Malton Inflight Ltd - Standard Terms & Conditions of Sale
1. Definitions: In these Conditions: "the Buyer" means the company and/or person who buys or agrees to buy the Goods from the Seller. "Conditions" means the conditions set out herein and any special terms and conditions agreed in writing by the Seller. "Delivery Address" means the address for delivery specified in our offer. "Delivery Date" means the date specified by the Seller for delivery of the Goods as specified in our offer. "Goods" means the goods and materials to be supplied by the Supplier as set out in our offer or in the Seller's order confirmation document "Price" means the price of the Goods set out in our offer or in the Seller's order confirmation document and in Condition 3 "the Seller" means the company as listed on the invoice, which shall be either of the following; Malton Inflight Ltd of Basepoint, Metcalf Way, Crawley, West Sussex RH11 7XX United Kingdom, or, Malton (Shanghai) Trading Company Ltd, Room No.2008, Suncome Liauw’s Plaza, No.738 Shangcheng Road, Pudong District, Shanghai, China, 200120, or, Malton Inflight Asia Pacific Limited, Room No.2008, Suncome Liauw’s Plaza, No.738 Shangcheng Road, Pudong District, Shanghai, China, 200120, (Registered at Room H, 8/F., Winner Building, 37, D’Aguilar Street, Central, Hong Kong).
2.1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions.2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.2.5 The Seller gives no warranties or assurances that the Goods made to the Buyer's specification are suitable for the Buyer's purposes.2.6 Where guidelines or labels are given on how to use, store or clean the Goods or for any other reason the Seller shall accept no liability whatsoever for any damage caused as a result of the guidelines not being followed.
3. PRICE AND PAYMENT
3.1 The Price shall be the Seller's quoted price. The Price is exclusive of VAT (if applicable) which shall be due at the rate ruling on the date of the VAT invoice and all and any import or export duties levied on the Goods but unless stated otherwise overleaf or in the Seller's order confirmation document shall be inclusive of all charges for packaging, packing, shipping, carriage, insurance, delivery, loading, unloading, installation and commissioning of the Goods.
3.2 The Price shall be applicable to the contract for the sale of Goods to the Buyer and the Seller shall not be bound to sell further or similar goods to the Buyer or any other party at the same Price.
3.3 Payment of the Price and VAT (if applicable) shall be due upon shipment and must be received within 7 days of the date of the Seller's invoice. Time for payment shall be of the essence.
3.4 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at the rate of 2% above National Westminster Bank Plc's base rate from time to time in force and shall accrue at such a rate after as well as before any judgment.
3.5 If the Buyer fails to make any payment on the due date then without prejudice to any of the Seller's other rights the Seller may :-
3.6 suspend or cancel deliveries of any Goods or other articles due to the Buyer; and/or
3.7 appropriate any payment made by the Buyer to such of the Goods (or goods supplied under any other contract with the Buyer) as the Seller may in its sole discretion think fit.
3.8 The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have or for any reason whatever.
4. GOODS AND SALE BY SAMPLE
4.1 The quantity and description of the Goods and the Delivery Date shall be as set out in the Seller's quotation or as may be amended in the Seller's order confirmation document.
4.2 The Seller may from time to time make changes in the specification of the Goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods.
4.3 If this contract is a sale by sample :-
4.4 the bulk of the Goods will correspond with the sample in quality provided that the Seller shall have no liability to the Buyer unless more than 5% of the Goods do not so correspond;
4.5 the Buyer shall be deemed to have had a reasonable opportunity of comparing the bulk of any consignment of Goods with the sample after 3 days from delivery to the Buyer or the Buyer's agent have expired;
4.6 upon the Buyer having been deemed to have had a reasonable opportunity of comparing the bulk of any consignment with the sample the Buyer will also be deemed to have had notice of any defect or rendering the Goods not in accordance with the contract and to have accepted all the Goods so delivered.
