1. GENERAL
The following conditions issued by the Moody Systems Ltd (“The Company”) apply to any
contract of which these conditions form part to the exclusion of any conditions of order or
purchase of the Customer or any other standards, specifications, conditions or particulars of or
adopted by the Customer, unless expressly accepted in writing by the Company as part of the
contract.
“Goods” means he subject matter of the contract including (but not limited to) raw materials,
finished or semi-finished materials or articles, machinery, parts, spares, commodities etc., and
whether one or a number of items, whether of not identical or similar.
These conditions apply to services provided by the Company in the same way as they apply to
goods supplied by the Company and whether in relation to services supplied with goods or in
relation to a contract for services only:
2. QUOTATIONS AND TENDERS
1) No order placed in response to the Company’s quotations will be binding unless accepted
by the Company in writing.
2) Where the goods are to be supplied from stock, such supply is subject to availability of
stocks at the date of delivery.
3) Tenders submitted by the Company shall remain open for acceptance for a period of
30days from the date of the tender, unless in the tender some other period is specified or
accepted.
3. PRICES
1) Where the goods are sold by reference to the Company’s published price list, the price
payable for the goods shall be the ruling price as published in the price list current at the
date of despatch of the goods from the Company’s works.
2) In other cases the price of goods or services stated in the contract is based on the cost to
the Company of materials, fuel and power, transport, tooling and labour at the date of
acceptance of the order or quotation (whichever is easier). If at the date of despatch of
the goods or performance of the services there has been any increase in all or any of such
costs, the price payable for the goods or services may at the request of the Company be
increased accordingly.
3) Where the price for the goods is varied in accordance with this condition the price as
varied shall be binding on both parties and shall not give either party any option of
cancellation.
4) There shall be added to the price any value added tax and other tax or duty relating to the
manufacture, transportation, export, import, sale or delivery of the goods or performance
of the services (whether initially charged on or payable by the Company or Customer)
5) All goods are sold “ex works” unless otherwise stated. If the Company arranges or
undertakes the carriage, freight, insurance and any other transport costs beyond the point
of delivery such costs shall be for the Customer’s account and shall not affect the
provisions of the contract as to the passing of risk.
4. TERMS OF PAYMENT
Prices quoted are net. Subject to credit being approved and unless otherwise expressly agreed
accounts are due for payment as follows:
a) 40% of the contract price when the contract is entered into
b) 50% of the contract price (or the balance of the contract price if the contract price does
not provide for installation/commissioning) on delivery of the goods or performance of
the services.
c) The balance of the contract price on completion of the installation/commissioning work
as certified by the Company or within 60 days of delivery whichever is the sooner.
When deliveries are spread over a period each consignment will be invoiced accordingly and each
invoice will be treated as a separate account and be payable accordingly. Failure to pay for goods
or services or for any delivery or instalment shall entitle the Company to suspend further deliveries
and work both on the same order and on any other order from the Customer without prejudice to
any other rights the Company may have. The company also reserves the right to charge interest on
overdue accounts at the rate of 2% per month. The Company reserves the right where genuine
doubts arise as to a Customer’s financial position or in the case of failure to pay for any goods or
services or any delivery or instalment as aforesaid to suspend delivery or performance of any order
or any part or instalment without liability until payment or satisfactory security for payment has
been provided.
5. NON STANDING ORDERS
Where the Customer orders goods or materials of a type, size or quality not normally produced by
the Company, the Company will use all reasonable endeavours to execute the order, but if it proves
impossible, impracticable or uneconomical to carry out or complete the order, the Company
reserves the right to cancel the contract or the uncompleted balance thereof, in which event the
Customer will only be liable to pay for the part thereof actually delivered.
6. DELIVERY AND COMPLETION DATES
1) The delivery or performance dates specified in the contract are approximate only and,
unless otherwise expressly stated, time is not of the essence for delivery or performance.
The company will not be liable in any circumstances for the consequences of any delay in
delivery or performance or failure to deliver or perform if the duration of the delay is not
substantial or if the delay or failure is due to act of God, fire inclement or exceptional
weather conditions, industrial action (whether at the Company’s premises or elsewhere),
hostilities, breakdowns, shortages of labour, materials, power or other supplies, late
delivery or performance or non-delivery or non-performance by suppliers or subcontractors,
governmental order or intervention (whether or not having the force of law)
or any other cause whatever beyond the Company’s control of an unexpected or
exceptional nature.
