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CONDITIONS OF SALE

Buyers Please Note:

These are the terms and conditions on which the Company accepts orders for goods from Buyers (“the Conditions”). No term or condition proposed by a Buyer or proposal by a Buyer for qualification of or change to the Conditions shall apply to any contract between the Company and the Buyer, unless such term, condition or proposal has been expressly accepted by the Company in writing.

1. INTERPRETATION

In the Conditions “Company” means MMG MagDev Limited and “Buyer” means the party with whom the Company is contracting and ‘Contract’ means a contract between the Company and the Buyer which is subject to the Conditions. Headings are for convenience only and shall not affect interpretation of the Conditions.

2. VALIDITY

  • 2.1 Quotations shall be available for acceptance by the Buyer only for a maximum of thirty days after date of issue.
  • 2.2 The Company may cancel a quotation at any time until expiry or acceptance. No oral quotation will be binding on the Company.
  • 2.3 If a Buyer purports to accept the quotation in respect of quantities or specifications of goods different from or in instalments smaller or greater than those quoted or for delivery over a period, the Company shall be entitled to treat such purported acceptance as a further enquiry in respect of which a separate quotation may be issued.
  • 2.4 Orders are subject to the Buyer’s credit status being approved by the Company.

3. ACCEPTANCE

  • 3.1 Upon acceptance of the Company’s quotation in writing the Buyer shall forthwith supply to the Company all information and other relevant material necessary for the Company to proceed with the order.
  • 3.2 The quantity, quality, description, price and any specification as to the goods, their packaging and means or terms of delivery shall be those set out in the Company’s quotation.
  • 3.3 The Company’s reserves the right to supply parts which have a technical specification superior to that called for on the Buyer’s order.

4. PRICES

  • 4.1 All quotation prices are based on prices charged to the Company which may increase between quotation and delivery dates. The Company shall have the right by giving notice to the Buyer at any time before delivery, to increase the price of goods and/or to postpone delivery to reflect any increase in the cost to the Company due to commodity fluctuations and other factors beyond the control of the Company. Exercise by the Company of this right shall not entitle the Buyer to cancel the Contract.
  • 4.2 All quotation prices are given on the basis that the full quantity will be taken in a single consignment delivered to a single location. Where agreed call offs are not adhered to by the Buyer, the Company reserves the right to amend the price charged in accordance with the quantities delivered.
  • 4.3 All orders received are subject to surcharges in respect of the Company’s current minimum order charge.
  • 4.4 Where any request for a change to the contract requirements is submitted to the Company by the Buyer the Company reserves the right to increase prices to cover any costs (including overheads) incurred by the Company as a result of such alterations and/or extend the delivery period accordingly.

5. RELEASE DOCUMENTATION

Where the Buyer requests items to be supplied with release certificates the Company reserves the right to make a reasonable extra charge for providing such certificates.

6. DELIVERY

  • 6.1 Prices are quoted exclusive of VAT, and unless otherwise indicated in the quotation on an ex works basis. Where the Company agrees to deliver goods otherwise than at its own premises, the Buyer shall pay the Company’s charges for postage, packing, transport and insurance. Additional charges shall also be payable by the Buyer if the Buyer requests, or the Company at its own discretion deems it appropriate to use other than normal packing.
  • 6.2 Dates quoted for delivery of goods are approximate only and the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods (even if caused by the Company’s negligence). Time for delivery shall not be made of the essence by notice.
  • 6.3 A Schedule Order shall constitute an unqualified instruction by the Buyer for all the goods detailed in the Schedule Order to be manufactured and the Buyer shall be obliged to take delivery of and pay for all goods specified in the Schedule Order.
  • 6.4 If the Buyer fails to take delivery of the goods or fails to give the Company adequate delivery instructions at the time the Company notifies the Buyer that the goods are ready for delivery, the risk in the goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence) and the Company shall be entitled to, at its discretion, store the goods until actual delivery, the cost of which shall be borne by the buyer, or sell the goods with the buyer remaining responsible for any difference in price resulting in a loss to the Company.

7. VARIATION OF QUANTITY

The Company shall have the right to deliver an amount or number up to plus or minus five per cent of the quantity ordered, in which case any price agreed for such delivery shall be adjusted pro rata to the amount or number of goods actually delivered.

