Terms & Conditions of Sale
1.1 In these conditions of sale the following words shall have the following meanings:-
“Company” MS Storage Equipment Limited (company number 1368061) “Customer” The person, firm or company with whom the Company makes the contract and which expression shall include (jointly and severally) all principals on whose behalf the Customer orders Goods. “Contract” Any contract formed between the Customer and the Company for the sale and purchase of the Goods. “Delivery” The delivery of the Goods by the Company whether by way of delivery by or for and on behalf of the Company, direct delivery by a supplier on behalf of the Company or otherwise. “Intellectual Property Rights” The full benefit of all patents, trade and other marks, registered designs (and applications for and rights to apply for the same), copyrights, trade and business names, inventions, discoveries, improvements, designs, techniques, computer programs and other confidential processes and information. “Order” Any order placed with the Company by the Customer from time to time. “Goods” The goods or any part thereof which are to be supplied by the Company pursuant to the Contract
“Services” Any services supplied by the Company pursuant to the contract. “Specification” Any technical or other description (whether as to quantity, quality, price, weight or otherwise) of the Goods or Services shown or referred to in the Contract and any performance schedules and/or other characteristics and details contained, mentioned or referred to therein or prepared in accordance therewith.
“Work” Any work undertaken in the installation of Goods and/or construction necessary in the providing of Services.
1.2 The terms set out below shall prevail over any terms put forward by the Customer and no conduct of the Company shall constitute acceptance of any terms put forward by the Customer unless the Company expressly agrees to them in writing signed by it’s duly authorised agent.
1.3 All orders shall be deemed to be an offer by the Customer to purchase Goods and/or Services pursuant to these Conditions and acceptance of Delivery shall be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
1.4 The Company’s employees or agents are not authorised to make any representations concerning the Goods and/or Services 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.
1.5 No addition or variation to these terms shall be binding on the Company unless they have been accepted in writing.
1.6 Any reference in these Conditions to any statutory provision shall be construed as a reference to that provision as amended or re-enacted at the relevant time.
1.7 The headings in these Conditions are for convenience of reference only and shall not affect their interpretation.
Quotations are not offers and may be withdrawn or varied at any time prior to acceptance by the Company of the Customer’s Order for the Goods being the subject of the quotation.
3. ORDERS AND SPECIFICATIONS
3.1 The Company is to be presumed ignorant of any special purpose or matter for which the Goods and/or Services are required or any special conditions under which they are to be used unless the Customer informs the Company in writing of that special purpose or matter or those conditions before the Contract is made. Any intended purpose, matter or conditions of use which are not obvious from the nature of the Goods or their description in the Contract is to be regarded as special for the purposes of this Clause.
3.2 Where the Company recommends Goods and/or Services to meet the Customer’s specific requirements, the Company shall be entitled to assume that the Customer has given to the Company all relevant information as to the requirements and circumstances of its intended use for the Goods and/or Services. Provided that the Company’s recommendation is a reasonable one to make on those assumptions the Customer shall bear the risk that the Goods and/or Services supplied may prove to be unsuitable for its purposes under the actual conditions of their application, use or storage.
3.3 The Company expressly reserves the right (but accepts no obligation) to make such changes in the Specification of the Goods and/or Services as are necessary to ensure that the Goods conform with any applicable statutory requirements,
4. PRICE AND PAYMENT
4.1 The Company reserves the right to vary the price of the Goods and/or Services prior to acceptance by the Customer of any Quotation.
4.2 The Company shall have the right in respect of any uncompleted portion of the Contract to adjust its prices to reflect any increase in the cost of materials, parts, labour, transport, changes in work or delivery schedules or quantities taxes, or currency fluctuations affecting the Company or its suppliers.
4.3 Payment shall be received within 30 days from the date of invoice, although, at all times and notwithstanding the foregoing the Company reserves the right to demand immediate payment prior to the supply of Goods or Services or to call for payments by instalments.
4.4 Time for payment shall be the essence of the Contract and the Company shall be entitled to charge at a rate of 4% above the base rate of the Company’s Bankers, on all overdue accounts and in addition may postpone the fulfilment of it’s own obligations and suspend work until such overdue payment is made.
