TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS OF SALE of the Maxa Group of companies
The Customer’s attention is specifically drawn to the following clauses of these General Conditions of Sale: clause 9.2 and clause 9.3 (Warranty limitations), clause 10 (Liability and Indemnity), clause 11.2 (Indemnity) and clause 13.1 (b) (Compliance with laws indemnity).
AGREED TERMS
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Customer: the person, firm or company who purchases Goods from the Supplier as identified in the Order Acknowledgement.
Conditions: the terms and conditions set out in this document unless amended in accordance with clause 16.4.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods, in accordance with these Conditions, the Order Acknowledgement and any variation agreed pursuant to clause 16.4.
Data Protection Legislation: any legislation applicable in the United Kingdom relating to the privacy of personal data, including but not limited to the UK General Data Protection Regulation, the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003 (as amended).
Delivery: the delivery of the Goods to the location set out in the Order Acknowledgement and “Delivered” shall be construed accordingly.
Force Majeure Event: any event beyond a party’s control including the following: fire, flood or other natural disaster, epidemic and/or pandemic, any form of industrial action including strikes and lock outs, governmental restrictions and/or regulations, terrorist attack, civil commotion or unrest, imposition of sanctions or embargo, failure of utilities, nuclear chemical or biological contamination or sonic boom.
Goods: any goods supplied by the Supplier which form part of the Supplier’s product list from time to time.
Intellectual Property Rights: all analytical methods, rights to inventions, patents, copyright and related rights, industrial property rights, rights in software, (including source code), trademarks, business names and domain names, rights in get-up, goodwill, the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how), trade secrets and all other intellectual property rights in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's order for the Goods.
Order Acknowledgement: the Supplier’s written acceptance of the Customer’s Order, either by a document headed “Order Acknowledgement” or via email acceptance from the Supplier.
Supplier: shall be the applicable Maxa group company, being the party named on the Order Acknowledgement.
Shortfall: shall have the meaning set out at clause 8.6.
Specification: the specification for the Goods by reference to product number(s) or data sheet(s) (as the case may be), set out in the Order Acknowledgement.
1.2 The following rules of interpretation shall apply to these Conditions:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a statute or statutory provisions is a reference to such statute or statutory provisions as amended or re-enacted.
(c) A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any of the following the terms: including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any stipulated Specification are true, complete and accurate and, are suitable for its requirements. The Order shall only be deemed to be accepted when the Supplier issues an Order Acknowledgement, at which point the Contract shall come into existence.
2.2 These Conditions apply to the Contract to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which are implied by, trade, custom, practice or course of dealing. Any terms implied by statute are, to the fullest extent permitted by law, excluded from the Contract.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. All other terms and conditions are expressly excluded.
2.4 Any drawings, models, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues, brochures, website or proposals are produced for the sole purpose of giving an approximate idea of the Goods. They shall not form part of the Contract nor shall they have any contractual force.
2.5 In the event of any conflict or inconsistency between these Conditions and the other documents included in the Contract, such conflict or inconsistency shall, subject to any contrary written agreement of the parties, be construed in the following order of priority: (a) any variations agreed pursuant to clause 16.4; (b) the Order Acknowledgement; (c) these Conditions; and (d) any other document referred to in the Order Acknowledgement.
3. CANCELLATION AND REPLACEMENT GOODS
3.1 The Customer may only end the Contract and cancel an order for Goods, subject to the Supplier’s prior written consent. If consent is given, the Customer shall be liable to the Supplier for all losses, liabilities, costs, expenses, administration charges and liabilities suffered or incurred by the Supplier as a result of such cancellation.
3.2 If the Supplier permits the Customer to cancel an order for Goods and exchange for replacement or other Goods, in addition to the provisions of clause 3 above, the Customer expressly acknowledges and agrees to pay the re-stocking charge as advised by the Customer, which shall be payable on demand.
3.3 If the Customer’s requested Goods are not available, the parties may agree that the Supplier will supply equivalent or replacement Goods. Where such an agreement is reached, the parties shall agree any changes in accordance with the provisions of clause 16.4.
