Terms & Conditions
MICHAEL DAVIES AND ASSOCIATES LIMITED - TERMS AND
1.1 Definitions. In these
Conditions, the following definitions apply:
Conditions: these terms and
Contract: the contract between the
Supplier and the Customer for the supply of Goods and/or Services
in accordance with these Conditions.
Customer: the person or firm who
purchases the Goods and/or Services from the Supplier.
Deliverables: the deliverables set out in
Goods: the goods (or any part of them)
set out in the Order.
Order: the Customer's order for the
supply of Goods and/or Services
Services: the services, including the
Deliverables, supplied by the Supplier to the Customer [as set out
in the Specification].
Specification: in relation to
Goods, any specification for the Goods (including any relevant
plans or drawings) that is provided by the Supplier to the Customer
OR produced by the Supplier and agreed in writing by the Customer,
and in relation to Services, the description or specification for
Services provided by the Supplier to the Customer.
Supplier: Michael Davies and
Associates Limited registered in England and Wales with company
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to
purchase Goods and/or Services from the Supplier in accordance with
2.2 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..
2.3 These Conditions apply to the Contract to the exclusion of
any other terms that the Customer seeks to impose or incorporate,
or which are implied by trade, custom, practice or course of
2.4 Any quotation given by the Supplier shall not constitute
3. Delivery of Goods
3.1 If the Supplier requires the Customer to return
any packaging material to the Supplier, the Customer shall make any
such packaging materials available for collection at such times as
the Supplier shall reasonably request.
3.2 The Supplier shall deliver the Goods to the location set
out in the Order or such other location as the parties may agree
(Delivery Location) at any time after the Supplier notifies the
Customer that the Goods are ready. within five Business Days of the
Supplier notifying the Customer that the Goods are ready.
3.3 Delivery of the Goods shall be completed on [the Goods'
arrival at the Delivery Location.
3.4 Any dates quoted for delivery of the Goods are approximate
only, and the time of delivery is not of the essence. The Supplier
shall not be liable for any delay in delivery of the Goods that is
caused by the Customer's failure to provide the Supplier with
adequate delivery instructions or any other instructions that are
relevant to the supply of the Goods.
3.5 If the Supplier fails to deliver the Goods, its liability
shall be limited to the costs and expenses incurred by the Customer
in obtaining replacement goods of similar description and quality
in the cheapest market available, less the price of the Goods. If
the Customer fails to accept or take delivery of the Goods, then
except where such failure or delay is caused by the Supplier's
failure to comply with its obligations under the Contract in
respect of the Goods the Supplier may:
(a) resell or otherwise dispose of part or all of the Goods
and, after deducting reasonable storage and selling costs, account
to the Customer for any excess over the price of the Goods or
charge the Customer for any shortfall below the price of the Goods;
(b) store the Goods until delivery takes place, and charge the
Customer for all related costs and expenses (including
3.6 The Customer shall not be entitled to reject the Goods if
the Supplier delivers up to and including 5 per cent more or less
than the quantity of Goods ordered.
3.7 The Supplier may deliver the Goods by instalments, which
shall be invoiced and paid for separately. Each instalment shall
constitute a separate contract. Any delay in delivery or defect in
an instalment shall not entitle the Customer to cancel any other
4. Quality of Goods
4.1 The Supplier warrants that on delivery, and for a
period of 12 months from the date of delivery (Warranty Period),
the Goods shall:
(a) conform in all material respects with their description
and any applicable Specification;
(b) be free from material defects in design, material and
(c) be of satisfactory quality (within the meaning of the Sale
of Goods Act 1979).
4.2 Subject to clause 4.3, if the Goods fail to comply under
the warranty in clause 4.1 the Supplier shall, at its option,
repair or replace the defective Goods, or refund the price of the
defective Goods in full.
4.3 The Supplier shall not be liable for the Goods' failure to
comply with the warranty in clause 4.1 if the Customer alters or
repairs such Goods without the written consent of the Supplier or
the defect arises because the Customer failed to follow the
Supplier's oral or written instructions as to the storage, use or
maintenance of the Goods or as a result of the Supplier following
any drawing, design or specification supplied by the Customer or a
result of fair wear and tear, wilful damage, negligence, or
abnormal working conditions,
4.4 Except as provided in this clause 4, the Supplier shall
have no liability to the Customer in respect of the Goods' failure
to comply with the warranty set out in clause 4.1.
4.5 The terms of these Conditions shall apply to any repaired
or replacement Goods supplied by the Supplier under clause 4.2.
5. Title and risk
5.1 The risk in the Goods shall pass to the Customer
on completion of delivery. If Goods are held on behalf of the
Customer by the Supplier prior to delivery, the Supplier will
retain risk and will be responsible for insuring the goods to their
full cost value.
5.2 Title to the Goods shall not pass to the Customer until
the Supplier has received payment in full (in cash or cleared
(a) the Goods; and
(b) any other goods that the Supplier has supplied to the
5.3 Until title to the Goods has passed to the Customer, the
Customer shall hold the Goods on a fiduciary basis as the
Supplier's bailee and store the Goods separately from all other
goods held by the Customer so that they remain readily identifiable
as the Supplier's property but the Customer may resell or use the
Goods in the ordinary course of its business.
