TERMS AND CONDITIONS
1.1 In these Conditions, the following definitions apply:
"Business Day" a day (other than a Saturday, Sunday or public holiday) when banks in
London are open for business;
"Conditions the terms and conditions set out in this document as amended from time
to time in accordance with clause 12.6;
"Contract"the contract between the Supplier and the Customer for the sale and
purchase of the Goods in accordance with these Conditions;
"Customer" the person or firm who purchases the Goods from the Supplier;
"Delivery Point" the Customer's premises or such location as the Customer specifies on
the Order and which has been accepted by the Supplier in writing;
"Force Majeure Event" has the meaning given in clause 11;
"Goods"the goods (or any part of them) set out in the Order;
"Intellectual Property Rights" all copyright, database rights, topography rights, design
rights, trade marks, trade names, utility models, patents, domain names and any other
intellectual property rights of a similar nature (whether or not registered) subsisting
anywhere in the world in or associated with the Products;
"Order"the Customer's order for the Goods, as set out in the Customer's written
acceptance of the Supplier's quotation;
"Re-stocking Fee" a fee of a minimum of 25% of the Order;
"Specification" any specification for the Goods, including any related plans and
drawings, that is agreed in writing by the Customer and the Supplier;
"Supplier"Marling Leek Limited (registered in England and Wales with company number
00762306) whose registered office is at Marling Mills, Nelson Street, Leek, Staffordshire
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any [descriptions or] illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
2.7 The Supplier may agree to permit the Customer to vary the terms of the Contract if, in the absolute discretion of the Supplier, the Supplier considers it is appropriate to do so.
3.1 The Goods are described in the Supplier's catalogue and website.
3.3 The Supplier reserves the right to amend the specification of the Goods at their discretion from time to time without notice.
3.4 In the event that a Customer returns Goods that are not defective in nature or of an unsatisfactory quality, the Supplier reserves the right to charge the Customer a Re-stocking Fee and the Customer is required to pay all freight costs in relation to the returned Goods and the Re-stocking Fee [within 30 days of receipt of an invoice].
4. DELIVERY OF THE PRODUCTS
4.2 Delivery of the Products shall take place at the Delivery Point. Acceptance of any change to the Delivery Point requested by the Customer shall be at the Supplier's sole discretion and the Customer shall be liable for any additional Expenses incurred by the Supplier as a result of such change. The Supplier shall arrange for suitable transport to the Delivery Point. On delivery, the Supplier (or its appointed carrier) shall provide the Customer with such export documents as are necessary and which the Customer is unable to prepare together with a Delivery Note.
4.3 Delivery or performance dates in relation to the supply by the Supplier of Products are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery of the Products.
4.4 The Supplier may effect delivery in one or more instalments.
4.6 If the Customer fails to give notice as specified in clause 4.5 then, except in respect of any defect which is not one which would be apparent on reasonable inspection, the Products shall conclusively be presumed to comply with the Warranty and, accordingly, the Customer shall be deemed to have accepted the delivery of the Products in question and the Supplier shall have no liability to the Customer with respect to that delivery (except in relation to liability for any latent defects).
4.7 If the Customer alleges that any Products are defective, it shall, if so requested by the Supplier, return the relevant Products (unaltered and unrepaired) to the Supplier for inspection as soon as possible and at its own risk and expense.
4.8.1 supply replacement Products which comply with the Warranty, in which event the Supplier shall be deemed not to be in breach of this agreement or have any liability to the Customer for the rejected Products; or
4.8.2 notify the Customer that it is unable to supply replacement Products, in which case the Customer shall be entitled to obtain from any other person such quantity of the Products only as the Supplier has been unable to supply and the Supplier shall grant to the Customer a credit equal to the value of the Products which the Supplier agrees do not comply with the Warranty (Credit).
4.9 The Supplier's reasonable decision as to whether the Products comply with the Specification shall be final.
5. IMPORT AND EXPORT LICENCES
5.1 The Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Products as are required from time to time and, if required by the Supplier, the Customer shall make those licences and consents available to the Supplier prior to the relevant shipment.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as the Supplier's bailee;
6.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
6.3.6 give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time up to 10 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.6 The Customer shall pay the invoice in full and in cleared funds within 20 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank Plc's base rate from time to time. 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 judgment. The Customer shall pay the interest together with the overdue amount.
7.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier 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 Supplier to the Customer.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Customer acknowledges that:
8.1.1 the Intellectual Property Rights are the Supplier's (or its licensor's) property;
8.1.2 nothing in this agreement shall be construed as conferring any licence or granting any rights in favour of the Customer in relation to the Intellectual Property Rights. The Supplier asserts its full rights to control the use of its trade marks within the EEA and the Customer shall assist the Supplier as required in preventing parallel importers from diluting the Supplier's rights; and
8.1.3 any reputation in any trade marks affixed or applied to the Products shall accrue to the sole benefit of the Supplier or any other owner of the trade marks from time to time.
