1.1 The following conditions issued by MARK SIMPKIN LTD ( “ the company “ ) apply to any contract of which these conditions form part to the exclusion of any conditions of the Customer or any other standards, specifications conditions or particulars of or adopted by the Customer, unless expressly accepted in writing by the Company as part of the Contract.
1.2 The following expressions shall have the following meaning.
“Buyer” – the individual firm company or other party from whom an Order to Supply Goods and/or provide Services is received by the Company
“Conditions” – the standard terms and conditions of sale of the Company as set out in these terms and includes any additional terms and conditions of sale agreed in Writing by the Company.
“Contract” – a contract for the Supply of Goods and/or provision of Services by the Company to the Buyer whether made verbally or in Writing.
“Goods” – the goods, articles or items which the Company is to supply under the Contract.
“Order” – an order placed by the Buyer for the Supply of Goods and/or provision of Services whether verbally or in Writing.
“Writing” – includes facsimile transmission, electronic mail and other comparable means of communication.
2.1 A quotation by the Company does not constitute an offer by the Company to supply the goods stated therein and no order placed in response to the Company’s quotation will be binding unless accepted by the Company in writing. The Company reserves the right to change the design or specification of the goods without prior notice and without liability to the customer.
2.2 The Sellers quotation shall be valid for 30 days unless otherwise quoted.
3.1 The Company shall be entitled to adjust the Contract price of the Goods and/or Services whether before or after the making of the Contract in the event of variation in the cost to the Company of supplying the same or any part thereof caused by:
3.1.1 any increase in the cost of materials or services required by the Company for the completion of the Contract or
3.1.2 any increase in wages or production and manufacturing costs or other overheads or
3.1.3 any other reason whatsoever beyond the control of the Company including (but without prejudice to the generality of the foregoing) fluctuations in exchange rates between monetary currencies the action of any government or any other authority or any labour problems.
3.2 Orders placed with the Company will not be subject to any additional discounts or retentions. Our products are guaranteed for a period of twelve months which is the usual retention period. We will repair under this guarantee any faults which occur within this period – providing the fault is due to faulty manufacture and not customer mis-use or abuse. Payment must be received by the Company before delivery. Subject to credit being approved accounts are due for payment not later than the end of the month following the month of dispatch. When the deliveries are spread over a period each consignment will be invoiced as dispatched and each month’s invoices will be treated as a separate account and be payable accordingly. Failure to pay for any goods or for any delivery or instalment shall entitle the Company to suspend further deliveries and work both on the same order and on any other order from the Customer without prejudice to any other right the company may have. The company also reserves the right to charge interest on overdue accounts. Such interest shall be calculated on a day to day basis on the amount outstanding at the rate of 4% per calendar month. The Company reserves the right where genuine doubts arise as to a Customer’s financial position or in the case of failure to pay for any goods or any delivery or instalment as aforesaid to suspend delivery of any order or any part of instalment without liability until payment or satisfactory security for payment has been provided.
3.3 All prices are subject to VAT at the current rate.
4. TITLE TO GOODS
(a) Risk in the goods shall pass to the Customer when the goods are delivered to the Customer
(b) Notwithstanding sub-clause (a) legal and beneficial ownership of the goods shall remain with the Company until payment in full has been received by the Company:
( i ) for those goods
( ii ) for any other goods supplied by the Company
( iii ) of any other moneys due from the Customer to the Company on any account
(c) Until property in the goods passes to the customer under sub-clause (b) about the Customer shall:
( i ) Be bailee of the goods
( ii ) keep the goods separately and readily identifiable as the property of the Company
(d) ( i ) Not withstanding sub clause (b) above the Customer may ( as between it and its customer only ) as principal in the ordinary course of its business sell the goods by bona fide sale at full market value or in the ordinary course of its business use the goods;
( ii ) Goods shall be deemed sold or used in the order delivered to the Customer; ( iii ) Without prejudice to d(i) above, any resale by the Customer of goods in which property has not been passed to the Customer shall ( as between the Company and the Customer ) be made by the Customer as agent for the Company.
(e) ( i ) If goods in which property has not been passed to the Customer are mixed with or incorporated into other goods the property in those other goods or the proceeds of sale thereof shall be held on trust by the Customer by the Company
( ii ) The Customer shall keep any proceeds of sale as referred to in sub-clause (e) (i) above in a separate account and the Company shall have the right to trace such proceeds ( according to the principals in re Halletts Estate ( 1880 ) 13 ch D696 )
( iii ) Upon accounting to the Company for the entire proceeds of sale made under sub-clauses (d) (ii) and (e) (i) above, the Company will pay to the Customer a commission equivalent to the difference between the sums owed to the Company and the value of such proceeds.
