Terms & Conditions
Marrison Agriculture Limited – Terms and Conditions of Sale
1. GENERAL APPLICATION
1.1. Unless expressly agreed in writing by a Director of the Company, all Goods (which includes where relevant provision of services) are sold upon these terms and conditions (the Conditions) and no agent or representative of the Company has any authority to vary or omit the Conditions or any of them.
1.2. All acceptances contracts orders and quotations are subject to these Conditions alone which superseed and exclude any arrangements, agreements, statements, or negotiations, terms, conditions, warranties and representations whether written or oral express or implied made between the Buyer and the Company and no variations of the Conditions will be valid unless agreed upon in writing signed by a Director of the Company.
1.3. The Buyer accepts that the Conditions will govern all its relations with the Company to the exclusion of any terms and conditions contained in any of the Buyer’s documents even if the same purport to provide that the Buyer’s own or some other terms shall prevail.
1.4. Each clause in the Conditions shall where the context allows be read separately and if any clause shall be adjudged to be void as going beyond what is reasonable but would be valid if part of the wording were deleted, the clause shall apply with such modifications as may be necessary to make it/ them valid and effective.
1.5. Headings in the Conditions have been inserted for convenience only and shall not affect its interpretation or construction in any way.
1.6. Waiver by the Company of any of its rights hereunder or any breach of such rights shall not constitute waiver of any other right or of any continued breach and no delay or allowance of time by the Company in enforcing any of its rights shall preclude the subsequent enforcement of these rights or of any other rights.
2.1. In the Conditions the following words and expressions shall have the following meanings:-
2.1.1. The Company shall mean Marrison Agriculture Limited of 1 Ironside Way, Hingham Business and Industrial Centre, Hingham, Norfolk, NR9 4LF.
2.1.2. The Buyer shall mean the Company or person which has addressed any requests or Order for the supply of goods or services to the Company and shall include his agent where the context so admits.
2.1.3. The Goods shall mean all goods, whether raw material or finished products, or systems, forming the subject matter of a contract between the Company and the Buyer or to be delivered by the Company to the Buyer or collected by the Buyer from the Company under the Order. Where the Order includes provision for the supply of services “the Goods” shall, where the context permits, include the services which the Company has contracted to supply.
2.1.4. The Order shall mean the order placed by the Buyer with the Company for the supply of the Goods by the Company to the Buyer.
2.1.5. The Acceptance shall mean the acknowledgement in writing by which means the Company accepts the Buyer's offer to buy the Goods subject to the Conditions and other provisions set out in the Acceptance.
2.1.6. Due Date shall mean the date when payment is due calculated by reference to the terms contained or referred to in the Acceptance or if none clauses 4.1 & 4.2 of the Conditions.
2.1.7. The Price shall mean the price agreed for the Goods as determined by reference to the Acceptance.
2.1.8. The Additional Cost shall mean the increased contract prices to cover materials, labour, or services or any exchange rate fluctuations, costs or expenses of any kind incurred by the Company in respect of manufacture, loading, unloading, reloading and transport costs and expenses and cost of storage and insurance.
2.1.9. Posting shall mean when sending by mail putting into a post box.
3.1. Any quotations and estimates by the Company are invitations to treat open for a period of 30 days unless previously withdrawn.
3.2. All prices exclude VAT, Packing, packaging, shipping and insurance unless otherwise indicated in writing, and the Company reserves the right at any time prior to Delivery to adjust the Price to take account of any increase in the costs to it of materials, labour or services or any exchange rate fluctuations or to increase contract prices to cover any Additional Cost or expenses of any kind incurred by the Company in respect of or consequent upon any suspension or delay of, or in despatch of, or work on, the Goods or through the Buyer’s instructions or caused by or resulting from lack of instructions (including but not limited to loading, unloading, reloading and transport costs and expenses and cost of storage and insurance).
3.3. The Order of the Buyer is an offer to buy the Goods subject to the Conditions which become binding only upon the Company Posting the Acceptance.
3.4. Any Order of the Buyer made orally must be confirmed (by either party) in writing save;
3.4.1. in the case of an emergency supply required by the Buyer, and
3.4.2. Items costing under £500.00
4.1. Payment shall be due to the Company in pounds sterling in the amount stated or referred to in the Acceptance. If the Acceptance is silent as to payment terms, payment is due on Delivery (the Due Date).
4.2. Time for payment shall be of the essence.
4.3. Deposits shall be required as detailed on the quotation and/or acceptance. Deposit invoices shall be paid by return.
4.4. Without prejudice to any of its rights or remedies, if any sums due to the Company are not received by the Due Date it shall be entitled to charge interest at 6% over the base rate from time to time of Lloyds Bank plc in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and regulations made there under from the Due Date until payment is received, whether before or after any judgement and such interest shall become payable immediately upon Posting by the Company of an invoice for the amount of interest charged.
4.5. Payment made otherwise than in cash shall be deemed to be made when cleared funds are available to the Company.
4.6. The Company shall be entitled to present to the Buyer an invoice for the Price of the Goods on or before Delivery.
4.7. A dated invoice addressed to the Buyer’s address as supplied shall be conclusive evidence that the invoice was Posted to the Buyer on the date shown.
4.8. Orders made under the Conditions accepted by the Company are not subject to changes or cancellation by the Buyer except with the Company’s written consent. If the sale involves Goods which are manufactured altered or adapted for the Buyer and a change or cancellation is made the Buyer shall take all completed Goods at full price, work in progress at cost plus pro-rata profit and the Buyer shall reimburse the Company for materials purchased and any liability under a contract which may have been entered into by the Company to assist in fulfilling the Order.
