| 1. |
GENERAL
The Customer’s attention is drawn in particular to the provisions of clause 12. |
| 1.1 |
In these Terms and Conditions of Sale (“the Conditions”) the “Seller” shall mean Marine and Industrial LLP and “the Customer” shall mean any person, firm or company who purchases Goods from the Seller. |
| 1.2 |
These Conditions shall apply to any agreement or contract (“the Contract”) where the Customer places an order with the Seller in respect of any goods, equipment or products (“the Goods”) in accordance with these Conditions. |
| 1.3 |
The Order shall be the Customer’s order for the Goods as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Seller’s quotation, or overleaf as the case may be. |
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| 2 |
ACCEPTANCE OF ORDER |
| 2.1 |
These Conditions shall apply to the Contract to the exclusion of any other terms and conditions contained or referred to in any order, letter, form of contract or other communication sent by the Customer to the Seller or which are implied by trade, custom, practice or a course of dealing and the provisions of these Conditions shall prevail unless expressly varied in writing and signed by a duly authorised representative on the Seller’s behalf. |
| 2.2 |
Any concession made or latitude allowed by the Seller to the Customer shall not affect the strict rights of the Seller under the Contract. |
| 2.3 |
Any typographical or other error or omission in any sales literature, quotation, price list, invoice or other documentation or information issued by the Seller whether or not drawn from information provided to it by manufacturers of the Goods shall be subject to correction without any liability on the part of the Seller. |
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| 3 |
ORDERS AND QUOTATIONS |
| 3.1 |
A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue. All quotations are subject to withdrawal in whole or in part without notice. |
| 3.2 |
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order are complete and accurate (including any applicable specification submitted by the Customer) and the Customer shall be responsible for giving the Seller any necessary information relating the Goods within a sufficient time to enable the Seller to perform the contract in accordance with its terms. |
| 3.3 |
The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order or delivers the Goods (whichever is the earlier), at which point the Contract shall come into existence. |
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| 4 |
PRICES |
| 4.1 |
Unless otherwise agreed by the Seller in writing the price payable for Goods shall be the Seller’s listed price at the date of delivery. The Seller’s prices are subject to adjustment to take account of any variation in the Seller’s costs including (but not limited to) variations in wages, the cost of materials, exchange rate fluctuations, alteration of duties and other costs since the date of the Seller’s quotation or (if no quotation is issued) the date of the Order. The Seller accordingly reserves the right by giving notice to the Customer at any time before delivery to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted and the invoice so adjusted shall (unless the Customer being a consumer gives notice that the adjusted price is unacceptable) be payable as if the price set out therein were the original contract price. |
| 4.2 |
All prices are exclusive of Value Added Tax and this will be charged by the Company and will be payable by the Customer at the appropriate rate. The Customer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of VAT as are chargeable on the supply of the Goods. |
| 4.3 |
All prices are exclusive of carriage, packaging and insurance and this will be charged by the Seller and will be payable by the Customer accordingly at the appropriate rate. |
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| 5 |
ADDITIONAL COSTS |
| 5.1 |
The Customer shall indemnify the Seller in respect of any loss, cost or expense incurred by the Seller as a result, directly or indirectly, of the Customer’s instructions or lack of instructions or through any failure or delay whatsoever in taking delivery or through any other act, neglect or default on the part of the Customer, its servants, agents or employees. |
| 5.1 |
The Customer shall indemnify the Seller in respect of any loss, cost or expense incurred by the Seller as a result, directly or indirectly, of the Customer’s instructions or lack of instructions or through any failure or delay whatsoever in taking delivery or through any other act, neglect or default on the part of the Customer, its servants, agents or employees. |
| 5.2 |
If the Customer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other of the Seller’s rights or remedies, the Seller may 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 the Contract. |
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| 6 |
TERMS OF PAYMENT |
| 6.1 |
The Customer shall pay for the Goods in full and cleared funds not later than the end of the month following the month the invoice was dated save that payment shall become due immediately upon the occurrence of any of the events referred to in Condition 11 hereof. |
| 6.2 |
