Terms of Sale
The following terms and conditions comprise the standard Terms and Conditions of Sale of MAXIUM DOORS LTD (“the Company”). All contracts for the sale of goods and/or services by the Company shall be governed by these Terms and Conditions (“the Conditions”) and each of the Conditions shall be deemed to be incorporated in any Contract (“the Contract”) between the Company and a buyer of the Company’s goods and/or services (“the Buyer”). The Buyer accepts the Conditions to the exclusion of any other term including conditions, warranties or representations written or oral expressed or implied whether or not contained in any of the Buyer’s documents which purport to provide that the Buyer’s own Terms and Conditions of Business shall prevail.
VARIATIONS OF CONDITIONS
No variation of any condition shall be binding upon the Company unless expressly agreed in writing by the Company and signed by a Director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation.
ACCEPTANCE OF ORDERS
Each order or acceptance of a quotation for goods and/or services from the Company shall be deemed to be an offer by the Buyer to buy the goods and/or services subject to these Conditions. The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
a) The price for the goods and/or services shall be exclusive of any value added tax and all costs or charges in relation to delivery, all of which the Buyer shall pay in addition when it is due to pay for the goods.
b) The prices quoted by the Company are based upon the cost to the Company at the time of quotation of labour materials transport and services. The Company reserves the right to vary its prices in the event of any increases or decreases in the cost of obtaining the labour, materials and transport services necessary to perform the Contract or variations in currency exchange rates.
c) Where the specification and prices quoted are based on information supplied by the Buyer, any additional cost incurred due to the inaccuracy of the information supplied will be charged to the Buyer. Further, the Company reserves the right to amend its quotation to reflect the actual cost to the Company and to charge for any extra work required if modifications or alterations take place subsequent to the Buyer’s acceptance and/ or placing of the Order in accordance with Clause 3 above. The Company reserves the right to reject any extra work modifications or alterations not included in the quotation.
a) Time of payments is of the essence of all contracts and no payment shall be deemed to have been received until the Company has received cleared funds.
b) Payments shall be made in full prior to commencement of manufacture for the goods and/or services, unless otherwise agreed in writing by a Director of the Company.
c) The Company reserves the right to suspend delivery of goods and services in the event that payments remain overdue after the date appointed for payment as above.
Any quotation made by the Company may only be used for the inquiry or order in respect of which the quotation was originally submitted. All quotations made by the Company shall automatically lapse on the 84th day after the date of the quotation unless previously withdrawn.
TIME FOR DELIVERY AND COMPLETION
Any date stated or agreed by the Company for delivery or dispatch shall not be the essence of any contract. Such dates are approximate and are given for the guidance of the Buyer only and in the event that the delivery dispatch or completion is not made at the date so stated the Company shall not be liable for any loss or damage whatsoever or howsoever suffered by the Buyer as a result of the company’s delay omission or failure to deliver or complete at the date stated (whether such delay omission or failure arises out of the negligence on the part of the Company its servants agents suppliers contractors or sub-contractors.)
a) On arrival of the goods at the place designated for delivery by the Buyer any claim relating to missing or damaged goods which ought to be revealed by a reasonable diligent examination shall be notified in writing to the Company and to any Carrier involved within three working days of the receipt of the goods by the Buyer his servants agents or client and in default of any such notification any such claim shall be barred. Such notification shall also be confirmed in writing within seven days thereafter.
b) If for any reason the Buyer fails to accept delivery of any of the goods when they are ready for delivery, or the company is unable to deliver the goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
i) risk in the goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
ii) the goods shall be deemed to have been delivered; and
iii) the Company may store the goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
The Company will not in any circumstances be liable for any claim made by the Buyer for penalty payments incurred by the Buyer for non-completion of contract.
Risk in the goods supplied to the Buyer shall pass from the Company the moment when they leave the Company’s vehicles.
a) Ownership of the goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
i) the goods; and
ii) all other sums which are or which become due to the Company from the Buyer on any account.
b) Until ownership of the goods has passed to the Buyer, the Buyer shall:
i) hold the goods on a fiduciary basis as the Company’s bailee;
ii) store the goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property.
c) The Company shall be entitled to recover payment for the goods notwithstanding that ownership of any of the goods has not passed from the Company.
