TERMS AND CONDITIONS
TERMS AND CONDITIONS
In these Conditions the following words shall have the following meanings:
“Buyer”: the person, firm or company who purchases Goods from MS Protection Ltd “Conditions”: the standard terms and conditions set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in writing between MS Protection Ltd and the Buyer.
“Contract”: the contract between MS Protection Ltd and the Buyer for the sale and purchase of the Goods incorporating these Conditions.
“Goods”: any goods agreed in the Contract to be supplied to the Buyer by MS Protection Ltd (including any part or parts of them)
“MS Protection Ltd”: MS Protection Limited (company number 11020554) of Unit 8, Strode Road, Newnham Park Industrial Estate, Plympton, Devon PL7 4AY.
“Working Day”: A day on which the clearing banks in the City of London are open for business
2. Application of Conditions
2.1. These Conditions apply to the Contract to the exclusion of any other terms and conditions which the Buyer seeks or purports to impose or incorporate under any purchase order, confirmation of order, specification or other document or which are implied by trade, custom practice or course of dealing and the Buyer waives any right which it might have to rely on such terms or conditions.
2.2. No variation to these Conditions or any representation about the Goods shall have effect unless expressly agreed in writing and signed by a duly authorised representative of MS Protection Ltd.
2.3. Each order from the Buyer for Goods to be supplied by MS Protection Ltd shall be deemed to be an offer by the Buyer to purchase Goods subject only to these Conditions.
2.4. No order placed by the Buyer shall be deemed to be accepted by MS Protection Ltd and Contract come into force until a written acknowledgement of order is issued by MS Protection Ltd or (if earlier) MS Protection Ltd delivers the Goods to the Buyer.
2.5. The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
Any quotation given by MS Protection Ltd is valid for a period of 90 days only from its date, provided that MS Protection Ltd has not previously withdrawn it.
2.6. Where the Customer is a consumer (as defined in the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contracts Regulations 1999), the consumer’s statutory rights are not adversely affected by anything contained in these conditions.
3. Description and Suitability
3.1 The description of the Goods shall be set out in MS Protection Ltd’s catalogue or quotation.
3.2 All drawings, descriptive matter, specifications and advertising issued by MS Protection Ltd and any descriptions or illustrations contained in MS Protection Ltd’s catalogues or brochures are issued or published with the sole purpose of giving an approximate idea of the goods described in them. They shall not form part of the Contract.
3.3 The Buyer shall satisfy itself as to the suitability of the goods for any purpose for which the Buyer intends to use the Goods.
4.1 Unless otherwise stated, MS Protection Ltd shall deliver or arrange delivery of the Goods to the Buyer’s normal place of business or such other place agreed in writing with the Buyer and delivery shall be completed upon arrival there.
4.2 Any date specified by MS Protection Ltd for delivery of the Goods is an estimate only and time for delivery of the goods is not of the essence. If no date has been so specified, delivery of the goods will be within a reasonable time. MS Protection Ltd shall not be liable for any delay in delivery of the Goods that is caused by the occurrence of any of the events referred to in clause 12.1 or by the Buyer’s failure to provide MS Protection Ltd with adequate delivery instructions or any other instructions which are relevant to the supply of goods.
4.3 If MS Protection Ltd fails to deliver the goods or is late doing so after time of delivery has been made of the essence, its liability shall be limited to the costs incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.4 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or MS Protection Ltd is unable to deliver the goods on time because the Buyer has not provided appropriate instructions, documents, licenses or authorisations, cost of the goods will pass to the Buyer and MS Protection Ltd may store them until actual delivery and the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance)
5.1 The quantity of any consignment of Goods as recorded by MS Protection Ltd upon despatch from MS Protection Ltd’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 MS Protection Ltd shall not be liable for any non-delivery of Goods unless written notice is given to MS Protection Ltd within 5 Working Days of the date when the Goods would in the ordinary course of events have been delivered.
5.3 Any liability of MS Protection Ltd for non-delivery of any Goods shall be limited to replacing those Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.4 MS Protection Ltd may deliver the Goods by instalments for any items out of stock at the time of order, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
6.1 Unless otherwise agreed in writing by MS Protection Ltd the price for the Goods shall be the price set out in MS Protection Ltd’s price list in force at the date of delivery.
6.2 Prices are subject to change, notice given to the customer will be 30 days prior to any price change taking effect.
6.3 The price for the Goods shall be exclusive of any value-added tax and all costs or charges in relation to loading, unloading, carriage and insurance of the goods which the Buyer shall pay in addition.
7.1 MS Protection Ltd reserves the right to require payment in full of the price with order. Where MS Protection Ltd agrees to grant credit terms to the Buyer, MS Protection Ltd’s normal credit terms are payment in full of the price within 30 days of the date of MS Protection Ltd’s invoice (unless alternative payment terms have been agreed in writing between the buyer and MS Protection Ltd Time of payment is of the essence.
7.2 MS Protection Ltd may at its discretion and without limiting its other rights or remedies, suspend the supply of Goods or terminate the Contract with immediate effect in each case by giving written notice, if the Buyer fails to pay any amount due under this Contract on the due date for payment or if the Buyer is subject to any of the events listed in clause 8.5.1 or 8.5.2 or MS Protection Ltd reasonably considers that the Buyer may be so subject.
7.3 All sums payable to MS Protection Ltd under the Contract shall become due immediately upon termination of the Contract despite any other provision.
7.4 The Buyer shall make all payments due under the Contract without any deduction by way of set-off, counterclaim, discount, abatement or otherwise.