The price of the Goods shall be due in full to the Seller in accordance with the terms of Contract and the Customer shall not be entitled to exercise any set-off, lien or any other similar right or claim. |
| 6.3 |
The time of payment shall be of the essence of the Contract. |
| 6.4 |
Without prejudice to any other rights it may have if the Customer does not pay any sum due in accordance with the terms of the Contract and the Seller, at its discretion, instructs its solicitors to send a letter demanding payment then the Seller can charge the Customer the sum of £25 in respect of its costs in chasing for payment and this sum will be added to the amount outstanding under the Contract. |
| 6.5 |
Without prejudice to any other rights it may have the Seller is entitled (both before and after any judgment) to charge interest at a rate equal to the higher of the interest rate payable on court judgments or 2% above the Base Rate from time to time of Royal Bank of Scotland plc on overdue payments for the Goods. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgement. |
| 6.6 |
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law. The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Seller to the Customer. |
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| 7 |
DELIVERY |
| 7.1 |
Unless otherwise agreed by the Seller in writing the Goods will be delivered to the Customer’s premises as stated in the Contract (Delivery Location) on the date agreed or at any time after the Seller notifies the Customer that the Goods are ready. |
| 7.2 |
Where the Customer requests delivery in a manner other than that selected by the Seller in Condition 7.1 above, the Seller shall be entitled to charge any additional costs to the Customer’s account. |
| 7.3 |
Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location. |
| 7.4 |
Any time date or period given for delivery of the Goods is given in good faith but without any responsibility on the Seller’s part. Time of delivery shall not be of the essence of the Contract and the Seller shall not be liable for any delay in delivery of the Goods that is caused by a force majeure event, as set out in Condition 14, or the Customer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. |
| 7.5 |
If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the Goods. |
| 7.6 |
The Seller shall be entitled to deliver the Goods by instalments of any size and in any order, each of which shall constitute a separate Contract and shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. |
| 7.7 |
If the Customer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of the Seller’s fault) then without prejudice to any other right or remedy available to it the Seller may:- |
| 7.7.1 |
store the Goods until actual delivery and charge the Customer the reasonable costs (including transportation and insurance) of storage; or |
| 7.7.2 |
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 charged to the Customer or charge the Customer for any shortfall below such price. |
| 7.8 |
No liability (whether in contract or for negligence or otherwise howsoever) for loss of or damage to the Goods occurring prior to delivery or for any claim for non delivery of any Goods pursuant to the Contract or if the Goods are defective or are otherwise not in accordance with the Contract (being a defect or loss, damage or non-compliance which would be obvious upon a reasonable inspection of the Goods (whether such an inspection was carried out or not)) will attach to the Seller unless claims to that effect are notified in writing by the Customer to the Seller (and in the case of claims for loss, damage or non-delivery with a copy to the carrier if the Seller’s own vehicles have not been used to deliver the Goods) within 2 days of delivery. |
| 7.9 |
In the event of a valid claim for defect, loss, damage or non-compliance with the Contract or non-delivery the Seller undertakes at its option to replace the items concerned at its expense but shall not be under any further or other liability in connection with such non- delivery, loss, damage or non-compliance. |
| 7.10 |
If the Customer shall fail to give notice in accordance with Condition 7.8 above the items delivered shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Customer it shall be bound to accept and pay for the same accordingly and all claims in respect of non-delivery, loss, damage, defect or non-compliance shall (save as set out in Condition 10 below) thereafter be wholly barred. |
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| 8 |
RETURNS
Goods supplied in accordance with the Contract cannot be returned without the Seller’s prior written authorisation. Duly authorised returns shall be sent to the Seller’s Premises at the Customer’s expense. Any Goods returned may be subject to a handling charge at the Seller’s discretion. |
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| 9 |
PASSING OF TITLE AND RISK |
| 9.1 |
From the time of delivery the Goods shall be at the Customer’s risk and the Customer shall be solely responsible for their custody and maintenance. |
| 9.2 |