2) No delay shall entitle the Customer to reject any delivery or services or any further
instalment or part of the order from the Customer or to repudiate the contract or the order.
3) The company cannot undertake to meet any schedule of Customer’s requirements
supplied after the date of the contract and will have no liability whatever for delay in
meeting or failure to meet all or any of such requirements (howsoever such failure or
delay may arise) unless and to the extent that the Company expressly agrees to meet such
requirements, in which event paragraph (1) of this Condition shall apply.
7. DELAYED ACCEPTANCE
If for any reason the Customer is unable to accept delivery of the goods when the goods are due
and ready for delivery the Company may arrange storage of the goods and the Customer shall be
liable to the Company for the reasonable costs (including insurance) of such storage.
This provision is without prejudice to any other rights, which the Company may have in respect of
the Customer’s failure to take delivery of the goods or to pay for them in accordance with the
contract.
8. RETENTION OF TITLE
(a)The risk in the goods shall pass to the Customer:
i. When the goods are despatched from the Company’s premises or
ii. If the goods are appropriated to the Customer but kept at the Company’s premises at the
request of the Customer
(b)Notwithstanding sub-clause (a) above legal and beneficial ownership of the goods shall remain
with the Company until payment in full has been received by the Company.
i. For those goods
ii. For any other goods supplied by the Company
iii. Of any other monies due from the Customer to the Company on any account
(c)Notwithstanding sub-clause (b) above the Customer may (as between it and its Customer only)
as principal in the ordinary course of its business sell the goods by bona fide sale at full market
value or in the ordinary course of its business use the goods. Goods shall be deemed sold or used
in the order delivered to the Customer. Any resale by the Customer of goods in which title has not
passed to the Customer shall (as between the Company and the Customer) be made by the
Customer as agent for the Company.
(d) At any time prior to full payment (whether or not payment is overdue) the Company may
(without prejudice to any of its other rights) retake possession of the goods r any part thereof and
may enter on the Customer’s premises by its employees or agents for that purpose.
(e) Until title in the goods passes to the Customer under sub clause (b) above the Customer shall be
a bailee of the goods on behalf of the Company and shall store the goods in such a way that they
are separately identifiable. The Company shall have the right to trace the proceeds of sale of any
goods according to the principles in re Hallet’s Estate (1880) 13 Ch D 696.
(f) The Customer’s right to use the goods or to resell them prior to full payment may be terminated
forthwith by written notice given the Company to the Customer and shall automatically terminate
with or without such notice on the appointment of any receiver or liquidator of the Customer.
9. WARRANTY, LIMIT OF RESPONSIBILITY: GOODS
1. The Company warrants in relation to goods manufactured to the Company’s designs that it
will (at the Company’s choice) either repair or replace, or refund the purchase price of any
goods or an appropriate part thereof which are found within a period of 6 months from
despatch of such goods (“the warranty period”) to be defective or not in accordance with the
contract or any express description or representation given or made on behalf of the Company
in respect of the goods. The warranty under this clause does not apply to standard or
proprietary components of items of equipment.
2. The company warrants in relation to goods not manufactured to the Company’s design and in
relation to standard or proprietary components or items of equipment that it will so far as it is
able to do so give the Customer the benefit of any express guarantee or warranty by the
manufacturer or supplier of such goods and of any other rights which the Company has
against the manufacturer or supplier.
3. In the event of any claim under any of the foregoing warranties or under any condition or
warranty implied by law or under any other express condition warranty or guarantee the
following provisions shall apply:
a) The Company will require a reasonable period of time to carry out any repair or
replacement.
b) All costs of dismantling, digging out and replacement and reassembly shall be for the
Customer’s account.
c) The goods to be repaired or replaced shall be delivered or returned at the Customer’s
expense to a location specified by the Company for repair or replacement and the
expenses of redelivery shall also be for the Customer’s account.
d) The Customer shall make such facilities (such as handling equipment, tools, labour and
services etc) as the Company reasonably requires available to the Company for the
purposes of repair or replacement.
e) Replaced items will become the property of the Company.
f) The goods must have been kept in good condition and must have been used properly by
the Customer.
4. The Customer’s remedies in respect of any claim under the foregoing express warranty or
against any manufacturer or supplier as aforesaid or any claim under any condition or
warranty implied by law or any other claim in respect of the goods or any workmanship in
relation thereof (whether or not involving negligence on the part of the Company) shall in
relation to goods failing within paragraph (1) of this condition be limited to repair replacement
or refund of the purchase price prices r part thereof as aforesaid and any condition or warranty
implied by law shall cease to apply after the expiry of the warranty period and in relation to
goods failing within paragraph (2) of this condition be limited to the enforcement of the above
mentioned liabilities of the manufacturer or supplier.
