TERMS & CONDITIONS
1.1. In these Terms and Conditions of Sale the following words shall, where context permits, have the meanings assigned to them:
- “Messagemaker” –
Messagemaker Displays Ltd
- “The Client” – The person, firm or company purchasing the Goods from Messagemaker.
- “The Goods” – Any components, finished articles or other products the subject matter of the contract.
- “The Contract” – Any contract between the parties for the supply of the Goods to which these Terms and Conditions of Sale apply.
- “The Conditions” – Those Terms and Conditions of Sale of Messagemaker set out below relating to the supply of Goods to the Client.
- “The Order” – The order placed by the Client with Messagemaker for the supply of Goods.
1.2. The headings in these Conditions are for the convenience of the parties only and do not affect the interpretation.
1.3. Words denoting the singular meaning include the plural meaning and vice versa.
1.4. Words denoting the masculine gender include the feminine and neuter genders and words denoting natural persons include companies and firms and all such words shall be construed interchangeably.
2. FORMATION OF CONTRACT
2.1 Unless otherwise agreed between the parties in writing (and subject to Conditions 2.3) all orders are deemed to have been made by the Client and are accepted by Messagemaker upon and subject to these Conditions which are complete and exhaustive and override all and any other terms and conditions of business proffered by the Client which to the extent they are inconsistent with these conditions shall in any event be deemed to have rejected and any performance by Messagemakerof the Contract shall be deemed to be upon and subject to these Conditions.
2.2 These Conditions shall not be capable of being varied, supplemented, qualified or interpreted by reference to any previous course of dealings between the parties.
2.3 No employee or agent of Messagemaker has power to vary or waive these Conditions except aDirector doing so in writing.
3.1 Unless otherwise agreed in writing quotations may be withdrawn or varied by Messagemaker at any time.
3.2 Messagemaker’s quotation includes only such equipment, accessories, services and other works as are specified in the quotation.
4.1 The Client shall not be entitled to rely for any purpose upon representations made by Messagemaker or any of its employees or agents to the Client otherwise than as contained or expressly referred to in the contractual document(s) unless the Client shall prior to the conclusion of the Contract have notified Messagemaker in writing that he intends to rely thereon in entering the contract, or such representation amounts to a fraudulent misrepresentation.
5.1 Any specification, manuals and descriptive or technical material shall not form part of the Contract but shall be treated as approximate unless specifically stated otherwise in the Contractual documentation.
5.2 The Client shall be responsible for ensuring that any specifications, descriptions or information supplied by the client or by any other agent or representative of his relating to the Goods areaccurate and meet the Client’s requirements and the Client shall indemnify and save harmless Messagemaker in respect of any liability, loss, injury, damage, demand, cost, claim, charge or expense which may be incurred or sustained by Messagemaker by reason or arising directly or indirectly out of any claim in respect of any inaccuracy in such specifications, descriptions or information or otherwise.
5.3 The Goods are subject to modification or amendment at any time without notice provided however that no such modification or amendment shall have a material adverse effect upon the performance of the Goods.
6.1 The Client may not suspend or cancel the whole or any part of any Order after acceptance of that Order by Messagemaker pursuant to Condition 2 above, except by prior written agreement between the parties.
7.1 Prices quoted are subject to the imposition of any taxes, duties and the actual price to be paid by the
Client will be that ruling at the date of delivery. Where no prices are quoted the prices applicable shall be Messagemaker’s prices at the date of delivery.
7.2 Where between the date of the Contract and the date of delivery the price of any of the Goods or any part or component of them or of any materials used in the manufacture is increased or if there are any increases in or the imposition of any taxes or duties, Messagemaker shall be entitled to increase the contractual price of the Goods by no more than the amount of such increase.
7.3 Prices are exclusive of Value Added Tax and similar taxes which shall where applicable appear as separate items on Messagemaker’s Invoice to the Client.
7.4 Any duty of tax payable in respect of the sale of the Goods to the Client including their shipment or delivery to the Client shall be the responsibility of the Client.
7.5 Where a Client pays the price for Goods in other than pounds sterling the Client agrees to pay such sum as after deduction of commission and other charges in connection with the exchange of currency equals the price of the Goods sold under the Contract.
7.6 If the Client has a complaint or query about any invoice raised by Messagemaker, he shall notify Messagemaker of that complaint or query in writing within five days of the receipt of that invoice by the Client. If Messagemaker does not receive such notice within the time allowed, the Client shall be deemed to have accepted the amount of the invoice and shall be obliged to make payment in accordance with the provisions of Clause 9.
7.7. Where Messagemaker has quoted and the Contract is based on a condition that the Client purchases a certain quantity of Goods over a specified period of time and the Client fails to purchase the agreed quantity within the agreed time, then Messagemaker will be entitled to charge in respect of those Goods actually sold to the Client an additional sum representing the difference between the quoted price (on the basis of the higher quantity of Goods being purchased) and the actual price of the Goods actually purchased by the Client by the end of the specified period, such prices to be those ruling at the date of the end of the relevant period. Such sum shall be a debt payable immediately upon demand being made by Messagemaker to the Client.
