MITCHELL-ROWLANDS TERMS AND CONDITIONS OF TRADING
1. BASIS OF SALE
1.1 These Conditions shall apply to all contracts for the sale of goods by Mitchell-Rowlands (the Company) to you (the Customer) to the exclusion of all other terms and in any order or request for the supply of goods made by the Customer.
1.2 No variation of these conditions shall be binding unless agreed in writing and signed by the Company’s authorised representative. This document contains the entire terms and conditions of the agreement between us unless otherwise stated in writing.
1.3 These Conditions are personal to the Customer and may not be assigned without the prior consent of the Company.
2.1 All prices quoted are valid for 30 days only or until earlier acceptance by the Customer after which time they may be altered by the Company giving notice to the Customer. The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the goods to reflect an increase of the costs to the Company which is due to any factor beyond the control of the Company.
2.2 All prices quoted by the Company are exclusive of Value Added Tax.
3. PAYMENT TERMS
3.1 Unless the Customer has an approved credit account with the Company, all goods must be paid for prior to collection. If the Customer wishes to open a credit account with the Company a completed credit account application form must be submitted for the Company’s consideration. For clarification the Customer must inform the Company in writing of any subsequent change of name of other details contained within the credit account and must be able to provide copies of such request as evidence in any dispute that may arise out of such changes notwithstanding the fact that any changes will be at the sole discretion of the Company.
3.2 If the Customer has an approved credit account the Company shall invoice the Customer for the goods on/or at any time after delivery or collection of the goods and the Customer shall pay the price of the goods without deduction within one calendar month from the last day of the month in which these were supplied. The Customer may not withhold payment of any invoice or other amount that may be due to the Company by reason of any right of set off or counterclaim, which the Customer may have, or believe they have, or for any other reason.
3.3 If the Customer does not pay for the goods by the due date then the Company may cancel the contract, (and any related credit account), suspend any further deliveries to the Customer, and charge interest on the amount unpaid from the date that the goods were Invoiced at a rate of 4% (Barclays Bank Plc.) base rate, or the rate specified in the Late Payment of Commercial Debts (Interest Act) 1998 whichever shall be the higher or claim reasonable compensation for debt recovery costs as specified in the Late Payment of Commercial Debts Regulations 2002. The Company specifically reserves the right to charge an administration charge on each occasion a Customer payment is returned by its bank unpaid.
4. DELIVERY AND RETURNS
4.1 Unless otherwise stipulated in writing delivery of the goods shall be made by the Customer collecting the goods from the Company’s depot where the goods are purchased. Any dates quoted for delivery of the goods are approximate only and the Company shall not be liable for any delay in delivery. The time for delivery shall not be of the essence of this agreement. The Company’s liability (if any) for late or non-delivery of goods shall be limited to the price of those goods. The Company will not be liable to any claim for consequential loss or damage in these circumstances.
4.2 Company product parts will usually be dispatched within 3 working days or receiving cleared payments. Goods will be dispatched by either Royal Mail 1st Class Recorded or overnight TNT Trackable Service, depending on the size and weights of purchase. For Drainjetter machinery delivery terms and conditions will be agreed with the Customer at the time of order.
4.3 If the Customer does not take or accept delivery of the goods or gives inadequate delivery instructions (other than for reasons beyond the Customer’s control) then the Company may store the goods until actual delivery and claim the reasonable charges (including insurance) of storage or sell the goods at the best price readily obtainable and charge for any shortfall below the price under the contract.
4.4 If the Company has agreed to deliver the goods to the Customer’s premises or place of operations then the Customer is responsible for providing a safe means of access from the Public highway to the place of delivery. If the Company’s elected delivery driver consider that access is unsafe then the Company will not delivery until safe access is provided. If the Company is unable to deliver the goods due to there being no safe means of access then it may store or sell them and charge the Customer in accordance with this clause 4.3 of this Agreement.
4.5 The customer should notify the company within 7 days for any goods to be returned where goods are faulty or incorrectly supplied. Full credit for returned goods are discretionary to the Company and/or in agreement with the Customer.
4.6 The Customer is responsible for the return postage costs unless otherwise agreed with the Company.
5. WARRANTY / SPECIFICATION AND FITNESS FOR PURPOSE
5.1 Subject to clause 6 hereof the Company warrants the goods against defects in materials or workmanship for a period of twelve months from the date of delivery or collection. The Company’s obligations under warranty are limited to repair, replacement on an exchange basis or refunding the cost of the goods or those part of the goods, which are defective.
5.2 The goods are supplied on the basis that they conform to the written descriptions contained on the order of confirmation where supplied. Pictures and drawing in any catalogues are for illustrative purposes only.
5.3 As the Company’s goods have many individual applications, the Customer agrees to inspect the goods and satisfy himself or itself that they are fit and suitable for the particular intended purpose and are of appropriate quality. The Company gives no warranty that the goods are fit for any particular individual purpose, although does warrant that they are fit for the general purpose which is obvious from the very nature of the goods themselves. The Company shall be under no liability in respect of any defect in the goods arising from any drawings, design or specification supplied by the Customer. The Company shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failing to follow the instructions, misuse or alteration or repair of the goods, failing to store the goods in appropriate conditions or any breaches of the provisions of 5.4 hereof.