4.9. The Company shall be entitled to withhold Delivery or Despatch of any Goods or treat the contract as terminated if the Buyer fails to pay to the Company any sum due from the Buyer (or from any individual, firm or company with which the Buyer is, in the opinion of the Company, associated) by the Due Date whether such sum is due under that contract or some earlier contract between the Company and the Buyer, and the Company shall incur no liability in respect of such withholding of Delivery, Despatch or stoppage.
4.10. Upon termination of any contract between the parties by the Company the Buyer shall be liable to pay damages to the Company for breach of contract in the sums determined by the Company in accordance with clause 4.8 of the Conditions together with any Additional Costs.
4.11. The Company shall be entitled to appropriate any payments made by the Buyer in settlement of such invoices or accounts as the Company may in its absolute discretion think fit notwithstanding any purported appropriation to the contrary by the Buyer and the Company may set off against any sums it owes the Buyer any sums due from the Buyer to the Company.
4.12. The Buyer shall have no right of deduction counterclaim or set-off statutory or otherwise or in any way reduce the sums to be paid to the Company on the Due Date.
4.13. The Buyer agrees to indemnify the Company against any legal fees incurred by the Company in obtaining payment for the Goods as a result of the Buyer's failure to comply with clause 4.1.
4.14. The Company reserves the right to obtain a credit report of account holders from credit reference agencies at any time and without prior notification. This credit report shall be recorded and the information contained within it may be shared with other businesses to determine payment performance.
4.15. The Company reserves the right to revoke credit terms on any account which has been inactive for a 12 month period.
5.1. All risk in the Goods shall pass to the Buyer upon Delivery. Any return of the Goods or part thereof from the Buyer’s premises to the Company’s premise shall be at the risk of the Buyer unless such Goods are carried by the Company or its agent.
5.2. Delivery will be deemed to have been effected when the Company notifies the Buyer that the Goods are ready for collection or ready for Despatch or are prepared and ready to leave the Company’s premises or when accompanied by services to be provided by the Company when provision of those services are signed off as complete by the Company or its agent.
5.3. Despatch is when the Goods leave the Company’s premises for shipping by the Company or its agents or, where the Goods are to be collected by the Buyer or its agents, Despatch shall be when the Goods are loaded on to the delivery vehicle or otherwise collected by the Buyer or its agents.
5.4. Estimates of Delivery and Despatch are subject to revision when ordering information which is complete to the satisfaction of the Company is received by the Company. Any times and dates quoted for Delivery or Despatch shall be estimates only. Accordingly, time of Delivery or Despatch shall not be of the essence.
5.5. The Company shall not be liable for any loss whatsoever or howsoever arising caused by non-Delivery or non-Despatch of the Goods or by failure to Deliver Goods on the date stated by or on behalf of the Company.
5.6. The Company reserves the right to make Delivery and Despatch by installments and to tender a separate invoice in respect of each such installment. Delay in any one or more of the installments will not entitle the Buyer to treat the contract as repudiated or to damages.
5.7. Deviations in quantity of Goods Delivered representing not more than 10% by value from that contained or referred to in the Acceptance shall not entitle the Buyer to reject the Goods or any Installment or to claim damages and the Buyer shall be obliged to accept and pay at the contract rate for the quantity of Goods Delivered.
5.8. The Company reserves the right to withhold Delivery or Despatch of part or all of the Goods:
5.8.1. If at the time when Delivery is due there shall be any outstanding invoice issued by the Company to the Buyer which has not been paid in full in accordance with the provisions of clause 4.1; or
5.8.2. Upon the happening of any of the events referred to in clause 7.5.4.
5.9. Delivery or Despatch may be wholly or partially suspended and the time of such suspension added to the time for performance in the original contract in the event of stoppage, delay or interruption of work in the establishment of either the Company or Buyer during the Delivery period as a result of strikes, lockouts, trade disputes, breakdown, accident, inability to obtain material, equipment or transportation or other causes beyond the reasonable control of the Company. In the event of an outbreak of hostilities (whether war is declared or not) in which the United Kingdom is involved, or in the event of a National Emergency or in the event that the Company's works should become either directly or indirectly so engaged on Government orders or orders of priority as to prevent or delay work on other orders, the Company shall be entitled at any time, on notice to the Buyer, to make partial deliveries only or to determine the Contract, without prejudice in any case to rights accrued in respect of deliveries already made.
5.10. Risk of loss, or damage to the Goods passes to the Buyer on Delivery, or Despatch or loading.
5.11. Notwithstanding Delivery and the passing of risk to the Buyer as at 6 below the title and property to the Goods shall remain with the Company until the Buyer has paid all monies owed by it to the Company under this or any other Contract or otherwise
5.12. The Buyer will keep the said Goods safe and undamaged until full payment when title and property will pass to it. The Buyer is not the agent of the Company
5.13. If the Buyer is unable to collect or accept Delivery of the Goods for whatever reason or shall fail to give shipping instructions within 14 days of Delivery (and in this respect time shall be of the essence) the Company shall be entitled to payment from the Buyer as if the Goods had been Delivered, and when it has been agreed that the Goods are to be supplied by installments to the buyer, risk in the Goods shall pass to the Buyer and the Company shall be entitled to invoice the Buyer on each installment as if the Goods had been Delivered;
5.14. The Company shall be responsible for the replacement of Goods which are items or parts omitted from a Delivery or damaged during transit by the Company or its agent. In the event that it is not possible to replace the Goods for any reason, the Company shall reimburse the Buyer any payments made for the Goods and the relevant contract shall be terminated. The Company shall not be liable to compensate the Buyer or any third party claimant through the Buyer for any further or consequential loss by reason of loss or damage caused by the omission or damage in transit;
5.15. The Company’s liability as aforesaid is in every case contingent upon the Buyer giving to the Company due notice in writing within 7 days of receipt by the Buyer of Goods which have omitted parts or items or are damaged during transit.