8.1 Unless otherwise agreed in writing delivery shall be ex Messagemaker’s premises, notwithstanding that Messagemaker may arrange for delivery to the Client at the Client’s request and the Client is advised to insure accordingly.
8.2 Messagemaker shall take reasonable steps to supply the Goods within any quoted period or by any quoted date but such time is not guaranteed.
8.3 Time & date of delivery, installation and commissioning shall not be the essence of the Contract and in no case shall Messagemaker be liable for any delay in delivery or the consequence of such delay however caused. Notwithstanding the above any delay, following reasonable written notice to supply, which is unreasonable shall entitle the Client to terminate this agreement without penalty.
8.4 Where the parties agree in writing that delivery is by scheduled delivery each consignment shall be deemed to be sold as part of an entire Contract and not under a separate Contract for each consignment but Messagemaker shall not be entitled to withhold delivery of subsequent consignments if the Client is in breach of any of its obligations under the Contract or these Conditions.
8.5 Non-delivery of any of the Goods must be notified to Messagemaker in writing within 5 working days of receipt by the Client of the notification of despatch by Messagemaker.
8.6 The Client shall inspect and test the Goods immediately upon delivery and must notify any shortfall of or damage to the Goods to Messagemaker in writing within 5 working days of delivery.
8.7 If the Client shall fail to give notice as required in 8.5 and/or 8.6 above then the Goods shall be deemed in all respects to be in accordance with the Contract and the Client shall be deemed to have irrevocably and unconditionally accepted the Goods as being completely satisfactory.
9.1 Unless otherwise agreed in writing between the parties the Client shall make payment in full without any deduction whatsoever on any account within 30 days of the receipt of the invoice.
9.2 If payment is not received in full when due the Client shall pay interest on the unpaid amount at the rate of 2% above the Lloyds Bank plc base rate from time to time in force and such interest shall accrue daily and shall be payable without prejudice to any other rights or remedies which Messagemaker may have against the Client.
9.3 If payment is to be made by instalments the failure of the Client to pay an instalment in due time shall not entitle Messagemaker to treat such failure as a repudiation of the whole Contract by the Client nor to recover damages for breach of Contract.
9.4 Messagemaker reserves the right to defer without penalty delivery of any of the Goods which have been ordered by the Client so long as any amounts remain overdue for payment.
9.5 No claim by the Client in respect of the Goods comprised in one delivery shall entitle the Client to withhold payment of the whole or any part of the price payable in respect of any other delivery of the Goods.
9.6 This contract is divisible. Each delivery made hereunder shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect of default in delivery of any other instalment
10. PROPERTY AND RISK
10.1 Unless otherwise agreed between the parties in writing from the date of despatch by Messagemaker from its premises (which shall include delivery to a carrier) the risk in the Goods shall pass to the Client who should insure accordingly.
10.2 Notwithstanding Condition 10.1 above both the legal and equitable title in and to the Goods will remain with Messagemaker until Messagemaker has received payment in full of the purchase price (which shall where remain with Messagemaker until Messagemaker has received payment in full of the purchase price (which shall where appropriate include any interest which may be due to Messagemaker).
10.3 Until such payment has been made the Client acknowledges that he shall be in possession of the Goods solely as bailee for Messagemaker.
10.4 Until the Client becomes the owner of the Goods he will store them separately from his own goods or those of any other person and in manner that makes them easily recognisable as the Goods of Messagemaker.
10.5 So long as the title property in the Goods remain in Source the Client’s right to possession of the Goods shall cease if the Client:
- being an individual becomes apparently insolvent or has a petition presented against him for a bankruptcy order or makes any composition or arrangement with his creditors or has an interim order made or dies or
- being a firm is dissolved or
- being a company has a winding up petition filed against it or has an administrative receiver, provisional liquidator, receiver and manager appointed in respect of the whole or any part of its undertaking or
- has any execution levied or attempted against him his property or assist or
- ceases or threatens to cease to trade or
- repudiates the Contract or
- is in breach of a condition of the Contract.
10.6 When the Client’s right to possession of the Goods ceases under Condition 10.5 Messagemaker may for the purposes of recovery of the Goods enter upon any premises where they are stored or kept or are reasonable thought to be stored and repossess them and the costs and expenses of Messagemaker in recovering possession shall be a debt due from the Client to Messagemaker.
10.7 The Client shall be free to agree to sell the Goods or any product incorporating the Goods unless Messagemaker has given notice it will collect the Goods.
10.8 Messagemaker is entitled to maintain an action for the price of the Goods notwithstanding that the title and property have not passed to the Client under this clause 10.
