MIKE
WEAVER COMMUNICATIONS LIMITED.
STANDARD
TERMS AND CONDITIONS OF SALE and HIRE.
1).
In these Terms unless the context otherwise requires"MWCL" means MIKE
WEAVER COMMUNICATIONS LIMITED."Contract" means the contract for the
provision of services or the sale of Products. "Equipment" means all
hire equipment and each item and part thereof used by MWCL in the provision of
the Services except equipment provided by the Hirer."Products" means
the goods sold to the Buyer."Hirer" means the party identified as such
in the Order. "Buyer" means the party identified as such in the Order.
"Services" means the services or any of them which MWCL is to supply
pursuant to these Terms."Site" means the location where the Services
are to be provided. "Premises" means MWCL's workshop or warehouse in
Coventry.
2).
MWCL shall provide and Hirer or Buyer shall accept the Services or Products
subject to these Terms which shall not be varied except in writing signed by
MWCL and shall govern contract to the exclusion of any other terms.
2.1).
The Hirer and or Buyer acknowledges that it does not rely on any advice or
recommendations made on behalf or by MWCL concerning the Services or Equipment
or products, their quality, performance, fitness for use or purpose, or
functionality unless confirmed by MWCL in writing.
2.2).
The Buyer agrees that in the case of sample and or prototype Products supplied
by MWCL to the Buyer either before or after an order is received by MWCL then
unless otherwise agreed in writing by MWCL the characteristics and performance
of the sample or prototype Product is to be the sole determining factor in
establishing the specifications of the actual products supplied by MWCL to the
Buyer. Once a sample or prototype product is supplied by MWCL to the Buyer, then
the Buyer shall have a period not exceeding 3 months from the date of supply to
agree in writing any modifications or changes that the Buyer may require to the
product. Provided always that if no such communication shall be received by MWCL
within the said period then the said Product shall be deemed to be an
"approved sample", and the Buyer is deemed to accept that the
"approved sample" is of satisfactory quality and performance, and that
any Products supplied to the same specification as the "approved
sample" are also of satisfactory quality and performance notwithstanding
that the Buyer may find the Product's performance unsatisfactory in any respect.
2.3).
Any typographical or clerical error or omission in documents issued by MWCL may
be corrected without liability upon the part of MWCL.
3).
No order submitted by the Hirer or Buyer shall be deemed accepted until the
earlier of issue of Order Acknowledgement or Invoice by MWCL or provision of
Services or Products or any other act of acceptance on the part of MWCL and once
accepted by MWCL may not be cancelled by Hirer or Buyer except with written
consent of MWCL on terms that Hirer or Buyer indemnifies MWCL in full against
all loss (including loss of profit), costs and expenses incurred as a result of
cancellation.
3.1).
Equipment and Services and Products to be provided by MWCL shall be as described
or referred to in MWCL's quotation or Order Acknowledgement or Delivery Note or
Invoice and the Hirer or Buyer shall be responsible for ensuring the accuracy or
adequacy thereof. Services are subject to change without notice to comply with
safety or statutory requirements. In the case of Sale or Hire MWCL reserves the
right at any time to substitute the quoted equipment for an equivalent product
supplied by another manufacture if the original manufacturer is unable to supply
the equipment within the required timescales.
4).
Price of Services and products shall be as set out in MWCL's quotation or Order
Acknowledgement or Invoice. MWCL reserves right, by notice to Hirer or Buyer at
any time before commencement of Services or supply of Products, to increase
price to reflect any increase in cost due to any factor beyond control of MWCL
or delay caused by Hirer or Buyer.
4.1).
Hirer or Buyer shall pay cost of Services or Products and any Vat thereon
without deduction within 30 days of date of invoice, notwithstanding that
performance of Services may not have been completed. Time for payment of price
shall be of essence of Contract.
4.2).