6.1. Risk in the Goods shall pass to the Buyer at the time of Delivery in accordance with clause 5.2.
6.2. From the moment of Delivery the Buyer shall promptly effect and maintain in the joint names of the Buyer and the Seller comprehensive insurance cover on the Goods for its full invoice price until payment has been made in accordance with clause 4.1.
7. PASSING OF TITLE
7.1. Notwithstanding the passing of risk in accordance with clause 6.1 title in the Goods shall not pass to the Buyer until payment in full has been received by the Company on all accounts with the Buyer whatsoever and until such payment is made the Goods and all other Goods supplied to the Buyer by the Company shall remain the legal and equitable property of the Company.
7.2. The Buyer shall keep and maintain the Goods in good order and condition, and insure the Goods at their full replacement value against all risks with reputable insurers and be responsible for any loss or damage to the Goods howsoever caused.
7.3. The Buyer shall be deemed not to have paid the Company for Goods in possession of the Company at any time unless the Buyer can prove that payment in cleared funds has been received by the Company.
7.4. Until title to the Goods passes:
7.4.1. The Buyer will hold the Goods in a fiduciary capacity and as bailee for the Company.
7.4.2. The Goods shall be kept separate and distinct from all other property of the Buyer or of any third party, and shall be stored in such a way as to be clearly identifiable as belonging to the Company;
7.4.3. In the event of the Buyer contravening any of the foregoing provisions of this Clause 7 the Buyer shall hold the entire proceeds of sale, or any products produced therefrom on trust for the Company in a separate bank account which monies shall not be mingled with any other monies but shall always be identifiable as the Company’s monies. The Buyer hereby declares that he will be the trustee of the Company for such monies and acknowledges that he shall account for the same on demand. In the event that the Buyer has not received the proceeds of any such sale, disposal or parting with possession he will if called upon to do so by the Company, within 7 days assign to the Company all rights against the person, persons, or company to whom the Buyer has supplied the Goods.
7.4.4. If the Goods are mixed with goods which are not the property of the Buyer or the Company or are processed with or incorporated therein, the product thereof shall be deemed to be owned in common with that other person according to the value of their respective shares.
7.4.5. The Company reserves the right to maintain an action for the price of the Goods notwithstanding that property may not have passed to the Buyer.
7.4.6. The Buyer hereby agrees and by the signing hereof or of the Acceptance or other evidence of acceptance effects 30 days after the Due Date an assignment of the benefit of and in any contract it has with its customer known to the Company who has been supplied with Goods and payment in full has not been received by the Company 30 days after the Due Date.
7.4.7. Should the Company have cause to enter upon land to repossess the Goods it will do so as the licensee of the Buyer which license is hereby granted and continues to subsist and shall not be revoked unless and until all monies due the Company have been paid or all Goods returned or repossessed and the Company shall be entitled to enter, with or without transport upon any land or premises of or occupied by the Buyer for the purpose of removing the Goods, and any new products created therefrom, such rights to include the right to sever the Goods and any such new products where necessary from real property.
7.4.8. In the event that the Goods are stored with other goods or are used to store other goods, the Company can, and the Buyer hereby authorises the Company to, deposit those other goods on the land from which the Goods were removed, and the Company is under no obligation to make them safe or watertight, and the Buyer hereby agrees that it shall be solely liable, to the exclusion of the Company for, and shall indemnify the Company against, any claim or any entitlement of the Buyer itself or any third party claiming under it to any compensation damages or other monetary claim whatsoever.
7.4.9. The Company may (without prejudice to any of its other rights) dispose of Goods removed in accordance with 7.4.7 above as the Company thinks fit and may apply the proceeds of disposal (after deduction of all expenses) in discharge of all amounts unpaid by the Buyer.
8. ACCEPTANCE OF THE GOODS
8.1. Subject to clause 8.3 below the Buyer shall carry out a thorough inspection of the Goods immediately on Despatch or if that is effected by the Company or its agent upon receipt and shall within 7 days of that event give notice in writing to the Company of any shortage or defect in the Goods delivered which a reasonable examination would have revealed or of any matter or thing by reason whereof the Buyer alleges that the Goods are not in accordance with the Order.
8.2. If the Buyer shall fail to give notice in accordance with clause 5.15 or 8.1 above the Goods shall be deemed in all respects to be in accordance with the Order and the Buyer shall be bound to accept and pay for the same accordingly.
8.3. The Company shall not be under any liability because the Goods could not be examined on Despatch unless the carriers note or such other note as appropriate is marked “not examined” and the 7 day time limit will then be applied from the date on which the Buyer first had a reasonable opportunity to examine them.
9. CANCELLATION OF ORDERS AND RETURN OF GOODS
9.1. An accepted Order may only be cancelled or varied by the Buyer with the Company’s written consent, which consent may be granted on payment of such cancellation or other charge as the Company shall in its sole discretion decide and such consent shall not in any way prejudice the Company’s right to recover from the Buyer full compensation for any loss or expense arising from such cancellation or variation.
9.2. In no circumstances will the Company entertain any complaint made by the Buyer which is received by the Company more than 19 days after the date of Despatch.
9.3. Nothing in this clause shall prejudice any disclaimer of liability by the Company elsewhere in the Conditions.
10. WARRANTY AND LIMITATION OF LIABILITY
10.1. The Company warrants that it shall, as soon as it is reasonably able to do so, replace or, at its option, repair any complete item or part item purchased by the Buyer as an integral part of and at the same time as the purchase of a complete item in which defects appear under normal use within 12 months of Delivery where such defects are solely attributable to the Company’s faulty design, material or workmanship, where the Buyer purchased the Goods new.
