The buyer’s attention is in particular drawn to the provisions of condition 13.4.
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from the Seller.
Seller: Muc-Off Ltd of unit 23, Branksome Business Park, Bourne Valley Road, Poole, Dorset BH12 1DW.
Acknowledgement: the Seller’s written acknowledgement of an order placed by the Buyer.
Contract: any contract between the Seller and the Buyer for the sale and purchase of the Goods and, to the extent relevant, the hire of a Display Stand, incorporating these conditions.
Display Stand: means a sales stand used to display the Goods.
Export Area: has the meaning given in condition 6.1.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Seller (including any part or parts of them).
Payment Period: means the period of time agreed between the Seller and the Buyer for the payment of invoices raised by the Seller in respect of Goods, such period to commence from the date of the Seller’s invoice.
Place of Delivery: the place of delivery of the Goods as set out in the Acknowledgement, or in the absence of an Acknowledgement in relation to the Contract, the place of delivery of the Goods shall be the Buyer’s principal place of business.
Pro Forma Territory: means an Export Area that the Seller has designated as such prior to the issue of the Acknowledgement;
Rental Payment: means a subsidised rental payment for the hire of a Display Stand being such sum as agreed in advance in writing between the Buyer and the Seller.
VAT: value added tax.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
1.6 A reference in these Conditions to “in writing” shall be deemed to include email.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer
’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Seller’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by Alex Trimnell of the Seller. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller’s liability for fraudulent misrepresentation.
2.4 Each order placed with the Seller must be in writing with an order number and date of the order. Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Seller until an Acknowledgement is issued by the Seller or (if earlier) the Seller delivers the Goods to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Seller despatches an Acknowledgement to the Buyer.
3. DESCRIPTION
3.1 The quantity and description of the Goods shall be as set out in the Acknowledgement or, in the absence of an Acknowledgement in relation to the Contract, as set out in the Seller’s quotation.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
4. DELIVERY
4.1 Delivery shall take place at the Place of Delivery and the Buyer shall be deemed to have accepted the Goods upon their delivery.
4.2 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.3 Subject to the other provisions of these conditions the Seller shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 60 days.
4.4 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer;
(b) the Goods shall be deemed to have been delivered; and
(c) the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.5 If the Seller delivers to the Buyer a quantity of Goods of up to 2% more or less than the quantity accepted by the Seller, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.6 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.7 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.8 The Buyer shall provide at the Place of Delivery and at its expense adequate and appropriate equipment and labour for unloading the Goods.
5. NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by the Seller upon despatch from the Seller’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller’s negligence) unless the Buyer gives written notice to the Seller of the non-delivery within 30 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. EXPORT PROVISIONS
6.1 Where the Place of Delivery is outside the UK (an Export Area) the Buyer shall be responsible for obtaining any necessary import licences or permits necessary for the entry of the Goods into the Export Area. The Buyer shall be responsible for any customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Goods to the Export Area.
6.2 The Buyer shall, at its own expense, comply with all laws and regulations relating to the use of and/or resale of Goods in the Export Area, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
6.3 The Buyer shall be responsible for ensuring that the sale, packaging and labelling of Goods comply with all laws and regulations in the Export Area.
6.4 The Buyer shall provide such reasonable assistance as the Seller may require to evidence proof of export for VAT purposes. If the Buyer fails to do so and VAT subsequently becomes payable after the Seller has invoiced the Buyer for the Goods, the provisions of condition 11.2 shall apply.
7. RISK/TITLE
7.1 The Goods are at the risk of the Buyer from the time of delivery.
7.2 Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Seller from the Buyer on any account.
7.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Seller’s bailee;
(b) store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.
7.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of the Seller’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
7.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator (whether following a court application or otherwise) is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or (b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.
7.6 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
7.7 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7.8 Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
7.9 On termination of the Contract, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this condition 7 shall remain in effect.
8. DISPLAY STANDS
8.1 Where the Seller provides a Display Stand to the Buyer the following provisions shall apply:
8.1.1 The Buyer shall pay the Rental Payment to the Seller by the payment date agreed in advance between the Buyer and the Seller.
8.1.2 If the Buyer fails to make the Rental Payment to the Seller by the due date the provisions of clause 10.6 shall apply.
8.1.3 The Display Stand shall at all times remain the property of the Seller and the Buyer shall have no right, title or interest in or to the Display Stand save the right to use of the Display Stand in accordance with this condition.
8.1.4 The risk of loss, theft, damage or destruction of the Display Stand shall pass to the Buyer on delivery of the Display Stand at the Buyer’s premises. The Display Stand shall remain at the sole risk of the Buyer during the period in which it is hired to the Buyer (Rental Period) and any further term during which the Display Stand is in the possession, custody or control of the Buyer until such time as the Display Stand is collected by or delivered to the Seller.
