Standard Terms and Conditions of Sale
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1. VARIATIONS AND CONDITIONS:
Any contract made by Mayr Transmissions Ltd
(hereinafter called “The Seller”) for the supply of its products to
a Purchaser or Customer (hereinafter called “The Buyer”) shall be
subject to the following Conditions of Sale which shall supersede
any earlier sets of conditions appearing in the Seller’s catalogues
or elsewhere. It is agreed that only these Conditions shall apply to
Contracts between the Seller and the Buyer and any documents
emanating from the Buyer which contain printed or standard
conditions which have been or shall be sent by the Buyer are
received by the Seller on the understanding that they appear on the
Buyer’s documents because they are printed thereon but have no legal
effect whatsoever and the Buyer waives any right which the Buyer
otherwise might have to rely on such Conditions.
The Seller reserves the right to add to, amend or
vary the Conditions as herein set out by appending such addition,
variation or modification to the quotation or in any written
correspondence effected between the parties.
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2. PRICE AND VARIATION:
Any price recorded in the Order or Contract is
subject to alteration without notice and the Seller’s price for the
products ruling at the date of despatch of the Products will be the
Contract price. All prices stipulated are subject to additional
carriage and packing charges. All prices quoted are exclusive of
Value Added Tax that, if applicable, shall be added to the price at
the rate prevailing at the date of Tax point.
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3. PAYMENT AND EFFECT OF NON-PAYMENT:
a)
Credit will be granted at the Seller’s discretion and the following
terms for payment will then apply. Otherwise, Products must be paid
for by the Buyer at the time of Order.
b)
Payment at Net Invoice Value is due thirty days from date of
invoice.
c)
Goods will be invoiced when ready for despatch and where progress
payments are the agreed terms then the provisions of sub-clause b)
hereof will apply to the final instalment only of the price.
Without prejudice to all other rights available
to it in Common Law the Seller reserves the right in the event of
the buyer not complying with the agreed provisions as to payment
made at the time of entering into the Contract to suspend work upon
the Contract until the agreed Terms of Payment have been fully
undertaken by the buyer to the Seller’s satisfaction. In the event
of such suspension of work operating the Buyer shall have no claim
against the Seller for late delivery or late completion of the
Contract and furthermore the Seller shall be entitled to charge the
Buyer the cost of ‘waiting time’ and any other expenses incurred as
a direct result of the suspension of work or for the breach or
non-observance by the Buyer of the conditions as to payment herein
set out.
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4. QUANTITY:
Where Products are made to the Buyer’s
specifications the Buyer agrees to accept a quantity of such
Products up to ten per cent in excess of the quantity ordered (“an
overrun”) or up to five per cent less than the quantity ordered (“an
underrun”). In the event of an overrun each unit or items of the
Products in excess of the quantity ordered will be paid for by the
Buyer at the price per item or unit charged for the quantity
ordered. In the event of an underrun each unit or item of the
Products which the buyer has agreed to accept as herein provided
will be paid for by the buyer at the price per item or unit charged
for the quantity ordered.
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5. DRAWINGS AND DESCRIPTIONS:
All drawings, photographs, illustrations,
specifications, performance data, dimensions, weights and the like,
whether contained in the contract or made by way or representation,
have been provided by the Seller with the intent that they are as
accurate as is reasonably possible but they do not constitute a
description of the Products, shall not be taken to be
representations made by the Seller and are not warranted to be
accurate. Weights listed are approximate and sufficiently accurate
for most purposes. Where exact dimensions and weights are critical
the Buyer should request additional information.
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6. ADVICE BY THE SELLER:
The Seller may, if requested, be prepared to
assist the Buyer in deciding which types of Products may be suited
to a particular application. However any such advice and assistance
which is given by the Seller is given on the understanding that the
Seller is under no liability for any loss or damage arising
therefrom and the Buyer must conduct all necessary tests on the
Products in their intended application before commencing use thereof
and the onus is on the Buyer so to do.
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7. STORAGE:
a)
If for any reason the Buyer is unable to collect or accept delivery
of the Products at any time when the Products are due and ready for
collection or delivery the Seller shall invoice the Products due for
collection or delivery and, if its storage facilities permit, store
the Products, safeguard them and take all reasonable steps to
prevent their deterioration until their actual delivery or sale
under Clause 7(b) hereof and the Buyer shall be liable to the Seller
for the reasonable cost (including insurance) of its so doing.
b)
If the Buyer does not collect or accept delivery of any Products
which have been stored by the Seller under Clause 7(a) hereof for a
reasonable period then the Seller may, after giving the Buyer seven
days notice of its intention to do so and without prejudice to any
other remedies of the Seller, may re-sell the Products elsewhere
without any liability to the Buyer whatsoever
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8. SPECIFICATIONS:
a)
Where specifications are to be supplied the Buyer shall supply such
specification within seven days after the date of order.
b)
Products are supplied in accordance with the specifications (if any)
submitted by the Buyer and any additions and alterations shall be
subject to an extra charge. Any parts not so specified shall be in
accordance with the Seller’s printed catalogue or the catalogue of
the Seller’s suppliers (subject to any modifications made since
publication). If the Seller adopts any changes in construction or
design of the products or the specification thereof the Buyer shall
accept the Products so changed in fulfilment of the order.
