All orders are accepted and goods supplied subject to the following express terms and conditions (the Company’s standard conditions of sale) and, save to the extent that the exclusion or restriction of liability may be prohibited by statute, all other conditions, warranties and representations, expressed or implied and statutory or otherwise, except as to title, are hereby excluded. Any order placed by a customer shall constitute an offer to contract upon these express terms and conditions, and no addition thereto or variation therefrom whether contained in the customer’s order or otherwise shall apply unless expressly agreed in writing by the Company’s authorised representative.
‘The Company’ means MICROSOLV SYSTEMS LIMITED. ‘The Customer’ means the organisation or person to whom the Company may agree to sell goods in accordance with the Company’s standard conditions of sale. ‘The Goods’ means the articles of things or any of them or any part or parts of them to be provided by the Company in accordance with the Company’s standard conditions of sale.
All orders are subject to availability of the goods and to written acceptance by the Company’s authorised representative. Any prior confirmation by the Company by fax or telephone shall be deemed to be provisional only.
(a) Catalogues, price lists and other advertising literature or material as used by the Company are intended only as an indication to price and range of goods offered and no prices descriptions or other particulars contained therein shall be binding on the Company.
(b) All quoted or listed prices are based on the cost to the Company of supplying the Goods to the customer and if before delivery of the Goods there occurs any increase in any way of such costs in respect of Goods which have not yet been delivered the price payable shall be subject to amendment without notification at the Company’s discretion.
5. Manufacturer’s Specification
The Company will not be liable in respect of any loss or damage caused by or resulting from any variation for whatever reason in the Manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. The Company will endeavour to advise the customer of any such impending variation as soon as it receives notice thereof from the Manufacturer.
6. Carriage and Delivery
Unless otherwise stated, carriage, transit insurance and packages are charged as extras. A standard charge at the rate prevailing is applied.
7. Passing of Risk and Property
(a) Risk in the Goods shall pass to the customer on delivery.
(b) Property in the Goods shall remain in the Company and may not be removed from the original place of installation (unless express permission is granted in writing by the Company) until payment in full therefore has been made by the customer.
(c) If payment in full is not made in accordance with the Company’s standard conditions of sale the Company may require the customer to return the Goods forthwith and if the requirement is not immediately complied with the Company shall be entitled at any time and without notice to retake possession of the whole or any part of the Goods (and for that purpose to enter the premises occupied by the customer and sever the Goods from anything there attached to without being responsible for any damage thereby caused) and without prejudice to any other remedy that may be available to the Company.
8. Defects and Use
Save as herein expressly provided, and save to the extent that the exclusion or restriction of liability may be prohibited by statute, the Company shall not be liable for any loss of whatsoever nature or to whomsoever or whatsoever caused arising out of the use of the Goods. The customer shall indemnify the Company against all claims made against the Company by any third party in respect thereof. Unless otherwise agreed.
(a) Where the Goods are rejected by the customer as not being in accordance with the customer’s order, the Company will only accept the return of such Goods provided that it receives written notice thereof, giving detailed reasons for rejection, within 14 days of receipt of the Goods by the customer, and if such notice is not received by the Company within the said period of 14 days the Goods shall be deemed to have been accepted by the customer. The Company will not consider any claim for compensation, indemnity, or refund until liability if any has been established or agreed with the Manufacturer and where applicable the Insurance Company and under no circumstances shall the invoiced costs of the Goods be deducted or set off by the customer until the Company has passed a corresponding credit note and
(b) In the case of defects or faulty workmanship in the Goods or any part thereof the customer shall not be entitled to receive any compensation, credit or refund in excess of that received by the Company under any guarantee or warranty given to it by the Manufacturer or the supplier thereof.
50% of the total purchase price (“TPP”) under any order is payable at the time such order is placed with 30% TPP payable on delivery of the order on site and with the balance of 20% TPP payable within 7 days of completion of installation or of our invoice being rendered whichever is the sooner.
Any times quoted for despatch are to be treated as estimates only and without prejudice, although every endeavour will be made by the Company to adhere to them. Quotations or offers of goods ex stock are subject to the Goods being unsold at the time of receipt of the customer’s written order. All despatch dates are calculated from the date of acceptance of the customer’s written order or from the date when all outstanding technical details have been resolved whichever is the later.
11. Customer’s Default and Cancellations and Re-Scheduling of Deliveries
(a) If the customer shall make default in or commit any breach of any of its obligations to the Company or if the customer being an individual (or when the customer is a firm, any partner in that firm) shall at any time become bankrupt or shall have a receiving order or administration order made against him or shall make any composition or arrangement with or for the benefit of its creditors or shall purport to do so if in Scotland he shall be made insolvent or notour bankrupt or any application shall be made under any Bankruptcy Act for the time being in force for sequestation of his estate or a Trust Deed shall be granted by him on behalf of his creditors or the customer being an incorporated body any resolution or petition to wind up its business shall be passed or presented otherwise than for reconstruction or amalgamation or if a liquidator or receiver or manager of such corporate body or its undertaking property or assets or any part thereof shall be appointed or if the customer shall be insolvent or shall be unable or shall admit its inability to meet its commitments promptly as and when due the Company shall have the right (without prejudice to any further or other claims or right which the Company might have) forthwith to cancel any uncompleted order or to cancel or suspend delivery and, not withstanding any other provision of the Company’s standard conditions of sale, payments for any delivery already made shall immediately become due.