4.5 The Customer shall indemnify the Company against any legal or other expenses incurred by the Company in the collection of any outstanding payment on any account whatsoever.
4.6 No dispute arising as to quality or performance of the Goods and Services or defects or omissions shall entitle the Customer to delay payment unless the Company shall agree liability thereon in an agreed sum or shall have been found liable by a Court of competent
4.7 Customer accounts are opened subject to approval of satisfactory references and (unless otherwise agreed by the Company in writing) the terms of payment shall be net cash monthly account due and payable 28 days from the date which the Goods were despatched or would have been despatched save for postponement otherwise than due to default of the Company. The Company shall he entitled to submit its invoice with its delivery advice note or at any time thereafter save that where Delivery has been postponed at the request of or by the default of the Customer, the Company may then submit its invoice at any time after the Goods are ready for Delivery or would have been ready but for the request or default of the Customer.
4.8 Where Goods are delivered by instalments the Company may invoice each instalment separately.
4.9 The Customer shall not be entitled to withhold or set off payment for Goods delivered or Services rendered for any reason whatsoever.
5.1 Where the Contract is to include transport of the Goods, Delivery of the Goods shall be made to the Customer’s address as stated in the Contract or, if the Goods are to be collected by the Customer, upon such collection from the Company’s premises at any time after the Company has notified the Customer that the Goods are ready for collection.
5.2 Any dates quoted by the Company for Delivery of the Goods are approximate only and the Company shall not be liable for any loss or damage whatsoever due to delay in Delivery of the Goods howsoever caused. Time of Delivery shall not be of the essence of the Contract. The Company may deliver the Goods to the Customer in advance of any quoted Delivery date upon giving reasonable notice to the Customer.
5.3 The date of Delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Customer as shall he requested by the Company. Alterations made by the Customer after the date of the Customer’s Order in Specification or quantities required may result in a delay in Delivery and, if reasonably practicable, the approximate length of any such delay shall be notified to the Customer.
5.4 The Company will endeavour to comply with any reasonable requests by the Customer for postponement of Delivery but shall be under no obligation to do so and the Customer shall pay all reasonable and proper costs and expenses arising from such postponement.
5.5 The Company may effect Delivery by instalments in which case these Terms and Conditions shall apply to each instalment as though a separate contract and any failure or defect in any one Delivery will not entitle the Customer to repudiate the Contract as a whole.
6. RISK AND TITLE
6.1 Risk of damage to or loss of the Goods shall pass to the Customer:-
(a) in the case of Goods to be delivered otherwise than at the Company’s premises at the time of Delivery; or
(b) in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection.
6.2 Property in the Goods delivered shall not pass to the Customer until the Customer has paid all sums due to the Company (a) in respect of the Goods and (b) on any other account.
6.3 Until property in the Goods passes to the Customer in accordance with Clause 6.2, the Customer shall hold them as Bailee for the Company and shall store them separately from any similar goods of the Customer or any person in such a way that they remain identifiable as the Company’s property.
6.4 The Customer may resell the Goods before the conditions in Clause 6.2 are satisfied on the following conditions:
(a) any sale shall be effected by the Customer as agent for the Company, provided that the Customer shall have no authority to create privity of contract between the Company and any customer to whom the goods are sold;
(b) the Customer will hold the proceeds of any such resale as trustee for the Company, separate from it’s own monies in a separate, identifiable bank account.
6.5 The Customers right to possession of goods supplied by the Company shall terminate if the Customer is declared bankrupt or makes any proposal to his creditors for any composition or voluntary arrangement or, if the Customer is a company, an administrator, administrative receiver or liquidator is appointed in respect of it’s business.
6.6 The Customer hereby grants the Company, it’s agents and employees an irrevocable licence at any time to enter any premises where the goods are stored in order to inspect them or, where the Customers right to possession has terminated, recover them.
6.7 As all or any of the Goods or some part or constituent of them may have been purchased by the Company under a contract containing a provision reserving title or other property right therein to the vendor thereof the Company shall be liable to transfer to the Customer only such title as the Company may itself have in the Goods.
Unless otherwise specified prices quoted excludes delivery to destinations in Mainland United Kingdom.