8. FAILURE IN THE GOODS

  • 8.1 Subject as otherwise provided in these Conditions, the Company warrants that the goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for twelve months from the date of delivery.
  • 8.2 The company shall not be liable:-
    • 8.2.1 for defects arising from any drawing, design, material, specification, information, instruction or requirement supplied by the Buyer;
    • 8.2.2 for defects arising from wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (oral or written), or misuse, alteration or repair without the Company’s approval;
    • 8.2.3 for parts, material and equipment not manufactured by the Company in respect of which the Buyer shall have only the benefit of any such warranty or guarantee as is given by the manufacturer to the Company;
    • 8.2.4 for goods which have passed the Buyers specified testing requirements; or
    • 8.2.5 for defects resulting from the goods being combined with other items not supplied by the Company.
  • 8.3 Subject as expressly provided in these Conditions and except where the goods are sold to a person dealing as a customer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other items implied by statute or common law are, to the fullest extent permitted by law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) excluded.
  • 8.4 Any claim that goods are defective or fail to conform to specification shall be notified to the Company within seven days of the date of delivery or (where defect or failure was not apparent on reasonable inspection) within seven days of discovery if made within the warranty period specified in sub-clause 8.1 hereof. If delivery is not refused or the defect or failures not so notified, the Buyer may not reject the goods, the Company shall have no liability for such defect or failure, and the Buyer shall pay the purchase price to the Company.
  • 8.5 The Company’s warranty in clause 8.1 is hereby expressly limited to the repair or replacement by the Company free of charge to the Buyer of the non-conforming goods or at the Company’s option to payment by it of an amount not exceeding the original purchase price of the goods. Where goods are replaced, the provisions of this Clause 8 shall apply to the replaced goods. If the Company complies with the provisions of this clause 8.5, it shall have no further liability for a breach of the warranty in clause 8.1 in respect of such goods.
  • 8.6 Nothing in these conditions excludes or limits the liability of the Company:-
    • 8.6.1 For death or personal injury caused by the Company’s negligence; or
    • 8.6.2 Under section 2(3) Consumer Protection Act 1987
    • 8.6.3 For any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
    • 8.6.4 For fraud or fraudulent misrepresentation;
  • 8.7 Subject to clauses 8.3 and 8.6:
    • 8.7.1 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of any Contract to which these terms and conditions apply shall be limited to the relevant Contract price; and
    • 8.7.2 The Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of in connection with the Contract.

9. LOSS OR DAMAGE IN TRANSIT

Goods will be deemed to be delivered within seven days after the date of invoice, unless prior to the expiry of such seven days, the Buyer notifies the Company and the carrier (if any) in writing of non delivery. The Buyer must notify the Company of any short delivery or loss or damage to goods in transit immediately upon delivery of goods by telephone and must confirm the same in writing within seventy two hours thereafter. The Buyer shall at the same time notify the carrier in writing of any such loss or damage and shall enter a note of the same on the carrier’s receipt. If the Buyer fails to give notice as provided above and the Company is precluded from making recovery whether from any insurer or any other third party in respect of the loss or damage complained of, then the Buyer shall be liable to pay for the goods as though no such loss or damage had occurred.

10. PAYMENT TERMS

  • 10.1 The Buyer shall pay the price of the goods by the end of the month following the month of invoice, whether or not delivery has taken place. The time of payment of the price shall be of the essence of the Contract.
  • 10.2 The Buyer shall make all payments due under the Contract in full without deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an equal amount to such deduction to be paid by the Company to the Buyer.
  • 10.3 If the Buyer fails to make any payment for goods on or before the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled:-
    • 10.3.1 to cancel the Contract and suspend any further deliveries to the Buyer (under the Contract or any other contract between the parties); and/or
    • 10.3.2 to appropriate any payment made by the Buyer (in respect of any payment obligation of the Buyer to the Company) to such of the goods as the Company may think fit, despite any purported appropriation by the Buyer; and/or
    • 10.3.3 to charge interest to the Buyer on the amount unpaid in respect of the goods, at the rate of three per cent per annum above the HSBC Bank plc base rate from time to time, from the due date for payment until such time as payment in full is made whether before or after judgment; and/or
    • 10.3.4 recover from the Buyer’s premises any goods which are the property of the Company; and/or
    • 10.3.5 recover from the Buyer the amount of any loss or damage sustained by the Company as a result of the Buyer’s breach of contract.

11. RISK AND TITLE

  • 11.1 Risk of damage to or loss of the goods shall pass to the Buyer at the time of delivery.
  • 11.2 Ownership of the goods shall not pass to the Buyer unless and until the Company has received in cash or cleared funds, payment in full then due to the Company from the Buyer of the price of the goods and any other sums which are or have become due to the Company from the Buyer on any account.
  • 11.3 Until such time as the ownership in the goods passes to the Buyer, the Buyer shall hold the goods as the fiduciary agent and bailee of the Company and shall keep goods separate from those of the Buyer and of third parties and properly stored, packaged, protected, insured and identified as the property of the Company. Until that time the Buyer shall be entitled to re-sell or to use the goods in the ordinary course of its business, but shall account to the Company for the proceeds, and in the meantime shall hold such proceeds upon trust for the Company and shall keep all such proceeds separate from any monies or property of the Buyer and of third parties and, in the case of tangible proceeds, properly stored, packaged, protected, insured and identified as representing the proceeds of sale of the Company’s goods.
  • 11.4 Until such time as the ownership in the goods passes to the Buyer (and provided the goods are still in existence and have not been re-sold), the Company shall be entitled to require the Buyer to deliver up the goods and the Buyer expressly and irrevocably grants the Company the right to enter upon the Buyer’s premises or any premises where the goods are or may be stored at any time to exercise such rights for the purpose of repossessing the goods.
  • 11.5 The Buyer shall not be entitled to pledge, encumber, or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Company, but if the Buyer does so, all monies owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable in full, despite any other provision of these Conditions.
  • 11.6 The Buyer’s right to possession of the goods shall cease immediately and the Company shall be entitled to cancel the Contract and suspend all and any deliveries of goods to the Buyer if the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appointing an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade.