4. PRICE
4.1 Unless the Supplier otherwise agrees in writing, the price of the Goods will be that specified on its Order Acknowledgement. All prices quoted and quotations are valid for 30 days only. All prices and other charges will be subject to any applicable value added tax and other taxes or duties which will be payable at the same time as the price of the Goods.
4.2 Unless the Contract otherwise provides, the Customer will pay the Supplier’s charges for packaging, transport and insurance at the Supplier’s rates prevailing at the time of delivery.
4.3 The Supplier reserves the right, by giving notice to the Customer at any time before delivery to increase the price of the Goods at any time to reflect any increase in the cost to the Supplier of supplying the Goods which is due to any factor beyond the Supplier’s control (including but not limited to foreign exchange fluctuations, currency regulation, alteration of duties or increases, in raw materials, labour or the costs of manufacture), any change in delivery date, quantities or specification requested by the Customer, any delay caused by any instructions of the Customer or any failure or delay by the Customer in procuring the doing of anything which it has agreed to do under the Contract.
5. PAYMENT
5.1 The Supplier may invoice the Customer for all sums payable under the Contract on or at any time after Delivery or, if the Customer wrongfully fails to collect or take Delivery or to give proper delivery instructions, at any time after it has notified the Customer that they are ready for collection or it has tendered delivery of them. In each case, time for payment will be of the essence.
5.2 Unless payment is to be made on Delivery, the Supplier’s invoices will be payable within thirty days of the date of invoice. If the Supplier has reason to doubt the Customer’s ability to pay any sum under the Contract on the due date the Customer will within seven days of written notice from the Supplier pay the balance of all sums payable or becoming payable under the Contract (including any sum held or to be held by way of retention) or provide security for such payment to the Supplier’s satisfaction, pending which the Supplier may suspend the performance of all or any of its obligations under the Contract.
5.3 If the Customer fails to make any payment on the due date, without affecting its other rights, the Supplier may terminate the Contract or suspend any further deliveries, appropriate any payment by the Customer to such of the Goods as the Supplier decides and/or charge the Customer interest on the amount for the time being unpaid at the interest rate dictated by the Late Payment of Debt Interest Act 1998 until payment in full is made. Such interest will accrue daily and be payable both before and after judgment. The Customer shall also be liable for any costs incurred by the Supplier in connection with the recovery of outstanding payments. Such costs shall also be subject to the interest rate charged on the outstanding payments.
5.4 All sums payable by the Customer must be paid in sterling without any deduction or set off counterclaim or other claim or right.
6. DELIVERY
6.1 The Supplier will use its reasonable endeavours to supply or make available the Goods by any estimated Delivery or collection date but the time for Delivery or collection will not be of the essence of the Contract.
6.2 The Supplier may deliver the Goods by instalments as and when they are available. Where the Goods are or are to be delivered by instalments, each delivery will constitute a separate contract.
6.3 Subject to clause 6.4, if the Customer fails to collect or accept Delivery of the Goods or give proper delivery instructions (unless due to the Supplier’s default) the Supplier may arrange for storage of the Goods at the Customer’s risk and expense until they are Delivered or collected (including if applicable storage charges at the Supplier’s then prevailing rates and the cost of any re-Delivery).
6.4 If the Customer has failed to collect the Goods or, if the Customer has not accepted Delivery within 15 Business Days of the agreed Delivery or collection date (as applicable), the Supplier shall be entitled to resell or dispose of the Goods as it sees fit. The Customer shall pay on demand all costs, expenses, losses and liabilities suffered or incurred by the Supplier as a result of such disposal or resale.
7. INSPECTION AND ACCEPTANCE OF GOODS
7.1 The Customer shall notify the Supplier in writing within 3 Business Days of Delivery or collection of the Goods (as applicable) of any claim relating to: (a) any shortfall in any quantity of the Goods; (b) the condition and/or damage to the Goods; and/or (c ) any defect in relation to the Goods.
