STANDARD CONDITIONS OF SALE
In these Conditions:-
“The Seller” means Mardan Ltd, www.mardanltd.co.uk
“The Customer” means the person, firm or organisation placing an order with the Seller.
“Goods” means the goods (including any instalment of the goods or any parts of them) specified on the Order to which these Conditions relate.
“Order” means acceptance of Seller’s quotation either verbally quoting purchase order number and/or written communication by the Customer.
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Customer and the Seller.
“Writing” includes e-mail, facsimile transmission and comparable means of communication.
“Contract” means the contract for the purchase and sale of the Goods consisting of these Conditions and the Order.
2. BASIS OF SALE
2.1 The Seller shall sell and the Customer shall purchase the Goods in accordance with any quotation of the Seller, which is accepted by the Customer and subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the Seller and the Customer.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods and the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. Provided always that nothing in these conditions seeks to exclude liability for fraud.
2.4 Unless otherwise agreed in Writing these Conditions shall prevail over any inconsistent terms implied by law or by trade custom, practice or course of dealing and any terms of purchase of the Customer and any such inconsistent terms are hereby expressly excluded.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of an offer, invoice, statement or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. ORDER AND SPECIFICATIONS
3.1 No order submitted by the Customer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller in Writing or by telephone (at the Sellers discretion).
3.2 The Customer shall be responsible to the Seller 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 The quantity and description of any specification for the Goods shall be those given in the Seller’s quotation either verbally or in Writing.
3.4 No order may be cancelled by the Customer except with the agreement in Writing of the Seller and on terms that the Customer 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.
3.5 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Customer, the Customer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights or any other person which results from the Seller’s use of the Customer’s specification.
4.1 The price of the Goods shall be the Seller’s quoted price and all prices are subject to fluctuations. All prices quoted are valid for 30 days or until earlier acceptance by the Customer, after which time they may be altered by the Seller without notice to the Customer.
4.2 The Seller reserves the right to increase the price of the Goods to reflect any increase in the Seller’s costs in respect of transport or changes in exchange rates between the date of Order and date of despatch.
4.3 Unless otherwise stated, all prices given by the Seller are given on an ex-works basis and do not include tax (including V.A.T.) insurance, freight and delivery costs.
4.4 The Seller’s costs (including storage charges, if any) due to the Customer’s default or neglect or lack of instructions shall be paid by the Customer in addition to the Contract price.
5. TERMS OF PAYMENT
5.1 The Seller’s normal terms are on proforma invoice or Paypal debit card payment prior to delivery. Where the Seller agrees to credit terms for the Customer, the Seller shall invoice the Customer for the price of the Goods at any time after delivery of the Goods or, where the Goods are to be collected, at any time after the Seller has notified the Customer that the Goods are ready for collection.
5.2 Any invoice of the Seller shall be considered accepted by the Customer unless any query or dispute in relation to it is raised by the Customer within 10 days of receipt of such invoice
5.3 Where the Seller agrees to credit terms for the Customer, and save where otherwise agreed, payment is due to the Seller by the Customer within 30 days of the date of the Seller’s invoice.
5.4 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.4.1 Cancel the Contract or suspend any further deliveries to the Customer, and
5.4.2 Charge interest (both before and after judgement) on the amount unpaid at the higher rate of 5% above the Bank of England base rate from time to time, or the statutory rate under the Late Payment of Commercial Debts (Interest) Act 1998 until payment is made in full.
6.1 Any dates quoted for delivery of the Goods are approximate only. The Seller shall not be liable for any loss or damage (including loss of profit and consequential loss) arising from any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing.
6.2 Delivery shall be at the delivery address specified in the quotation or Order or in the absence of any such address at the Seller’s premises: or
6.3 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Customer’s fault, and the Seller is accordingly liable to the Customer the Seller’s liability shall be limited to the excess (if any) of the costs to the Customer of similar goods to replace those not delivered over the price of the Goods.
6.4 If the Customer fails to take delivery of Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to the Seller, the Seller may:-
6.4.1 Store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage: or
6.4.2 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under Contract.
7. RISK AND PASSING OF PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Customer:-
7.1.1 In the case of Goods to be delivered to the Customer’s premises, at the time of delivery; or
7.1.2 In the case of Goods to be collected at the Seller’s premises, at the time when the Seller notifies the Customer that the Goods are available for collection; or
7.1.3 In the case of Goods to be delivered otherwise than at the Customer’s premises at the time of delivery and if the Customer wrongfully fails to take delivery of the Goods the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provisions of these Conditions, the property in the Goods shall not pass to the Customer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Customer for which payment is then due.
