Marnic Technology Ltd – Trading Terms and Conditions
1.Interpretation
1.1 In these Conditions:“Buyer ” means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;“Goods ” means the goods ((including any instalment of the goods or any parts of them) which the Seller is to supply in accordance with these Conditions;“Seller ” means Marnic Technology Ltd (Company Number 2737049) P O Box 279, Cheadle, Cheshire, SK8 7DE
“Conditions ” means the standard terms and conditions of sale set out in this document;;
“Contract ” means the contract for the purchase and sale of the Goods; “Tooling ” means any equipment used to manufacture the Goods.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 Any variation to these Conditions must be agreed in writing between the Buyer and the Seller.
2.3 Any advice or recommendation relating to the Goods given by any representative of the Seller will not be binding on the Seller unless confirmed by the Seller in writing. This does not exclude liability for fraudulent misrepresentation.
2.4 Any typographical or other error or omission in any sales literature, quotation, invoice or other document issued by the Seller shall be subject to correction without any liability on its part.
3.Orders and specifications
3.1 No order shall be deemed to be accepted by the Seller unless and until confirmed in writing.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification)submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 If the Goods or, under clause 7,any Tooling are to be manufactured or any process is to be applied to the Goods or Tooling by the Seller in accordance with a design or specification submitted by the Buyer,the Buyer shall indemnify the Seller against all losses and damages suffered by the Seller as a result of infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Seller ’s use of the Buyer ’s design or specification.
3.4 The Seller reserves ownership of all intellectual property rights (including copyright and trademarks)in any designs, documents, process or products created by the Seller in relation to the Goods and the Tooling.
3.5 The Seller reserves the right to make any changes in the specification of the Goods to conform with any applicable statutory or European Union safety or other requirements or,where the Goods are to be supplied to the Seller ’s specification, which do not materially affect their quality or performance.
3.6 No Contract may be cancelled by the Buyer except with the written agreement of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit),costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4.Samples
If the Seller supplies samples to the Buyer then the relevant Goods supplied by the Seller will be based upon such samples as regards colour and size although colour shall be subject to reasonable variation without liability on the part of the Seller. Any variation subsequently required by the Buyer shall be the subject of negotiation between the parties.
5.Price of the goods
5.1 The price of the Goods shall be the Seller ’s quoted price. Subject to 5.2 below, all prices quoted are valid for the stipulated quantity (and no other) and for 30 days only or until earlier withdrawal by the Seller or acceptance by the Buyer. Subject to clause 5.2,after such period of 30 days, the Price may be altered by the Seller without giving notice to the Buyer.
5.2 The Seller 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 Seller which is due to any factor beyond the control of the Seller, 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 Seller adequate information or instructions.
5.3 The price is exclusive of any applicable value added tax, for which the Buyer shall be additionally liable.
6.Terms of payment
6.1 The Seller shall be entitled to require payment of the price of the Goods with the Buyer ’s order.
6.2 The Seller shall be entitled to:-
6.2.1 offer and withdraw credit accounts at any time with demand for payment;
6.2.2 request references and make credit reference searches in relation to prospective and current Buyers.
6.3 Subject to clause 6.1:
6.3.1 the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Buyer or, where clause 8.3.3 applies, a third party wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has tendered delivery of the Goods;
6.3.2 the Buyer shall pay the price of the Goods (without deduction or set off)by the end of the calendar month following the month of the Seller ’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer.
6.4 The time of payment of the price shall be of the essence of the Contract.
6.5 If the Buyer fails to make any payment of this Contract or any other contract between the Buyer and the Seller on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to (i)cancel this Contract or any other contract between the Buyer and the Seller;(ii)suspend any further deliveries to the Buyer under this Contract or any other contract; and/or (iii)charge the Buyer interest (both before and after any judgment)on the amount unpaid, at the rate of 3 per cent per annum above the Bank of England base rate from time to time, until payment in full is made.
6.7 Goods supplied by the Seller shall remain the property of the Seller until full payment by the Buyer has been made.
7.Tooling
7.1 The property in any Tooling used to manufacture the Goods shall remain with the Seller unless the Buyer agrees to pay the cost of the Tooling (as notified by the Seller in writing)in addition to the price for the Goods. References to Tooling for the remainder of this clause 7 are to Tooling to be charged to the Buyer.The property in any Tooling shall pass to the Buyer when the Seller has received in cash or cleared funds the full sum due in respect of such Tooling.
7.2 Despite the fact that the property in any Tooling may have passed to the Buyer,the Seller shall be entitled to retain such Tooling for the period of one year (or such other period as the parties may agree in writing)from the date the Buyer makes the final payment in respect of it. Thereafter the Buyer shall be entitled to collect that Tooling, but the Seller shall have no obligation to deliver it to the Buyer other than making it available for collection.
