Terms & Conditions

MICHAEL DAVIES AND ASSOCIATES LIMITED - TERMS AND CONDITIONS

1. Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:
Conditions: these terms and conditions.
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 the Specification.
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 number 02165614.

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 these Conditions.
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 dealing.
2.4 Any quotation given by the Supplier shall not constitute an offer.

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; or
(b) store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
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 instalment.

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 workmanship; 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 funds) for:
(a) the Goods; and
(b) any other goods that the Supplier has supplied to the Customer.
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 respects.
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 delivery.
7.2 The Supplier shall invoice the Customer on or at any time after completion of delivery of Goods and/or performance of Services.
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 compounding quarterly.
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 Contract; and
(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 Contract.

10. Termination

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.