In these Conditions, the following expressions shall have the following meanings:
(a) “the Seller” – MM Engineering Services (Yorkshire) Limited t/a MM Automation Services
(b) “the Purchaser” – the person, firm or company which accepts the Seller’s quotation or otherwise enters into a contract with the Seller.
(c) “the Price” – the sum stated in the contract between the Seller and the Purchaser as the amount payable to the Seller for the goods and/or services to be provided by the Seller to the Purchaser.
(d) “the Conditions” – these are the following conditions of sale which are outlined below.
The Seller’s website is an offer to treat only. Any contract shall consist of the Purchaser’s order and the Seller’s acceptance thereof. Any order accepted by the seller shall be subject to the Seller’s Conditions of Sale and no other conditions shall apply unless expressly agreed in writing by the Seller.
2. Force majeure
Neither party accepts any liability to the extent to which the fulfilment of its obligations is prevented, frustrated or impeded as a consequence of any legislation, import or export restriction, strike, lock-out or industrial action of any kind, fire, accident, civil disturbance, weather, Act of God, order or requisition by any competent authority or any circumstance beyond its control. If by reason of any such circumstance performance within a reasonable time becomes impossible either party shall be entitled to terminate the contract by notice in writing to the other, but without prejudice to claims accrued at the date of termination.
3. Validity and acceptance
(a) Unless previously withdrawn or otherwise stated, every quotation is valid for acceptance for a period of 30 calendar days from the date provided and is only capable of acceptance subject to these Conditions of Sale and to confirmation by way of the Seller’s order acknowledgment at the time of such acceptance.
(b) Acceptance of the quotation must be accompanied by any information reasonably requested by the Seller in order for the Seller to complete the sale, otherwise the Seller reserves the right to amend the Price and any other terms to reflect any changes to whether or unforeseen.
4. Limits of contract
Every quotation is limited to only such goods, accessories and work as are specified therein. In the event of any conflict between these Conditions and the Service Conditions these Conditions shall prevail.
(a) Unless otherwise stated in the quotation, prices are for delivery within the UK Mainland only. Subject and without prejudice to Condition 2, in the case of imported goods, liability is not accepted for delays in delivery due to events occurring outside the UK which are beyond the Seller’s reasonable control.
(b) Where delivery is to a site, the Purchaser shall provide suitable access to the Seller’s agent, representative or appoint courier with a safe and easy approach, lifting tackle for unloading, skilled labour and all other facilities required for getting the goods ready for use.
(c) All times quoted for delivery by the Seller are to be treated as estimates only and cannot be relied upon within the contract.
(d) All goods returned must be returned as received, unused within 7 days of delivery and will be subject to a 25% handling charge, unless previously agreed with the seller.
6. Delay in taking delivery
If the Purchaser fails to take delivery for reasons other than force majeure as defined in Condition 2 above, any resulting expenses incurred including but not limited to demurrage, storage, double handling, insurance during storage etc. will be charged to the Purchaser. Without prejudice to the foregoing, the Seller may at any time after the goods are ready for dispatch give the Purchaser notice requiring him to accept delivery within a reasonable time. If the Purchaser for any reason fails to do so, the Seller may by notice in writing to the Purchaser, terminate the contract in respect of such part of the goods as remains undelivered by reason of the Purchaser’s failure and recover any loss suffered by the Seller up to a maximum of such part of the Price as is properly attributable to the undelivered goods.
7. Extra Costs
(a) In the event of any suspension or delay to the work by reason of any act or default of the Purchaser including but not limited to misleading or insufficient instructions, the Price shall be increased to cover any extra costs or expenses incurred by the Seller as a result.
(b) Duties or taxes on manufactured goods wherever imposed are not included in the Price unless expressly stipulated in the Seller’s quotation but if included are always based upon the tariffs in force on the date of the quotation and the Price may be adjusted by a sum corresponding to any increase or decrease therein.
(c) Where imported goods have been quoted by the Seller at prices based upon then current rates of foreign exchange such prices may be adjusted by the Seller to reflect changes in rates between quotation and payment. If the Seller so requires, payment for such goods is to be made in the currency of the country of origin.
8. Standards and technical information
(a) Unless otherwise specified in the Seller’s quotation (or order acknowledgment):-
(i) imported goods will be to the standard of the country of origin
(ii) the goods are supplied with the Seller’s or the manufacturer’s standard documentation and instruction manuals as appropriate. Additional documentation may be provided at extra charge.
(iii) the goods are supplied with the Seller’s or the manufacturer’s standard finish, paint standard and packing. Alternative finishes, colours and special packing may be supplied at extra charge.
(iv) any tests to which the goods may be subjected are the Seller’s or the manufacturer’s standard tests. Any additional tests requested by the Purchaser may be carried out at extra charge.