7.3 Until such time as the Customer has paid in full all monies owing under 7.2 above, the Customer shall keep the Goods in a fiduciary capacity for the Seller and shall take all steps necessary to ensure that the same are kept separately from any other assets in a safe place and the property marked as the property of the Seller and insured to their full value while in the Customer’s custody against all insurable risks.
7.4 Until such time as the property in the Goods passes to the Customer the Seller shall be entitled at any time to require the Customer to deliver up the goods to the Seller and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the same.
7.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remains the property of the Seller, but if the Customer does so all moneys owing by the Customer to the Seller shall (without prejudice to any other right or remedy of the Seller) become due and payable.
8. WARRANTIES AND LIABILITY
8.1 Save as stated in clauses 8.2 – 8.6 below, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects for a period of 28 days from delivery.
8.2 The above warranty is given by the Seller subject to the following conditions:-
8.2.1 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval.
8.2.2 The Seller shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.2.3 The Seller shall be under no liability in respect of defects in the Goods arising from any drawing, design, or specification supplied by the Customer;
8.2.4 The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Customer shall only be entitled to the benefit of such warranty or guarantee as is given by the manufacturer to the Seller.
8.3 Subject as expressly provided in these Conditions, all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law, but otherwise the statutory rights of the Customer are not affected by these Conditions.
8.4 Any claim by the Customer which is based on or their failure to correspond with specification any defect in the quality or condition of the Goods or their failure to correspond with specification shall be notified to the Seller within 35 days from the date of delivery (whether or not delivery is refused by the Customer). If delivery is not refused and the Customer does not notify the Seller accordingly the Customer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Customer shall be bound to pay the price.
8.5 When the Customer notifies the Seller in accordance with clause 8.4 above, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or at the Seller’s sole discretion, refund to the Customer the price or a proportional part of the price, but the Seller shall have no further liability to the Customer. For the avoidance of doubt the Seller shall have no liability to the Customer for Customer’s or third party costs in removing and/or replacing the Goods.
8.6 The Seller shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods if the delay was due to any cause beyond its reasonable control including act of God, war, riot, explosion, fire, flood, strike, shortages of materials or labour, and any restrictions, acts or similar measures of any kind on the part of any government, parliamentary or local authority import or export embargoes, strikes, lock-outs or other industrial actions or trade disputes.
9. INSOLVENCY OF THE CUSTOMER
9.1 In the event that the Customer makes any 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 purpose of amalgamation or reconstruction) or appoints or suffers to be appointed a receiver or administrative receiver, then the Seller may cancel the Contract or suspend any further deliveries under the Contract without liability to the Customer and if the Goods have been delivered and not paid for the price shall become immediately due and payable not withstanding any previous agreements to the contrary.
10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and sent by fax transmission or by first class post and addressed to that other party at its registered office or principal place of business or such other address as may at the relevant times have been notified pursuant to this provision to the party giving the notice, any such notice sent by post shall be deemed to been received 48 hours after the said notice has been properly addressed, stamped and put in the post.
10.2 No waiver by the Seller of any breach of the Contract by the Customer shall be considered a waiver of any subsequent breach.
10.3 If any provision of these Conditions is held by any competent authority to be invalid or enforceable in whole or part, validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
10.4 Nothing in these Conditions shall establish any rights for third parties and the parties agree that the Contracts (Rights of Third Parties) Act 1999 shall not apply to any Contract.
10.5 The Seller may from time to time hold and review personal data on individuals within the Customer’s organisation as part of its credit control procedures. This personal data relating to individuals (including partners, company directors and shareholders) credit ratings, may be required at or prior to the commencement of trading and continually updated. The Seller may retain such data for up to 6 years after any trading ceases with the Customer. The data is used to monitor and record credit performance and may be made available to other authorised organisations (including credit referencing agencies) to assess applications for credit. If a Customer or individuals within the Customer’s organisation would prefer the Seller not to hold and use personal data relating to them they should advise the Seller in writing at its registered office.
10.6 The Contract shall be governed by the laws of England and the parties hereby submit to the exclusive jurisdiction of the English Courts.