties hereunder.
6. TERMS OF PAYMENT
Unless otherwise stated:
(a) All accounts are due and payable within 30 days after date of invoice time for payment being of the essence of the contract.
(b) MM may charge interest on overdue accounts at the higher of 2% per annum above the base lending rate for the time being of MM’s bank, or at 5% per annum.
(c) If the Customer defaults in paying any sum due under any contract as and when it becomes due MM shall (without prejudice to any other rights) have the right either to suspend all further deliveries to the Customer or suspend the carrying out of any work under any contract until the default has been made good or to cancel the contract. In either case MM shall give not less than 24 hours notice in writing of its intention to the Customer.
(d) All sums due under any contract are payable by the Customer to MM without deduction. Payment shall not be subject to any right of set-off (whether at common law or in equity) of the Customer nor shall any cross-claim which the Customer may have against MM entitle the Customer to withhold any payment or any part thereof which is due to MM.
Unless the contrary is expressly agreed no credit will be allowed in respect of returnable packing cases or crates if these are not returned in serviceable condition, carriage paid to MM’s works within three calendar months from the date of invoice.
8. PASSING OF PROPERTY AND RISK
The risk in all goods (including materials) supplied under any contract shall pass to the Customer on delivery but the property therein shall remain with MM until full payment of all sums payable under the contract has been received by MM, and until the time of such receipt the Customer shall be a bailee of the goods for MM, and accordingly, until such time as aforesaid:
(a) the Customer shall hold the goods in a fiduciary capacity on behalf of MM and shall not charge or otherwise encumber the goods and shall insure them for their full value;
(b) where there is a possibility of confusion of MM’s goods with other goods the Customer shall store MM’s goods separately from such other goods or in some other effective manner render MM’s goods at all times capable of separate identification;
(c) the Customer may re-sell the goods on MM’s behalf in the ordinary course of the Customer’s business and shall keep the proceeds of any such re-sale in an account separate from all other moneys save the proceeds of other such re-sales of MM’s goods;
(d) the Customer will hold on trust for MM, the proceeds of any insurance claims made by the Customer in respect of loss or damage to the goods until such times as the goods have been paid for fully as aforesaid;
(e) the Customer shall not install or erect the goods in or upon or otherwise attach them or cause them to be attached to a premises in such a way as to prejudice MM’s title to the goods, and MM shall be entitled if any of the events specified in Condition 13 hereof shall occur and/or if any sum owed by the Customer to MM under the contract is not paid on its due date for payment, and the customer hereby grants permission to MM to enter any premises of the Customer for the purpose of exercising MM’s rights as bailor to resume possession of and remove the goods and, where the goods become attached to such a premises, to detach the goods from the premises causing no more damage to the premises than is necessary for the aforesaid purpose.
9. QUALITY AND FITNESS
Any condition, warranty or statement as to the quality of any goods or materials supplied or their fitness for any purpose, whether express or implied by statute, custom or otherwise, is hereby excluded unless expressed in writing signed on behalf of MM. Where the Act, applies to any contract, this clause shall form a term of that contract only insofar as such term satisfies the requirement of reasonableness as provided by the Act.
10. DEFECTIVE GOODS OR MATERIALS
MM shall not be liable for:
(a) Any defects in the quality or state of the goods or materials supplied which would be apparent upon reasonable examination, unless the Customer shall have given to MM within 14 days of delivery of such goods or materials a notice in writing specifying the defects complained of and shall thereafter allow MM reasonable and proper facilities for inspection of the goods or materials in question in their alleged defective state and before they have been used.
(b) Any defects in the quality or state of the goods or materials supplied which would not be apparent upon reasonable examination, unless such defects shall have been discovered within a reasonable time not exceeding in any event 12 months and the Customer shall have given to MM forthwith upon such discovery a notice in writing specifying the defects complained of and shall thereafter allow MM reasonable and proper facilities for inspection of the goods or materials in question in their alleged defective state and (unless they were used before such discovery was made) before they have been used.
(c) When complaints arise due to alleged defects in a product, which necessitates a site visit and inspection to ascertain the cause, and if the said inspection reveals no defect in the product but is due to defects of installation or other causes beyond the control of MM, MM reserve the right to charge for costs incurred a current rates.
