Orders are accepted and equipment sold by MSA Engineering Systems Limited (“the Seller”) only on the following terms and conditions unless expressly accepted in writing by the Seller. If the Buyer’s order is inconsistent with these conditions the Sellers acceptance of the Buyers order shall constitute a counter offer and the Buyer shall be deemed to have accepted these conditions unless it notifies the Seller to the contrary within five days of receiving the Sellers acceptance of the order.
- No quotation, estimate or tender given or made by the Sellers shall form an offer capable of acceptance by the Buyer. A binding contract for sale shall only be created upon the acceptance in writing by the Sellers of the Buyers order or other offer to purchase.
- Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document, or information issued by the Sellers shall be subject to correction without any liability on the part of the Sellers.
- The Seller only accepts responsibility for compliance with any relevant codes, regulations, standards or rules published prior to the date of the Sellers tender or quotation.
- Unless expressly stated otherwise in any quotation issued by the Sellers to the Buyer, all prices quoted are ex-works and exclude the cost of packing. Any applicable value added tax or any other sales tax or excise duties paid or payable by the Sellers shall be added to the price and shall be payable by the Buyer.
- Firm price quotations are valid for a period of one month only from the date of quotation unless otherwise stated in writing. The Sellers may, at their absolute discretion, accept or reject any order placed by the Buyer.
- In the event of the Buyer cancelling a part of the order in accordance with the provisions of Clause 13, the Sellers reserve the right to revise the price or prices quoted for goods already delivered.
- The Sellers reserve the right to review the contract price(s) in the event of devaluation of the pound sterling, or fluctuation in the foreign exchange rates.
- If the Seller incurs extra expenditure as a result of any delay or suspension of work resulting from the Buyers instructions, or from any alteration to the Buyers specification, or otherwise from the Buyers fault, or for causes beyond the Sellers control, the price shall be adjusted accordingly.
- Payment shall be made by the Buyer in accordance with the terms of payment set out in the Sellers Acknowledgement of Order, or other form of Agreement, or, if no such terms are included, not later than the last day of the month following the month in which the invoice was issued.
- If payment is not made in accordance with the terms of payment all moneys owed by the Buyer to the Seller in respect of any order shall immediately become due and payable, and recoverable forthwith.
- The Seller may charge interest on overdue payments from the date they become due at an annual rate of not less than 4% above the Sellers bankers Base Rate from time to time in force.
- The discounts allowed to the Buyer are those shown on the Sellers quotation only, and, unless otherwise expressly agreed in writing, no other discounts or commissions are to become due or allowable to the Buyer (any previous course of dealing between the parties notwithstanding).
- The Seller shall be entitled to re-take possession of any equipment at any time prior to payment by the Buyer of the full purchase price for which the Seller, its agents and employees shall be entitled to enter the premises where the equipment is located for the purpose of recovering the same without any liability for damage caused through negligence of the Seller, its agents or employees.
4. Credit Agreements
- Where the Sellers have granted the Buyer a credit facility, the price for the goods and/or service shall be paid by the Buyer on or before the last day of the month immediately following the month in which the goods are invoiced (‘the due date’) or, if the Sellers shall so require, under Clause (4b), to be paid on demand without any period of notice.
- The Sellers reserve the right to withdraw or vary credit facilities at any time by summary written notice to the Buyer, without either giving any reason for so doing, or thereby incurring any liability to the Buyer.
- If the Buyer takes goods from the Sellers in excess of the Buyer’s Credit limit, the Sellers may require payment on delivery for such excess of goods.
- Time for Delivery dates from the Sellers acceptance of the Buyers Order.
- The Seller shall not be under any liability to the Buyer in respect of any delay in delivery howsoever arising, or any damage in respect of, or loss caused by, or resulting from any such delay.
- The Buyer shall take delivery of the equipment within seven days of notification by the Seller that the equipment is ready for collection or delivery.
- Where it is agreed in writing that the Seller shall be liable to the Buyer for delay in delivery, the Buyer shall nonetheless have no claim against the Seller for delay in delivery, or failure to deliver the equipment as a result of strikes, labour disputes or other industrial action, emergency conditions, fire, flood, accident, or any other cause whatsoever beyond the Sellers control, but affecting the Seller or any of its subcontractors, whether or not of a similar nature to any of the foregoing; nor shall the Buyer have any claim against the Seller for failure to deliver the equipment within the time specified if the Buyer is in breach of any of the terms hereof, or in any way delays the work.
6. Title and Risk
- Title in, and property to the equipment shall not pass to the Buyer until the Seller has received payment in full therefor, but in the case of delivery by instalments, title to the equipment comprised in an instalment shall pass when payment has been made in full for all the equipment comprised in that instalment.