If Hirer or Buyer fails to pay any sum on due date then without prejudice to any
other right or remedy, MWCL may cancel Contract, suspend provision of Services,
remove equipment or products from site, appropriate any payment made by Hirer or
Buyer to such of Services, Products or other services supplied to Hirer or Buyer
as MWCL think fit (not withstanding appropriation by Hirer or Buyer), and / or
charge interest (before and after judgement) on amount unpaid at the rate of 6%
above Lloyd's bank PLC base rate from time to time calculated on a daily basis
until payment in full.
4.3).
Hirer or Buyer shall have no right of set-off statutory or otherwise.
4.4).
MWCL reserves right at any time to demand security for payment before providing
services.
4.5).
In the case of a Hirer or Buyer who is a Limited Company, if the Hire, Products
or other services shall be collected and signed for by either a Director, or
Secretary or a shareholder ( whose shareholding shall be equal to or greater
than 5% of the issued share capital ) of the said Limited Company then the
following provisions shall apply :-
The
Director, Secretary or Shareholder who signed the delivery note shall become
personally liable for the cost of the said goods products or services, or value
of the equipment should the Hirer or Buyer default in payment as set out in
Clause 8 below, and additionally, from the date of signature until such time as
the Officer may resign from the Company or until the Shareholder disposes of the
shareholding ( hereinafter known as the Period ), then the said Director,
Secretary or Shareholder personally guarantees all and any other transactions
made by the Hirer or Buyer with MWCL during this Period , even if future hires,
goods products or services supplied by MWCL may be collected and signed for by
other employees servants or agents of the Hirer or Buyer. Providing always that
the liability of the said Director, Secretary or Shareholder remains personal
for the said hires, goods products or services supplied during the Period
despite their resignation from the company, disposal of shares or the
appointment of a Receiver or other situation set our in Clause 8 below. If more
than one Director, Secretary or Shareholder shall collect and sign for goods and
services then their liability shall be joint and several. Personal liability
shall only cease upon full settlement of any monies due to MWCL under these
Terms and Conditions for transactions enacted during the Period.
5).
Equipment shall be at the risk of Hirer or Buyer at all times from time of
despatch from the premises of MWCL, until return by the Hirer or Buyer to the
premises of MWCL. If collection is to be made by MWCL or its servants or agents
then risk still remains that of the Hirer or Buyer until return to the premises
of MWCL not withstanding that collection by MWCL may be later than requested by
Hirer or Buyer and during any such periods Hirer or Buyer shall indemnify MWCL
against all loss and damage (including consequential loss) MWCL may incur.
5.1).
All equipment supplied by MWCL in performance of Services is hired in accordance
with these Terms and subject thereto Hirer or Buyer shall acquire no right title
interest or property in nor exercise any lien over the equipment.
5.2).
Delivery times are estimates only and MWCL shall not be responsible for any
delays howsoever caused.
5.3).
Upon the return of the Hire equipment by the Hirer to MWCL, MWCL shall notify
the Hirer of any shortfall or damage to or in the returned equipment. In the
case of dispute as to the items returned the Hirer accepts that the notification
given by MWCL is correct, and that any loss or damage as notified by MWCL is
correct, and the Hirer undertakes to recompense MWCL as set out in clause 6.12
hereof.
5.4)
The Hirer accepts that the only conclusive proof of return of the Hire Equipment
to MWCL is either a letter from MWCL acknowledging return of the equipment, or a
Delivery Note / Receipt signed by a member of MWCL's staff at the registered
office of MWCL, and that in the absence of such conclusive proof the Hirer shall
be deemed not to have returned the equipment to MWCL
6).
The Hirer or Buyer undertakes to MWCL :-
6.1).
to grant MWCL access to the site at all times as MWCL may reasonably require to
discharge its obligations.
6.2).
to make available at the site such facilities as MWCL may reasonably require.
6.3).
to take all reasonable precautions in each case while on site to protect the
health and safety of MWCL's employees agents and subcontractors and to safeguard
the equipment from theft vandalism or without limitation other foreseeable risk.