10.2. The warranties in 10.1 above shall be subject to each of the conditions set out below:-
(a) That a claim by the Buyer is not attributable to fair wear and tear or any fault or damage arising from modification, inappropriate use or treatment, incorrect handling or exposure or corrosive substances or substances otherwise injurious to the Goods; (b) That the Company’s (or its suppliers') recommendations for application, maintenance, storage and use in respect of the Goods have been complied with; and (c) That no repair, interference or attempted repair or interference has been made to or with the Goods by the Buyer or any third party.
10.3. No warranties or conditions express or implied, in relation to the Goods shall be deemed to be incorporated in any contract except in those cases where there is an absolute prohibition against exclusion or restriction of liability contained in any Act, Regulation or bye law and any liability for loss or damage caused as a result of breaches of contract by manufacturers or suppliers of Goods to the Company shall be limited to the compensation or damages obtained by the Company from any manufacturer or supplier.
10.4. The damages for which the Company may be liable (except where the absolute prohibition applies) whether for breach of any terms of the contract (however fundamental) or as a result of any default, act, omission or signed statement in connection with or in relation to the Goods by a director of the Company or the Company Secretary shall in respect of any one such breach default, act, omission or statement (a series of events or accidents arising therefrom being treated together for the purposes of this provision as one such default, act or omission) not exceed a sum equal to the net price for the Goods.
10.5. The Company’s entire liability and the Buyer’s sole remedy against the Company shall be as set out in these conditions and shall be strictly limited to damages which shall be subject to the limitations of amount and types set out in this clause. This clause shall not confer any rights or remedies on the Buyer to which it would not otherwise be entitled and shall not affect the Buyer’s duty to mitigate any loss.
10.6. Save as aforesaid, the Company excludes all liability of whatsoever nature and howsoever arising for loss of, or damage arising out of any defects in the Goods except where loss or damage is caused by the Company’s negligence in the handling or storing of the Goods.
10.7. Where the Goods comprise machinery or equipment :
10.7.1. All Goods are on a sold “as seen” and “as is” unless otherwise agreed in writing by the Company. The Buyer is under a duty to carry out whatever tests and inspections it deems necessary in order to ascertain whether the Goods are in a condition satisfactory to the Buyer prior to making an offer to purchase.
10.7.2. The Company gives no undertaking whatsoever as to the suitability of the Goods for the purposes of the Buyer and it is incumbent upon the Buyer to ascertain in advance of making an offer to purchase that the Goods will meet its needs. The Buyer must take particular care when intending to use the Goods for a purpose other than that for which it was originally manufactured that it will be both safe and feasible to do so. In such cases the original manufacturer or distributor should always be consulted.
10.7.3. The Buyer should be aware that the Goods may have been modified from its/their original specification and the Buyer should therefore conduct a thorough examination of the Goods to ensure that the Goods are fit for the intended purpose.
11. CONSEQUENTIAL LOSS
The Company shall not be liable for loss of profit, damage to plant, the cost of carriage, freight or other services, expenditure incurred on the Goods supplied, or for any consequential loss or damage sustained by the Buyer by reason of any breach of contract or negligence on the part of the Company or its agents.
12. ASSIGNMENT OF GUARANTEE
Subject to the Buyer’s compliance with his obligations in clause 4.1, the Company shall on request pass to the Buyer the benefit of any guarantee it has from the manufacturer of the Goods.
13. FORCE MAJEURE AND FRUSTRATION OF CONTRACT
The Company shall not be liable to the Buyer for any loss or damage including consequential loss as a result of manufacture or delivery of all or some of the Goods being delayed or prevented by circumstances outside the reasonable control of the Company including but without prejudice to the generality of the above delays by the Company’s suppliers, labour shortages, strikes, lockouts or labour disputes of any kind , fires, floods, accidents or breakdowns of machinery or equipment, shipping, dock strikes, railway or transport, accident, war, riot, civil commotion, Government intervention, declaration of national emergency, act of God, inability to obtain raw materials, cancellation or shortage of supplies, breach of contract by their own manufacturers or suppliers, difficulty or impossibility of complying with import regulations or obtaining import licences. In any such circumstances the Company shall be entitled at any time without prejudice to its other rights to cancel the contract or as its option to effect partial delivery or performance without incurring any liability whatsoever to the Buyer. In circumstances where the Goods have been specially obtained for the Buyer and there is no readily available market for them, the Company shall be entitled to charge the Buyer reasonable costs and expenses incurred in respect of the Goods.
14. ASSIGNMENT AND SUB-CONTRACTS
14.1. The Company reserves the right to assign or transfer to any other person any of its rights, or to sub-contract all or any part of its obligations under any Contract.
14.2. The Buyer shall not assign or transfer to any other person any of its rights under any Contract.
15. TERMINATION OF CONTRACT
15.1. If the Buyer shall fail for any reason to make any payment which may be due under any contract with the Company or be in breach or anticipated breach of any of the Buyer’s obligations to the Company or if any distress or execution shall be levied upon the property or assets of the Buyer or if the Buyer shall make or offer to make any arrangement or composition with or for the benefit of his creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against the Buyer, being an individual, or if any resolution to wind-up the Buyer being a limited company shall be passed (save for the purposes of reconstruction or amalgamation) or if a petition is presented to wind-up the Buyer or if a receiver of the Buyer’s undertaking property or assets or of any part thereto shall be appointed, the Company shall have the right forthwith to determine the whole or any unfulfilled part of any contract by written notice posted by the Company to the last known address of the Buyer or in the case of a company to its registered office. Such determination shall be without prejudice to any claims or rights the Company may have against the Buyer in respect of any contract. In the event of determination pursuant to this Clause:- (a) the Company shall not be under any obligation to supply any further Goods under any contract; (b) the Buyer shall indemnify the Company against all loss (including loss of profit) costs (including costs of labour and materials) and all expenses suffered by the Company by reason of such determination; (c) the Company shall be entitled to resell any of the goods for which the full price has not been paid by the Buyer to the Company without further notice to the Buyer.
