Conditions of Sale - Trade
In these conditions:
The “Company" means Manuscript Pen Company Limited, a company registered in England under number 02414044 at Highley, Shropshire. WV16 6NN.
The “Customer" means the person whether corporate or incorporate placing the order in respect of the goods.
“Contract" means the Contract between the Company and the Customer.
"Goods" means the goods ordered.
- Orders for goods are only accepted on these Conditions, unless expressly agreed otherwise in writing by the Company. These Conditions apply to all orders, whether or not specific reference is made to them at the time of each and every order and they take priority over any terms and conditions which the Customer purports to apply orally or in writing.
- No representation shall be binding upon the Company unless made or acknowledged in writing by the Company, its servants or agents.
Quotations / Prices / Packs
- All prices quoted are F.O.B. unless otherwise agreed in writing by the Customer and the Company.
- The Company reserves the right to alter price, packaging and specification without notice.
- The Company reserves the right to invoice at the price ruling at the date of despatch.
- Tools, whether charged for separately or included in the quoted price, remain the property of the Company, unless otherwise agreed in writing between the Customer and the Company.
The Company may sub-contract the whole or any part of the fulfilment of the Contract or store all or any part of the goods on premises other than the Company's premises.
Unless otherwise agreed in writing the Company has the right to make instalment deliveries and to invoice such deliveries separately.
- Unless otherwise agreed in writing payment shall be made net cash by the end of the month following the month during which the goods were delivered to the Customer or to the Customer's order after which Interest may be charged on each month or part of a month that payment is overdue at a rate of 2% above the Barclays Bank PLC base rate, compounded monthly.
- Time of payment is of the essence of the contract.
- The Customer cannot delay or refuse payment for any alleged defects in the goods which the Company undertakes to remedy in accordance with Clause 11
- Delivery shall be complete when goods are delivered to the Customer or to the Customer's order.
- Risk shall pass on delivery. Where goods are sold F.O.B. the risk in the goods shall pass immediately the goods are over the ship’s rail, and the Company shall not be obliged to give the Customer notice specified in section 32(3) of the Sale of Goods Act 1893.
- Goods must be examined by the Customer on arrival and any damage in transit, mis-delivery or quantity discrepancy must be notified in writing to the Company within 3 days. The Customer must notify the Company in writing of non-delivery within 6 days of the date of despatch advised to the Customer where delivery is effected through the post or on the Company's own vehicles and in all other cases within 10 days of the date of despatch advised to the Customer.
Delivery may be suspended if the Customer is overdue in making payment for any goods supplied to the Customer by the Company.
Time for completion of the Contract by the Company shall not be of the essence and any times quoted by the Company should be treated as estimates. Delay in delivery shall not entitle the customer to damages nor to treat the Contract as repudiated.
The Company shall have no liability in respect of failure to deliver or to perform or delay in delivering or performing any obligations under the Contract with the Customer due to any cause of whatever nature outside the reasonable control of the Company.
Quantity / Dimensional Tolerances
All weights and dimensions quoted, unless otherwise agreed in writing, are subject to the tolerances provided by the Company’s specifications and standards.
- On arrival of goods the Customer must examine them and any visual defects must be notified to the Company in writing within 3 days. Non-visual faults and defects must be notified within 90 days.
- Upon the Customer within the appropriate period provided by sub-clause (a) above notifying the Company of any fault or defect in the goods or within the appropriate period provided by clause 7(c) of damage in transit, mis-delivery, quantity discrepancy, or non-delivery and upon the fault, defect, or damage in transit mis-delivery or quantity discrepancy being established to the Company’s satisfaction, the Company shall repair or replace such goods or make up any shortage. If it is established to the Company’s satisfaction that goods are delivered not in accordance with specification, the Company will accept the same for credit and replacement.
- The Company shall not replace goods or make up shortages:
- if faults or defects are not notified in accordance with clause 11(a) or if damage in transit, non-arrival, mis-delivery or quantity discrepancy is not notified in accordance with clause 7(c);
- in respect of which the Customer or any third party has without previous written consent from the Company effected modifications or repairs;
- if the faults or defects were caused by incorrect or negligent handling, disregard of operation instructions, over loading, unsuitable work, faulty assembly or any other default by the Customer or his employees, agents or contractors;
- if the faults or defects were caused by fair wear and tear, accident , or any matter beyond the reasonable control of the Company;
- The terms of this Clause are in lieu of all conditions, warranties or other terms as to description, fitness for purpose, condition, merchantability, quantity or otherwise in respect of the goods or packing, whether expressed in the Contract or implied by Common Law, custom or statute and notwithstanding that such purpose or condition may become or may have been known to the Company. Apart from the obligation of the Company to replace the goods in accordance with the terms of this Clause the Company accepts no liability either for faults or defects in the goods or for any loss or damage to the Customer or other arising directly or indirectly from any breach by the Company of the terms of the Contract or of the general law, and defects in quality or dimensions shall not be a ground for the cancellation of the Contract or the balance of the Contract by the Customer.