QUALITY AND CONDITION OF GOODS
a) The Company warrants that all reasonable skill and care will be used with goods parts or materials manufactured and/ or supplied and that all reasonable skill and care with its own services will be employed in assembling parts or materials not manufactured by them. The goods will be made available for inspection at the premises of the Company or suppliers prior to the dispatch should the buyer so require.
b) The Company accepts no liability for loss or damage due to or arising from goods or services supplied to the Buyer’s own specification drawings or other specific requirements unless such loss or damage results solely from the goods or services being defective due to the materials methods or workmanship not being in accordance with the said specification drawings or requirements or the negligence of the Company or its servants.
c) If any goods are claimed to be faulty in accordance with the foregoing conditions the Buyer shall notify the Company in writing and the Company shall determine whether to inspect the goods at the premises of the Buyer or whether the goods shall be returned. The Company shall determine in its sole discretion whether the goods supplied have been made in accordance with the Buyer’s specification drawings or requirements. The costs of carrying out inspection at the Buyer’s premises will be payable by the Buyer if the goods are complete in accordance with the Buyer’s specifications drawings or requirements.
d) Any goods which the Company agrees have not been manufactured in accordance with the said specifications drawings or requirements shall at the option of the Company be repaired, replaced or modified so as to comply with the said specifications drawings or requirements and be delivered to the Buyer after such repair replacement or modification and without further charge to the Buyer. The Company shall deliver to the Buyer the repaired replaced or modified goods in accordance with the original terms of delivery. If the Buyer shall require urgent express or expedited delivery the Buyer hereby acknowledges that it shall pay in advance a sum equivalent to the difference between normal delivery charges as per the original terms of delivery and the additional freight and packaging charges for such urgent express or expedited delivery. However the Company expressly reserves the right to deliver such goods in whatever manner the Company elects. The Company’s liability shall be limited to the repair replacement or modification of the goods without further charge in accordance with this sub-clause.
e) The Company offers no warranty in respect of goods materials or services of its suppliers its sub-contractors or any third parties. The Company may at its sole discretion assign the benefit of such warranties (if available) and/ or other related rights (if any) as are available to first users of manufactured goods factored by the Company but not of the Company’s own manufacture.
No failure or omission to carry out or observe in whole or in part any agreement between the Company and the Buyer shall give rise to any claim against the Company or shall be deemed a breach of the said agreement if such failure or omission arises from any cause reasonably beyond the control of the Company.
PROPERTY IN DESIGN AND COPYRIGHTS
a) The copyright, drawing, data, literature and other information relating to the Company’s goods and services shall remain the property of the Company and any documents relating to the same whether copies or originals or on paper or stored electronically shall be returned to the Company on demand on termination of the Contract howsoever arising.
b) In the event of the non-acceptance by the Buyer of any quotation or the impossibility of performance or termination or completion of the Contract the Buyer shall return to the Company each and every document produced or supplied to it by the Company including all copies and notes in possession of the Customer of and relating to any documents or information produced or supplied or imparted to the Buyer by the Company.
c) The Buyer shall not at any time make any use whatsoever of any documents or information produced supplied or imparted to it by the Company save that which was previously known to the Buyer as a result of its own activities or through any published or freely available source.
d) If any invention is made by the Company’s agents servants or sub-contractors during the course of carrying out work under the Contract then the right to apply for and to receive letters patent in respect of such invention shall remain with the Company and/ or its agents or servants or sub-contractors and the subsequent manufacture of any items the subject of such application for or the granting of letters of patent shall be reserved to the Company or its Licensees.
BREACH AND TERMINATION
If the Buyer
a) makes defaults in or commits any breach of any of its obligations (including as to payment of price) to the Company hereunder or
b) is bankrupt, enters into a voluntary arrangement or is involved in any legal proceedings in which solvency is a question or
c) is a company and any meeting is convened or resolution is passed or petition presented (otherwise than a solvent voluntary liquidation for reconstitution or amalgamation ) to wind it up or an administrator or receiver is appointed or enters into a company voluntary arrangement.
d) ceases or threatens to cease to carry on trade
then in any such case the Company shall immediately become entitled (without prejudice to its other claims and rights under the contract) to suspend further performance of the contract for such time not exceeding six months as it shall in absolute discretion think fit or (whether or not notice of such suspension shall have been given) to treat the contract as wrongfully repudiated by the Buyer and forthwith terminate the contract.
LIMITATION OF LIABILITY
a) 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.
b) Nothing in these conditions excludes or limits the liability of the Company:
i) for death or personal injury caused by the Company’s negligence; or
ii) under section 2(3), Consumer Protection Act 1987; or
iii) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
iv) for fraud or fraudulent misrepresentation.
c) Subject to condition 16(a) and condition 16(b):
i) the Company’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
ii) the Company 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.
The Buyer shall not assign any rights or delegate any duties under the Contract.
The Contract will be construed and governed in all respects by English Law and the parties submit to the exclusive jurisdiction of the English Courts. The legality or unenforceability of any paragraph clause or provision or referred to herein shall not affect or invalidate any other paragraph clause or provision herein.
The Company reserves the right to make deliveries/and or services by instalments and to render a separate invoice in respect of each such instalment.
b) If the Company exercises its right to make deliveries/and or services in accordance with sub-paragraph (a) above, then any delay in the provision of such deliveries/and or services, or failure to deliver any further instalment or instalments, shall not entitle the Buyer to reject the Contract or the delivery/service of any other instalment or to withhold payment in respect of any instalment previously delivered/serviced.