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9. ACCEPTANCE OF QUOTATIONS:
a)
No binding contract between Buyer and Seller shall be deemed to have
been effected except in accordance with any quotations submitted by
the Seller and until the Order constituted by such acceptance has
been confirmed in writing by the Seller.
b)
Subject to the provisions of sub-clause a) hereof, no quotation
undertaken by the Seller shall be available for acceptance by the
Buyer more than 30 days after the same shall have been submitted by
the Seller to the Buyer.
c)
The Seller reserves the right to amend or alter any quotation
submitted by the Seller to the Buyer prior to the issue of the Order
by the Buyer to the Seller by notice in writing at any time.
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10. CANCELLATION OF ORDER:
Where the Buyer cancels an order after it has
been previously accepted by the Seller the Seller reserves the right
to charge the Buyer with all costs relating to the Contract which is
cancelled and which have been incurred prior to the Seller receiving
notification of the cancellation. This charge will include, but not
be restricted to any costs of materials that have been purchased for
the Contract.
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11. SUB CONTRACTORS:
The Seller shall be entitled without the prior
consent of the Buyer to sub-contract the whole or any part of the
Contract or to employ any independent contractor to perform its
obligations under any such Contract. In so doing none of the
obligations accepted herunder by the Seller shall in any way be
negatived or varied.
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12. ALLIED CONTRACTS:
The remedies available to the Seller for the
breach or non-observance of the Conditions of Contract to be
performed by the buyer shall be available to the Seller in the event
of the buyer breaching any of such obligations on any collateral or
separate Contracts between the same parties in force at any time and
such rights available to the Seller shall apply in the event of a
breach by the Buyer or any Associated or Subsidiary Company of the
buyer at any time in a contractual relationship with the Seller,
likewise the same benefits available to the Seller hereunder shall
apply to any Associated or Subsidiary Company of the Seller who may
be in a contractual relationship with the Buyer.
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13. DELIVERY AND TITLE PASSING:
a)
Any time or date named by the Seller for delivery is given and
intended as an estimate only. The Seller shall not be liable to make
good any damage or loss whether arising directly or indirectly out
of the delay in delivery. b)
The presentation and delivery of a consignment note, invoice or
other evidence of delivery of products, goods or material shall not
be deemed effective to pass title to such products, goods or
materials to the Buyer. Title to the products goods or materials
including processed or unprocessed goods or materials used in any
manufacturing or other process by the Buyer shall pass to the Buyer
when the Buyer shall have discharged in full and paid to the Seller
all sums or debts outstanding or owing from the Buyer to the Seller
in respect of this or any other matter or obligation whatsoever and
due from the Buyer to the Seller. The Buyer specifically agrees and
authorises the Seller to obtain access to its premises in the event
of non-payment of the purchase price to facilitate the collection of
the said products, goods and materials from the Buyer’s premises by
the Seller or its duly appointed Agent. Pending receipt by the
Seller of all the sums or debts outstanding or owing from the Buyer
to the Seller the Buyer will be in possession of the Products as
Bailee only and will have no legal title in the Products, such legal
title in the Products being retained by the Seller.
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14. TOOLING:
Tool, die and pattern charges, if any, are in
addition to the price of the Products and will be invoiced for and
are due and payable upon completion of the tooling. The property of
such tools, dies and patterns shall remain vested in the Seller and
the Buyer shall have no right to remove such tools, dies and
patterns from the Seller’s factory nor prevent their use for or by
other buyers, except under special agreement in writing by both the
Buyer and Seller.
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15. PRODUCTS SOLD F.O.B:
Where products are sold Free On Board the
responsibility of the Seller shall cease immediately the products
are placed on board ship or other form of transport and the Seller
shall be under no obligation to give the Buyer The Notice specified
under Section 32(111) of the Sale of Goods Act 1893 as amended or
any statutory re-enactment or modification thereof.
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16. PARTIAL DELIVERY:
a)
In the event of an outbreak of hostilities (whether war is
declared or not) in which the United Kingdom is involved or in the
event of National Emergency or if the Seller’s works should be
either directly or indirectly so engaged on Government Orders or
orders under priority directions so as to prevent or delay work on
other Orders, the Seller shall be entitled at any time on notice to
the Buyer to make partial deliveries only or to determine the
Contract without prejudice in either cast to rights accrued in
respect of deliveries already made. b)
In the case of partial completion of an Order the Seller shall
be entitled to a quantum meruit claim in respect of all work done by
it without prejudice to its rights should non-completion be
occasioned by the Buyer.