8. RETURNED GOODS
8.1 Goods will be accepted back for credit only with the express permission of MS Storage Equipment Limited. Goods must be returned in their original packaging. Credit shall not be given for Goods received damaged. The Customer shall unless otherwise stated be responsible for the cost of the return carriage of all Goods returned which shall be at the risk of the Customer until actual receipt of the Goods to the factory. Proof of return delivery will remain with the Customer. All items returned by pre-arrangement and found to contain no fault will be subject to a 25% re-stocking charge.
8.2 All Goods and materials shall be examined by the Customer on Delivery. The Company shall not be liable for claims in respect of shortage or damage in transit unless the Carrier and the Company is notified in writing within five days of Delivery or in the case of non-delivery notice in writing is given in respect thereof within fourteen days of the date of notice of dispatch of the Goods from the Works of the Company or its subcontractors. In the absence of written notice the Goods will be deemed to have been received in the correct quantity and free of defects, which would have been apparent on inspection.
8.3 Credit for shortage or damage will only be allowed when the Company’s conditions in the preceding sub clause are met.
All other conditions and warranties, express or implied by statute, common law or otherwise are hereby excluded except those which by statute may not be excluded PROVIDED THAT nothing in these Conditions shall affect the statutory rights of the Customer dealing as a consumer (within the meaning of the Contract Terms Act 1977).
10.1 The Work shall be executed in within the period of time stated in the quotation or in accordance with a programme of Work to be agreed in writing with the proviso that the date stated in the quotation or such programme shall be subject to confirmation after all the specifications and measurements have been taken and agreed. Any alteration or deviation from the programme shall thereafter only be made by mutual agreement.
10.2 When Work on the site is undertaken the Customer shall provide:-
(a) a clear and level site with sufficient space adjacent for the placing of material and shall supply the necessary foundations and temporary cover over the site to protect the Goods and construction Work effectively from the elements;
(b) Water, power and light.
(c) a satisfactory and continuous means of access to the site free from all obstructions together with off loading space and parking facilities (if available) for vehicles of the Company, its employees and agents; and
(d) health and welfare facilities which may be required by law under regulations current from time to time for employees of the Company while they are engaged at the Customer’s premises in the performance of the Contract.
10.3 All service connections, permanent and temporary for fuel, electricity, air, water and drains, both to main plant and auxiliary equipment shall be the responsibility of the Customer.
10.4 The Customer shall indemnify the Company in respect of all claims made or proceedings taken against the Company by any third party including, but not limited to employees of the Company, the Customer’s employees or the employees of any Contractor employed by the Customer or the personal representatives or dependants of any such employees or any other third parties in respect of personal injury or damage to property (including damage as a result of fire or explosion) caused by or arising out of the Goods and Services in any manner whatsoever, except where it is proven that the Company or its employees have been negligent.
10.5 All persons provided by the Customer to assist the Company shall in all respects remain employees of the Customer.
10.6 The Customer shall ensure that the Company is able to carry out its work with continuity and without hindrance and any expense incurred by the Company as a result of the Customer’s failure to so ensure will be charged extra.
10.7 The Company shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations.
10.8 Where Contractors other than those employed by the Company are involved, their programmes will be arranged by the Customer to permit the Company’s work to be carried out with continuity and with one visit to the site. Should the Company be subject to delays or require to make a return visit or return visits to the site additional cost will be chargeable to the Customer.
10.9 On completion of the contract all surplus material by the Company shall, unless otherwise agreed, remain the property of and be removed from the site by the Company. Until such material is removed the Customer shall take reasonable precautions for the sole custody of such surplus materials.
11. LIMITATIONS OF LIABILITY
11.1 Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any mis-understanding or mis-representation, or breach of any implied warranty, condition or other term, or breach of any duty at common law or under the express terms of the Contract, for any direct loss or expense and/or any indirect loss or expense suffered by the Customer or liability to third parties incurred by the Customer and/or for any consequential loss or damage, (whether for loss or profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Customer, except as expressly provided in these Conditions AND THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS IN THIS CLAUSE 11.