4.7 Allowable discrepancies in quantity - the Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:
4.8 Such discrepancy in quantity shall not exceed 5%;
4.9 The Price shall be adjusted pro rata to the discrepancy.
4.10 All terms, conditions and warranties (whether implied or made expressly) whether by the Seller or its servants or agents or otherwise (other than those expressed warranties set out in the current edition of the Seller's specification or in accordance with the Seller's quotation) relating to the quality and/or fitness for purpose of the Goods or any of the Goods are excluded.
4.11 The specifications and designs of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller. Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
5. DEMONSTRATION OF PRODUCTS, CONFIDENTIALITY & PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
5.1 The Seller may from time to time demonstrate the Seller's range of goods to the Buyer to enable the Buyer to evaluate the goods with a view to placing orders for them.
5.2 The Buyer hereby acknowledges that the intellectual property rights in those goods which includes the formulae, processes, designs, appearance and specification ("the Proprietary Information") remains at all times with the Seller and that if the Buyer does not proceed with an order for the purchase of the same or similar goods with the Seller, that the Buyer will at all times keep confidential the nature of the goods that have been demonstrated to the Buyer and will not directly or indirectly use (for its own or another's purposes) or disclose all or any part of the Proprietary Information.
5.3 The Seller may from time to time include the Buyers logo on its company literature unless specifically requested not to by the Buyer.
6.1 The Seller will deliver the Goods to the Delivery Address on the Delivery Date. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Where the Goods are to be collected from the Buyer by the Seller the risk in the Goods shall pass to the Buyer upon such collection taking place. Where the Seller shall arrange the carriage of Goods to the Buyer's address the risk in the Goods shall pass immediately upon delivery being made.
6.2 Time of delivery of the Goods shall not be of the essence of the Contract.
6.3 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these Conditions. The failure of the Seller to deliver the Goods on the Delivery Date shall not entitle the Buyer to treat this contract as repudiated. The failure of the Buyer to pay for any one or more of the said instalments of the Goods on the due dates shall entitle the Seller (at the sole option of the Seller):
6.4 Without notice to suspend further deliveries of the Goods pending payment by the Buyer; and/or
6.5 To treat this contract as repudiated by the Buyer.
6.6 The Seller shall be liable for losses or damages, in case of misconduct or gross negligence of the Seller, its employees or agents.
6.7 The time within which the Buyer shall be bound to accept the delivery, should be equal to 15 days of the agreed delivery date unless otherwise agreed.
6.8 The Buyer shall promptly obtain all necessary import licences, clearances and other consents necessary for the purchase and delivery of the Goods. The Seller shall promptly upon request supply all documents reasonably required by the Buyer for this purpose.
6.9 If the Buyer is unable to take delivery of the Goods on or after the Delivery Date the Seller may, at its discretion, store the Goods at the cost and risk of the Buyer.
7. ACCEPTANCE OF GOODS
7.1 Prior to delivery to the Buyer, or the Buyer's agent, the goods shall be inspected by our own quality assurance personnel, according to our normal inspection criteria and based on the standard AQL (Acceptable Quality Limit).
7.2 Upon request, a copy of the inspection report shall be delivered to the Buyer.
7.3 The Buyer shall be able to inspect the goods at any time prior to shipment. Thereafter, shall be deemed to have accepted the goods upon shipment.
7.4 After acceptance the Buyer shall not be entitled to reject the goods, which have met our inspection criteria.
7.5 If the Buyer rejects any of the Goods the Buyer shall nonetheless pay the full price for such Goods and promptly give notice and reason of rejection to the Seller and at the Buyer's cost return such Goods to the Seller before the date or when payment of the Price is due.
7.6 No Goods delivered to the Buyer, which have been inspected and which have been certified as being in accordance with the contract shall be accepted for return without the prior written agreement and approval of the Seller on terms to be determined at the absolute discretion of the Seller. Goods returned without the prior written approval of the Seller may at the Seller's absolute discretion be returned to the Buyer or stored at the Buyer's cost without prejudice to any other rights or remedies the Seller may have.