11. FORCE MAJEURE
Messagemaker shall not be liable for any breach of any obligation to the Client under the Contract where the breach is wholly or mainly due to circumstances outside Messagemaker reasonable control and Messagemaker shall be entitled if it considers it appropriate to make such additional charge as in all the circumstances is reasonable for any work resulting from such circumstances.
12.1 The warranty contained in this Condition 12 shall apply only where the Client is not in breach of his own obligations under the Contract.
12.2 Messagemaker undertakes to replace or at its option repair any Goods to be defective due to faults in workmanship or material within a period of 12 months for all products other than the Vehicle Activated Speed Sign range which is a period of 5 years, from the date of delivery provided always that:
- The Client submits a written claim to Messagemaker within 5 days of the date of delivery.
- The Goods have been properly stored, cared for, used and maintained and have not been subjected to any actual or attempted alteration, modification or repair and
- The Goods are returned to Messagemaker, carriage pre-paid at the risk of the Client and properly packaged as failure to properly package the Goods may result in their being damaged in transit. Messagemaker may reject warranty claims where Goods are returned improperly packaged.
12.3 In the case of Goods or parts which are found to be defective but which have not been manufactured by Messagemaker the Client shall be entitled so far as possible to the benefit of any guarantees given by the manufacturers details of which will be provided to the Client on request.
12.4 The Client is solely responsible for ensuring the Goods ordered are reasonably fit for his purposes.
12.5 The liability of Messagemaker under this Condition 12 shall be instead of and to the exclusion of any warranty or condition implied by law as to quality or fitness for purpose of the Goods and except as provided by this Condition Messagemaker shall not be under any liability, whether in contract or tort or otherwise, in respect of defects in the Goods.
13. CONSEQUENTIAL LOSS AND LIABILITY LIMITATION
13.1 Nothing in these Conditions shall limit or exclude Messagemaker’s liability for:
- · death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- · fraud or fraudulent misrepresentation;
- · breach of the terms implied by section 12 of the Sale of Goods Act 1979;
- · defective products under the Consumer Protection Act 1987; or
- · any matter in respect of which it would be unlawful for Messagemaker to exclude or restrict liability.
13.2 Subject to clause 13.1:
Messagemaker shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract or from any acts or omissions of the Client its employees or agents or their improper use of the Goods are their handling; and
Messagemaker’s total liability to the Client 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 in no circumstances exceed an amount equal to 150% of the price of the Goods.
13.3 The Client acknowledges it has the opportunity to insure its risks in relation to the Goods and that the price of the Goods reflects the limits which have been agreed on the liability of Messagemaker.
13.4 The Client agrees to insure against its risks in using and
selling or hiring out the Goods and in particular the Client agrees to
indemnify Messagemaker against the claims of any third party in contract or
tort, or howsoever arising, in respect of the Goods or their use wherever or
whenever such claims arise. The Client agrees that this contract is an English
contract for the purchase of goods in England for sterling or an equivalent
amount to a sterling price and that it will not take proceedings against
Messagemaker in a foreign court or seek to maintain a different choice of law
or jurisdiction than that of English Law in the English Courts in London. The
Goods are delivered ex works in England and the consequences of their use
elsewhere is the responsibility of the Client.
14. INTELLECTUAL PROPERTY
14.1 The Client shall indemnify Messagemaker fully and effectually against all liability, costs, and expenses which Messagemaker may incur as the result of work done in accordance with designs, specifications or drawings provided by the Client involving the infringement or alleged infringement of any rights referred to in Condition 14.1 above
15.1 If any licence permit or consent of any government agency authority or other person or body shall be necessary for the manufacture possession, sale, shipment or delivery of the Goods sold to the Client then the Client shall be solely responsible for obtaining such licence, permit or consent as the case may be.
15.2 The Client shall indemnify Messagemaker against all claims, losses, expenses and costs made against or incurred by Messagemaker resulting from a breach of the Client’s obligation under this condition
16. MESSAGEMAKER DOCUMENTS
16.1 Any documents issued by Messagemaker to the Client at any time containing designs, specifications or drawings are confidential subject to copyright and/or are the property of Messagemaker and shall not be copied, reproduced, communicated to any third party or used without the written agreement
16.2 Any document referred to in this condition 16 shall remain the property of Messagemaker and must be returned on request.
17. INSOLVENCY OF THE CUSTOMER
In the event of any of the matters in Condition 10.5 happening Messagemaker shall be entitled forthwith to terminate the Contract and the price for all Goods delivered and all work done shall become immediately due for payment.
Any notice given under this Contract must be in writing and shall be delivered personally or sent by pre-paid post first class mail or by letter to the registered office, place of business or fax number of the recipient and shall be deemed to have been received on the day of personal delivery, two days from the date of posting within the United Kingdom or else in due course of post, or within 24 hours of the fax being sent.
English Law is the proper law of the Contract and all disputes arising in connection with it are subject to the exclusive jurisdiction of the English Courts in London.