8.1.5 The Buyer shall:
(a) ensure that the Display Stand is correctly assembled and installed in accordance with the Seller’s instructions;
(b) ensure that the Display Stand is kept in a suitable environment and used only for the purposes for which it is designed;
(c) maintain at its own expense the Display Stand in good and substantial repair, fair wear and tear only excepted;
(d) make no alterations to the Display Stand without the prior consent of the Seller;
(e) ensure all labelling on the Display Stand complies with the directions of the Seller, which may include replacing labelling at the discretion of the Seller from time to time;
(f) keep the Display Stand at such location as approved by the Seller;
(g) permit the Seller to inspect the Display Stand at all reasonable times and for such purpose to enter upon any premises at which the Display Stand may be located and shall grant reasonable access and facilities for such inspection;
(h) not part with control of, sell or offer for sale, underlet or lend the Display Stand or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(i) not suffer or permit the Display Stand to be confiscated, seized or take out of its possession or control;
(j) ensure that at all times the Display Stand remains identifiable as being the Seller’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Display Stand;
(k) deliver up the Display Stand at the end of the Rental Period at such address as the Seller requires, or if necessary allow the Seller or its representatives access to any premises where the Display Stand is located for the purpose of removing the Display Stand.
8.2 The Buyer acknowledges that the Seller shall not be responsible for any loss of or damage to the Display Stand arising out of or in connection with any negligence, misuse, mishandling of the Display Stand or otherwise caused by the Buyer or its officers, employees, agents and contractors, and the Buyer undertakes to indemnify the Seller on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Buyer to comply with the terms of this condition 8.
9. PRICE
9.1 The price for the Goods shall be the price set out in the Acknowledgement or, in the absence of an Acknowledgement in relation to the Contract, the price set out in the Seller’s price list published on the date of delivery or deemed delivery.
9.2 Unless otherwise stated in the Acknowledgement, the price for the Goods includes the cost of pallets, loading, unloading and/or carriage occurring before the date of delivery.
9.3 Unless otherwise stated, the price does not include the cost of delivery to the Place of Delivery.
9.4 Unless otherwise agreed in writing, the minimum order value (per Contract) that the Seller will accept from the Buyer is £1000 exclusive of the costs of carriage and VAT.
10. PAYMENT
10.1 Subject to condition 10.4, payment of the price for the Goods and any additional charges pursuant to condition 9.2 (and any applicable VAT thereon) is due from the Buyer to the Seller in pounds sterling within the Payment Period unless the Goods are to be delivered to a Pro Forma Territory in which case payment in full is due prior to shipment for such Goods.
10.2 Time for payment shall be of the essence.
10.3 No payment shall be deemed to have been received until the Seller has received cleared funds.
10.4 All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.
10.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
10.6 If the Buyer fails to pay the Seller any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Seller on such sum due from the date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
11 VAT
11.1 All sums payable for Goods and/or Rental Payments are exclusive of any VAT.
11.2 Where VAT is chargeable or subsequently becomes chargeable for which the Seller is required to account to the relevant tax authority, the Buyer shall, subject to receipt of a valid VAT invoice, pay the Seller promptly, the amount of such VAT.
12. QUALITY
12.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.
12.2 The Seller warrants that (subject to the other provisions of these conditions) upon delivery, and for a period of 12 months from the date of delivery, the Goods shall:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
(b) be reasonably fit for purpose.
12.3 The Seller shall not be liable for a breach of any of the warranties in condition 12.2 unless:
(a) the Buyer gives written notice of the defect to the Seller, and, if the defect is as a result of damage in transit to the carrier, within 60 days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost for the examination to take place there.
12.4 The Seller shall not be liable for a breach of any of the warranties in condition 12.2 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Seller.
12.5 Subject to condition 12.3 and condition 12.4, if any of the Goods do not conform with any of the warranties in condition 12.2 the Seller shall at its option repair or replace such Goods or refund the price of such Goods at the pro rata Contract rate provided that, if the Seller so requests, the Buyer shall, at the Seller’s expense, return the Goods or the part of such Goods which is defective to the Seller.
12.6 If the Seller complies with condition 12.5 it shall have no further liability for a breach of any of the warranties in condition 12.2 in respect of such Goods.
13. LIMITATION OF LIABILITY
13.1 Subject to condition 4, condition 5 and condition 12, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, workers, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods;
(c) the hire of a Display Stand; and
(d) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
13.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
13.3 Nothing in these conditions excludes or limits the liability of the Seller:
(a) for death or personal injury caused by the Seller’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
13.4 Subject to condition 13.2 and condition 13.3:
(a) the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
(b) the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
14. ASSIGNMENT
14.1 The Seller may assign the Contract or any part of it to any person, firm or Seller.
14.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
15. FORCE MAJEURE
The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to the Seller to terminate the Contract.
16. GENERAL
16.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
17. COMMUNICATIONS
17.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or by e-mail:
(a) (in case of communications to the Seller) to its registered office, or in the case of email to at@muc-off.com, or in the case of fax to 01202 746853, or such changed address or email or fax number as shall be notified to the Buyer by the Seller; or (b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a Seller) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer.
17.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax or e-mail on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
17.3 Communications addressed to the Seller shall be marked for the attention of Alex Trimnell.