CONTACT & TERMS OF BUSINESS
VAT Number: 989 8055 44
Public Liability : £5,000,000
Terms and Conditions for Supply of Goods/Services
These Conditions apply to and govern the supply of goods and/or services by Machinery Safety Solutions Ltd, a company incorporated in England and Wales under number 8462570.
1.1 In these Conditions the following words have the following meanings:
means these terms and conditions; the Contract an agreement for the purchase of the Goods/Services by the Customer from MSS;
means the supply of parts, consumables, new machinery, inspection and testing services to machinery, Local Exhaust Ventilation (LEV)/ Dust and Fume Extraction and associated workshops, diagnostic and upgrade services, training services, relocation services and any other goods or services that MSS has quoted for.
means the person, company or organisation ordering the Services from MSS under the Contract ;
information reports, certificates and data generated in document form by MSS as part of the delivery of Services;
Intellectual Property Rights
means patents, copyright, registered and unregistered design rights, utility models, trade marks (whether or not registered), database rights, rights in know-how and confidential information and all other intellectual and industrial property rights and similar or analogous rights existing under the laws of any country and all pending applications for and rights to apply for or register such rights;
means Machinery Safety Solutions Limited;
a written quotation issued by MSS specifying the cost of the Goods/Services and incorporating these terms by reference;
1.2 Any reference in these conditions to a statute or regulation is to be construed as a reference to that statute or regulation as amended or re-enacted from time to time.
1.3 Any typographical, clerical or other error or omission in any sales literature, price list, Quotation, acceptance of offer, invoice or other document or information issued by MSS shall be subject to correction without any liability on the part of MSS.
2. Contract Formation
2.1 These Conditions will govern the provision of the Services to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation order, specification or other document) except where any special terms and conditions are included in a Quotation or agreed in writing by MSS.
2.2 Following a request from a prospective Customer to provide the Goods/Services, MSS will usually issue a Quotation to that Customer. That Quotation is open to acceptance by the prospective Customer for 28 days after its date.
2.3 If the Customer accepts the Quotation within that 28 day period, the Contract between the Customer and MSS will be formed for the supply of the Services and that Contract will be subject to these Conditions.
2.4 If the Customer asks MSS to proceed to supply any of the Services listed in a Quotation; gives MSS instructions for any Services; or issues any purchase order for any services, the Customer will be deemed to have accepted MSSís Quotation.
2.5 If a prospective Customer does not accept MSSís quotation within that 28 day period, but later purports to accept it, the purported acceptance will be an offer to treat. If a prospective Customer places an order with MSS without MSS first having issued a Quotation, that order will be an offer to treat. In either of those circumstances a contract will only come into existence if and when MSS accepts the Customerís offer.
2.6 MSS may revise these Conditions at any time by publishing new or revised Conditions on its website. If a Quotation is accepted by the Customer after the new or revised Conditions have been published on MSSís website, those new or revised Conditions will apply to the supply of those services.
2.7 If there is any conflict or inconsistency between these Conditions and any Quotation, the Quotation will prevail. If there is any inconsistency between these Conditions and any content on MSSís website, these Conditions will prevail.
3. Delivery of Goods/Services
3.1 MSS will endeavour to complete the Services and to deliver the findings by any Estimated Completion Date, but any such Estimated Completion Date is an estimate only, and MSS will not be liable for any delay or failure to deliver or perform in accordance with an Estimated Completion Date.
3.2 If MSS are unable to deliver the goods/services in relation to inspection and diagnostic visits on the specified date(s) as arranged with the Customer, then a minimum fee of £200 + vat, per day, will be payable. This is compensation towards MSS time and travel costs associated with loss of business for reasons for example, but not limited to, site closed early by Customer, difficulty in gaining access to relevant workspace, less than 3 full working days notice given by the Customer of their intention to postpone or cancel all or any part of the goods/services that constituted the purchase order.
3.3 If MSS are unable to deliver the goods/services in relation to upgrade or installation visits on the specified date(s) as arranged with the Customer, then the price as originally quoted and accepted by way of the Customers purchase order will be payable in full. This is compensation towards MSS costs incurred and associated with loss of business for reasons for example, but not limited to, site closed early by Customer, difficulty in gaining access to relevant workspace, removal of equipment, works already completed in-house/by another contractor, less than seven (7) full working days notice given by the Customer of their intention to postpone or cancel all or any part of the goods/services that constituted the purchase order; or request additional works to be carried out.
3.4 Once the Services have been completed MSS will deliver the Findings to the Customer through the post, or on an accessible electronic medium.
3.5 MSS will store a copy of the Findings for a minimum of 18 months after delivery to the Customer, but will be entitled to destroy its files after that 18 month period. Copies of the Findings can be provided, subject to a minimal charge, which will be quoted to the Customer at the time of request.