7.5 If the Buyer fails to pay MS Protection Ltd any sum due pursuant to the Contract the Buyer may be liable to pay interest to MS Protection Ltd on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgement. MS Protection Ltd reserves the right to claim interest and/or compensation for debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998.
8. Risk and Ownership
8.1 The goods shall be at the risk of the Buyer from the time of delivery.
8.2 Ownership of the Goods shall not pass to the Buyer until MS Protection Ltd has received in full (in cash or cleared funds):
8.2.1 All sums payable in respect of the Goods including any interest; and
8.2.2 All other sums which are, or which become due to MS Protection Ltd from the Buyer on any account including any interest on such sums.; or
8.2.3 Where the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 8.4
8.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
8.3.1 Store the Goods separately to other goods of the Buyer or any third party in a way that they remain readily identifiable as MS Protection Ltd’s property.
8.3.2 Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3 Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on MS Protection Ltd’s behalf from the date of delivery;
8.3.4 Notify MS Protection Ltd immediately if it becomes subject to or is reasonably likely to become subject to any of the events listed in clause 8.5 below
8.4 Subject to clause
8.5 the Buyer may resell the Goods before ownership has passed to it solely on the condition that any sale shall be on the Buyer’s own behalf in the ordinary course of the Buyer’s business and the Buyer shall deal as the principal when making such sale.
8.6 The Buyers’ right to possession of the Goods shall terminate immediately and MS Protection Ltd may require the Buyer to deliver up any Goods in its possession which have not been resold or irrevocably incorporated into another product if:
8.6.1 the Buyer has a bankruptcy order or insolvency petition made or threatened against it or makes an arrangement or composition with its creditors or (being a body corporate) convenes a meeting of creditors (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 over its undertaking or any part thereof, or a resolution is passed or a petition presented 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 of the Buyer; or
8.6.2 the Buyer encumbers or in any way charges any of the Goods or suffers or allows any execution to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between MS Protection Ltd and the Buyer, or is unable to pay its debts or the Buyer ceases to trade.
8.7 MS Protection Ltd shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from MS Protection Ltd.
8.8 The Buyer grants MS Protection Ltd, 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.
9.1 MS Protection Ltd warrants (subject to the other provisions of these Conditions) that:
9.1.1 Upon delivery the Goods will be of satisfactory quality;
9.2 MS Protection Ltd shall not be liable for a breach of warranty in condition 9.1 unless:
9.2.1 The Buyer gives written notice of damage/shortage/defect to MS Protection Ltd within 5 Working Days of the delivery date.
9.2.2 MS Protection Ltd is given a reasonable opportunity of examining the Goods and the Buyer (if asked to do so by MS Protection Ltd returns the Goods to MS Protection Ltd’s place of business for the examination to take place there.
9.3 MS Protection Ltd shall not be liable for a breach of warranty in condition 9.1 if:
9.3.1 The Buyer makes any further use of the Goods after giving notice of any defect; or
9.3.2 The defect arises because the Buyer or its customer failed to follow MS Protection Ltd’s written or oral instructions or good trade practice as to the storage, installation, maintenance or use of the Goods, or
9.3.3 The Buyer alters or repairs the goods without the written consent of MS Protection Ltd; or
9.3.4 The defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions.
9.4 Subject to conditions 9.2 and 9.3, if any of the Goods do not conform with the warranty in condition 9.1 MS Protection Ltd shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate (subject to the Buyer having already paid for them) and shall have no further liability for breach of or failure to comply with the warranty set out in clause in 9.1.
9.5 If MS Protection Ltd requests, the Buyer shall return the Goods or the parts of such Goods which are defective to MS Protection Ltd.
10. Limitation of Liability
10.1 Subject to conditions 4, 5 and 9, the following provisions set out the entire financial liability of MS Protection Ltd (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to the Buyer in respect of:
10.1.1 Any breach of these Conditions; and
10.1.2 Any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10.3
10.3 Subject to conditions 10.1 and 10.2
10.3.1 MS Protection Ltd’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of the Goods and/or the subject of the claim; and
10.3.2 MS Protection Ltd shall not be liable to the Buyer for:
· Loss of profit;
· Loss of business;
· Loss of goodwill and/or similar losses;
· Loss of anticipated savings;
· Loss of goods;
· Loss of contract;
· Loss of use; or
· any special, indirect, consequential, or pure economic loss, costs, damages, charges or expenses.
11. Designs and Tooling
11.1 Unless otherwise agreed in writing by an authorised signatory of MS Protection Ltd, all designs, images, specifications and tooling created by MS Protection Ltd or by any third party for MS Protection Ltd and all copyright, design rights and other intellectual property rights in such designs and tooling shall belong to and remain the property of MS Protection Ltd.
12. Events beyond MS Protection Ltd’s control
12.1 MS Protection Ltd reserves the right to defer the date of delivery of the Goods or to cancel the Contract or to reduce the volume of Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business and or performing the Contract due to circumstances beyond the reasonable control of MS Protection Ltd including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce),breakdown of plant or machinery, default of suppliers or sub-contractors restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
12.2 MS Protection Ltd shall not be liable to the Buyer as a result of delay or failure to perform all or any of its obligations under the Contract as a result of any event referred to in clause 12.1.
13.1 The Buyer shall not assign the Contract or any part of it without the prior written consent of MS Protection Ltd.
13.2 The Buyer shall not use MS Protection Ltd’s name, logo or other intellectual property rights in advertising or publicity without MS Protection Ltd’s prior written consent.
13.3 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.
13.4 Failure or delay by MS Protection Ltd in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.5 Any waiver by MS Protection Ltd of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.6 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party as its principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
13.7 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.