(f) The Customer assigns to the Company all rights and claims the Customer may have against its own customers and others in respect of goods specified in sub- clauses (d) (iii) and (e) (i) above.
(g) At any time prior to property in goods passing to the Customer ( whether or not any payment to the Company is then overdue or the Customer is otherwise in breach of any obligation to the Company ) the Company may without prejudice to any other of its rights:
(i) Retake possession of all or any part of the goods and enter any premises for that purpose ( or authorise others to do so ) which the Customer hereby authorises;
(ii) Require delivery up to it of all or any part of the goods;
(iii) Terminate the Customer’s authority to resell or use the goods forthwith by written notice to the Customer which authority shall automatically terminate ( without notice ) upon any insolvency of the Customer or it going into liquidation ( as defined in the insolvency act 1986 ) or it having a receiver or other similar officer appointed or calling a meeting of its creditors or any execution or distress being levied on goods in its possession.
(h) The Company may at any time appropriate sums received from the Customer as it thinks fit notwithstanding any purported appropriation by the Customer.
(i) Each clause and sub-clause of this condition is separate, severable and distinct.
5. WARRANTY: LIMIT OF RESPONSIBILITY
The Company warrants that it will (at the Company’s choice) either replace or refund the full purchase price of any goods which are found within a period of three days from dispatch of such goods from the Company’s works ( “ the warranty period “ ) to the defective or not in accordance with the contract or any expressed description representation given or made on behalf of the Company in respect of the goods. The Customer’s remedies in respect of any such claim under the foregoing expressed warranty or any condition or warranty implied by law or any other claim in respect of the goods or any workmanship in relation thereto ( whether or not involving negligence on the part of the Company ) shall in all cases be limited to replacement or refund of the purchase price as aforesaid and any condition or warranty implied by law shall cease to apply after the expiry of the warranty period; and the Company shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct or consequential and any other remedy which would otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any rule of law. A claim in respect of any defect or failure to comply with the specification or order in respect of any delivery or instalment of any order or any part thereof shall not entitle the Customer to cancel or refuse delivery or payment for any other order, delivery or instalment or any part of the same order, delivery or instalment.
6. DELIVERY TERMS
6.1 – Unless otherwise stated our general delivery terms are worked on a week commencing basis, where goods will be delivered any time during the week in question. Should the customer require a set / timed delivery date extra costs may incur. Our ( Mark Simpkin Ltd ) sales office must be informed of any delivery procedure / restrictions at the agreed delivery site prior to goods being dispatched. Standard delivery may not include Pedestrian Zones that operate time limits on deliveries. Should our delivery vehicles be turned away due to the above procedures not being adhered to, additional re-stocking / re-delivery charges may be incurred by the customer.
6.2 – Whilst the Company will make every reasonable effort to complete the Contract by the date or dates specified for delivery of Goods and/or provision of Services such date or dates shall only constitute the times by which the Company expects to effect such delivery and if no time is agreed delivery and/or provision will be in a reasonable time but the time for performance of the Contract by the Company shall not be essence of the Contract, the Company failure to deliver and/or provide by the due date or dates shall not constitute a breach of Contract and the Company shall not in any circumstances be responsible for any direct or consequential loss or damage of any kind whatsoever resulting from such breach.
6.3 – Neither of the parties shall be responsible to the other for any delay in performance or non-performance due to any causes beyond the reasonable control of the parties, but the affected party shall promptly upon the occurrence of any such cause so inform the other party in Writing, stating that such cause has delayed or prevented its performance under the Contract and thereafter such party shall take all action within its power to comply with the terms of the Contract as fully and promptly as possible
7. INSTALLATION OF GOODS ON SITE
The quoted price is calculated upon and assumes:
• site will be clear and ready to accept goods
• site will have adequate lighting and power supply
• our installation operatives can work from 8.00am until 6.00pm each day and that the installation is carried out during normal working hours
• there is clear access for large goods vehicles of 32’ minimum length
• whilst unloading and installing the installation operatives shall have priority use of lifts, corridors and the installation area
• the client will provide means by which the installation operatives may dispose of packaging and surplus materials
8. CANCELLED ORDERS
The Company reserves the right to charge the full asking price for cancelled orders. Cancellations may be accepted at the discretion of the company – charges may apply. All cancellations must be submitted in writing by the customer and will only be accepted once acknowledged by Mark Simpkin Ltd in writing.
9. APPLICABLE LAW
The contract shall in all respects be governed by and construed in accordance with English Law and the Customer hereby submits to the non-exclusive jurisdiction of the English courts.