16. PATENTS AND COPYRIGHTS
16.1. Where the Goods are manufactured under any letters patent, copyright or registered design, the Buyer shall not do any act or thing which will infringe any such letters patent.
16.2. The Buyer shall inform the Company forthwith in writing of any claim or action made or threatened or issued by a third party that the Goods infringe any letters patent copyright or registered design and shall make no admission in respect of the alleged infringement. The Buyer shall permit the Company to have sole control of the defence of any such claim or action and all related settlement negotiations and provided no admission in respect of the alleged infringement is made by the Buyer, the Company will indemnify the Buyer against any costs and damages awarded against the Buyer in any such action, the defence of which is controlled by the Company.
16.3. The Company shall be entitled to replace or modify any of the Goods which infringe or which it reasonably considers might infringe any patent copyright or registered design so as to end or avoid such infringement.
16.4. The Company shall be under no liability in respect of any such claim or action for infringement which arises by reason of the combination operation or use of the Goods with other goods not supplied by the Company or by reason of alteration of the Goods or the Company complying in the manufacture, treatment or repair of the Goods with a design or instruction supplied by the Buyer.
16.5. The Company shall retain the copyright in all drawings and specifications supplied to the Buyer, which may not be reproduced in whole or in part without the written consent of a Director of the Company or the Company Secretary.
17. USER WARNINGS
17.1. Any advertisement, consumer information or labeling (“Literature”) supplied by the Company relating to the Goods, has been prepared to comply with statutory regulations (if any) relating to the Goods and with a view to providing information to users as to the physical characteristics of the Goods and precautions to be taken with regard to their use and the copyright in such Literature remains with the Company.
17.2. The Buyer agrees not to remove from the Goods prior to re-sale any Literature supplied with the Goods by the Company;
17.3. The Buyer agrees not to supply the Goods on re-sale without Literature as supplied by the Company;
18. DRAWINGS AND MEASUREMENTS
18.1. Whilst every effort is made by the Company to ensure that all drawings, plans, specifications and other documents prepared and/or supplied are accurate the Company shall not be liable for any loss arising from any error or inaccuracy therein.
18.2. Pursuant to its policy of continuing improvement the Company reserves the right without notice to alter or add to any drawings, plans, specification and other documents prepared to and/or supplied to the Buyer.
18.3. The Company makes no warranty that any drawings, plans, specifications and other documents supplied by the Company will be adequate and the Buyer shall satisfy itself as to whether the site in question will bear and withstand the necessary loading.
19. TECHNICAL ASSISTANCE
19.1. Unless otherwise stated, any technical assistance whatsoever given by the Company or its servants or agents to the Buyer or to any buyer or potential buyer from the Buyer, whether in connection with any project of the Buyer or of such buyer or potential buyer, including assistance with designing systems and continuing specifications required to be met by the Buyer and/or offered by the Company or its servants or agents, is given gratuitously and without any liability whether to the Buyer or to any person, firm or company dealing with the Buyer.
20. HEALTH, SAFETY AND ENVIRONMENTAL CONSIDERATIONS
20.1. The Buyer undertakes to ensure, as required by the terms of the Health and Safety At Work Act 1974 or any equivalent or additional legislation concerning Health, Safety or Environmental considerations which shall be enacted in the United Kingdom or elsewhere, that the Goods will at all times be operated, used and maintained in full accordance with such legislation and with good engineering practice and with any operating and maintenance instructions relating to the Goods as issued by the Company from time to time. Further, the Buyer shall indemnify and keep indemnified the Company from and against any costs, damages, liabilities and expenses whatsoever for which the Company may become liable as a result of any failure by the Buyer to comply with this undertaking.
21. CONDITIONS REASONABLE IN THE CIRCUMSTANCES
21.1. The Buyer warrants that these conditions are freely accepted on its part in the knowledge and on the basis that:-
The price charged would be higher if the Company were under any liability or potential liability other than as set out in these conditions.
Any liability or potential liability upon the Company other than as set out in these conditions would be disproportionate to the price for the Goods.
22. PROPER LAW
22.1. The proper law of these conditions and any contract between the Company and the Buyer including, where applicable, any contract with a Buyer in the EU, shall be the Law of England, and the English courts shall have sole Jurisdiction to settle any difference or dispute arising between the Company and the Buyer, in the case of a Buyer in the EU the High Court shall have such Jurisdiction.
Marrison Agriculture Limited – Terms and Conditions of Purchase
Marrison Agriculture Limited (“the Company”) Terms and Conditions of Purchase 2015.
We, the Company, only purchase goods, rights and services ("Deliverables") on these terms and conditions ("the Terms"). If you accept our order it will be on these Terms and no other standard terms. If you act in a manner calculated to appear as an acceptance of our order, that will act as an acceptance and you will be bound by our Terms, regardless of any inconsistency in your own small print. If you wish to reject our order and make a counter-offer you MUST therefore reply to our order in words explicitly and clearly indicating rejection. Equally, if you make a counter-offer which is not clearly labelled as such (or as a rejection of our order) no subsequent behaviour of ours, in accepting Performance, can be taken to imply any acceptance by us of that counter-offer. These Terms can only be changed, or other terms agreed, in written correspondence signed by a director or other senior officer of the Company. These Terms are important and should be studied carefully.
1. The Contract
1.1. Our contract with you, our supplier, will comprise our express written order, these Terms, anything else we expressly agree under section 1.2, any content imposed by law, but nothing else.