4.1 The Customer will pay the Fees. Payment of all invoices will be made by the Customer to MSS in full in Pounds Sterling as invoiced, no later than fourteen (14) days from the date of an invoice; unless an alternative payment term has been agreed with MSS, in writing, and prior to, delivery of the Goods/Services.
4.2 All prices are exclusive of VAT unless otherwise stated and the Customer will pay any and all tax duties and other government charges payable in respect of the Products in accordance with UK legislation in force at the tax point and all other taxes and duties payable in connection with the supply of the Services to the Customer and its export and import into any territory.
4.3 In the event of late payment by the Customer MSS will be entitled, without limiting any other rights and remedies it may have:
4.3.1 suspend the Services and/or cancel any of its outstanding obligations under the Contract;
4.3.2 levy a service charge to cover administrative and other associated costs in relation to overdue accounts at the rate of 3% per month on all unpaid accounts; and
4.3.3 to charge interest on any outstanding amount accruing from time to time at the rate of 8% per annum above the base rate from time to time of HSBC Bank plc or the amount prescribed in the Late Payment of Commercial Debts (Interest) Act 1998 (whichever is greater) from the due date until the outstanding amount is paid in full.
4.4 The Customer will have no right, under any circumstance, to withhold payment to MSS for goods/services invoiced. If MSS are unable to complete all works relating to a purchase order in the date(s) agreed, MSS will invoice for only those goods/services that have been completed, the invoice being subject to this Clause 4 Payment. Any other outstanding goods/services will be invoiced as and when they are completed, with payment being due as per this Clause 4; regardless of whether all works were ordered by the Customer within one purchase order. Withheld amounts will be subject to charges and interest as per this Clause 4.
4.5 The Customer will have no right to set off any amounts owing to it by MSS against unpaid invoices due to MSS.
4.6 MSS shall have the right for reasonable cause to withdraw or refuse credit facilities or to require from the Customer cash on or before delivery or security for payment and to withhold delivery until such requirement is complied with.
4.7 Any claim or query by the Customer in respect of the invoiced price of the Services must be notified to MSS by the Customer within the period referred to in condition 4.1.
4.8 Overpayment - if an overpayment has been made, MSS Ltd's audit requirements and bank anti-fraud measures require a written refund request within 24 months of the date of overpayment. Evidence of the origin of all payments leading to the overpayment, including bank and credit card statements showing both the payment and the account number. BACS or cheque payments will be refunded to the originating bank account. An administration charge of 10%, subject to a minimum fee of £30, will be deducted.
5. Intellectual Property Rights
5.1 Nothing in these Conditions grants the Customer any licence to or any other rights under any Intellectual Property Rights of or used by MSS existing at the date of the Contract other than those rights specifically set out in this clause 5.
5.2 MSS grants the Customer a non-exclusive, non-transferable licence to use and copy its documents solely for the purpose of accessing and using the Findings, and only to the extent that such use and copying is necessary for the Customer to access and use the Findings provided that:
5.2.1 the Customer will not allow anyone except its employees to use the documents and will not divulge the documents to any third party.
5.2.2 the Customer may not distribute any of the documents to any third party, or share its use with any third party (whether on a commercial basis, free of charge or otherwise);
6. Warranties and Indemnities
6.1 MSS offers a 12 month limited warranty on goods/services provided, subject to the limitations, exclusions and disclaimer set forth below.
6.2 Defective products/parts must be brought to MSSís attention, in writing, within 24 hours of discovery. If the product/parts are found in the reasonable judgement of MSS to be defective in material or workmanship, they will be repaired or replaced as appropriate in the circumstances. Repair or replacement will be at the discretion of MSS and completed within a reasonable time of being first informed of an issue.
6.3 MSSís obligation under this warranty is strictly and exclusively limited to the repair or replacement of defective products or parts as determined by MSS in its reasonable discretion. This warranty does not cover any semiconductor parts or components, which are vulnerable to electrical overloads beyond the control of MSS.
6.4 Exclusion of warranty for misuse Ė this warranty does not cover any product that has been subject to misuse, neglect, negligence, modification, accident or operated in any way that is contrary to instructions given by MSS, or specified in the operating instructions.
6.5 Except as is otherwise expressly set forth herein, MSS makes not other warranties of any kind whatsoever.
7. Limitation of Liability
7.1 Nothing in these Conditions limits MSSís liability for fraud, or death, or personal injury arising as a result of MSSís negligence or any other liability which may not, by law, be excluded.
7.2 Subject to clause 7.1, the maximum liability of MSS under or in connection with the Services whether caused by the negligence of MSS, its servants, agents, sub-contractors or otherwise will not exceed the amounts which have been paid or which have become payable by the Customer.