5. The Company shall not in any circumstances be liable for any damages, compensation, costs,
expenses, losses or other liabilities, whether direct or consequential, and any other remedy
which would otherwise be available in law is hereby excluded except to the extent that such
exclusion is prohibited by any rule of law.
10. WARRANTY: LIMIT OF RESPONSIBILITY; SERVICES AND CUSTOMER
MATERIALS
1. The Customer remedies in respect of any claim relating to any representation, any term
implied or express or any duly arising at common law or under statute arising out of or in
connection with the provision of services by the Company to the Customer (whether or not
involving negligence on the part of the Company) shall be limited to either
i. The re-performance of those services or any part thereof (as appropriate) in respect of which
the Company will require a reasonable period to perform such and for which the Customer
shall make available to the Company such facilities as the Company reasonably requires or
ii. The refund of part or all of the charges paid by the Customer in respect of the provision of
those services.
Save that the foregoing shall not apply to any distortion faults or defects to the Customers’ goods
and materials as set out in clause 10(3) in respect of which the liability of the Company shall be
limited as contained therein.
2. The Company shall not in any circumstances be liable for any damages, compensation costs,
expenses, losses or other liabilities, whether direct or consequential, and any other remedy
which would otherwise be available in law is hereby excluded except to the extent that such
exclusion is prohibited by any rule of law.
3. Hirework and work involving the use of Customers materials and other services are
undertaken by the Company on the express understanding that the Company cannot be
responsible for any distortion, faults or defects which appear of develop during or are caused
to the Customers’ goods or materials by the work howsoever arising even if resulting from
any fault, negligence or mistake of the Company. The Company gives no guarantee or
warranty of any kind in relation to hirework on the Customers goods or materials or other
services but subject to the availability of capacity and facilities, it will endeavour to correct
any such distortions, faults or defects or carry out other requisite remedial work or services at
the Customer’s expense and risk. The Company shall not in any circumstances be liable for
any damages, compensation, costs, expenses, losses or other liabilities whether direct or
consequential and any other remedy which would otherwise available in law is hereby
excluded except to the extent that such exclusion is prohibited by law.
11. INDEMNITY
The Customer agrees upon demand to indemnity the Company against all losses, damage, injury,
costs and expenses of whatever nature suffered by the Company to the extent that the same are
caused by or related to:
a) Design, drawings or specifications given to the Company by the Customer in respect of
goods produced by the Company for the Customer: or
b) Defective materials or products supplied by the Customer to the Company and
incorporated by the Company in goods produced by the Company for the Customer; or
c) The improper incorporation, assembly, use processing, storage or handling of goods by
the Customer.
12. FOUNDATIONS ETC.
Irrespective of whether the contract provides for the Company to install goods or equipment in any
building or premises, the Customer is solely responsible for the suitability of the site for the
installation of the goods or equipment, for obtaining all necessary consents and approvals under
planning and building regulations and bye-laws and for the preparation of the site, the construction
of foundations and the provision of services so that the site is suitable to receive the goods or
equipment. The Company will if requested provide drawings and specifications showing the site
requirements for the goods or equipment based on normal requirements in a suitable location but
does not thereby warrant that the site as prepared by the Customer will be suitable or satisfactorily
prepared.
13. INSTALLATION ETC.
Unless the contract expressly provides the Company shall not be responsible for the installation,
erection or commissioning of the goods or the supervision thereof.
14. TESTING
The Company shall not be obliged to carry out tests which are specified in the contract, and
reasonable tolerances shall be accepted by the Customer who shall not be entitled to reject any
goods on the ground that they are not precisely as specified. Tests and inspections shall take place
under the Company’s standard testing arrangements. Any additional testing which the Company
expressly agrees to carry out for the Customer shall be charged extra to the Customer and shall be
undertaken subject to these conditions.
15. DRAWINGS AND INFORMATION
1) The Company is entitled to assume that all drawings, descriptions, specifications and
other information supplied by the Customer to the Company, whether written or verbal, is
in all respects complete, accurate and entirely suitable for the Customers’ requirements.
2) Unless otherwise expressly agreed, the Company shall have no responsibility for the
performance, suitability or durability of any goods or any materials or workmanship
comprised therein to the extent that the same is manufactured in accordance with the
Customer’s designs, drawings, standards or specifications.