(b) Drawings, illustrations, specifications and quotations provided by the Seller and any information contained therein are confidential and remain the property of the Seller. They must not be communicated to a third party without the Seller’s previous written permission. All dimensions weights or measurements appearing in such documents are approximate only and not part of any contract.
(a) Any performance figures or standards given by the Seller are based on its experience and are such as the Seller expects to obtain on tests. However, it is for the Purchaser to satisfy itself that the goods or the performance figures are suitable for their purpose and no liability is accepted in respect of failure to achieve such figures.
(b) Where any statement or recommendation is made by or on behalf of the Seller in any form whether in connection with the supply or installation of goods or otherwise such statement is given in good faith and based on the Seller’s experience but no liability of any kind is accepted in relation thereto.
10. Liabilities, accidents, damage and warranty
(a) Subject as hereinafter provided, the Seller’s liabilities in respect of the goods and/or services will be limited in accordance with this Condition.
(b) The Seller agrees to try and make good any defect which may appear under normal and proper use during the warranty period which is solely due to faulty design, materials or workmanship provided that the defect is notified to the Seller in writing within ten working days after it is discovered and that the defective parts are promptly returned to the Seller’s appointed location. The repaired or new parts will be delivered in the UK, or in the case of goods for export, FOB port of shipment. Any charge incurred by the Seller for delivery of the repaired or new part(s) will be paid by the Purchaser unless agreed otherwise. Defective parts so replaced remain the Seller’s property. Unless otherwise stated in the quotation or order confirmation, the warranty period is twelve months from the date of delivery, or if delivery is delayed for reasons beyond the Seller’s control, from the date the goods are ready for dispatch. All liability on the Seller’s part ceases at the end of this specified warranty period. This warranty shall not apply if and to the extent that repair or parts replacement is required as a result of causes other than normal and proper use, including without limitation, accident, normal wear and tear, failure or fluctuations of electric power, air conditioning, humidity control, other adverse environmental conditions, maintenance by third parties not approved by the Seller, combination of the goods or equipment with other equipment or components not approved by the Seller or other causes beyond the Seller’s reasonable control.
(c) Where at the Purchaser’s request, repairs are carried out otherwise than by return of the defective part, the Seller shall be entitled to charge engineer’s time spent (other than in respect of actual repair work) at the Seller’s prevailing rates plus any expenses reasonably incurred. Repairs or modifications carried out by third parties without the Seller’s authority will invalidate the warranty.
(d) In the event of any claim being made against the Purchaser arising out of the matters referred to in paragraph (c) and in respect of which it appears that the Seller may be liable under that paragraph the Seller shall be promptly notified thereof and may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise in relation thereto. The Purchaser shall not make any admission which might be prejudicial thereto and shall at the request of the Seller provide all available assistance in connection with any investigations, negotiations or litigation.
(e) The warranty in paragraph (b) above is in lieu of all conditions, warranties, or other terms however arising or to be implied by statute or otherwise as to description, quality, fitness for purpose, standards of skill and care or otherwise, which are hereby excluded.
(f) In no circumstance shall the liability (if any) of the Seller to the Purchaser under Conditions 5 and 10 exceed in the aggregate 15% of the Price.
(g) Subject and without prejudice to the express indemnities in paragraph (d) above and its liability for damages under Condition 5 & 10 (if any) the Seller accepts no liability for loss or damage of any kind arising directly or indirectly from the supply, erection or installation of the goods or any representation not made fraudulently whether in contract, tort including but not limited to negligence, or otherwise (including without prejudice to the generality of the foregoing any loss of profit, loss or use or production or any other economic, indirect or consequential loss or damage).
11. Payment, title and risk
(a) Unless otherwise expressly agreed the Price is strictly net and exclusive of VAT at the rate applicable on date of dispatch and payment shall be due within 30 calendar days of invoice for account customers. For all other orders placed, payment is required prior to the order being processed. Online orders placed for non account holders to be settled by credit/debit card or cheque.
(b) Without prejudice to the Seller’s rights under Condition 6 and only applying if the Purchaser holds a credit account, if due to the Purchaser’s default the Seller is unable to dispatch the goods an invoice will be submitted when the goods are ready for dispatch and payment will become due accordingly.
(c) Where delivery is to be made by instalments, payment for each instalment shall be made in the manner as if each instalment constituted a separate contract.
(d) Interest at 4% above Base Rate (Bank of England Base Rate) will be charged from the due date for payment until actual receipt of full payment.
(e) The risk shall pass to the Purchaser on delivery unless otherwise specified by the Seller in writing.
(f) The ownership of the goods shall remain with the Seller, who reserves the right to dispose of them until the Seller has received payment in full for the goods, and all other sums due from the Purchaser on any other account. Pending such payment the Purchaser undertakes to mark or otherwise clearly identify the goods as the Seller’s and store them separately from its own, and the Seller may enter the Purchaser’s premises to inspect the goods and ensure that they are so marked or clearly identified and the Seller may enter the Purchaser’s premises to inspect the goods and ensure that they are so marked or clearly identified.
