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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) Where replacement equipment is sent by MWCL to the Hirer prior to the return by the Hirer (at the Hirer’s own expense) of faulty equipment, then hire charges at our published short term hire rates shall be applied to the replacement equipment in the event that the Hirer does not return in to MWCL within 5 working days.

6.10) 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.

6.11) 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.

6.12) 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.

6.13) 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.

6.14) 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 6.13 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.

6.15) that in the case of hire to return the equipment in a clean condition, without extra labels affixed, and that failure to return equipment in a clean condition is for it to be treated as damaged and for the Hirer to bear the full costs of cleaning, and any other hire charges as set out in clause 6.13 hereof.

6.16) 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.

6.17) 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.

6.18) 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 6.13 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 6.13 hereof, then the Hirer agrees to pay ongoing hire charges at the contract rate until full settlement is made.

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.

 

 

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Last modified 2nd November 1997.