1.2. If you want us to accept a term of yours, or accept a particular responsibility, or if you wish to rely on a representation we have made, you must therefore obtain our express agreement to that. That means express written agreement, signed by a director or other senior officer of the Company and referring expressly to these Terms. We will deal with you in reliance on these Terms, so be aware that our acceptance of contractual performance by you does not imply acceptance of any terms that are different to our Terms. You must indemnify us against any consequence of your seeking to rely on any contractual terms, or any statement, understanding or representation which is not contractually agreed as set out in this section 1. For purposes of this section, written agreement can be communicated by pre-paid post, fax or e-mail, save that we never accept small print terms communicated by fax, on grounds of uncertain legibility.
1.3. If any of the terms of the contract conflict with or contradict each other those terms will over-ride each other in the following order of priority: (1) any express written agreement from us; (2) our order; (3) these Terms.
1.4. We are not contractually bound until we place a formal order and then only to the extent of the issues specifically covered by that order or in writing signed by a director. We will only be contractually bound to you when you accept our order with a formal order acknowledgement in writing or (if later) when we accept Performance by you (see below).
2.1 The price of the Deliverables will be as stated in our order and, unless otherwise stated, will be:
2.1.1 Exclusive of any applicable VAT (which will be payable by us subject to receipt of a valid VAT invoice);
2.1.2.inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery, commissioning or performance of Deliverables to or at the delivery address, and of any duties or levies other than VAT;
2.1.3.payable in pounds sterling; and
2.1.4.fixed for the duration of the Contract.
2.2. We will be entitled to any discount for prompt payment, bulk purchase or the like normally granted by you in comparable circumstances.
2.3. If we will be reliant on you for any supplies of maintenance, training, spare parts, consumables or other goods, rights or services to benefit fully from the Deliverables ("Follow-on Deliverables") then you will provide those Follow-on Deliverables or procure them to be provided, for at least 36 months following full Performance, at fair and reasonable prices which take no advantage of our dependence on you for their supply.
3.1.Invoices for the Deliverables may be sent to us on, or after, completion of Performance (as defined in section 4.1). Each invoice must quote the number of our order. No sum may be invoiced more than six months late.
3.2. Unless otherwise stated in the order, we will pay the contract price within 30 days of the end of month in which we receive the invoice.
3.3.We will be entitled to set off against the price any money owed to us by you.
4.1 If we order goods, then unless otherwise stated the order is deemed to include the supply of all relevant documentation and certification, and of any commissioning of those goods, necessary to enable the Company to use them for their intended purposes. If we order services then, unless otherwise stated, our order includes the complete performance of those services including any employee instruction, manuals, explanations or certifications necessary to enable the Company to benefit from them for their intended purposes. If we order goods or services then, unless otherwise stated, our order includes any legal rights necessary to use those goods or services for their intended purposes. As for those intended purposes, see section 6.3. References in these Terms to "Performance" are to complete performance of all your contract obligations as described in these Terms.
4.2. The quantity, quality and description of Deliverables will be as specified in our order and these Terms or as agreed by us in writing, subject to which then in full accordance with your representations (see section 6.1).
4.3. You have sole responsibility for complying with all applicable regulations and other legal and regulatory requirements concerning performance of the contract, and for ensuring that we can, in compliance likewise, fully utilise the Deliverables for their intended purposes.
4.4. We will be allowed to inspect any contract goods during (at your premises for) manufacture and storage so long as we request an inspection by reasonable notice. If, as a result of the inspection, we are not satisfied that the quality of the goods or the standards of their manufacture, storage or handling conforms with the contract, you will take such steps as are necessary to ensure compliance. If, after that, we are still not satisfied we can cancel the contract without penalty.
4.5. If, before Performance has occurred in the relevant respect, we notify you in writing of any change in desired specification (including as to quality and time frame) you will respond as follows. We appreciate that a change may affect the contract price, or may even be unachievable. If the change would reduce your costs, the contract price will reduce to fairly reflect that saving. If the change would increase your costs you may notify us promptly, in writing, of a proposed revision of the contract price fairly and proportionately reflecting any unavoidable such increased cost: you and we will then use our reasonable efforts to agree the revised terms in full, including as to price, pending which the contract variation will not take effect. If the change would for any reason be unachievable you may notify us of that promptly and in writing, with reasons: again, both parties will then use reasonable efforts to reach a mutually acceptable contract variation. Failing notice under one of the two preceding sentences our proposed change will be deemed to have been accepted, and the contract will be deemed to have been varied with immediate effect to reflect the requested specification change with no price increase. What amounts to "prompt" notice for this purpose will depend on feasibility for you and urgency for us, but not in any case later than 48 hours (excluding hours of days which are Saturdays, Sundays or are recognised bank holidays in England) from our notice of proposed change. In no event, agreed or not, will we be liable to you in respect of any contract variation for more than a reasonable and proportionate reflection of such increased costs as you could not reasonably have been expected to avoid. The contract price will not in any circumstance increase except with our express written agreement under, or referring explicitly to, this sub-section.
4.6. To protect our business we may need, sometimes urgently, information as to precisely how Deliverables were performed, and as to all relevant activities of any suppliers or sub-contractors of yours. You will meet any reasonable such request as soon as reasonably possible, and will keep records adequate for that purpose for at least two years after completion of Performance. Without limitation, these records must provide full traceability for all goods comprised in, or used in making, any contract goods which are in any respect safety-critical. They must also demonstrate compliance of the contract work with all legal or regulatory requirements and with all contractually binding quality and Performance standards.
4.7. You will comply with any reasonable requirements we may have as regards the packaging and packing of any contract goods, and as to information to be displayed on packaging or included on dispatch documentation and bills of lading. Subject to that, you will ensure that all packaging, packing, labeling and documentation is such as to ensure full compliance with legal requirements throughout the scheduled delivery process.