(d) Where products hove been manufactured to suit dimensions supplied by the customer, any subsequent modifications, occasioned as a result of variations of such dimensions, will be chargeable.
11. LIMITATION OF LIABILITY
(a) In case of any failure on MM’s part to perform any of its obligations to the Customer arising out of the contract MM’s liability shall not in any event exceed the amount payable by the Customer to MM under the contract.
(b) MM shall not be liable for any death or personal injury howsoever the same shall have been caused save insofar as such death or personal injury shall have resulted from the negligence (as defined by the Act) of MM, its servants and/or agents.
(c) MM shall not be liable in respect of any loss of profit or damage to property, or for any expenditure incurred or any consequential or special loss or damage (including loss of profits) sustained by the Customer by reason of any negligence or breach of contract by MM or howsoever arising.
(d) Where the Act applies to any contract, paragraph (c) hereof shall form a term of the contract only insofar as such term satisfies the requirement of reasonableness as provided by the Act.
(e) Provided that MM shall not be liable under sub-paragraph (b) and subject to sub-paragraphs (c) and (d), the Customer shall indemnify, keep indemnified and save harmless MM against all claims for death or personal injury, loss or damage caused to any person or property in connection with the contract.
MM reserves the right at any time to require satisfactory references as to the Customer’s financial status. Should any reference prove unacceptable to MM, it reserves the right to cancel any contract or at its option suspend performance in whole or in part until satisfactory references or security for the price have been given.
If the Customer being an individual or where the Customer is a firm any partner in it shall at any time become bankrupt or have a receiving order or administration order made against him or shall enter into moratorium or any composition or deed of arrangement with or for the benefit of his creditors, or if the Customer being a company threatens to cease or ceases to carry on business or shall pass a resolution or a Court shall make an order that the Customer be wound up (not being a members’ voluntary winding-up for the purpose of reconstruction or amalgamation) or if a receiver or manager on behalf of a creditor shall be appointed or if circumstances shall arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order, or if the Customer becomes insolvent then MM shall have the option without prejudice to any other claims or rights which it might have against the Customer to cancel or suspend any subsisting contract.
14. CONTRACTS FOR SERVICES
The Customer undertakes to provide or to procure the provision free of charge of:-
(a) Proper and safe storage and protection of all goods and all plant and equipment and materials on site.
(b) Free and safe access to the site and to the point at which the work is to be executed.
(c) All facilities and services necessary to enable all work to be done to be carried out safely and expeditiously.
(d) If such work includes installation of any goods all builders work, foundations, cutting away and making good required and the ready availability of all plant and equipment so as to permit such goods to be tested forthwith on completion of such work,
AND the Customer shall pay to MM the amount of any expenses incurred by MM by reason of any breach by the Customer of any of its undertakings in this Condition 14 but without prejudice to MM’s rights to recover further damages therefor and a certificate of MM’s Auditors certifying such amount shall be conclusive and binding on MM and the Customer.
15. CANCELLATION OR SUSPENSION
Where under Clause 6,12,13 or 16 hereof MM is entitled to suspend the carrying out of or cancel a contract, upon MM giving the Customer notice of such suspension or cancellation the contract shall (as the case may be) be suspended or determine and be of no effect save that the Customer shall forthwith pay to MM the price of all goods delivered, work done or services rendered pursuant to the contract for which the Customer has not made payment together with any other costs due or which may be incurred by MM as a result of such suspension or cancellation.
16. ALTERATION IN LAW
In the event of any alteration in the law of England or in the law of any country in which this contract is to be wholly or partly performed:
(a) If such alteration causes an increase in the cost to MM of performing the contract, MM shall be entitled to elect to affirm or cancel the contract;
(b) If such alteration renders the contract and/or performance thereof unlawful, the contract shall be deemed to be cancelled as from the time at which the alteration comes into force.
(a) These Conditions shall be governed and construed in accordance with the low of England and the Customer hereby agrees to submit to the jurisdiction of the English Courts.
CONDITIONS OF SALE