7.3 Notwithstanding clause 7.2,risk in the Tooling shall pass to the Buyer as soon as the Tooling has been manufactured and the Seller shall have no liability in respect of loss or damage to such Tooling whilst in the Seller ’s possession save to the extent that the same results from the Seller ’s negligence. The Seller shall notify the Buyer when such Tooling has been manufactured.
7.4 The Seller ’s liability in respect of the Tooling shall be limited to the same extent as its liability in respect of the Goods under the provisions of this Contract.
7.5 Any dimensions stipulated by the Buyer for the Goods shall be observed as nearly as possible but the Seller shall not be liable for any alteration in, or deviation from, such dimensions which do not have a material adverse effect on the Goods having regard to the intended use of the Goods of which the Buyer notifies the Seller prior to the date of the Contract.
7.6 The Seller shall not be liable to the Buyer if the dimensions stipulated by the Buyer for the Goods result in the manufacture of Goods which are unsuitable for any purpose.
7.7 The Seller shall be entitled to require payment of the price of Tooling at the time of the Buyer ’s order.
7.8 Subject to clause 7.7 the Buyer shall pay half of the price of Tooling at the time of order and the Seller shall be entitled to invoice the Buyer for the remainder of the price upon the Seller sending samples produced using that Tooling to the Buyer. The provisions of clauses 6.3.2,6.4 and 6.5 shall apply to the payment of such invoices.
7.9 The Buyer shall be liable for Tooling maintenance that is required one year after the Tooling has been approved.
8.Delivery
8.1 Unless otherwise agreed Goods will be sent to the Buyer by a standard delivery service chosen by the Seller in which case delivery of the Goods shall be effected by the Seller delivering them to the carrier. Thereafter transport of such Goods shall be subject to the carrier ’s conditions. Where delivery is otherwise than at the Seller’s premises the Seller shall be under no obligation under section 32(2)of the Sales of Goods Act 1979.
8.2 The Buyer shall be responsible for any delivery costs in respect of Goods unless the Seller states in writing that it shall bear delivery costs. Where delivery costs are initially borne by the Seller the Seller shall forthwith be entitled to render an invoice in respect of such costs and the provisions of clauses 6.3.2,6.4 and 6.5 shall apply to the payment of such invoice.
8.3 If it is agreed that the Goods shall be delivered by a method other than that referred to in clause 8.1 then delivery shall be effected:
8.3.1 where the Goods are to be collected by the Buyer from the Seller ’s premises, upon the Seller notifying the Buyer that the Goods are ready for collection;
8.3.2 where the Goods are delivered by the Seller, by the Seller delivering the Goods to the address for delivery;
8.3.3 where the Goods are to be transported by a third party, upon collection by or delivery to that third party of the Goods.
8.4 Any periods of time or dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence.
8.5 The Seller reserves the right to deliver up to 10 per cent more or 10 per cent less than the quantity ordered with an appropriate adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
8.6 Without prejudice to clause 8.5 above, the Seller shall not be responsible for any loss or damage suffered by the Buyer as a result of short delivery unless the Buyer has informed the Seller in writing within ten working days from the date of delivery and, in any event, the Seller ’s liability shall be limited to the price of the Goods.
8.7 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and, in respect of any one or more instalment, any failure by the Seller to deliver or any claim by the Buyer shall not entitle the Buyer to treat the Contract as a whole as repudiated. The total quantity of Goods ordered by the Buyer must be taken by the Buyer within 12 months of delivery of the first instalment.
8.8 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller ’s reasonable control or the Buyer ’s fault, and the Seller is accordingly liable to the Buyer, the Seller ’s liability shall be limited to the excess (if any)of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
8.9 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer ’s reasonable control or by reason of the Seller ’s fault)then, without prejudice to any other right or remedy available to the Seller, the Seller may:
8.9.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance)of storage; or
8.9.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses)account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
8.10 Where, upon delivery of the Goods, the Buyer discovers that it has incorrectly ordered those Goods, the Seller ’s standard handling charge will be charged if the Seller agrees to accept return of those Goods. Without prejudice to the right of the Seller to refuse to accept return of Goods in any case, the Seller will not accept return of Goods if more than one month has elapsed since they were delivered to the Buyer.
9.Risk and property
9.1 Goods supplied by the Seller shall be at the Buyer ’s risk immediately on delivery or when the Seller tenders delivery of the Goods, whichever is the earlier and the Buyer shall insure accordingly.
9.2 Title in all Goods supplied or sold by the Seller shall be retained by the Seller until all sums due on any account whatsoever from the Buyer to the Seller have been received by the Seller either in cash or cleared funds.