11.2 Without prejudice to Clause 8.1 or to the Company’s other rights hereunder the Company’s total liability for any one claim or for the total of all claims arising from any one act or default (whether arising from the Company’s negligence or otherwise) shall not in any event exceed the Contract price for the Goods.
12. TERMINATION OF CONTRACT
The Company shall be entitled to terminate the Contract and/or any other Contract with the Customer forthwith by notice without prejudice to any of its other rights:-
(a) if the Customer (whether under this or any other Contract between the Customer and the Company) is overdue with any payment or is in breach of Contract which breach is incapable of remedy or which if the same be capable or remedy it fails to remedy within 7 days of the Company’s written notice so to do; or (b) if any distress or execution shall be levied on the Customer’s assets, or if the Customer shall make or offer to make any arrangement or composition with creditors or commit an act of bankruptcy or if any petition or receiving order in bankruptcy or an administration order shall be presented or made against the Customer or if the Customer is a limited company and any resolution or petition to wind up the same (other than for the purposes of solvent reconstruction or amalgamation) shall be passed or served or an administration order be made or if a receiver or administrator be appointed of the Customer’s assets and undertaking or any part thereof; or
(c) if in the opinion of the Customer, serious doubts arise as to the solvency of the Customer.
13. FORCE MAJEURE
The Company shall have no liability to the Customer in the event of non-delivery or delay in delivery of the whole or any portion of the Goods caused directly or indirectly by act of God, weather, war, terrorism, acts of Government, strikes or lockouts, fire, breakdown of machinery, non-delivery or delay in delivery by the Company’s suppliers of goods or materials required, shortage of transport, general shortage of materials and restrictions in the use of power, or any other beyond the Company’s complete control. In the event of any delay in Delivery due to any of the aforesaid causes the time for Delivery shall be extended to the extent of the delay caused.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 The Company will transfer to the Customer such title as it has to the goods.
14.2 The Company believes that the goods do not infringe any intellectual property rights of any third party and warrants that it is not aware of any adverse third party intellectual property rights affecting the goods, other than those expressly disclosed to the Customer.
14.3 If it is alleged that the goods infringe any intellectual property right of any third party the Customer shall:
(a) promptly notify the Company of the alleged infringement;
(b) allow the Company to defend such third party claims as it thinks fit and have sole control, at the Company’s expense, of any litigation and/or negotiations relating there to;
(c) not without the Company’s consent make any admission of liability.
14.4 The Customer will not without the Company’s permission resell any goods supplied under this contract from which any label has been removed or altered.
The description of Goods in any catalogues used by the Company is given by the way of identification only and the use of such description shall not mean that a sale under this Contract is a sale by description.
16.1 This Contract shall be governed and interpreted according to the Law of England and Wales and the Customer agrees to submit to the non-exclusive jurisdiction of the English Courts.
16.2 The Company shall not be liable for any delay or failure to perform any of its obligations in relation to the Goods due to any cause beyond its reasonable control including industrial action.
16.3 The waiver by the Company of any breach or default of these Terms and Conditions shall not be construed as a continued waiver of that breach not as a waiver of any subsequent breach of the same or any other provision.
16.4 If any clause or sub-clause of these terms is held by a competent authority to be Invalid or unenforceable the validity of the other clauses and sub clauses of these Terms and Conditions shall not be affected and they shall remain in full force and effect.
16.5 The Company may assign novate or sub-contract all or any part or parts of the contract and the Customer shall be deemed to consent to any novation. This Contract is personal to the Customer and it may not be assigned.
16.6 Nothing in this Contract is intended to or will grant any right to any third party to enforce any terms of this contract whether express or implied.
In the event of failure by the purchaser to meet any one of his obligations, e.g. refusal to take delivery of the equipment purchased, non-payment on the date, etc., we shall be entitled, if we so desire, to cancel the contract if it has not as yet been fully executed. In that case, it shall be cancelled as of right and without any warning, by simple notification of our intent by registered letter, and an amount equivalent to 30% of the total price of the order shall by payable to us by the purchaser by way of indemnity.
As we do not hold stocked items, all of our products are manufactured according to your order, therefore we are unable to accept back incorrectly ordered items. You will receive an order acknowledgement from us which should be checked carefully to ensure what you have ordered is what you require.