Title to the Goods shall not pass to the Customer until all sums due and owing to the Seller by the Customer for the Goods or on any account have been paid to the Seller in cash or cleared funds and until payment the Customer shall keep the Goods separate and identifiable from all other goods in its possession as the property of the Seller. |
| 9.3 |
Pending payment of the full purchase price of the Goods the Customer shall at all time hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods comprehensively insured against loss or damage by accident, fire theft and other risks usually covered by insurance in the type of business carried on by the Customer in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Seller’s interest. |
| 9.4 |
The Seller shall be entitled at any time before title passes to require the Customer to deliver up the Goods to the Seller at the Seller’s premises, including if the Customer becomes subject to any of the events listed in Condition 11 or the Seller reasonably believes that any such event is about to happen and notifies the Customer accordingly. |
| 9.5 |
If the Customer fails to deliver up the Goods forthwith in accordance with Condition 9.4 above the Customer hereby grants to the Seller an irrevocable licence to enter upon any premises in the ownership, possession or control of the Customer at any time to recover the Goods. |
| 9.6 |
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 remain the property of the Seller. |
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| 10 |
CONDITIONS AND WARRANTIES |
| 10.1 |
The Contract shall not constitute a sale by description or sample. |
| 10.2 |
The Seller warrants that on delivery, and for a period of one month from delivery, the Goods shall: |
| 10.2.1 |
conform in all material respects with their description; and |
| 10.2.2 |
be free from any material defects in design, material and workmanship. |
| 10.3 |
Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. |
| 10.4 |
In substitution for all rights which the Customer would or might have but for these Conditions, the Seller undertakes that if any Goods delivered are in breach of the warranty at clause 10.2 on delivery or if within one month of delivery of any item of the Goods a defect in materials appears therein being a defect which would not be obvious on reasonable inspection (whether such an inspection was carried out or not) it will at its own discretion either credit to the Customer the full price paid by the Customer to the Seller for such item or supply a replacement free of charge to the place of delivery specified by the Customer for the original Goods provided that the original Goods have been paid for. |
| 10.5 |
The Seller will pass on to the Customer, to the extent that it is able, any benefits obtainable under any warranty given by the Seller’s sup plier provided that the Goods have been accepted and paid for. |
| 10.6 |
In order to exercise its rights under this Condition the Customer shall inform the Seller within seven days of the date when such defect appeared or ought reasonably to have been discoverable and shall at the Seller’s written request return the defective Goods carriage paid to the Seller’s premises. |
| 10.7 |
Nothing herein shall impose any liability upon the Seller in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Customer, its servants or agents including in particular (but without prejudice to the generality of the foregoing) any failure by the Customer or any third party contracted by the Customer to comply with any recommendations of the Seller as to storage, handling and application or use of the Goods. |
| 10.8 |
Nothing herein shall have the effect of excluding or restricting the liability of the Seller for death or personal injury resulting from its negligence or any other restriction which is prohibited by law. |
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| 11 |
DEFAULT OR INSOLVENCY OF CUSTOMER |
| 11.1 |
If the Customer shall be in breach of any of its obligations under the Contract; or if the Customer suspends payment of its debts; or is unable to pay its debts as they fall due; or if any distress of execution shall be levied on the Customer’s property or assets; or if the Customer shall make or offer to make any arrangement or composition with his creditors; or be subject to any act of bankruptcy; or if any bankruptcy petition be presented against him; or (if the Customer is a company) if any resolution or petition to wind up such company shall be passed or presented; or if a receiver, administrative receiver or administrator of the whole or any part of such a company’s undertaking property or assets shall be appointed; or any event that has an effect equivalent to any of the above; or (if the Customer is an individual) the Customer dies or by reason of illness or incapacity is incapable of managing his or her own affairs; the Seller in its discretion and without prejudice to any other right or claim may by notice in writing determine wholly or in part any and every contract between the Seller and the Customer or may, by notice in writing, suspend delivery or any further deliveries (as the case may be) of Goods without any liability to the Customer until any default by the Customer be remedied or at the Seller’s discretion, terminate the Contract. |
| 11.2 |