- Responsibility for safe custody, protection and preservation of the equipment after delivery is deemed to have taken place shall rest with the Buyer who shall take all proper steps with regard thereto, and shall, in any event, remain liable to pay for all equipment delivered at, or despatched from, the Sellers premises.
- Where it is agreed that the Seller shall forward the equipment to the Buyers order the equipment will (unless otherwise agreed in writing) be at the Buyers risk with effect from the time the equipment is loaded at the Sellers premises.
- Until the Seller has received payment in full for the equipment, the Buyer shall not be entitled to use or operate the equipment without the consent of the Seller. Such consent may be withdrawn at any time without prior notice to the Buyer.
- Where equipment is to be delivered by instalments, each instalment shall be deemed to be purchased under a separate contract.
- Where the order provides for delivery and payment by instalments, the Seller shall be entitled to withhold delivery of any subsequent instalment of equipment until the Buyer has paid for every previous instalment delivered by the Seller.
8. Damage Shortage or Loss
- On delivery, the Buyer shall examine the goods for defects and completeness. Thereafter, no claim for damage in transit, for shortage in delivery, or for loss of goods will be entertained unless, in the case of damage, a separate notice in writing is given to the Carriers and to the Sellers within three days of the receipt of the goods, followed within 14 days of the date of advice of despatch by a complete claim in writing; or, in the case of loss of goods, a separate notice in writing and a claim is given to the Sellers and Carriers within 14 days of the date of the Sellers advice of despatch to the Buyer. In all cases a signature ‘unexamined’ shall be deemed to be an unconditional acceptance of the goods.
- The Sellers shall, in no circumstances, be liable to the Buyer in contract or tort, or otherwise for any consequential loss, damage, injury or expense however caused, whether to the Buyer, or to any other person or thing, and whether arising directly or indirectly from the defect, damage or loss.
- Unless otherwise agreed in writing and subject to sub-clause (b) of this clause equipment supplied by the Seller is guaranteed against defective workmanship or materials for a period of 12 months after receipt of the equipment by the Buyer.
- The Sellers guarantee under this clause is subject to the condition precedent that the Buyer maintains and uses the equipment during the guarantee period in accordance with the Sellers Operating Manual, and in a proper manner, and that the equipment is operated by persons competent to operate such equipment, and the Sellers guarantee shall become null and void if the Buyer at any time during the guarantee period carries out, or permits to be carried out, any repairs, alterations, modifications or servicing (other than routine servicing in accordance with the Sellers Operating Manual) or otherwise interferes with the equipment without the Sellers consent.
- The Seller shall be notified in writing of any defect and, subject to the Sellers instructions, any defective equipment or parts shall be returned to the Seller carriage paid.
- The Sellers liability in respect of defective equipment shall be limited to the repair, or at the Sellers option, the replacement of the equipment or any part thereof proved to the satisfaction of the Seller to be defective provided that the Sellers liability hereunder shall not in any case exceed the cost of the equipment accepted back by the Seller.
- The Guarantee given in this clause does not extend to defects in any part of the equipment not manufactured by the Seller. The Buyer shall be entitled only to the benefits of such guarantee, warranty or condition as the Seller may have received in respect thereof, and only to the extent that the Seller can enforce the same, or the benefit thereof can be transferred to the Buyer provided that the Buyer shall indemnify the Seller against any expense incurred by the Seller in this connection.
- The Seller shall in no circumstances be liable to the Buyer in contract or tort or otherwise for any consequential damage, injury, loss or expense however caused, whether to the Buyer, or to any other person or thing and, whether arising directly or indirectly from the defect.
- The Guarantee given in this clause does not apply to defects due to rust, wear and tear, neglect, or use of the equipment for any purpose other than that for which it was designed.
- Save as mentioned in this clause all warranties, conditions and representations, whether express or implied by statute, usage, trace, custom or otherwise, and relating to the quality or nature of the equipment its condition, or its life or wear, or suitability for any particular purpose, or use under any specific conditions are hereby excluded notwithstanding that the Buyer may have indicated that the goods are being bought for a particular purpose.
10. Injury or Damage Arising from use of Equipment
- The Buyer shall give an undertaking to the Seller that all necessary steps are taken to ensure that the equipment will be operated in a safe manner and without risks to health and in particular (but without limitation) that the Buyer shall procure that employees comply with, the Operating Safety Instructions included in the Operating Manual and all statutory safety requirements and procedures whilst operating the equipment.
- The Seller accepts no liability or responsibility for any injury loss or damage arising either directly or indirectly from the use of equipment supplied by the Seller.
11. Illustrations and Descriptions
- Photographs, drawings and other illustrations or descriptions contained in any catalogue, price list, brochure, quotation or other document of the Seller shall not (save where the contrary is expressly stipulated in the order) form part of any contract between the Buyer or the Seller, and no warranty is given that equipment supplied will correspond exactly with that specified.