7.2 The Supplier will provide the Customer with instructions as to the return of the Goods (if applicable). If the Supplier (having inspected the Goods) reasonably determines the goods are defective or damaged due to the fault of the Supplier, it shall in its discretion repair or replace the Goods in accordance with the provisions of clause 9. Such repair or replacement shall be the Customer’s sole and exclusive remedy.
8. TITLE AND RISK
8.1 Risk in the Goods shall pass to the Customer at the point of collection or Delivery (as applicable), unless otherwise expressly agreed by the parties in writing in the Order Acknowledgement.
8.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full, in cleared funds, for the Goods.
8.3 Notwithstanding Delivery and the passing of risk or any other provision of these Conditions, the legal and beneficial ownership of the Goods shall remain with the Supplier which retains the right of disposal, until the Supplier has received payment in full and in cleared funds of:-
8.3.1 all sums payable to the Supplier in relation to the Contract; and
8.3.2 all other sums then due from the Customer to the Supplier in respect of the supply of any other goods or services.
8.4 Until the title in and to the Goods passes to the Customer, the Customer shall:-
8.4.1 hold the Goods on a fiduciary basis as the Supplier’s bailee;
8.4.2 store the Goods separately from all other Goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
8.4.3 not remove, deface or obscure any identifying mark on or relating to the Goods;
8.4.4 keep and maintain the Goods in the same condition that they were supplied to the Customer and keep them insured for their full replacement value, against all risks for its full price from the date of delivery; and
8.4.5 notify the Supplier immediately if they are subject to any insolvency related event.
8.5 If before title to the Goods passes to the Customer, the Customer becomes subject to any insolvency related event, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods. If the Customer fails to deliver up the Goods promptly, the Supplier shall be entitled to enter the premises of the Customer or of any third party where the Goods are stored in order to recover and take possession of the Goods.
8.6 If the Supplier exercises its right to take possession of the Goods pursuant to clause 8.5, the Supplier may sell them and the sale proceeds will belong to the Supplier absolutely. If the net proceeds received by the Supplier are less than the amount payable to it under the Contract it may recover the balance from the Customer (Shortfall). The Customer shall pay any Shortfall immediately following a demand from the Supplier.
9. WARRANTY
9.1 The Supplier warrants that the Goods will correspond with the Specification, be fit for the general purpose for which they were manufactured and be free from material defects in workmanship and design for a period of 12 months from the date of Delivery or collection (as applicable).
9.2 Subject to the provisions of clause 9.3 and provided: (a) the Customer gives written notice to the Supplier within 12 months following delivery or collection of the Goods (as applicable) and within 7 days of becoming aware that some or all of the Goods are not in accordance with the warranty at clause 9.1; and (b) the Supplier is given the opportunity to examine or test the Goods as it sees fit; and (c) the Customer (if asked to do so by the Supplier), returns such Goods to the Supplier’s place of business at the Customer’s cost, then the Supplier shall, subject to its determination that the Goods are defective (acting reasonably) shall at its option, repair, re-work or replace the defective Goods or, agree with the Customer that they may repair the Goods, subject to the parties agreeing the costs of any re-works or repairs.
9.3 The Supplier shall not be liable for the Goods’ failure to conform with the warranties set out at clause 9.1 if: (a)the damage and/or defects arise through no fault of the Supplier; (b) the Customer makes further use of the Goods after giving notice in accordance with clause 9.1; (c ) the defect arises because the Customer failed to follow the Supplier's oral or written instructions (including but not limited to any manufacturer’s instructions) as to the storage, installation, use, operation, or maintenance of the Goods; (d) there are changes to any applicable law or codes of practice in relation to the installation, use, storage, operation or maintenance of the Goods (Instructions), and/or any good trade practice regarding the Instructions; (e) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer; (f) the Customer, or any third party, adjusts, alters, modifies or repairs such Goods without the prior written consent of the Supplier; and/or (f) the defect arises as a result of fair wear and tear, willful damage, negligence, abnormal storage, improper installation (other than where the Supplier carries out the installation) and/or abnormal operating conditions including extremes of temperature, moisture, dirt or corrosive matter; and/or (g) any defect in the Goods has arisen as a result of any document, information or materials supplied by or for the Customer.