9.3 Until such time as the property in the Goods passes to the Buyer, the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forth with, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
10.Warranties and Liability
10.1 Nothing in these conditions shall exclude the Seller ’s liability for death or personal injury caused by its negligence.
10.2 The Seller warrants that all Goods will be free from defects on delivery and or a further 12 months.
10.3 If the Seller is in breach of the warranty contained in clause 10.2,the Buyer shall advise the Seller in writing not later than seven days from identification of a defect and the Seller may at its sole option repair or replace all or any of the Goods or refund the price of defective Goods.
10.4 The warranty contained in clause 10.2 shall be the extent of the Seller ’s liability for defective Goods.
10.5 The Buyer is solely responsible for the costs of returning defective goods to the Seller.
10.6 The warranty contained in clause 10.2 is subject to the following conditions:
10.6.1 the Seller shall be under no liability in respect of any defect arising from any drawing, design or specifications supplied by the Buyer;
10.6.2 the Seller shall be under no liability under the warranty (or any other warranty, conditional guarantee) if the total price of the Goods has not been paid by the due date for payment;
10.6.3 the warranty does not extend to parts, materials or equipment not manufactured by the Seller in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller;
10.6.4 the Seller does not warrant that the Goods are fit for any particular purpose of the Buyer.
10.7 Unless otherwise expressly provided in these Conditions, all implied warranties or conditions are excluded to the fullest extent permitted by law and the Seller will not be liable to the Buyer for any loss of any kind whatsoever which arises out of the breach of implied warranties or conditions, or breach of any duty of any kind imposed on the Seller by operation of law.
10.8 The Seller will not be liable for any consequential loss (including without limiting the foregoing loss of anticipated profits or expected future business; damage to reputation or goodwill; damages, costs or expenses payable by the Buyer to any third party; loss of any order or contract)arising from breach of the Contract or of any implied warranty, condition or other term or any other presentation or any duty imposed on the Seller by law.
10.9 If, notwithstanding the provisions of this clause 10,liability attaches to the Seller, he Seller ’s liability to the Buyer for breach of any express or implied terms of the Contract or any other duty of any kind imposed on the Seller by law arising out of or in relation to the Contract will not exceed the sum of £100,000.00 PROVIDED THAT in assessing the Seller ’s liability to compensate the Buyer (if any),regard shall be had to the price and nature of the Goods in question.
10.10 Without prejudice to any other provision of this clause 10,the Seller will not be in breach of the terms of the Contract for any delay in performing, or failure to perform, its obligations under the Contract if that failure or delay was due to any cause or circumstance beyond the Seller ’s reasonable control.
10.11 The Buyer indemnifies the Seller against any loss suffered by the Seller as a result of any claim brought by any third party in respect of loss,injury or damage caused by the Goods or the Tooling in any way connected with the Contract provided that this clause will not require the Buyer to indemnify the Seller against any liability for the Seller ’s own negligence.
11.Insolvency of buyer
11.1 This clause applies if the Buyer makes any composition or voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm)becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);or an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or the Buyer ceases, or threatens to cease, to carry on business; or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
11.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or any other contract or suspend any further deliveries under the Contract or any other contract without any liability to the Buyer, and if the Goods have been delivered, but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11.3 On termination of this Contract for any reason whatsoever, the Buyer shall pay to the Seller all costs, expenses (including legal and other fees incurred),arrears, charges or other payments arising in respect of the Goods under the Contract.
12.Export Terms
12.1 Where the Goods are supplied for export from the United Kingdom the provisions of this clause shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provisions of these Conditions.
12.2 The Buyer shall be responsible for complying with any legislation or regulations governing the export of the Goods or any product incorporating the Goods from the United Kingdom (including, if necessary, satisfying Customs and Excise that value added tax is not payable on the price)and the importation of the Goods into the country of destination and for the payment of any duties thereon.
12.3 Unless otherwise agreed transport of the Goods to the Buyer from the Seller ’s premises shall be arranged by the Seller at the Buyer ’s cost. Where such cost is initially paid by the Seller, the Seller shall forthwith be entitled to render an invoice in respect of such costs and the provisions of clauses 6.3.2,6.4 and 6.5 shall apply to the payment of such invoice. Delivery of the Goods shall be effected when they are collected by the carrier from the Seller ’s premises. Thereafter transport of such Goods shall be subject to the carrier ’s conditions. The Seller shall be under no obligation to give notice under section 32(3)of the Sale of Goods Act 1979.
13.General
13.1 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. Failure by the Seller to enforce any of these conditions shall not be waiver of the Seller ’s rights.
13.2 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
13.3 The Contract shall be governed by the laws of England. Any dispute shall be referred to the exclusive jurisdiction of the English Courts.
13.4 The parties to the Contract do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties)Act 1999 by any person that is not a party to it.