- Without prejudice to the generality of the forgoing:
- the Customer shall satisfy itself with regard to the suitability or fitness for purpose of the goods for any particular purpose and the Customer shall be totally responsible therefor;
- the Company shall not be liable for any consequential loss or damage suffered by the Customer, including but without limitations, delay, loss of production, loss of profits or loss of or damage to other property of goods, nor shall the Company be liable for any loss or damage capable of being covered by insurance;
- the Company shall not be liable in damages in excess of the total price stated in the Contract, even if the Customer’s loss or damage results from a fundamental breach or repudiation and even if further performance of the Contract is frustrated. The Customer shall also indemnify the Company against all actions, claims or demands by third parties in tort or otherwise directly or indirectly in connection with faults or defects in the goods to the extent that the same exceeds the limitations of liability aforesaid;
- the Company shall not be liable for any infringement of any letters patent, registered designs, trademarks or copyrights nor for any indirect or consequential loss, injury or damage of whatever nature, howsoever caused and by whomsoever it has been suffered;
Nothing in this clause shall restrict or exclude the Company’s statutory liability for death or personal injury resulting from the negligence of the Company, its servants or agents.
Indemnity by Customer
The Customer shall indemnify the Company against all claims and demands whatsoever by whomsoever made in excess of the liability of the Company under these conditions.
Property in Goods
Until full payment has been received by the Company for all goods whatsoever supplied at any time by the Company to the Customer:
- Property in the goods shall remain in the Company
- Should the goods (or any of them) be converted into a new product, whether or not such conversion involves the admixture of any other goods or thing whatsoever and in whatever proportions, the conversions shall be deemed to have been effected on the Company’s behalf and the Company shall have the full legal and beneficial ownership of the new product.
- Subject to (d) and (e) below, the Customer shall be at liberty to sell the goods and the new products referred to in (b) above in the ordinary course of business on the basis that the company shall have the full legal and beneficial ownership of goods and such new products and that the proceeds of sale thereof shall be the Company’s property and for which the Customer shall account to the Company on demand, until the Company has been paid in full.
- The Company may at any time revoke the Customer’s power of sale by notice to the Customer if the Customer is in default for longer than seven days in the payment of any sum whatsoever due to the Company (whether in respect of the goods or any other goods supplied at any time by the Company to the Customer for any reason whatsoever) or if the Company has bona fide doubts as to the solvency of the Customer.
- The Customer’s power of sale shall automatically cease if a receiver is appointed over any of the assets or the undertaking of the Customer or a winding up order is made against the Customer or the Customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or calls a meeting of or makes any arrangement or composition with creditors or commits any act of bankruptcy.
Upon determination of the Customer’s power of sale under (d) or (e) above the Customer shall place the goods and the new products at the Company’s disposal and the Company shall be entitled to enter upon any premises of the Customer for the purpose of removing the goods and new products and to remove such goods and new products from the premises (including severance from the realty where necessary)
The Company shall have a general lien on all goods and property of the Customer in the possession of the Company in respect of sums outstanding and due from the Customer to the Company under this or any other agreement between the Customer and the Company. The Company may, after giving 14 days’ notice to the Customer of the intention to do so, dispose of the goods and property and set the proceeds of sale against the due sums.
- The Customer is not entitled to terminate the Contract without the written consent of the Company.
- The Company is entitled to terminate the Contract:
- if the Customer is in breach of contract with the Company and fails to remedy that breach within 14 days of the Company’s written notice to do so, whether the breach is capable of remedy or otherwise; or
- if the Company has bona fide doubts as to the solvency of the Customer; or
- if a receiver is appointed over any of the assets or the undertaking of the Customer or a winding-up order is made against the Customer or the Customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or calls a meeting of or makes any arrangement or composition with creditors or commits any act of bankruptcy.
Where the Contract has been terminated in sub-clause (a) or (b) the Customer shall be liable to pay the Company the Contract price for any work done by the Company prior to termination and/or to reimburse the Company for any expenses arising from such termination.
If at any time any one or more of these conditions or any part thereof is held to be or becomes invalid, illegal or unenforceable in any respect under any applicable law, the validity and enforceability of the remaining conditions shall not in any way be affected or impaired thereby.
The Company reserves the right to correct any typographical or clerical errors made at any time by its servants or agents.
This Contract shall be governed by and be controlled in all respects in accordance with English Law.