12. CANCELLATIONS AND AMENDMENTS

Cancellation, reschedule or amendment of orders by the Buyer will only be accepted by the Company upon terms which indemnify the Company against any actual or anticipated loss resulting from such cancellation, reschedule or alteration.

13. RETURNS

  • 13.1 The Company will not accept return of goods supplied in accordance with order, unless previously agreed by the Company.
  • 13.2 In respect of non-conforming items supplied in error, the Buyer shall immediately notify the Company in writing or by facsimile or such error. Subject to due notification of alternative arrangements, the Company shall collect all items supplied in error or non-conforming within seven days of receipt of notification, for which period the Buyer shall keep all such items safe and available for collection during normal business hours. No administration or other charges shall be made by either party. If made by the Buyer or deducted from any other monies due to the Company such charge or deduction shall be deemed to constitute a breach of contract causing all sums owing by the Buyer to the Company under this and all other contracts between the parties (whether then payable or not) to become immediately due and payable.

14. BUYER SPECIFICATIONS

  • 14.1 The Buyer shall be responsible for ensuring the accuracy of any specification supplied to the Company.
  • 14.2 The Company shall have the right but not any obligation to change any such specification to conform with any relevant safety, statutory or regulatory requirement (whether or not this affects performance of the goods), but shall have no duty to investigate any intellectual property right relevant to such specification.

15. INDEMNITY

The Buyer agrees to indemnify the Company and keep the Company fully indemnified against all loss, actions, costs (including the costs of defending any legal proceedings), claims, damages or other expenses which may arise from:-

  • 15.1 any infringement or alleged infringement of patents, trademarks or tradenames, designs (registered and unregistered), copyright or other industrial property rights by goods or possession, sale or use of goods made to instructions in the Buyer’s design, specification or requirements whether such instructions are expressed or implied;
  • 15.2 any action taken by the Company which the Company deems necessary, in its sole discretion, in order to comply with any applicable statutory requirements and regulations relating to waste management throughout the European Union; and
  • 15.3 any claim or alleged claim that the goods infringe, or their import, use, possession or sale breaches any applicable statutory requirements or regulations relating to such goods throughout the European Union.

16. TOOLS

Unless otherwise agreed in writing, and notwithstanding any payment in respect thereof made by the Buyer, all patterns, drawings, tools etc. produced by the Company shall remain the property of the Company and no claim to these by the Buyer will be accepted by the Company. The Buyer may not utilise, reproduce or communicate knowledge of such items to any third party without express written consent of the Company and the Buyer shall return the same to the Company at any time at the Company’s request.

17. TECHNICAL DATA

Whilst every effort has been made to ensure the accuracy of any technical data provided to the Buyer, the Company accepts no liability arising from errors or omissions therein. In particular, performance figures quoted by the Company for its products are based upon experience, and are not guaranteed.

18. FORCE MAJEURE

The Company shall not be liable for failure to fulfil any obligation imposed on it by the foregoing provisions if and to the extent that and during the period whilst fulfilment is delayed hindered or prevented by any circumstance which it could not reasonably prevent or have prevented and which is outside its control.

19. NON ASSIGNMENT

The Buyer shall not assign any of its rights or obligations arising hereunder or any Contract to a third party without the prior written consent of the Company.

20. SEVERABILITY

In the event that any provision or part of these Conditions is held by a court, tribunal or administrative body of competent jurisdiction to be unenforceable invalid, void or unreasonable, then such provision, or part, shall be severed from these Conditions without affecting enforceability or validity of any other provision of these Conditions or part thereof.

21. CONFIDENTIALITY

The Buyer undertakes to hold in confidence any information which it receives from the Company during the course of the Contract and not disclose the same to any third party without prior written consent of the Company. The Buyer further undertakes to only use such information for the purpose of performing its obligations in accordance with the Contract.

22. THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

The provisions of The Contracts (Rights of Third Parties) Act 1999 are hereby excluded and shall not apply.

23. JURISDICTION

These Conditions and the Contract shall be subject to and construed in accordance with the Laws of England and the parties hereby agree to accept the exclusive jurisdiction of the English Courts in all matters connected therewith or relating thereto.

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