5. Delivery and risk
5.1.Any goods will be delivered to, and any services performed at, the address and on the date stated in the order, or else under section 5.2, during usual business hours. If no address is specified, then delivery will be at our usual premises.
5.2. If we specify the date or delivery address after ordering, we will give you reasonable notice of the details. Failing a date, supply will be as soon as reasonably possible.
5.3. The date of delivery of any goods or rights, and the performance of any services, will be of the essence of this contract.
5.4. A packing note quoting the number of the order must accompany each delivery or consignment of goods and must be displayed prominently, accurately detailing the extent of the delivery.
5.5. Where Deliverables are to be supplied in installments, the contract is still to be treated as a single contract. If you fail to deliver or perform any installment we may treat the whole contract as repudiated.
5.6. We may reject any Deliverables which are not fully in accordance with the contract. Acceptance does not occur until we have had a reasonable time to inspect or consider the relevant Deliverables following supply and, in the case of latent defect, a reasonable time after the defect becomes apparent.
5.7. We will not be bound to return to you any packaging or packing material, but if any relevant requirement for packaging recycling applies, you will take materials back free of charge on request.
5.8. If any Deliverables are not supplied on or by the agreed date then, in addition to any other remedies available to us, we will be entitled to deduct 1% of the overall contract price for those Deliverables, for every week's delay.
5.9. Risk of damage to or loss of any goods passes to us on delivery.
5.10. Property and ownership of any goods will pass to us on delivery unless we have paid in whole or in part for the goods in advance. In that case it will pass to us as soon as the goods have (or, if goods are being assembled for us, each successive component of the goods has) been appropriated to the contract.
5.11. If we supply any articles to you, e.g. for modification or copying, they stay our property at all times. Those articles must be kept confidential and secure and we can enter your premises at any time on reasonable notice to ensure that this is so. While those articles are in your custody you must not use them, copy them or disseminate them, electronically or otherwise, except in the performance of our contract. We retain copyright and any other available intellectual property rights in any plans, design drawings, computer programs, compilations of data, specifications or the like which we supply to you. You must indemnify us against any loss caused to us, and account to us for any profit which you make, through breach of this provision.
5.12. If any Performance occurs on our premises this sub-section will apply. You will ensure that best industry standards are adopted for the health and safety both of your personnel and of any other individuals affected by your actions. We may refuse or terminate access to any individual whom we reasonably consider undesirable to have on our premises. Your personnel must, while on our premises, comply with our reasonable requirements as to security, health and safety routines, times and areas of access, and otherwise. You will be responsible to us on a full indemnity basis for all damage and injury caused by your staff.
5.13. If the contract terms refer to terms such as F.O.B and C. & F. which bear defined meanings in the current edition of Incoterms, those defined meanings will apply unless expressly stated otherwise.
5.14. Any control panels supplied with embedded software shall have said software supplied without code, or manufacturers software lock, to allow the end user to select (at their risk) local contractors to update or modify software programs to allow additional equipment to be incorporated into the supplied control panel.
5.15. Any goods provided by us to you on a free issue basis will remain our absolute property throughout, and will be at your risk while the goods are, or are supposed to be, in your possession. You are not to part with possession (save to us) unless with our express prior consent.
6. Force Majeure
6.1. For the purpose of the contract the terms Force Majeure shall mean:
a. War and other hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilisation, requisition or embargo. b. Rebellion, revolution, insurrection, military or usurped power or civil war. c. Riot, commotion or disorder except where solely restricted to employees of the supplier or its subcontractors or sub suppliers. d. Earthquake, flood, fire or other natural physical disasters except to the extent that any such disaster is caused by, or its effects contributed to by, the party claiming Force Majeure. e. A general industrial dispute not limited to the employees of the supplier or the employees of any of is subcontractors or sub suppliers.
6.2. If either party considers that any circumstance of Force Majeure has occurred which may affect materially the performance of its obligations then he shall forthwith notify the other in writing to that effect giving full details of the circumstances giving rise to the Force Majeure event.
6.3. Neither party shall be considered to be in default of its obligations under the contract to the extent that it can establish that the performance of such obligations is prevented by any circumstance of Force Majeure which arises after the date of the contract and which was not foreseeable at the date of the contract.
6.4. If the performance of the obligations of either party under the contract is so prevented by circumstances of Force Majeure and shall continue to be so prevented for a period less than 30 days then during that period the contract shall be considered as suspended. Upon the ending of the Force Majeure event the contractual obligations of the parties shall be reinstated with such reasonable modifications to take account of the consequences of the Force Majeure event as may be agreed between the parties. Notwithstanding such suspension the supplier shall use his best endeavours to assist the purchaser in performance of the contract.
6.5. If performance of the obligations of either party under the contract is so prevented by circumstances of Force Majeure and shall continue to be so prevented for a period in excess of 30 days then the contract shall be terminated by mutual consent and, subject to Clause 6 below neither party shall be liable to the other as a result of such termination.
6.6. If the contract is so terminated then subject to the transfer to the purchaser of the benefit referred to in sub clause 7 below the purchaser shall pay the supplier such reasonable sum as may be agreed between the parties in respect of costs incurred and commitments already entered into by the contractor/supplier at the date of Force Majeure notice, less the amount of any payments already made to the supplier at the date of the Force Majeure notice. If the amount of such advance payments made to the suppliers exceeds the sum due to the supplier under this sub clause then the supplier shall repay the balance to the purchaser.
6.7. The supplier shall transfer to the purchaser the benefit of all work done by him or his sub-contractors and sub-suppliers in the performance of the contract up to the date of the Force Majeure notice, and if applicable it shall include the rights in any licensed and developed software and licensed firmware so far as the rights in the same have accrued to the purchaser prior to the Force Majeure notice or will do so on payment under sub-clause 6 above.