5.4 The Customer agrees to store and keep the goods properly and in accordance with instructions of the manufacturer.
6. CLAIM FOR DEFECT
6.1 The Customer shall inspect the goods on delivery and shall within five working days of delivery notify the Company in writing of any alleged defect, shortage in quantity, damage or failure to comply with description or sample (save where such defect is not reasonably apparent from an initial inspection or testing). If the Customer fails to comply with these provisions the goods shall be presumed to be in accordance with the contract and free from any defect or damage which will be apparent on a reasonable inspection of the goods and the Customer shall be deemed to have accepted them. The Customer shall notify the Company in writing of any non-delivery of the whole consignment of goods within 14 days of the date of dispatch as stated on the invoice.
6.2 The Customer must insure against any costs claims or demands arising from the Customer’s obligation to any third party and due indirectly or directly to any defects or delays in the goods or materials supplied or work done by the Company, and will indemnify the Company in respect thereof. Goods manufactured to the design or specification of the Customer are produced without warranty of any kind except their compliance with the design or specification.
6.3 The Customer will fully indemnify the Company in respect of any claim costs or expenses or demands resulting there from including the infringement of any intellectual property rights resulting from the Company’s use of the said design or specification. Any design and advisory services (including the preparation of drawing specifications and contract particulars) shall be provided by the Company with reasonable skill and care but no other representation or undertakings are made or can be implied in connection therewith.
7. RETENTION OF TITLE
7.1 Goods supplied by the Company shall be held at the Customer’s risk immediately on delivery to the Customer or into custody on the Customer’s behalf and the Customer should therefore be insured accordingly. Property in goods supplied here-under will pass to the Customer when they have been paid for in full and shall not pass upon delivery or collection. Until payment in full has been received by the Company, the Customer shall hold the goods in a fiduciary capacity for the Company in a manner which enables them to be identified as the goods of the Company and the Customer shall immediately return the goods to the Company on request. The Customer’s right to possession of the goods shall cease in the event of the Customer becoming insolvent or bankrupt or the subject of Administration, or if circumstances arise which would entitle any person to petition for the Customer’s winding up or bankruptcy, or in any Statutory Demand is served upon the Customer, or if the Customer makes any arrangements with its creditors which is in the alternative to being made insolvent or bankrupt.
7.2 The Customer grants the Company an irrevocable licence to enter at any time any vehicles or premises owned or occupied by the Customer or in its possession for the purpose of repossession and removing any such goods the property in which has remained in the Company under paragraph 7.2 hereof. The Company shall not be responsible for and the Customer will indemnify the Company against liability in respect of damage caused to such vehicles or premises in such repossession and removal being damage it was not reasonably practicable to avoid.
7.3 The Customer must ensure that if the Goods are or become affixed they shall be capable of removing without material injury to such and to take all the necessary steps to prevent title goods from passing to the landlord.
7.4 Notwithstanding paragraph 7.3 hereof, the Customer shall be permitted to sell the goods to third parties in the normal course of business. In this respect the Customer shall act in the capacity of a Commission Agent and the proceeds of such sale shall be held in trust for the Company in a separately identifiable bank account.
8. TERMS OF LIMITATION AND LIABILITY
The Company’s liability to the Customer for death or injury resulting from its own negligence or that of its employees’ shall not be limited. The Company shall accept liability to the goods themselves resulting from the negligence of the Company or its employees limited to the amount for which the Company has insurance cover under which a claim can be made in the sum of £10,000,000. The Company’s liability in the tort of negligence in respect of the goods themselves shall be limited to the price of the goods and no liability shall be accepted for any consequential loss or damage.
If the Customer shall fail to perform any of its contractual obligations here-under, fail to make payment; commit any act of bankruptcy or a receiver is appointed over its business undertaking or assets or has entered into liquidation whether compulsory or voluntary (save for the purpose of amalgamation or reconstruction of a solvent limited company). Cease to trade or threaten to crease to trade have exceeded its credit limit with the Company or the Company has any reason to have serious doubt as to the Customer’s solvency then the Company shall be entitled without notice and without prejudice to its other remedies to its other remedies in the Conditions to suspend or cancel the further performance of this Contract and if the goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. DATA PROTECTION
10.1 In relation to the processing of any personal data relating to the supply or otherwise to third parties by the Customer of the goods and services supplied by the Company to the Customer under the terms of the Agreement (or otherwise) the Customer is at all times the Data Controller in accordance with the terms of this Agreement a Data Processor on behalf of the Customer in accordance with the terms of the Data Protection Act 1998 (“The Act”)
10.2 The Customer warrants that it is and will at all times remain fully registered as a Data Controller and will ensure at all times that it complies with the effects of and the processes Under the Act when dealing with personal data including but not limited to personal data of any third party.
10.3 In relation to such processing the Company will act only on the instructions from the Customer. The Company agrees at all times to comply with the obligations imposed by the Act including the obligations imposed by the 7th Data Protection principle. The Company warrants that in relation to its role as a Data Processor it offers sufficient technical and organisational measures governing the processing and it will take and continue to take sufficient steps to ensure compliance with the Act.
11. LEGAL CONSTRUCTION
This Contract is subject to the laws of England and Wales and all disputes arising out of this Contract, subject to exclusive jurisdiction of the courts of England and Wales.