8.2 The Customer shall not repackage the Products and/or remove any copyright notices, confidential or proprietary legends or identification from the Products save for any removal which is a necessary result of a manufacturing process of which the Supplier has been previously notified in writing by the Customer.
8.3 The Customer shall not use (other than pursuant to this agreement) or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which the Supplier or any associated company of Supplier owns or claims rights in anywhere in the world.
8.4 If at any time it is alleged that the Products infringe the rights of any third party or if, in the Supplier's reasonable opinion, such an allegation is likely to be made, the Supplier may at its option and its own cost:
8.4.1 modify or replace the Products without reducing the overall performance of the Products in order to avoid the infringement; or
8.4.2 procure for the Customer the right to continue using the Products; or
8.4.3 repurchase the Products at the price paid by the Customer, less depreciation at the rate the Supplier applies to its own equipment.
8.5.1 any actual, threatened or suspected infringement of any Intellectual Property Rights which comes to the Customer's notice; and
8.5.2 any claim by any third party that comes to the Customer's notice that the sale or advertisement of the Products infringes the rights of any person.
8.6 The Customer agrees (at the Supplier's request and expense) to do all such things as may be reasonably required to assist the Supplier in taking or resisting any proceedings in relation to any infringement or claim referred to in clause 8.5.
8.7.1 the Customer promptly notifying the Supplier in writing of any such claim, proceeding or suit; and
8.7.2 the Supplier being given sole control of the defence of the claim, proceeding or suit,
and provided that the Supplier shall not be liable for infringements to the extent that they arise out of or in connection with modifications to the Products made by anyone except the Supplier or its authorised representative, or out of use or combination of the Products with products or third party materials not specified or expressly approved in advance in writing by the Supplier, or where the claim, proceeding or suit arises from the Supplier's adherence to the Customer's requested changes to the Specification or from infringing items of the Customer's origin, design or selection.
8.8 The Supplier shall reimburse the Customer with an amount equal to any cost, expense or legal fees incurred at the Supplier's written request or authorisation and shall indemnify the Customer against any liability assessed against the Customer by final judgement on account of an infringement described in clause 8.7.
9.1 Either party may terminate this agreement by giving written notice to the other party if any of the following events occurs:
9.1.1 the other party commits a breach of this agreement which (in the case of a breach capable of remedy) has not been remedied within 30 days of the receipt by the other of a notice specifying the breach and requiring its remedy; or
9.1.3 the other party passes a resolution or makes a determination for it to be wound up (without a declaration of solvency/except for the purposes of amalgamation or reconstruction, the terms of which have been previously approved in writing by the other party); or
being a partnership, in addition to the above, suffers bankruptcy orders being made against all of its partners; or
9.1.5 being a partnership in addition to the above, suffers bankruptcy orders being made against all of its partners.
9.1.7 the other party ceases or suspends payment of any of its debts, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
9.1.9 the other party ceases, or threatens to cease, to carry on business; or
9.1.10 any event analogous to those described in clause 14.2.3 to clause occurs in relation to the other party in any jurisdiction in which that other party is incorporated, resident or carries on business.
9.2 Following the earlier termination of this agreement for any reason whatsoever, the Supplier shall be entitled (at its option) to cancel any Orders which have not yet been delivered.
9.3 On termination or novation of this agreement for any reason and subject as otherwise provided in this agreement to any rights or obligations that have accrued before termination, neither party shall have any further obligation to the other under this agreement.
10. LIMITATION OF LIABILITY
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
10.1.4 defective products under the Consumer Protection Act 1987.
10.2 Subject to clause 10.1:
10.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
10.3 The Supplier is not liable for a defect in the Products unless it is notified to the Supplier within 7 days of the date of delivery or, if the defect would not be apparent on reasonable inspection, within three months of the date of delivery.
10.4 The Supplier is not liable for:
10.4.1 non-delivery, unless the Customer notifies the Supplier of the claim within 7 Business Days of the date of the Supplier's invoice; or
10.4.2 shortages in the quantity of Products delivered in excess of those permitted by clause 4.1, unless the Customer notifies the Supplier of a claim within 3 Business Days of receipt of the Products; or
10.4.3 damage to or loss of all or part of the Products in transit (where the Products are carried by the Supplier's own transport or by a carrier on behalf of the Supplier), unless the Customer notifies the Supplier within 2 Business Days of receipt of the Products or the scheduled date of delivery, whichever is the earlier.
11. FORCE MAJEURE
11.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12.1 Assignment and subcontracting
12.1.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
12.1.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2.2 Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or if sent by fax, at 9.00 am on the next Business Day after transmission, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
12.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
12.3.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.4.1 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.5 Third party rights
12.5.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.6.1 Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
12.7 Governing law and jurisdiction
12.7.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.