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17. FORCE MAJEUR:
In the event of war, invasion, act of foreign
enemy, hostilities (whether war has been declared or not), civil
war, rebellion, revolution, insurrection or military power, the
Seller shall be relieved of liabilities incurred under this contract
wherever and to the extent to which the fulfilment of such
obligations are prevented, frustrated or impeded as a consequence of
any such event or by any statute rule, regulation, order or
requisition issued by any Government Department, Council or other
duly constituted authority or from strikes, lock-outs, work-ins or
other industrial action, break down of plant or any other cause
(whether or not of a like nature) beyond the Seller’s control.
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18. HEALTH AND SAFETY INDEMNITY:
The Buyer shall indemnify the Seller in respect
of any liability, monetary penalty or fine in respect of, or in
connection with the Products incurred by the Seller under the Health
and Safety at Work Act 1974 or any statutory modification or
re-enactment thereof or any regulations, orders or directions made
thereunder.
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19. INFRINGEMENT OF INDUSTRIAL PROPERTY RIGHTS:
The Buyer shall indemnify the Seller against all
damages, penalties, costs and expenses to which the Seller may
become liable as a result of work done in accordance with the
Buyer’s specification which involves the infringement of any Letters
Patent, Trade Marks, Registered Designs or the infringement of
Copyright or other industrial or intellectual property rights.
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20. DETERMINATION OF CONTRACT:
If the Buyer shall make default in or commit a
breach of the Contract or of any of its obligations to the Seller or
if any distress or execution shall be levied upon the Buyer’s
property or assets or if the buyer shall make or offer to make any
arrangements or composition with its creditors or commit any act of
bankruptcy or if any petition or receiving order in bankruptcy shall
be presented or made against him or being a limited company or
corporation any Resolution or Petition to wind up such Company’s
business (other than for the purpose of a voluntary re-construction
or amalgamation) shall be passed or presented or if a Receiver of
such Company’s assets, undertakings and property or any part thereof
shall be appointed then the Seller shall have the right forthwith to
determine any Contract then subsisting and upon written notice of
such determination being posted to the Buyer at the Buyer’s last
known address or Registered Office any subsisting Contract shall be
deemed to have been determined without prejudice to any claim or
right the Seller may otherwise make or exercise.
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21. GUARANTEE AND WARRANTY:
a)
If within the period after delivery hereinafter stated
(hereinafter called “the Guarantee Period”) the Buyer gives notice
in writing to the Seller of any defect in the Products which shall
arise under proper use from faulty materials or workmanship then the
Seller, if it accepts that the Products are so defective, shall with
all possible speed replace or repair the products so as to remedy
the defects without cost to the Buyer which remedy shall constitute
an entire discharge of the Seller’s liability under this guarantee.
If the Buyer shall carry out any repair, attempted repair or
modification to the Products without the authority in writing of the
Seller then the Seller’s liability under this Guarantee shall
automatically cease. b)
The Buyer shall as soon as practicable after discovering any
such defect or parts thereof to the seller at the Buyer’s risk and
expense unless it has been agreed in writing between the parties
that the necessary replacement or repair shall be carried out by the
Seller on the Buyer’s premises. c)
The Guarantee Period herein referred to shall be either a period
of twelve months from the date of despatch of the Products or six
months from the date of installation of the Products whichever
period shall first expire.
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22. DEFECTIVE PRODUCTS AND CONSEQUENTIAL LOSS:
Items represented by the Buyer to be defective
shall not form the subject of any claim for work done by the Buyer
or for any actual or consequential loss damage or expense whatsoever
arising directly or indirectly from such defects but such products
if returned to the Seller and accepted by it as defective will at
the request of the Buyer and if practicable be replaced as
originally ordered. Defects in quality or dimensions in any delivery
shall not be a ground for cancellation of the remainder of the order
or Contract.
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23. CLAIM FOR DAMAGE, SHORTAGE OR LOSS:
No claim for damage in transit, shortage of
delivery or loss of products will be entertained unless, in the case
of damage in transit or shortage of delivery, a separate notice in
writing is given to the carrier concerned and to the Seller within
fourteen days of the receipt of the Products followed by a complete
claim in writing within twenty eight days of receipt of the Products
and in the case of loss of Products, notice in writing is given to
the carrier concerned and to the Seller and the complete claim in
writing made within twenty eight days of the date of consignment.
Where Products are accepted from the Carrier concerned without being
checked the delivery book of the Carrier concerned must be signed
“not examined”.
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24. ARBITRATION:
All disputed, differences or questions at any
time arising between the parties as to the construction of the
Contract or as to any matter or thing arising out of the Contract or
in any way connected therewith shall be referred to the arbitration
of a single arbitrator who shall be agreed between the parties or
who failing such agreement shall be appointed at the request of
either party by the President for the time being of the Mechanical
Handling Engineers Association. The Arbitration shall be in
accordance of the Arbitration Act 1950 or any Statutory modification
or re-enactment thereof for the time being in force.
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25. LAW OF THE CONTRACT:
Unless otherwise agreed between the parties in
writing the Contract shall be subject to and construed in accordance
with English Law.
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