6.4)
to procure all necessary licenses and permissions are obtained relating to the
acts of broadcasting projection transmission or other communication by MWCL and
the use of live or prerecorded material for such purpose and to indemnify MWCL
against any claim (and against all loss damages costs and expenses paid or
incurred by MWCL in connection therewith) that the use broadcast projection
transmission or other communication of any such material infringes any copyright
trade mark or without limitation other industrial or intellectual property
rights of any third party or is undertaken in the absence of a valid and
effective license or permission from any relevant licensing or other regulatory
authority in the territory concerned.
6.5).
if transport is arranged by Hirer or Buyer to comply with all applicable
legislation or regulations governing importation of Equipment into Country of
destination and to pay all duties thereon.
6.6)
not to permit the equipment to be operated other than by MWCL personnel or the
direct employees of the Hirer or Buyer nor to open the outer case or otherwise
interfere with the Equipment.
6.7)
In the case of Hire only to notify MWCL in writing of any defects whatsoever of
the equipment, or subsequent failure of the equipment, and MWCL undertakes to
the Hirer to repair or replace the equipment within 48 working ( not including
weekends and statutory holidays ) hours of such written notification.
6.8)
If no such written notice is received by MWCL, and or MWCL rectifies the faults
within the time period aforesaid then MWCL shall not be liable to the Hirer for
any breach of contract negligent or tortuous act or omission and the contract
price shall not be amended or apportioned, and the full contract sum remains
due, and the provisions of clause 7 hereof shall be of no effect and there will
be no liability of MWCL to the Hirer whatsoever, ( except in the case of death
or personal injury ) nor any right of set off by the Hirer or Buyer.
6.9)
That in the case of Hire only title to the equipment remains at all times with
MWCL and can never pass to the Hirer in any circumstances whatsoever unless
specifically agreed in writing by MWCL.
6.10)
That signing the delivery note or paying the invoice by the Hirer and or Buyer
or its servants or agents confirms acceptance of these terms to the total
exclusion of all other terms either express or implied. In the case of delivery
by courier or other agent to the Hirer or Buyer then signing the courier’s
delivery note shall also confirm acceptance of these terms.
6.11)
That MWCL shall not be bound by any subsequent verbal alteration to these terms
unless confirmed in writing within 48 hours of such alteration by MWCL.
6.12)
that in the case of hire only in the case of loss or damage to the equipment the
Hirer undertakes to pay to MWCL without deduction the cost of repair or
replacement of the equipment. In the case of loss or uneconomic repair then the
price of the equipment shall be the Manufacturer's RRP as published in the
manufacturer's price list. In the case of repair then the price shall be the
repair cost that MWCL in its sole discretion decides is appropriate.
6.13)
In the case of loss or damage to the equipment the Hirer agrees to be liable to
MWCL for on going hire charges for the equipment until payment in full is made
to MWCL as set out in clause 6.12 hereof, not withstanding that MWCL may have
already sent the Hirer an invoice for the cost of repair or replacement, and
that the ongoing hire charges shall remain due and payable by the Hirer despite
any unresolved dispute between the Hirer and MWCL relating to the equipment or
hire contract in question.
6.13)
that in the case of Sale of products only that property shall not pass to the
Buyer until MWCL has received in full all monies owed by the Hirer or Buyer
under this or any other contract.
6.14)
prior to the property in the products passing to the Buyer, the Buyer shall hold
the Products as fiduciary agent to MWCL and shall keep the products properly
stored, protected and insured and clearly identified and shall bear the costs
thereof.
6.15)
in the case of loss or damage to hire equipment where the Hirer makes or is
going to make a claim upon his insurance then the Hirer agrees the following
additional terms :-
a).
payment to MWCL of the hire charges, and or the replacement and repair costs as
set out in clause 6.12 hereof, shall not be delayed beyond normal terms due to
the Hirer's inability to be recompensed by his insurances.
b).
if the Hirer does delay payment for any reason of the hire charges and or the
replacement and repair costs as set out in clause 6.12 hereof, then the Hirer
agrees to pay ongoing hire charges at the contract rate until full settlement is
made.
c).
if the Hirer's insurances do not pay the full amount claimed by MWCL then the
Hirer shall have no right to reduce the amount paid to MWCL, and the full sum
shall remain payable and due.