(b) Requests by a customer for cancellation of any order or for the rescheduling of deliveries will only be considered by the Company if made in writing and shall be subject to the written acceptance of the Company if made in writing and shall be subject to the written acceptance of the Company in accordance with sub-clause 11(a) as aforesaid. Cancellation or deferment: If the customer cancels or defers this Agreement, or part thereof, for any reason other than agreed by the Company or fails to operate a satisfactory credit relationship thereby causing cancellation, any amount paid as ‘Cash with Order’ will be retained by the Company and in addition the purchaser will be liable for payment charges in accordance with the following schedule. Cancellation: 30-60 days from scheduled delivery date – 15 percent of the contract price. Cancellation: 0-60 days from scheduled delivery date – 30 percent of the contract price.
12. Force Majeure
The Company shall not be liable for the cancellation by it of any order or any unfulfilled part thereof or for effecting partial delivery or performance if performance by the Company is prevented or delayed whether directly or indirectly by any cause whatsoever beyond the reasonable control of the Company whether such cause existed or was foreseeable at the date of acceptance of the customer’s order by the Company or not and without prejudice to the generality of the foregoing any cause shall be deemed to prevent hinder or delay the Company if the Company is thereby prevented hindered or delayed from fulfilling other commitments whether to the customer or to third parties.
13. Non Standard Goods
Unless otherwise agreed the Goods are supplied in accordance with the Manufacturer’s standard specifications. The Company reserves the right to increase its quoted or listed price or to charge accordingly in respect of any orders accepted for products of non-standard specification and in no circumstances will it consider cancellation of such orders or the return of the Goods.
14. Split Deliveries
Unless otherwise quoted or listed, prices are calculated on the basis of one delivery. Specific requests for more than one delivery shall be subject to agreement by the Company, and the Company reserves the right to levy additional charges therefore. Where the Company agrees to make delivery by installments, every installment shall be deemed to be the subject matter of a separate contract. If the customer requests and the Company agrees to a deferred delivery the Company reserves the right to raise a stock holding if specific stocks have been purchased by the Company against the customer’s order.
If and to the extent that any provision or any part of a provision of the Company’s standard conditions of sale is illegal, void or unenforceable for any reason, then such provision or part thereof (as the case may be) shall be deemed to be severable from the remaining provisions or parts of the relevant provision (as the case may be) all of which remaining provisions shall remain in full force and effect.
If the Customer defaults in the payment when due of any sum payable under these Terms and Conditions (whether determined by agreement or pursuant to an Order of a Court or otherwise) the liability of the Customer shall be increased to include interest on such a sum from the date when such payment was due to the date of actual payment (as well after a before judgement) at a rate of 4% per annum above the base rate from time to time of Lloyds Bank plc and such interest shall accrue from day to day.
We would be grateful if you would note that in entering into any agreement or contract with you for the supply of any system, product and/or services by us, it is an absolute requirement that it includes the additional terms set out below. Accordingly, the following term shall be deemed to apply to and form part of each and any agreement or contract between us:
A. Notwithstanding anything contained within this agreement or contract, Microsolv Systems Ltd (“MSL”) shall have no responsibility or liability whatsoever for any loss of profit, business, revenues, contracts or anticipated savings, or for any special, consequential or indirect loss incurred or suffered by you, arising directly or indirectly out of this agreement or contract, or the performance, defective performance, non-performance, or delayed performance by MSL of any of its obligations under the agreement or contract.
B. Without limitation to the preceding clause:
(1) In using any system, product and/or service supplied or provided by MSL under this agreement or contract or otherwise, you hereby agree and accept that you are solely responsible for:-
(1.1) all and any connection or other charges and costs (including line rental and call or other telephony charges) incurred by you or on your account with any Internet Service Provider or service supplier howsoever the same arise; and
(1.2) ensuring that all such connections are properly opened and terminated; and
(1.3) conducting daily tests or checks to ensure that all such connections have been closed or terminated where necessary, the same to be carried out at 24 hourly intervals.
C. MSL shall not be liable to you or any other person or party, under any circumstances or for whatever reason, for charges or costs incurred by reason of such Internet connections or access or the length of time taken in that connection being kept open.
Please also note that no negotiations prior to any such contract or agreement between us, nor course of conduct or dealing subsequent thereto, shall include or be deemed to include any waiver or variation of the above term unless specifically set out in writing and signed by a serving Director of MSL and which specifically refers to these terms and the said term.