If the Seller reasonably believes that the Customer is about to become subject to any of the events listed at 11.1 and notifies the Customer accordingly then, without limiting any other right or remedy available to the Seller, the Seller may cancel or suspend all further deliveries under the Contract or any other contract with the Customer without incurring any liability to the Customer and all outstanding sums in respect of the Goods delivered to the Customer shall become immediately due. |
| 11.3 |
The Seller may by written notice terminate the Contract immediately if the Seller reasonably believes that the financial position of the Customer has deteriorated to such an extent that in the opinion of the Seller the capability of the Customer to adequately fulfil its obligations under the Contract has been placed in jeopardy. |
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| 12 |
LIMITATION OF LIABILITY |
| 12.1 |
Nothing in these Conditions shall limit or exclude the Seller’s liability for death or personal injury caused by the Seller’s negligence or for fraud or misrepresentation or any other matter in respect of which it would be unlawful for the Seller to exclude or restrict liability. |
| 12.2 |
Subject to clause 12.1: |
| 12.2.1 |
the total liability of the Seller (whether in contract, tort (including negligence) or breach of statutory duty or otherwise howsoever) to the Customer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the price of the Goods; and |
| 12.2.2 |
the Seller shall not be liable to the Customer for any costs, claims, damages or expenses or other consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller its employees or agents or otherwise) which arise out of or in connection with the supply of Goods or their use or resale by the Customer except as expressly provided in the Conditions. |
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| 13 |
REPRESENTATIONS |
| 13.1 |
The Contract constitutes the entire agreement between the parties. |
| 13.2 |
Any advice or recommendation given by the Seller or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Customer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed. |
| 13.3 |
No statement, description, information warranty, conditions or recommendation contained in any catalogue, price list, publication, advertisement or communication or made verbally by any of the Seller’s agents or employees shall be construed to enlarge, vary or override in any way any of the Conditions. |
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| 14 |
FORCE MAJEURE
The Seller shall be entitled to delay or cancel delivery or to reduce the amount of Goods delivered if and to the extent that it is prevented from or hindered in or delayed in obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its control, which by its nature could not have foreseen, or if it could have foreseen, was unavoidable including (but not limited to) strikes, industrial disputes (whether involving its own workforce or a third party’s), acts of God or natural disasters, accidents, war, terrorism, fire, flood, reduction in or unavailability of raw materials from normal sources of supply. |
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| 15 |
PATENTS
The Seller gives no warranty or condition express or implied in respect of the Goods as to freedom from patent rights, design rights, copyright or any other intellectual property rights. |
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| 16 |
CANCELLATION
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, damages, charges and expenses incurred by the Seller as a result of cancellation. |
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| 17 |
GENERAL |
| 17.1 |
The Seller may at any time assign, transfer, charge or subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not undertake any of the above without the prior written consent of the Seller. |
| 17.2 |
No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it, nor will any partial exercise preclude any further exercise of the same, or of any other right, power or remedy. |
| 17.3 |
If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, apply with the minimum modification necessary to make it legal, valid and enforceable or the provision will be severed from that Contract and will be ineffective, without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect. |
| 17.4 |
Any notice in connection with the Contract will be in writing addressed to the other party at its registered office, or principal place of business and will be delivered by hand, or first class or special delivery post or by fax or email to an address notified by the other party. The notice will be deemed to have been duly served, if delivered by hand, when left at the proper address for service, oe if by pre-paid, first- class post or special delivery post, 48 hours after being posted or if delivered by fax or e-mail one business day after transmission. This does not apply to the service of any documents in any legal action. |
| 17.5 |
A person who is not a party to the Contract shall not have any rights under or in connection with it. |
| 17.6 |
The Contract shall in all respects be governed by and construed in accordance with English law and the Customer and the Seller agree to submit to the exclusive jurisdiction of the English courts. |