9.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.5 These Conditions shall apply to any repaired or replacement Goods, supplied by the Supplier.
9.6 Subject to compliance with the time limit set out at clause 9.1 (a), upon receipt of a warranty claim the Supplier shall at its discretion and without undue delay, repair or replace the Goods. The Customer shall not be entitled to seek any other remedy or relief.
9.7 The Customer or any end-user must ensure that suitably trained and competent personnel operate the Goods and diagnose and deal with day-to-day operational problems and maintenance promptly and appropriately.
9.8 Any warranty work will be carried out during the Supplier’s normal business hours so far as is practicable at the Supplier’s premises and/or elsewhere at its option. The Customer shall ensure that the Supplier’s personnel will have such access to the Goods as they may require to investigate alleged defects or damage and carry out any warranty work.
9.9 Goods must be returned carriage paid to the Supplier’s trading premises as required by the Supplier. The Supplier will reimburse the Customer the reasonable carriage costs incurred by it in returning by road from the Customer’s premises in Great Britain or by other agreed mode of transport Goods repaired or replaced under the warranty or whose purchase price is refunded. Replaced Goods will belong to the Supplier.
9.10 The Customer must give the Supplier in writing full particulars of any claim within the period stated under clause 9.1 and in any event, no later than 5 Business Days of it becoming aware of a claim.
9.11 If the Customer makes any claim falling outside the terms of the warranty the Supplier may charge for examining the Goods and any work done or goods supplied by it in respect of that claim at its then prevailing rates and any cost or expense incurred by the Supplier.
9.12 Any repair or replacement of the Goods shall be the Customer’s sole and exclusive remedy.
10. LIABILITY AND INDEMNITY
10.1 Nothing in these Conditions shall limit or exclude either party’s liability for: (a) death or personal injury caused by its negligence, or the negligence or its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; or (c ) any other liability which cannot be limited or excluded as a matter of law.
10.2 The Supplier shall not be liable in contract or tort (including negligence), breach of statutory duty, restitution or otherwise for:-
10.2.1 any consequential or indirect loss, liability or damage or any other claim for consequential compensation; or
10.2.2 loss of any kind of profit, business, production or goodwill or anticipated savings or other benefits or any costs, expenses or liability to any third party incurred by the Customer arising directly in the natural and ordinary course or indirectly from or in connection with the Contract or the Goods.
10.3 Subject to the provisions of clause 10.1 and clause 10.2, the Supplier’s total aggregate liability to the Customer, arising in contract, tort (including negligence), breach of statutory duty, restitution arising under or in connection with the Contract shall be limited to a sum equal to the net invoice value of the Goods.
10.4 The Customer shall indemnify the Supplier from and against all claims and proceedings brought against the Supplier by any third party arising from any act or omission on the part of the Customer (or any other person for whom it is vicariously liable) in relation to the Goods or their supply or alleging that the Supplier’s use of any document or information supplied by or for the Customer in relation to the Contract infringes any third party’s rights together with all expenses, costs (including legal costs on a full indemnity basis), damage, losses and liabilities incurred by the Supplier in connection with any such claims or proceedings.
10.5 The Customer acknowledges and agrees that the limitations and exclusions in this clause 10 are fair and reasonable.
11. TERMINATION
11.1 If the Customer makes any arrangement or composition with its creditors generally or (being an individual) has an interim order (within the meaning of the Insolvency Act 1986) made against him or becomes bankrupt or (being a firm or body corporate or unincorporate) enters into compulsory liquidation or voluntary liquidation or the equivalent or is dissolved or has a receiver and/or manager, administrative receiver, supervisor or administrator appointed over or in relation to the Customer or any part of its assets or undertaking or is unable to pay its debts within the meaning of sections 123 or 268 Insolvency Act 1986 or anything analogous to any of the foregoing occurs in any jurisdiction in relation to the Customer or the Customer commits any breach of any of the provisions of the Contract (express or implied) the Supplier may terminate the Contract or the balance of the Contract or suspend deliveries or the supply of any services forthwith by written notice to the Customer without any liability whatsoever.