6.16).
The Buyer acknowledges and accepts that a change in Government legislation after
the date of supply of equipment, which may render the equipment unuseable or
illegal in no way makes MWCL liable to make a refund or redress to the Buyer
7).
MWCL shall use its reasonable endeavors to provide the Services in all material
respects in accordance with the Contract (but subject thereto in such manner as
it thinks fit) exercising all reasonable care and skill. Providing always that
MWCL shall not in any circumstances be liable for the equipment failing to
operate correctly due to radio interference of any type whatsoever and howsoever
caused.
7.1).MWCL
will at its sole discretion repair or replace a product in which under proper
use within 12 months of dispatch defects appear due to faulty materials or
workmanship. All Products should be returned at the Buyer's risk and cost
stating the nature of the fault and any other supporting information that MWCL
may require. If these requirements are not complied with then MWCL shall be
discharged from all liabilities arising from the supply of faulty goods and our
warranty shall not apply. Providing always that a product meeting the
manufacturer's specification or the specification of an "approved
sample" shall be deemed to be defect free.
7.2).
In the event of breach of contract negligent or tortuous act or omission arising
in connection with the contract on the part of MWCL the remaining provisions of
clause 7 state MWCL's entire liability (including for acts or omissions of
employees agents and subcontractors) to Hirer or Buyer.
7.3)
Except in the case of death or personal injury (where liability shall be
unlimited) MWCL shall have no liability unless Hirer gives MWCL reasonable
details in writing of its claim within 7 days of the occurrence of the matter
giving rise to the claim and then subject to the remaining provisions of this
clause MWCL's liability shall be limited to the contract price.
7.4)
If a number of events of default by MWCL give rise to substantially the same
loss Hirer or Buyer shall not be entitled to claim more than its actual loss.
7.4)
Save as otherwise provided all warranties conditions or other terms implied by
statute or common law are excluded to fullest extent permitted by law and except
in the respect of death or personal injury caused by MWCL's negligence, MWCL
shall not be liable to Hirer or Buyer for consequential or indirect loss or
damage (whether for loss of profit or otherwise and reasonably foreseeable or
not), costs expenses or other consequential claims whatsoever arising in
connection with the Services.
7.5)
MWCL shall not be liable to Hirer or Buyer by reason of delay or failure in
performing any of MWCL's obligations due to any cause beyond MWCL's reasonable
control including without limitation industrial actions or trade disputes.
7.6)
The Hirer or Buyer is advised not to supply MWCL with original material as in
the event of loss or damage MWCL's liability is limited to the cost of replacing
blank material only.
8).
If Hirer or Buyer makes any voluntary arrangement with its creditors or has a
petition for an administration order presented or (being an individual or firm)
becomes bankrupt or (being a company) goes into liquidation (otherwise than for
purposes of amalgamation or reconstruction); or if an encumbrancer takes
possession or a receiver is appointed of any property or assets of Hirer or
Buyer; or Hirer or Buyer ceases or threatens to cease to carry on business; or
MWCL reasonably apprehends that any of the aforesaid is about to occur in
relation to Hirer or Buyer, then (without prejudice to any other right or
remedy) MWCL may by notice cancel or suspend provision of Services without any
liability to Hirer or Buyer, and if any Services have been provided but are
unpaid the price shall become immediately due and payable notwithstanding any
contrary agreement.
9).
If Hirer or Buyer is more than one person their obligations all be joint and
several.
9.1)
Any notice shall be in writing and sent to the principal place of business of
the party concerned or such other address as notified for the purpose.
9.2)
No waiver of any breach of Contract shall be a waiver of any subsequent breach
of the same or any other provision.
9.3)
If any provision hereof is invalid or unenforceable in any respect, validity and
enforceable of the remaining provisions shall be unaffected.
9.4) The contract shall be governed by the laws of England.