7.3 Subject to clause 7.1, MSS will not be liable to the Customer for any of the following: loss of profit, loss of revenue, loss of savings, loss of opportunity, loss of business and loss of goodwill (in each case whether direct or indirect) or for any indirect loss, damage, costs, expenses and other claims (whether caused by the negligence of MSS, its servants, agents sub-contractors or otherwise) which arise out of or in connection with the Services or the Contract.
8. Confidentiality and Data Protection
8.1 Subject to the remaining provisions of this Condition 8, neither party will use (except for exercising its rights and performing its obligations under the Contract), will keep confidential and not divulge to any third party any and all confidential information of the other party (whether oral, written or recorded or disclosed in any other form, and whether disclosed on, before or after the date of the Contract) concerning any of the following: the business, affairs, plans, technology, know-how, products and services of the other party and, in particular, any information and material disclosed to them by the other party for purposes of the Contract without the other partyís prior written consent.
8.2 Nothing in this Condition 8 will prevent:
8.2.1 MSS from disclosing in confidence to any MSS Affiliate any confidential information disclosed to it by the Customer and the Findings in order to meet MSSís obligations under the Contract; or
8.2.2 either party from making any disclosure required by law, or by the order of any court of competent jurisdiction or any regulatory authority.
8.3 If MSS processes any Personal Data on the Customerís behalf when providing the Services, the parties intend that the Customer will be the Data Controller and MSS will be a Data Processor in relation to those Personal Data and agree that:
8.3.1 MSS will take appropriate technical and organisational measures against unauthorised or unlawful processing of those Personal Data or their accidental loss, destruction or damage, having regard to the state of technological development, the cost of implementing any measures, the harm which might result from such unauthorised or unlawful processing or accidental loss, destruction or damage, and the nature of the data to be protected.
9. Force Majeure
9.1 MSS will not be liable for any failure to fulfil the Contract or any term or condition of the Contract if fulfilment has been delayed, hindered or prevented by circumstances beyond its reasonable control including but not limited to fire, explosion, flood, tempest, unusually adverse weather conditions, failure or shortage of power supplies, fault or failure of plant or machinery, war, hostilities, riot, acts of terrorism, strikes, lock-outs or other industrial action or trade dispute (ďa Force Majeure EventĒ).
9.2 MSS will promptly notify the Customer if a Force Majeure Event arises and during the period in which MSS is prevented from performing the Contract the Customer will be entitled after giving MSS written notice of its intention to do so to purchase products elsewhere at its own cost and risk and MSS shall not be obliged to make up deficiencies which arise as a result.
9.3 If a Force Majeure Event exceeds one month MSS may cancel the Contract without liability.
10.1 Either party may terminate the Contract immediately by written notice to the other if the other party:
10.1.1 commits any material breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy that breach within 30 days after receipt of a written notice giving particulars of the breach and requiring it to be remedied;
10.1.2 has a receiver, administrative receiver or administrator appointed over all or any of its assets or undertaking or, except for the purposes of a solvent amalgamation or reconstruction, enters into liquidation, enters into any composition or arrangement with or for the benefit of its creditors or enters into any similar or analogous arrangement existing under the law of any country or ceases to carry on business.
10.2 The termination of the Contract, by either party in accordance with this clause 10 will be without prejudice to any other rights or remedies of that party accrued prior to termination.
10.3 On termination of the Contract for any reason the Customer will immediately pay to MSS any Fees or other amounts due under the Contract.
11.1 No Partnership etc - Nothing in these Conditions creates, implies or evidences any partnership or joint venture between MSS and the Customer, or the relationship between them of principal and agent.
11.2 Third Party Rights - No third party is entitled to the benefit of this Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
11.3 Assignment and Subcontracting - The Customer may not assign or otherwise deal with the Contract or any part of it without obtaining the prior written consent of MSS. MSS may perform any of its obligations or exercise any of its rights under the Contract by itself or through an MSS Affiliate, provided that any act or omission of any MSS Affiliate shall be deemed to be the act or omission of MSS. MSS may also assign or transfer the Contract or any part of it to any other person.
11.4 Severability - If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
11.5 Notices - Any notice permitted or required under the Contract will be in writing and will be sent to the contact address, or e-mail address of the other party set out in the Quotation or any other address or e-mail address which that party may designate by notice given to the other party in accordance with this condition 12. Any notice may be delivered personally, or by first class pre-paid letter or by e-mail and will be deemed to have been served: if by hand, when delivered; if by first class post, 48 hours after posting; and if by e-mail, on that e-mail being accessible by the intended recipient.
11.6 Waiver - No waiver or delay by MSS in enforcing its rights will prejudice or restrict those rights and no waiver of any right will operate as a waiver of any later right or breach.
11.7 Governing Law and Jurisdiction - The Contract shall be governed and construed in accordance with the laws of England. The English Courts will have exclusive jurisdiction to deal with any dispute which may arise out of or in connection with the Contract.
Revision date: 21 September 2015