8 TITLE & RISK
8.1 Risk shall pass to the buyer on shipment of the Goods or to the Buyer on collection of the Goods by the Buyer.
8.2 In spite of delivery having been made the property in the Goods shall not pass from the Seller until :-
8.3 The Buyer shall have paid the Price plus VAT in full; and
8.4 No other sums whatever shall be due from the Buyer to the Seller.
8.5 Until property in the Goods passes to the Buyer (in accordance with Clause 8.1) the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other Goods in its possession and marked in such a way that they are clearly identified as the Seller's property.
8.6 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer's business and full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller's property by the Buyer on the Buyer's own behalf and the Buyer shall deal as principal where making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller's money.
8.7 The Seller shall be entitled to recover the Price (plus VAT) notwithstanding that Property in any of the Goods has not passed from the Seller.
8.8 Until such time as the property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned, occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under Clause 8.1 shall cease.
8.9 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
8.10 The Buyer shall insure and keep insured the Goods to the full Price against "All Risks" to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
9. FORCE MAJURE
If delivery of Goods or performance of Work is delayed by causes totally outside the control of the Seller, then the Seller shall give written notice of such cause within 7 days of its occurrence or earlier if delivery is due within this 7 day period, providing particulars of the circumstances and their effect, and the Buyer shall agree to allow such extra time for delivery of the Goods or the completion of the Work as is, in the Seller's sole opinion, reasonable in the circumstances.
10. REMEDIES OF THE BUYERS
10.1 Where the Buyer rejects or accepts or has been deemed to have accepted any Goods then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such Goods or the failure by the Seller to supply Goods which conform to the contract of sale.
10.2 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of this contract.
10.3 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
The Seller shall be entitled to cancel the Order at any time by giving written notice to the Buyer. If the Seller exercises its right of cancellation it shall have no liability in respect of the Contract or in respect of any damage whatever arising from such cancellation.
The Buyer shall keep the Seller fully and effectively indemnified against:
12.1 any and all claims for infringement of letters, patent or registered design, trademarks or trade name by reason of the use or sale of the Goods and against all costs and damages which the Seller may incur in any action for such infringement or for which the Seller may become liable in such actions;
12.2 any royalties payable to the Buyer; and
12.3 each and every liability the Seller may incur to any other person whatsoever and against all claims, demands, proceedings, damages, costs and expenses made against or incurred by the Seller arising out of or occasioned by any error in design or drawings or any defects in or failure of the Goods or Work or any part thereof or by reason of any act or omission of the Buyer, his employees, sub-contractors or agents or otherwise by reason of any breach or default of the Supplier in carrying out or failing to carry out properly or at all his obligations under the Contract.
13. BANKRUPTCY OR INSOLVANCY
If the Buyer shall become bankrupt or insolvent or the subject of a receiving order, an administration order or winding-up proceedings (not being a members' voluntary winding-up for the purposes of reconstruction or amalgamation) the Seller may either:
13.1 terminate the Contract forthwith by notice in writing to the Buyer or to the receiver, administrator or liquidator or to any person in whom the Contract may become vested; or
13.2 give any such receiver, administrator, liquidator or other person the option of carrying out the Contract subject to such person providing a guarantee for the due and faithful performance of the Contract.
14.1 The Order is personal to the Buyer and the Buyer shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract.
14.2 No waiver by the Seller or any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
15.1 In the event of any dispute or difference arising between the parties as to the meaning of this contract or any matter or thing arising out of or connected with this contract then it shall be referred to the determination of an arbitrator to be appointed by agreement of the parties or (in default of agreement) to be nominated by the Chartered Institute of Arbitrators, International Arbitration and Mediation Centre, 12 Bloomsbury Square, London, WC1A 2LP.
16. GOVENING LAW
Notwithstanding the respective domicile of the parties hereto the Contract shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English Courts.