7. Warranties and liability
7.1.You promise that:
7.1.1.The quantity, quality, description and specification for the Deliverables will be those set out in our order, apart from which then of the best standards reasonably to be expected in the market for that kind of Deliverable; and
7.1.2.Any goods will be free from defects in materials and workmanship; and
7.1.3.Any Deliverables will comply with all statutory requirements and regulations, and with all normally applicable quality standards, relating to their sale or supply; and
7.1.4.All claims made by you about any Deliverables, and all apparently serious claims in your advertising and promotional material, are correct and can be relied upon; and
7.1.5.Any services will be performed by appropriately qualified and trained personnel; and
7.1.6.Neither the sale and supply of any Deliverable, nor its proper use by us for an intended purpose, will breach any property rights in or about that Deliverable, including intellectual property rights, of any other person.
7.2. All warranties, conditions and other terms implied by statute or common law in our favour will apply to any Deliverables bought from you.
7.3. It is your responsibility to find out from us the purposes that we intend the Deliverables to be put to (including any applicable deadline affecting us). You promise that they will be suitable for those intended purposes, save only for any unsuitability which you have, as soon as might reasonably have been expected of you (and in any case before starting Performance) expressly notified to us.
7.4. You will indemnify us and keep us indemnified immediately upon our written demand against any cost, claim, expense or liability arising from any risk for which you are responsible under this contract.
7.5. If you fail to comply with any obligation under the contract we will be entitled, at our discretion, to reject any Deliverable and you will not be entitled to receive payment for that Deliverable.
7.6. If any contract goods do not comply with all contract requirements we can demand that you repair them or supply replacement goods within seven days or, at our sole discretion, we can reject the goods and demand the repayment of any sum already paid for them.
7.7. We will not be liable to you for any delay or failure to perform any of our obligations under this contract if the delay or failure was due to a cause beyond our reasonable control.
7.8. If any contract goods or rights were bought or obtained by you from a third party then any benefits or indemnities that you hold from that other party, in respect of those items, will be held on trust for us.
7.9. You will insure yourselves, and keep insured until Performance is complete, against all normal insurance risks relevant to your work for or with us, on terms and for amounts consistent with normal business prudence. You will demonstrate to us the terms and currency of any such insurance on request.
8.1. If you carry out any development work at our request and wholly or primarily at our expense we will own all intellectual property rights generated by that work, and section 7.3 will apply to those rights.
8.2. You will do anything reasonably required by us, during or after Performance, to perfect any transfer or license of rights to us under this section or to assist us in registering or authenticating (but not at your cost enforcing or defending) those rights.
9.1.If goods have been offered by you as, or if they are, standard or stock items we can, by notice to you, at any time up to delivery cancel our commitment to buy them. Any other commitment of ours to receive and pay for Deliverables may be cancelled by us as follows. We will be bound to reimburse you for all irrecoverable costs incurred, or unavoidably committed, by you up to the point of cancellation. By "costs" is meant for this purpose the direct costs to you of Performance, to an aggregate amount not exceeding 80% of the purchase price for the cancelled commitment. We will be entitled, if we wish it, to the benefit of the part-finished Deliverables in question.
9.2. We may suspend performance of, or cancel, or suspend and then at any subsequent time cancel, the contract without any liability to you if you breach its terms, or if your business fails.
9.3.Your business will be treated for this purpose as having failed if:
9.3.1. You make any voluntary arrangement with your creditors;
9.3.2. (being an individual or firm) you become bankrupt;
9.3.3. (being a company) you become subject to an administration order or go into liquidation;
9.3.4. Any third party takes possession of, or enforces rights over, any of your property or assets under any form of security ;
9.3.5. You stop or threaten to stop carrying on business;
9.3.6. You suffer any process equivalent to any of these, in any jurisdiction; or
9.3.7. We reasonably believe that any of the events mentioned above is about to occur and we notify you accordingly.
9.4. Any right of cancellation or suspension under this section is additional to any rights available to us under the law of any relevant jurisdiction.
10.1. You will keep strictly confidential all information which you learn about us or our customers, and use that information only for the performance, in good faith, of your contractual obligations to us. By way of illustration only, you may not use such information to help our competitors, poach our staff or disparage our reputation. This restriction will apply until the tenth anniversary of the contract date, and does not apply to information which was demonstrably public knowledge at the time of usage by you.
10.2. Our relationship is as independent contractors only, not as partners or as principal and agent. The contract is non-assignable by you. It is assignable by us only to a group company, that is a company in the same ultimate beneficial ownership. You may sub-contract or delegate Performance in particular respects but not generally and not as regards your responsibility to us, nor your direct contact with us, in any respect.
10.3. You will procure that none of your associates behaves in a way which, had the behaviour been yours, would have breached the contract. We hold the contract on trust for ourselves and all associates of ours, and the contract is made for the benefit of all of them so that you will be liable for damage caused to our associates as well as ourselves. Our respective associates for this purpose are any parent company or ultimate controlling shareholder and any company owned by either.
10.4. No waiver by us of any breach of contract by you will be considered as a waiver of any subsequent breach of the same or any other provision, or as a release of the provision which you breached. No delay by us in enforcement, and no toleration shown by us, is to imply any waiver or compromise of our rights.
10.5. If any provision of these Terms is held by competent authority to be invalid or unenforceable in whole or in part the validity of the other Terms and of the remainder of the provision in question will not be affected. Every provision is severable from every other.
10.6. Any written notice under these Terms will be deemed to have been sufficiently served if posted by pre-paid official postal service, or if sent by fax then on receipt of successful answerback, or if sent by e-mail (but in this case only on evidence of successful transmission and only if the parties have regularly communicated on contract matters by that e-mail route).
10.7. The contract will be governed by the law of England, and you submit to the non-exclusive jurisdiction of the English courts.