(g) The Seller reserves the right to suspend deliveries of goods the subject of contracts with the Purchaser and to decline to accept orders if any queries are unresolved after one month from the date they were first raised.
(h) If payment is overdue in whole or in part, the Seller, its employees or agents, may (without prejudice to any other rights) recover or resell the goods or any part of them and may enter upon the Purchaser’s premises for that purpose.
(i) Payment in full shall become due immediately upon the commencement of any act or proceeding in which the Purchaser’s solvency is involved. The Purchaser shall not in any circumstances be entitled to deduct retain or set off the amount of any claim however arising against the Seller whether or not for a liquidated sum.
(j) The Directors of the Purchaser shall be held liable for any sums due in the event but not limited to that the Purchaser is liquidated, becomes bankrupt, ceases trading, or any other event occurs which means that the Purchaser is unable to pay the outstanding sum in full.
(k) The Seller is entitled to recover any outstanding monies and request the safe return of any goods from any of the directors of the purchaser in any of the events occur outlined in 11(j).
12. Claims, queries and returns
(a) No claims in respect of shortages, or discrepancies in or damage to goods will be accepted unless notified to the Seller in writing within 3 working days of the date of delivery or within 7 days of the date of the Seller’s invoice in the event of a claim for non delivery.
(b) The Seller shall have no liability in respect of damage or shortages caused by the acts or omissions of the Purchaser or of others or by causes beyond the Seller’s control.
(c) No claim in respect of any invoice as to inaccuracies in price, discount, terms of payment or any other commercial terms will be accepted unless notified to the Seller in writing within 7 days of the Seller’s invoice.
(d) No claim by the Purchaser that it has not received an invoice will be accepted unless notified to the Seller in writing within 7 days from the date of the first statement of account from the Seller identifying such invoice.
(e) In any case referred to in paragraphs (a), (c) or (d) of this Condition where no claim has been notified within the relevant period the Purchaser will be deemed to have accepted and be liable for the price of the goods in respect of which, but for such provision, a claim might have been made.
13. Suspension of deliveries
(a) The Seller reserves the right forthwith to cease or suspend deliveries to the Purchaser without liability when :
(i) the Purchaser’s account is overdue
(ii) in the Seller’s reasonable opinion any event has occurred or circumstance arisen which gives rise to doubt as to the continued creditworthiness of the Purchaser.
(b) subject and without prejudice to Conditions 11 (i) and 13(a) if the Purchaser, being an individual, shall become bankrupt or become subject to a receiving order in bankruptcy or being a corporation shall:
(i) commence to be wound up (except for the purpose of solvent amalgamation or reconstruction)
(ii) make any composition or arrangement with its creditors
(iii) become subject to an administration order
(iv) have a receiver appointed of its assets or any of them, then and in any such case, the Seller may (without being responsible for loss) terminate the contract by notice in writing to the Purchaser and recover any loss or damage it has suffered as a result of such termination, limited to the Price, and the Seller may retain any sums paid by the Purchaser under the contract in payment or part payment of such loss or damage.
If any part of the Terms of Service is unenforceable (including any provision in which we exclude our liability to you) the enforceability of any other part of the Terms of Service will not be affected all other clauses remaining in full force and effect. So far as possible where any clause/sub-clause or part of a clause/sub-clause can be severed to render the remaining part valid, the clause shall be interpreted accordingly. Alternatively, you agree that the clause shall be rectified and interpreted in such a way that closely resembles the original meaning of the clause /sub-clause as is permitted by law.
15. Disclaimer of Liability
The material displayed by the Seller either on this Website or in any other publication, literature or material is provided without any guarantees, conditions or warranties as to its accuracy. Unless expressly stated to the contrary to the fullest extent permitted by law the Seller and its suppliers, agents and affiliates hereby expressly exclude all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity and shall not be liable for any damages whatsoever, including but without limitation to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, damage to goodwill or reputation, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use, performance or failures of this Website or the Linked Sites and any materials posted thereon, irrespective of whether such damages were foreseeable or arise in contract, tort, equity, restitution, by statute, at common law or otherwise. This does not affect the Seller’s liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
The Purchaser agrees to indemnify and hold harmless the Seller, its directors, agents and affiliates harmless for all third party claims, liability, damages or any loss, cost or damage incurred by the Seller as a result of the Purchaser’s negligence or misuse of the goods supplied by the Seller.
No provision of these conditions shall be considered waived or varied by either party unless confirmed in writing by duly authorised representatives of both parties. No such waiver shall be a waiver of any past or future default, breach or modification of these conditions. The non-enforcement of any of these conditions by either party shall not be construed as a waiver of that party’s other rights and obligations.
18. Legal interpretation
The contract shall in all respects be construed and operate in accordance with English law and is subject to the exclusive jurisdiction of the English courts.