- No oral statement or representation made at any time prior to the Contract shall be a term of Contract, or deemed to be an inducement or collateral contract pursuant to which the Buyer entered into the Contract.
- The Seller reserves the right at any time before or after an order is placed to vary, alter or amend any particulars, descriptions, prices, measurements or specifications contained in its catalogues, price lists, brochures and other sales literature, and
- such alterations, amendments and variations shall be binding upon the Buyer.
Cancellation of an order by the Buyer cannot be accepted, or equipment returned for credit, unless previously agreed to in writing by the Seller. Where such cancellation is agreed the Seller reserves the right to charge the Buyer with the amount of any losses or expenses incurred, or material used, and a reasonable allowance for overhead charges and profits.
13. Tests and Inspection
- The Seller shall carry out tests of the equipment and if a request is made by the Buyer to attend, shall give the Buyer such period of notice not exceeding seven days as may be agreed before such tests are carried out.
- The Buyer shall be entitled to send representatives to attend at such tests and such representatives shall immediately after such tests agree the results of such tests with the Seller.
- In the absence of representatives of the Buyer at such tests, the Buyer shall not be entitled to reject the equipment tested.
- The Buyer shall supply any special test materials required for tests other than the Sellers standard test. Inspection fees resulting from inspections, whether or not stipulated in the Contract, will be for the Buyers account.
- The Buyer shall not be entitled to reject any equipment if such equipment varies from the given specification, provided that such variation is within the permitted tolerances allowed by the relevant British or European Standards from time to time in force for such equipment, and that the equipment performs the function satisfactorily for which it was designed.
14. Patents, Trade Marks, Registered Designs and Copyright
- Provided that all equipment sold to the Buyer and all parts thereof shall have been used only in a manner or for a purpose for which it was designed, or disclosed to the Seller in writing prior to the making of the Contract, if any claim or action is made or brought against the Buyer in respect of infringement of any Patent, Trade Mark or Registered Design arising from the manufacture or sale by the Seller of the equipment the Buyer shall forthwith give notice to the Seller of such claim or action and the Seller shall be at liberty at its own expense, but with the Buyers assistance if required, and in the name of the Buyer to contest such claim or action or conduct any negotiations for the settlement thereof. The Buyer shall not make any admission which might be prejudicial to any such negotiation or litigation.
- Subject to the proviso contained in sub-clause (a) hereof the Seller shall indemnify the Buyer in respect of any such claim or action mentioned therein.
- The Buyer shall indemnify the Seller against all claims and actions made or brought against the Seller for infringement of any Patent, Trade Mark or Registered Design where the equipment is manufactured and supplied to the Buyers design and/or specifications.
- The Seller reserves the copyright for all its drawings, prints, plans and other data.
- Any invention, disclosure or information made, received or acquired by the Seller in the performance of any order shall remain its property.
- No trade marks, trade names or indicia of patent rights or origin shall be defaced or removed from equipment supplied by the Seller without the Sellers previous written consent, nor may any such equipment be advertised or used at any show display or exhibition without such consent.
The Seller reserves the right to sub-contract any work it is obliged to carry out under these conditions.
16. Termination Lien and Damages
- Without prejudice to any rights of the Seller the Seller may determine the contract if:
- The Buyer shall fail to take delivery of the equipment when required to do so, or shall, after due warning, commit or continue any serious breach of its obligations under any contract with the Seller; or
- Any distress execution or other legal process is levied upon any of the Buyers assets; or
- the Buyer shall make any arrangement or composition with its creditors, commit any act of bankruptcy or (being a corporation) shall enter into liquidation or have a winding up petition presented against it, or calls a meeting of its creditors or suffer the appointment of a receiver in respect of its undertaking or assets.
- Without prejudice to any of the rights of the Seller, the Seller shall in the event of determination be entitled to recover from the Buyer:
- the contract value of any work completed, or equipment manufactured at the date of determination.
- the value of any such work begun, or equipment begun to be manufactured but not completed at such date, such value to include the cost of materials, labour, overheads and a fair profit as determined by the Sellers auditors whose decision shall be conclusive and binding on the Seller and the Buyer.
- the cost of the goods and materials ordered by the Seller pursuant to the Contract for which the Seller has to pay.
- The Seller shall have in addition to any other remedy a general lien on all equipment of the Buyer which may be in the possession of the Seller (although such equipment or part of it may have been paid for) for all moneys due to the Seller by the Buyer under the order and may, at its discretion, sell such goods and apply any moneys received on such sale, or sales, in reduction of those moneys due from the Seller from the Buyer.
17. Variations To Conditions
Unless expressly agreed by the Seller and confirmed in writing by a Director of the Seller no variations, additions to, or modifications of these conditions shall be binding upon the Seller.
18. Law Applicable
These conditions shall be governed and construed in accordance with English law and all disputes arising in connection therewith shall be submitted to the jurisdiction of the English courts.