5.4 If before title to the Goods passes to the Customer the
Customer becomes subject to any of the events listed in clause 10.1
or the Supplier reasonably believes that any such event is about to
happen and notifies the Customer accordingly, then, the Supplier
may at any time require the Customer to deliver up the Goods and,
if the Customer fails to do so promptly, enter any premises of the
Customer or of any third party where the Goods are stored in order
to recover them.
6. Supply of Services
6.1 The Supplier shall provide the Services to the
Customer in accordance with the Specification in all material
6.2 The Supplier shall use all reasonable endeavours to meet
any performance dates for the Services specified in the Order, but
any such dates shall be estimates only and time shall not be of the
essence for the performance of the Services.
6.3 The Supplier shall have the right to make any changes to
the Services which are necessary to comply with any applicable law
or safety requirement, or which do not materially affect the nature
or quality of the Services, and the Supplier shall notify the
Customer in any such event.
6.4 The Supplier warrants to the Customer that the Services
will be provided using reasonable care and skill.
7. Charges and payment
7.1 The price for Goods and Services shall be the
Supplier's quoted price, if no price is quoted, the price set out
in the Supplier's published price list as at the date of
7.2 The Supplier shall invoice the Customer on or at any time
after completion of delivery of Goods and/or performance of
7.3 The Customer shall pay each invoice submitted by the
Supplier within 30 days of the date of the invoice. Time for
payment shall be of the essence of the Contract.
7.4 All amounts payable by the Customer under the Contract are
exclusive of amounts in respect of value added tax chargeable from
time to time (VAT).
7.5 Without limiting any other right or remedy of the
Supplier, if the Customer fails to make any payment due to the
Supplier under the Contract by the due date for payment (Due Date),
the Supplier shall have the right to charge interest on the overdue
amount at the rate of 4 per cent per annum above the then current
National Westminster Bank PLC's base lending rate accruing on a
daily basis from the Due Date until the date of actual payment of
the overdue amount, whether before or after judgment, and
7.6 The Customer shall pay all amounts due under the Contract
in full without any deduction or withholding except as required by
law and the Customer shall not be entitled to assert any credit,
set-off or counterclaim against the Supplier in order to justify
withholding payment of any such amount in whole or in part.
8. Intellectual property rights
8.1 All intellectual property rights of whatever
nature in or arising out of or in connection with the Services
shall be owned by the Supplier.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or
exclude the Supplier's liability for death or personal injury
caused by its negligence..
9.2 Subject to clause 9.1:
(a) the Supplier shall not be liable to the Customer, whether
in contract, tort (including negligence), breach of statutory duty,
or otherwise, for any loss of profit, or for any indirect or
consequential loss arising under or in connection with the
(b) the Supplier's total liability to the Customer in respect
of all other losses arising under or in connection with the
Contract, whether in contract, tort (including negligence), breach
of statutory duty, or otherwise, shall not exceed the invoice value
of the Goods and/or Services.
9.3 Except as set out in these Conditions, all warranties,
conditions and other terms implied by statute or common law are, to
the fullest extent permitted by law, excluded from the
10.1 Without limiting its other rights or remedies,
the Supplier may terminate the Contract with immediate effect by
giving written notice to the Customer or suspend the supply of
Services or all further deliveries of Goods under the Contract or
any other contract between the Customer and the Supplier if:
(a) the Customer commits a material breach of its obligations
under this Contract (including as to payment of price) and (if such
breach is remediable) fails to remedy that breach within 30 days
after receipt of notice in writing of the breach;
(b) the Customer suspends, or threatens to suspend, payment of
its debts or is unable to pay its debts as they fall due or admits
inability to pay its debts;
(c) the Customer makes a proposal for or enters into any
compromise or arrangement with its creditors other than (where a
company) for the sole purpose of a scheme for a solvent
amalgamation of that other party with one or more other companies
or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is
passed, or an order is made, for or in connection with the winding
up of the Customer (being a company);
(e) a creditor or encumbrancer of the Customer attaches or
takes possession of, or a distress, execution, sequestration or
other such process is levied or enforced on or sued against, the
whole or any part of its assets and such attachment or process is
not discharged within 14 days;
(f) an application is made to court, or an order is made, for
the appointment of an administrator or if a notice of intention to
appoint an administrator is given or if an administrator is
appointed over the Customer;
(g) a person becomes entitled to appoint a receiver over the
assets of the Customer or a receiver is appointed over the assets
of the Customer;
(h) any event occurs, or proceeding is taken, with respect to
the other party in any jurisdiction to which it is subject that has
an effect equivalent or similar to any of the events mentioned in
clause 10.1(b) to clause 10.1(g) (inclusive);
(i) the other party ceases to carry on its business.
11. Consequences of termination
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of
the Supplier's outstanding unpaid invoices and interest;
(b) the Customer shall return any Deliverables which have not
been fully paid for. If the Customer fails to do so, then the
Supplier may enter the Customer's premises and take possession of
them. Until they have been returned, the Customer shall be solely
responsible for their safe keeping and will not use them for any
purpose not connected with this Contract; and
(c) the accrued rights and remedies of the parties as at
termination shall not be affected, including the right to claim
damages in respect of any breach of the Contract which existed at
or before the date of termination or expiry.
12. Governing Law and Jurisdiction
12.1 This Contract, and any dispute or claim arising
out of or in connection with it or its subject matter or formation
(including non-contractual disputes or claims), shall be governed
by, and construed in accordance with, English law, and the parties
irrevocably submit to the exclusive jurisdiction of the courts of
England and Wales.