3) Unless the contract expressly provides for the installation of the goods, the Company
shall not be responsible for installation work or the supervisions thereof.
4) Any extra work, requirement or modification (including but not limited to foundation
work) in relation to the goods or their installation which is not expressly specified in the
contract or which is expressly excluded by these conditions and which the Customer
requests shall be charged extra (including an appropriate allowance for profit) to the
extent that such extra work, requirement or modification increases the cost to the
Company of performance of the contract.
16. MODIFICATIONS ETC.
Any extra work, requirement or modifications (including but not limited to foundation work) in
relation to the goods or their installation which is not expressly specified in the contract or which
is expressly excluded by these conditions and which the Customer requests shall, if the Company
is able and willing to agree thereto, be charged extra (including an appropriate allowance for
profit) to the extent that such extra work, requirement or modification increases the cost to the
Company of performance of the contract and the Company shall be allowed a reasonable extension
or postponement of performance or delivery dates required to comply with any such request.
17. CONFIDENTIALITY; PATENTS ETC.
1) Any drawings, specifications or other technical information supplied to the Customer by
the Company in connection with the contract are provided on the express understanding
that the Customer will not give, loan, exhibit or sell such drawings, specifications or
technical information to any third party and that the Customer will not use them in any
way except in connection with the goods or services provided hereunder.
The copyright in all documents provided by the Company will remain vested in the
Company.
2) The Customer shall indemnity the Company against all actions, costs (including the cost
of defending any legal proceedings), claims, proceedings, accounts and damages in
respect of any infringement or alleged infringement of any patent, registrated design,
copyright, trade mark or other industrial property rights resulting from compliance by the
Company with the Customer’s specific requirements, designs or specifications.
3) The Company shall indemnify the Customer against all actions, costs (including the cost
of defending any legal proceedings), claims, proceedings, accounts and damages in
respect of any infringement or alleged infringement of any patent, registered design,
copyright, trade mark or other industrial or intellectual property rights resulting from use
or sale by the Customer of any goods designed by the Company, except where paragraph
(2) of this conditions applies.
18. LOSS OR DAMAGE IN TRANSIT
The risk in the goods passes to the Customer when the goods are despatched from the Company’s
works or loaded onto the Customer’s transport or carrier (if appropriate), and the Company accepts
no responsibility for any damage, shortage or loss in transit. Claims for any damage, shortage or
loss in transit should be made on the carrier, and any conditions imposed by the carrier in relation
to claims for damage, shortage or loss in transit should be complied with.
19. PACKING
1) Unless otherwise specified, packing cases and packing materials will be charged extra,
but where stated to be returnable, will be credited in full on return to the Company’s
works carriage paid in good condition within one month of receipt by the Customer.
2) The Company uses its best endeavours to ensure, where necessary, suitability of packing
before despatch, but no claim will be accepted by the Company for breakages or damage
in transit on the ground of alleged unsuitability of packing.
20. SUB-CONTRACTING
The Company reserves the right to sub-contract the whole or any part of the contract.
21. APPLICABLE LAW
The contract shall in all respects be governed by and construed in accordance with English Law
and the Customer hereby submits to the non-exclusive jurisdiction of the English Courts
RIDER 1 – REPLACES CONDITION 9 OF CONDITIONS OF BUSINESS WHERE
APPLICABLE
WARRANTY: LIMIT OF RESPONSIBILITY: SECOND HAND GOODS
a) The goods are sold as second hand good on the express understanding that they are sold
without warranty.
b) If the goods are found to be substantially not in accordance wit the contract or any
express description or representation given or made on behalf of the Company in relation
to the goods within 3 days of the date of the contract of which these conditions form part
or not in accordance with any condition or warranty implied by law and not hereby
excluded then the Company will (at the Company’s choice) either rectify the defect or
accept a return of the goods and refund the purchase price (less a reasonable allowance
for use, wear and tear and damage to the goods occurring between delivery and return
thereof) or make an appropriate allowance in the purchase price.
c) The Customer’s remedies in respect of any claim in relation to the goods howsoever
arising (whether or not involving negligence on the part of the Company) shall in all cases
be limited to rectification of the goods or the return thereof or an allowance of the
purchase price as aforesaid; and the Company shall not in any circumstances be liable for
any damages, compensation, costs, expenses losses or other liabilities, whether direct or
consequently and any other remedy which would otherwise be available in law is hereby
excluded except to the extent that such exclusion is prohibited by any rule of law. |