11.2 The Customer shall indemnify the Supplier against all claims, proceedings, loss, damage, liabilities, costs and expenses incurred by the Supplier arising in connection with any breach by the Customer of, or any act or omission of the Customer in relation to, the Contract.
11.3 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of its obligations under the Contract and, if such breach is remediable, fails to remedy that breach within 30 days of receipt of notice in writing of the breach.
11.4 Without limiting its other rights and remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on any due date for payment.
11.5 Termination or expiry of the Contract, however arising, shall not affect the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
12. CONFIDENTIAL INFORMATION AND DATA PROTECTION
12.1 Any plans, drawings, designs or documentation whether in paper or electronic format supplied by the Supplier or its representative to the Customer and any information communicated to the Customer by the Supplier relating to the Contract and/or the Supplier or the Supplier’s business, shall be kept confidential by the Customer. On request, the Customer shall immediately return the Supplier’s confidential information to the Supplier without retaining any copies of the same. This clause 12.1 shall survive the termination of the Contract.
12.2 The Customer and the Supplier shall at all times comply with their respective obligations under the Data Protection Legislation and enter in appropriate agreements relating to the sharing and processing of personal data as may be appropriate in the circumstances.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 Title in and to any Intellectual Property Rights created by the Supplier or its licensors whether before or after the date of the Contract shall at all times vest in the Supplier or the Supplier’s licensors (as the case may be) (Supplier IPR).
13.2 The Customer is hereby granted a non-exclusive, royalty-free licence to use the Supplier IPR to the minimum extent necessary to use the Products in the course of its business.
14. COMPLIANCE WITH LAWS
14.1 (a) The Customer shall, in performing its obligations under the Contract, comply with all applicable, laws, statutes and regulations from time to time in force. (b) The Customer shall indemnify the Supplier against any losses, liabilities, damages, fines, costs (including legal fees) and expenses incurred by or awarded against the Supplier as a result of a breach of this clause 14. (c ) The Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer commits a breach of this clause 14, such a breach being deemed to be a material breach.
15. RETURN OF GOODS SUPPLIED
15.1 The Supplier’s ‘Returns Policy’ applies to any request for return of Goods for any reason not laid out in these Conditions. The ‘Returns Policy’ is a separate document available on request.
16. MISCELLANEOUS
16.1 The Supplier will not be deemed to be in breach of the Contract or otherwise be liable to the Customer for any delay or failure in performing any of its obligations under the Contract by reason of a Force Majeure Event.
16.2 The Contract will be governed by the laws of England and all claims and proceedings arising in connection with it, its subject matter or formation (including contractual and non-contractual disputes or claims). The parties agree that the courts of England shall have exclusive jurisdiction in relation to any disputes or claims (including contractual and non-contractual disputes or claims).
16.3 Save for any company which is a group company of the Supplier (who may enforce the Contract in full) , a person who is not a party to the Contract shall not have any rights under or in connection with it.
16.4 Except as set out in these Conditions, any variation to the Contract shall only be binding when agreed in writing and signed by the parties.
16.5 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict its further exercise.
16.6 If any provision of the Contract or part of it is held to be invalid or unenforceable by any court or other body of competent jurisdiction that will not affect the other provisions of the Contract or the remainder of the relevant provision (if applicable).
16.7 The Customer may not assign or otherwise deal with all or any of its rights or obligations in relation to the Contract without the Supplier’s prior written consent. The Supplier may assign, charge or deal with any of its rights and obligations in relation to the Contract without the Customers consent.
16.8 The Supplier’s rights under these Conditions are cumulative and in addition to its other rights.
16.9 Any notice or claim under the Contract must be in writing and will be effectively served if it is personally delivered or sent by pre-paid first-class post or email transmission to the addressee at its registered office or principal place of business or any other address for service notified to the other party in writing in accordance with this clause 16.9 .