Conditions of Sale
1. (a) In these conditions “the Purchaser” shall mean the person, firm or company who purchases the Goods from the Company, “the Company” shall mean Michael Weinig (UK) Limited, “the Goods” shall mean any goods agreed to be supplied by the Company to the Purchaser (including any part or parts of them) and “Contract” shall mean any contract between the Company and the Purchaser for the sale and purchase of the Goods, incorporating these conditions.
(b) All Contracts between the Purchaser and the Company shall be subject to these conditions of sale.
(c) Unless expressly agreed by the Company, these conditions shall override any standard or other terms or conditions stipulated, incorporated or referred to by the Purchaser in negotiations or elsewhere.
(d) No variation or waiver of or addition to these conditions shall be effective unless confirmed in writing by a director, or the general manager, of the Company.
(e) The Contract between the Purchaser and the Company shall be concluded only upon the Company’s written acceptance.
2. (a) Where a price is expressly stated to be firm for a specific period, that price shall be payable net without deduction of any kind provided that the order is placed or delivery taken (as the case may be) within the period specified.
(b) In the absence of such a statement, the Company reserves the right to alter the prices from time to time without notice to reflect changes in the cost of new materials and wages notwithstanding previous acceptance of an order. In such case, the effective price will be the price shown on the Company’s standard price list in force on the date of delivery.
(c) In view of the Company’s policy of continuous product improvement, alterations in design and construction may be made without notice.
(d) Weights and crate sizes quoted by the Company are approximate, given for general guidance only and not contractually binding.
(e) The price for the Goods shall be exclusive of any value added tax and, unless otherwise expressly agreed by the Company, all costs or charges in relation to packaging, loading, unloading, carriage and insurance shall be paid in addition by the Purchaser when payment for the Goods is due.
3. No date or period for delivery specified shall be treated as contractually binding upon the Company. Such dates or period are quoted for general guidance only and accordingly in considering such dates or periods such date or period shall be calculated as from whichever is the latest of the date on which the order is accepted by the Company or the date on which any technical, commercial, customs or foreign exchange problems have been resolved or the date on which any specified deposit or letter of credit shall have been received or confirmed and any delay in delivery shall not entitle the Purchaser to any right to claim for damages or rescission.
4. The Company reserves the right to select the port of shipment, border crossing port, means of transport and the shipping agent up to the time at which the Goods are delivered to the Purchaser.
5. Save for spares and tooling equipment which shall be deemed to have been delivered to the Purchaser when they have passed into possession of the railway, shipping agent, transport company, or post office as the case may be, all other Goods shall be deemed to be delivered to the Purchaser when they have been delivered to the site nominated by the Purchaser
6. (a) Payment for the Goods shall be made to Michael Weinig (UK) Ltd at the address shown overleaf in the absence of any express agreement to the contrary. Where it is expressively agreed that the price is payable in foreign currency, all banking and similar charges shall be for the account of the Purchaser.
(b) The time for payment shall be in accordance with the Company’s payment terms as set out in its acknowledgement of order.
(c) If any sum payable to the Company shall not be received by the due date, interest shall be payable at the rate of 1½% per cent, per calendar month calculated daily from the due date to the date of actual payment.
(d) When the Company agrees to accept payment by installments, any delay in the receipt of one installment shall without prejudice to any other right, forthwith entitle the Company to the whole of the outstanding sum.
7. (a) Nothing in this clause shall exclude the Company’s liability for death or personal injury caused by its negligence.
(b) The Goods shall be in accordance with the technical specifications supplied to the Purchaser and shall be free from manufacturing defects. The warranty period is 12 months for a single shift operation, 6 months for a 2 shift operation and 3 months for a 3 (or more) shift operation, following the date of delivery of the Goods. The Company shall not be liable for any breach of warranty unless the Purchaser provides written notice of the defect within 5 days of the date of discovery of the defect.
(c) The warranty does not cover second hand Goods (which are sold as seen) or Goods not manufactured by the Company (although the Company shall endeavour to pass to the Purchaser the benefit of any warranty or guarantee received by it from the manufacturer) or motors.
(d) The warranty does not cover ordinary wear and tear or damage resulting from impact or from the use of unsuitable lubricants or from failure to comply with prescribed maintenance procedures or from improper handling or from acts of God. The warranty will not apply if the Goods have been modified or adapted or repaired other than by arrangement with the Company.
(e) If a claim is made under this warranty in respect of defective Goods the Company may inspect the Goods or part of them. Inspection may take place at the Purchaser’s premises unless the Goods or relevant parts of them are capable of delivery in which case the Purchaser shall deliver them carriage paid and carefully packaged to the Company. If they are found to be defective the Company at its sole option may:
(i) repair the Goods or defective parts;
(ii) replace the Goods or defective parts.
(iii) refund the price of the Goods or defective parts.
Replaced parts shall become property of the Company.
(f) The conditions at (b) to (e) above are in lieu of and to the exclusion of all liabilities, obligations, warranties and conditions, whether expressed or implied by common law, statute, custom and trade, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law. The Company shall not be liable in contract or tort or otherwise for direct or consequential loss or damage or injury in connection with or arising out of possession, operation, use, malfunction or modification of Goods save as aforesaid and the Purchaser shall indemnify the Company in respect of any claim, loss, damage or injury to any person or property or for any loss directly or indirectly occasioned by or arising from possession, operation or use of Goods or arising from the manufacture or modification of the Goods.
(g) In no circumstances shall the Company’s liability to the Purchaser for a breach of any express or implied term of the Contract, or any other duty of any kind imposed on the Company by law arising out of or in relation to the Contract, exceed £1 million.
8. (a) Property in the Goods shall not pass to the Purchaser until the Purchaser has paid in full all sums due to the Company.
(b) If the Company’s Goods are attached to or form part of some other property or machines or other property is or are attached to the Goods the Purchaser shall mark both the Goods and the other products in such way that the Company’s Goods can be readily identified as property of the Company.
(c) Subject to (d) and (e) below the Purchaser shall be entitled to sell the Goods on reasonable commercial terms on the basis that the proceeds of sale will belong to the Company and shall be placed in a separate bank account clearly denoted as an account containing monies deposited for the benefit of the Company and the Purchaser will supply details of that account to the Company. No such sale shall be made as the Company’s agents.
(d) The Company may revoke the Purchaser’s power of sale by notice to the Purchaser if payment for the Goods is still overdue 7 days after written demand has been made.
(e) The Purchaser’s power of sale shall automatically cease if a receiver is appointed over any of the assets or the undertaking of the Purchaser or a winding-up order is made against the Purchaser or the Purchaser goes into voluntary liquidation or calls a meeting of or makes any arrangement or composition with creditors or commits an act of bankruptcy. If any such event should occur, the Purchaser shall promptly notify the Company thereof.
(f) Upon determination of the Purchaser’s power of sale under (d) or (e) above, the Company shall be entitled to enter the premises of the Purchaser to take possession of the Goods.
(g) From the date of delivery of the Goods (notwithstanding that property may not pass to the Purchaser) the Goods shall be at the risk of the Purchaser who shall insure the Goods for the period from the date of delivery until the passing of property in the Goods against any loss or damage.
9. It is not intended that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
10. The Contract shall be subject to and construed in accordance with English law. Any dispute or matter arising out of the Contract shall be submitted for determination to the English Courts and the parties submit to the exclusive jurisdiction of the English Courts.